Tuesday, October 7, 2014

What's In A Retainer Agreement? Hint: Something Unethical

An attorney who engaged in multiple acts of serious misconduct over a protracted period of time should be disbarred, according to a recent report and recommendation of the California State Bar Court Review Department.

The attorney had a busy personal injury practice that kept him in court on a regular basis. He shared an office manager (Wheeles) with a law school classmate and friend. His trust in the office manager was misplaced.

When her issues came to his attention, he failed to act.

The board

...the misappropriation was the result of gross negligence amounting to recklessness, considering Guzman’s failure to monitor his CTA or his office staff. Yet, at trial, Guzman sought to blame Wheeles rather than accept responsibility for the misappropriation. In addition, we weigh heavily his overreaching in having his clients sign a fee agreement that ceded to him the unfettered right to control their cases, and after abandoning or settling their cases without their knowledge or consent, disappearing from view. Not surprisingly, this repeated course of conduct resulted in significant harm to multiple clients.

The attorney's retainer form

 The Client hereby specifically authorizes The Attorney to settle his/her claims without instituting litigation, to receive the settlement proceeds; and to take a percentage of the recover in payment of his/hers fees. Client further authorizes The Attorney to endorse The Client’s name on checks paid in settlement claims, to have the proceeds placed in The Attorney’s Client Trust Account, and for The Attorney to with draw attorney’s fees from the account. (Errors in original.)

The hearing judge had proposed a one-year suspension. (Mike Frisch)

October 7, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Doing The Job Correctly

Pennsylvania appears to be one jurisdiction that pays more than lip service to public awareness and protection in bar discipline matters.

From the web page of the Disciplinary Board 

Historically, the publication of news of the disbarment or suspension of attorneys has been low-key. Notices were issued to newspapers in the area where the lawyer practiced, for publication in the little-read legal notices section of the classified ads. Public discipline is also posted on the Board’s website. The Disciplinary Board believes that communities should know when discipline is imposed on one of their bar, so that practice is changing. The Disciplinary Board has begun issuing press releases of disbarment and suspension cases to media outlets in the market where the disciplined lawyer practices.

“As members of the Disciplinary Board, our duty is to assist the Supreme Court in protecting the public, preserving the integrity of the legal profession and safeguarding the reputation of our courts and the legal system,” said R. Burke McLemore, Jr., Chair of the Disciplinary Board. “By raising awareness of attorney discipline, we highlight our commitment to achieving these goals by demonstrating to the public how the profession is policing itself.”

The decision to focus additional efforts on raising public awareness of such actions arose in part from an incident earlier this year when a Dauphin County lawyer failed to notify his clients that he was forced to surrender his law license.

This is how a responsible disciplinary system approaches its work. For a contrasting approach, see the post directly below.

Let the sunshine in. (Mike Frisch)

October 7, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

This Explains What's Wrong With The D.C. Bar Discipline System

On the District of Columbia Bar web page, there is a link to a statement of mission and purpose of the Office of Bar Counsel

the Office of Bar Counsel has a dual function: to protect the public and the courts from unethical conduct by members of the D.C. Bar and to protect members of the D.C. Bar from unfounded complaints.

On all letters written on Bar Counsel stationary this language appears at the bottom

Serving the District of Columbia Court of Appeals and its Board on Professional Responsibility

I'm reasonably confident that no such mission statement was on the web page or anywhere else during my tenure at Bar Counsel from 1984 (which of course was well pre-web) to 2001.

Perhaps what is wrong with Bar Counsel at present is its failure to realize that its only job is to get rid of bad lawyers; protecting reputations plays absolutely no role in that function.

While Bar Counsel must honor the confidentiality of information relating to non-public matters, it has no duty in "protecting the reputation of lawyers..." Rather, the public expression of that as a stated mission ought to confirm the public's worst fears about self-regulation.

And if the current occupants of the Bar Counsel think that their job is to "serve the Board on Professional Responsibility," they need to be replaced with people who understand that their obligations are to the public and not to the parochial, self-interested Bar which the BPR personifies.

If someone ever does a serious study of how long it takes to discipline D.C. lawyers, the result will reveal the extent to which protecting the public from unfit members of the bar remains the real priority. I promise you it won't be a pretty picture.

In Wisconsin, the court recently called in outside consultants to look at their disciplinary process. The reported results raise serious issues about the Wisconsin system. The time is long overdue for a similar critical look at the defects in the present D.C. system.

And the title to this post is an overstatement. There are plenty of other reasons that D.C. bar discipline is an empty promise at best and a cruel joke at worst. (Mike Frisch)

October 7, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Failure To Cite Case Decided After Appeal Submitted Is Ineffective Assistance

The New Jersey Supreme Court found ineffective appellate assistance of counsel who had failed to raise a self-defense argument predicated on a court decision issued eight days after the case was submitted on appeal.

From the court syllabus

 Early on the morning of March 18, 2001, defendant Naquan O’Neil fatally shot Hassan Hardy. In the days prior to the shooting, defendant and Hardy were involved in several verbal and physical altercations. On one occasion, Hardy slammed a car door into defendant and defendant punched Hardy. Later the same evening, Hardy accosted defendant, shot four shots in the direction of his legs without hitting him, and struck defendant in the head with the gun. Defendant then retrieved a gun from a nearby known gun stash and shot out the windows of Hardy’s car. A witness observed the shooting on the morning of March 18, testifying that she saw defendant approach Hardy, ask him if he liked playing with guns, and shoot him. Although the witness did not see Hardy pull a gun on defendant, police recovered a loaded and cocked gun that another man had removed from Hardy’s clothing following the shooting. Defendant was arrested and charged with first-degree murder.

At trial, defendant testified that his earlier altercations with Hardy prompted him to carry a .380 caliber handgun for protection. He claimed that he shot Hardy because Hardy had pointed a gun at him and he feared he would be shot. At the jury-charge conference, the prosecutor and defense counsel agreed that self-defense applied only to the murder charge but not to the lesser-included charges of aggravated manslaughter and manslaughter, which are predicated on reckless conduct. The court provided the jury with a self-defense instruction on the murder charge, advising that the defense was not applicable to the lesser-included charges. The jury acquitted defendant of murder, but convicted him of first-degree aggravated manslaughter.

Holding that the Rodriquez decision was not a "novel interpretation" of the law of self defense, the court concluded that the appellate attorney should bring to the court's attention "controlling law that will vindicate the client's cause"

Counsel should have brought to the attention of the appellate panel in defendant’s case the Appellate Division decision in Rodriguez, which, at the time of defendant’s appeal, was controlling law and clearly expressed that defendant was denied a valid defense to the lesser-included offenses of aggravated manslaughter and manslaughter. Counsel is expected to be aware of important and relevant changes in the law. Defendant was clearly prejudiced by counsel’s failure to raise the self-defense issue since, but for this error, there is a reasonable probability that the panel deciding defendant’s case would have applied the published holding of its sister panel and reversed defendant’s aggravated manslaughter conviction. Similarly, there is a reasonable probability that, had the jury been properly instructed, the outcome of the trial would have been different.

(Mike Frisch)

October 6, 2014 | Permalink | Comments (0) | TrackBack (0)

"Permanent Disbarment" has led us exactly to... where inevitably it would go

I (Alan) wrote a detailed post here years ago (here) on how permanent disbarment--as opposed to disbarment that allows someone to reapply upon a showing of moral fitness and rehabilitation--would inevitably become the go-to punishment of first reaction. Now it has, in a case reported by Mike this morning here. A man convicted, for this appeal, only of possession of drug paraphernalia (a misdemeanor that I doubt even constitutes a crime of "moral turpitude") whose crime does not even fit the guidelines for permanent disbarment now is told don't even bother trying to enter rehabilitation or changing your life: there's no hope for you.

I don't think readmission after disbarment should be often given. This might be such a case where it wouldn't be and should not be (I am not ignoring his previous disbarment and actions). But these Justices are saying they don't even want the application, ever, and they can't trust themselves to say No. Really, is it so hard to say No to an unworthy application three years from now, ten years from now? Must we say No forever no matter what? To a man whose current appeal of discipline has one conviction only of a misdemeanor? Then won't every case that should be disbarment be given permanent disbarment? Aren't there lawyers given suspension more of a threat to the public in the practice of law than this guy? His crime for this discipline is not even in the representation of a client!

It seemed back then, when I first screeded, to be a PR stunt and an abdication of judicial responsibility. I still think so. I have no particular focus on this one person whom I would understand that they would not readmit after disbarment a second time, but if we keep this up we create no incentive for improvement, no mercy for changing in five years, no responsibility to weed the unworthy cases from the worthy, no use of previously published guidelines, and no place to go with punishment because anything worth disbarring may as well be permanently so -- to show you're tough on ... those who fully cooperated with the police when they were pulled over and later were convicted of a possession charge??

When I wrote before, the crimes and actions being given permanent disbarment usually involved misuse of trust funds, improper acts in the role of a lawyer, crimes that put people away longer than a year, that sort of thing. But I also noted that more and more it was applied to people whose personal lives were a mess -- that if we could fix the person problem the bar problem would easily be fixed too. I think the current case bore out that prediction. While we have bar-sponsored drug programs built on the idea of rehabilitation and changing lives, we have a court unable to imagine any such thing working to the satisfaction of their future selves.

John Dean changed his life. I'd be proud to have had the new Dean in my bar. [Alan Childress]

October 6, 2014 in Bar Discipline & Process, Childress | Permalink | Comments (0) | TrackBack (0)

No Voluntary Discipline For Criminal Offenses

A petition for voluntary discipline of a two-year suspension has been rejected by the Georgia Supreme Court.

The attorney was convicted of drug and firearms offense. The background

In his petition, Csehy states that he was personally affected by the 2005 Brian Nichols courtroom shooting and, as a result, turned to alcohol and drugs. He went through rehabilitation in 2009, but in 2011 he was brutally attacked by a former client and suffered severe injuries, after which his addictions reasserted themselves. Csehy always had carried at least one firearm on his person or in his vehicle. In 2012 he made arrangements to bring illegal drugs to a woman he believed he knew, but it was part of a sting operation and Csehy was arrested and charged with several drug and firearm violations.

Although he sought treatment

...recent events that have occurred since the filing of Csehy’s petition indicate that he is apparently still representing clients and that his rehabilitation might not have been successful. This Court has received a report indicating that, on September 15, 2014, Csehy appeared in the Superior Court of Cobb County as counsel for a defendant in a jury trial. The trial court noticed that Csehy had bloodshot eyes, was perspiring profusely, and was unable to stand without leaning on something. As a result, the trial court ordered Csehy to submit to immediate drug testing which showed that he had cocaine and amphetamines in his system. Based on the test results, the trial court held Csehy in contempt and had him incarcerated for five days.

The State Bar had opposed the petition. (Mike Frisch)

October 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Good Deed Goes Unpunished

The Georgia Supreme Court has ordered a 12-month suspension of an attorney convicted of wire fraud, notwithstanding the fact that the attorney had failed to report his 2007 conviction.

The facts

Early in his career, [the attorney] served as counsel to Governor Joe Frank Harris, was employed as an associate at a large Atlanta law firm, and worked for the United States Government. He later moved to academia, teaching at several colleges and universities. Since joining academia, [He] has maintained only a limited law practice, occasionally helping acquaintances on a pro bono basis and doing some estate planning and business law work.

In 2003, while employed as a teacher, [he] offered to help a student find financing for a film project. As [he] researched ways in which to raise capital for the project, he learned of an investment program that involved medium-term, high-yield notes. In his research, he did not learn anything unfavorable about this investment program, and he apparently believed that the program was a legitimate one. He agreed to present the investment program to potential investors. As it turned out, however, the investment program was a scam, and the potential investors to whom he presented it were agents of the Federal Bureau of Investigation.

The court cited the federal prosecutor's statement that the attorney was unaware of the scam as a mitigating factor. Further, he had ceased to practice after the conviction. (Mike Frisch)

October 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reprimand For Practice While Suspended

An attorney has been reprimanded by the New Jersey Supreme Court for practicing while suspended (and doing a rather poor job of it at that):

The Disciplinary Review Board

In this matter, respondent met with the Peraltas after his license had been revoked, accepted a $750 fee from them, and then did little or nothing on their behalf. His paralegal may have drafted a petition, but did not follow through with it. Respondent also failed to communicate with the Peraltas; failed to return their fee; failed to inform them that his license had been revoked and that, therefore, they should retain a licensed New Jersey attorney to represent them; and, in essence, abandoned them. Indeed, at one point, the Peraltas found out that neither respondent nor his paralegal were "at the office address."

Because his license in New Jersey has been administratively revoked, he will not be allowed to seek reinstatement for a year after he becomes eligible.

He also may not seek pro hac vice admission. (Mike Frisch)

October 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Crimes Draw Permanent Disbarment

A disbarred lawyer is now a permanently disbarred lawyer as a result of a 2007 criminal conviction as a result of a decision of the Louisiana Supreme Court.

The lawyer was suspended in 2006 and disbarred in 2010

based upon his conviction of criminal mischief stemming from a violent physical altercation with his elderly father and his forging of a medical record at the request of a client whom he represented on drug charges.

Here

In June 2007, respondent was driving with passenger Shannon Boudreaux when he was stopped by the Lafayette Police Department ("LPD"). The officers asked for respondent’s identification and discovered that his driver’s license had been suspended. The officers then arrested respondent, at which time respondent volunteered that there were "narcotics" inside the vehicle. Thereafter, officers from the Lafayette Parish Narcotics Unit were called to the scene. A subsequent search revealed the presence of approximately 200 alprazolam (Xanax) tablets. Respondent was then arrested and booked on charges of possession with intent to distribute Schedule IV narcotics. Respondent was later allowed to plead guilty to a misdemeanor (possession of drug paraphernalia) by the district attorney’s office.

The court

Regardless of the fact that respondent’s misconduct may not definitively fit any of the specific permanent disbarment guidelines, his conduct demonstrates a clear lack of moral fitness. His behavior continues to place the public at risk and tarnish the image of the legal profession. In order to protect the public and maintain the high standards of the legal profession in this state, we find respondent should not be allowed the opportunity to return to the practice of law in the future.

(Mike Frisch)

October 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, October 4, 2014

Suspension Proposed For Failure To Correct False Client Affidavit

An attorney who failed to correct his client's  false affidavit claiming sole heirship in an estate matter should be suspended for five months, according to a report and recommendation of the Illinois Review Board.

Following the death of James Volgar ("James") in 2008, Respondent agreed to represent James' brother, Paul Volgar ("Paul"), regarding the administration of his brother's estate. Paul was angry that Margaret Madonis ("Margaret"), a great-niece who had cared for James during his life, was named as a joint tenant on one of James' bank accounts. After James' death, Margaret received about $400,000. Paul wanted this money. Paul told Respondent that he was James' only heir. Based upon the information he received from Paul, Respondent drafted and filed in Will County an affidavit of heirship and letters of administration stating that Paul was the only surviving heir. The probate court then appointed Paul as administrator of the estate.

In early 2009, Respondent learned that Paul had lied to him and that James had additional heirs. However, Respondent took no steps over the following seventeen months to correct the false affidavit he had filed with the court or to file an amended affidavit of heirship. At hearing, Respondent asserted he failed to amend the affidavit of heirship because he simply forgot about it and forgot about the existence of other heirs. He testified he was more focused on the issue as to whether Paul could obtain the money received by Margaret. The Hearing Board rejected Respondent's testimony, finding it incredible, and noting that 1) Respondent discussed the existence of additional heirs with various individuals; 2) he conducted research regarding distribution law; and 3) he formulated a potential argument to limit the share of the other heirs. Accordingly, the Hearing Board found that Respondent knowingly failed to correct the false statement in the affidavit. Respondent does not challenge this finding.

Following Paul's appointment as administrator of the estate, Respondent used the false information regarding heirship to obtain information from financial institutions in an attempt to support Paul's claims against Margaret. Respondent also sold James' home in 2009 without notification to the other heirs. Respondent's mother-in-law was the listing real estate agent and Respondent was the title agent. Respondent took over $9,000 in attorney's fees from the sale proceeds, most of which was for fees Paul owed him to pursue the claim against Margaret.

In addition, Respondent repeated the false statement that Paul was an only heir in subsequent statements to the court, including in a motion for waiver of a surety bond filed in December 2009. At a hearing on the motion, the judge asked if Paul was the sole beneficiary to the estate and Respondent indicated to the court in the affirmative. As a result of his misrepresentation, the court granted his motion.

As to sanction

Respondent's misconduct was serious. When he learned his client had lied to him and that he had included those lies in material statements he made to the court, Respondent had an obligation to stand up to his client and to persuade his client to remedy the false statements. Respondent did not do so, and his repeated failure to do so over such an extended period of time warrants a sanction greater then a censure or a very brief suspension.

(Mike Frisch)

October 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, October 3, 2014

Major Changes In Pennsylvania

A significant announcement from the web page of the Pennsylvania Disciplinary Board.

To my mind, this is an example of how a responsible disciplinary system maintains public confidence in the profession. We will see the extent to which these proposals are adopted.  (Mike Frisch)

The Disciplinary Board has published an extensive proposal for comment, which sets forth a number of changes to the Rules of Professional Conduct and Rules of Disciplinary Enforcement, intended to reduce the risk of large-scale misappropriation of funds causing severe stress on the Pennsylvania Lawyers Fund for Client Security and losses to individuals. The proposal was published September 27, 2014, at 44 Pa.Bull. 6070.

After several incidents of large-scale losses, including cases in which 20 or more claims were filed and millions of dollars in losses identified, the Board convened a working group comprised of the Board Chair, the Chair of the Rules Committee, the Board Secretary and representatives of the Office of Disciplinary Counsel. The group considered disciplinary mechanisms to prevent large-scale defalcations, beyond the deterrent effect of discipline and short of barring attorneys from handling fiduciary funds.

Several significant changes are set forth in the rulemaking intended to:

  • impose certain restrictions on the brokering, offer or placement of investment products in relation to the provision of legal services;
  • clarify required financial records, specify account reconciliations on a monthly basis, mandate prompt availability and production of records upon request or demand, and allow for the temporary suspension of an uncooperative respondent-attorney;
  • require attorneys to provide on the annual fee form additional account information to assist ODC in the investigation of misappropriation cases and the preservation of fiduciary funds and other property;
  • streamline procedures that impede investigations and that unnecessarily extend the time from initial detection of signs of theft to successful prosecution; and
  • compel a suspended or disbarred attorney to promptly and completely disengage from the practice of law, and give ODC enhanced oversight authority to ensure that a formerly admitted attorney is not practicing.

Significant amendments to the following rules are proposed:

  • Rule 1.15, RPC:
    • Extensive changes to required records;
    • Keep RPC 1.5(b) fee agreement with records;
    • Individual ledgers for each client whose funds are kept in an account;
    • Records must be electronically backed up daily;
    • Trial balance must be performed on at least a monthly basis and kept for five years;
    • Only lawyer or person directly responsible to a lawyer may be signatory or authorized to make transfers.
  • Rule 5.6, RPC:
    • New Paragraph (b) prohibits brokering, offering, selling, or placing any investment product in relation to the provision of legal services unless so licensed.
    • New Paragraph (c) prohibits recommending or offering an investment product or investing fiduciary funds if the lawyer or a relative has an interest in the product
  • Rule 208, RDE, Procedure: the Board may seek temporary suspension of an attorney who has failed to maintain or produce records required by RPC 1.15.
  • Rule 213, RDE, Subpoena power, depositions and related matters: changes to procedure for challenging a subpoena.
  • Rule 215, Discipline on Consent:
    • The fact of disbarment by consent becomes public immediately upon delivery of the resignation statement to Disciplinary Counsel;
    • Upon entry of the order disbarring the attorney on consent, the attorney must promptly comply with the notice, withdrawal, resignation and cease-and-desist provisions of Rule 217, RDE.
  • Rule 217, RDE, Formerly Admitted Attorneys:
    • Notice of suspension or disbarment is delivered to clients by the most efficient means available that provides for proof of delivery;
    • Wards, heirs and beneficiaries must be notified;
    • Any tribunal, court, agency or jurisdiction in which the attorney is admitted to practice must be notified;
    • Formerly admitted attorney must:
      • Resign all appointments as personal representative, executor, administrator, guardian, conservator, receiver, trustee, agent under a power of attorney, or other fiduciary position;
      • Close every IOLTA, trust, client and fiduciary account;
      • Properly disburse or otherwise transfer all client and fiduciary funds;
      • Cease and desist from using all forms of communication that express or imply eligibility to practice law in the state courts of Pennsylvania, including professional titles, letterhead, business cards, signage, websites, and references to admission to the Pennsylvania Bar;
      • Cancel or discontinue the next regular publication of all advertisements and telecommunication listings stating or implying eligibility to practice in Pennsylvania;
      • Cooperate with Disciplinary Counsel and respond completely to questions by Disciplinary Counsel regarding compliance with Rule 217.
  • Rule 218, RDE, Reinstatement: The waiting period for eligibility to apply for reinstatement to the practice of law does not begin until the formerly admitted attorney files the verified statement required by Rule 217.
  • Rule 219, RDE, Annual Registration of Attorneys:
    • All attorneys must report all accounts that held funds of a client or third party;
    • Must report business operating accounts;
    • The statement that attorney understands RPC 1.15 and RDE 221 requirements is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities, and attorney is subject to discipline for a false statement.
  • Rule 221, RDE, Funds of Clients and Third Persons:
    • Echoes record-keeping requirements of Rule 1.15;
    • If Disciplinary Counsel requests production of required records, an attorney must produce them within five business days (eight under some circumstances);
    • Failure to produce required records may result in the initiation of proceedings for emergency temporary suspension.

Written comments by mail, email, or facsimile regarding the proposed amendments should be sent on or before November 3, 2014, to:

Office of the Secretary
The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
PO Box 62625, Harrisburg, PA 17106-2625
E-mail address Dboard.comments@pacourts.us
Facsimile number (717-231-3382)

October 3, 2014 in Bar Discipline & Process | Permalink | Comments (3) | TrackBack (0)

Thursday, October 2, 2014

West Virginia Justices Save Dog From Execution; Dissent Remembers Faithful "Bozo"

A death sentence imposed upon a dog was reversed by the West Virginia Supreme Court of Appeals.

The story

On March 6, 2013, Bluefield Animal Control Officer Randall Thompson responded to a complaint about two dogs at Ms. Robinson’s residence. The complaint stated that one dog was running at large and that a second dog had inadequate shelter.

While investigating the complaint at Ms. Robinson’s residence, Officer Thompson was attacked by one of Ms. Robinson’s dogs, Major. Major was “tied-up” when Officer Thompson arrived at the residence. While Officer Thompson was talking to Ms. Robinson, Major broke free from the chain and bit Officer Thompson on both of his hands. Officer Thompson sought medical treatment following this incident.

A death order can only be imposed on

satisfactory proof that the dog is “vicious, dangerous, or in the habit of biting or attacking other persons or other dogs or animals” [that] must be presented before a circuit court or a magistrate.

The proof here did not meet that standard.

 Justice Loughry favored death to the dog

In complete disregard of the unfortunate truth that not all dogs are like the beloved Lassie, a vicious dog has been granted a pardon by the highest court of this State. Indeed, the majority of this Court has seemingly turned a blind eye to the fact that the dog in question  broke free of its chain and engaged in a brutal and unprovoked attack upon an experienced humane officer, whose resultant injuries required surgery and a hospitalization that approximated five days.

The majority also seems to disregard the fact that the dog’s owner pled guilty to owning and keeping an animal known by her to be vicious, dangerous, and in the habit of biting persons in violation of Bluefield City Ordinance § 4-49. While I, too, love animals, and have fond memories of my childhood companion and faithful dog, “Bozo,” my affinity does not blind me to the sad reality that some dogs are dangerous and vicious, and inflict serious injuries, and even death, on innocent victims

The pardoned dog is a pit bull terrier. (Mike Frisch) 

October 2, 2014 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Good Evening Vietnam

Adrian Cronauer, the disc jockey who was portrayed by the late Robin Williams in Good Morning Vietnam, has consented to disbarment in the District of Columbia.

The Board on Professional Responsibility has accepted his affidavit of consent and forwarded a report to the Court of Appeals for final action.

In the District of Columbia, the facts and circumstances of the admitted misconduct remain confidential when an attorney consents to disbarment.

Thus, the story behind the story may never be told. However, there may be a clue in this report 

The National Community Reinvestment Coalition (NCRC) has filed complaints with the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) against Adrian Cronauer and the Cronauer Law Center. Mr. Cronauer, who is best known as the radio disc jockey who inspired Robin Williams' character in the film Good Morning Vietnam, now runs Cronauer Law Center, a Washington, D.C. based law firm. NCRC's complaints allege that Mr. Cronauer and Cronauer Law Center have intentionally misled consumers through misrepresentations and deceptive and fraudulent loan modification and foreclosure prevention practices.

NCRC President and CEO John Taylor made the following statement:

"Scammers who cause injury to homeowners under the guise of offering assistance must not be tolerated. The rules apply to celebrities as well. We believe Mr. Cronauer and the Cronauer Law Center to be in violation of the Federal Trade Commission Act, the Mortgage Assistance Relief Act rules, and other state and federal laws. We look forward to regulators reviewing our complaints and investigating this important matter further."

"The unfortunate reality is that law firms are culprits in a growing number of mortgage scams. In addition to legal action, we're calling on the American Bar Association to police its members," said Taylor.

The board report can be found at this link by inserting the attorney's name. (Mike Frisch)

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

Say Uncle

An attorney who engaged in elder abuse of his life partner's uncle was suspended for two years by the New York Appellate Division for the Third Judicial Department.

The petition of charges alleges that respondent took advantage of an elderly client with questionable mental capacity, who was the uncle of respondent's life partner and who has substantial assets.

The referee sustained charges of a conflict of interest, preparing a will that unfairly benefitted the life partner, failure to explain the will, incompetent representation and other violations.

The court

We note that both the Referee and a court that held a guardianship proceeding brought by the client's sister were highly critical of respondent's conduct and that of his life partner, the client's niece, and found their testimony not credible...

While respondent argues that he acted in the milieu of difficult family dynamics, we have previously stated that, even when dealing with family matters, attorneys must render their professional services in strict compliance with the disciplinary rules and zealously safeguard the funds of others..

(Mike Frisch)

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

Transparency And Accountability

I believe that every disciplinary system is obligated to file a publicly-available annual report of its activities.

Such a report allows the public to evaluate the quality of self-regulation, which the ABA states "carries with it special responsibilities...to assure that its regulations are conceived in the public interest and not in furtherence of the parochial or self-interested concerns of the bar." Model Rules Preamble at comment [12]

The annual report of the Illinois ARDC reveals some interesting statistics on the volume and nature of its caseload

6,073 grievances were docketed against 4,041 different attorneys, representing about 4% of all registered attorneys

57% of all grievances involved issues of poor attorney-client relations: neglect of a client matter (40% of all grievances) or failure to communicate with a client (18% of all grievances)

Top practice areas likely to attract a grievance include criminal law, domestic relations, real estate, and tort

3% of all grievances resulted in the fi ling of formal disciplinary charges

83 formal disciplinary complaints were filed

77% alleged fraudulent or deceptive activity typically alleged in conjunction with other charges such as neglect, improper trust account management or criminal conduct

33.3% of all formal complaints voted in 2013 were the result of attorney reports (aka “Himmel” report).

I'm amazed that one-third of all prosecuted matters originate as a Rule 8.3 report.

I have noted in the past that the District of Columbia does not and never has publicly reported on this type of information (other than occasional anecdotal Bar Counsel columns in the magazine for lawyers).

I have also noted that the Board on Professional Responsibility employs six full-time attorneys.

Surely that is sufficient staffing to generate such a report. (Mike Frisch)

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

Maybe Never

An attorney who was disbarred in New Jersey (where he practiced) and Pennsylvania (where he had never practiced) sought reinstatement in Pennsylvania.

The 2002 disbarment was the result of a conviction for theft of substantial entrusted funds. The root cause: a gambling addiction. The attorney served a prison term.

The Disciplinary Board noted evidence that he had refrained from gambling for several years but also expressed concerns about his non-disclosures of information in the reinstatement application.

The board

We are acutely aware that Petitioner was 63 years of age at the time of the reinstatement hearing. He made the compelling argument that if he is not readmitted at this time, he probably will not get back to practicing law in the future. We have suympathy for this argument and have duly considered Petitioner's position on this issue, but it remains that Petitioner had failed to meet his burden of proof.

The Pennsylvania Supreme Court agreed. (Mike Frisch)

 

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

Suspension For Corrruption Of Minors

The Pennsylvania Supreme Court adopted the joint recommendation of a two-year suspension of an attorney convicted on his no contest plea of the misdemeanor offense of corrupting the morals of two minors.

Citizen's Voice had this March 2012 report on the criminal charges

A local attorney accused of coercing two teenage girls to a Wilkes-Barre motel will face corruption of minors charges in Luzerne County court.

The charges against attorney Robert Zanicky, 38, of Drums, were forwarded to county court following a hearing Friday before Magisterial District Judge James Tupper. Zanicky is president of the United Soccer Training Academy and has a law firm in Wilkes-Barre.

Kingston Township police said Zanicky corrupted the morals of the two girls, ages 16 and 17, who testified at the hearing.

The first girl to testify, who is now 17, said Zanicky sent her sexually explicit text messages, bought her things and took her to the Wilkes-Barre Lodge on Kidder Street, where he kissed her and wanted to have sex with her, but she refused.

She testified she met Zanicky in December 2010 or January 2011 at Rodano's in Wilkes-Barre, where she was having dinner with two friends. They continued to text after that for several months, she said.

She said she and a friend once met Zanicky and a friend for dinner at Mizu Sushi in Wilkes-Barre Township, where he questioned her and her friend about their sex lives and how many sexual partners they have had. He also texted her that he would buy her gifts if she had sex with him, she testified.

On one occasion, she said Zanicky met her to pay for her friend to have her nails done and drove her to a motel where he said he wanted to "talk" about his wife being diagnosed with cancer.

"Honestly, I thought he just wanted to talk," she said.

When they went in the room, she said he kissed her and talked about all the "things he wanted to do" to her, such as pulling her hair and throwing her against the wall.

"I was really scared he was going to kill me," she testified.

The girl said she ran out of the room to the car and asked him to take her to her friend's house. She said she later told a teacher and police about the text messages and encounters.

The other girl, who is now 18, testified she had consensual sex with Zanicky at the same Wilkes-Barre motel, and she regretted it afterward. She said Zanicky met her in the Wyoming Valley Mall's parking lot and drove her to the motel.

Zanicky's alleged course of conduct with the girls spanned several weeks beginning in December 2010, according to police.

Assistant District Attorney Jenny Roberts contended that the defendant used text messaging and in-person contact with the girls to corrupt their morals.

"Our position is that the course of conduct was sexually explicit text messaging, buying them things like dinners and giving them money with the intent of eventually having some type of sexual contact with them," Roberts said.

Attorney Edward Olexa, who is defending Zanicky with attorney William Ruzzo, denied that the girls' charges were true.

"We intend to bring this matter to trial and we believe that most of the testimony that came out was favorable to our defense and we intend to prove our case at trial," Olexa said after the hearing. "He's confident that he will be able to proceed to trial, and eventually he'll have his day in court and be able to give his side."

While defense attorneys argued the legal age of consensual sex in Pennsylvania is 16, Roberts said Zanicky corrupted the teenagers' morals because the girls were under 18, the age at which corruption of minors charges can be filed.

"If we're going to worry about sexually explicit conversations, we're going to need a big jail," Ruzzo said.

Zanicky was released in December on $25,000 bail. Despite the corruption of minors charges he faces, Luzerne County Judge William H. Amesbury recently permitted Zanicky to go on a month-long trip to Africa to train youths at a soccer camp.

He was sentenced to probation in the criminal case. (Mike Frisch)

October 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Suspended For Failure To Supervise Thieving Employee

An attorney who had failed to safeguard funds was suspended for one year by the New York Appellate Division for the Second Judicial Department.

His explanation

the respondent admitted that he failed to maintain, intact, the funds he was required to hold in escrow for Mr. Martins's client during the relevant period. Additionally, he conceded that he did not keep an accurate ledger, was not reviewing monthly bank statements, and was not receiving copies of cancelled checks. The respondent further testified that the shortfalls in his escrow account occurred when his secretary, and members of her family, misappropriated approximately $90,000 in client funds through the forgery of checks and the unauthorized use of online payments and transfers. The respondent testified that he played no part in the thefts, and had since recovered "99.9 percent" of the misappropriated funds, in part by garnishing his secretary's wages.

The court set forth its considerations as to sanction

In determining an appropriate measure of discipline to impose, we note that whether, and to what extent, attorneys are subject to discipline for defalcations occasioned by someone under their supervision depends on a number of factors, as follows:

"(1) the subject attorney's partnership status and/or level of experience; (2) the presence (or absence) of early warning signs' of financial improprieties, whether such signs were ignored and, if so, for how long; (3) whether the proper authorities were notified of defalcations upon their discovery; (4) the presence (or absence) of monetary loss to clients and the magnitude thereof; and (5) whether the attorney attempted to reimburse client losses caused by another" (Matter of Galasso, 105 AD3d 103, 105).

The respondent herein is an experienced practitioner. While there were no "early warning signs" of financial improprieties, the lack thereof was wholly attributable to the respondent's failure to maintain appropriate vigilance over his escrow account. Additionally, while the respondent did not participate in his employee's defalcations, and successfully recovered the majority of his clients's funds, he failed to refer his employee to the proper authorities. The respondent cooperated with the Grievance Committee's investigation, and has taken remedial measures to safeguard his account, and to prevent future escrow violations. Although the respondent presented no evidence of his general reputation or good character, we note that his disciplinary record is unblemished.

The suspension will continue until further court order. (Mike Frisch)

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

Wednesday, October 1, 2014

Not So Grandson

A municipal court judge has been reprimanded by the South Carolina Supreme Court for intervening in a driving while suspended charge against her grandson

 Respondent's grandson was charged with Driving under Suspension, 1st offense. The matter was pending before a magistrate. Respondent contacted the magistrate's office and identified herself as a judge in the telephone conversation. Respondent did not place the call in an attempt to get the charge dismissed but to facilitate her grandson's plea as he was currently incarcerated on other matters...

Respondent asserts she never intended to use her position as a judge to help her grandson and that she was just trying to enable him to plead guilty to the charge. Respondent submits she did not identify herself as a judge in the second letter and that she did not write either letter on court stationary or letterhead.

Respondent since hired a lawyer to represent her grandson and the Driving under Suspension charge was resolved with a plea. Respondent is aware that she should not have used her title in speaking to the magistrate's office and regrets her conduct. Respondent submits she will not repeat her conduct in the future.

The judge admitted the ethical violations. (Mike Frisch)

October 1, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Gang Related

A recent disbarment is summarized in the October 2014 California Bar Journal

In 2013, Markman pleaded no contest to conspiracy to commit a crime and multiple counts of bringing drugs into jail and possession of a controlled substance in jail. Markman also admitted that his offenses were committed for the benefit of, in association with, or at the direction of a criminal street gang.

Markman represented defendant Jorge Zaragoza, an active and admitted member of a criminal street gang. The Los Angeles County Sheriff’s Office got word that someone had been smuggling drugs into the North County Correctional Facility where Zaragoza was housed and that Zaragoza had been receiving the drugs during his courthouse visits with Markman.

When Markman walked into the client-attorney interview room to meet with Zaragoza on Oct. 21, 2011, an investigator, deputies and a drug-sniffing dog met him. Markman acknowledged he had a package with him but said he did not know what was in it. Later, after the drug sniffing dog alerted officers to drugs in the package, Markman acknowledged that it might contain cocaine or methamphetamine. He also admitted that his client’s girlfriend had paid him to bring the package to Zaragoza. The package contained 26 small balloons filled with methamphetamine and tar heroin, a chunk of marijuana and three hypodermic syringes.

The following month, an officer working the screening area at Antelope Valley Superior Court was looking at items going through the X-ray machine when he noticed two crack pipes in Markman’s wallet. When confronted, Markman tried to leave the courthouse but the officer detained him. In addition to the pipes, two bindles of crack cocaine were discovered in his wallet.

In mitigation, Markman had no prior record of discipline and entered into a pretrial stipulation with the State Bar.

(Mike Frisch)

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