Tuesday, April 8, 2014
Plaintiff is the Director of Security for her employer, the National Basketball Association (NBA). She commenced this action against defendants alleging, inter alia, discrimination and retaliation in violation of the State and City Human Rights Law. Defendants Geno Auriemma and James Tooley are employed, respectively, as the executive director and head coach of USA Basketball, Inc. (USAB), the national governing body for the sport of basketball. Although it is an Illinois corporation, USAB has its main headquarters in Colorado Springs. Tooley is a Colorado resident and Auriemma is a Connecticut resident. The NBA is a New York City based company and a member of the USAB. Although plaintiff resides within the state, she is not a New York City resident.
Plaintiff had expected to provide security to the Women's National Basketball team at the 2012 London Olympics and had traveled with it to the Olympics on at least two prior occasions in 2004 and 2008. In 2011, however, while she was abroad with the team, plaintiff learned that Auriemma had instructed Tooley that he did not want her at the 2012 Olympics. Plaintiff claims that Auriemma's actions were motivated by her rejection of Auriemma's inappropriate sexual advances towards her during a 2009 overseas assignment.
Plaintiff alleges that Tooley cooperated with Auriemma's request, and contacted her supervisor, James Cawley, who agreed to remove her from the 2012 London Olympics assignment. After plaintiff complained about the reassignment, the NBA investigated and found her complaint unsubstantiated. Plaintiff then commenced this action in June 2012. Subsequently, in July 2012, she learned that the NBA had decided that she would be attending the London Olympics after all.
Although she attended the Olympics, plaintiff claims that she had "significantly diminished material responsibilities" while in London. Her complaints included that she was not provided with certain security credentials that would have allowed her access to the basketball arena, she was assigned to transport guests to and from the arena, and she was told she could not sit in the bleachers at the gym while the team was practicing. Plaintiff claims these limitations were all part of Auriemma's retaliation campaign against her, in which Cawley and Tooley were complicit.
USAB, Tooley and Auriemma moved to dismiss the complaint against them. Their motions were granted on the basis that the discriminatory acts alleged took place outside of New York by nonresidents and the conduct alleged had no impact in New York. The court rejected plaintiff's argument that her place of employment was the location of the injury for purposes of evaluating where its impact was felt. Her employer and Cawley have answered the complaint. They have not moved and the order appealed from does not affect plaintiff's claims against them. We agree that the motions by non-residents USAB, Auriemma and Tooley, dismissing the Human Rights Law and collateral tort claims against then, were properly granted.
A Virginia attorney agreed to a public reprimand without terms for misconduct that took place outside of the practice of law.
The attorney left a grocery store "with a can of Red Bull without paying for it, although she had paid for the other groceries in her possession."
Charges of petit larceny were eventually reduced to unlawful entry. The attorney complied with the requirements of community service.
The Washington Post reported that the attorney served as a county chief public defender (Mike Frisch)
A town court justice who presided over traffic, minor drug and alcohol offenses and small claims matters was suspended from the practice of law for not less than five years without automatic reinstatement by the Indiana Supreme Court.
Defendants who faced first-time traffic charges would receive deferred prosecution "if they took a defensive driving course." Such courses were conducted in the justice's courtroom on a Saturday with the profits going to the driving school.
But things changed
In October 2001, Respondent created her own business called Diversified Educational Services ("DES") which offered the defensive driving courses. Respondent's father contracted with W.S.1 to open a checking account in the name of DES, which Respondent and her father controlled. Respondent directed that the fees collected from defendants that she ordered to attend the driving school be deposited into the DES account. Between November 2001 and December 2003, people attending DES driving school paid fees totaling $29,600. W.S. was shown as the sole owner of the account to conceal Respondent's financial interest in DES. Respondent paid W.S. $3,800 from the DES account for his cooperation. Respondent did not disclose her financial interest in DES to the Town or to defendants charged with traffic offenses in her court.
In December 2001, Respondent stopped paying rent to the Town for DES's use of the courtroom for the driving classes. Between December 2001 and December 2003, DES conducted sixteen driving school classes for which no rent was paid to the Town.
The justice also used her position to profit from referral of young adults to a counseling program and concealed her financial interest in the referrals.
The justice was convicted of mail fraud and was suspended on an interim basis as a result. The court considered a number of mitigating factors. (Mike Frisch)
Monday, April 7, 2014
An inmate who wishes to change his name is entitled to appear in the civil matter by telephone or other means, according to a decision of the Oklahoma Supreme Court.
The court majority did not find the proposed name change should be granted.
There is a dissent
I respectfully dissent from the Court's expansion of prisoner's rights. The petitioner is a thirteen-time convicted felon serving time in prison. He has a lengthy public criminal history beginning in 1993. He already has aliases of Stacey L. Hamphill, Stacey L. Hemphil, Apokalypse Hemphill, Terrance L. Hemphill, Stacey L. Himphill, Laqua Pollard, and Ra Shabazz. Now he wants the Court to order the district court to allow him to get on the telephone and phone in his testimony which would support a legal name change to Apokalypse God Allah. With such a long criminal record and the use of so many aliases, the purpose of the petitioner's name change must be to disassociate himself with his criminal past and to fraudulently deceive the public of his criminal past, rather than for any lawful purpose. Today the Court goes to great lengths to facilitate the petitioner's quest by ignoring our prudential rules, vitiating the due process concept of notice, misapprehending the Oklahoma Constitution and this Court's cases, and usurping the district court's discretion...
This is the perfect example of the swarm of inmate recreational litigation clogging our courts.
I guess it is fortunate that this litigant was not before the Tennessee judge who changed a child's name from Messiah to Martin. (Mike Frisch)
An out-of-state attorney's "ill-advised and poorly conceived" efforts to expand his firm's practice into Rhode Island resulted in a rather unusual sanction.
The attorney is not admitted in Rhode Island. He sent a solicitation letter to twelve Rhode Island residents concerning Rhode Island matters. The letters contained several misrepresentations.
The court concluded that his primary problem was inattention and failure to supervise a non-lawyer employee, rather than "deliberate disregard" of ethical rules.
...the respondent... is hereby ordered to provide pro bono legal services to twelve Georgia residents within one year from the date of this order. The provision of pro bono services will be provided through referrals from the Cobb Justice Foundation, a partnership between Legal Aid of Cobb County and the Cobb Bar Association. The respondent shall submit monthly written reports to Disciplinary Counsel verifying his compliance with this order.
An attorney's second brush with the disciplinary system drew a proposed one-year suspension wuth fitness by the California State Bar Court
This consolidated proceeding marks the second time Ilse Marie Butterfield’s dishonesty has brought her before the State Bar Court. The first time occurred after she filed a 2009 declaration in federal district court that she signed in her client’s name, and then lied about the signature to the judge and at her deposition. She received probation and a 30-day suspension. Then in 2011, while serving her 30-day suspension, Butterfield falsely informed a superior court that she could not attend a hearing due to a previously set engagement rather than because she was suspended. In the same client matter, she engaged in the unauthorized practice of law (UPL), and later denied it to the State Bar Office of Probation (Probation). Also, she violated several conditions of her probation...
It is worth emphasizing to Butterfield that attorneys are sworn officers of the courts, and "[i]t is, of course, an extremely serious breach of an attorney’s duty to lie in statements made to the court." (In re Aguilar (2004) 34 Cal.4th 386, 394.) Practically speaking, our courts simply cannot function unless they can trust that the attorneys appearing before them are telling the truth. Honesty is absolutely fundamental in the practice of law; without it, " ‘the profession is worse than valueless in the place it holds in the administration of justice.’ " (In re Menna, supra, 11 Cal.4th at p. 989].) Since this case is Butterfield’s second disciplinary matter, any future failure to comply with her ethical responsibilities may result in her disbarment. (Std. 1.8(b) [disbarment for third discipline case unless compelling mitigation clearly predominates].)
The suspension will be followed by probation for three years. (Mike Frisch)
An attorney who was employed as a paralegal during a period of suspension engaged in unauthorized practice and was disbarred by the Delaware Supreme Court:
During his suspension, Feuerhake worked as a paralegal under the supervision of Jeffrey K. Martin, Esquire. But Feuerhake never provided Martin with a copy of the Suspension Order. Nor did he inform Martin of this Court’s prohibition on his ability to practice law during his suspension. The record also demonstrates that there was sufficient staff available at Martin’s office to return phone calls and contact clients.
Following his suspension, Feuerhake communicated with a client, Ms. Lamb, to inquire about facts related to her case. They planned for and later discussed the results of a pretrial conference. Feuerhake also spoke with another client, Ms. Barkes, up to twenty times to discuss the contents of briefs he wrote and filings by opposing counsel. Feuerhake also attended four depositions at which Ms. Barkes was present and communicated with the four different witnesses being deposed.
In conjunction with these specific violations, Feuerhake continued to engage in the practice of law in violation of the Suspension Order. He discussed cases with clients. He exchanged emails with opposing counsel about a draft trial conference before the District Court on behalf of a client. Although Feuerhake noted on the record that he was only attending as a paralegal, he nonetheless addressed the court, made arguments and objections, responded to opposing counsel, and tried to distinguish case law.
Finally, Feuerhake received $39,466.66 as his share of a contingency fee from a settlement agreement...
As to sanction
Feuerhake argues that disbarment is overly punitive and instead suggests that a continued and extended suspension is more appropriate because he adequately performed during his suspension in aiding his clients. He further suggests that disbarment is inappropriate because he did not act wantonly or maliciously. We disagree. Disbarment is not limited to wanton or malicious misconduct. Disbarment is necessary to protect the public and the administration of justice, to preserve confidence in the legal profession, and to deter other lawyers from engaging in similar conduct during a period of suspension. Any other sanction would not sufficiently preserve the public’s trust and confidence in the integrity of the disciplinary process for Delaware lawyers.
The Michigan Attorney Discipline Board has reduced a panel disbarment to a three-year suspension of an attorney who had "failed to update his affidavit of p[ersonal history in support of his [bar admission] application..."
The attorney graduated in 1998 and was denied Michigan admission in 2001. He renewed the application in 2006 and was "required, as are all applicants, to acknowledge in his own handwriting that he had a continuing obligation to immediately inform the Standing Committee on Character and Fitness if any of the answers in his personal history affidavit included with his answers ceased to be true."
He failed to update a 2009 criminal charge and a personal protection order served on him. He also did not advise of a 2009 citation for leaving an accident scene. (Mike Frisch)
Friday, April 4, 2014
The North Dakota Supreme Court has disbarred an attorney admitted in 1972.
Among the charges were
The petitions for discipline in both files allege Overboe had sexual contact with multiple clients and offered to exchange his legal services for sexual favors.
On or about the month of February, 2006, Overboe engaged in conduct which constituted a substantial step toward knowingly having sexual contact with a client, [S.K.], at his office, in that Overboe grabbed her around the lower back and buttock area and tried to kiss her on the mouth, to the annoyance and alarm of [S.K.]...
On or about October 14, 2006, Overboe had sexual contact with a client, [A.R.], in that Overboe touched her buttocks on the way to his office, and at his office rubbed his groin against her body and grabbed her buttocks...
On or about October 23, 2006, Overboe offered to hire [A.R.] with the intention of engaging in sexual activity, in his office, through the offer of exchanging sexual favors for a reduction in legal fees...
In approximately 1997 or 1998, Overboe represented [W.M.]. She had been referred to Overboe through a legal services program. During a meeting at his office, Overboe made remarks to [W.M.] questioning whether she was breast feeding, and other remarks that made [W.M.] uncomfortable. [W.M.] testified that Overboe had a fridge, and a couch or bed, in his office.
In approximately 1999, [M.R.] was referred to Overboe by Legal Assistance of North Dakota. He met with her after regular business hours. Overboe had chilled wine, which he was drinking, and which he offered to [M.R.]. Overboe told her of his personal life and personal problems he was having. He told her how much she would have to pay if the matter had not been referred by Legal Aid. Overboe's comments made [M.R.] fearful of being alone with Overboe.
In approximately 1995 and 1996, Overboe represented the employer of [M.B.]. On one occasion, [M.B.] took papers for her employer to Overboe at his office. While [M.B.] was at his office, Overboe walked around his desk, unzipped his pants, and exposed himself. [M.B.] was appalled by Overboe's conduct...
Beginning in early 2005, Overboe represented [R.L.] in a divorce matter. During the course of the representation, Overboe asked [R.L.] for sexual favors in exchange for reducing her financial obligation to him. [R.L.] testified that she initially thought Overboe was joking but realized he was serious when he unzipped his pants and exposed himself.
The attorney was suspended on an interim basis in 2006 and complained about the delay. He also contended that a disability suspension, rather than disbarment, should have been imposed.
The court also found ethical violations of a non-sexual nature. (Mike Frisch)
The Nebraska Supreme Court has ordered a three-year suspension of an attorney followed by probation for two years on reinstatement.
The attorney had been admittted in 2003 and worked in-house for an insurance company before entering private practice.
He was ill-equiped for the transition
In August 2010, respondent left the carrier company to engage in the private practice of law. Up to that time, respondent did not have any experience in the financial aspects of the attorney-client relationship. He had never negotiated a fee, handled client funds, or drafted a contract for the provision of legal services, nor had he ever worked with a billing system or utilized a trust account...
Although respondent was an associate at the law firm, he practiced independently, essentially sharing office space with no direct supervision by the law firm. Because respondent operated largely on his own under this agreement, the law firm did not provide him with formal training or oversight related to the handling of client funds or billing.
He got into trouble in representing a building contractor. The trouble included misappropriation. (Mike Frisch)
Thursday, April 3, 2014
The Florida Supreme Court rejected a referee's proposed 91-day suspension and suspended an attorney for three years.
The attorney had represented the plaintiff who sought a judgment against the defendant.
The defendant prevailed in the litigation. She then sent two letters to the attorney seeking payment of her attorney's fees and costs. At the time, she was unrepresented.
The attorney responded by writing to the United States Attorney "accusing the defendant of attempting to extort money from him and requesting that she be criminally prosecuted."
The court found the letter violated several ethical rules, including presenting criminal charges solely to obtain an advantage in a civil proceeding. (Mike Frisch)
The New York Court of Appeals has held favorably to an attorney in a case that presented this issue
This appeal concerns the appropriate treatment of statutory counsel fees awarded under the New York City Human Rights Law where the contingency fee agreement does not explicitly mention statutory fees. We hold that, absent a contract term expressly providing for a different distribution, an attorney is entitled to the greater of either the contingency fee or the statutory award.
The case involved former police officer two clients who retained counsel to sue New York but later became dissatisfied. The attorney sought declatatory relief when a dispute arose with the clients over her fees.
...in light of their unequivocal terms, the Appellate [Fee] Agreements should be enforced as written. Because the statutory appellate fees exceeded the contracted-for minimum of $20,000 per appellant, per appeal, [attorney] Dorman is entitled to receive those court-ordered fees in their entirety. As for compensation owed to Dorman for her representation at trial, she is entitled to collect either one third of the jury award, or the statutory trial fees, whichever is greater.
An attorney who was convicted of five alcohol-related driving offenses received a stayed suspension of a year and a day and probation of two years from the Pennsylvania Supreme Court.
Some of the offenses involved accidents. All were committed while the attorney was driving a black Mercedes Benz SUV.
The blood alcohol content results from the incidents were stunning - "greater than .30," .281. .274 and .257.
Because all five incidents occurred before any conviction, the attorney received first offender treatment in each of the criminal cases.
According to the Disciplinary Board report, he has made a dramatic recovery from his alcoholism and is not practicing law. Rather, he is
...currently working as an actor and is also President and CEO of GoingLong Productions, a film production company which operates in association with Longitude Entertainment in Los Angeles [and] has appeared in two upcoming feature films...
His acting biography is linked here. Among the roles he has played is superlawyer Ted Olsen.
He is also the author of a treatise on prosecutorial misconduct.
The disposition is a testament to the impact alcoholism recovery can have on a disciplinary sanction. (Mike Frisch)
Wednesday, April 2, 2014
The New York Appellate Division for the Second Judicial Department imposed summary disbarment for a criminal conviction.
The respondent admitted that on July 26, 2005, he was knowingly in possession of a loaded firearm. Specifically, the respondent had an uzi in the trunk of his car, along with live rounds of ammunition.
The conviction involved a federal felony. (Mike Frisch)
A attorney who had represented both a defendant husband and his cooperating wife in a drug distribution investigation and trial engaged in both a Rule 1.7 and 1.9 violation, according to a recent decision of the Montana Supreme Court:
This proceeding concerns not a Sixth Amendment violation but evaluation of compliance with the Rules of Professional Conduct. Before the Commission, Detective Fritz testified that Neuhardt represented [the wife] Christenson when she gave incriminating information against [her husband] Vasquez, who also was Neuhardt’s client. Simply stated, Christenson was a materially adverse witness against Vasquez. Fritz’s unrefuted testimony was that Christenson had “ratted out” Vasquez. Even if Vasquez also implicated himself, Neuhardt failed to appreciate the conflicting interests between husband and wife or to explain those conflicts to his clients and pursue the possibility or effectiveness of any waiver.
Based on the foregoing, the Commission correctly concluded that Neuhardt violated Rule 1.7, MRPC, whether or not “actual prejudice” to Vasquez’s defense occurred as a result of Neuhardt’s joint representation.
The court imposed a public censure along with a 90-day suspension. The attorney must appear in court for the administration of the censure.
There is a problem with the link. The case is In re Solomon Neuhardt. (Mike Frisch)
We just reported a suspension of a year and a day in Pennsylvania for a third instance of neglect, with two justices dissenting for a more severe sanction.
Then, we see this decision imposing censure by the New Jersey Supreme Court.
The Disciplinary Review Board noted
We note that this is respondent’s fifth brush with the disciplinary system. His previous run-ins have resulted in an admonition, two reprimands and a censure. All but the censure were imposed before respondent began his representation in the matter before us. However, the representation here was ongoing when the censure was imposed. Not only has respondent failed to learn from mistakes, he has, as we observed in our decision imposing his 2011 censure, a "propensity to violate" the Rules...
I've been teaching my classes about the profound differences between state bar regulatory systems.
I wonder how Pennsylvania and New Jersey (which, I imagine, share authority over a large number of attorneys) deal with the disparate standards in reciprocal discipline matters. (Mike Frisch)
The Massachusetts Supreme Judicial Court has affirmed and reversed, in part, a judgment based on the following facts
This case arises out of a thirty-year-old art theft in Berkshire County and the plaintiff's eventual recovery of seven stolen paintings from the defendant, Robert M. Mardirosian, a Massachusetts attorney who had represented the suspected thief, David Colvin, prior to Colvin's death in 1979. The facts surrounding the defendant's botched attempts to profit from having found the paintings, and the circuitous path to their recovery, from Stockbridge, to London, to Geneva, and eventually back to the plaintiff, are set forth in detail in United States v. Mardirosian, 602 F.3d 1, 4, 5, 6 (1st Cir.), cert. denied, 131 S.Ct. 287 (2010). Suffice it to say, Robert Mardirosian was convicted by a jury in Federal court of one count of possessing, concealing, or storing the stolen paintings in violation of 18 U.S.C. § 2315 (2006). Id. at 4. The United States Court of Appeals for the First Circuit affirmed both his conviction and his sentence of seven years in prison and three years of supervised release. Id. at 4, 6-7. Mardirosian also was ordered to pay a $100,000 fine and to return the paintings still in his possession. Id. at 7.
The case before us arises not from this criminal prosecution, but from civil claims brought by the victim of the theft, Michael Bakwin, against Mardirosian in Superior Court while the criminal proceedings against Mardirosian were pending. Bakwin sued Mardirosian for fraud and conversion in order to recoup over $3.4 million he had spent in his efforts to recover the stolen paintings.
The jury awarded $3 million in damages and found seven frausulent transfers of property. The court here sorted the mess as follows
The judgment with respect to the Falmouth residence is affirmed. The judgment with respect to the Citizens Bank savings account is reversed and remanded for entry of judgment against Robert Mardirosian. The judgment with respect to the Citizens Investment Services brokerage account is affirmed. The judgment against David Mardirosian with respect to the Mardirosian Riverside Trust is reversed, and the case is remanded for entry of a money judgment against David Mardirosian in the amount of the value of the asset at the time of transfer subject to adjustment as the equities may require.
The attorney was disbarred.
The case is Bakwin v. Mardirosian, decided April 2, 2014. (Mike Frisch)
The Pennsylvania Supreme Court ordered a suspension of a year and a day in a matter in which the attorney had neglected a criminal appeal to which he had been appointed.
The Disciplinary Board noted that the matter was the attorney's third instance of professional discipline for similar conduct and that he had not learned from the first two disciplinary encounters.
He had twice been informally admonished.
At the disciplinary hearing, the attorney admitted to a drinking problem but did not present evidence of rehabilitation. He is presently suspended for failure to pay costs.
Justices Baer and Stevens dissented and would impose a three-year suspension. The dissenters would order greater sanctions for "recidivist" violators.
Justice Baer expounded on his views in a second matter in which an attorney was suspended for a year and a day. The matter was the attorney's fourth disciplinary sanction in ten years. (Mike Frisch)
An illinois attorney has consented to disbarment as a result of a conviction summarized in the statement of charges
The Indictment alleged that Movant, while serving as a Cook County Commissioner, engaged in an extortion scheme involving his conduct in extorting a company to hire a minority subcontractor with whom Movant had financial ties and which involved kickbacks from the sale of bandages to Stroger Hospital and other public hospitals. He was also charged with taking a $5,000 payoff in connection with the development of a waste transfer station in Cicero, Illinois.
On July 1, 2013, Movant pled guilty, before the Honorable Gary Feinerman, to Count Five of the Indictment, conspiracy to commit extortion, in violation of Title 18, U.S.C. sec. 1951(a). In his plea agreement, Movant admitted that between 2008 and 2011, he extorted an unnamed company, which was awarded a contract to help improve Cook County Hospital's revenue cycle, into using his friend and co-defendant, Ron Garcia, and Garcia’s business, Chicago Medical Equipment & Supply, Inc., as a minority subcontractor in return for a $100,000 bribe. Garcia forgave a $100,000 mortgage loan he made to Movant in exchange for Movant’s assistance in steering the sub-contract to Garcia’s company. Movant later tried to disguise his receipt of the bribe by claiming that he had repaid the purported loan and by producing false invoices on his law office letterhead which falsely indicated that he had performed legal work for one of Garcia’s companies. In pleading guilty, Movant also admitted to the following conduct: that he also sought to obtain orders of Dermafill bandages from Cook County in return for kickbacks; sought to obtain approval for a waste-transfer station in return for kickbacks while a Town of Cicero official; and evaded his federal income taxes between 2007 and 2010 by misreporting the income from his law office.
He was sentenced to a 132 month term of imprisonment. (Mike Frisch)
Tuesday, April 1, 2014
The Illinois Review Board has proposed a one-year suspension with six months stayed and probation for misconduct of an attorney who had represented himself.
The misconduct involved criticism of judges, for example
In January 2011, following a hearing at which Respondent failed to appear, Judge Kennedy issued an order denying Respondent's outstanding motions. Respondent filed a motion to reconsider the order on February 23, 2011. Respondent alleged that Judge Kennedy improperly ruled on Respondent's motions because the case had been set only for a status. Respondent stated, "Such back-alley justice makes a mockery of the legal procedures that gives parties notice of hearing and a right to be heard, procedures traditionally sets our legal system form that of oppressive dictorial regimes." In December 2011, Respondent filed a pleading to substitute Judge Kennedy, referring to Judge Kennedy and Attorney Janello as "predators" and to Judge Kennedy as a "scourge on his profession." Respondent referred to opposing counsel Mr. Janello as a "susceptible boy-lawyer" who learned from Judge Kennedy the power of corruption so he "can accept a judgeship, representing the next generation of Illinois corruption."
There was mitigation
We recognize Respondent offered evidence mitigating his misconduct. Most importantly, Respondent's misconduct in this matter arose out of a case in which he represented himself. He did not jeopardize his clients by engaging in the misconduct at issue here. In fact, according to Respondent, he has represented clients without complaint. The Hearing Board found in mitigation that Respondent acted without corrupt or dishonest motive and that he testified he recognized that his language was inappropriate. Respondent has not been previously disciplined. Respondent called two character witnesses who testified as to his honesty and charitable acts. Respondent testified as to his significant volunteer activities, including volunteering with the Red Cross, volunteering with his neighborhood association, and providing some pro bono legal services through the Land of Lincoln Legal Assistance Foundation. He is active in his church and in the local Masons Lodge. At the time of the conduct, Respondent was a partner in a law firm with his significant other and mother of his three children, Christina Manuel. He is no longer a partner with Ms. Manuel but he continues to work for Ms. Manuel. Finally, in mitigation the Hearing Board found that Respondent's firm has a general practice and serves a lower socioeconomic community in the Champaign area, a community that is underserved by the legal profession.
The board found a violation of Rule 4.4(a), which the hearing board had not found. (Mike Frisch)