Wednesday, April 2, 2014

Five Strikes And Not Out

We just reported a suspension of a year and a day in Pennsylvania for a third instance of neglect, with two justices dissenting for a more severe sanction.

Then, we see this decision imposing censure by the New Jersey Supreme Court.

The Disciplinary Review Board noted

We note that this is respondent’s fifth brush with the disciplinary system. His previous run-ins have resulted in an admonition, two reprimands and a censure. All but the censure were imposed before respondent began his representation in the matter before us. However, the representation here was ongoing when the censure was imposed. Not only has respondent failed to learn from mistakes, he has, as we observed in our decision imposing his 2011 censure, a "propensity to violate" the Rules...

I've been teaching my classes about the profound differences between state bar regulatory systems.

I wonder how Pennsylvania and New Jersey (which, I imagine, share authority over a large number of attorneys) deal with the disparate standards in reciprocal discipline matters. (Mike Frisch)

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

From Stockbridge To London To Geneva

The Massachusetts Supreme Judicial Court has affirmed and reversed, in part, a judgment based on the following facts

This case arises out of a thirty-year-old art theft in Berkshire  County and the plaintiff's eventual recovery of seven stolen paintings from the defendant, Robert M. Mardirosian, a Massachusetts attorney who had represented the suspected thief, David Colvin, prior to Colvin's death in 1979. The facts surrounding the defendant's botched attempts to profit from having found the paintings, and the circuitous path to their recovery, from Stockbridge, to London, to Geneva, and eventually back to the plaintiff, are set forth in detail in United States v. Mardirosian, 602 F.3d 1, 4, 5, 6 (1st Cir.), cert. denied, 131 S.Ct. 287 (2010).  Suffice it to say, Robert Mardirosian was convicted by a jury in Federal court of one count of possessing, concealing, or storing the stolen paintings in violation of 18 U.S.C. § 2315 (2006).  Id. at 4. The United States Court of Appeals for the First Circuit affirmed both his conviction and his sentence of seven years in prison and three years of supervised release.  Id. at 4, 6-7.  Mardirosian also was ordered to pay a $100,000 fine and to return the paintings still in his possession.  Id. at 7.

The case before us arises not from this criminal prosecution, but from civil claims brought by the victim of the theft, Michael Bakwin, against Mardirosian in Superior Court while the criminal proceedings against Mardirosian were pending.  Bakwin sued Mardirosian for fraud and conversion in order to recoup over $3.4 million he had spent in his efforts to recover the stolen paintings. 

The jury awarded $3 million in damages and found seven frausulent transfers of property. The court here sorted the mess as follows

The judgment with respect to the Falmouth residence is affirmed.  The judgment with respect to the Citizens Bank savings account is reversed and remanded for entry of judgment against Robert Mardirosian.  The judgment with respect to the Citizens Investment Services brokerage account is affirmed.  The judgment against David Mardirosian with respect to the Mardirosian Riverside Trust is reversed, and the case is remanded for entry of a money judgment against David Mardirosian in the amount of the value of the asset at the time of transfer subject to adjustment as the equities may require.

The attorney was disbarred.

The case is Bakwin v. Mardirosian, decided April 2, 2014. (Mike Frisch)

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

Three Strikes And Almost Out

The Pennsylvania Supreme Court ordered a suspension of a year and a day in a matter in which the attorney had neglected a criminal appeal to which he had been appointed.

The Disciplinary Board noted that the matter was the attorney's third instance of professional discipline for similar conduct and that he had not learned from the first two disciplinary encounters.

He had twice been informally admonished.

At the disciplinary hearing, the attorney admitted to a drinking problem but did not present evidence of rehabilitation. He is presently suspended for failure to pay costs.

Justices Baer and Stevens dissented and would impose a three-year suspension. The dissenters would order greater sanctions for "recidivist" violators.

Justice Baer expounded on his views in a second matter in which an attorney was suspended for a year and a day. The matter was the attorney's fourth disciplinary sanction in ten years. (Mike Frisch)

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

Bandages And Waste

An illinois attorney has consented to disbarment as a result of a conviction summarized in the statement of charges

The Indictment alleged that Movant, while  serving as a Cook County Commissioner, engaged in an extortion scheme involving  his conduct in extorting a company to hire a minority subcontractor with whom  Movant had financial ties and which involved kickbacks from the sale of bandages  to Stroger Hospital and other public hospitals. He was also charged with taking  a $5,000 payoff in connection with the development of a waste transfer station  in Cicero, Illinois.

On July 1, 2013, Movant pled guilty, before the  Honorable Gary Feinerman, to Count Five of the Indictment, conspiracy to commit  extortion, in violation of Title 18, U.S.C. sec. 1951(a). In his plea agreement,  Movant admitted that between 2008 and 2011, he extorted an unnamed company,  which was awarded a contract to help improve Cook County Hospital's revenue  cycle, into using his friend and co-defendant, Ron Garcia, and Garcia’s  business, Chicago Medical Equipment & Supply, Inc., as a minority subcontractor  in return for a $100,000 bribe. Garcia forgave a $100,000 mortgage loan he made  to Movant in exchange for Movant’s assistance in steering the sub-contract to  Garcia’s company. Movant later tried to disguise his receipt of the bribe by  claiming that he had repaid the purported loan and by producing false invoices  on his law office letterhead which falsely indicated that he had performed legal  work for one of Garcia’s companies. In pleading guilty, Movant also admitted to  the following conduct: that he also sought to obtain orders of Dermafill  bandages from Cook County in return for kickbacks; sought to obtain approval for  a waste-transfer station in return for kickbacks while a Town of Cicero  official; and evaded his federal income taxes between 2007 and 2010 by  misreporting the income from his law office.

He was sentenced to a 132 month term of imprisonment. (Mike Frisch)

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

Tuesday, April 1, 2014

The "Susceptible Boy-Lawyer"

The Illinois Review Board has proposed a one-year suspension with six months stayed and probation for misconduct of an attorney who had represented himself.

The misconduct involved criticism of judges, for example

In January 2011, following a hearing at which  Respondent failed to appear, Judge Kennedy issued an order denying Respondent's  outstanding motions. Respondent filed a motion to reconsider the order on  February 23, 2011. Respondent alleged that Judge Kennedy improperly ruled on  Respondent's motions because the case had been set only for a status. Respondent  stated, "Such back-alley justice makes a mockery of the legal procedures that  gives parties notice of hearing and a right to be heard, procedures  traditionally sets our legal system form that of oppressive dictorial regimes."  In December 2011, Respondent filed a pleading to substitute Judge Kennedy,  referring to Judge Kennedy and Attorney Janello as "predators" and to Judge  Kennedy as a "scourge on his profession." Respondent referred to opposing  counsel Mr. Janello as a "susceptible boy-lawyer" who learned  from Judge Kennedy the power of corruption so he "can accept a judgeship,  representing the next generation of Illinois corruption."

There was mitigation

We recognize Respondent offered evidence mitigating  his misconduct. Most importantly, Respondent's misconduct in this matter arose  out of a case in which he represented himself. He did not jeopardize his clients  by engaging in the misconduct at issue here. In fact, according to Respondent,  he has represented clients without complaint. The Hearing Board found in  mitigation that Respondent acted without corrupt or dishonest motive and that he  testified he recognized that his language was inappropriate. Respondent has not  been previously disciplined. Respondent called two character witnesses who  testified as to his honesty and charitable acts. Respondent testified as to his  significant volunteer activities, including volunteering with the Red Cross,  volunteering with his neighborhood association, and providing some pro bono  legal services through the Land of Lincoln Legal Assistance Foundation. He is  active in his church and in the local Masons Lodge. At the time of the conduct,  Respondent was a partner in a law firm with his significant other and mother of  his three children, Christina Manuel. He is no longer a partner with Ms. Manuel  but he continues to work for Ms. Manuel. Finally, in mitigation the Hearing  Board found that Respondent's firm has a general practice and serves a lower  socioeconomic community in the Champaign area, a community that is underserved  by the legal profession.

The board found a violation of Rule 4.4(a), which the hearing board had not found. (Mike Frisch)

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

Yes, No and Maybe So

A verdict for a plaintiff law firm for fees allegedly due on a contingent fee contract was reversed by the New York Appellate Division for the First Judicial Department.

There was a problem with an inconsistent jury verdict

Plaintiff, Bellinson Law, LLC, brought this breach of contract claim against its former client, defendant Robert Iannucci, to recover an unpaid contingent fee following its representation of defendant in a federal civil rights action. Pursuant to a Retainer Agreement and an Addendum to the Retainer Agreement (Addendum), defendant agreed to pay plaintiff a contingent fee if the case settled before jury selection was completed. However, when the case settled prior to trial for the amount of $2.125 million, defendant refused to pay plaintiff the agreed upon fee, asserting that plaintiff failed to perform under the contract. Plaintiff then commenced this action, seeking the unpaid attorney fees.

During the jury charge, the trial court presented the jury with a verdict sheet containing the three following interrogatories: (1) was there a contract between the parties? (2) did plaintiff perform its obligations under the contract? (3) was defendant obligated to pay plaintiff for its services under the contract? Following deliberations, the jury answered question one yes, concluding there was a contract between the parties, but responded no to question two, finding that plaintiff had not performed its obligations under that contract. When asked by the court, in response to the third question, if the defendant was obligated to pay plaintiff for its services under the contract, the jury answered "yes." Before the jury was discharged, defendant's counsel asked to speak to the court and a side bar was held. We do not know what was discussed at the side bar. The jury was then discharged.

The appropriate remedy is a new trial. (Mike Frisch)

April 1, 2014 in Clients, Economics | Permalink | Comments (0) | TrackBack (0)

Tennessee Rejects Procedural Challenges To Imposition Of Discipline

From the web page of the Tennessee Supreme Court

A suspension of Knoxville attorney Roger D. Hyman’s law license has been upheld by a unanimous opinion of the Tennessee Supreme Court.

In 2010, the Board of Professional Responsibility filed a petition for discipline against Mr. Hyman for two unrelated complaints. The petition charged that Mr. Hyman communicated with a person who he knew was represented by counsel, threatened a litigant, filed a lien against a litigant that was later declared void, failed to appear at a hearing, and failed to timely pay sanctions required by a court order.

In 2011, a hearing panel found that Mr. Hyman violated multiple Rules of Professional conduct and that he showed a “complete disregard for the Rules.”

Mr. Hyman appealed the hearing panel’s decision to the Knox County Circuit Court, which affirmed the judgment of the hearing panel. Mr. Hyman then appealed to the Supreme Court, challenging the method for selecting the hearing panel, the admission of prior discipline, and the standards that the panel used to determine the sanctions.

The Supreme Court upheld the decision of the hearing panel, noting that attorneys subject to discipline do not have a right to participate in the selection of the hearing panel, that Mr. Hyman’s five prior incidents of discipline were relevant to the imposition of current sanctions, and that the hearing panel applied the proper standards for determining Mr. Hyman’s sanction.  The Court affirmed Mr. Hyman’s six-month suspension from the practice of law.

Read the opinion in Roger David Hyman v. Board of Professional Responsibility authored by Justice Janice M. Holder.

In one matter, the attorney represented the husband in a divorce case. The client's "only significant pre-marital asset consisted of an assortment of sports cards and a collection of 'Transformer' memorabilia" which the client claimed were in his wife's possession.

She denied it.

The attorney called the wife a "liar and a thief" at her deposition and asked her if English was her "native language."

After the divorce, the attorney flied a replevin action seeking the cards and Transformers or $1 million in damages. The attorney filed a notice of lien les pendens that was declared void. (Mike Frisch)  

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

Conviction May Be Moving Violation

The Ohio Supreme Court has suspended an attorney convicted of felony offenses.

The Upper Arlington News has the story

An Upper Arlington man convicted last month in Franklin County Common Pleas Court of a charge related to child pornography may be forced to move away from a local elementary school.

William Feldman, 67, of 4295 Lyon Drive, was sentenced Jan. 30 to three years' probation and ordered to register with the Franklin County Sheriff's Office as a Tier II sex offender after he pleaded guilty to a felony charge of pandering sexually oriented matter involving a minor.

Upper Arlington City Attorney Jeanine Hummer said both her office and the Upper Arlington Police Division intended to notify Feldman that his conviction and classification as a sex offender will require him to relocate.

She said the police division has determined Feldman currently lives within 1,000 feet of Greensview Elementary School.

"He will be instructed that he will be required to relocate," Hummer said Feb. 6. "The police submit that first notice once they make a determination.

"I just received a letter sent out from (Upper Arlington Police) Sgt. (John) Wilhelm notifying Mr. Feldman that he falls within the residential restrictions. We will be following up with our own correspondence, as well."

Hummer said she had found no deadline in the law for Feldman's relocation, and the city typically attempts to achieve compliance without taking legal action.

However, the city can enforce an injunctive action, she said.

According to Franklin County Chief Deputy Sheriff Rick Minerd, the Franklin County Internet Crimes Against Children (ICAC) Task Force, which teams with local law enforcement officials, searched Feldman's home in May 2012 after task force officials made contact with him in an Internet chat room.

"They found child porn on his computer," Minerd said. "He told investigators he started viewing child porn in '09.

"He admitted he looked at thousands of child porn images. They also found videos in a (computer) folder."

Feldman originally faced eight counts of pandering sexually oriented matter involving a minor, but seven of those charges were dismissed after he pleaded guilty to a single count.

In addition to probation and being required to register as a sex offender for the next 25 years, he can have no Internet access at his home.

His attorney, Eric Hoffman, said Feldman was viewing the material in his home and was not sharing it with others.

Hoffman added that Feldman has no previous criminal record, and might challenge any action to force him to move from his home of the last 20 to 25 years.

"I was aware the law existed," Hoffman said. "Whether the city was going to pursue that recourse was something we were going to wait and see.

"I don't know yet (if he'll relocate). I know there are some defenses."

The local law prohibits anyone who is convicted of or who has pleaded guilty to a sexually oriented or child-victim offense from living within 1,000 feet of any school premises, licensed daycare facility, preschool, public park, swimming pool, library or playground.

"At the time Mr. Feldman purchased his home, this law did not exist," Hoffman said. "There's a good chance we would be defending that cause of action, especially since that law did not exist when he moved to Upper Arlington."

According to the Ohio Supreme Court's attorney directory, Feldman has a law license from the University of Cincinnati.

The directory states Feldman was admitted to practice law in Ohio in November 1973, but his license currently is inactive.

(Mike Frisch)

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

Monday, March 31, 2014

Sixteen Years Later, 61 Days

The Kentucky Supreme Court concluded that an attorney had represented divergent interests in violation of conflicts of interest rules.

The court found that the attorney had represented a criminal defendant and the estate from which he would be disinherited under the slayer's statute.

The court rejected charges that the attorney charged a contingent fee in a criminal case.

The court imposed a sixty-one day suspension, noting the delay

A litany of words and phrases may be used to describe the long journey of this disciplinary case and the factual backstory preceding it, but words like "swiftness," "celerity," "dispatch," or "alacrity" are not included in the lexicon. This disciplinary proceeding and the facts giving rise to it cover a sixteen-year period: a death; an indictment; a manslaughter trial; a conviction and sentencing; an unsuccessful criminal appeal; an order of post-conviction relief based on ineffective assistance of counsel; and two sets of disciplinary complaints against Respondent, who represented the accused in the criminal case and represented him and others in related matters...

It was the unnatural death of one man that set in motion the chain of events.

The court rejected numerous ethics charges but found a conflict violation

The Court has been hesitant to find ethical violations in most probate settings. Indeed, Rule 1.7 authorizes multiple representations where the representation is not adversely affected and the clients consent to the representation. Respondent obtained waivers from each of the Manning brothers and maintained that attorney-client confidentiality was never an issue between her, the executor and the Manning brothers The fact is that the interests of the Manning brothers were diametrically opposite because of Kentucky's slayer statute. Respondent could not have reasonably believed that the representation would not be adversely affected when one of the clients is on trial for killing the testator and a negative outcome in that case would bar that client.from taking under the will. No waiver could make that conflict disappear. Moreover, Respondent prevailed on the executor to use estate funds to pay for expert witness fees in Manning's criminal defense. This was clearly an unallowable use of funds from an estate where such an expenditure had nothing to do with the administration of the estate and where the outcome of who was entitled to the benefits of the estate was clearly in issue. It is noted also that the transaction was of financial benefit to Respondent as well. Had the estate not paid the bill, Respondent would have likely been obligated to pay it.

A dissent would find that the attorney engaged in incompetent representation and would suspended for 120 days. (Mike Frisch)

March 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reasons Other Than Mental Heath Issues

the Vermont Supreme Court has held that the denial of admission to a law graduate did not violate the Americans with Disabilities Act.

The court found reasons other than mental health issues precluded a finding of present fitness

...we recognize the need for compassion and respect towards those who suffer from mental health disabilities, the vast majority of whom are able to effectively treat their symptoms and contribute productively to society.  We do not take lightly the decision to deny an applicant for unfitness.  Nevertheless, we hold that applicant is unable to meet his burden of proof for admission.  The record evidence amply supports the findings, which in turn support the conclusion that applicant’s conduct—not his mental health history or status—demonstrates his unfitness to practice law.  As outlined by the commissioner, these behaviors include: applicant’s statements—made without supporting evidence—before the Vermont Judicial Retention Committee, during oral arguments before the Maryland Court of Appeals, and before the commissioner in this case regarding a Vermont magistrate, whom he accused of lying and conspiring to prevent his admission to the bar of New Hampshire; applicant’s continued claims that he is competent to provide drug counseling to narcotics users without a license; and most especially applicant’s disturbing conduct in various forums, including this proceeding, which the commissioner was able to observe firsthand.  As noted, the commissioner found that applicant’s obsession with the perceived “corruption” of the family court is “pervasive” and prevented applicant from focusing on the issues in this matter and other proceedings.  The commissioner found, with reason, that applicant’s demonstrated inability to focus and to “filter his presentations” in a variety of legal forums would render his representation of clients other than himself highly problematic, and demonstrated an inability to “make proper presentations of fact and law on behalf of a client or to focus on the client’s needs in or out of court.”  The commissioner also observed, again with reason, that if applicant believed he could provide drug counseling services without training or a license, his judgment in representing clients in areas outside his area of expertise and competence was highly questionable, potentially “putting his clients at financial and emotional risk.” 

The applicant first sought admission in Vermont in 2004. (Mike Frisch)

March 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Amorous But Not Unethical (Except Once)

The Louisiana Attorney Disciplinary Board rejected all conflict of interest charges save one arising out of the extremely active social life of an attorney.

Finding that only one of the attorney's many sexual relationships with women he had encountered in his law practice violated attorney ethics rules, the board has recommended a fully-stayed 30 day suspension.

The adverse finding

The [hearing] committee found that Respondent represented Ms. W. in a divorce action. The only matter left to complete in the divorce action was to toll the six months waiting period to confirm the divorce. During this period of waiting Ms. W. called Respondent to come have a drink at her house. Respondent did go to her house and had a sexual encounter.

By my rough count, the Office of Disciplinary Counsel called eight other witnesses who testified concerning their relationships with the attorney

The Committee noted, and the Board agrees, that with the exception of M. W. “the women who had sexual contact with Respondent were no longer clients at the time the sexual contact occurred based upon their belief and understanding that Respondent was no longer their lawyer or that Respondent manifested to them that he had withdrawn as their lawyer.” Based upon the many days of testimony provided by Respondent and his former clients, the Board concurs with this finding of the Committee.

The board determined that the attorney should not pay costs for the charges that were rejected. (Mike Frisch)

March 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Who Let The Dog In?

The Georgia Supreme Court has disbarred an attorney for serious billing misconduct notwithstanding her distinguished prior record as an attorney.

One issue was waived

Because M. failed to raise an issue at the evidentiary hearing regarding the presence of the client’s dog at the hearing, we agree with the Review Panel that she may not raise the issue for the first time long after the hearing has concluded.

The misconduct took place when the attorney was in financial distress

M. , who was admitted to the Bar in 1983 and had a distinguished career, was having financial difficulties in 2008 while working part-time as a lawyer and part-time as a real estate agent. As a result, she sought a loan from a lawyer with whom she was acquainted. The lawyer declined to loan M. money, but offered to associate her in a litigation matter in which the lawyer and an associate represented two clients in litigation involving a trust of which the clients were beneficiaries. M. accepted the offer; the lead lawyer and M. agreed that M.’s fee would be $200 per hour. The lawyer paid M. $2,000 as a retainer on September 2, 2009, and additional sums totaling $22,500 through March 2010. The lawyer considered these sums to be an advance to be applied against fees earned. M. did not keep contemporaneous time records, but reconstructed her time sheets and invoices from memory and from notes on her calendar or computer.

The attorney submitted a number of billing statements, which led to this finding

The special master found that by submitting wholly unsupported and materially misleading time sheets and invoices to her client, misrepresenting her hours and fees to the court, and misrepresenting in the disciplinary process the payments received, M. committed several violations of the Rules of Professional Conduct. M. has no prior disciplinary record, but found as aggravating factors that there were multiple offenses, submission of false statements or evidence in the trust litigation and the disciplinary process, refusal to acknowledge the wrongful nature of her conduct, and substantial experience in the practice of law. The special master determined that the proper sanction was disbarment.

The court majority agreed with the special master.

Chief Justice Thompson and Justice Melton dissented and would impose a lesser sanction. (Mike Frisch)

March 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, March 29, 2014

Expanding Pro Bono In D.C.

From the web page of the District of Columbia Bar

The District of Columbia Court of Appeals seeks comments on a proposed amendment to D.C. App. R. 49 that would create an exception allowing internal counsel who have not been admitted to the D.C. Bar to provide pro bono legal services.

The Committee on Unauthorized Practice of Law made the recommendation to the court on September 19, 2013, stating that these changes would help address the need to increase access to justice in the District. The amendment would permit attorneys who are members in good standing of the highest court of a state or territory and are supervised by an active D.C. Bar member to perform pro bono work in the District. The work must be assigned or referred by an organization that provides pro bono legal services to the public for free.

 

Written comments regarding the proposed rule amendment are due by May 20, 2014. Ten copies should be sent to the Clerk, D.C. Court of Appeals, 430 E Street NW, Suite 209, Washington, DC 20001.

Read the full notice.

My comment --good idea. (Mike Frisch)

March 29, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, March 28, 2014

How Far? This Far

Opening with a rhetorical question, the Iowa Supreme Court dismissed with prejudice a bar disciplinary matter

How far can a lawyer go to assist a client in preserving assets from a potential creditor?

The client, a wealthy farmer, had shot and killed a neighbor. He was the defendant in an action by the decceased's estate.  The client vowed that the widow "would not get one dime" of his money.

The lawyer was involved in the transfers of the client's assets to his wife and later to relatives.

Here, the court affirmed findings that the attorney had been duped by the client rather than knowingly participted in a fraudulent transfer of assets.

KCRG.com had this report in the civil case. (Mike Frisch)

March 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Twenty Years After

The New York Appellate Division for the Third Judicial Department denied reinstatement to a former attorney disbarred as reciprocal discipline for a disbarment imposed in Florida.

The only notable aspect of the order here was that it noted that Florida precluded any possiblity of reinstatement "for at least twenty years. " (Mike Frisch)

 

March 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Malpractice Coverup Leads To Crime, Suspension

Caitlin McCaffrey has this story on the web page of the Ohio Supreme Court:

A Cincinnati attorney who was  sentenced by a federal court to five years probation for creating and  submitting fraudulent documents to the Internal Revenue Service and who  fabricated an e-mail during litigation against her and her firm has been  suspended indefinitely from the practice of law today by the Ohio Supreme  Court.

In a 6-1 decision, the court  ruled that Suzanne Prieur Land engaged in conduct that reflects adversely on  her trustworthiness and engaged in deceitful, dishonest, or fraudulent conduct  that was prejudicial to the administration of justice and adversely reflects on  her fitness to practice law.

While working in a large law firm  in 2010, Land created and submitted fraudulent documents to the IRS on two  separate occasions. She was trying to cover up mistakes she made during the  drafting of estate-planning documents that cost her clients hundreds of  thousands of dollars in tax benefits.

Also in early 2010, Land  fabricated an e-mail in order to boost her credibility in a malpractice lawsuit  where she was facing accusations that she did not properly advise her client. During  a disciplinary hearing, Land testified that she felt overwhelmed by the  pressure from her firm and challenges to her professional skills, and that the  scrutiny led her to greater alcohol consumption and self-medication with  anti-anxiety drugs she purchased over the Internet.

Land pled guilty to corruptly  attempting to obstruct and impede the due administration of the IRS in 2012.  She was sentenced to five years probation, including three years of home  detention, and ordered to pay penalties of $75,000, abstain from alcohol use,  and continue mental-health treatment as deemed necessary by her probation  officer.

The court, in today’s per curiam  (not authored by a specific justice) opinion, adopted the findings of the Board  of Commissioners on Grievances & Discipline. The court agreed with the  board’s recommendation that Land be suspended indefinitely from practicing law and  that she cannot petition for reinstatement until she completes her federal  probation. Also, upon her petition for reinstatement, Land must present proof  that she has satisfactorily completed, or is in compliance with, her Ohio  Lawyers Assistance Program contract, and that she continues to receive  treatment from a therapist until the therapist decides it is no longer needed.

The majority opinion  was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer,  Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M.  O’Neill.

Justice Terrence  O’Donnell dissented, stating that he would start the suspension after the  federal probation has been served.

2013-0940. Disciplinary Counsel v. Land, Slip  Opinion No. 2014-Ohio-1162.

March 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 26, 2014

Day Of Atonement

The New York Appellate Division for the Second Judicial Department imposed disbarment of an attorney convicted of offenses relating to the following

The respondent admitted that between February 2006 and June 2011, he was a member of Congregation Aish Kodesh. In or about that time, the respondent was lay treasurer of the congregation. As such, he had authority to transfer monies between bank accounts maintained by the congregation. Admittedly, the respondent transferred $634,960 from accounts of the congregation to accounts under his control, for personal use, without authority. In mitigation, the respondent asserted that he had been unable to maintain his law practice due to a series of family illnesses and had used the funds to pay personal expenses, with the expectation that he would repay it.

On April 9, 2013, the Supreme Court sentenced the respondent, inter alia, to an indeterminate term of imprisonment of 1⅓ to 4 years, and ordered him to make restitution in the sum of $634,960.

(Mike Frisch)

March 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Exoneration Or Unforgivable Sin?

The Oklahoma Supreme Court, in its words, exonerated a criminal prosecutor on allegations of misconduct during the course of a rape trial:

The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Jennifer Adina Layton (respondent/Layton), with one count of professional misconduct associated with her prosecution of three men in a rape trial. The Bar Association alleged that the respondent: 1) neglected to disclose to the court and opposing counsel that her witness was going to testify inconsistently with his previous police statement; and 2) falsely denied that she had spoken to the witness before and/or during the trial. The Bar Association sought the "appropriate" imposition of discipline and the payment of costs. After the Professional Responsibility Tribunal (PRT) recommended a public censure, the Bar Association argued that "some length" of suspension is more appropriate. The respondent argues that she should not be disciplined because: 1) the circumstances surrounding the alleged events involved a miscommunication/misunderstanding with the trial judge; and 2) if she violated any rules, because it was an inadvertent mistake, she did not do so with any intent or for any ulterior motive. Upon de novo review,we agree with the respondent. The cumulative circumstances show that trial court failed to create a transcribed record of bench conferences and chamber conferences in this serious first degree rape trial. That, coupled with the complaining defense attorney's in-court behavior, and the contemporaneous testimony of the respondent, reflect the nature of the proceedings. Under the facts presented, the respondent's violation does not require the imposition of discipline. The bar disciplinary proceeding is dismissed. The respondent is exonerated of the charges, and the application to assess costs is denied.

Justice Watt dissented

The majority attempts to make Layton's lack of candor with the court everyone's fault except that of the respondent, the one and only individual who had control over what came out of her mouth. Furthermore, it imposes upon the trial court an unwarranted measure of blame.

At all times concerning the charges of misconduct respondent, an assistant district attorney, was not only an officer of the court but was the representative and the face of the Sovereign State of Oklahoma in prosecuting this case. According to Layton's profile, she served in this position for some eight (8) years. It is difficult to believe that, as an experienced prosecuting attorney, the chaos in the courthouse the day she encountered her witness was much different than any contested criminal proceeding in which she had participated. It is common knowledge that our County Courthouses are, for the most part, completely inadequate and provide little opportunity for "quiet conversations" with anyone. Most often, attorneys are forced to conduct such interviews in hushed tones and in crowded hallways filled with other parties and their attorneys attempting to do the same.

When directly asked by the trial judge if she had spoken to her witness, Antral Miller, prior to trial, she lied to the court in answering his question - "NO."!

In response to the charges brought against the respondent, she wants this court to believe that she was confused by the trial court's question; that she did not intend to mislead the court; and that her answer produced no harm and, therefore, no foul.

The record reflects that respondent had at least two other opportunities to proffer the correct and truthful answer (that she had, in fact, talked to Mr. Miller). Once during Mr. Miller's testimony at trial, and also during a meeting in the judge's chambers with and in the presence of the judge and opposing counsel. Yet, respondent continued to perpetuate her original lie to the court...

As a former prosecutor, criminal defense lawyer, and trial court judge, it has been and is my continuing opinion that the one unforgivable sin of any attorney/officer of the court is - "TO LIE TO THE COURT.".

The majority acknowledges that '[t]he record is clear that Layton was not clearly candid to the trial court that she spoke with Miller before his testimony, or what was discussed.' Nevertheless, it adopts the respondent's sugarcoated version of this transgression and the majority opinion signs off by dismissing the charges against her. Accordingly, I would impose costs against this respondent and further impose a lengthy period of suspension based upon the facts before us and for that reason I respectfully dissent.

(Mike Frisch)

March 26, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

I Could Write A Book

The Oklahoma Supreme Court has lifted an interim suspension and imposed a deferred two-years and a day  suspension of an attorney for alcohol-related traffic offenses.

The court's opinion notes an interesting biographical fact

The respondent was admitted to the Oklahoma Bar Association and his name was entered on the Roll of Attorneys in 1986. He practiced law in Tulsa from 1986 until 1996. He is presently an author who published his first book while still practicing law and subsequently published 31 books, including many legal thrillers. He has over ten million books in print, which have been translated into more than two-dozen languages. He has won many prestigious awards for his writing. He also teaches private fiction-writing seminars, teaches writing at Rose State College and legal education courses throughout the country. The trial panel reports in its October 31, 2013, report that within the past year, the respondent has taught CLEs in Wisconsin, New Mexico, Alaska, Ohio, Missouri, Nevada, California, and Indiana.

Two dissents joined by three justices would impose an active suspension in light of the felony conviction.

The attorney does not actively practice law and suffers from alcoholism. characterized by binge drinking.

His Wikipedia page is linked here.  (Mike Frisch)

March 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

License Revocation For Self-Reported Thefts

An attorney who gambled away his law license has accepted revocation from the Wisconsin Supreme Court

In November 2012 Attorney W. self-reported to the Milwaukee County District Attorney's Office (MCDA) and to the OLR that he had stolen money from his IOLTA client trust account to fund a severe gambling addiction and to pay personal bills.  The funds in Attorney W.'s trust account were generated from money judgments that Attorney W. secured on behalf of various clients.  Attorney W. admitted that he had taken a significant amount of money from his trust account over the past several years; he was not certain of the exact amount.

In March 2013 Attorney W. provided the MCDA with a partial accounting in which he identified dozens of clients from whom he had taken funds totaling $450,923.04.  In May 2013 Attorney W. provided the OLR with a second partial accounting showing that Attorney W. had taken $784,734.87 from numerous clients.  Attorney W. estimated this second partial accounting was "90% complete."

As to sanction

We agree that revocation is warranted and necessary. This has never been in dispute.  Attorney W. admitted he used his law practice to misappropriate over three-quarters of a million dollars from numerous persons and entities.  Attorney W. acknowledged that he cannot successfully defend against misconduct allegations and further acknowledges that he will owe restitution to the clients he has harmed.  He notes that he is represented by counsel regarding his criminal liability and has opted to proceed pro se in this disciplinary matter.  We grant the petition and we revoke Attorney W.'s license to practice law in Wisconsin.

Because of the attorney's cooperation, the court declined to impose costs. (Miwe Frisch)

March 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)