Tuesday, March 17, 2015

State v. Federal Bar Discipline

The sharp contrast between state and federal bar discipline is on display in a decision issued today by the Ohio Supreme Court.

The court imposed a public reprimand of an attorney who had failed to communicate with a client and failed to file an appellate brief, as well as failure to account for an advanced fee in a second matter.

Yesterday, we noted that the United States Court of Appeals for the Fourth Circuit ordered a two-year suspension for similar misconduct. (Mike Frisch)

March 17, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Busy Year In Pennsylvania: Record Number Of Disbarments

From the web page of the Pennsylvania Supreme Court Disciplinary Board

The Disciplinary Board has issued its Annual Report and updated Discipline Chart.

The disciplinary system had a busy year, reaching 296 determinations, up 19% from 248 in 2013. Informal admonitions were up by 58% (from 48 to 76), suspensions by 31% (to 42 from 32), and disbarments by 15% (46 from 40). This was the greatest number of disbarments in the history of the Disciplinary Board, surpassing 45 in 2010. Continuing a trend toward discipline by consent, 14 suspensions and 28 disbarments were by consent. Reinstatements rose by 34% (107 from 80), while only one reinstatement was denied. 91 of the reinstatements (85%) ended inactive or retired status or administrative suspension; only 16 followed disciplinary suspension or disbarment.

A few highlights from the Annual Report:

  • The number of attorneys as of December 31, 2014 was 64,161 active and 10,805 inactive paid attorneys. In 1972-1973, the first year of the Disciplinary Board, there were 13,057 active attorneys. 
  • During the 2014 year, 24 Joint Petitions in Support of Discipline on Consent were filed with the Board.19 joint petitions were approved and one was denied. Of those approved, two resulted in private discipline and 17 resulted in public discipline. Four joint petitions remained pending as of December 31.
  • At the request of the Board, the Chief Disciplinary Counsel, the Executive Director and the Secretary of the Board have taken steps to speed up the disposition of complaints. The Board believes complainants and respondents deserve to have cases handled promptly.
  • Four sets of rules amendments were approved, including major amendments regarding the handling of client funds approved by the Supreme Court on December 30, 2014.
  • In July, the Board agreed to change the notices published in the daily paper and legal journal when attorneys are suspended or disbarred to include the attorney’s ID number as well as his or her last public address of record, to avoid embarrassment to other attorneys with similar names. In addition, the Board received permission from the Supreme Court to begin issuing regional press releases when attorneys are suspended or disbarred to expand the coverage beyond the county where the attorneys maintained their offices.

As always, any transparency about bar discipline is most welcome.

Wish the impulse would spread south to D.C. (Mike Frisch)

March 17, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 16, 2015

A Brief But Unpersuasive Explanation

The District of Columbia Court of Appeals has ordered the interim suspension of a criminal defense attorney based on sanctions imposed by the United States Court of Appeals for the Fourth Circuit.

The attorney had failed to file a brief and joint appendix, explaining

[his] email message stated that he still intended to file the brief on Monday, July 28, 2014, and requested that any order be delayed until then. Allenbaugh also apologized for the constant delays but attributed them to constant changes in sentencing guidelines law and policy and stated that, in retrospect, he should have requested a continuance pending final action by the Sentencing Commission on amendments affecting the appeal. The Clerk responded that it was out of her hands. The brief and appendix were not filed.

The web page of the attorney notes

Mr. Allenbaugh is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2d ed., Foundation Press, 2002), and is also a recipient of the prestigious Bender Award while serving as Adjunct Professor of Business Ethics and Philosophy at George Washington University.

Prior to entering private practice, Mr. Allenbaugh served as Staff Attorney for the U.S. Sentencing Commission where he was assigned to the Economic Crimes Policy Team and the Terrorism Team. Mr. Allenbaugh has published numerous articles on sentencing policy and criminal justice, and is quoted frequently in the national press. Mr. Allenbaugh’s articles are frequently published on Writ and on CNN.COM.

The Fourth Circuit ordered a suspension for two years and a fine for the attorney's "persistent failure to represent his client and comply with orders of the Court, and his failure to respond to...orders to show cause..." in a criminal appeal.

The court's Standing Panel had struck his appointment as counsel in the case as well as his membership on the CJA panel.

Reciprocal state bar  cases deriving from federal court orders (where procedures tend to be far more summary in nature than state bar discipline matters) can be tricky.

The idea that D.C. would impose a two-year suspension for a single blown brief is beyond ludicrous.

For instance, there is this case summary from the web page of the D.C. Bar in the case of In Re James Robertson  (which I handled for Bar Counsel)

Date of Action: May 15, 1992 

Type of action: Court action

  1. Summary of Action: In this reciprocal matter, the court publicly censured Robertson based on his suspension from practice before the United States Court of Appeals for the Fourth Circuit for neglect of three appellate cases and his violation of the Fourth Circuit's internal operating procedures.

Since the Robertson decision, the court has amended its reciprocal procedures. If the attorney desires to have the sanction reduced, he must respond to the court's show cause order.

If he does so, it is quite likely that a non-suspensory sanction will result even though he will be interim suspended in D.C. unless the court modifies its order.  (Mike Frisch)

March 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, March 15, 2015

Wish Fulfilled

An attorney who responded to a disciplinary investigation by stating "So go ahead and disbar me" had that wish granted by the New York Appellate Division for the First Judicial Department.

The Committee commenced a sua sponte investigation into respondent's conduct after receiving a a Cease and Desist order and a copy of an SEC complaint against respondent concerning her role as a transaction manager within an investment banking entity that misled investors in a collateralized debt deal during the housing market crisis. Although respondent eventually made contact with the Disciplinary Committee during the investigation, she made affirmative statements that she would not answer the complaint as directed; she would not participate in its investigation; and she invited the Committee to suspend or disbar her.

The court's previously ordered interim suspension matured into disbarment for failure to respond.

New York has a very effective way of dealing with non-participating attorneys

Disbarment is warranted here because more than six months has elapsed since this Court's June 5, 2014 suspension order and respondent has not appeared nor applied in writing to the Committee or this Court for a hearing or reinstatement. 

(Mike Frisch)

March 15, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

Conditionally Admitted

Over two impassioned dissents, the Louisiana Supreme Court has conditionally admitted a  bar applicant subject to monitoring for two years. 

The majority order is far less revealing than the dissents.

This dissent from Justice Clark

This Court denied petitioner’s admission to the bar nearly two years ago. Then, the Court found that petitioner had “engaged in a pattern of conduct which is fundamentally inconsistent with a lawyer’s duties of truth and honesty.” This pattern of conduct included petitioner’s omitting a civil lawsuit from bankruptcy pleadings that she signed under penalty of perjury; giving false testimony under oath that all of her assets were listed in the bankruptcy petition; and, after having been granted a discharge in bankruptcy, agreeing to a settlement of the civil suit and then retaining the settlement funds for herself. This conduct constituted bankruptcy fraud and caused significant harm to petitioner’s creditors, as by the time the bankruptcy trustee learned of the settlement, petitioner had spent the money she received and the trustee had to abandon any claim on behalf of her creditors. These circumstances, the Court agreed, supported our conclusion that petitioner lacked the moral fitness for admission to the bar.

The burden of proving reform rests on the petitioner, and merely showing that she is now living and doing those things that she should have done throughout life does not prove rehabilitation. Neither is the passage of time alone sufficient to demonstrate a change in circumstances. Based on the information contained in her present filing, petitioner has made no showing of changed circumstances since this Court’s March 2012 action denying her admission. Her explanation of the bankruptcy matter was considered in the earlier proceeding and thus cannot possibly represent “changed circumstances.” She contends that she obtained religious and financial counseling, but she provides no evidence of such. She also claims to have sought counsel with a bankruptcy attorney to “discover” if restitution was an “option,” but she failed to take this important step until eight years had passed from her discharge in bankruptcy and restitution through the bankruptcy court was no longer available. Finally, petitioner’s attendance at a seven-hour CLE course in 2013 contributes nothing to the consideration of her good moral character...

By admitting petitioner to the Louisiana Bar, the Court is lowering the standards demanded of members of the Bar.

And this from Justice Crichton

Petitioner’s long record of deceitful and dishonest conduct was the basis for the denial of her application for admission to the bar in 2012. She now reapplies for admission – but in my view, she has made a woefully inadequate showing of any circumstances relevant to her good moral character having changed since the prior application was denied. Therefore, I would not consider her application. See In re: Jordan, 00-3006 (La. 12/15/00), 775 So. 2d 1065. Even if I were inclined to consider this new application, the burden of proving rehabilitation rests squarely on petitioner, and she has utterly failed to meet her burden...

On what basis are we to conclude that petitioner is worthy of the trust and confidence clients should expect of their attorneys – or what the public should expect of this noble profession? On the meager showing made by petitioner, I would deny admission...

In Louisiana, the identity of a conditionally admitted attorney apparently is not a matter of public record.

The order does not even give the newly-admitted member's initials. (Mike Frisch)

March 13, 2015 in Bar Discipline & Process | Permalink | Comments (5) | TrackBack (0)

Not Covered

An opinion from the Missouri Supreme Court is summarized in the court's head notes

 An attorney’s client appeals a judgment in favor of his attorney’s legal malpractice insurer. In a 7-0 decision written by Chief Justice Mary R. Russell, the Supreme Court of Missouri affirms the judgment. A reasonable lawyer purchasing the policy would understand the policy to exclude the investment activity encompassed in the client’s loans to the law firm in which the attorney owned all the equity and to another client of the attorney, for which the attorney received a commission...

Facts: Jimmie Lee Taylor retained attorney James Wirken to handle various legal claims pertaining to management of a trust; later, Wirken also represented Taylor and his wife in their own estate planning and administration matters. On Wirken’s advice, Taylor made three loans totaling $250,000 to Wirken’s law firm, of which Wirken was the sole equity owner. All three promissory notes securing these loans, drafted and personally guaranteed by Wirken, bore interest and provided for attorney fees in the event of default. At Wirken’s suggestion, Taylor also made three additional loans totaling $261,740 to Longview Village Development Company, another of Wirken’s clients. The promissory notes securing these loans likewise bore interest and provided for attorney fees in the event of default. Wirken received a commission for delivering Taylor to Longiew as a lender, but he did not advise Taylor of this. Wirken also did not advise Taylor of the law firm’s financial straits, did not disclose his ethical obligations to Taylor and did not advise Taylor to seek outside counsel before making any of the loans. The loans never were repaid, Taylor was awarded judgment in his subsequent lawsuit against Wirken and his law firm, and Wirken ultimately was disbarred. Taylor then sought to collect his judgment by suing Wirken’s malpractice insurer, The Bar Plan Mutual Insurance Company. The circuit court granted summary judgment (judgment on the court filings, without a trial) to the Bar Plan, finding its policy excluded coverage. Taylor appeals.

Holding

The circuit court correctly held that Wirken’s policy unambiguously excluded coverage for Taylor’s loans. The policy excludes claims arising out of an insured’scapacity as a legal representative of investors regarding either an investment in which the insured owns an equity interest or for which the insured receives a fee or commission from an entity other than the investor. A legal malpractice insurance policy is given the meaning that would be attached by a reasonably attorney purchasing the policy. A reasonable lawyer would conclude that “investment” as described in the exclusion clause broadly encompassed Taylor’s loans, which involved an expenditure of money for income or profit. The clause unambiguously excludes transactions when the attorney is paid a commission from an entity other than the attorney’s client – as with Taylor’s loans to Longview – or the client invests in an enterprise the attorney owns – as with Taylor’s loans to Wirken’s law firm. The “concurrent proximate cause” rule – which may allow recovery despite an exclusion if the plaintiff points to a cause that is covered under the policy but wholly separate from the excluded clause – does not apply because there is no readily identifiable independent cause of the injury to Taylor other than Wirken’s decision to engage in self-interested investment transactions with Taylor, which is excluded. Further, the use of the word “and” in the exclusion clause cannot be construed as requiring four factors to be present at once for the exclusion to apply. A reasonable attorney purchasing the policy would understand the clause to contain four separately numbered exclusions.

(Mike Frisch)

March 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Iowa Recognizes Right To Keep Appointed Counsel

The Iowa Supreme Court has reversed an order disqualifying attorneys from the Des Moines adult public defender office in a murder case because other attorneys in the office had previously represented witnesses in the case.

The district court appointed two attorneys from the Des Moines adult public defender’s office to represent the defendant on a murder charge. After reviewing the State’s list of expected witnesses, the two defense attorneys realized other attorney colleagues in their office had previously represented three of the State’s witnesses on unrelated matters. The attorneys brought this potential conflict of interest to the district court’s attention and requested a ruling whether a conflict of interest precludes them from representing the defendant. After the hearing, the district court concluded a conflict existed and disqualified all attorneys employed at the Des Moines adult public defender’s office. Upon review, we conclude the potential conflict of interest shown under the circumstances presented in this record did not justify disqualification of the attorneys. Accordingly, we reverse and remand for further proceedings.

The court

The parties are not directly adverse on the disqualification issue. McKinley urges reversal of the disqualification order, reinstatement of Larson and Lauber as defense counsel, and remand for trial. The State, couching its position in furtherance of promoting error-free trials and protecting the finality of convictions, agrees the district court may have erred—but not because the district court found Larson and Lauber were burdened by a conflict of interest. Rather, the State expresses concern that if McKinley is convicted, the verdict might be overturned on appeal because the district court accepted the county attorney’s suggestion to override McKinley’s choice of counsel.

Importantly, the court recognized a right to keep appointed counsel

a right to choose one’s appointed counsel is different from "a right to choose to continue an ongoing attorney-client relationship."

We...hold that once an attorney is appointed, they should not be removed "absent a factual and legal basis to terminate that appointment." Harlan, 54 P.3d at 878. Trust and good communication are crucial features of an attorney–client relationship. This is true when a client has resources and privately retains a lawyer; and it is no less true when a client is indigent and obtains counsel appointed by the court. In both instances, opportunities for establishing trust and effective communication are generally enhanced over time through interpersonal contact. Once established, the interest in maintaining a relationship of trust with counsel is of no less importance to an indigent client than to one with ample resources to hire counsel.

The court concluded that there was no danger that the confidences of the witness/former clients would be endangered.

 Under the relevant caselaw and our rules of professional conduct, the prior representations of witnesses in unrelated matters by other members of the public defender’s office did not present an actual conflict or a serious potential for conflict that justifies the order disqualifying Larson and Lauber and countermanding McKinley’s interest in continuing an attorney–client relationship.

Justice Waterman concurred specially and would not apply imputed disqualification principles to public defender offices.

 I write separately because the majority misses the opportunity to settle the recurring legal issue: whether an individual public defender’s conflict of interest is automatically imputed to the entire public defender’s office. The answer to that question should be "no."

It is disappointing the majority today fails to take the opportunity to settle this recurring legal question. Until the automatic-imputation issue is resolved by court decision or rule amendment, our trial courts will continue to struggle case-by-case with public defender intraoffice conflicts. Sadly, unnecessary disqualifications will continue. The practical consequences often will be increased taxpayer expense and defendants who proceed with substitute counsel instead of counsel of their choice.

 Justice Mansfield agrees with Justice Waterman. (Mike Frisch)

March 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Death Be Disclosed

An attorney who had failed to disclose his client's death prior to settling an employment claim was suspended for one year by the New York Appellate Division for the Second Judicial Department.

He had lost direct contact with the client and was communicating with his mother, who purportedly had power of attorney.

On April 14, 2008, the eve of trial, an agreement to settle the action for $10,000 was reached between the respondent and [defense counsel] Davis. The respondent does not recall the specific date when he learned of his client's death, but claims that it was after the settlement was reached. On or about April 14, 2008, the respondent sent a power of attorney form to "Marie Rose Andree Conserve," seeking her signature thereon and her authorization to sign Lorquet's name to the settlement check, and to deposit the check into the respondent's escrow account. The power of attorney was faxed to a number with a Florida area code, and to the attention of an individual named "Shirley," a person allegedly unknown to the respondent. Later that day, the respondent received, by return fax from Shirley, a signed power of attorney purportedly executed by Conserve.

Efforts to complete the settlement were extensive and eventually broke down. The attorney held the proceeds.

The court

The Special Referee properly found that there was no evidence to support the respondent's claim that his client authorized him to settle the employment litigation, or that he could do so based upon the alleged power of attorney in favor of Lorquet's mother. Moreover, once the respondent, an experienced litigator, learned of his client's death, he knew that he could not provide the requested settlement documents to Davis. While the respondent had no obligation to seek the appointment of a personal representative for the estate, the Special Referee properly concluded that the respondent had an obligation to inform Davis of Lorquet's death, thereby revealing that the settlement process could not be completed, and that further proceedings in the employment litigation were automatically stayed. We find that, despite Davis's repeated requests that the respondent provide him with the settlement documents, the respondent knowingly chose not to disclose his client's death, deceiving his adversary for more than one year (cf. Matter of Forrest, 265 AD2d 12). Further, the respondent's claimed authority to negotiate the settlement check was based on his transactions with a person unknown to him. He learned from Zarra, a person then unknown to him, that Conserve, a person purporting to be his client's mother, had executed a power of attorney, and he received a power of attorney purportedly signed by Conserve from a person named "Shirley," who also was unknown to the respondent. Based on this evidence, we find that, when the respondent negotiated the settlement check, he misrepresented to the bank that he had the authority to endorse it on behalf of Lorquet.

The attorney was ordered to release the proceeds to the Lawyers' Fund for Client Protection. (Mike Frisch)

March 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2015

Smolen Suspended

From the web page of the Illinois Attorney Discipline & Registration Commission comes news of the Illinois Supreme Court 's suspension of DLA Piper's Lee Smolen for falsifying expenses

Our earlier coverage is linked here. 

M.R.27199 - In re: Lee Mark Smolen.    (March 12, 2015)

Disciplinary Commission.

The motion by the Administrator of the Attorney Registration and Disciplinary Commission to approve and confirm the report and recommendation of the Hearing Board is allowed, and respondent Lee Mark Smolen is suspended from the practice of law for one (1) year and until he successfully completes at least twelve (12) months of continuous treatment with Dr. Neal Spina or another psychiatrist acceptable to the Administrator, with the continuous treatment starting from the June 30, 2014 date of the hearing in this matter.

The motion by respondent Lee Mark Smolen to expedite the effective date of discipline is allowed.

Suspension effective immediately.

Respondent Lee Mark Smolen shall reimburse the Client Protection Program Trust Fund for any Client Protection payments arising from his conduct prior to the termination of the period of suspension.

Orders entered by the Court.

(Mike Frisch)

March 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Rounding Up

An attorney who borrowed $99,999.70 from a client has consented to disbarment in South Carolina.

The court

Respondent submits he fully intended to repay Ms. Doe and did not expect to be suspended from the practice of law. Respondent admits the loan constituted a business transaction with a client and he did not comply with the safeguards outlined in Rule 1.8(a) of the Rules of Professional Conduct, Rule 407, SCACR. Specifically, the transaction and its terms were not communicated to Ms. Doe in writing, she was not advised of the desirability of consulting independent legal counsel, and she never signed any document agreeing to the terms of the loan. Respondent made some payments on the loan but ceased making payments in early 2008, around or after the time he was placed on interim suspension by consent.

He owes $93,999.70 of the principal amount and may not seek reinstatement until the client is paid in full.

Why not add 30 cents to the loan and make it an even $100,000? (Mike Frisch)

March 12, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Reciprocal Discipline For Doctors

A psychiatrist licensed in New York had his license revoked by the Administrative Review Board for Professional Medical Conduct based on findings of professional misconduct that took place in Texas.

The action was affirmed by the New York Appellate Division for the Third Judicial Department.

Texas had reprimanded the doctor for sex with a patient and failure to maintain records.

New York took a dimmer view, rejecting the suggestion that the sex was kosher under New York law because it was with a former patient

Petitioner asserts that the conduct leading to the 2009 order did not constitute misconduct in New York because Education Law § 6530 (44) prohibits "any physical contact of a sexual nature between licensee and patient," but does not expressly preclude a sexual relationship with a former patient. While that argument is a dubious one, it is not one we need to resolve, as the ARB determined that a physician-patient relationship existed at the time the sexual relationship occurred. The Texas Medical Board found that petitioner saw the patient primarily for medication management and that, on the day their sexual relationship began in December 2007, the patient visited his office to obtain his signature on a prescription assistance form. Petitioner took advantage of what he perceived as an "invitation to intimacy" afforded when the patient burst into tears in his presence. After the sexual encounter, petitioner cautioned the patient to remain silent about the encounter because he was a psychiatrist. The two had several more sexual encounters in the following months, and the patient did not request her medical records from petitioner until June 2008. These facts provide a rational basis for the ARB's finding that petitioner engaged in a sexual relationship with a current patient and that he committed professional misconduct under New York law...

Interesting case involving reciprocal discipline for doctors. (Mike Frisch)

March 12, 2015 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

What's The Hurry?

In an unusual summary order, the District of Columbia Court of Appeals imposed a six-month suspension of an attorney for negligent misappropriation.

The per curiam order in full

The Board on Professional Responsibility concluded that respondent negligently misappropriated funds and recommends that the respondent be suspended from the practice of law in the District of Columbia for six months. Neither respondent nor Bar Counsel has excepted to that conclusion and recommendation. We therefore accept the Board’s recommendation. D.C. Bar R. 11, § 9 (h)(2). Accordingly, it is ORDERED that respondent Sherri Wyatt is suspended from the practice of law for a period of six months. For purposes of reinstatement, respondent's suspension will be deemed to run from the date respondent files an affidavit in compliance with D.C. Bar R. XI, § 14 (g).

Two points.

First, the court has rarely resolved bar discipline uncontested cases without any written opinion. It sometimes will issue a short opinion appending the BPR report in uncontested matters.

I am in favor of anything that moves cases to a swifter conclusion.

That plays into the second point. The Bar Docket Number of the case is 292-05.

That means it took the disciplinary system a full decade to resolve a case involving a single negligent misappropriation. 

Indeed, this case might lend itself to a study of how and why interminable delay is a feature of D.C. bar discipline rather than a bug.

That is opinion worthy. (Mike Frisch)

March 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 11, 2015

Permanent Disbarment Proposed for Convicted Former Congressman

Former Congressman William Jefferson deserves permanent disbarment, according to a recent report by the Louisiana Attorney Disciplinary Board.

The board quoted the hearing committee report

The Committee, after due consideration and review of the appropriate rules and jurisprudence, concludes that disbarment is the necessary sanction in this case. The question then presented is whether or not the upward deviation to permanent disbarment is also the appropriate sanction. Of particular importance in this determination is the application of Guideline 7 of Appendix E of Rule XIX. That guideline provides specifically that malfeasance in office which results in a felony conviction, and which involves fraud, warrants the upward deviation to permanent disbarment. It seems rather obvious that Respondent's activities leading to his multiple convictions, despite his pleas in the defense of the criminal complaints which assert otherwise, his activities were indeed carried out from or in his position as a United States Congressman. The Committee feels that permanent disbarment is the appropriate sanction.

The board agreed. (Mike Frisch)

March 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Communications with Juror Draws Rebuke

A public censure is the appropriate sanction for harassing conduct toward a jury foreperson who also was an attorney, according to a decision of the New York Appellate Division for the Second Judicial Department.

As you read the timeline from the mid-2008 trial to the offending April 2012 email, you get a strong sense of an attorney experiencing difficulty letting go of a loss.

In or about June 2008, the respondent represented Patricia D. Hartman, the plaintiff in a negligence action entitled Hartman v City of New York that was commenced in the Supreme Court, New York County, under Index No. 113683. Lauren Curry was the foreperson of the jury at the trial in the Hartman action. At or about that time, Ms. Curry was a first-year associate with the law firm of Debevoise & Plimpton.

On or about June 30, 2008, the jury returned a unanimous verdict in favor of the defendant in the Hartman action. At or about that time, the respondent spoke to Ms. Curry in an "unpleasant manner." He stated to Ms. Curry, in sum and substance, that "the verdict doesn't make any sense," and asked Ms. Curry, in sum and substance, how she arrived at the decision to find for the defendant.

Following the return of the verdict in the Hartman action, the respondent "had a hunch" that Ms. Curry "lied" during the voir dire of the jury panel. The respondent also believed that Ms. Curry had improperly influenced the jury in its deliberations.

On or about July 30, 2008, the respondent conducted an Internet search of Ms. Curry. At or about that time, the respondent also contacted Ms. Curry's employer, Debevoise & Plimpton, to investigate her background.

In or about April 2012, the respondent continued to believe that Ms. Curry had made misleading statements during the voir dire of the jury panel in the Hartman action, and that she had improperly influenced the jury in its deliberations. At or about that time, the respondent conducted a further Internet search of Ms. Curry. On or about April 9, 2012, the respondent sent Ms. Curry the following e-mail:

"From: Panettalaw@aol.com

Sent: Monday, April 09, 2012, 4:07 p.m.

To: Curry, Lauren E.

"SUBJECT: ALL THESE YEARS LATER I WILL NEVER FORGET LAUREN THE LIAR

"HARTMAN v NYC

"Lauren,

"After numerous multi-million dollar verdicts and success beyond anything you will ever attain in your lifetime, I will never forget you: the bloated Jury [Foreman] that I couldn't get rid of and that misled and hijacked my jury. You lied, said you had no involvement in defense—no biases. It was all bullshit. You deprived a very nice lady, [Patty] Hartman, from recovering in a smoking gun liability case. You either had no idea of what the concept of probable cause meant or you misled the jurors because you were defense oriented. You rooted for the underdog, a totally incompetent corporate counsel, outgunned and stupid. I will never forget the high-fives after the trial you tanked[,] between you and a clueless [corporation] counsel. "I feel attacked." Well you should get attacked you A-hole. Good Luck in Hell.

"Massimo & Panetta, PC

Frank C. Panetta, Esq."

The court

In determining an appropriate measure of discipline to impose, the Court has considered the isolated nature of the respondent's conduct, the stressors in the respondent's personal life about which he testified, the favorable testimony of the respondent's character witnesses, and the respondent's expressions of regret and remorse. However, the respondent's email to Ms. Curry was designed to harass her, and his conduct adversely reflects on his fitness as a lawyer. Under the totality of the circumstances, the respondent is publicly censured for his professional misconduct.

(Mike Frisch)

March 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Boies Schiller Sanctions Affirmed

Thanks to a reader for sending this decision of the United States Court of Appeals for the Second Circuit affirming sanctions against Boies, Schiller & Flexner for a conflict of interest in a representation adverse to former client Host Hotels & Resorts, Inc.

Host moved for sanctions on the grounds that BSF’s  representation of Madison 92nd Street Associates, LLC  (“Madison”) presented a clear conflict of interest in light of BSF’s earlier, substantially related representation of  Host, and that BSF unreasonably refused to withdraw from its  representation of Host until faced with a motion to  disqualify. The district court agreed, concluding that “[a]  clearer conflict of interest cannot be imagined” and that  Host was entitled to fees and costs incurred in preparing  the motion to disqualify BSF.

The court found that the district court properly rejected claims of mere negligence

contrary to BSF’s argument, the court concluded BSF’s conduct was “far, far worse” than mere negligence.  See DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 136 28 (2d Cir. 1998) (“[T]hese findings [are] sufficiently concise  and based on clear evidence so as to amount to the bad faith required to impose sanctions.”).

(Mike Frisch)

March 11, 2015 | Permalink | Comments (0) | TrackBack (0)

Call From The Hall: No Thank You

A recent opinion from the Florida Judicial Ethics Advisory Committee

ISSUES

May a judge attend an award luncheon to accept an award and be inducted into a County Hall of Fame sponsored by the county’s Women's History Coalition, where program advertisements are sold to raise funds for the sponsoring organization?

ANSWER: No.

May the judge attend if the judge informs the organization that it cannot use the judge's name or office for fundraising in any way, such as by including the name or office in any advance publicity concerning the event, in the formal invitation, or in any advertisements or congratulatory messages in the program?

ANSWER: No.

Reasoning

 The Committee observes that, despite having the occasion to do so in 2008, the Supreme Court did not relax the Code’s ethical restrictions against a judge being a speaker or guest of honor, or otherwise being featured, at a civic or charitable organization’s fund-raising event, unless the event concerns the law, the legal system, or the administration of justice as authorized by Canon 4D(2)(b). See Commentary to Canon 5C(3) (b). Thus, the Committee believes this inquiry has been answered previously by JEAC Op. 99-09, which concluded Florida’s Code of Judicial Conduct precludes the attendance of the judge at this fund-raising event..

(Mike Frisch)

March 11, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Failure To Stop Employee Thefts Lead To Conviction And Disbarment

A Virginia attorney agreed to license revocation in the wake of a federal criminal conviction.

This press release from the United States Attorney's Office for the Western District of Virginia

Joseph W. Rasnic, age 62, of Jonesville, Virginia, waived his right to be indicted and pled guilty this afternoon to a one count Information charging him with misprision of felony.

“Mr. Rasnic failed to protect the assets of an elderly woman for whom he had been appointed conservator of accounts and instead protected the criminal activity of his assistant,” Acting United States Attorney Anthony P. Giorno said today. “This is certainly a sad day for everyone involved in this case, including Mr. Rasnic and his family. Nevertheless, we will vigorously prosecute attorneys and others who fail to ensure that money entrusted to them is protected.”

According to evidence presented by Assistant United States Attorney Randy Ramseyer, Rasnic operated a law office in Jonesville, Virginia, where Mandie Marie Bishop worked as his secretary and assistant. Rasnic admitted today he became aware Bishop was committing bank fraud by forging signatures to facilitate her theft of money from various bank accounts held by an elderly woman for whom Rasnic had been appointed conservator of accounts. Bishop obtained funds by forging Rasnic’s signature on checks.

Rasnic admitted after becoming aware of Bishop’s thefts he failed to remove her access to the accounts, which allowed her to continue stealing from the victim. In addition, Rasnic withheld information from law enforcement about Bishop’s behavior and actively sought to hide the extent of her criminal activity.

When questioned by agents of the United States Secret Service, Rasnic failed to disclose his knowledge of the full extent of Bishop’s criminal activity and lied about the nature of his personal relationship with Bishop.

In July 2014, Rasnic resigned and was removed as the conservator of the victim’s accounts. Between May 2013 and August 2014, Rasnic paid back $104,990 into the victim’s accounts. As part of the plea agreement, Rasnic was required to pay back all of the money taken by Bishop as well as his guardian and conservator fees and unnecessary expenses caused by the mismanagement of the victim’s accounts. The total amount required to be repaid, including the amount already paid, was $183,726. Rasnic submitted the remaining $78,736 today. Accordingly, the victim will receive full restitution.

Rasnic was released on a $10,000 unsecured bond. At sentencing, scheduled for May 28, 2015, he faces a maximum possible penalty of up to three years in prison and a fine of up to $250,000. Mandie Marie Bishop previously pled guilty to bank fraud charges and, in December 2014, was sentenced to 24 months of federal incarceration. There is no parole in the federal system.

(Mike Frisch) 

March 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge Reprimanded For Criticism Of Jury Verdict

From the web page of the Ohio Supreme Court

The Ohio Supreme Court today publicly reprimanded Judge Amelia (Amy) Salerno of the Franklin County Municipal Court for remarks she made to a jury after a not-guilty verdict.

Following a criminal trial, Judge Salerno told the jurors, along with others from the jury pool, that the verdict in the case was wrong, and she also disclosed additional charges pending against the defendant.

In a unanimous decision, the Supreme Court concluded that Judge Salerno violated two judicial conduct rules – one that requires judges to behave in ways to promote the judiciary’s integrity and impartiality, and another that bars judges from commenting on jury verdicts except in a court order or opinion.

Several jurors were upset by Judge Salerno’s criticisms, and her statements attracted national media coverage, subjecting the state’s judicial system to criticism and ridicule, the court noted.

In May 2014, the Ohio State Bar Association filed the charges against Judge Salerno, who has served on the municipal court since 2005. The judge and the bar association agreed to certain facts, the violations, and the sanction. The Board of Commissioners on Grievances and Discipline (now called the Board of Professional Conduct) recommended that the Supreme Court adopt the consent-to-discipline agreement between the parties, and the Supreme Court agreed in its per curiam opinion.

2014-1380Ohio State Bar Assn. v. SalernoSlip Opinion No. 2015-Ohio-791.

Detail here from the Columbus Dispatch.

LaShawn Chapman voted “not guilty” on Thursday along with her fellow Franklin County Municipal Court jurors in a misdemeanor assault case.

Then Chapman went home and cried, not because of the stress of deliberation, but because of what Judge Amy Salerno said to the jury after the verdict.

“(The judge) said, ‘Ninety-nine percent of the time, the jury is correct,'" according to Chapman. "'Now it’s 98 percent. You got this wrong.'

“She berated us,” Chapman, 39, said of the judge. “It was just nasty.”

Four of the eight jurors who decided the case have complained to Administrative Judge James E. Green about how Salerno spoke to them afterward...

 (Mike Frisch)

March 11, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2015

Costs Not Imposed Where Attorney Admits Charges

An agreed upon 90 day suspension of an attorney was approved by the Wisconsin Supreme Court.

One count

The first client matter detailed in the complaint and stipulation involved Attorney Carson's representation of N.S.  In or around April of 2010, N.S. retained Attorney Carson to represent her in two operating while intoxicated cases and a forthcoming felony drug possession case.  Prior to commencement of the lawyer-client relationship, no consensual sexual relationship existed between N.S. and Attorney Carson.

N.S.'s initial court appearance in the drug possession case occurred in August of 2010.  N.S. and Attorney Carson both attended the court appearance.  The court set a signature bail bond which provided that N.S. was not to possess or consume any alcohol or drugs. The drug possession case was concluded in late May of 2011.  The terms of the August 2010 bail bond remained in effect.

In April of 2011, Attorney Carson and N.S. engaged in sexual relations on two occasions. 

The remaining counts of client-related misconduct were more of the neglect and frivolous litigation variety.

No costs were imposed because the attorney put up no resistance to the charges. (Mike Frisch)

March 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Call Him Sir

The North Carolina State Bar has filed a complaint alleging serious misconduct against an attorney admitted in 2009..

The accused attorney is named Sir-Christopher J. Anderson.

the charges involve, among other things, misuse of entrusted funds and false statements in the ensuing disciplinary investigation. (Mike Frisch)

March 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)