Monday, April 18, 2016

"Ungovernable" In Canada; Disbarred In Michigan

A disbarment from a Michigan hearing panel has an unusual aspect

Respondent did not attend the public hearing and was in default for his failure to file an answer to the formal complaint. Based on respondent's default, the hearing panel found that respondent was determined to be ungovernable within the meaning of Law Society of Upper Canada v Ebagua, 2014 ON LSTA40; practiced law while suspended, in violation of Rule 6.07(3) of the Rules of Professional Conduct of the Law Society of Upper Canada; communicated with a potential client in a manner inconsistent with the proper tone of professional communication, in violation of Rule 6.03(5) of the Rules of Professional Conduct of the Law Society of Upper Canada; failed to maintain the integrity of the legal profession, in violation of Rule 6.01 (1) of the Rules of Professional Conduct of the Law Society of Upper Canada; practiced law through a business entity that did not have a Certificate of Authorization from the Law Society of Upper Canada, in violation of §61.0. 7 of the Law Society Act; and, failed to cooperate with an investigation conducted by the Law Society of Upper Canada, in violation of Rule 6.02 of the Rules of Professional Conduct of the Law Society of Upper Canada and §49.3 of the Law Society Act.

Law Times had reported on the Canada disbarment in February 2015

Leahy, a lawyer called to the bar of Ontario in 1991, spent a good part of his career caught in the crosshairs of the law society. After years of proceedings, the regulator disbarred him in December for professional misconduct.

One of his past proceedings dates back to a 2004 suspension for practising without insurance with more recent decisions dealing with findings such as a failure to co-operate with an investigation.

Last year, the law society found Leahy guilty of practising law during a suspension of his licence, communicating with a client in an unprofessional manner, and failing to co-operate with an investigation in relation to a complaint from Federal Court Chief Justice Paul Crampton.

In January 2013, Leahy, convinced that Federal Court Justice Robert Barnes had a personal vendetta against him, wrote a complaint to Crampton.

“It really does not matter to me that Justice Barnes loathes me, but, when he continues to pursue a personal agenda at my litigants’ expense a time comes when I must speak out,” he wrote in the letter.

Leahy went on to describe his side of the legal wrangling involving federal skilled workers and a failure by Barnes to enforce an agreement.

He also criticized Barnes for penning “a venom-laced” decision against him.

“. . . In his zeal to skewer me and slice and dice anyone who retains my services, Justice Barnes has issued an irrational decision,” according to the letter, which also suggested removing Barnes from the matter lest he continue “knifing” Leahy’s clients.

While Leahy can no longer practise, the case behind the complaint affects the lives of hundreds of potential immigrants. Some of the litigants had applied to become permanent residents through the federal skilled-worker category as far back as 2004, but their applications were still languishing at Citizenship and Immigration Canada when a note in the 2012 budget proposed throwing them out in order to reduce the backlog of cases.

(Mike Frisch)

April 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment For Serial Ethics Offender: Attorney Asked Client To Post Fake Favorable AVVO Reviews

A long record of prior discipline along with newly-found misconduct has led to the disbarment of a New Jersey attorney.

Among the plethora of found violations was this nugget

Pachowicz had testified at respondent’s July 31, 2013 ethics hearing that he had asked her to "make fake reviews on him to make him look better on AVVO. He would tell me -- like I was a John or I was somebody else; and I would pretend that I was one of his clients and say that I was happy with his services." She further testified that, at respondent’s direction, she had pretended to be other clients saying "something nice about him" so that his ratings would improve, because they were low. Pachowicz complied with respondent’s requests because he was her lawyer, she felt sorry for him...

 The Disciplinary Review Board report noted that

Respondent’s conduct, overall, suggests a character that is unsalvageable. As we found in respondent’s prior matter, he is a "serial ethics offender" who demonstrates an "appalling indifference toward his clients" and the rules of the profession, and has refused to learn from his prior ethics problems...

Based on the totality of the factors present here, including respondent’s seeming inability to tell the truth, his disregard for his obligation to cooperate with the attorney disciplinary system and, indeed, to comply with the Court’s orders, his brazen and outrageous conduct, and the principle of progressive discipline, respondent’s misconduct is on par with those attorneys who were disbarred. We believe that respondent is not capable of conforming his conduct to expected standards and, therefore, recommend his disbarment.

 The New Jersey Supreme Court adopted the recommendation. (Mike Frisch)

April 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sanctions Affirmed

The Rhode Island Supreme Court affirmed the imposition of Rule 11 sanctions against an attorney who had represented an unhappy seller of real estate and had purported to represent other client in the litigation.

 The appellant, Keven McKenna, represented Mrs. Wells in those legal battles and he purported to represent  several other plaintiffs as well. The Blanchards filed a lawsuit for malicious prosecution and abuse of process, naming Mr. McKenna and others as defendants...During that lawsuit, the Blanchards became aware, through deposition testimony, that several of the named plaintiffs in the prior cases had not been aware that they had been parties to some or all of the lawsuits filed by Mr. McKenna, supposedly on their behalf...

In his written submission to this Court, Mr. McKenna argues that the trial justice erred in granting the motion because: (1) the Superior Court lacked jurisdiction to impose sanctions in closed cases; (2) Mr. McKenna was protected "by the Due Process and Freedom of Speech Clauses of the R.I. and U.S. Constitutions"; (3) Mr. McKenna was immune from sanctions under the Anti-SLAPP Act, G.L. 1956 § 9-33-2, and G.L. 1956 § 45-24-67; and (4) the principles of res judicata, collateral estoppel, statute of limitations, laches, and the law of the case doctrine protected Mr. McKenna from sanctions.

The arguments presented to us by appellant in his written submissions are unpersuasive. Further, Mr. McKenna failed to appear before this Court to elucidate his reasoning for challenging the trial justice’s decision. Thus, we are unconvinced that the trial justice abused her discretion in finding that no attorney-client relationship existed between Mr. McKenna and Nicholas S. Mancieri. See In re Briggs, 62 A.3d 1090, 1097 (R.I. 2013) ("this Court reviews a trial justice’s decision to award or deny Rule 11 sanctions under an abuse-of-discretion standard"). Our review of the record demonstrates that Mr. McKenna received adequate notice of the show cause hearing on Rule 11 sanctions, a point that is accentuated by the fact that Mr. McKenna submitted an objection with supporting evidence, appeared at that hearing to present arguments, and even submitted the testimony of a witness in support of his objection to the motion for sanctions.

The sanctions amount to a tad less than $20,000. (Mike Frisch)

April 18, 2016 in Professional Responsibility | Permalink | Comments (0)

False Promises In Ads, Other Misconduct, Get Attorney Disbarred

A justice of the Massachusetts Supreme Judicial Court has disbarred an attorney admitted in 2006 for a wide array of ethics violations in his loan modification practice.

The misconduct involved splitting fees, false and misleading print, radio and web advertising, charging illegal and excessive fees and other violations.

According to the Board of Bar Overseers, the attorney had

"systematically extracted illegal and excessive fees from numerous vulnerable and desperate clients with · deceptive advertisements/ misleading contractual arrangements/ and deceptive and useless services such as 'the 'lender benefit analysis' and the 'forensic loan audit.' In addition he engaged in unlawful fee--splitting to provide his partner and his employees with the financial incentive to use these machinations to enhance his personal financial interest at the expense of his  clients."

Justice Lenk rejected the attorney's more benign explanations regarding his business-getting approach

The advertisements also contained other intentional, significant, and serious omissions that made them highly misleading. Listeners were not told that none of their money would be refunded, even if they did not meet the prequalification. requirements, the respondent never filed· a loan modification application on their behalf, or the lender declined to offer a modification or offered one on terms  the client found unacceptable. Listeners also were not told that they were statutorily entitled to a full refund if.the respondent did not obtain an acceptable loan modification offer. Nor were they informed that the particular results described by clients featured in the ads were unusual, that their situation might differ, or that the lender alone had the authority. to make a loan modification offer, on terms the lender chose. The radio advertisements also did not confirm to various requirements in the rules of professional conduct in Massachusetts'· Rhode Island, New York, and Virginia, regarding providing notification of the content of the advertisements to the proper entities (e.g., such as boards of bar overseers or attorneys general),· and retaining copies of the content for specified periods.

The justice also rejected the attorney 's proposed sanction of reprimand, noting that the misconduct spread over a lengthy period

The respondent has expressed not one iota of remorse for the harm he caused, and has engaged in no effort whatsoever to make restitution...

The respondent also apparently lacks any understanding of the seriousness of his misconduct with respect to the radio advertisements, promising that the respondent is the only lawyer who can guarantee a permanent loan modification, on impossibly unrealistic terms, and that he has relationships with well known, highly experienced attorneys in this specialized field. These advertisements, aired across the country, are not, as he claims "mere puffery" or inadvertent and sloppy use of language. As the board found they are deliberate falsehoods concerning the nature of the respondent 's essentially sole practitioner firm (otherwise staffed by nonattorneys  apparently working on a commission basis), and the results the respondent would be able to achieve given the best possible outcome.

The State Attorney General had this report on sanctions imposed on the attorney last year

A Revere attorney and his two businesses have been ordered to pay more than $625,000 for targeting homeowners with deceptive advertisements and demanding thousands in illegal advance fees for mortgage modification and foreclosure relief services they failed to deliver, Attorney General Maura Healey announced today.

“At a time when homeowners were struggling to afford their mortgages, this attorney abused his clients’ trust and deliberately exploited their financial circumstances by demanding exorbitant fees based on false promises, leaving these homeowners even more vulnerable,” AG Healey said. “This judgment puts an end to these deceptive and unfair practices and confirms that those who seek to capitalize on the foreclosure crisis will be held accountable.” 

The final judgment links to PDF file, issued by Suffolk Superior Court Judge Paul Wilson against David Zak and his businesses Zak Law Offices, P.C., and Loan Modification Group, Inc., finds defendants liable under the state’s Consumer Protection Act. The court found that the defendants preyed upon at-risk homeowners throughout Massachusetts who were facing the imminent loss of their homes, took unlawful advance fees based on deceptive guarantees that mortgage loans could be modified to prevent foreclosures.

The judgment requires the defendants to pay more than $625,000, including $400,000 in civil penalties, more than $68,000 in attorney’s fees and costs, and $157,000 in consumer restitution for approximately 65 former clients who complained to the AG’s Office about the deceptive practices and unlawful advance fees.

As found by the Superior Court, the defendants targeted Spanish and Portuguese-speaking homeowners with misleading radio advertisements guaranteeing dramatic loan modifications and legal representation to avoid foreclosure. The defendants failed to disclose in the advertisements that there was no guarantee of success, when in fact they had failed to obtain the promised modifications for most of their clients. 

On the basis of these false promises, and in violation of Massachusetts law, the defendants demanded non-refundable advance fees of $5,000 or more from distressed homeowners – when foreclosure relief services were available for free elsewhere – only to fail to deliver on their promises, leaving homeowners even more at risk of foreclosure. 

Under the terms of the judgment, Zak and his companies are enjoined from engaging in deceptive advertising or soliciting, arranging or accepting advance fees for mortgage assistance or foreclosure-relief services.

In 2007, the AG’s Office issued regulations that prohibit soliciting or accepting an advance fee in connection with foreclosure-related services – with certain limited exceptions for licensed attorneys preparing bankruptcy filings or court proceedings to avoid foreclosure – or advertising services without disclosing exactly what is offered to avoid foreclosure, among other unfair practices.

This discussion of the above findings om MFI- Miami 

Hearing Officer Betty Waxman determined that Zak specifically targeted Latinos with deceptive advertisements for mortgage modification services and misled Spanish and Portuguese-speaking clients with unrealistic and often false guarantees about securing dramatic loan modifications. Evidence introduced in the case showed that Zak opened an office in Revere, Mass. because he believed its Latino community would be “easy targets” and gullible.

Zak used radio and written advertisements in Spanish and Portuguese to contact Latino homeowners having difficulty making mortgage payments, falsely claiming to have saved hundreds of Latinos from foreclosure, promising to cut their mortgage payments in half, asserting that he was the only attorney in Massachusetts who knew how to do loan modifications, and boasting that he had a “secret formula” and “magic numbers” unknown to others for obtaining loan modifications.

Atty. Zak even hired a “Coordinator of the Latino Market”, who was charged with leveraging her extensive network of contacts in the Latino community to recruit agents and clients.

Waxman found that Zak charged Latino clients inflated and duplicative fees for services that were available elsewhere for free, encouraged them to intentionally fall behind on mortgage  payments, failed to adequately translate documents, misrepresented the status of clients’ cases, performed minimal, substandard work—often failing to secure promised mortgage modifications, refused to provide appropriate refunds, and engaged in threats, intimidation, and demeaning conduct.

(Mike Frisch)

April 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, April 16, 2016

Hockey, Drugs And Bar Discipline

A justice of the Maine Supreme Judicial Court has reinstated a suspended attorney by terminating his interim suspension effective July 1, 2016.

A hearing on these matters was held at the Capital Judicial Center on February 19, 2016. The principal issues for the hearing were whether Gary Prolman should be disbarred from the practice of law, reinstated to the practice of law, or have his current suspension from the practice of law extended for a specific period of time, and what conditions to require of Prolman should he be reinstated to the practice of law.

It is quite a story

Before the events that gave rise to this proceeding, Prolman had been generally well regarded by other members of the bar who had professional contact with him. He had been subject to no other disciplinary actions.

Outside of his law practice, Prolman was very involved in his community, particularly with youth and high school hockey and with local charities that focused on children’s needs. He became assistant or head coach of several high school hockey teams in York and Cumberland County.

Through his involvement with hockey programs, Prolman also began to develop a separate business as a sports agent, advising and promoting young hockey players who demonstrated potential to play professionally. This business venture required much work and years of effort before realizing any returns. To support his sports agent business, Prolman relied on income from his law practice and a significant loan from his father. In 2012 Prolman’s sports agent business was about to realize significant returns, as three players he had advised for as many as eight years were entering professional hockey careers with good prospects of playing in the National Hockey League.

For many years prior to 2012, Prolman had regularly used cocaine and sometimes drank alcoholic beverages excessively. There is no evidence that his drug and alcohol abuse affected his law practice or his relationships with his clients. It primarily manifested itself during times away from his practice, though his cocaine use was becoming more regular by 2012.

At some point in 2012, Prolman’s cocaine dealer introduced Prolman to David Jones. Prolman soon became aware that Jones was an illegal drug dealer, primarily involved in sales of large quantities of marijuana. Jones expressed interest in having Prolman assist him in incorporating and acquiring real estate for some business ventures. Prolman assisted Jones as requested and was paid in cash for his legal advice and assistance.

Jones also learned of Prolman’s sports agent business and offered to invest in and become a part owner of the sports agent business. Prolman accepted Jones’s offer, viewing Jones’s investment as a way to repay his father’s significant loan that had been supporting the sports agent business and to stop relying on his family to support this venture.

During this time, Prolman decided to move his office from Portland to York County. With the assistance of his cocaine dealer’s spouse, who was a real estate agent, Prolman located a building in Saco that he could use as an office and residence, with other space to rent to tenants. To aid in purchase of the Saco property, Prolman accepted Jones’s offer to invest in and become a part owner of the property, and Jones may have been listed on the purchase and sale agreement. However, none of the purchase documents listed Jones as a part owner, and the financing documents did not identify Jones as having any interest in the Saco property.

In these various transactions Prolman accepted $127,875 in cash from Jones, which he then deposited in various banks in amounts of less than $10,000 to avoid federal cash source reporting requirements.

With his criminal practice experience Prolman was aware that the cash payments he was receiving from Jones were proceeds from drug transactions that were being laundered through the payments to Prolman. At one time Prolman assisted Jones by converting a large number of small bills into larger bills that could be more easily concealed by Jones as he travelled to acquire more illegal drugs.

In mid-2012, Jones was arrested in Kansas while returning to New England with illegal drugs purchased in California. Shortly after Jones’ arrest, Jones’ girlfriend appeared at Prolman’s residence with a large amount of cash which she indicated could be used to get an attorney and provide bail for Jones in Kansas. Prolman retained $50,000 of the larger amount offered by Jones’ girlfriend, considering it a payment toward Jones’s investment in Prolman’s sports agent business. It does not appear that any of those funds were used to support an attorney or bail for Jones.

A search of Jones’ residence in Maine led to discovery of receipts from Jones’ cash transactions with Prolman, which then led to investigation of Prolman’s actions, directed by the United States Attorney’s office. Prolman initiated contact with the U.S. Attorney’s office to discuss his situation.

In late 2012, at a meeting involving Prolman, his retained attorney for the criminal matter, federal investigators, and an Assistant United States Attorney, Prolman was not truthful with those officials concerning specific details of his dealings with Jones, his own criminal conduct, and his illegal drug usage. For example, when asked by the federal investigators about his handling of approximately $127,000 in illegal drug-related funds, including making deposits at different banks in amounts that were purposely less than $10,000 each, Prolman asserted those funds had been generated by his legal services for an unnamed legal client. At that meeting Prolman also did not disclose that he had received the additional $50,000 in cash, delivered to him by Jones' girlfriend, and that he had then made several additional smaller bank deposits from those funds.

In later meetings with an Assistant United States Attorney and investigators, testimony by the Assistant United States Attorney indicated that Prolman was more forthright and provided much useful information that supported the bringing of charges against other individuals involved in the illegal drug trade. As part of his cooperation with the U.S. Attorney’s office, Prolman provided grand jury testimony in support of the government’s prosecution of others that, in at least one instance, was viewed as creating some personal risk for Prolman.

He pleaded guilty to federal money laundering charges and spent time in prison, where he began to turn his life around

Unlike several of the attorneys appearing on the list of offenses provided by the Board of Overseers, Prolman had no prior disciplinary proceedings during his twenty years of practice in Maine before 2012. During that time, he was very actively engaged in the practice of law, particularly criminal defense work, sometimes providing valuable service to those who could not afford to pay him for his work. He was also willing to provide advice and assistance to other lawyers to help them address challenges with their cases or with their practices.

As reflected by many letters from attorneys filed in both the federal sentencing proceeding and filed as exhibits in this proceeding, Prolman was well respected and well known by his peers with active criminal practices in York and Cumberland Counties. In fact, in this Court’s experience with disciplinary matters, the number of letters from fellow members of the Bar supportive of Prolman’s reinstatement, complimentary of his skills, and noting the need for those skills in the profession is unusual, certainly not indicative of one who, in the past, had practiced at or near the bounds of ethical propriety.

The evidence also indicates that Prolman was more actively involved in his community and in charitable work than many other members of the Bar. As attested in many letters from members of his community, from clients, from parents, from persons involved with charities, from persons involved with youth and school hockey programs, beyond his practice, Prolman had an unusually valuable role in his community helping local charities and through involvement with youth and high school sports programs, particularly hockey programs. These are services which, when provided by Prolman, were greatly valued and which are still needed and could again be provided, particularly if Prolman resumes his law practice.

Considering Prolman’s past history, which, but for the aberration in 2012 is exemplary, considering what the Court finds to be his sincere commitment to change his life and avoid the ethical problems and contributing substance abuse issues that led to the events in 2012, and considering that Prolman has already served a twenty-one month suspension which required him, at the start, to essentially wind up his practice, the Court finds that the Board of Overseers of the Bar has not demonstrated, by a preponderance of the evidence, that disbarment or a lengthy additional suspension is required or is appropriate in the circumstances.

Thus

Based on the findings and conclusions stated in this Order, the Court concludes that, but for the aberrational events in 2012, and Prolman’s reluctance to accept full responsibility for his actions and ethical violations during 2013 and 2014, Gary M. Prolman has been a valued and trusted attorney and an unusually important and generous contributor to his community outside the law. The Court also concludes that Prolman’s reinstatement will be in the public interest, and that, with reinstatement, subject to conditions, Prolman can again provide important service to the public as an attorney and resume his role as an important contributor to his community.

The Port land Press Herald  had reported at the time of his sentencing that his legal career was "likely over."

Senior Associate Justice Alexander authored the opinion. (Mike Frisch)

April 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 15, 2016

No Advisory Opinion: Bar Discipline In Kansas

The Kansas Supreme Court has issued a published censure of a criminal defense attorney for his handling of an advanced fee and subsequent withdrawal from the representation.

The court quoted the hearing panel findings

A lawyer may charge a flat fee to a client for a specific task to be undertaken. When the flat fee is paid to the lawyer, it must be deposited into the lawyer's trust account and the fee cannot be withdrawn until it is earned. Since a flat fee is not earned until completion of the task, the entire flat fee must remain in the lawyer's trust account until that task is completed unless the lawyer and client otherwise agree to partial withdrawals based upon the amount earned for completion of specified subtasks. KRPC 1.15(a).

The respondent failed to deposit the flat fee received from C.B. into his trust account. Because the respondent failed to deposit unearned fees into his trust account, the hearing panel concludes the respondent violated KRPC 1.15(a)

The court decided an important issue on the powers of the hearing panel but declined to give an advisory opinion on advanced fees; rather, the court found adequate guidance in its approval of the findings of misconduct.

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, at which the respondent appeared, the Disciplinary Administrator representative recommended published censure. The respondent requested informal admonition. The Hearing Panel ultimately recommended published censure, but it also "recommend[ed] certain conditions be attached to the respondent's published censure." Despite the permissive, nonbinding tone established by the panel's use of the word "recommend," it then directed the respondent to perform certain tasks within specified time limits:

"First, the hearing panel directs the respondent to permit the auditor employed by the disciplinary administrator's office to conduct a trust account audit within 90 days of the date of this report. Second, the hearing panel directs the respondent to submit written policies regarding time records and fee agreements which are in compliance with the Kansas Rules of Professional Conduct to the disciplinary administrator's office for approval within 30 days of the date of this report. Finally, the hearing panel directs the respondent to pay his client $5,650 within 30 days of the date of this report."

These directions were not permissive or nonbinding. Rather, they conveyed clearly nonnegotiable requirements of behavior, and the deadlines for that behavior to occur were likely to ripen long before respondent's case reached its oral argument date before  this court. This is, in fact, exactly what occurred. The panel's Final Hearing Report bears a date of September 16, 2015, while this court heard oral argument on March 1, 2016—well after the longest of the panel's specified time limits—90 days—expired.

 Although neither respondent nor his counsel contested the panel's "conditions" or the power of the panel to impose or enforce them, by the time the parties reached oral argument before this court, there was evident lack of unanimity on whether respondent had complied to the greatest extent possible. In particular, the representative of the Disciplinary Administrator challenged the nature and completeness of documents respondent had supplied to facilitate the required audit. As a result of what she viewed as less-than-enthusiastic embrace of the panel's directions, she sought a sanction more severe than the published censure she had sought at the panel hearing, i.e., a 60-day suspension with a requirement of a reinstatement hearing.

Respondent's counsel resisted this effort to raise the stakes in this case and implored us to provide definitive guidance, particularly for the criminal defense bar, on how to account for flat fees and other advanced fees within ethical boundaries. Although prompted to do so by questions from several members of the court, respondent's counsel did not take issue with the panel's power or authority to order his client to fulfill certain requirements pending oral argument before this court; nor did he challenge the appropriateness of the Disciplinary Administrator's office seeking more serious sanctions at oral argument because of perceived deficiencies in respondents' compliance with interim panel orders. Also in response to questions from the bench, the representative of the Disciplinary Administrator stated that she had relied on her interpretation of several earlier disciplinary cases for the proposition that a hearing panel was empowered to suggest or require a course of action to be followed by a respondent between the panel hearing and Supreme Court oral argument and that this court would consider the respondent's resulting behavior in deciding discipline. She also appeared to favor more extensive ethical guidance from this court for lawyers who accepted flat or other advanced fees.

 We decline counsels' invitation to issue what we believe would be an advisory opinion on ethical accounting for flat fees and other advanced fees. Having adopted the panel's findings and conclusions, we have already done what is necessary on that subject in this case. We must, however, address the question of whether a disciplinary hearing panel may issue mandatory directives to respondents—directives to be ignored or treated casually at their peril. Certain of our prior cases may have been less than clear on this point, and on whether the court will look favorably upon the Disciplinary Administrator's recommendation of a more severe sanction as a result of what it regards as noncompliance with such directives...It is time for a course clarification, if not correction.

Simply put, our current Kansas Supreme Court Rules do not permit a disciplinary hearing panel to impose discipline or to require or enforce any conditions attached it—not between a panel hearing and oral argument to this court or at any other time...

All of this being said, we do not mean to discourage respondents from taking corrective or rehabilitative actions between their disciplinary hearings and their oral arguments in the Supreme Court. Indeed, such actions may appropriately be considered by us when we decide discipline, because they may be indicative of a respondent's acceptance of responsibility and/or remorse. We have previously remarked that respondents should keep us and the Disciplinary Administrator's office informed of any such actions by way of affidavit submitted before oral argument.

The court warned

We also hasten to add that there is one type of situation in which the court will certainly consider post-disciplinary hearing misbehavior by a respondent without additional factfinding in a remanded or new disciplinary proceeding. That situation arises when a respondent has been provided notice of the oral argument setting for his or her case and nevertheless fails to appear. In such a case, the violation of KRPC has occurred before the eyes of the court, see Kansas Supreme Court Rule 212(d), (e)(5) (respondent shall appear before the court), and no further factfinding below is necessary to preserve the respondent's right to due process. The court may impose discipline more severe than that recommended by the panel or Disciplinary Administrator as a result of the new violation, with or without a recommendation to do so.

Are there other jurisdictions where an attorney facing bar discipline must appear for the oral argument or face negative consequences?

If you watch the oral arguments in Kansas bar cases, you will note that the attorney regularly addresses the court personally (after counsel's remarks if represented) and answers the court's questions.

Is that practice unique to Kansas?

I certainly have not seen a respondent address the court in D.C. unless  acting as pro se counsel. 

Oral argument is linked here. (Mike Frisch)

April 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Not Sorry Enough

An attorney has been suspended for 18 months for misconduct in several matters by the Kansas Supreme Court.

At oral arguments in this case, Hawkins gave an unsympathetic acknowledgment of wrongdoing, stating that she was sorry for any conduct that the court found to be in violation of the KRPC. When asked what she thought would be an appropriate level of punishment should this court find that her actions violated the KRPC, Hawkins suggested a term of probation similar to that imposed in In re Rumsey, 301 Kan. 438, 343 P.3d 93 (2015)...The conduct at issue in Rumsey was the respondent's act of calling opposing counsel, during the middle of a criminal trial, a derogatory term and submitting an affidavit to the Disciplinary Administrator which falsely claimed that it was signed before a notary public. 301 Kan. at 440-441. The severity of this conduct was lessened by several mitigating factors, including (1) the respondent's contemporaneous apology to opposing counsel; (2) evidence showing that the respondent was suffering from health problems during trial; (3) the hearing panel's finding that the affidavit was not offered to mislead or deceive the Disciplinary Administrator or the hearing panel; (4) the respondent's cooperation during the disciplinary hearing and his full acknowledgment of wrongdoing; and (5) several witnesses, including two district court judges, who testified to respondent's excellence as a criminal defense attorney. 301 Kan. at 443-45.

In contrast, the conduct at issue here, conduct constituting numerous rule violations, arose from three separate disciplinary complaints. Hawkins' actions included delay in returning unearned legal fees to a former client, filing false pleadings in district court, improperly calling into question the veracity of a court employee, and engaging in  behavior that unreasonably delayed the resolution of two legal matters. Additionally, seven attorneys testified about problems or negative experiences they had in working with Hawkins.

Though we have not accepted some of the hearing panel's findings, a majority of this court concludes that the hearing panel's recommended discipline of 18 months' suspension is warranted given the nature and volume of Hawkins' conduct, the duties she violated, and the aggravating circumstances present coupled with the lack of any mitigating evidence. A minority of the court, however, would impose a shorter term of suspension.

The video of the oral argument is linked here. (Mike Frisch)

April 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

New Jersey Adopts UBE, New Admission By Motion And Metadata Provisions

An important announcement from the New Jersey Supreme Court is highlighted below

Following the recommendation of the Ad Hoc Committee on the Uniform Bar Examination, the Court has determined to adopt the UBE as a replacement for New Jersey’s existing bar examination format, beginning with the February 2017 administration of the exam. New Jersey joins 21 jurisdictions that have already adopted the UBE.

And

After thorough deliberation, the Court adopted admission by motion, subject to certain important restrictions: Applicants for admission to the New Jersey bar by motion must hold a juris doctor degree from an ABA-accredited law school; demonstrate fitness and character to practice law; attain a qualifying score on the Multi-State Professional Responsibility Examination or pass an approved law school ethics course; have practiced for five of the last seven years in another jurisdiction; have previously passed a bar examination in another jurisdiction; be admitted in a jurisdiction that would extend a reciprocal license by motion to New Jersey lawyers; and complete a course on New Jersey ethics and professionalism as a condition precedent to admission. Admission by motion removes only the requirement that certain applicants take and pass the New Jersey bar examination. All applicants, whether by motion or by exam, must still be certified by the Committee on Character and meet all other criteria for admission.

 

Finally

The Court addressed an important ethical question raised by New Jersey practitioners in the context of their contemporary practice: whether a lawyer who receives an electronic document may, consistent with the rules governing attorney ethics, review metadata in that document.

"Metadata" is embedded information in electronic documents that is generally hidden from view in a printed document. Metadata may reflect such information as the author of a document, date(s) on which the document was revised, tracked revisions, and comments inserted in the margins, among other things. This embedded electronic information may include privileged information or other potentially objectionable, private or proprietary information.

Following a careful review, the Court adopts the recommendations of the Working Group on Ethical Issues Involving Metadata in Electronic Documents, and makes a number of amendments to the Court Rules regarding electronic documents and metadata. The measures are designed to protect sensitive client data, clarify attorneys’ professional obligations, and foster education programs so that the legal community may be better equipped to meet the unique challenges inherent in exchanging documents electronically -- a modern reality that is ubiquitous in the contemporary practice of law.

(Mike Frisch)

 

 

April 15, 2016 | Permalink | Comments (0)

Thursday, April 14, 2016

Above Cayuga's Waters

In a case brought against Cornell University for the destruction of horse semen, the New York Appellate Division for the Second Judicial Department has returned the matter to the trial court

The plaintiff, a horse breeder, commenced this action to recover damages resulting from the defendants' destruction of a quantity of semen obtained from one of her stallions. The defendants had agreed to collect and freeze the semen for a fee. The frozen semen remained in the defendants' care for approximately five months, at which time the plaintiff attempted to retrieve it and was informed that somehow it had thawed while in storage and was no longer viable. Following the presentation of evidence at trial, the defendants argued to the court that since the contract between the parties did not encompass storage of the semen, their retention of the semen after it was collected and frozen constituted a gratuitous bailment. The case was submitted to the jury on a theory of gratuitous bailment, and the jury returned a verdict in favor of the plaintiff on the issue of liability and awarding her damages in the principal sum of $212,841.83.

The evidence was sufficient to support the findings on liability but not damages

 the verdict on the issue of damages was contrary to the weight of the evidence and must be set aside. The jury awarded the plaintiff the principal sum of $212,841.83 by calculating that each of the 210 destroyed containers, or "straws," of semen had a retail value of $1,000, for a total of $210,000, and then added $2,841.83, which was the amount that the defendants had billed the plaintiff for medical and collection services provided for the plaintiff's stallion. This was error...

the plaintiff submitted evidence of executed contracts for the sale of 16 of the destroyed straws of semen to various breeders at the price of $1,000 per straw. Since the amount of lost profits associated with these contracted sales was certain and definite, the plaintiff was entitled to an award of $16,000 for the loss of these 16 straws (see generally Steitz v Gifford, 280 NY 15, 20; Ever Win, Inc. v 1-10 Indus. Assoc., 111 AD3d at 886). However, with respect to the remaining 194 straws that were destroyed, for which no contracts to purchase had been executed, the proper measure of market value is the price at which they could be replaced with a product of similar quality and characteristics in the market that existed immediately before their loss (see Ever Win, Inc. v 1-10 Indus. Assoc., 111 AD3d at 886). Accordingly, we remit the matter for a new trial and determination limited to that issue.

Information about the plaintiff is linked here. (Mike Frisch) 

April 14, 2016 | Permalink | Comments (0)

Fatal Subtraction

An attorney who was suspended for three years with proof of current fitness has been denied reinstatement by the District of Columbia Court of Appeals.

The court had noted in suspending the petitioner

Given the nature of the misconduct at issue, we expressed "no doubt that if and when Daniel seeks reinstatement, his status with the IRS will be a relevant consideration."

Notwithstanding that admonition

We agree with the Hearing Committee that Mr. Daniel failed both to fully document his tax deficiencies and to substantiate his assertion that he had satisfied his tax obligations. His failure to submit adequate proof—in particular, his failure to demonstrate that he had come clean to the IRS5—is fatal to his petition for reinstatement...

There is simply nothing in the record before us to show that Mr. Daniel ever advised the IRS in a meaningful way that he had concealed taxable income such that it could reliably make an assessment of his tax obligations and any outstanding deficiencies. Given his history of dishonesty, his conclusory assertions that he was  "all square" with the IRS are inadequate.

A word to the wise

Should Mr. Daniel once again petition for reinstatement, he will have to provide some documentation that he has communicated with appropriate staff at the IRS to disclose his past concealment of funds and to ensure that the agency has accurate information from which it can assess his tax obligations and deficiencies from 1996 (when he opened the 329 IOLTA account12) through 2005. In addition and for the same time period, Mr. Daniel will have to provide documentation from the IRS detailing his income, his tax obligations, any tax deficiencies, and any payments made to address those deficiencies.

The court's opinion had been released as an unpublished memorandum and opinion on February 22. It was published on motion of Disciplinary Counsel. (Mike Frisch) 

April 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Domestic Violence Bar Charges

The Illinois Administrator has filed a complaint alleging domestic violence misconduct

On June 9, 2013, Respondent pushed, shoved, and struck Astrid Conte-Russian, who was Respondent’s girlfriend at the time. As a result, Conte-Russian lost consciousness, suffered swelling to her jaw, bruising on her arm, a displaced fracture to her left forearm, and had a laceration to her eye that required stitches.

On August 8, 2013, Respondent was arrested by the Chicago Police Department and charged with domestic violence, in violation of 720 ILCS 5/12-3.2 (a)(1), as a result of the incident described in paragraph two, above. The matter was docketed as People v. Jenk, case number 13 DV 74550 in the Circuit Court Cook County, First Municipal District.

On March 18, 2013, after a bench trial, Respondent was found guilty of domestic batter in case number 13 DV 7455001. The court sentenced Respondent to 18 months of court supervision and fined him $500 plus court costs.

(Mike Frisch)

April 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 13, 2016

Prenup Issues Result In Viable Malpractice Claim

A client who retained an attorney to draft a prenuptial agreement stated a claim that survived summary judgment, according to a recent opinion of the Tennessee Court of Appeals.

The issue came to light in the ensuing divorce and issues relating to enforceability due to disclosure of assets

Plaintiff agreed that he selected the attorney but that he also believed that Defendant represented him and Wife. He said that Wife had access to his filing cabinet and that he never prohibited her from viewing the documents in the cabinet. He claimed that she retrieved documents from the cabinet on occasion. He admitted that he was a "fairly private person" and that they had not engaged in specific discussions concerning financial issues prior to signing the Agreement.

Following the hearing, the trial court set aside the Agreement, finding that the Agreement failed to conform to the requirements set forth in Randolph because a reasonable disclosure of assets had not been made and because Wife did not possess independent knowledge of the same. The court granted Wife‟s request for pendente lite support. Plaintiff and Wife later entered into a marital dissolution agreement.

As to disclosure, plaintiff testified that

He provided that he kept his financial information in a filing cabinet that she could have easily accessed. He believed she accessed this information because she always searched the residence to discover the identity of gifts he purchased for her birthday or Christmas.

 In the malpractice case

The trial court granted summary judgment, finding that the undisputed material facts negated an essential element of Plaintiff‟s claim. In so finding, the court held that Defendant had not breached the applicable standard of care because the Agreement was sufficiently drafted in that it provided that the parties possessed knowledge of one another‟s assets. The court continued that Wife had also signed the Agreement, thereby affirming her knowledge of the assets. This timely appeal followed.

 The court here disagreed

The record reflects that genuine issues of material fact remain as to whether Wife possessed independent knowledge of the full nature, extent, and value of the holdings as evidenced by the conflicting testimony presented by the parties. Likewise, genuine issues of material fact remain as to whether Defendant breached the applicable standard of care in drafting the Agreement. With these considerations in mind, we conclude that the trial court erred in granting summary judgment. In so concluding, we express no opinion as to whether Defendant actually breached the applicable standard of care or as to the extent of Plaintiff‟s damages, if any.

 

 (Mike Frisch)

April 13, 2016 in Clients | Permalink | Comments (0)

Convicted Attorney Faces Bar Discipline

A story in the Columbus Dispatch details information about a number of convicted Ohio attorneys

Nearly a dozen lawyers a year are convicted of felonies in Ohio, but few face the kind of charges that are likely to send Javier Armengau to prison.

“The ones I’m aware of usually fall into two groups — stealing or embezzling from clients and drug charges due to an addiction,” said S. Michael Miller, who served as Franklin County prosecutor for more than 17 years before becoming a defense attorney in 1996. “It’s very rarely anything involving violence.”

A Franklin County jury convicted Armengau on Monday of single counts of rape, kidnapping and public indecency, four counts of sexual battery and two counts of gross sexual imposition. The victims were two clients and the mother of a client.

The rape and kidnapping convictions mean that the 52-year-old Armengau is likely to be sent to prison when he is sentenced on Aug. 12. The maximum sentence for all the convictions, if imposed consecutively, would be 41 years.

Yesterday, Common Pleas Judge David W. Fais refused to declare a mistrial in the case. Armengau’s attorneys had argued that prosecutors should have told them that an accuser who traveled from Venezuela to testify at the trial had asked the prosecution to help her stay in the United States.

“The court finds no evidence that the state had any agreement, express or tacit, with (the woman) regarding her green card or immigration status,” Fais wrote. “The court further finds that although (she) clearly expressed that she was disappointed by the lack of help she received from the prosecution, her subjective want or need for help regarding her immigration status is not evidence that there was a mutual understanding or agreement that the prosecution would help (her) in exchange for her testimony.”

The Ohio Supreme Court suspended Armengau’s law license on an interim basis the day after his conviction. The decision was in response to a June 16 request by the Columbus Bar Association, although an automatic suspension typically occurs as soon as the court receives a certified copy of a felony conviction for a lawyer.

On Wednesday, the bar association appointed Columbus lawyer Dennis McNamara to begin reviewing Armengau’s files to determine whether any of his clients need help finding a new attorney. Armengau continued to practice law and obtain clients until his conviction.

Clients who paid Armengau for legal services that weren’t rendered and are unable to recover their money can file a claim with the Supreme Court’s client security fund, said bar counsel Bruce Campbell. Information is available at 1-800-231-1680.

Pat Sheeran, administrative judge for Franklin County Common Pleas Court, said he instructed the clerk’s office to send a memo to all of Armengau’s Franklin County clients to alert them to their next court date.

Those who are unaware of his license suspension will learn about it and their need for a new attorney when they appear in court, he said.

The article also identifies other Ohio attorneys convicted of felony offenses.

A Dispatch report on the jury verdict quotes one of the defense attorneys.

Jennifer Coriell, one of Armengau’s attorneys, called the verdicts “a miscarriage of justice in every way” and said an appeal will be filed. She said the accusers’ testimony included inconsistencies and the judge allowed jurors to hear “a lot of testimony that should have been kept out.”

(Mike Frisch)

April 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Ex-Girlfriend And Her Ex-Husband issues Endanger Lawyer's Child

A stayed one-year suspension has been imposed by the Ohio Supreme Court.

After a day of drinking at a bar, Salters drove to his ex-girlfriend’s apartment and got into a physical altercation with her ex-husband. Later that night, after picking up his two-year-old daughter, Salters returned to the bar, leaving his daughter asleep in his vehicle while he went inside to drink alcohol. When bar employees advised Salters that they had found his daughter awake in the car, he brought her into the bar. Salters then drove from the bar to his ex-girlfriend’s apartment and forcibly entered the apartment, leaving his daughter in the vehicle. The ex-husband and some other occupants of the apartment hit Salters and forced him out. When the police arrived, Salters failed to advise them that his daughter was in his car. She was subsequently discovered by an officer who heard her crying as he was canvassing the area.

Salters pled guilty to charges of trespassing in a habitation, a fourth degree felony, operating a motor vehicle while intoxicated, a first-degree misdemeanor, and child endangering, a first-degree misdemeanor. He received a suspended 15-month prison sentence and was placed on community control for three years for the trespassing charge, was ordered to serve a 30-day jail sentence for the drunk-driving charge, and received a suspended five-month jail sentence for the child-endangering charge. Salters was also ordered to pay $5,290 in restitution for the injuries and property damage that he caused as well as $2,500 in fines. Upon notification of his conviction, we suspended his license on an interim basis.

There was mitigation

The parties stipulate that the mitigating factors include the absence of a prior  acceptance of responsibility for his actions, his full and free disclosure to the board and his cooperative attitude toward the proceedings, the imposition of other penalties, and his entering into and complying with a recovery contract with the Ohio Lawyers Assistance Program ["OLAP"].

He must complete his criminal probation and maintain compliance with OLAP conditions. (Mike Frisch)

April 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

From Reprimand To Resignation

A Florida public reprimand for having sex with a matrimonial client drew much heavier reciprocal discipline in New York.

The [Departmental Disciplinary] Committee moves for an order imposing reciprocal discipline in the form of a two-year suspension, or, in the alternative, sanctioning respondent as this Court deems appropriate. In response, respondent requests that he be permitted to resign pursuant to 22 NYCRR 603.11.

The Appellate Division for the First Judicial Department ordered accepting the attorney's offer of resignation.

The facts

The Florida Bar filed a complaint against respondent in 2013, charging him with engaging in misconduct by having sexual relations with a matrimonial client during the course of the representation. In 2014, respondent, represented by counsel, entered into a stipulation and consent judgment whereby he admitted that, inter alia, a client retained him in 2008 to represent her in a dissolution of marriage proceeding, and that in 2009 "he did engage in one isolated and consensual improper personal encounter with [his client] at the time that her case was concluding." He consented to a public reprimand and agreed to pay the costs incurred by the Florida Bar in connection with the disciplinary proceeding. The Supreme Court of Florida approved in full an uncontested Referee's report — recommending discipline in accordance with the stipulation and consent judgment — and publicly reprimanded respondent by order dated April 10, 2014.

 Clearly a reprimand would not be imposed  in New York

We find that respondent's misconduct contravenes New York's strong public policy prohibiting lawyers from engaging in sexual relations with clients in domestic relations matters during the course of their representation (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.8[j][1][iii] ["A lawyer shall not . . . in domestic relations matters, enter into sexual relations with a client during the course of the lawyer's representation of the client"]). Although this Court noted in 1991 that "no jurisdiction in the United States ha[d] adopted an ethical code provision expressly proscribing sexual involvement between a lawyer and a client, whether the representation involves a matrimonial matter or otherwise" and that the disciplinary rules then in effect "contain[ed] no such prohibition" (Edwards v Edwards, 165 AD2d 362, 368 [1st Dept 1991]), this is clearly no longer true (and has not been for quite some time).

In 1993, the late Chief Judge Judith S. Kaye "announced sweeping changes" to matrimonial practice, including the prohibition of "sexual relations between attorney and client during the course of representation" (Edward A. Adams, Divorce Law Reforms Unveiled, NYLJ, Aug. 17, 1993 at 2, col 4). The rule was approved by the Presiding Justices of all four departments of the Appellate Division following a May 1993 report by the Committee to Examine Lawyer Conduct in Matrimonial Actions, and was incorporated into part 1400 of the court rules (and later moved to DR 1-102[A][7] [22 NYCRR 1200.3(a)(7)] of the Code of Professional Responsibility). Although the rule originally applied only in the context of domestic relations matters, in 1999 restrictions on lawyers' sexual conduct with clients were expanded to include all areas of practice, and the language of the rule was again moved to DR 5-111 (22 NYCRR 1200.29-a)...

"Because domestic relations clients are often emotionally vulnerable, domestic relations matters entail a heightened risk of exploitation of the client. Accordingly, lawyers are flatly prohibited from entering into sexual relations with domestic relations clients during the course of the representation even if the sexual relationship is consensual and even if prejudice to the client is not immediately apparent" (rule 1.8, comment 17).

For these reasons, notwithstanding respondent's position that the improper relationship with his client in the Florida divorce proceeding was an isolated, consensual incident at the time the case was drawing to a close, his misconduct was in clear violation of Rule 1.8(j)(1)(iii) and cannot be ignored. Moreover, although the Committee requests reciprocal discipline, we find that disciplinary resignation is an appropriate resolution of this matter (see Matter of Valley, 123 AD3d 176 [1st Dept 2014]; Matter of Kelly, 226 AD2d 1 [1st Dept 1996]).

The attorney practices in New Mexico. (Mike Frisch) 

April 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tenured Professor Gets Interim Suspension For Misappropriation Allegations

An interim suspension has been ordered by the New York Appellate Division for the First Judicial Department

based upon uncontested evidence, namely, written admissions and bank records, that he, inter alia, misappropriated client funds, which misconduct immediately threatens the public interest.

The court described the circumstances of the investigation

Respondent is a tenured professor at Rutgers School of Law, who also maintains a transactional law practice. In two instances, respondent withdrew IOLA funds that did not belong to him in order to meet his personal and business expenses. In one instance, in December 2013, respondent received a $220,000 contract deposit on behalf of his client, the seller in a real estate transaction, which he deposited into his IOLA account. Between January 2 and February 14, 2014, when the transaction closed, respondent repeatedly invaded the $220,000 contract deposit such that, as of February 11, 2014, his account balance had fallen to $500. Respondent replenished the funds he withdrew with funds from his two operating accounts.

In the second instance, on August 5, 2014, respondent deposited a $100,000 contract deposit he received from his clients, a married couple, whom he represented in connection with their purchase of a condominium; he deposited the funds into his IOLA account. At the time, respondent was holding $10,395.96 on behalf of another client in his IOLA account. Between August 5 and August 20, 2014, when the transaction closed, respondent invaded the IOLA funds by making transfers to his business and personal accounts such that, as of August 14, 2014, his account balance had fallen to $74,495.96.

On the same day as the closing, respondent replenished the funds he withdrew by transferring funds from his two operating accounts. Nonetheless, an IOLA check in the amount of $15,914.93, representing the payment of a flip tax, was dishonored due to insufficient funds; this is the dishonored check that precipitated the Committee's investigation. On September 23, 2014, respondent replaced this check with a bank cashier's check drawn against his IOLA account.

Respondent's documentary responses also reveal that he commingled client funds with his personal and business funds, failed to maintain required IOLA account records, and, on one occasion, made a cash withdrawal from his IOLA account for $1,500.

 The response

In response to the Committee's requests, respondent submitted written responses wherein he vigorously denied that he intentionally converted client funds, and explained that, due to his ignorance and misunderstanding of the escrow rules, during the period at issue, he mistakenly believed that he could withdraw and use client or third-party funds in his IOLA account as long as he had the same amount of funds on deposit in one of his other non-IOLA accounts, which he contended was always the case. Respondent explained that he had sufficient funds in personal liquid assets in his and his wife's personal accounts, but he was reluctant to frequently withdraw funds from these accounts because he wanted to avoid conflict with his wife.

In mitigation, respondent explains in his cross motion that his misconduct on the aforementioned transactions occurred in the midst of significant personal and family health problems. In particular, in September 2009, both respondent's wife and brother suffered from significant medical conditions. As a result of his personal and family situation, respondent took an unpaid leave from his teaching position for the 2010-2011 academic year. In or about 2012, respondent also started seeing a psychiatrist approximately three times a week. Respondent's health problems caused him to take a second leave of absence from his teaching position in the fall of 2014 that continued into 2015. Respondent has been under Dr. Carol J. Weiss's care since March 2015. Dr. Weiss opines that respondent "is not yet in a position where he can manage the stresses of the disciplinary investigation and proceeding . . ." and thus "it would be in his best medical interest for him to have additional recovery time, such as three to four months, before he faces such additional stresses."

The attorney also explained that he reduced his teaching and outside workload. He asked that interim suspension not be imposed.

The court

The record sufficiently establishes that respondent repeatedly misappropriated and/or converted client funds, repeatedly commingled personal and client funds, and failed to keep required IOLA account records...

...the Committee's motion should be granted and respondent suspended from the practice of law, pursuant to 22 NYCRR 603.4(e)(1)(iii), effective immediately, and until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court. We further grant respondent's cross motion to the limited extent of of redacting the bank account numbers in the financial information included in the motion and cross motion papers.

(Mike Frisch)

 

April 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, April 12, 2016

The Greeting Card

A Louisiana Hearing Committee has proposed disbarment of an attorney

Hearing Committee #27 unanimously finds that Respondent has engaged in multiple criminal activities including felony activities. In addition, and importantly, the Respondent engaged in acts of misconduct involving a knowing act of dishonesty and fraud within a pending domestic matter. This conduct spans over a period of a decade and suggests that her activity is not an isolated or remote event. Respondent's behavior reflects adversely on her character and fitness to practice law in the State of Louisiana. Additionally, Hearing Committee #27 believes that it is important that the Respondent chose to ignore these disciplinary proceedings and not participate. Given all of these factors, it is a recommendation of Hearing Committee #27 that disbarment be issued to Respondent...

The committee found that she fabricated evidence in her own divorce

Respondent responded to  [husband] Mr. Molaison's discovery requests and admitted to her adulterous relationship with Mr. Pfleeger. Respondent also provided copies of emails between her and Mr. Pfleeger, and a greeting card purportedly from Mr. Pfleeger as documentary proof of the adulterous relationship. Meanwhile, on June 13, 2011, Respondent signed a sworn affidavit attesting to the truthfulness of her responses to Mr. Molaison's discovery requests.

 On July 14, 2011, Mr. Molaison filed a Supplemental Petition for Divorce based on Respondent's adultery. The emails and greeting card produced by Respondent during discovery were ultimately presented to the court in support of obtaining a divorce based on adultery.

The matter went to trial on August 17, 2011, during which Respondent testified under oath. She testified that she committed adultery with Bryan Pfleeger; and she testified as to the authenticity of both her emails to and from Mr. Pfleeger, and a greeting card allegedly received from Mr. Pfleeger. All documents were admitted into evidence and divorce was granted based on adultery.

ODC has since confirmed Respondent's post-filing adultery with Mr. Pfleeger, and authenticated the emails between Respondent and Mr. Pfleeger regarding same. However, the greeting card that Respondent attributed to Mr. Pfleeger and that she submitted to opposing party and counsel during discovery was fabricated by Respondent without Mr. Pfleeger's knowledge or consent. Respondent further allowed this false evidence to be submitted to the court during the underlying proceedings.

On September 20, 20 11, Respondent emailed Mr. Molaison and claimed her testimony regarding adultery with Mr. Pfleeger was false. Respondent further confirmed to Mr. Molaison that the greeting card attributed to Mr. Pfleeger was also false. On November 8, 2011, Mr. Moliason informed his lawyer, Barbara Ziv, of Respondent's claim of false testimony and of the fake greeting card.

On December 7, 2011, Ms. Ziv informed Mr. Pfleeger of Respondent's recent statements to Mr. Molaison. Mr. Pfleeger confirmed his adulterous relationship with Respondent, and confirmed the authenticity of his emails to and from Respondent; however, Mr. Pfleeger denied any involvement with the greeting card in question. Ms. Ziv then informed Mr. Pfleeger that, under the circumstances, she was obligated to file a disciplinary complaint against Respondent...

Respondent's ever-changing story regarding the reported adulterous relationship with Mr. Pfleeger is troubling. Respondent responded to discovery and testified in court that she committed adultery with Mr. Pfleeger. She then told Mr. Molaison and now ODC that her testimony was false. However, ODC has confirmed the fact that Respondent did engage in a post-filing adulterous relationship with Mr. Pfleeger. Respondent engaged in professional misconduct. Respondent's conduct also violated Rule 8.4(a) (violated or attempted to violate the Rules of Professional Conduct).

As to the greeting card

It was later revealed that Respondent fabricated the greeting card without Mr. Pfleeger's knowledge or consent.

There were criminal matters involving theft and driving offense including

On March 22, 2013 the Respondent was operating a beige Infiniti automobile in an erratic fashion. Law enforcement performed a traffic stop and discovered a clear plastic bag with seven rocks of crack cocaine in her possession...Although required to submit to felony monitoring, on August 7, 2014 the Respondent failed to appear for monitoring resulting in the issuance of a bench warrant for her arrest and a hold without bond. As of this date the Respondent remains a fugitive.

(Mike Frisch)

April 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Abuse Of Drugs And Confidences

A six-month suspension and a reinstatement proceeding was imposed by the Massachusetts Supreme Judicial Court.

This summary of the misconduct

The respondent was sued in small claims court by his former client. The complaint alleged that the respondent had failed to perform several services for which he had been paid, failed to return unearned fees and to repay a personal loan the former client had made to the respondent. The respondent filed an answer to the complaint that, without his former client’s consent after consultation, made disclosures alleging highly personal confidential information about the client. None of these disclosures was necessary to any defense or claim in the small claims action, nor did the respondent reasonably believe the disclosures were necessary to establish a defense...

In aggravation, the respondent has a disciplinary history of a prior public reprimand for similar misconduct. In addition, the respondent had received a warning about protecting confidential client information in connection with a prior complaint by the same former client. In mitigation, the respondent had become addicted to prescription pain medication, which clouded his judgment in this case. The respondent voluntarily received treatment for his addiction, voluntarily submitted to an evaluation by LCL, and consented to disclosure of treatment information to LCL.

The sanction was an agreed disposition. (Mike Frisch)

April 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

School Discipline And Retaliation Claims Addressed By Ninth Circuit

An outspoken conservative student was properly disciplined for harassment but stated a First Amendment retaliation claim against faculty and administrators, according to a recent opinion of the United States Court of Appeals for the Ninth Circuit.

At all times relevant to this suit, Neil O’Brien was a student at California State University Fresno (“Fresno State”), where he was an outspoken political conservative and critic of the university. In May 2011, O’Brien confronted and videotaped two professors in their offices, questioning them about a poem that had been published in a supplement to the student newspaper. After disciplinary proceedings, the university found that O’Brien had violated the Student Conduct Code’s prohibition on harassment and intimidation that poses a threat to others. The university imposed sanctions. O’Brien brought suit in district court against several faculty members and administrators, alleging violations of his constitutional rights including those protected by the First Amendment.

Facts alleged in the suit

Plaintiff Neil O’Brien enrolled as a junior at Fresno State in the fall semester of 2010 to pursue a degree in recreation. O’Brien, who describes himself as a “constitutional conservative,” quickly involved himself in political advocacy on campus. He formed the Fresno chapter of the student organization Young Americans for Liberty; he organized events for the Central Valley Tea Party; and he frequently attended student government meetings.

O’Brien soon became an outspoken critic of the Fresno State faculty and administration. He particularly objected to the university’s support for the student body president, an undocumented immigrant, and to the administrators’ endorsement of the DREAM Act. O’Brien began a website on which he posted information he had discovered about the student body president on the internet and through IRS records searches. He also posted criticism of Fresno State’s separate graduation ceremony for Latino students. He filed public records requests to obtain information on administrator salaries and other issues, and he spoke up at student government meetings. He learned that his records requests were “reported all the way up to” then-university president Dr. John D. Welty. 

In response to the activities just described, university officials monitored and interfered with O’Brien’s activities. During O’Brien’s first year at Fresno State, Dr. Carolyn Coon, Assistant Dean of Student Affairs, “requested that students and other faculty members gather information and complaints to use against” him. The director of alumni relations sent emails to other administrators, including the university’s communications director, requesting that they “do something” about O’Brien and his website. In the fall of 2012, university officials deleted some of O’Brien’s posts from Facebook pages that were “operated and managed by university officials” and “permanently block[ed] him from posting” about certain issues on the pages while, at the same time, allowing the posts of “pro-radical left-leaning view points in support of [the student body president] and other leftist posts to remain.”

He had confronted two professors in their offices over concerns about a published poem

O’Brien approached Dr. Torres’ open office door, turned on his video camera, and asked Torres if he had approved of the publication of the poem. Torres refused to speak to him. O’Brien “calmly insisted on speaking to Torres about the poem.” Torres then picked up the phone and called campus police. O’Brien next went to the open door of Dr. Lopes’ office, with his video camera turned on, and asked her the same questions. She, too, refused to answer, stating that she did not want to talk to him. When O’Brien insisted, she closed her office door and called campus police. Torres and Lopes subsequently filed complaints with the Fresno State campus police. Dr. Luz Gonzalez, Dean of the Social Sciences Department (of which the CLS Department is a part), also filed a complaint with the campus police, even though she had not been present during the videotaping incident. O’Brien provided to the campus police a copy of the videotape he had made while confronting Torres and Lopes.

As to school discipline

We...conclude that § 41301(b)(7) is neither unconstitutionally overbroad nor vague. Rather, it permissibly authorizes California State University branches to discipline students who engage in harassment or intimidation that threatens or endangers the health or safety of another person in the university community...

Taking the allegations in the [First Amended Complaint]  as true, we conclude that Freeman and Oliaro reached a permissible conclusion. Professors at work in their personal offices do not generally expect to be confronted without warning by a student asking hostile questions and videotaping. If the uninvited student refuses to cease hostile questioning and refuses to leave a professor’s personal office after being requested to do so, as O’Brien admits occurred here, the professor may reasonably become concerned for his or her safety. O’Brien’s behavior as described in the FAC could be considered “harassment” or “intimidation” and threatening under an objective reasonableness standard. It was thus permissible for Fresno State to impose discipline on O’Brien for this conduct under its reasonable and viewpoint-neutral regulation.

But as to retaliation

O’Brien named seven defendants in this case. We hold that the FAC states a First Amendment retaliation claim against five of them — Vice President Oliaro, Dean Coon, Dean Gonzalez, Dr. Torres and Dr. Lopes. We hold that the FAC has not alleged sufficient facts to state a claim against the remaining two — President Welty and Dr. Jendian — who were essentially peripheral figures with insufficient connection to the critical events to be held responsible for actions taken against O’Brien.

We caution against overreading our opinion. The First Amendment does not give a free pass to students who violate university rules simply because they can plausibly show that faculty or administrators disapprove of their political views. Our holding is by no means intended to disable university faculty and administrators from imposing discipline on students whose misconduct is preceded by or accompanied by the expression of opinions with which faculty members or administrators strongly disagree. Specifically, our holding is by no means intended to protect from discipline students whose speech or conduct may reasonably be seen as threatening or constituting a danger to members of the university community. Indeed, as we have indicated above, O’Brien’s conduct in the videotaping incident in this case was appropriately subject to discipline. The only issue in dispute is whether defendants imposed that discipline as retaliation for O’Brien’s protected activity.

We hold that a retaliation claim has been stated because the allegations of the FAC, if believed, could reasonably support a conclusion that faculty members and administrators at Fresno State not only disagreed with the expressed political views of O’Brien, but also sought to punish and muzzle him in retaliation for his expression of those views. That is, if the facts alleged in the FAC are believed, a reasonable jury could conclude that defendants sought to punish O’Brien for his expression of his opinions, and to deter and even prevent him from engaging in speech and conduct protected by the First Amendment. In sum, the allegations in the FAC make it at least “plausible” that defendants’ actions were substantially motivated by opposition to O’Brien’s protected speech and expressive conduct.

The defendants may seek summary judgment on qualified immunity grounds. (Mike Frisch)

April 12, 2016 | Permalink | Comments (0)

"A Disturbing Disregard For Or Ignorance Of The Facts"

The Connecticut Supreme Court denied a writ of error filed by an attorney sanctioned for violations in appeal matters.

we conclude that the Appellate Court did not abuse its discretion in suspending Miller from the practice of law before that court for a period of six months on the basis of her repeated failure to meet deadlines, to comply with the rules of practice, and for filing a frivolous appeal.

On the merits

Miller’s contention that rule 8.4 of the Rules of Professional Conduct provides the exclusive list of misconduct for which an attorney may be sanctioned is patently frivolous. Nor is the present case, as Miller argues, the first in which an attorney has been sanctioned by a Connecticut court for failing to comply with the rules or orders of the court. Indeed, our case law is replete with examples of instances in which our courts have exercised their authority, whether inherent or pursuant to statute or the rules of practice, to sanction an attorney for such conduct...

In her brief to this court, Miller attempts to minimize the professional lapses that ultimately convinced the Appellate Court that it had no choice but to suspend her temporarily from practice before that court. She also argues that the record belies that court’s determination that she exhibited a persistent pattern of irresponsibility in the handling of her cases. Miller’s arguments reveal a disturbing disregard for or ignorance of the facts underlying this case.

More trouble ahead

Finally, Miller claims that the Appellate Court abused its discretion in referring her to the Chief Disciplinary Counsel without alleging the violation of any Rule of Professional Conduct or otherwise providing guidance as to the nature of the inquiry to be conducted. Miller also expresses concern that the referral could result in duplicative sanctions for the conduct described herein...

The Appellate Court not only has the authority to refer an attorney to the Chief Disciplinary Counsel, it has an obligation to do so when, as in the present case, it concludes that that attorney’s persistent pattern of missing deadlines and violating court rules threatens the vital interests of his or her clients. Of course, we do not know whether the Chief Disciplinary Counsel will find instances of neglectful or otherwise unacceptable conduct by Miller in the Superior Court, but, in light of the number and nature of Miller’s transgressions in the Appellate Court, the Appellate Court certainly had the discretion to bring those transgressions to the attention of the Chief Disciplinary Counsel for whatever action, if any, may be appropriate with respect to Miller’s conduct in the Superior Court.

April 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)