Monday, June 12, 2017
The Pennsylvania Supreme Court accepted the consent disbarment of an attorney convicted of tax crimes rooted in estate thefts.
The United States Attorney for the Eastern District of Pennsylvania described the crimes
Randolph Scott, 72, of Doylestown, PA, an attorney whose practice included estate and probate matters, was sentenced today to 48 months in prison for defrauding a client’s estate of more than $1.7 million. Scott maintained a law office—Randolph Scott Associates—in Warrington, PA. He pleaded guilty on March 26, 2015 to one count each of mail fraud, tax evasion, attempting to interfere with administration of internal revenue laws, and three counts of failure to file income tax returns.
Between December 2005 and October 2011, while representing the estate of John C. Bready, Scott diverted approximately $1,758,193 of estate funds to his law office accounts. Because the estate was valued at more than $6 million at the time of Bready’s death in 2005, federal law required that a federal estate tax return be filed which would have resulted in approximately $520,351 being paid to the Internal Revenue Service. Scott purposefully failed to file the required form in order to maintain sufficient money in the estate to pay its beneficiaries and to avoid detection of the theft.
After the estate’s executor died in 2009, Scott failed to disclose the death so that the investment account manager would continue to send the executor’s checks to Scott’s law firm. Scott would then forge the executor’s signature and deposit the checks into his law firm’s account. Scott had the successor executor sign a document renouncing the position of successor executor so that Scott could continue to forge the signature of the deceased executor and divert money belonging to the estate.
In addition to the prison term, U.S. District Court Judge J. Curtis Joyrner ordered restitution in the amount of $2,317,917.67, forfeiture of $1,758,193, three years of supervised release, and a $375 special assessment.
The case was investigated by the IRS Criminal Investigations and the Federal Bureau of Investigation. It was prosecuted by Assistant United States Attorney Judy G. Smith.
Sunday, June 11, 2017
An Idaho attorney has been publicly reprimanded for violation of rules governing solicitation of employment.
From the summary on the state Bar web page
This disciplinary case related to Mr. Winward’s communications with sales representatives of a Boise homebuilder and his communications with two homeowners who had purchased homes from that homebuilder. Mr. Winward falsely indicated to the sales representatives that he was interested in buying a home from the homebuilder. He also falsely indicated to homeowners that he represented another homeowner regarding the homebuilder’s allegedly defective foundations. Although not Respondent’s intent, the homeowners understood from their communications with Respondent that their foundations may be defective and that Respondent was offering to provide legal services to pursue a lawsuit on behalf of homeowners regarding the allegedly defective foundations. Bar Counsel considered as mitigation the fact that Mr. Winward sought the advice of counsel regarding his communications with the homeowners.
Saturday, June 10, 2017
An attractive new look for the discipline web page of the Idaho State Bar.
A recent case
The Idaho Supreme Court found that Mr. Hanson violated I.R.P.C. 1.7(a) of the Idaho Rules of Professional Conduct, which provides that it is professional misconduct for a lawyer to represent a client if there is a significant risk that the representation will be materially limited by the lawyer’s personal interests. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.
In November 2015, Mr. Hanson communicated with an individual about the purchase of “blues.” He did not purchase the “blues” or any other controlled substances from that person at that time. On December 1, 2015, that person retained Mr. Hanson as counsel in a criminal probation termination case. In December 2015, Mr. Hanson communicated with his client about “blues” and purchased the “blues” from his client, which affected or could have affected his client’s pending probation termination case. In January 2016, Mr. Hanson’s client retained new counsel.
The Disciplinary Order provided that twelve (12) months of Mr. Hanson’s eighteen (18) month suspension is withheld subject to the terms of his two (2) year probation upon reinstatement, with terms include the following: avoidance of any alcohol or drug-related criminal acts or traffic violations; a program of random urinalysis, with provision that if Mr. Hanson tests positive for any tested substances or misses a random urinalysis test without prior approval, the entire withheld suspension shall be immediately imposed; and if Mr. Hanson admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during his period of probation, the twelve (12) month withheld suspension shall be imposed.
Friday, June 9, 2017
A Bay St. Louis attorney has been sentenced to five years in prison for embezzling more than $370,000 from a bingo charity in the Cleveland.
Morgan Shands was sentenced Monday in Bolivar County Circuit Court on a guilty plea to conspiracy and embezzlement, Assistant District Attorney Leslie Flint said.
Shands is a former executive director of the state Democratic Party, has been a staffer for elected officials at state and national levels and served as campaign manager for Gulfport Mayor Billy Hewes’ unsuccessful bid in 2011 for lieutenant governor.
Circuit Judge Charles Webster sentenced Shands to five years in prison on the conspiracy charge and 10 years on the embezzlement charge. Webster ordered the prison terms to run concurrently and suspended five years, leaving five to serve.
Shands was taken into custody after his sentencing at the Bolivar County Courthouse in Clarksdale.
A Bolivar County grand jury indicted Shands and his sister, Rachel Shands Buser, in March 2014. The indictment alleged they had embezzled more than $613,000 from the American Legion Post 1776 bingo fund in Cleveland while Morgan Shands oversaw the charitable operation’s finances.
Before the indictment, Shands signed an agreement with the Mississippi Secretary of State’s Office to repay $370,117 over a period of 10 years. Officials said he quit making payments after his indictment.
His trial had been re-set several times since December 2014. The case against his sister is pending.
Shands had worked for Attorney General Jim Hood, former Attorney General Mike Moore, State Auditor Stacy Pickering and U.S. Sen. Roger Wicker.
He also had worked on campaigns for Wicker , U.S. Sen. Thad Cochran and state Insurance Commissioner Mike Chaney.
Shands was admitted to the Mississippi Bar Association in 1993 and had a law office on John Baptiste Street in Bay St. Louis. His status as an attorney is listed as “inactive” on the MBA’s list of lawyers.
Lawyers convicted of a felony are typically disbarred.
The Illinois Administrator has filed a complaint alleging that an attorney had mishandled an appeal and misrepresented the reasons for its dismissal to the client.
The attorney handled a divorce matter that had been dismissed in Illinois in light of a pending Wisconsin proceeding.
The brief Respondent filed...did not conform to the requirements of Illinois Supreme Court Rule 341 in that the brief was not double-spaced, did not state any nature of the action, did not contain any points or authorities, did not contain any statement of the issue or issues presented for review, did not contain any statement of jurisdiction, and contained no statement facts with record citations. In addition, Respondent’s Certificate of Compliance incorrectly stated that the brief was 31 pages long, when it was in fact only nine pages.
The appeal was dismissed due to the non-compliant brief.
Allegedly, the attorney told the client it had been lost on the merits.
Shortly after December 24, 2015, Respondent informed Colon that her appeal had been dismissed based on the merits of her case, and that her case would need to proceed in Wisconsin. Respondent further explained to Colon that the Appellate Court made the correct decision in finding that the trial court had ruled on her matter correctly.
At the time Respondent informed Colon of the reason for the Appellate Court’s dismissal of her appeal, his statement to her was false because the Appellate Court had entered its order stating that Colon’s appeal had been dismissed with prejudice based on Respondent’s failure to comply with the November 18, 2015 order and filing a brief that violated several sections of Illinois Supreme Court Rule 341.
Thursday, June 8, 2017
The Maine Supreme Judicial Court sent a reinstatement petition back to the single justice who had denied the relief.
The court reconsidered its earlier order affirming the single justice's order denying reinstatement.
The court did not reinstate but rather remanded for evidentiary reasons
The record reflects that Jonas has engaged in more than two decades of litigation with his ex-wife during which he was suspended from the bars of three states, jailed for contempt, declared a vexatious litigant, and admonished by a federal court for making frivolous arguments. Nonetheless, he seeks reinstatement to the Maine Bar asserting that, notwithstanding those judgments, he has the requisite character and fitness to practice law.
In this appeal, Jonas challenges the process at every stage of the proceedings, the evidentiary determinations of the single justice, and the justice’s ultimate findings and conclusions. We conclude that there was no error in process at any stage of the proceedings; that Jonas received more than sufficient notice and opportunity to be heard; and that his claims of a failure of due process are without merit. Nonetheless, because we have concluded on this appeal that the evidentiary standard applicable to Jonas’s final de novo hearing was the more expansive “reasonable person” standard, rather than the Rules of Evidence, we remand for the single justice to consider whether to admit the evidence offered by Jonas that she excluded pursuant to the Maine Rules of Evidence and to determine the effect of any newly admitted evidence on her decision.
The court discusses at length the disciplinary history and procedures applicable to reinstatement matters
Under the rules applicable to these proceedings, when a suspended attorney petitioned for reinstatement to the bar, the process and the petitioner’s burden were much the same as for an initial application, although the applicable evidentiary standards were not explicitly addressed in the rules. Again, the petitioner was the moving party, not the Board of Overseers of the Bar. Because the procedural posture, allocation of burdens, and ultimate consequences of reinstatement proceedings mirrored bar admission proceedings, we conclude that the reasonable person standard of evidentiary admissibility applied to reinstatement proceedings before the Commission and the Board. See M. Bar R. 7.3(j)(5) (providing that a petitioner seeking reinstatement had the burden to show “the moral qualifications, competency, and learning in law required for admission to practice law in this State” (emphasis added)).
While most of petitioner's claims were rejected
Because the matter was tried with the understanding that the Rules of Evidence applied to the proceedings, the single justice may have excluded evidence that would otherwise have been admissible had the justice had the benefit of our opinion applying the reasonable person standard of evidence. We must therefore remand the matter for the single justice to make findings based on both the existing evidentiary record and any new evidence presented by either party on remand. On remand, the court must consider only (1) the evidence that was explicitly offered and excluded based on the application of the Rules of Evidence and that was not otherwise admitted, and (2) to the extent allowed by the single justice, any evidence of reinstatement or disciplinary actions, further litigation, or other evidence deemed relevant by the single justice that has occurred after the close of evidence in the original trial.
Justice Alexander dissented
It should be apparent, without any doubt, that the minor items of character, reputation and credibility evidence Jonas claims were excluded by the single justice’s application of the Maine Rules of Evidence should not and cannot make any difference in the previously affirmed result. Such evidence from persons who, it would appear, are unlikely to be aware of the full scope of Jonas’s past practices is not going to make a difference given Jonas’s record of two decades of abusive litigation practices, disregard of his ethical obligations, and disrespect for court orders that formed the basis for the single justice’s decision that we affirmed...
No prejudicial error having been demonstrated, I would summarily deny the motion for reconsideration.
Wednesday, June 7, 2017
The Illinois Review Board recommends a 60-day suspension of an attorney for misconduct in three matters.
In a criminal case
In December 2012, Respondent began representing Leon Buchanan, III (Leon) on an attempted-murder charge. Respondent was hired by Leon's father, Leon Buchanan, Jr. (Buchanan), and Leon's girlfriend, Stephanie Graham (Graham). Respondent agreed to handle Leon's case for a fee of $3,500, which was paid by Graham. According to Buchanan, he believed the $3,500 would cover the entire case and did not anticipate paying Respondent any additional fees. The parties had no written fee agreement.
After two years, Respondent asked Buchanan and Graham for an additional $500 fee. According to Buchanan, he was dissatisfied with Respondent's representation of Leon, did not think he had accomplished much, and thought he was responsible for delaying the case.
Although Buchanan was reluctant to pay Respondent any additional fee, he eventually gave him another $200, after Respondent repeatedly called him and asked for more money. Buchanan testified that during these calls, Respondent cursed at him and used the following demeaning, derogatory, threatening, and racially offensive language:
You are a piece of garbage. All black people are alike. You're slovenly, ignorant.
You better give me my money or your son's case is going to be delayed.
I'm sick of you, you piece of shit.
I don't know who's the biggest bitch. You or [family]. I'm going to lock you up.
Low class n-----s. I'm going to have you all locked up.
You call me with stupid shit. Wait until next court date.
You have until 5:00 on Thursday. $300, no $500 check... Or on Friday I'll withdraw. I already told the State's Attorney to writ your son over.
You are such a pussy. They are going to writ him over. I tried to tell your stupid ass. Other lawyers would charge $10,000 for this case. Start planning for another lawyer.
You're ugly, low class, ignorant. I'll finish with you when he gets off. You're demeaning your son.
Help your son. Pay. Stop delaying case.
These calls occurred while Leon was in jail awaiting trial, and the messages caused Buchanan to worry, feel disgraced, and think his son's case would be jeopardized if he did not pay Respondent. Buchanan later found another attorney to represent Leon at trial.
In another matter
Florine Durr has been a close family friend of Respondent for many years. According to Respondent, Durr suffers from certain mental and physical impairments and can hardly walk. For several weeks in 2015, Durr was a patient at the Lakefront Nursing and Rehabilitation Center, where Aahron Adler is the administrator.
The attorney left Adler this voicemail
You know, I'm trying to be academic, intellectual, and - and - and community-minded and everything else with you. What you're supposed to do as a nursing home, you piece of Jew garbage. You put my girl out in the street and didn't give a fuck, and didn't let her come back, and know that she is mentally - are you mentally challenged, you piece of shit? Let me tell you something. There is a tort--with your stupid ass, you don't know what that is, called -- called violation of fiduciary capacity. And that's what you've done in this, with your stupid Jew ass. As a - Mother fuck you, how you fucked my girl. Okay, I'm going to sue you, a federal -- sue you, sue the fuck out of you. You should have knew better. Fiduciary capacity carries with it a responsibility of the particular concerns of the person involved. She's schizophrenic, hyper-paranoid schizophrenic, you piece of shit.
Adler contacted the ARDC about the matter, because he felt violated, insulted, and diminished.
Respondent admitted leaving the foregoing message for Adler, but denied he did so to embarrass Adler. Respondent explained that he was shocked and angry at Adler's actions and wanted an explanation. He also wanted to inform Adler he intended to sue if anything happened to Durr. Although Respondent acknowledged some of his language was inappropriate and out of line, he believes his anger was appropriate due to his concern that Adler had jeopardized Durr's well-being. He also stated that he regrets his anger.
He also had mishandled an appeal but without any insults or expletives.
The Administrator sought a six-month suspension, which the board rejected but noted
...while we agree with the Hearing Board's sanction recommendation, we also wish to emphasize that we are deeply concerned over Respondent's misconduct, particularly in the Buchanan and Durr matters. The language Respondent used was highly inappropriate and unacceptable. The resort to name-calling, profanity, racial and ethnic slurs, and other derogatory and intemperate remarks, whether spoken in anger or otherwise, has absolutely no place in the practice of law and brings disgrace to the entire legal profession. In light of his history, we strongly urge that Respondent take steps to ensure that he is more measured and restrained in his use of language in the future, particularly when he is speaking to clients and others regarding clients. We also caution Respondent that in the event additional instances of similar behavior are reported, further sanctions may be warranted.
The West Virginia Supreme Court of Appeals affirmed an order to remove the mortal remains of a World War I Medal of Honor winner to a veterans cemetery from his resting place of nearly 83 years in a family cemetery.
The petition was filed by another MOH winner otherwise unconnected to his fellow hero
This appeal arises from a petition filed in the Circuit Court of Mason County seeking authorization to disinter the remains of Chester Howard West, a World War I Medal of Honor recipient, and bury him with full military honors at the Gold Star Family Memorial Monument located within the Donel C. Kinnard Memorial State Veterans Cemetery in Institute, West Virginia (“Veterans Cemetery”). Hershel Woodrow Williams, a Medal of Honor recipient, filed the petition for Mr. West to be recognized as a recipient of the highest award a citizen can receive for bravery and valor. In an order dated March 23, 2016, the Circuit Court of Mason County granted Mr. Williams’s petition.
Petitioner Roger VanSickle urges this Court to reverse the order below on the grounds that the circuit court lacks the authority to rule on the question of disinterment of Mr. West’s remains. Alternatively, Mr. VanSickle argues that the circuit court abused its discretion in concluding that the equities favor disinterment over the wishes of the surviving spouse at the time of Mr. West’s death and the living VanSickle family relatives.
Mr. Williams argues that the circuit court properly exercised its equitable jurisdiction and carefully balanced the equities in favor of disinterment of Mr. West’s remains. He contends that Mr. West’s remains should be moved to the Veterans Cemetery so that he is honored for his heroic service and his grave is properly maintained.
On the opening day of the Meuse-Argonne offensive, the deceased
While making his way through a thick fog, his advance was halted by direct and unusual machine gun fire from two guns. Without aid, he at once dashed through the fire and, attacking the nest, killed two of the gunners, one of whom was an officer. This prompt and decisive hand-to-hand encounter on his part enabled his company to advance farther without the loss of a man.
He survived the Great War and married Elizabeth VanSickle. He was shot and killed by one Sam McCausland on May 20, 1935.
He had laid at rest in the VanSickle family cemetery ever since until
In 2015, a Boy Scout learned of Mr. West’s Medal of Honor status and burial in Mason County and sought to locate the VanSickle family cemetery as an Eagle Scout project. The Boy Scout, with the help of family members and other scouts, located the cemetery and cleared it. The work included removal of a large oak tree that had fallen and damaged two of the headstones, including Mr. West’s headstone.
The circuit court exercised its equitable discretion in favor of disinterment. The order is linked here.
The court here affirmed and has sent Mr. West to his new place of honor .
...the record contains no evidence of living blood relatives of Mr. West. While Mr. VanSickle filed an objection to Mr. Williams’s petition to disinter Mr. West’s remains and others testified at the hearing, all of those objecting to the removal have no direct, familial connection to Mr. West. Mr. West’s surviving spouse remarried and died over sixty-five years ago, leaving no documented sentiment as to her own burial with her first husband. The VanSickle family cemetery is now overgrown and neglected in a remote section of a public wildlife management area owned by the State. To date, no one on Mr. West’s behalf has asserted any right to enter into the [burial site] Cornstalk WMA to provide upkeep to the cemetery and particularly the gravesite of this Medal of Honor recipient.
On the other hand, upon discovery of Mr. West’s remains, Mr. Williams has expended time and energy to arrange for persons qualified to undertake Mr. West’s disinterment with dignity and care, transport his remains with honor, reinter them with full military honors, and provide perpetual care for his gravesite. We understand that the VanSickle family has been denied the opportunity to enter Cornstalk WMA with the necessary equipment to keep the cemetery in the condition deserving of their loved ones. The fact remains that the cemetery where he is buried is in a location where perpetual care is highly unlikely. Mr. Williams has demonstrated the integrity and capacity to provide a most suitable and deserving resting place for Mr. West’s remains.
A moving dissent by Chief Justice Loughry
“‘[A]s to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes, and violate the sanctity of the grave[.]’” Haudenschilt v. Haudenschilt, 129 W.Va. 92, 121, 39 S.E.2d 328, 343 (1946) (Kenna, J., dissenting) (internal citation omitted). Yet, the majority of this Court has done just that and, in the process, they have opened Pandora’s Box. Critically, “[g]ood intentions . . . like bad facts sometimes make bad law.” Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 653 N.E.2d235, 239 (Ohio 1995). Consequently, I am impelled to dissent...
In short, the exhumation of Mr. West’s earthly remains is completely unnecessary to fulfill Mr. Williams’s admirable wish to honor Mr. West’s distinguished military service. In fact, the circuit court’s order references the Gold Star Family Memorial Monument established by the Medal of Honor Foundation within The Donel C. Kinnard Memorial State Veterans Cemetery. If that particular monument cannot be employed in some manner to honor Mr. West’s memory and status as a Medal of Honor recipient, then perhaps another monument could be erected in the cemetery to honor not only Mr. West, but all West Virginians who receive the Medal of Honor but who either have been or will be laid to rest elsewhere.
Not only is the majority’s decision both legally and equitably wrong, I am deeply concerned that a dangerous precedent has been set that threatens the sanctity of burial in this state. Will third-parties now have an imprimatur to seek the disinterment of any person with whom they have no relationship, either legal, familial, or otherwise, if their purpose is sufficiently laudable? Further, will a laudable purpose alone be sufficient, or will an ill-maintained cemetery also be required for court-ordered disinterment? Moreover, by what standards will a circuit court determine whether the purpose for disinterment is sufficiently commendable or whether a cemetery’s maintenance is sufficiently inadequate to warrant disinterment?
Lastly, and to the extent the majority’s holding extends the risk of a judicially ordered disinterment to any deceased person in this State, I would caution lawyers engaged in estate work to apprise their clients–veterans and non-veterans alike–that if they wish their final resting place to be just that–final–their wish needs to be explicitly set forth in their testamentary papers with the caveat that their corporeal remains never be moved absent particularized circumstances. Unlike Mr. West, there may not be someone to defend a decedent’s final resting place, but perhaps a recorded will containing specific burial instructions would carry some weight when a legal action is instituted seeking to disinter a person twenty, fifty or, as in the case at bar, nearly a hundred years later.
Justice Workman also dissented
In this case, we confront the question of whether a person with honorable intentions but absolutely no personal connection to or familial relationship with a deceased person has a unilateral right to remove the deceased’s remains, contrary to both the wishes of his widow and his remaining kin. The majority permits this result in the face of such familial objection ostensibly because it agrees that a stranger to the deceased will provide a resting place more befitting the deceased than his family.
An American hero, First Sergeant Chester Howard West (hereinafter “Sgt. West”) was the recipient of the Congressional Medal of Honor for his courageous service at the age of 20 during battle as a member of the 363rd Infantry Regiment of the U.S. Army 91st Division. Sgt. West survived the war, but died seventeen years later, still a young man at age 37, leaving a young widow, Maggie VanSickle. Maggie made the decision to bury her husband in the VanSickle family cemetery in Mason County, and he has been at his eternal rest for now more than eighty-two years.
Hershel Woodrow Williams (hereinafter “Mr. Williams”), another American hero and recipient of the Congressional Medal of Honor, discovered that Sgt. West’s gravesite was not well-cared for in the VanSickle family cemetery, which is located in a remote area of Mason County within the Chief Cornstalk Wildlife area which is owned and managed by the State. Mr. Williams unilaterally decided that Sgt. West’s remains should be removed to the Donald C. Kinnard cemetery—a location which Mr. Williams believes to be a more honored resting place. The lower court and the majority permit this disinterment by Mr. Williams on the basis of a weighing of the equities, finding that the VanSickle family cemetery is not a “place of honor” and that by being removed to the Kinnard cemetery, he may be more appropriately honored and potentially re-connected with “lost family member[s].”
This analysis is simplistic and to some appealing, but there is a major obstacle to this reasoning: the important concept in American jurisprudence called“standing,” which the majority does not even address...
In this matter, despite his noble intentions, Mr. Williams lacks standing because he fails to articulate a legally cognizable interest and threatened or actual injury entitling him to remove Sgt. West’s remains...
There is hundred-year-old case law recognizing a strong common law presumption in favor of repose. In fact, since antiquity, most societies have held burial grounds in great reverence. The early common law protected the sanctity of the grave by recognizing the “right” to a decent burial and the “right” to undisturbed repose. Accordingly, unless a good and substantial reason existed, the common law strongly disfavored disturbing a body once it had been suitably buried. In the words of Justice Cardozo, then a member of the New York Court of Appeals, “[t]he dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose.” Yome v. Gorman, 152 N.E. 126, 129 (N.Y. Ct. App. 1926)(other citations omitted)
For conspicuous gallantry and intrepidity at the risk of his life above and beyond the call of duty as Demolition Sergeant serving with the First Battalion, Twenty-First Marines, Third Marine Division, in action against enemy Japanese forces on Iwo Jima, Volcano Island, 23 February 1945. Quick to volunteer his services when our tanks were maneuvering vainly to open a lane for the infantry through the network of reinforced concrete pillboxes, buried mines and black, volcanic sands, Corporal Williams daringly went forward alone to attempt the reduction of devastating machine-gun fire from the unyielding positions. Covered only by four riflemen, he fought desperately for four hours under terrific enemy small-arms fire and repeatedly returned to his own lines to prepare demolition charges and obtain serviced flame throwers, struggling back, frequently to the rear of hostile emplacements, to wipe out one position after another. On one occasion he daringly mounted a pillbox to insert the nozzle of his flame thrower through the air vent, kill the occupants and silence the gun; on another he grimly charged enemy riflemen who attempted to stop him with bayonets and destroyed them with a burst of flame from his weapon. His unyielding determination and extraordinary heroism in the face of ruthless enemy resistance were directly instrumental in neutralizing one of the most fanatically defended Japanese strong points encountered by his regiment and aided in enabling his company to reach its' objective. Corporal Williams' aggressive fighting spirit and valiant devotion to duty throughout this fiercely contested action sustain and enhance the highest traditions of the United States Naval Service.
The State Journal covered the case when it was before the court. (Mike Frisch)
The Illinois Administrator has filed a complaint alleging that an attorney falsified information in her employment search after her 2015 bar admission
Between June 2012 and June 2014, Respondent was not employed. Between June 2014 and March 2016, Respondent managed a rental house owned by her parents and a house owned by her aunt, but received no salary for the work. On occasion, Respondent was paid by her aunt for specific work on the aunt’s property such as painting, but she was otherwise unemployed.
On March 1, 2016, Respondent submitted an employment application to the Illinois Department of Transportation ("IDOT") for the position of Realty Specialist II in Carbondale, Illinois.
On the employment application, Respondent represented that between May 2012 and March 2016, she was employed as a "self-employed attorney" working 40 hours per week.
At no time between May 2012 and March 2016 did Respondent practice law for 40 hours per week.
She also allegedly misrepresented the nature of her work.
On April 2, 2016, Respondent submitted a second employment application to IDOT for the position of Realty Specialist III in Dixon, Illinois.
On the application, Respondent represented that between May 2012 and April 2016, she was employed as a "self-employed attorney" working 20 hours per week.
At no time between May 2012 and April 2016, did Respondent practice law for 20 hours per week.
Respondent’s representations that she was self-employed as an attorney between May 2012 and April 2016, and that she worked 20 hours per week as an attorney, were false because she was not authorized to practice law until May 7, 2015, she did not register with ARDC until October 17, 2016, and she did not work 20 hours per week as an attorney between May 2012 and April 2016.
The complaint alleges false resumes and statements to a potential employer. (Mike Frisch)
Tuesday, June 6, 2017
The court had issued an order to show cause after the DRB proposed a censure. The attorney then agreed to the suspension.
Respondent was a partner in the law firm of Laddey, Clark and Ryan, LLP (LCR) in Sparta, New Jersey, from 2000 to 2014. In March 2014, CD, a former LCR employee who had worked at the law firm for a brief time in 2005, reported to the law firm that respondent had been stalking and harassing her.
LCR immediately opened an investigation into the allegations, the results of which are contained in an April i0, 2014 confidential report that is not a part of the record. As a result of its investigation, LCR directed respondent to cease all communications with CD and prohibited him from using LCR’s computers and e-mail system to communicate with her. Respondent agreed to these conditions.
LCR’s internal investigation further revealed that respondent also had sexually harassed another law firm employee WB, through a series of e-mails he had sent over the entire calendar year 2011. In those e-mails, respondent used derogatory names, such as "sweet cheeks," when referring to WB. When interviewed by the OAE, WB stated that, although she had not reported respondent’s conduct to anyone, she believed it inappropriate.
On March 21, 2014, prior to the issuance of the LCR report, respondent resigned from the firm and commenced employment with another law firm three days later.
He self-reported to the bar on the threat that LCR would report him if he failed to do so.
According to the stipulation, respondent and CD engaged in a brief consensual sexual relationship in 2005. CD was not employed by LCR at the time. Afterward, the two remained social friends until the end of 2009, when CD indicated to respondent that she no longer wanted him to communicate with her.
When she did so, he reacted
Despite CD’s July 13, 2011 e-mail admonition, respondent continued to send her unwanted and unsolicited correspondence. A number of the e-mails asked CD to go to lunch or for drinks after work. The e-mails were variously offensive, insulting, and demeaning. They were often sexual in nature, containing references to CD as a love doll, sex toy, love kitten, sweetie pie, lover, sweetheart, darling, sweet pea, sweet cheeks, love muffin, sweet meats, love cakes, sweetness, sexy, and sexy girl.
Respondent repeatedly expressed his purported love for CD, even asking her to marry him, but alternately referred to her as "Bitch" or "Asshole." He made offensive remarks about her supposed weight gain, and, in a December 21, 2012 e-mail stated, "All I want for Christmas is to [expletive] your brains out again."
Respondent stipulated that he sent hundreds of e-mails to CD from 2009 to 2015...
Respondent admitted to sexually harassing CD and WB, two female employees of LCR. He demeaned them, particularly CD, in e-mails in which he used misogynist language and extended crude invitations to drink, dine, vacation and engage in sex with him. None of respondent’s overtures, contained in "hundreds" of emails, were welcomed, and in CD’s case, continued for years after a brief 2005 relationship. Respondent continued to send the e-mails even after CD explicitly directed communicating with her. He disregarded his law firm’s contemporaneous directive. in July 2012, that he stop communicating with CD. He disregarded the Sparta police sergeant’s 2014 admonition to cease his communications with her. He even sent CD an e-mail in 2015 from his Sandyston Township municipal e-mail account, which was available to him for official court business as that township’s municipal attorney. Thus, respondent is guilty of sexual harassment...
He also lied in the bar case.
According to the DRB, the sanction should be a censure
Either aspect of respondent’s misconduct -- sexual harassment or lying to ethics authorities -- would merit the imposition of a reprimand. We consider, in aggravation, that respondent engaged in a years-long campaign of harassment toward CD. He recklessly disregarded opportunities to cease his misconduct, and continued after warnings to stop from the victim, the police, and his law firm.
I must say that I am gratified that the court believes that sexual harassment and lying to ethics authorities merits a sanction north of censure. (Mike Frisch)
No mandamus lies for relief sought on behalf of slaughtered chickens, according to a decision today from the New York Appellate Division for the First Judicial Department
The individual plaintiffs reside, work or travel within Brooklyn neighborhoods where the non-City defendants engage in the Kaporos ritual every year before Yom Kippur. Plaintiff the Alliance to End Chickens as Kaporos, of which some individual plaintiffs are members, is associated with nonparty United Poultry Concerns, a non profit organization promoting compassionate and respectful treatment of domestic fowl. The non-City defendants are individual Orthodox Jewish rabbis, members of yeshivas or other Orthodox Jewish religious institutions, and several Orthodox Jewish religious institutions, all based in Kings County.
Kaporos is a customary Jewish ritual practiced by the non-City defendants, who are ultra Orthodox. It dates back to biblical times and occurs only once a year, the few days immediately preceding the holiday of Yom Kippur. Adherents of Kaporos believe this ritual is required by religious law and that it brings atonement and redemption. The ritual entails grasping a live chicken and swinging the bird three times overhead while saying a prayer that symbolically asks God to transfer the practitioners' sins to the birds. Upon completion of the prayer, the chicken is killed in accordance with the kosher dietary laws, by slitting the chicken's throat. Its meat is then required to be donated to the poor and others in the community. Each year thousands of chickens are sacrificed in furtherance of this ritual and the practice takes place outdoors, on public streets in Brooklyn, and in full public view.
Plaintiffs allege that the manner in which Kaporos is practiced is a health hazard and cruel to the animals. They decry the practice as "party-like" and having a "carnival" atmosphere. They contend the practice involves the erection of makeshift slaughter houses in which "[d]ead chickens, half dead chickens, chicken blood, chicken feathers chicken urine, chicken feces [and] other toxins . . . consume the public streets" (amended complaint ¶ 168). They also allege that there is blatant animal abuse and cruelty (id. at ¶ 174). It is plaintiffs' contention that Kaporos is a public nuisance to all those who, like them, pass through these locations for day to day activities, including going home, to work, or to shop. Their goal is to stop this practice. They argue that there are other, better ways for Kaporos adherents to practice their faith and express their devotion, including by using coins instead of live chickens. They denounce Kaporos as "a far cry from a solemn religious ritual." These claims are disputed by the non-City defendants, who otherwise claim that they have a constitutional right to practice Kaporos.
Mandamus is generally not available to compel government officials to enforce laws and rules or regulatory schemes that plaintiffs claim are not being adequately pursued (see e.g. Jones v Beame, 45 NY2d 402, 409 , citing People ex rel. Clapp v Listman, 40 Misc 372 [Sup Ct, Onondaga Special Term 1903] [mandamus does not lie to compel enforcement of Sunday "blue" laws]; Matter of Walsh v LaGuardia, 269 NY 437  [no right to compel Mayor and Police Commissioner to prohibit operators of nonfranchised bus routes]; Matter of Perazzo v Lindsay, 30 AD2d 179 [1st Dept 1968], affd 23 NY2d 764  [no right to compel enforcement of laws governing operation hours of coffee houses]; Matter of Morrison v Hynes, 82 AD3d 772 [2d Dept 2011] [cannot compel the initiation of a prosecution]; Matter of Bullion v Safir, 249 AD2d 386 [2d Dept 1998] [no mandamus to compel police to make arrests]). This reflects the long-standing public policy prohibiting the courts from instructing public officials on how to act under circumstances in which judgment and discretion are necessarily required in the fair administration of their duties.
We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. With the exception of Agriculture and Markets Law § 371 (addressed separately below), there is nothing in the plain text of any of the laws and regulations relied upon by plaintiffs to suggest that they are mandatory. Nor is there anything in the legislative history supporting a conclusion that any of the implicated laws and regulations are mandatory. There is no express provision designating Kaporos as a prohibited act. There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to non adherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment.
Earlier coverage of this disagreement from the New York Daily News is linked here. (Mike Frisch)
An attorney has been censured for numerous acts of practice-related misconduct by the New Jersey Supreme Court.
Many of the violations were alcohol-related
From the letter report of the Disciplinary Review Board comes descriptions of the various incidents of misconduct, for example
In a conference room adjacent to the courtroom, he directed profanities to other attorneys gathered there, including "Who the f**k are you," and "Don’t f**k with me." In court before Judge Appleby, and while wearing sunglasses, respondent explained that he had "his lights knocked out" the previous evening. After the judge left the bench, respondent told the prosecutor that he was "going to the press" about his treatment that day, turning to the other attorneys in the courtroom and addressing them in a vulgar manner.
In another matter the misconduct involved a client
On July 5, 2014, while the motion was pending, respondent appeared at the client’s home, uninvited and intoxicated, and asked to be let in to use her bathroom. Once inside, distraught over an unrelated situation with his fiancee, respondent proceeded to cut his wrists, after which he was rushed to the hospital.
respondent appeared before the Honorable James F. Mulvihill, J.S.C. The stipulation reveals neither the client’s name nor the type of case. During that appearance, respondent told the judge, "This man has been in jail, civilly committed, for i0 years for no f**king reason," as well as, "But to give a man i0 years back of his life, f**king pi**es me off.
Given respondent’s obvious efforts to turn his life around after what appears to have been a fairly brief, six-month episode, as well as the lack of any prior discipline in seventeen years at the bar, the Board determined that a censure adequately protects the public. Furthermore, respondent stipulated, and the Board requires, that he submit proof of fitness to practice law by a qualified medical doctor, and proof of attendance in an alcohol cessation program such as Alcoholics Anonymous, for the later of two years or until released from the obligation by the Court.
Monday, June 5, 2017
An order entered today by the Louisiana Supreme Court permanently disbars one of the Danziger Bridge defendants
Respondent was convicted of deprivation of rights under color of law in violation of 18 U.S.C. § 242; conspiracy to obstruct justice in violation of 18 U.S.C. § 371; and obstruction of justice by engaging in misleading conduct in violation of 18 U.S.C. § 1512(b)(3). Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The Office of Disciplinary Counsel (“ODC”) has concurred in respondent’s petition.
Having considered the Petition for Permanent Resignation from the Practice of Law filed by Kenneth Robin Bowen, Louisiana Bar Roll number 29773, and the concurrence thereto filed by the ODC,
IT IS ORDERED that the request of Kenneth Robin Bowen for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.
IT IS FURTHER ORDERED that Kenneth Robin Bowen shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.
The order granting a new trial in the criminal case by the United States Court of Appeals for the Fifth Circuit describes the prosecutorial misconduct that led to that result.
The New York Times reported on the subsequent plea deal.
Note that the order prohibits future practice anywhere, not just in Louisiana. (Mike Frisch)
An 18-month suspension has been imposed by the Arizona Presiding Disciplinary Judge for vehicle-related misconduct in two bankruptcy matters.
...in September 2015, Mr. Guinn filed a bankruptcy for a client dying from terminal cancer who had liens on his vehicles. Mr. Guinn and his daughter appeared at his client’s home and personally drove away the vehicles of the client prior to Mr. Guinn filing the bankruptcy for his him [sic]. The client died in December 2015. In that same month, the lienholder received a notification from a company called Sperro Towing in Indiana, threatening that if the lender failed to pay towing and storage costs of $5,232.85 the client’s vehicles would be sold. When the lienholder arranged to pay those fees, lienholder was told the cars had already been sold.
When confronted by the lienholder with the fact that his daughter and he had personally taken the vehicles, Mr. Guinn was asked why the vehicles had been taken to Indiana. Mr. Guinn responded, “It was convenient.”
In the client bankruptcy matter, the U.S. Trustee moved for Denial of Prior Fees and Request for Disgorgement. In the motion it was stated Mr. Guinn was paid his fee by Fenner & Associates affiliated with Sperro Towing. The Trustee pointed out “the collusive scheme between Mr. Guinn and Mr. Fenner, whereby Mr. Fenner paid Mr. Guinn’s attorney’s fees, in exchange for Mr. Guinn facilitating the transfer of the vehicle to Mr. Fenner.” Mr. Guinn did not respond to the motion and failed to appear for a hearing on the motion. The Court ordered Mr. Guinn to appear.
At the hearing Mr. Guinn revealed he had no written agreement with Fenner explaining how he would receive his fees but he had advised his client to contract with Mr. Fenner and that Mr. Fenner paid Guinn $1,500. The Court ordered Mr. Guinn to list all the bankruptcy cases in which he received payment from Mr. Fenner or his entities. Mr. Guinn admitted he had a relationship with Mr. Fenner in 24 other cases. The Court ordered he disgorge himself of all fees collected through his involvement with Mr. Fenner. Mr. Guinn and the Trustee settled these matters.
In a second bankruptcy matter
Mr. Guinn represented a client in a bankruptcy matter in 2015. The client asked about attorney fees, and Mr. Guinn advised he could participate in his “vehicle surrender program” that would cover his $1,200 attorney fee. The client agreed to participate in the program, and Mr. Guinn arranged for a transfer of the client’s vehicle to Sperro Towing in Indiana. He assured the client he could file for bankruptcy in three weeks.
After the three weeks passed, his client repeatedly attempted to contact Mr. Guinn with no answer for over a month. The lien holder made demands on the client. When Mr. Guinn finally responded to his client, he told him he was filing the bankruptcy and to have the lienholder contact him directly. Mr. Guinn then told the lienholder his client had transferred the car out of state. Mr. Guinn told his client that the action taken was not illegal. When the lienholder told client he could face criminal prosecution under A.R.S. 13-1813, the vehicle was returned to the lienholder without client’s knowledge.
The sanction was imposed by consent.
The Indiana Lawyer had a story last November about litigation involving Sperro Towing. (Mike Frisch)
The Tennessee Board on Professional Responsibility produces a seasonal Board Notes publication that contains a wealth of useful information on matters involving attorney ethics.
The report does an excellent job of providing the public with a sense of the efficiency of the disciplinary system in the Volunteer State. It also provides insight into the sanctions imposed for ethics lapses.
Note below the wide range of misconduct that can draw a censure.
Also note the large number of interim suspensions for great public harm, which is a useful measure of a system that takes misconduct seriously.
Sanctions described in the most recent report include suspension for this conduct
On January 20, 2017, [an attorney] of Bristol, Tennessee, was suspended by the Tennessee Supreme Court from the practice of law. On December 9, 2016, the Tennessee Supreme Court issued a Show Cause Order, pursuant to Tennessee Supreme Court Rule 9, Section 37.4, ordering [the attorney] to show cause as to why her law license should not be suspended based on [her] default on a loan guaranteed or administered by Tennessee Student Assistance Corporation (TSAC). [The attorney] failed to show cause as to why her law license should not be suspended and was suspended by Order of the Supreme Court of Tennessee.
And among the censures
On March 21, 2017, John P. Fortuno of Cleveland, Tennessee, was Publicly Censured by order of the Tennessee Supreme Court. On August 22, 2016, the Board filed a Petition for Discipline against Mr. Fortuno, an assistant public defender, alleging that he committed ethical misconduct by exchanging a series of inappropriate text messages with a client he was appointed to represent creating a potential conflict of interest.
Mr. Fortuno entered into a conditional guilty plea admitting that his actions violated Rules of Professional Conduct 1.7(a)(2) (Conflicts of Interest) and 8.4(a) (Misconduct), and should be Publicly Censured for this violation.
A Public Censure is a rebuke and warning to the attorney, but it does not affect the attorney’s ability to practice law.
Another unusual situation that drew a censure
On February 7, 2017, John R. Hershberger of Memphis, Tennessee, was Publicly Censured by order of the Tennessee Supreme Court.
While representing a party in a case pending before the Tennessee Court of Appeals, Mr. Hershberger went to the home of a judge on the Court of Appeals in order to ask her a question pertaining to the case. The judge was not at home and Mr. Hershberger left without speaking with her. A Hearing Panel found that by attempting to engage in an ex parte communication with the judge, Mr. Hershberger violated Rule of Professional Conduct 8.4(a) (Misconduct) and should be Publicly Censured for this violation.
Mr. Hershberger appealed the decision to the Chancery Court for Shelby County, which affirmed the Hearing Panel’s decision.
The Chancery Court order is linked here.
Public censure for this
On November 14, 2016, James Kirby, an attorney licensed to practice law in Tennessee, received a Public Censure from the Board of Professional Responsibility of the Tennessee Supreme Court.
While acting as Executive Director of the Tennessee District Attorneys General Conference, Mr. Kirby engaged in an act of misconduct in connection with the hiring and supervision of a part time prosecutor pro tem.
By this act, James Kirby has violated Rule of Professional Conduct 8.4(c) (misconduct), and is hereby Publicly Censured for this violation.
On October 14, 2016, Robert Paul Starnes, an attorney licensed to practice law in Tennessee, received a Public Censure from the Board of Professional Responsibility of the Tennessee Supreme Court. Mr. Starnes repeatedly exposed himself to an employee at his law office. In April 2016, Mr. Starnes pleaded no contest to indecent exposure (Class B misdemeanor) for his conduct.
By these acts, Mr. Starnes is in violation of Rule 8.4 (b) (criminal conduct that reflects adversely on fitness to practice) of the Rules of Professional Conduct and is hereby publicly censured for this violation.
Kingsport Times News reported on the case.
When transparency is more than a hollow phrase in attorney regulation, applause follows as night follows day. (Mike Frisch)
A Tennessee attorney has been suspended due to a conviction for the crimes of subornation of aggravated perjury and criminal simulation.
WSMV Franklin reported on the charges
An attorney has been indicted in Williamson County for allegedly filing a fake petition.
Paul Van Burkleo lives in Texas, but in 2013, he found himself in a fight in Williamson County.
“Just after being married to a person for so long, you know somebody’s signature,” he said.
His ex-wife, Denise Van Burkleo, filed a restraining order that would have kept him from seeing their children. But when Paul Van Burkleo saw the paperwork, he said something seemed off.
“You can tell by the slant,” he said. “She writes with a left hand slant. This particular signature was a right hand slant.”
The Channel 4 I-Team obtained notarized oaths bearing the name of Denise Van Burkleo. Both were signed in the officer of her lawyer, Robert A. Doll III.
“If it hadn’t been discovered, I’d be sitting her today without any visitation with my children,” Paul Van Burkleo said.
This summer, a grand jury indicted Doll and his client. Doll is accused of filing the fake oath then “inducing” his client to lie about it on the stand.
Paul Van Burkleo said this is not something an attorney should be doing, even if he wants to win his case.
“That just opens the door for many problems for that attorney,” he said.
Doll has been under scrutiny before. The I-Team found in 2014, he received a public censure from the Board of Professional Responsibility.
Doll was disciplined for issues involving incompetence and diligence. He was also held in contempt.
Channel 4 reached out to Doll on Thursday, but did not hear back by deadline.
Two years later, it is unclear who signed the oath. But according to Paul Van Burkleo, justice will always sift right from wrong.
“You can’t have crooked things happening in the legal system and let people get away with it,” he said.
Judge Mark Fishburn will preside over a hearing in Williamson County Friday. A special judge was appointed after several others recused themselves.
Denise Van Burkleo was charged with aggravated perjury. The I-Team reached out to her and the district attorney, but did not hear back.
Records indicate the notary faces no charges.
Saturday, June 3, 2017
A very interesting oral argument last week before the Maryland Court of Appeals on a petition for reinstatement is linked here.
Most of the time is devoted to the arguments of petitioner's counsel, who makes a persuasive and compelling presentation on behalf of her client.
Bar Counsel consents to reinstatement.
One aspect of the argument involves the petitioner's concession that he should be reinstated subject to monitoring conditions and the court's concerns about that proposal. Bar Counsel acknowledged that Maryland has not previously reinstated a suspended/disbarred attorney with conditions.
A Baltimore County attorney who acknowledged having inadvertently disclosed information that led to a client's murder agreed to an indefinite suspension of his law license, records show.
Larry J. Feldman, an attorney for 17 years, will be suspended from practicing law as of Saturday after agreeing that he violated provisions of the Maryland Lawyer's Rules of Professional Conduct when he told Tavon Davis more than four years ago that prosecutors wanted to speak with his client, Isiah Callaway, in a criminal investigation.
Davis had hired Feldman in late 2010 to represent Callaway, 19, a suspect in a check fraud scheme. Documents related to the license suspension say the attorney did not know that Davis also was a suspect in the fraud scheme until after Callaway's murder.
After Feldman told Davis that federal prosecutors wanted to speak to Callaway, Davis hired a hit man to kill Callaway in East Baltimore.
Feldman told The Baltimore Sun in 2011 that, "In a million years, I never thought anything would lead to Isiah's death."
According to documents from the Attorney Grievance Commission, Callaway and Davis referred to each other as brothers and Callaway had insisted that Davis sit in on one meeting with Feldman.
But in federal criminal proceedings, Davis testified that Feldman joked about having Callaway killed, suggesting that Davis could "send him to Costa Rica or get rid of him the Sicilian way."
Callaway's family alleged in a lawsuit that Feldman had been fully informed of the check fraud scheme and that Davis had told him that he wanted to be insulated from criminal liability. The grievance commission documents show Feldman agreed to a "substantial confidential settlement" in that case.
Feldman's agreement with the commission states that he "wrongly and improperly concluded that he was authorized to speak with Davis" about Callaway's case.
Such sanctions against attorneys in Maryland are rare. The grievance commission receives about 1,900 complaints a year, and in fiscal year 2014 sanctioned 87 attorneys. That includes 26 who were disbarred, down from an all-time high of 47 in fiscal year 2012.
Feldman, who also acknowledged having accepted prostitution services from another client, had not been disciplined previously by the commission. He cooperated with federal investigators and was prepared to testify if needed in the Callaway murder case, and the commission noted that he had provided thousands of hours of free legal work.
Court filings show Davis told a friend that he was the "schmuck of the year" for ordering Callaway's death, realizing the penalty for the original check fraud scheme would have been much less than he faced for having someone killed. Davis was sentenced to 35 years in federal prison in the murder case.
Bruce Byrd, who was convicted of carrying out the shooting, received 40 years in prison. Another conspirator, Frank Marfo, received a life term. Federal authorities said there was no evidence to warrant charging Feldman.
Feldman and his attorney did not return calls seeking comment. A recording at his law office phone number says he is not accepting new clients.
Our earlier coverage (noting civil litigation brought by the deceased client's family) is linked here.
Update: Reinstatement granted today.
Within fifteen ( 15) days of the date of this Order, Petitioner shall enter into a monitor agreement pursuant to Maryland Rules 19-742( e)(2) and 19-752(i)(8), with a monitor acceptable to Bar Counsel, and that the monitor agreement shall remain in effect until further order of this Court...
A legal malpractice claim may proceed per a decision of the New York Appellate Division for the First Judicial Department
The court properly declined to dismiss the corporate plaintiff's claim that it would not have accepted the landlord's buyout offer of the remaining six years on its commercial lease if it had been properly advised by W & S of a $400,000 New York City corporate tax obligation it would have to pay on the buyout figure. Deposition testimony and affidavits offered from the corporate plaintiff's principal assert that it was W & S's responsibility to ensure that the negotiated buyout covered all of plaintiff's anticipated relocation expenses and attendant tax obligations such that plaintiff would not be out of pocket financially when relocating to allow the nonparty landlord to undertake a major renovation of its building. Under the circumstances presented, triable issues exist as to whether, but for W & S's failure to inform plaintiff of the corporate tax obligation, plaintiff would have declined the buyout offer, remained in its existing leasehold and avoided any damages associated with having to pay, out of pocket, a corporate tax on the buyout sum (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 ; Miuccio v Straci, 129 AD3d 515 [1st Dept 2015]).
Another branch of the malpractice claim alleged that but for counsel's negligence in failing to raise the tax issue, the landlord would have offered a higher buyout figure to cover the New York City corporate tax obligation. This branch of the claim is also viable. Although the claim is founded upon a discretionary decision residing in another over whom the corporate plaintiff had no control, the circumstances support plaintiff's contention that the landlord would have agreed to satisfy the tax liability. As we opined in sustaining the malpractice cause of action in the complaint on defendant's motion to dismiss, plaintiff had a strong bargaining position because the amount of time left on the lease, as well as the importance of the leased space to the landlord's conversion plans, would have pressured the landlord to acquiesce to plaintiff's relatively minor request (see Leggiadro, Ltd. v Winston & Strawn, LLP, 119 AD3d 442, 442-443 [1st Dept 2014]; see also Campbell v Rogers & Wells, 218 AD2d 576, 580 [1st [*2]Dept 1995]; Khadem v Fischer & Kagan, 215 AD2d 441, 443 [2d Dept 1995]). W & S has not proffered any new probative evidence to counter this aspect of plaintiff's legal malpractice claim.
A convicted attorney has filed a consent to disbarment in Illinois.
On December 3, 2014, Movant was formally charged by way of indictment in the Circuit Court of the 19th Judicial Circuit in Lake County with the offenses of home invasion, aggravated discharge of a firearm, reckless discharge of a firearm, aggravated unlawful use of a weapon and criminal trespass to residence in the matter of People of the State of Illinois v. Raymond Clutts, docket number 14 CF 3091. Count Two of that indictment charged Movant with home invasion, in violation of 720 ILCS 5/19-6(a)(3). Count Three of that indictment charged Movant with aggravated discharge of a firearm, in violation of 720 ILCS 5/24-1.2(a)(2).
On February 23, 2017, Movant entered into a voluntary plea of guilty to an amended Count Two, which charged him with attempt home invasion, in violation of 720 ILCS 5/8-4, and Count Three, aggravated discharge of a firearm. As part of the plea agreement, Movant stipulated that a trier of fact could find Movant guilty of attempt home invasion and aggravated discharge of a firearm, based on testimony from Movant’s daughter and former spouse that the women lived at a home in Hawthorne Woods, and that in the early evening hours of November 7, 2014, while both women were at home, Movant entered their home while armed with a firearm and threatened them with the imminent use of force while inside their home.
Movant further stipulated that if those witnesses were called, they would testify that while in the house he discharged a firearm in the direction of his former spouse.
On February 23, 2017, Judge Victoria Rossetti sentenced Movant to nine years and 11 months in the Illinois Department of Corrections on the amended Count Two, attempt home invasion, and 48 months of felony probation with standard conditions of probation on Count Three, aggravated discharge of a firearm, to be served consecutive to amended Count Two.
The Chicago Tribune covered the criminal case.
The incident leading to the charges against Clutts began when police received a 911 call reporting multiple gunshots fired at his ex-wife's Hawthorn Woods home.
According to authorities, Clutts fired a gun in the home several times when his wife and a child were present.
When police arrived, an officer discharged his weapon but did not strike Clutts, police said, and officers then took him into custody. A gun was recovered at the scene.
The occupants of the house had fled to a neighbor's residence after Clutts began firing the shots, police said. Officials said Clutts was able to enter the home through an unlocked door.
Friday, June 2, 2017
The New Jersey Supreme Court has reprimanded an attorney, adopting the sanction proposed by the Disciplinary Review Board.
The DRB letter notes that the attorney handled a divorce as well as an immigration matter for the client.
On October 23, 2003, [client] Ponti’s Final Judgment of Divorce was entered. Soon thereafter, respondent appeared with Ponti at her citizenship hearing. Her application was denied, however, because she was no longer married to a United States citizen and had not been a lawful permanent resident for at least five years. As a result, Ponti would be required to wait additional time before reapplying for citizenship.
On the day of the hearing, Ponti and respondent met at his office and drove together to the hearing in Newark, New Jersey. Because of the denial of her citizenship application, Ponti was emotionally distraught. After the hearing, Ponti and respondent went to a restaurant in New York. Afterward, they returned to respondent’s office after normal business hours. While they were alone in the office, respondent and Ponti engaged in sexual relations. Although respondent and Ponti disagree on the circumstances under which the initial sexual contact was made, both agree that they had sexual relations on the evening of the hearing.
Respondent admitted that, at a time of emotional turmoil for her, he began a sexual relationship with his client, Ponti. By all accounts, this relationship was consensual. Nonetheless, this conduct violated RPC 1.7(a)(2) because Ponti was emotionally vulnerable at the time. As her counsel, respondent should have exercised better judgment.
between April 26, 2005 and July 18, 2005, Ponti authorized four wire transfers in varying amounts, from her corporate business account, into respondent’s Buffalo Creek Ranch, Inc., checking account. In each instance, within a few days, and, on one occasion, on the same day, respondent repaid the loans by issuing a check either from his Buffalo Creek account or from a personal checking account he held jointly with his wife, and then signed Ponti’s name to the checks and deposited them into her corporate business account.
Respondent failed to provide Ponti with a writing fully disclosing the terms of the loans; failed to advise Ponti, in writing, of the desirability of seeking independent advice regarding the loans and their terms; and failed to obtain Ponti’s written, signed consent for the loans. Hence, he entered into a prohibited business transaction with his client by taking several small loans from her totaling $17,500; a violation of RPC 1.8(a).
The New Jersey law on sex with a client
Although it is not per se unethical for an attorney to enter into a sexual relationship with a client, the relative positions of the parties must be scrutinized to determine whether the relationship was prohibited...
Here, respondent did not engage in a sexual relationship with an appointed client; hence, unlike the attorneys in the above cases, he was not in a superior role vis-a-vis his client. Ponti, however, was in an emotionally vulnerable state in that her citizenship application had been denied, in part, because respondent’s firm made certain mistakes in handling the application in conjunction with her divorce. Thus, his conduct clearly violated RPC 1.7(a)(2).
In mitigation, respondent has expressed remorse for his conduct, which was aberrational. He readily admitted wrongdoing, stipulated to the facts, and consented to discipline. He also promptly repaid all loans he received from Ponti; thus, she incurred no economic injury. Finally, respondent has no history of discipline in thirty-seven years at the bar. On its own, in light of the mitigating factors, the discipline for respondent’s relationship with his client would likely be on the cusp between an admonition and a reprimand. Respondent, however, also entered into an improper business transaction with his client. Therefore, the Board determined that a reprimand was warranted.