Wednesday, February 7, 2018

Stiff Sanction For Misuse Of Escrow Account

A two-year suspension has been imposed by the New York Appellate Division for the First Judicial Department

Respondent, who is 74-years-old, began her legal career in 1987 following careers in teaching and journalism. In or about 1989 respondent opened a solo practice focused primarily on matrimonial matters, at which time she went a bank to open a business account and an escrow account. However, the account the bank set up for her was solely an escrow account which was structured such that there was a master account and sub-accounts for each individual client matter. Client/third-party funds were deposited into sub-accounts each with its own account number. Respondent would then have to transfer funds from the individual sub-accounts to the master account in order to disburse them. Respondent did not open an operating account and improperly left her earned legal fees on deposit in the master escrow account which she used as her operating/personal account for about 22 years. In or about the mid-1990's respondent opened another escrow account which she structured and used in the same manner as her initial escrow account.

In August 2010, respondent closed her second escrow account and opened a third escrow account which she structured and used in the same manner as her prior two escrow accounts. Due to a bank error in moving funds from the closed escrow account to the new one, two checks bounced which resulted in notification to the AGC. The ensuing investigation revealed respondent's improper use of her escrow account as a dual depository for client/third-party funds and her business/personal funds.

Respondent testified that she set up and used her escrow accounts in the manner in which she was instructed by the bank in 1989 when she opened her first account, which the Referee noted she appeared never to have questioned thereafter. She only learned of the impropriety of her conduct after the AGC commenced its investigation. After the investigation began, respondent discontinued using her escrow account as her business account and opened a separate operating account at another bank.

The AGC charged respondent with misusing her escrow accounts to shield personal funds from tax authorities. In 2007, the IRS audited respondent's tax returns for the 2005 and 2006 tax years and disallowed most of her claimed business expenses. The audit resulted in an additional tax liability of approximately $87,000 which grew significantly with interest and penalties. At the time of the audit respondent was being treated for stage two breast cancer and stated that her illness interfered with her ability to collect and produce relevant documents. She also testified that she was poorly represented by her accountant. Respondent has unsuccessfully sought reconsideration of the IRS audit. The exact amount of respondent's tax debt is unclear but she appears to owe the IRS and New York State somewhere between $50,000 and $100,000.

In or about 2009, the IRS levied against respondent's monthly Social Security payments (currently 55% of her monthly Social Security payments are garnished by the IRS). As of October 2009, respondent's federal tax debt was over $102,000 and is still in the tens of thousands of dollars.

Also since 2009, because of the IRS levy against her monthly Social Security payments, respondent has deliberately kept the balance of personal funds she improperly maintained in her escrow accounts low. After she deposited her legal fees or other personal funds into the escrow accounts, she would pay business/personal expenses and immediately withdraw most of her funds and hold them in cash because she feared that the IRS would levy against her escrow account, leaving her without funds to live on. Respondent would then use the cash to pay bills, re-deposit it when necessary, or use bank cashier checks.

In addition, the AGC charged respondent with misuse of a third party's personal bank accounts to shield her funds from tax authorities. In November 2012, respondent broke her ankle and suffered other serious injuries requiring a lengthy recuperation. In December 2012, she returned home from a rehabilitation facility but was physically and mentally unable to work or handle her financial affairs. Respondent's close friend and sometime paralegal S.G. testified that, on her own initiative, she laid out $50,000 of her own money as a loan to pay for respondent's rent and other bills. When respondent's mental state improved, S.G. told her what she had been doing and continued to help. Thus, respondent would endorse checks she received from clients and others over to S.G., who deposited them into her personal account, and used the funds to pay respondent's bills.

In March 2013, at the suggestion of their mutual accountant, S.G., who was aware of respondent's tax situation, opened a bank account in her own name for respondent's benefit; the account was opened 11 days after respondent received a Final Notice of Intent to Levy from the IRS. Client payments and other checks to respondent were deposited into the account and were immediately followed by large withdrawals which kept the balance low. The banking arrangement between respondent and S.G. continued until 2014 when respondent was able to resume banking on her own. S.G. charged respondent $100 per day to handle her banking matters (the same rate at which she was compensated for her paralegal services) and of the $50,000 she loaned respondent she is still owed $15,000.

Respondent expressed remorse but it was confined to her failure to maintain separate accounts for client/third-party funds and her personal/business funds.

Sanction

As to sanction, the AGC argues that this Court's case law, in conjunction with respondent's lack of mitigation, makes clear that a two-year suspension is warranted.

Respondent does not challenge the Referee's and Hearing Panel's liability findings but asks this Court to disaffirm their respective sanction recommendations, and instead, impose a public censure. Respondent asserts that the cases cited by the AGC in support of a two-year suspension are distinguishable in that they all involved attorneys who moved their business/personal funds from another location to their escrow accounts to avoid being levied against, whereas here, there was no such shifting by respondent who continuously used her escrow account, albeit under the mistaken belief that it could double as an operating account.

We find that the record supports sustaining charges one, two, three and charge seven (as it relates to those charges). Respondent admitted that from 1989 until 2011, she improperly used her escrow account as a dual depository for client/third-party funds and her business/personal funds in clear violation of rule 1.15(b)(1). In addition, the record fully supports the Hearing Panel's finding that respondent failed to maintain required bookkeeping records for the two escrow accounts at issue. Thus, there is ample basis to sustain charges one and two, neither of which are contested by respondent.

We also find a basis to sustain charge three. Both the Referee and Hearing Panel cited to the fact that, unlike in the cases of Matter of Brodsky (153 AD3d 52 [1st Dept 2017]), Matter of Brown (133 AD3d 7 [1st Dept 2015]), and Matter of Pritikin (105 AD3d 8 [1st Dept 2013]), respondent did not close any non-escrow accounts in favor of her escrow accounts after the IRS levied against her Social Security payments in 2009. Rather, she continuously, albeit improperly, used her escrow account as a dual depository for client/third-party funds and business/ personal funds from 1989 until 2011. While, based on the above case law, this is one factor to be considered, it is not necessarily dispositive, and overlooks the import of the admissions made by respondent during the Referee hearing, that after 2009, she continued to deposit business/personal funds into her escrow account which she promptly removed, and then hoarded the cash because she feared that the IRS would levy against her escrow account, thus leaving her without funds to live on.

In failing to recognize the significance of this admission, the Referee's and Hearing Panel's respective decisions to dismiss charge three are against the weight of the evidence (see Matter of Dalnoky, 90 AD3d 1, 5 [1st Dept 2011][attorney's remorse was belied by his persistence in justifying his deliberate misuse of escrow account by, inter alia, shielding funds from tax authorities]; Matter of Silva, 28 AD3d at 13 [purely circumstantial evidence permitted inference that the attorney intended to defraud creditors by his misuse of escrow account]; Matter of Goldstein, 10 AD3d 174, 176 [1st Dept 2004] [attorney's testimony that his misuse of escrow account as a depository for business/personal funds was to save small monthly fees associated with a business account and at the suggestion of bank officers, rather than to shield funds from tax authorities, was not credible and, in any event, attorney was responsible for his accounts]).

As to charge four which alleged that in using her escrow accounts to shield business/personal funds from the IRS respondent also violated rule 8.4(d)(conduct prejudicial to the administration of justice), the Hearing Panel was correct to dismiss this charge because rule 8.4(d) is more appropriately applied to misconduct which occurs within the context of litigation.

Both the Referee and Hearing Panel were correct in not sustaining charges five and six which pertain to respondent's alleged misuse of the S.G. accounts because: (1) they were not escrow accounts; (2) there is no evidence that the funds withdrawn from these accounts were actually subject to a lien or levied against; (3) the case law relied upon by the AGC involves only escrow accounts, not third-party personal accounts, and it has not presented any case law in which it was found that the manner in which the S.G. accounts were used constituted professional misconduct; and (4) the Referee and Hearing Panel both credited respondent's and S.G.'s testimony that the primary intent of the accounts was to enable respondent to survive, not to defraud the IRS.

Based on our finding sustaining charges one, two, three and charge seven (as it pertains to charges one, two and three), respondent is suspended from the practice of law in the State of New York for a period of two years, and until further order of this Court

February 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, February 6, 2018

D.C. BPR: No Fitness For Larry Klayman

The District of Columbia Board on Professional Responsibility recommends a 90-day suspension - but with automatic reinstatement - of Larry Klayman for his misconduct toward former client Judicial Watch

Although Respondent did not engage in dishonesty in either the underlying events or these proceedings, his conduct was as serious as that in Shay and Jones Terrell because it was motivated by animus toward Judicial Watch. These were not three innocent mistakes by a busy lawyer who lost track of an old client. Indeed, Respondent never claimed that the conflict resulted from mistake, carelessness, or inadvertence. He also shows no remorse for his obvious misconduct. Instead, he argued to the Hearing Committee that he engaged in these three obviously conflicting representations pursuant to his ethical obligation under Rule 1.3 to zealously represent his new clients, who had been abandoned by Judicial Watch and would have been without representation were if not for him.

The Hearing Committee rejected this argument, as do we. HC Rpt. 31. To advance his personal crusade against Judicial Watch, Respondent “switched sides,” and represented three individuals after representing Judicial Watch in the same matters involving those same three people. This vindictiveness strikes at the very heart of the attorney-client relationship, and deserves a serious sanction of ninety-day suspension. We expect that this suspension will send a message to Respondent and others who may be similarly tempted to turn on former clients to whom they owe a continuing duty of confidentiality.

The Hearing Committee’s fitness recommendation relied heavily on its finding that Respondent testified dishonestly and its consideration of prior discipline in Florida. As discussed above, we do not find clear and convincing evidence that Respondent testified falsely, and we see the Florida discipline as less serious than the Hearing Committee saw it. Although we find Respondent’s lack of remorse troubling, it does not rise to the level of clear and convincing evidence of a serious doubt as to Respondent’s ability to practice law following his suspension. See Cater, 887 A.2d at 24. We thus reject the Hearing Committee’s recommendation that we impose a fitness requirement.

On the false testimony finding

The Hearing Committee also found that Respondent testified falsely in the hearing and misrepresented his testimony in his brief. HC Rpt. 41. It concluded that Respondent’s testimony and argument falsely claimed that he relied on his co counsel’s advice that he could ethically appear in the litigations. Id. at 29-30. The Hearing Committee also decided that a fitness requirement was necessary, in considerable part because of (1) Respondent’s dishonesty before the Committee and (2) a disciplinary matter in Florida, which suggested that Respondent will not act ethically after his period of suspension has run. Id. at 42; see In re Cater, 887 A.2d 1, 24 (D.C. 2005).

Since the Hearing Committee’s findings of uncharged falsehoods were material to the sanction recommendation, we must review them de novo. See In re Bradley, 70 A.3d 1189, 1194 (D.C. 2013) (per curiam). The Committee relied virtually entirely on the testimony of Respondent’s co-counsel in the Benson matter, who testified that he did not endorse Respondent’s appearance. However, the forcefulness of that testimony was undercut by the witness’s repeated, yet understandable, inability to recall the substance of key conversations in which he had participated with Respondent more than eight years earlier. See Resp. Br. 39- 41; Tr. 677-79. For example, when asked if he had advised Respondent if he could enter his appearance on behalf of Ms. Benson, he testified “I don’t recall.” Tr. 676; see Tr. 688. Moreover, a contemporaneous court filing quoted him as stating that there “was no ethical issue” arising from Respondent’s representation of Benson. DCX 29 at 5. The witness, who co-signed Respondent’s opposition to the disqualification motion, testified in the disciplinary hearing that he did not think the opposition was frivolous (Tr. 689) and would not have “put [his] name on a pleading that [he] thought was in violation of any pleading rule or ethical rule.” Tr. 696.

The Court has noted that in disciplinary proceedings the passage of time “dims memories and so distorts the truth finding process” such that mitigation, rather than enhancement of proposed sanctions, is “particularly suitable.” In re Williams, 513 A.2d 793, 798 (D.C. 1986) (per curiam). Here, the witness’s diminished recollection and his prior, apparently inconsistent, statements convince us that Disciplinary Counsel (who did not argue to the Hearing Committee that Respondent was dishonest) failed to prove dishonesty by clear and convincing evidence. See In re Downey, 162 A.3d 162, 168-69 (D.C. 2017).

I am more than dubious that the Board has the de novo power asserted here. Perhaps the Court of Appeals will enlighten us on the point. 

As the Assistant Bar Counsel in In re Williams, I can assure the reader that it is a pathetic citation for the claimed proposition.

It is, however, a notable example of the Board overstepping its authority.

False testimony by accused attorneys in bar proceedings is not, as the BPR suggests, an "uncharged falsehood." Rather, it is a breach of a fundamental ethical obligation and highly sanctionable misconduct that has serious consequences.

As the court said in rejecting the Board 's sanction recommendation in In re Cleaver-Bascombe where the attorney had testified falsely in the discipline case

 ...we reject the Board's recommended sanction of a two-year suspension with a fitness requirement. We likewise reject respondent's contention that a three-month suspension coupled with a requirement that she complete a CLE course in record-keeping is the appropriate sanction.

What we said in Cleaver-Bascombe I bears repeating here:

The allegations in this case are extremely serious. The compensation of attorneys who represent criminal defendants in the District of Columbia courts pursuant to the Criminal Justice Act is based upon the assumption that members of our Bar are honorable men and women who will accurately report the work that they have done, and who will not demean their noble calling and bring disgrace to themselves and to their profession by swearing that they performed work that they did not do. Attorneys who accept CJA appointments are therefore expected to be scrupulously honest and to exercise a high degree of care in completing their vouchers, which are paid out of taxpayer funds, and which are submitted to the court under penalty of perjury. Where an attorney has deliberately falsified a voucher and sought compensation for work that he or she has not performed, or for time that he or she has not devoted to the case, that attorney's fitness to practice is called into serious question. This is especially true if the attorney has compounded his or her initial fraud by testifying falsely during the resulting disciplinary proceedings.

 

In re Klayman can be found at this link. (Mike Frisch)

February 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Case That Wasn't

Summary of a case just argued before the Missouri Supreme Court

SC96700
In re: Jonathan D. Valentino
St. Louis County

Attorney discipline
Listen to the oral argument: SC96700 MP3 file
Chief Disciplinary Counsel Alan Pratzel of Jefferson City represented his office during arguments; Valentino was represented by Alan Mandel of Mandel & Mandel LLP in St. Louis. 

Jonathan Valentino is an attorney in Clayton. In December 2009, a man hired a law firm to represent him in connection with a property dispute the man was having with his neighbor. Ultimately the case was assigned to Valentino – an associate at the law firm – who told the man he filed the lawsuit in January 2010 and gave the man subsequent updates over the next several years, although in fact no lawsuit ever had been filed. In January 2016 – after having not responded to numerous inquiries from the man about the case – Valentino told the man he never had filed the lawsuit and had lied when giving the man the updates. Over the course of the case, Valentino caused his law firm to bill the man more than $600, which the firm ultimately refunded to the man. In February 2016, Valentino self-reported his misconduct to the chief disciplinary counsel’s office and subsequently went to work for a different law firm. After an evidentiary hearing, a regional disciplinary hearing panel in August 2017 issued its decision concluding Valentino had violated several rules of professional responsibility. The panel recommended that Valentino be suspended with no leave to apply for reinstatement for at least one year, that the suspension be stayed and that Valentino be placed on probation for one year. The chief disciplinary counsel rejected the proposed discipline and now asks this Court to suspend Valentino indefinitely with no leave to apply for reinstatement for one year.

This case presents two questions for the Court – whether Valentino violated the rules of professional responsibility and, if so, what discipline, if any, is appropriate.

SC96700_Chief_Disciplinary_Counsel_brief
SC96700_Valentino_brief

Interesting argument - the court explores the mitigation of self-report and asks the advocates about the public protection aspect of attorney discipline. (Mike Frisch)

February 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Default Is In The Rules

A blow for efficiency from the District of Columbia Board on Professional Responsibility - a brief summary of a Hearing Committee disbarment recommendation from last December 12 transmitted to the Court of Appeals

Disciplinary Counsel charged Respondent, Edward N. Matisik, with violating Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 1.4(b), 1.15(a), 1.15(e), 1.16(d), 5.5(a), and 8.4(c), arising out of his representation of a client in connection with the client’s annual registration in states in which it planned to seek charitable contributions. Respondent was personally served with the Specification of Charges, but failed to file an Answer or otherwise participate in these proceedings. The Hearing Committee considered this matter pursuant to the default procedure of D.C. Bar R. XI, § 8(f) and Board Rule 7.8.

The Hearing Committee found that Respondent violated each of the charged Rules, and recommended that he be disbarred because he engaged in intentional misappropriation when he spent advance fee payments without performing any work for the client. Neither Disciplinary Counsel nor Respondent has taken exception to the Hearing Committee’s Report and Recommendation.

The Board, having reviewed the record, concurs with the Hearing Committee’s factual findings (which are supported by substantial evidence in the record), with its conclusions of law, and with the recommended sanction. For the reasons set forth in the attached Hearing Committee Report, the Board recommends that the Court determine that Respondent violated Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(c), 1.4(a), 1.4(b), 1.15(a), 1.15(e), 1.16(d), 5.5(a), and 8.4(c), and disbar him for his intentional misappropriation. See In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc).

So far, so great.

Now for the humorous part comes footnote two

The Hearing Committee has asked the Board to revisit the current default procedure, which requires the Hearing Committee to hold a hearing to determine the sufficiency of Disciplinary Counsel’s proof, and to prepare a report and recommendation “of the same character as is prepared in contested proceedings.” The Board appreciates the Hearing Committee’s observations, and directs the Board’s Rules Committee to reassess the procedure in default cases.

The Hearing Committee

By our Rule, once default has occurred, the facts alleged by Disciplinary Counsel are admitted. This Rule should afford substantial efficiencies; however, that has not proved the case. An informal practice has emerged, in the absence of definitive guidance and for the generally laudable reason of erring on the side of more rather than less process, of conducting essentially a full (one-sided) hearing and preparing a Report and Recommendation of the same character as is prepared in contested proceedings. Given the volume of important work before the Board, the Board’s limited staff resources, the Board’s reliance on the volunteer efforts of members of the Bar and the public, and the value of maintaining an orderly and efficient docket, we respectfully suggest that this practice should be revisited.

The "informal practice" emerged from an institutional disdain for default and for the concept that self-regulation should be executed in the public interest.

Expect to hear back from the Rules Committee shortly after pigs learn how to fly. (Mike Frisch)

February 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Suspension Affirmed

The North Carolina Court of Appeals affirmed the imposition of a five-year suspension

In 2005, Ely formed a business called Palladium Legal Services, LLC (“Palladium”), a limited liability company registered in Georgia. Palladium offers temporary or full-time in-house legal counsel for small to mid-sized businesses. In order to obtain its services, clients must first pay a fee to Palladium and are then matched with one of the company’s attorneys, who are called “Chief Legal Officers” (“CLOs”). These CLOs receive from Palladium a portion of the fee paid to the company by the client. The CLOs do not receive any compensation directly from the client. For several years, Ely served as the president of Palladium and as one of its CLOs. She is also the sole member of the limited liability company.

On 10 June 2011, Ely was administratively suspended by the State Bar from the practice of law in North Carolina for noncompliance with continuing legal education and dues requirements. On 1 July 2011, she was also suspended from practicing law in Georgia due to her failure to pay mandatory membership dues.

Despite these administrative suspensions, Palladium continued to operate, and Ely remained in her position as president. Her biographical information — including her previous legal experience — remained on Palladium’s website on a webpage titled “Meet our CLOs.”

In January 2008, Ely sent on behalf of Palladium a proposed employment contract to Henry Abelman, a North Carolina attorney whose license was inactive. Abelman did not sign the contract and never formally agreed to become a CLO. Ely nevertheless updated Palladium’s website to list Abelman’s biographical information and display his picture on the “Meet our CLOs” webpage.

In August and September 2012, mass-marketing emails were sent at Ely’s direction targeting small business owners in North Carolina and informing them of the legal services offered by Palladium. One of the recipients of these emails was Tony Maupin, a North Carolina business owner, who received both an initial email and a follow-up email. At the bottom of the emails to Maupin, Ely signed her name as “Dawn Ely, Esq.” Maupin subsequently filed a grievance against Ely with the State Bar regarding the emails.

On 6 September 2012, the Authorized Practice Committee of the State Bar sent Ely a letter informing her that she was “engaged in activities that may constitute the unauthorized practice of law in North Carolina.” The record does not indicate that Ely ever responded to the letter. On 2 February 2015, the committee followed up on its 6 September 2012 letter with a Letter of Caution, informing her that the committee had “probable cause to believe that . . . [her] activities . . . violate[d] the unauthorized practice of law statutes.” Once again, the record is devoid of any response from Ely.

The court rejected  the attorney's attack on the findings below, which led to the suspension

The DHC concluded — and we agree — that the clear implication from Ely’s inclusion of the abbreviation “Esq.” following her signature in the emails to Maupin, the hyperlink to Palladium’s website, and her testimony on this subject at the hearing is that she intended to convey to recipients of the email that she was able to provide legal services as an attorney.  Moreover, while our courts have not previously had occasion to address this issue, courts in a number of other jurisdictions have determined that the use of the title “Esquire” by one not licensed to practice law constitutes the unauthorized practice of law...

The DHC’s findings likewise support the conclusion that Ely violated Rule 8.4(c). She falsely represented on Palladium’s website that Abelman could serve as an attorney on behalf of Palladium despite his status with the State Bar being “inactive” as well as the fact that he had never actually signed a contract with Palladium. She further included the hyperlink to the website in her emails to Maupin and the other recipients.

...we are satisfied that the findings of fact contained in the DHC’s order of discipline support its conclusions that Ely violated Rules 5.5(b)(2), 7.1(a), 7.3(a), and 8.4(c) and that those findings were supported by clear, cogent, and convincing evidence. Accordingly, we overrule Ely’s arguments as to the adjudicatory phase of the DHC’s order.

Sanction

the DHC has established a rational basis for its decision, and Ely has failed to demonstrate that her suspension was contrary to applicable law.

(Mike Frisch)

February 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Resorting To Misconduct

A four year suspension has been imposed by a Hearing Panel of the Michigan Attorney Discipline Board.

The panel found that respondent collected a clearly excessive fee, in violation of MRPC 1.5(a); represented a client when the representation was materially limited by his own interests, in violation of MRPC 1.7(b); prepared a will which bequeathed himself a substantial gift from his client, in violation of MRPC 1.8(c); knowingly disobeyed an obligation of the rules of a tribunal, in violation of MRPC 3.4(c); breached his fiduciary duties under the Estate and Protective Individuals Code, in violation of MCl 700.7803 (breach of fiduciary duties); MCl 700.1502 (prudent investor rule); MCl 700.1506 (invest and manage fiduciary assets solely in interest of beneficiaries); MCl 700.5416 (applying fiduciary duty and standard of care applicable to trustee or conservator); Mel 700.5421 (conflict of interest of conservator); and knowingly failed to respond to a lawful demand for information, in violation of MRPC 8.1 (a)(2). Respondent was also found to have violated MCR 9.104(1)-(3); and MRPC 8.4(a) and (c)

UpNorthLive.com had this recent story

A northern Michigan attorney is accused of taking money from one of his clients and giving it to an East Bay Township ski resort.

David Kipley, 68, of Williamsburg is charged with embezzlement from a vulnerable adult of $100,000 or more and embezzlement from a vulnerable adult of $1,000 or more but less than $20,000.

 According to a Michigan State Police Incident Report, the Grand Traverse County Prosecutor's Office contacted police on May 15, 2017, on a possible Elder Fraud case following a complaint filed by the State of Michigan Attorney Discipline Board against Kipley on January 30, 2017.

The complaint alleged Kipley illegally donated $100,000 which belonged to an elderly woman's estate. According to the incident report, Kipley is accused of donating the money to Mount Holiday in December of 2012.

According to the report, Kipley was both a board member for Mount Holiday and responsible for the woman's estate at the time of the donation.

Kipley is due back in court on February 7 for a probable cause hearing and February 13 for a preliminary hearing.

He was issued a $25,000 personal recognizance bond.

He was also ordered to pay restitution in the bar matter. (Mike Frisch)

February 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tennessee Opens Door

From the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has amended the eligibility requirements for graduates of law schools in foreign jurisdictions who apply to take the Tennessee bar examination.

Under the revisions to Tennessee Supreme Court Rule 7, section 7.01, applicants who have graduated from a law school in a foreign jurisdiction may qualify to take the Tennessee bar examination upon showing that their undergraduate education and legal education were substantially equivalent to a bachelor’s degree and a law degree as required in Rule 7, sections 2.01 and 2.02.

In the alternative, applicants who have graduated from a law school in a foreign jurisdiction may qualify to take the Tennessee bar examination upon showing that they have earned an LL.M. degree in the United States in a program designed to train lawyers to practice law in the United States, that they have been admitted to the practice of law in a foreign jurisdiction and are in good standing, and that they have been actively engaged in the practice of law for five of the past eight years. 

The amendments to Tennessee Supreme Court Rule 7, which will be administered by the Tennessee Board of Law Examiners, were adopted in response to a petition filed by the University of Tennessee College of Law and Vanderbilt University School of Law. Before adopting the revisions, the Court solicited public comments and received responses from the Tennessee Bar Association, the Knoxville Bar Association, the Tennessee Board of Law Examiners, and several individuals. To review the Court’s order, which includes an appendix with line edits of the changes, please visit the Tennessee Board of Law Examiners website.

(Mike Frisch)

February 6, 2018 | Permalink | Comments (0)

Monday, February 5, 2018

God And Columbia

A recent decision of the United States Court of Appeals for the Second Circuit

Appellant David Roemer, proceeding pro se, sued the New York Attorney Grievance Committee ("State Committee") as well as Columbia University's general counsel, Jane Booth, and president, Lee Bollinger, under 42 U.S.C. § 1983, claiming violations of the First and Fourteenth Amendments. Roemer is a retired high school science teacher who has repeatedly offered to give a lecture on the cosmological argument for God's existence at Columbia University ("Columbia"), offers that Columbia repeatedly declined. In October 2016, Booth wrote to Roemer advising him that continued efforts to contact members of the Columbia community could be considered harassment. Roemer responded by filing an ethics complaint against Booth with the State Committee, which was dismissed. Before the district court, Roemer sought injunctive relief against the defendants for depriving him of the right to free speech and violating the Establishment Clause. The district court sua sponte dismissed the complaint as frivolous. Roemer subsequently moved for the district court judge to recuse himself and for default judgment against Bollinger. The district court denied the recusal motion, and this appeal followed. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

The court

 On appeal, however, we agree with the district court that Roemer's complaint was frivolous. Roemer provides no legal argument but only cursorily states that he is "certain" that he is "right" and that the district court wrongly concluded that he had no cause of action, Appellant Br. at 12, and has therefore arguably abandoned his claims. See Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001). In any event, his claims are meritless. Neither Columbia employee is a state actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (explaining that an action brought under § 1983 must be based on an alleged deprivation by an individual acting under color of state law). And Roemer lacks standing to challenge the State Committee's decision not to discipline Booth. See In re Attorney Disciplinary Appeal, 650 F.3d 202, 203-05 (2d Cir. 2011) (per curiam).

(Mike Frisch) 

February 5, 2018 | Permalink | Comments (0)

The Clan Mother And Grand Chief

A sought recusal in a bar matter was denied by a Tribunal Hearing Panel of the Upper Canada Law Society

The panel is unanimous in its view that the motion should be dismissed. Firstly, as a matter of observation, the chair of this panel was seated prior to the hearing ceremony, then greeted the Clan Mother and Grand Chief at the door and allowed the performance of the ceremony and the presentation of the gifts. We fully observed as well that she remained standing throughout.

  Secondly, regarding the chair's ruling with respect to the parameters of the viva voce witness, there was nothing in the chair’s conduct, either in what she said or how she said it, which could indicate to any objective observer any reasonable apprehension of bias.

Moreover, the ruling was made for the purpose of ensuring that the evidence of the proposed witness was relevant to the narrow and circumscribed issues before the panel today. We are in agreement with the Law Society of Upper Canada's submissions that the legal test [for whether the conduct of the hearing panel raised a reasonable apprehension of bias] has not been met, as set out in Law Society of Upper Canada v. Sultan, 2017 ONLSTA 9 (CanLII), relying on the Supreme Court of Canada decision in Committee for Justice and Liberty et al. v. National Energy Board et al.[1978] 1 SCR 3691976 CanLII 2 (SCC). Therefore, the motion is dismissed.

Can anyone help with the meaning of the first sentence?

Law Times reported  in 2017

The Law Society of Upper Canada has suspended a lawyer while investigating whether his conduct in litigation has hampered the administration of justice.

The provincial regulator currently has six open investigations into Glenn Bogue for a list of allegedly vexatious proceedings he has started against judges, the Queen and even the prime minister personally.

His submissions have often denied the authority of the federal and provincial governments, according to the decision, and have met mounting criticism in the courts. 

“Based only on the Law Society’s submissions, we accept there is a significant risk of harm to the public and to the public interest in the administration of justice and that an order suspending Mr. Bogue on an interim interlocutory basis would reduce that risk,” said the decision in Law Society of Upper Canada v. Bogue, at the Law Society Tribunal hearing division.

“There is evidence, including comments from multiple judges, to suggest that Mr. Bogue is using litigation techniques that could harm the administration of justice and cause costs and delay to his clients and others.”

In Steinkey v. Canada, 2017, Federal Court prothonotary Roger Lafrenière wrote that he was “very troubled” to see Bogue had accepted a retainer to help a client implement a vexatious proceeding. In February, Ontario Superior Court Justice Timothy Ray quashed an appeal Bogue filed on behalf of a client in Chalupnicek v. The Children’s Aid Society of Ottawa, determining that the motion was “entirely unnecessary.” 

The appeal concerned a decision by a master to dismiss an action Bogue brought on behalf of a client, as it “appeared to be frivolous, vexatious or an abuse of process.” 

In his submissions arguing against the dismissal, Bogue referred to “non-existent or self created tribunals” such as the “International Tribunal Against Church and State” and the “International Common Law Court of Justice,” which allegedly indicted and convicted the Pope, the Queen and former prime minister Stephen Harper of murder and conspiracy to murder.

The submissions also used terms that the master said were examples of what the courts have identified as “a strategy of pleading ‘specific and irrelevant formalities and language’ portrayed as having legal significance.”

“This is a hallmark of much frivolous litigation in Canada designed to ‘disrupt court operations’ and to frustrate the legal rights of litigants,” MacLeod said.

Bogue’s appeal of the master’s decision was ultimately unsuccessful as he filed it in the Superior Court, but the Divisional Court would have been the appropriate court to which to appeal.

“I am mindful that several judges have concluded that the merits of the Plaintiffs’ claim are devoid of merit,” Ray said in the decision quashing the appeal. “That question, however, is not before me, except to remind me that the appeal route they chose in their Notice of Appeal was equally devoid of merit.”

The Ontario Court of Appeal found that Bogue had made unfounded claims of bias against judges and repeated requests for adjournments causing delays. 

In Miracle v. Miracle III, Bogue requested that two of the three-judge panel that was set to hear an appeal recuse themselves because of bias. 

They rejected the request, saying that Bogue had made similar allegations of a differently constituted panel, which found no substance to the allegations, but adjourned the matter.

The law society has been investigating Bogue since March 2016, when it first started receiving complaints about the lawyer. The law society brought an interlocutory suspension motion for Bogue, arguing his ongoing submissions in courts were putting the public and the administration of justice at  risk.

“On the evidence now before us, the risks are significant and would continue during the period of the adjournment,” said the decision, issued on behalf of a three-member panel.

“Nothing short of a suspension could adequately address them, given the evidence we have seen. Mr. Bogue acknowledges he is actively representing clients on litigation files, and there is no indication he has stopped the types of approaches alleged here.”

A spokeswoman for the LSUC says the law society seeks interlocutory suspensions to address serious risk that becomes apparent before an investigation is complete and before evidence is available to prosecute. 

Bogue was granted an adjournment of the interlocutory suspension motion while he seeks counsel. 

He will still be suspended as a term of the adjournment, but he could still get the interim suspension lifted when the motion is heard. 

Bogue could not be reached for comment.

February 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Paradise Reinstatement Style

The Hawai'i Supreme Court has reinstated an attorney who had been suspended for 150 days.

Hawaii News Now reported on the suspension

 Former Big Island clerk Jamae Kawauchi is in hot water again.

Kawauchi, who was widely criticized for chaos and polling delays on the Big Island during the 2012 election, had her law license suspended for 150 days by the state Supreme Court.

According to the Office of Disciplinary Council, Kawauchi, now in private practice, withdrew client funds for her own personal use and didn't refund the money until five months later.

The ODC also alleged that Kawauchi committed "further misconduct" during its investigation into the matter. The ODC did not provide details on the misconduct, saying only that it had a “selfish or dishonest motive.”

Kawauchi could not be reached for immediate comment.

Big Island Now opined on the election controversy and reported on her post-election employment.

There’s a new lawyer in the county Prosecuting Attorney’s Office.

And no, we’re not talking about Mitch Roth, who narrowly defeated Lincoln Ashida in the race for prosecutor in last month’s general election. The win moved Roth from a deputy prosecutor position to the county’s top lawyer for criminal matters.

It’s Jamae Kawauchi, the former Hawaii County clerk who gained significant notoriety for her role in unprecedented problems during the Aug. 11 primary election.

“We understand she’s been criticized, but we wish to provide her with a fresh start,” Roth told Big Island Now.

Kawauchi saw some degree of redemption during the Nov. 6 general election when state elections chief Scott Nago — a vocal critic of Kawauchi’s handling of the Hawaii County Elections Division — experienced major problems of his own.

Kawauchi found herself out of a job when the newly elected County Council selected Stewart Maeda as county clerk a week ago.

First Deputy Prosecutor Dale Ross confirmed that Kawauchi started her new job as a deputy prosecutor today. She was initially undergoing orientation in Hilo but will be working out of the agency’s Kona office, Ross said.

Ross said like other new deputy prosecutors, Kawauchi will initially be assigned to District Court which deals with such matters as traffic, misdemeanor and criminal violations appearances and bench trials.

Hawaii County’s website said the next stop for deputies is usually Family Court which handles domestic violence and juvenile cases.

“After spending approximately one to two years in these courts, a deputy may thereafter be assigned to Circuit Court work, which includes screening, charging and trying felony and misdemeanor committal cases,” the website said.

Kawauchi today spoke briefly with Big Island Now but declined to comment on her new job or experience with criminal law, saying the policy in the prosecutor’s office is to first get permission from a supervisor before speaking to the media.

According to a resume previously posted on the county’s website, Kawauchi is a graduate of the William S. Richardson law school at the University of Hawaii. The Hawaii State Bar Asssociation said she was admitted to the Hawaii bar, a prerequisite to practice law in this state, in 1999.

Kawauchi served as a law clerk to Third Circuit Court Judge Greg Nakamura from 1998 to 2000, her resume said.

A Harvard University fellow, Kawauchi served as a public policy associate of the Harvard Law School/Harvard Graduate School of Education Civil Rights Project from 2000 to 2002, and as assistant director of the Harvard Medical Harvard Medical School Center of Excellence in Minority Health and Health Disparities from 2002 to 2004.

Following that she spent two years as an associate with Carlsmith Ball LLP, a Honolulu-based law firm with offices in Hilo, Kona, Maui, Los Angeles and Guam; then worked from 2006 to 2008 with Yeh & Moore, a Hilo law firm which specializes in planning issues.

Before being hired by then-County Council Chairman Dominic Yagong as county clerk in 2010, Kawauchi spent two years operating her own law practice. During that period she also served as a member of the County Charter Commission, a panel formed every 10 years to recommend changes to the Hawaii County Charter.

(Mike Frisch)

February 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Too Late To Assert Arbitration Provision Was Unethical

The defendant in a suit for payment of legal fees waived its right to object to arbitration, according to a decision of the Vermont Supreme Court.

The critical question in this case is whether a party who participates extensively and without objection in an arbitration proceeding for nearly seven months prior to the actual arbitration hearing waives an objection to the validity of the arbitration agreement. Lesley Adams, William Adams, and Adams Construction VT, LLC (collectively Adams Construction) appeal the trial court’s denial of their application to vacate an arbitration award in favor of Russell Barr and the Barr Law Group (collectively Barr Law Group) and against Adams Construction. Because we conclude that Adams Construction waived its challenge to the validity of the arbitration agreement, we affirm.

After participating fully in the arbitration

On October 4, 2016, one week before the beginning of the scheduled three-day hearing, Adams Construction filed an objection to arbitration and a motion to dismiss the arbitration proceeding. Adams Construction argued, for the first time, that the arbitration provision in Adams Construction’s fee agreement with Barr Law Group was unenforceable. Adams Construction cited legal authority from Vermont and across the country suggesting that an attorney’s fiduciary duty and ethical obligations require that the lawyer take certain steps to ensure that a client’s consent to a pre-dispute, binding arbitration agreement is fully informed. These steps may include fully disclosing the risks of binding, pre-dispute arbitration clauses, identifying the legal rights a client forgoes in signing such an agreement, and giving the client a chance to consult with independent counsel before signing the agreement. Adams Construction alleged that nobody from Barr Law Group explained the legal implications of the arbitration agreement to Mr.
or Ms. Adams before or after they signed it, or advised them to get independent legal advice before signing the fee agreement. Nor did Barr Law Group explain to Adams Construction that the Vermont Bar Association provides a free arbitration service for resolution of attorney-client fee disputes. For these reasons, Adams Construction contended that the arbitration agreement was invalid and sought dismissal of the arbitration proceeding.

After losing the arbitration on all counts, an appeal was taken

We are persuaded by our own reasoning in Joder Building Corporation, as well as by those courts that have concluded that at some point prior to the actual arbitration hearing a party who participates in an arbitration proceeding without objecting to the validity of the arbitration agreement may waive the ability to make that objection...

We need not locate the line in this case, or define with precision the range of the trial court’s discretion; in this case, Adams Construction’s participation in the selection of arbitrators, filing of an answer and counterclaims, and active participation in extensive discovery and motion practice over a period of nearly six months was more than sufficient to give rise to a waiver. Our requirement of timely objections to arbitration jurisdiction was designed to avoid unnecessary investments in time and resources of exactly these types.

(Mike Frisch)

February 5, 2018 in Billable Hours, Clients | Permalink | Comments (0)

Saturday, February 3, 2018

Misconduct Charges Filed Against Justice Of Ohio Supreme Court

An Ohio Supreme Court Justice  has been charged by Special Disciplinary Counsel with ethics violations that include hearing cases brought by the office of his state Attorney General father.

The complaint can be found at this link as Frick v. DeWine. 

The allegations involve his active participation in Attorney General matters (he contended that he was orally advised by judicial ethics officers that he must recuse only when his father personally appears in a case) and, through various social media posts, "allowed his father ...to convey the impression that he is in a position to influence [the justice]." 

Attorney General DeWine is a candidate for the office of Governor. The allegations state that "Respondent attends public events with his father, and his image is used as part of his father's public office web site and his father's political and social media presence." 

Thus, it is alleged, a "reasonable  observer" would conclude the justice must recuse himself from cases where his father's office is counsel.

There are two specific complaints - one involving a bar applicant - of failure to recuse.

Another allegation involves a paid summer job given he solicited on behalf of his son - not a law student - with a prosecutor's office. 

There are extensive exhibits attached to the complaint, including an October 25, 2016 letter from the justice's retained counsel that essentially appears to confirm the oral advice regarding recusal.

Cincinatti.com reported on the charges

 A complaint accuses Ohio Supreme Court Justice Patrick DeWine of improperly hearing cases involving the office of his father, state Attorney General Mike DeWine.

The complaint filed Tuesday by a special disciplinary counsel also accuses the Republican justice from Cincinnati of improperly using his influence in soliciting Hamilton County Prosecutor Joe Deters to hire Patrick DeWine's son for a summer job.

The complaint seeks the justice's disqualification from hearing cases involving Republican Deters and from Republican Mike DeWine's office.

Patrick DeWine's statement Wednesday says he sought legal ethics experts' guidance before becoming a justice and has followed their advice "to the letter."

An Attorney General's Office statement Wednesday says it doesn't advise any judge "on recusal decisions."

A message seeking comment was left for Deters.

A judicial panel will hear the complaint.

From the Columbus Dispatch (Mike Frisch)

February 3, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Upstate Crimes Get Lawyers Suspended

The New York Appellate Division for the Fourth Judicial Department has suspended an attorney convicted of a misdemeanor false bomb threat to a federal building

On August 18, 2017, she was convicted upon her plea of guilty in the United States District Court for the Northern District of New York of falsely reporting an incident in the third degree (see Penal Law § 240.50 [1]; see also 18 USC § 13), a federal misdemeanor. In pleading guilty, respondent admitted that, on February 20, 2015, she placed a telephone call to the James M. Hanley Federal Building in Syracuse, during which she falsely reported the presence of a bomb in the building. Immediately after accepting respondent’s guilty plea, the court sentenced respondent to probation for a period of one year, imposed a fine in the amount of $20,000, and required her to perform 250 hours of community service and to participate in mental health treatment...

In determining an appropriate sanction, we have considered the serious nature of the misconduct underlying the conviction and the matters in mitigation submitted by respondent, including her statement that the misconduct was aberrational and occurred while she was experiencing extreme stress owing to work and family difficulties, which were exacerbated when a member of her immediate family was diagnosed with a serious medical condition. We have also considered that respondent has an otherwise
unblemished disciplinary history and that, since September 2016, she has participated in mental health treatment to address the issues that contributed to the misconduct. Finally, we have considered respondent’s expression to this Court of extreme remorse, which we find to be sincere. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended from the practice of law for a period of one year, effective October 25, 2017, or until the termination of her federal probation, whichever period is shorter.

Syracuse.com reported on the criminal case.

In an unrelated matter, the court suspended another convicted attorney 

On July 28, 2016, she was convicted upon her plea of guilty in Steuben County Court of attempted falsifying business records in the first degree (Penal Law §§ 110.00, 175.10). During the plea colloquy, respondent admitted that, in December 2015, she submitted to an assigned counsel program a voucher wherein she overstated the time she had spent meeting with certain clients and the expenses she had incurred in relation to three client matters. On October 12, 2016, the court sentenced respondent to a one-year conditional discharge and 200 hours of community service...

In August 2017, respondent notified the Grievance Committee of the conviction, at which time she asserted various matters in mitigation, including that her conduct underlying the conviction occurred while she was caring for seriously ill relatives and that the false voucher was primarily attributable to inadvertence and inexperience with assigned counsel billing procedures. Respondent further asserted that she had not, in fact, committed the crime of attempted falsifying business records in the first degree, that she had not acted with fraudulent intent, and that her guilty plea was a “lie” to avoid a trial before a judge who “had his mind made up” prior to trial. Respondent additionally stated that, after criminal charges were lodged against her, she suffered from various physical and mental health problems, which contributed to her failure to report the conviction to this Court within 30 days thereof

 The court rejected attacks on the conviction

we conclude that respondent should be suspended from the practice of law for a period of one year, effective October 25, 2017, and until further order of this Court. We further direct that, in the event that respondent applies to this Court for reinstatement following the period of suspension, the application must comply with the Appellate Division rule governing reinstatement of suspended attorneys (22 NYCRR 1240.16), and additionally satisfy the conditions set forth in the order entered herewith, including the submission of a medical report establishing that respondent possesses the mental and physical fitness to practice law, proof that she has completed 16 credit hours of continuing legal education concerning client billing and legal ethics, and proof that she has engaged a mentor attorney who will monitor her law practice for a period of two years to ensure that she is practicing law in a competent and professional manner.

(Mike Frisch)

February 3, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Good Deed Goes Unpunished

Recent Idaho Supreme Court discipline may be of interest to the students who read this blog as part of my old colleague Mike Oths' ethics class at Concordia University School of Law.

The attorney represented a client who was the plaintiff in a personal injury matter. The case settled to the client's satisfaction.

The client sought "immediate access to a portion of the funds to pay her living expenses." The attorney made two advances from his own funds or funds from the bank account of a company he owned in the total amount of $16,000.

The attorney and State Bar stipulated that the attorney had not properly explained the options to the client and that Rules 1.4(b) (communication) and 1.15(a) (handling entrusted funds).

He also stipulated to the sanction - 60 day suspension with 28 days of actual suspension followed by six months of probation. 

Notably, no financial harm was caused to the client or anyone else. Nor was there any financial benefit to the attorney. (Mike Frisch)

February 3, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, February 2, 2018

This Bud's For You

The North Carolina State Bar has filed charges against a former Superior Court judge who pled guilty to related criminal charges as related by the News & Observer

A former Wayne County judge has worked out a plea arrangement with federal prosecutors in which he admitted Thursday to offering a federal agent two cases of Bud Light and $100 to retrieve his wife’s text messages, in hopes the deal will result in probation instead of prison time for a felony.

Former N.C. Superior Court Judge Arnold Ogden Jones II no longer will face a second trial in federal court. Sentencing is set for the last week of April. Though it is up to the judge what the ultimate sentence will be, federal prosecutors have not protested the defense’s recommendation for probation.

The felony he pleaded to – promising and paying gratuities to a public official – could bring a two-year prison sentence or a fine of up to $250,000.

“We are appreciative that the court reviewed all matters relating to the first trial and as a result granted a new trial,” Raleigh attorney Joseph B. Cheshire V, a member of Jones’ defense team, said in a statement after the plea. “This gave both sides a chance to come to a resolution to this very difficult case. We look forward to this matter being over for Judge Jones and his family.”

Jones, who lost his bid for re-election in November, was awaiting a second trial after U.S. District Judge Terence Boyle vacated a jury’s verdict from an October trial.

The jury convicted Jones of three felonies – paying a bribe to a public official, promising and paying a gratuity to a public official, and corruptly attempting to influence an official proceeding.

Jones was accused in 2015 of texting a Wayne County deputy, who also is a member of an FBI gang task force, to get copies of text messages that were exchanged between two other numbers.

Jones, according to court documents in the case, wanted the texts because he questioned his wife’s fidelity to him and wanted to review exchanges between her phone and the man with whom he suspected her to be involved.

The FBI can obtain such records only with a warrant approved by a federal magistrate judge based on suspicion of criminal activity.

The defense contended that Jones was never told by Wayne County Sheriff’s Deputy Matthew Miller that what the judge had asked for would require a search warrant. Instead, the defense has said, the deputy proceeded with an operation that led to the judge agreeing to give Miller $100 instead of the beer and a “SWAT-team-like raid” at the judge’s Wayne County home in November 2015. Jones was arrested at gunpoint, driven to Raleigh and led into a federal courtroom in shackles for his first hearing in the criminal case.

Jones, a registered Democrat, was the N.C. Innocence Inquiry Commission chairman at the time of his arrest, and the defense team has contended he was led along by the deputy, in part, because of Jones’ position on the commission that helps free inmates wrongfully convicted of crimes.

In its effort to win the second trial, the defense team included those allegations and pointed out that they were prohibited from introducing evidence about allegations of misconduct with the deputy, previous incidents that have led to what they described as “a long internal rap sheet” of misconduct allegations while on the beat.

Jones, according to prosecutors, agreed to destroy evidence of the crime, including a disk purported to contain the text messages as well as text messages coordinating the exchange of cash for the disk. Evidence also included a video of Jones exchanging the cash for the disk on the steps of the Wayne County Courthouse while wearing his judicial robe.

No text messages were ever delivered to Jones.

Anne Blythe: 919-836-4948@AnneBlythe1

(Mike Frisch)

February 2, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Nowhere Man

The Nebraska Supreme Court has indefinitely suspended an attorney for at least two years

In the present case, the facts established by our order granting judgment on the pleadings show that Jorgenson violated the disciplinary rules in two separate incidents in the same year involving noncompliance and a lack of communication with clients, with the courts, and with the Counsel for Discipline. This represents a pattern of noncompliance with our disciplinary rules, and cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions. See State ex rel. Counsel for Dis. v. Gast, supra.

As an additional aggravating factor, we note that Jorgenson’s client, who was the appellant in the appeal to the Eighth Circuit, was left without counsel when respondent failed to appear for oral arguments before the Eighth Circuit. Rather than fully taking responsibility, Jorgenson blamed support staff which he evidently had failed to adequately supervise. Likewise, after receiving notification from relator that another client was seeking his file, Jorgenson took months to provide the file, blamed support staff for the delay, and minimized the importance of returning the client’s file.

We are unable to acknowledge mitigating factors, because we lack any record on the question. In the present disciplinary process, Jorgenson has failed to correspond with relator at several points, failed to respond to the formal charges by way of an answer, and failed to brief the issue of discipline as directed by this court. We have stated that responding to inquiries and requests for information from relator is an important matter, and an attorney’s cooperation with the discipline process is fundamental to the credibility of attorney disciplinary proceedings. See State ex rel. Counsel for Dis. v. Gast, ante p. 203, 903 N.W.2d 259 (2017); State ex rel. Counsel for Dis. v. Tonderum, 286 Neb. 942, 840 N.W.2d 487 (2013). In failing to file an answer to the formal charges, Jorgenson missed the opportunity to enlighten us about any additional mitigating factors or his current or future fitness to practice law. Failing to participate in the disciplinary process is a very serious matter. See id.

The case is State ex rel. Disciplinary Counsel v. Jorgenson and can be found at this link. (Mike Frisch)

February 2, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Nebraska Proposes Special Conflicts Rule For Small County Attorneys

The Nebraska Supreme Court has asked for comments on a rather unique proposed amendment to its Rules of Professional Conduct.

Rule 1.7 would add

(c) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer associated in a firm with another lawyer who is serving as a county attorney in a Class 1 or Class 2 county, as those terms are defined by Neb. Rev. Stat. § 23-1114.01, may represent a client with adverse interests to the State of Nebraska in a matter or other proceeding before a tribunal in
 a separate county if:

 (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same matter or other proceeding before a tribunal;

(4) the affected client gives informed consent, confirmed in writing, subject to the following restrictions:

(i) if the affected client has not reached the age of majority and is a party in a juvenile court proceeding, the juvenile court, on behalf of the minor child, shall provide provisional informed consent upon the attorney’s appointment, confirmed in writing, and, at the time of the first appearance, the juvenile court shall determine whether the informed consent is appropriate, upon consultation with the parties; and

(ii) the State of Nebraska shall not be required to provide informed consent.

(5) the member of the lawyer’s firm who serves as county attorney in a Class 1 or Class 2 county, as those terms are defined by Neb. Rev. Stat. § 23-1114.01:

(i) is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii) written notice is promptly given to the tribunal before which the matter is pending.

Comment

Special Considerations for County Attorneys in Small Counties

[36] Rule 1.7(c) is designed to address the problem faced by county attorneys and lawyers who associate in private practice with county attorneys in rural Nebraska counties. The State has a strong interest in ensuring that attorneys remain willing to serve in the role of county attorney, and Rule 1.7(c) seeks to avoid situations where attorneys avoid serving in such role due to conflicts of interest that would otherwise be imputed to attorneys associated in private practice with the county attorney. This rule provides factors that must be taken into consideration by the attorney associated with the county attorney before undertaking representation of a client with interests adverse to the State, and the Rule provides for safeguards in such situations, including informed consent, screening, and notification to the tribunal. This Rule is intended to promote the long-term viability of the practice of law in rural areas of the State, without eviscerating traditional conflict of interest principles expressed elsewhere throughout these Rules.

In my opinion, a special rule for a limited class of lawyers is a departure from the conventional (and longstanding) received wisdom of one set of rules that should apply to all attorneys regardless of practice.

I am open to ideas like this one and would be interested in reader views, if any (readers and/or views). (Mike Frisch)

February 2, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 1, 2018

!!

The Illinois Review Board has confirmed that a misappropriation was not dishonest and warrants a suspension

The Administrator charged Respondent in a one-count complaint with dishonestly misappropriating $16,805 in settlement funds that he should have been holding pending determination of his attorney's lien.

Following a hearing at which Respondent was represented by counsel, the Hearing Board found that Respondent had misappropriated the funds in question, but that he had not engaged in dishonesty with respect to the misappropriation. It recommended that Respondent be suspended for five months and until he deposits $16,805.60 into his IOLTA account, resolves the issue involving distribution of the funds, and successfully completes a professional responsibility seminar.

The Administrator filed exceptions, challenging the Hearing Board's finding of no dishonesty as well as its sanction recommendation.

The Review Board concluded that the Hearing Board's finding of no dishonesty was against the manifest weight of the evidence. It found that uncontroverted evidence established that Respondent knew his client had not authorized him to withdraw her funds from his IOLTA account but withdrew them anyway, which was dishonest. It thus reversed the Hearing Board's finding of no dishonesty and found that Respondent violated Rule 8.4(c) as well as Rule 1.15(e).

The Review Board recommended that, for his misconduct, Respondent be suspended for six months and until he deposits $16,805.60 into his IOLTA account, resolves the issue involving distribution of his client's funds, and successfully completes the ARDC Professionalism seminar.

A concurrence

Richard A. Green, specially concurring:

While I agree with my colleagues in the disposition of this matter, I write separately because I believe the time has come to clarify the rule in regard to attorneys taking funds from their trust accounts.

The funds in an attorney's trust account do not belong to the attorney! They belong to the client. An attorney may take funds only on two conditions: (1) The client authorizes the attorney to take the funds; or (2) a court order so authorizes the taking. Absent either of those two conditions, the taking is dishonest! No further proof of dishonesty is required.

The often-heard excuse that the lawyer has an interest in the funds because he or she is owed fees is a red herring. That claim does not change the fact that the funds still belong to the client. Even if the attorney is owed fees, the client must still authorize their payment. If (as here) there is a dispute regarding the fees, then the funds must be safeguarded until a court authorizes the withdrawal.

There should be nothing more sacred to the profession than the absolute safety of funds entrusted to lawyers.

Final discipline is imposed by the Illinois Supreme Court. (Mike Frisch)

February 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Statute Of Limitations In Oregon Bar Discipline

The Oregon Supreme Court rejected an asserted statute of limitations defense and suspended an attorney for one year

The accused was admitted to the Oregon State Bar in 1991. His primary practice areas have been criminal defense and family law. This disciplinary proceeding was based on the accused’s representation of a client, Carson Culp. The accused obtained a money judgment for Culp, but then, over a period of years, failed to take the actions necessary to collect the unsatisfied judgment, and, when Culp complained about the accused’s representation, the accused entered into an agreement with Culp to settle Culp’s potential malpractice claims, without advising Culp of the desirability of seeking independent counsel.

The bar case

In April 2013, Culp complained to the Bar about the accused’s representation. After an investigation, the Bar filed a formal complaint in January 2015. The case was tried in October 2016.

During the trial, the accused offered into evidence a letter he wrote to Culp in November 2015, attempting to settle the disciplinary proceeding. The letter states, “As you know, the bar is looking into my representation of you regarding the Split Rail property and the Ranger Court foreclosure. I would like to attempt to resolve this matter. Please give me a call.” After sending the letter, the accused called Culp and offered him $1,000, and later $1,500, in the hope that Culp would withdraw his complaint and the Bar would dismiss the disciplinary proceeding.

On review of the panel decision

the accused concedes the rule violations that the trial panel found, but challenges the trial panel’s decision on two grounds; he asserts that (1) the disciplinary proceeding was barred by the statute of limitations set out at ORS 12.110, and (2) that the trial panel erred in its assessment of aggravating and mitigating factors and its imposition of the one-year suspension. In response, the Bar asserts that lawyer disciplinary proceedings are not subject to any statute of limitations, and it asks this court to adopt the trial panel’s findings of fact and conclusions of law regarding the violations and to suspend the accused for not less than one year.

The court finds the attorney SOL on the SOL claim, rejecting an argument for the application of limitations by analogy to the civil rules

the accused argues that lawyer disciplinary proceedings are subject to the statute of limitations set out in ORS 12.110(1). In support of his argument, the accused relies on ORS 9.010, which provides, in part, that the Bar is a public corporation and is subject to certain statutes applicable to public bodies, including the Oregon Rules of Civil Procedure. ORS 9.010(2), (3)(d). In addition, the accused points out that ORCP 21 A provides that a statute of limitations defense may be raised through a motion to dismiss. The accused reasons that, because the Bar is subject to the Oregon Rules of Civil Procedure and ORCP 21 A provides a procedure for raising a statute of limitations defense, a lawyer may raise such a defense in a Bar disciplinary proceeding. According to the accused, the applicable statute of limitations is ORS 12.110(1), which provides that “an action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years[.]” The accused contends that, in this case, the two-year limitations period began to run in August 2012, when he notified Culp that nothing further could be done to collect the judgment, and, consequently, the Bar’s complaint, which was filed in January 2015, was time-barred...

We agree with the Bar. As mentioned, we have previously held that there is no statute of limitations defense in lawyer disciplinary proceedings.

Sanction

Given the accused’s multiple violations in this case, each of which was knowingly or intentionally committed; the extended time period over which the violations occurred; the substantial injury caused to Culp; the multiple aggravating factors, including the accused’s selfish motive and Culp’s vulnerability; and the limited mitigating factors, we conclude that a lengthy sanction is appropriate.

(Mike Frisch)

February 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Base Vile And Depraved

The District of Columbia Board on Professional Responsibility recommends disbarment of an attorney for conviction of a crime of moral turpitude per se

Respondent was admitted on motion to the District of Columbia Bar on August 8, 2011. On May 17, 2017, Respondent was convicted in the Superior Court of Delaware of one count of Continuous Sexual Abuse of a Child, in violation of 11 Del. C. § 776; one count of Sexual Abuse of a Child by a Person in a Position of Trust, in violation of 11 Del. C. § 778A; and three counts of Unlawful Sexual Contact First Degree, in violation of 11 Del. C. § 769. Each of these offenses is a felony.

Legal analysis

The legal standard for moral turpitude was established in Colson. The Court held that a crime involves moral turpitude if “the act denounced by the statute offends the generally accepted moral code of mankind[,]” if it involves “baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man[,]” or if the act is “contrary to justice, honesty, modesty, or good morals.” Id. at 1168 (citations omitted). The Court revisited the definition of moral turpitude in In re McBride, 602 A.2d 626 (D.C. 1992) (en banc) (McBride II), stating that “the idea of moral turpitude incorporates a revulsion of society toward conduct deeply offending the general moral sense of right and wrong.” Id. at 632-33. “Under the Colson and McBride II analysis of whether a crime or offense is one of moral turpitude, then, we examine whether the prohibited conduct is base, vile or depraved, or whether society manifests a revulsion toward such conduct because it offends generally accepted morals.” In re Sims, 844 A.2d 353, 361-362 (D.C. 2004)...

The Indictment and Verdict Form do not identify the particular subsection of § 778A under which Respondent was convicted and, therefore, the Board has examined the record to determine whether there is clear and convincing evidence that Respondent was convicted under § 778A(1). We find that there is. We looked to the language in the Indictment to attempt to identify the precise subsection under which Respondent was charged and convicted, and did not examine the conduct at issue. Count II of the Indictment charges that Respondent did intentionally have sexual contact involving act of Unlawful Sexual Contact [sic] by having the victim touch his penis and by touching the breasts, buttocks and vagina of K.S., a child who was 8 to 9 years old, a child who had not yet reached that child’s sixteenth birthday, caused the child to have sexual contact with the defendant and that defendant stood in a position of trust, authority or supervision over the child. This conduct is covered by § 778A(1) only. It is not covered by § 778A(2) or § 778A(3). The jury returned a guilty verdict on Count II, and thus, we conclude that Respondent was convicted under § 778A(1).

Having concluded that a conviction under § 778A(1) inherently involves moral turpitude, that Respondent was convicted under § 778A(1), and taking into account Respondent’s failure to submit any statement on the issue, the Board agrees with Disciplinary Counsel that Respondent’s conviction for intentional sexual contact with someone over whom he exercised authority is a crime involving moral turpitude per se and that he should be disbarred.

This case is In re Micah Smith.

The board did not cite to this applicable case that I prosecuted and wrote about in No Stone Left Unturned. The Bewig bar case is the most extreme example of how White Male Big Firm privilege works in both the criminal and disciplinary systems of the District of Columbia.

I also represented the bar in the en banc McBride case. (Mike Frisch)

February 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)