Monday, October 1, 2018

What Happens In Atlantic City

An attorney with a diverse record of rior discipline has been suspended for six months and until further order by the New Jersey Supreme Court.

The Disciplinary Review Board reported

On March 17, 2015, an Atlantic County grand jury indicted respondent on two counts of third-degree making terroristic threats against [two men] 

He pleaded guilty to third degree simple assault and received probation

At the plea hearing, respondent testified that, at a time when he was "aggravated and angry," he approached Creamer in an attempt to put him in fear of bodily injury. Specifically, respondent positioned himself "inches" from Creamer’s face, screamed at him, and stated that he was going to "beat his ass in such a way to make him believe it." Respondent acknowledged that, based on his threat, Creamer would have understood that respondent’s intent was to inflict serious bodily injury on him. The judge accepted respondent’s plea and found him guilty of the disorderly persons offense.

Sanction

There is no typical or "baseline" measure of discipline in matters involving an attorney’s violent behavior. In re Buckley, 226 N.J. 478 (2016), and In re Goiran, 224 N.J. 446 (2016). Rather, such cases require fact-sensitive analyses. Ibid. To date, in such matters, the Court has imposed either a censure or a three-month suspension.

The DRB recounts the history of physically aggressive New Jersey lawyers.

Such as the Goiran case

The underlying conduct occurred on September 29, 2010, outside of the home of Goiran’s in-laws, where his estranged wife resided, along with the couple’s dog and cat. Ibid.

On the belief that he and his wife had agreed to his possession of their pets, the attorney telephoned his father-in-law and informed him of his intention to pick up the dog. Id. at 2. His father-in-law replied that he would not comply with the request until he had a chance to speak with his daughter, who had gone out for the evening. Ibid. Goiran went to the home anyway, where he engaged in a verbal confrontation with his father-in-law, which escalated to a physical altercation. Ibid.~ The attorney struck and bit his father-in-law as they wrestled to the ground. Ibid.

Here

Respondent has an admonition, two censures, and a pending three-month suspension. His misconduct in some of those matters demonstrated a serious lack of professional boundaries... Respondent’s behavior in this matter demonstrates a lack of boundaries in his personal life as well. Given the disturbing nature of respondent’s underlying conduct in this matter and his disciplinary history, we determine to impose a six-month suspension.

The sanction is consecutive to a three-month suspension for client-related misconduct. (Mike Frisch)

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

Thursday, September 27, 2018

The Bar Sometimes Rings Twice

The Mississippi Supreme Court imposed reciprocal disbarment based on a Louisiana order sanctioning an attorney for misconduct as both a judge and lawyer.

The Supreme Court of Louisiana, which has exclusive original jurisdiction in judicial disciplinary proceedings, found that the charges filed by the Commission were substantiated by clear and convincing evidence. Id. at 752. That court issued a forty-five page opinion, with an unpublished appendix, detailing its findings of Hughes’s judicial misconduct and her unprofessional conduct as an attorney and judicial candidate. Id. at 746-91. Because the record evinced an extraordinary pattern of misconduct, the Louisiana court concluded,  “Judge Hughes has demonstrated a blatant and incorrigible inability to conform to the rules imposed on any aspect of her career – be it notary, attorney, candidate, or judge.” Id. at 790.

The court found that, in Hughes’s capacity as a practicing attorney, she repeatedly had taken money from clients and had failed to perform the services for which she had been retained, and then she refused to refund the fees. Id. at 785. Out of the nine charges involving Hughes’s failure to account to former clients and/or to refund unearned fees, the court singled out several incidents for discussion as particularly representative of Hughes’s misconduct. Id. at 775 n.16. 

One of the matters involved accepting a fee to represent the son of Lana Turner on a second-degree murder charge.

The Supreme Court of Louisiana found that these and numerous similar charges involving Hughes’s refusal to refund unearned fees or to account to clients had been established by clear and convincing evidence. Id. at 775 n.16.

Sanction

In imposing the sanction of permanent disbarment upon Hughes, the Supreme Court of Louisiana explicitly or implicitly considered all nine criteria utilized by this Court to determine an appropriate sanction for attorney misconduct. Hughes did not respond to the Mississippi Bar’s motion for reciprocal discipline, and thus she has presented no mitigating factors for our consideration. No extraordinary circumstances compel, justify, or support variance from the sanction of disbarment imposed by the Supreme Court of Louisiana. Rather, the facts ascertained by the Supreme Court of Louisiana and the discipline imposed by that court after careful consideration of Hughes’s conduct under the Rules of Professional Conduct fully support this Court’s imposition of the sanction of disbarment. Therefore, based on the record before us, the Mississippi Rules of Discipline, and our case law, this Court finds that Yvonne L. Hughes shall be disbarred.

(Mike Frisch)

September 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Privilege Not A Right

An attorney who had practiced in violation of an order of suspension was disbarred by the Florida Supreme Court

The record evidence established, with respect to specific cases, that Bosecker continued to assist her clients during her suspension, based upon such conduct as advising her clients that she would monitor their cases and having had discussions with opposing counsel and court personnel during her suspension without advising them that she was under suspension. Bosecker also received copies of pleadings and orders filed in her clients’ cases throughout her suspension because she was still attorney of record in the cases, and did not promptly notify the courts or opposing counsel of her suspension.

She also violated some notice requirements and

Bosecker engaged in misrepresentation when she advised the Court on June 13, 2016, that she had notified all of her clients, opposing counsel, and the courts of her suspension. Bosecker was also dishonest in failing to promptly notify her clients, opposing counsel, and the courts of her suspension. Although Bosecker argues that she was merely mistaken and did not have the intent to deceive, her  actions demonstrate otherwise.

Various contentions of the attorney were rejected

Lastly, Bosecker argues that “[t]he rules treat suspended attorneys that are working as a legal assistant differently than individuals who are not lawyers and working as legal assistants,” and that as a result, her equal protection rights were violated. The Bar disagrees, pointing out that Bosecker is not a nonlawyer, and as such, is subject to the Bar Rules. One such prohibition is that a suspended attorney shall not engage in direct client contact with clients. Bosecker violated that prohibition. Contrary to Bosecker’s belief, there is no constitutional right to practice law; rather, it is a privilege to which the Court has exclusive jurisdiction under the Florida Constitution to oversee...

Having violated the Bar Rules 3- 5.1(e), 3-5.1(h), and 4-8.4(c)—i.e, having failed to provide notice to her clients and the courts where she had cases pending that she was under suspension, being in direct contact with clients and judicial staff on behalf of her clients pertaining to those cases, holding herself out to be authorized to practice law, and then continuing to act on behalf of her clients without acknowledging that she was no longer so authorized to act—Bosecker can hardly claim that she acted only as any paralegal or legal assistant would do. Based upon the foregoing, we approve of the referee’s report in part on the issue of guilt and approve the referee’s report on the issue of discipline.

Disbarred. (Mike Frisch)

September 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Niagara Fall

A judge has resigned and stipulated to misconduct before the New York Commission on Judicial Conduct

On September 17, 2016, Judge Tilney's wife passed away after a long illness.

Judge Tilney was apprised by the Commission in August 2018 that it was investigating a complaint against him, alleging that, at various times in 2017, he had committed misconduct both on and off the bench, including allegations that:

A. he made a culturally insensitive comment to a defendant at sentencing,

B. he yelled at his co-judge from the bench in a denigrating manner using vulgarity and

C. he posted racially offensive material in the office area of the courthouse.

Niagara Gazette reported on the removal.

 (Mike Frisch)

September 27, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Teenage Assault Does Not Prevent Bar Admission

The Ohio Supreme Court has ruled that an applicant may sit for the Bar examination in February 2019

The issue

Two members of the Cincinnati Bar Association admissions committee interviewed Wammes in September 2017, and the committee issued a provisional report recommending that his character and fitness be approved. Because Wammes had been adjudicated a delinquent child for conduct that would be a felony if committed by an adult, his application was submitted to the Board of Commissioners on Character and Fitness for review in accordance with Gov.Bar R. I(11)(D)(5)(a) and I(12).

A three-member panel appointed by the board conducted a hearing on January 18, 2018. At the hearing, Wammes testified that in the fall of 2007, when he was 15 years old, he struck a peer after the peer had expressed interest in Wammes’s girlfriend. The peer suffered a broken jaw. Wammes testified that when he saw the young man bleeding from the mouth, he immediately felt remorse and apologized. Wammes called his parents to confess what he had done. He also spoke to the victim’s mother on the phone and apologized. Based on this incident, Wammes was adjudicated a delinquent child. He performed community service, completed an anger-management assessment, and served only one year of a three year period of probation before he was released.

Now

the panel determined that Wammes had met his burden of proving his character, fitness, and moral qualifications for admission to the practice of law and recommended that we approve his registration application. The board unanimously adopted the panel’s report and recommendation, and there are no objections. Having thoroughly reviewed the record and applicable rules, we agree that Wammes has established that he possesses the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio.

The court found he met his burden of proving that he is "no longer the immature teenager he was 10 years ago." (Mike Frisch)

September 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

"The Only Appropriate Sanction"

Dan Trevas has a summary of an Ohio Supreme Court decision

The Ohio Supreme Court today disbarred a Delaware attorney primarily for misappropriating client funds then lying about his actions during disciplinary hearings.

In a unanimous per curiam opinion, the Supreme Court permanently disbarred Brian W. Harter. The Board of Professional Conduct found Harter committed 26 violations of the rules governing the conduct of Ohio lawyers and recommended his disbarment. Harter did not object to the recommendation.

Multiple Clients Complain About Representation
The Office of Disciplinary Counsel filed a complaint against Harter with the board in November 2017 based on rule violations it believed Harter committed while representing five clients.

Harter represented Jesse Williams in a workers’ compensation claim in 2014. Harter went to the Ohio Bureau of Workers’ Compensation (BWC) to pick up a settlement check for about $5,600 that was issued to Williams. Harter did not inform Williams that he picked up the check and Harter had it cashed by another client who owned a convenience store.

Williams discovered online that the check had been issued and when he asked Harter about the money, Harter provided multiple excuses for why he had not paid his client.

Williams eventually received $4,000 and filed a grievance against Harter. Harter repeatedly failed to respond to the disciplinary counsel’s request for information. In a deposition during the investigation, Harter denied having misused or stolen Williams’ funds.

“Ultimately, Harter admitted that he had misappropriated Williams’s funds in order to pay his child support and other personal expenses,” the Court’s opinion stated.

Harter engaged in a similar pattern when representing Clarence Davis. The attorney obtained a $4,251 BWC check in Davis’ name, had it cashed at the other client’s convenience store, and did not provide Davis his full share of the funds. Although Harter retained part of the settlement to pay Davis’ medical bills, he did not pay them.  Nor did he return phone calls from Davis, who explained that his doctor refused to treat him until his bill was paid. Davis eventually retained another attorney who was able to persuade his doctor to resume treatment.

Other Client Cases Mishandled
Harter engaged in ethical misconduct in three other client matters:

  • He accepted money from a client to file a divorce and claimed that he put the money on a pre-paid debit card that to pay the divorce filing fee. The Court was not persuaded that he put the money on the card, and Harter ultimately admitted he owed the client $500.
  • He represented a client in a criminal matter, taking over for a court-appointed lawyer. He asserted to the client and the appointed lawyer that he received a 90-day continuance of the case from the court bailiff. The bailiff testified the conversation never took place.
  • He settled a personal injury claim for a client for $6,500 and agreed to settle or pay about $4,000 in medical bills for the client. He did not attempt to settle the bills according to the agreement with his client, but eventually reduced one of them to $1,500. The Court found he owed the client about $1,200 that remained from the settlement.

Court Considers Sanction
When considering a proposed sanction, the Court examines aggravating circumstances that could increase the punishment for a lawyer and mitigating factors, which could lead to a reduced penalty.

The Court noted Harter had been previously suspended for five days in 2013 for defaulting on a child-support order. The opinion also stated the “record is replete with evidence of his dishonest and selfish motive.” The Court determined Harter harmed vulnerable clients, including Davis, who went without medical treatment for months while waiting for Harter to pay his doctor from the BWC settlement check.

“He lied repeatedly throughout his depositions and the hearing, and he admitted that he kept his clients’ money ‘because [he] needed it,’ used it to cover his personal expenses, and failed to make full restitution to all of the affected clients,” the opinion stated.

The Court also noted that Harter was indicted in Franklin County Common Pleas Court in 2014 for trafficking and possession of drugs, all-fifth-degree felonies. He received intervention in lieu of conviction from the court. Harter claimed he had an opioid addiction, but did not link his addiction to the professional misconduct he committed. And the opinion noted that more than two years after receiving intervention in lieu of conviction, he had not sought or obtained court-ordered psychological or opioid-specific treatment.

The only mitigating factor accepted by the board was a single letter from his best friend, an assistant U.S. attorney, who attested to his good character.

After weighing the factors, the Court concluded that “the only appropriate sanction for Harter’s misconduct is permanent disbarment.”

2018-0249. Disciplinary Counsel v. Harter, Slip Opinion No. 2018-Ohio-3899.

(Mike Frisch)

 

 

September 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 26, 2018

Road Rage Incident Leads To Suspension

Dan Trevas reports on a decision issued today by the Ohio Supreme Court

The Ohio Supreme Court today suspended a Columbus lawyer for his conduct related to a 2015 incident with a bicyclist that led to a subsequent scuffle with a doctor and the attorney stomping on the doctor’s cell phone.

In a unanimous per curiam opinion, the Supreme Court suspended John J. Okuley for one year with six months stayed. The Board of Professional Conduct recommended a two-year suspension with one year stayed, but Okuley objected, claiming a lesser sanction was warranted.

Encounter with Cyclist Escalated
In April 2015, Okuley was driving on a residential street when he stopped his car behind blocked traffic. Eric Hansen approached Okuley’s car from behind on a bicycle and bypassed the line of cars. Okuley believed Hansen smacked or hit his car as he passed. Believing Hansen damaged his car, Okuley followed Hansen to another street. He then drove around Hansen and abruptly stopped in front of him causing Hansen to crash into the rear of the car.

John Bahling, a physician who witnessed the incident, began recording with his cell phone an argument between Okuley and Hansen. Okuley asked Bahling to stop recording, and the incident escalated into a scuffle in which Bahling’s phone fell to the ground. A second witness, Daniel Walker, arrived on the scene. Walker would report that he tried to separate Okuley and Bahling and that when the phone fell to the ground, Okuley stomped on it and smashed it.

When a police officer arrived, Okuley stated that Hansen “purposefully” ran into the back of his car and that he tried to take Bahling’s phone as “evidence.” The officer reported that he told Okuley he could not take another person’s phone, and Okuley replied, “I’m pretty sure you’re wrong officer.... I’m allowed to collect evidence.”

Attorney Charged with Crime
The city of Columbus charged Okuley with a misdemeanor for shattering Bahling’s phone, and Okuley pleadednot guilty. He appeared at the courtroom for an August 2015 trial, but left the courthouse when the proceeding did not start on time. He left without requesting a continuance or informing the court that he was leaving. A warrant was issued for his arrest, and he was later arrested. In February 2016, Okuley pleaded no contest to the charge and was ordered to pay Bahling $950 for the phone and pay a $100 fine.

Bahling filed a civil lawsuit against Okuley. During the civil proceedings Okuley claimed Hansen twice “intentionally collided” with his car, and that Bahling “needlessly interceded in a minor traffic accident,” and attacked him. He denied destroying the phone and accused Bahling of committing perjury in his statements to the police and to the court during his criminal case. The two eventually settled the case with Okuley paying Bahling $5,000.

Bar Association Investigates
After the conviction, the Columbus Bar Association investigated the mater. During a deposition, Okuley testified that Hansen twice hit his car and Bahling started the fight. The bar association filed a complaint against Okuley with the Board of Professional Conduct, charging Okuley with violating multiple rules governing the conduct of Ohio lawyers.

The board found Okuley broke several rules, including altering or destroying evidence, disobeying court rules, and engaging in conducting involving dishonesty, fraud, deceit, or misrepresentation.

The board found Okuley’s testimony during his disciplinary proceeding was “clearly false and contradicted by the testimony of all the witnesses at the scene, as well as the video recording and the recording of Hansen’s 911 call.” It recommended the Supreme Court suspend Okuley for two years with one-year stayed.

Court Considers Sanction 
When considering a proposed sanction, the Court examines aggravating circumstances that could increase the punishment for a lawyer and mitigating factors, which could lead to a reduced penalty.

The Court found Okuley engaged in a pattern of misconduct, made false statements during the disciplinary process, and acted with a selfish or dishonest motive. The Court also found he had no prior disciplinary record, submitted evidence of a good reputation and character, and received other civil and criminal sanctions for his acts.

The Court also noted that Okuley entered into a three-year contract with the Ohio Lawyers Assistance Program (OLAP), in which he agreed to treatment with a psychologist.

While the board had recommended a two-year suspension, a three-member board hearing panel suggested the one-year suspension, recognizing that Okuley’s conduct did not involve any clients. The Court noted he harmed the public by creating a danger on the roadway for Hansen, acting violently toward Bahling, and engaging in a pattern of deceitful conduct with law enforcement.

The Court ruled that Okuley’s behavior was more in line with prior cases where lawyers who engaged in misconduct then lied to investigators under oath received one-year suspensions. The Court stayed the final six months of his suspension with the conditions that he maintain compliance with his OLAP contract and not engage in more misconduct.

2017-1417Columbus Bar Assn. v. OkuleySlip Opinion No. 2018-Ohio-3857.

Video camera icon View oral argument video of this case.

(Mike Frisch)

September 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

An Unusual Fee Payment Arrangement

Dan Trevas has a case summary on the Ohio Supreme Court web page

The Ohio Supreme Court today suspended a Columbus attorney based on an unusual fee payment arrangement that resulted in a dispute.

In a unanimous per curiam opinion, the Supreme Court suspended David P. Rieser for two years with one year stayed, and ordered him to pay $50,000 in restitution to his former client.

Lawyer Accepts Voluntarily Paid Excessive Fee
In March 2012, Rieser was retained by a psychiatrist who had been indicted on felony counts of workers’ compensation fraud, theft, and tampering with records. The two agreed to an initial $30,000 attorney fee, but did not put it in writing or discuss the rate or total amount of Rieser’s fee.

Rieser did not keep time records during the doctor’s representation and did not send him any billing statements. He did not request any additional fee payments, but between June and December 2012, the psychiatrist sent him eight checks, bringing the total payment to Rieser to about $108,000.

Rieser deposited $50,000 into his client trust account, put $23,000 into his own business account, and provided $25,000 to a local art gallery. He did not maintain records for the trust account.

Case Resolved, Fee Disputed
Rieser understood the doctor’s goal was to maintain his medical license and was informed by a fellow attorney that the best chance for this was if his client was not convicted of a felony. Rieser orchestrated a plea bargainwhere the doctor pleaded guilty to one misdemeanor count of workers’ compensation fraud and paid about $71,000 to the Ohio Bureau of Workers’ Compensation.

Nearly three years later, the doctor filed a grievance with the Columbus Bar Association, claiming he was charged an excessive fee.

Rieser and the bar association stipulated to the Board of Professional Conduct that Rieser violated multiple rules, including failing to disclose to the client that he did not maintain professional liability insurance; charging or collecting an excessive fee; not communicating to the client the basis or rate of the fee; and failing to respond to information requests during a disciplinary investigation.

The professional conduct board recommended that the Supreme Court indefinitely suspend Rieser. Rieser objected, arguing a lesser sanction was more appropriate.

Court Examines Attorney’s Behavior
The Court publicly reprimanded Rieser in 1995 for neglecting two client matters. In 2001, he was suspended for two years, with 18 months stayed, for neglecting two other client matters.

When considering a proposed sanction, the Court examines aggravating circumstances that could increase the punishment for a lawyer and mitigating factors, which could lead to a reduced penalty.

The Court noted Rieser had prior violations, committed multiple rule violations, and failed to cooperate with the bar association’s investigation. It also considered letters from judges and lawyers attesting to Rieser’s good character and reputation. Rieser established that he had a mental-health disorder during the time of the doctor’s representation and successfully completed treatment for it.

The Court also considered that Rieser made a good faith effort to resolve the dispute by offering a partial discount to the client, and placed the $50,000 in the trust account into escrow after the offer was rejected.

The opinion stated that parties agreed the fee was excessive, but could not agree on what was a reasonable amount. Various experts testifying in the case placed the range for handling this type of legal matter from $15,000 to $80,000. The board recommended that Rieser return the full $50,000 from the trust account to the doctor.

Rieser argued the doctor repeatedly expressed satisfaction with his work, and that he obtained the best possible result for his client. Rieser also told his client that it was not necessary to keep sending him money beyond the initial $30,000 and that he suggested they wait and see how the case progressed before more payments were made.

“Indeed, Rieser’s misconduct is unusual in that he did not charge a clearly excessive fee, so much as he accepted the client’s voluntary — but excessive — payments,” the opinion stated.

The Court noted that Rieser has reduced his caseload, has worked with a lawyer to improve his office- and trust-account management practices, and has continued his mental health treatment.

The Court suspended him for two years, with one year stayed with the conditions that he pay restitution and not engage in any more misconduct.

2007-1417Columbus Bar Assn. v. RieserSlip Opinion No. 2018-Ohio-3860.

Video camera icon View oral argument video of this case.

(Mike Frisch)

September 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Longest Strangest Trip May Be Nearing End

The District of Columbia Court of Appeals will hear arguments this morning in perhaps the most blatant case of systemic failure in bar discipline history.

As I posted in July 2017:

What may be the longest and strangest tale in the long strange trip of the District of Columbia disciplinary system may be nearing an end with the release of the report of a fractured Board on Professional Responsibility in In re Quinne Harris-Lindsey.

Here's where we are in a case that began in 2002 with a complaint from a Superior Court judge concerning payments in a single probate matter

There is no majority position as to sanction. Mr. Carter, in a statement joined by Vice Chair Ms. Butler and Mr. Bundy, recommends an informal admonition for Respondent’s recordkeeping violation. Mr. Peirce, in a statement joined by Mr. Bernstein, finds that Respondent also violated Rule 8.4(d), and recommends a public censure. Chair Mr. Bernius, in a statement joined by Ms. Smith, agrees with the Hearing Committee that Respondent engaged in reckless misappropriation, and recommends disbarment.

While a majority of Board members has determined that Respondent did not violate Rule 1.15(a) (misappropriation) and a different majority has found no Rule 8.4(d) violation, we have no majority sanction recommendation despite the unanimous finding of a recordkeeping violation. The recommended sanctions in this case run the gamut. Mr. Bernius and Ms. Smith recommend disbarment, as they must because they find reckless misappropriation without any extraordinary mitigating factors. Mr. Peirce and Mr. Bernstein recommend public censure, as they find two rule violations with the additional Rule 8.4(d) charge. Vice Chair Ms. Butler, Mr. Bundy, and Mr. Carter recommend that Respondent be sanctioned with an informal admonition for the recordkeeping charge, which they believe is the only violation for which Disciplinary Counsel has met its burden of proof.

If you count only seven board members, it is because two board members are recused. One chaired the hearing committee; the other reviewed the proposed consent discipline.

The case was docketed for investigation in 2002 with charges filed some seven years later.

So far, nothing to see here.

The story from there

This case has proceeded since 2009 on the basis that Respondent allegedly misappropriated funds entrusted to her. Disciplinary Counsel charged the case as misappropriation. The parties attempted to resolve it through negotiated discipline as a negligent misappropriation case. The Court and the Board considered the circumstances in which misappropriation charges can properly be resolved through negotiated discipline, and the Court ordered this case to be referred to a Hearing Committee for a full evidentiary hearing. Disciplinary Counsel presented a revised Specification of Charges principally alleging misappropriation. After a full evidentiary hearing, both parties agreed that Respondent had committed negligent misappropriation and violated her recordkeeping obligations, and the Hearing Committee made recommended findings of fact and conclusions of law. Based on the parties’ agreement that some kind of misappropriation had occurred, the Hearing Committee assumed misappropriation and stated that the primary question to be decided was whether the misappropriation was negligent or reckless. The Hearing Committee’s principal conclusion was that Respondent committed reckless misappropriation on at least one occasion and therefore should be disbarred. 

Chair Robert Bernius agreed with the Hearing Committee on misconduct and sanction

I agree with the Hearing Committee’s conclusion that Respondent committed reckless misappropriation and failed to keep adequate records of entrusted funds, and that she must consequently be disbarred.

I disagree, however, with the majority’s detection, analysis, and resolution of issues that the parties intentionally did not raise or brief to the Board. The Board should not decide questions that the parties, for their own unexpressed and presumably sound reasons, have chosen to ignore.

A very interesting concurrence (joined by members Bundy and Butler) from Jason Carter

We recommend that that the Court impose a sanction of an informal admonition for the proven recordkeeping violation. We conclude that the Hearing Committee’s finding of reckless misappropriation is incorrect as a matter of law. In the alternative, if the Court declines to adopt the majority Board’s position, we believe Disciplinary Counsel has proven, at most, a negligent misappropriation so that Respondent should be sanctioned with a six-month suspension, but we recommend that the entire six months be stayed with the conditions that Respondent (1) attend a general continuing legal education class and provide proof of attendance to Disciplinary Counsel; and (2) consult with the D.C. Bar’s Practice Management Advisory Service in the event that she decides to enter private practice. See R Br. at 10. Even if the Court were to find a reckless misappropriation, we believe that the fact that the alleged misconduct occurred in 1999 and Respondent’s exemplary practice of law over the past more than fifteen years warrants due consideration in mitigation of sanction. See Schneider, 553 A.2d at 212; Miller, 553 A.2d at 206. Moreover, extenuating circumstances, as described supra, exist that warrant a lesser sanction than disbarment. See Addams, 579 A.2d at 193; see also Hewett, 11 A.3d at 290 (extraordinary mitigating circumstances). 

The Hewitt case is the only extraordinary circumstance found to avoid the Addams result. I call the case The Altruistic Theft. 

My commentary concerning the Harris-Lindsey Hearing Committee report is linked here.  

The hearing committee report reflects the undeniable fact that the case came to the Office of Disciplinary Counsel fourteen years and one name change ago. I do know that some of the delay is attributable to efforts (which I supported) in 2011 to resolve the case with a negligent misappropriation conclusion and a consent suspension.  When the court rejected a consent sanction in 2011,  I predicted the case would not get finally resolved until 2016. 

How naively optimistic was I. Look for final action in maybe 2018-19. 

Once again the D.C. system shows its system-wide dysfunction - a first-level report (subject to board review and Court final action) of an attorney fourteen years after the investigation  commenced.

Cases regularly take ten years to move from soup to nuts. This one has a shot at twenty.

A rather straightforward case involving a single probate matter where the facts were not in dispute - only the attorney's intent.

My prediction: This case may well lead to the overturning of the en banc holding of In re Addams that disbarment is required in virtually all cases of intentional or reckless misappropriation.  Disciplinary Counsel's delay may well play a role in the demise of that doctrine.

Given this disposition, count that prediction as dead wrong!

My comments on the consent discipline attempt may be found here.

I understand that implementation of the consent rule has been a bumpy ride to date. Perhaps all concerned (Board, Court and Bar Counsel) share some responsibility for the current mess. Perhaps part of it is a good faith disagreement about the best way to use the process. But, in the end, a rule that gives Bar Counsel no meaningful discretion to evaluate credibility is useless.

Given the glacial pace of D.C. bar discipline, consent dispositions are a necessary tool. I can only hope that the Court sees the light here and decides the case in a manner that will promote, not impair, fairness and efficiency. The Board's approach will gut the one tool given Bar Counsel to resolve cases by agreement and save limited resources for the cases that require a plenary hearing.

Now, after 15 years of back and forth, the board's wisdom

Now the Board is considering this case for the first time on a factual record developed in a contested hearing. After carefully considering and adopting the Hearing Committee’s proposed findings of fact, nearly all of which are supported by substantial evidence, and conducting the required de novo review of the proposed conclusions of law and recommended sanction, five members of the Board conclude that Disciplinary Counsel failed to meet its burden of proving, by clear and convincing evidence, that either the client or the Superior Court’s Probate Division (“Probate Court”) entrusted any funds to Respondent. The evidence shows that no estate funds could be spent or were paid to Respondent without the client’s signature and approval, and the Probate Court never appointed Respondent to any fiduciary role. Since neither the client nor the Probate Court entrusted any funds to Respondent, the charges of misappropriation must fail as a matter of law. Two Board members dissent from that conclusion and would affirm the Hearing Committee’s finding of reckless misappropriation. A different five-member majority affirms the Hearing Committee’s conclusion that Disciplinary Counsel (who conceded the issue in post-hearing briefing) failed to prove the charged violation of Rule 8.4(d) by clear and convincing evidence. Two Board members dissent from that determination and would conclude that Respondent’s conduct seriously interfered with the administration of justice in violation of Rule 8.4(d).

That clears things up.

 As to sanction

a plurality of Board members recommend an informal admonition, but there is no majority position with respect to the appropriate sanction.

The board was unanimous in finding a recordkeeping violation. 

The conduct at issue took place in the prior century. 

From negotiated disposition of a six-month suspension to disbarment and back now to the most lenient possible public sanction. 

I guess this ends in an informal admonition, the lowest sanction that commands a plurality.

The last time something like this happened was the en banc sanction in In re Abrams, a case (of mine) that is best remembered for its holding that a pardon did not preclude bar discipline.

As reflected in the concurring and dissenting opinions that follow, Judges Ferren, Schwelb, and Farrell are of the opinion that Abrams should be suspended from practice for six months.   Judge Ruiz would adopt the Board's recommendation that Abrams be suspended from practice for one year.   Judge King is of the opinion that Abrams should receive a public censure.   Chief Judge Wagner and Judges Terry, Steadman, and Reid believe that the presidential pardon precludes this court from imposing any sanction at all.

There is thus no specific sanction which commands the support of a majority of the court.   Public censure, however, is a less severe disposition than suspension from practice.   Under the unusual circumstances here presented, and solely in order to enable the court to dispose of the case, the four judges who believe that Abrams should be suspended from practice have agreed that the sanction proposed by Judge King should be imposed.   Accordingly, in conformity with D.C.Code § 11-2502 (1995), Elliott Abrams, Esq. is hereby publicly censured for professional misconduct.

If Disciplinary Counsel fights this, there is no board sanction recommendation for the court to grant deference (cognoscenti will recall that Addams itself was a 4-4 board report without a sanction majority); nor will the court be obligated to defer to the board's ultimate finding on intent, which is a question of law that the court would consider de novo. 

Final thought: If you are seeking clarity and guidance on an important real world issue that affects how law is ethically practiced, look elsewhere.

 Mr. Toad's got nothing on this.

Editor's note: When I opined that the case was almost over in July of last year, I was wrong as usual.  I do not envy the court's panel (Associate Judges Glickman, Thompson, and Beckwith) in sorting this mess out. 

(Mike Frisch)

September 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 25, 2018

"A Bright And Accomplished Lawyer"

The Utah Supreme Court accepted findings of misconduct in an attorney's various tax lapses but remanded the district court's disbarment order for reconsideration of the sanction

After graduating from Stanford Law School in 1980, Mr. Steffensen became a member of the bar and began working as a lawyer in a large firm. He primarily represented a major bank focused on transactional work and real estate development. He left the firm approximately seven years later, continuing to work as a lawyer in a sole proprietorship. Then, in 1995, Mr. Steffensen incorporated the first of his many professional law firms.

Mr. Steffensen repeatedly failed to maintain accounting practices that would keep his law firms viable. Mr. Steffensen acknowledges his “gross[] negligen[ce]” in “failing to file . . . employee withholding tax returns.” Additionally, Mr. Steffensen opened a new law firm each time the previous one financially floundered. To date, Mr. Steffensen has incorporated five firms subsequent to his sole proprietorship. Financial trouble led to the demise of at least three previous firms, with taxes left unpaid. The law firm currently in operation is AAA Law, PC.

This situation led to trouble

In May 2009, Mr. Steffensen was charged with one count each of Failing to Render a Proper Tax Return (for tax years 2003– 2008), Intent to Evade (for tax years 2003–2008), and Unlawful Dealing of Property by a Fiduciary (for years 2003–2006). On March 1, 2010, Mr. Steffensen entered into a diversion agreement with the State in which he did not admit to guilt but did admit there was probable cause for the charges against him. In that agreement, the charges were amended to an “attempt to commit a crime,” UTAH CODE § 76-4-101, namely “knowingly and intentionally, and without a reasonable good faith basis, fail[ing] to make, render, sign or verify any return within the time required by law,” id. § 76-8-1101(1)(c)(i). Mr. Steffensen in turn paid all taxes along with penalties.

The matter was reported to the Bar in September 2009.

In these proceedings brought before the district court by the OPC, the court concluded Mr. Steffensen violated both rule 8.4(b) and (c). Mr. Steffensen challenges the admissibility of evidence that the court allowed in his adjudication hearing as well as the court’s determination of his mental state. He argues that the evidence was irrelevant and prejudicial. We hold that the evidence was relevant and admissible. Mr. Steffensen also argues that the district court’s determination that his actions were “knowing and intentional” was not supported by the evidence. We disagree and affirm the district court’s findings of fact and conclusions of law at the adjudication hearing.

The court found the conduct was knowing

The district court’s findings regarding Mr. Steffensen’s mental state were certainly not clearly erroneous. Mr. Steffensen has had a lengthy career as a practicing lawyer. “Mr. Steffensen is a bright and accomplished lawyer, not someone with ignorance of the laws.” He has worked for large firms, as a solo practitioner, and at small law firms he owned and operated. Mr. Steffensen testified that he knew about the requirements surrounding withholding taxes. Mr. Steffensen had dealt with the ramifications of failing to pay federal taxes and as a result “would have been acutely aware of his obligations going forward.” “There were numerous offenses” and “numerous occasions of his failure to remit.” Mr. Steffensen also testified that because he failed to remit withholding taxes, he has paid penalties and fines (totaling about $100,000), approximately double what he would have paid had he remitted the taxes timely.

But...taxes

Taxes generally fail to provide the payer with a warm and fuzzy feeling. “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.” 10 Letter from Benjamin Franklin to Jean Baptiste Le Roy (Nov. 13, 1789), in THE WRITINGS OF BENJAMIN FRANKLIN 68, 69 (Albert Henry Smyth ed. 1907). Certain or not, “knowingly and intentionally” failing to file taxes is a crime that reflects adversely on a lawyer’s fitness to practice law...

Because disbarment is so harmful to an attorney, we do not take its imposition lightly. And, in this case, we find disbarment under rule 14-605(a)(1) or (a)(2) of the Rules Governing the Utah State Bar unsubstantiated, and we remand for a new determination of the appropriate sanction.

The Rules

Rule 14-605 distinguishes between behavior that qualifies for disbarment, suspension, reprimand, and admonition. Not all professional misconduct defined in rule 8.4(a), (d), (e), or (f) results in presumptive disbarment, and it is therefore graded using specific criteria as shown in rule 14-605(a)(1), (b)(1), (c)(1), and (d)(1). Violations of rule 8.4(b) or (c) are notably absent from 14-605(a)(1), (b)(1), (c)(1), and (d)(1). Instead, the appropriate sanctions for violations of rule 8.4(b) or (c) appear in other subsections of rule 14-605.

. ..Because neither of the criminal acts found by the district court have one of the necessary elements listed in rule 14-605(a)(2), we hold that disbarment is unwarranted under that subsection.

Remand is the answer

Without specific findings that a violation of rule 8.4(c) falls under the requirements of rule 14-605(a)(3), including that it “seriously adversely reflects on the lawyer’s fitness to practice law” and is “intentional misconduct” other than conduct that would fall under rule 14-605(a)(1) or (a)(2), we will not presume disbarment is the appropriate sanction under rule 14-605(a)(3). “[A]lthough we always give serious consideration to the findings and [rulings] of the [district court],” we will not hold that disbarment is appropriate without clear documentation of the rationale and reasoning for the court’s conclusion.

With a request

Without reopening the proceedings, we leave it to the district court to interpret its own order and encourage the court to include more detailed findings specific to each violation and the rationale behind the sanction imposed for each violation. In doing so, we implore all state district courts to be detailed in their findings and to be clear in tying the sanction imposed to the professional misconduct found. Therefore, having rejected disbarment under rule 14-605(a)(1) and (a)(2), we remand to the district court for clarification of its findings of fact and conclusions of law in its order regarding Mr. Steffensen’s sanctions for professional misconduct under rule 8.4(b) and (c).

(Mike Frisch)

September 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Bad Bet

The Oklahoma Supreme Court has denied reinstatement of an attorney who had resigned in the face of serious allegations in 2011

Petitioner was initially admitted to the Oklahoma Bar Association in 1982. This Court has twice before disciplined Petitioner for mishandling client trust funds. First, in 2000, we suspended Petitioner's license for thirty (30) days; State ex rel. Okla. Bar Ass'n v. Taylor (Taylor I)2000 OK 35, ¶ 36, 4 P.3d 1242, 1256; then three years later, we imposed a public reprimand for similar misconduct. State ex rel. Okla. Bar Ass'n v. Taylor (Taylor II)2003 OK 56, ¶¶ 15, 24, 71 P.3d 18, 26, 29.1

In 2011, the General Counsel for the Oklahoma Bar Association alleged that Petitioner misappropriated approximately $80,000 of client funds to gamble at casinos. The Bar stated that the money Petitioner stole from the account was from settlement funds awarded to a widowed client after her husband had been killed in a motorcycle accident. Petitioner allegedly removed the settlement funds incrementally and gambled away the entire amount on slot machines. After spending all of the money, Petitioner told his client what he had done and then pressured her into signing an affidavit characterizing the improper taking as "a loan." Petitioner informed the client that if she did not sign the affidavit, or if she reported him to the Bar, he would be disbarred and thus unable to pay her back at all. Afterwards, Petitioner reimbursed the stolen funds to the trust account with money partially provided to him by his mother.

His efforts to reacquire the Court's confidence fell short

In August 2017, Petitioner applied for reinstatement following the requisite five-year waiting period. RGDP 8.1(c). After conducting its evidentiary hearing, the Trial Panel found that while Petitioner possessed sufficient competency, he had engaged in the unauthorized practice of law while resigned and had "utterly failed" to show the moral character warranting reinstatement. Trial Panel Rep., pp. 3-5, Mar. 26, 2018. The report concluded:

Regrettably, the sum of evidence, including the serious personal and financial harm occasioned on his wife specifically, shows that his continued gambling is a priority which exceeds his desire to regain his license to practice law.

 He engaged in unauthorized federal court practice

 Regarding Petitioner's unauthorized practice of law in this federal case, the Trial Panel stated that Petitioner "was between the Devil and The Deep, Blue Sea." Trial Panel Rep., p. 4, Mar. 26, 2018. We disagree. No outside force prevented Petitioner from filing a truthful, timely notice of his suspension. It was Petitioner's dishonesty and delay -- no one else's -- that landed him and his client in this predicament. Petitioner's behavior presents clear rule violations. This Court will not simply ignore Petitioner's lack of candor and noncompliance, particularly because he should have been extraordinarily careful to follow even the most minor of rules while resigned. See In re Reinstatement of DeBacker2008 OK 17, ¶ 23 n.23, 184 P.3d 506, 515, n.23.

The Court found him a bad bet

 Petitioner's moral character presents a central issue in this matter, primarily because Petitioner has produced little evidence to show how he has utilized the past six (6) years to rehabilitate himself. For many years, Petitioner played only live poker and was able to engage in this activity with moderate control. Eventually, however, Petitioner began playing slot machines and got hooked. He then started dipping into his client's trust account to fuel this addiction. Thereafter, in order to restore what he had improperly taken, Petitioner strapped himself and his family with oppressive debt. Instead of endeavoring to climb out of this hole, Petitioner dug himself and his family deeper still. Petitioner currently owes considerable sums of money to the Internal Revenue Service, the Oklahoma Tax Commission, and providers of student loans for the benefit of his children.

This Court has reinstated applicants who, like Petitioner, took client funds to pay for gambling, but only after the applicant established clearly and convincingly that a re-offense was not likely. For example, in In re Reinstatement of Elias, this Court noted, "It is significant that Elias has put great efforts into placing himself in a position to be considered for readmission by making restitution and clearing his debts."1988 OK 86, ¶ 10, 759 P.2d 1021, 1024. Likewise, we have reinstated other applicants who discontinued their injurious gambling behaviors and otherwise demonstrated consistent life changes illustrating the moral character warranting reinstatement. In re Reinstatement of Clifton1990 OK 15, ¶¶ 3-5, 787 P.2d 862, 862-63; In re Reinstatement of Snodgrass1933 OK 592, ¶¶ 11-13, 26 P.2d 756, 758. Conversely, Petitioner has neither cleared his debts nor gained control over his addictive behavior....

 We must consider Petitioner's ongoing addiction to gambling, and how that addiction may impugn the interests of the public, the courts, and the legal profession. At times, Petitioner has declared that he is finished gambling, yet before the Trial Panel he testified otherwise:

I'm not saying I won't ever, in twenty (20) years, go to Vegas. I can't tell you that. But my present plan today is not to gamble anywhere, not online, not for play money, not -- because I've shut that all down. My wife watches me.

Trial Panel Hr'g Tr., p. 386, Jan. 10, 2018. Petitioner's verbal assurances that he will not gamble again are insufficient to meet his high burden of showing he is fit to practice law. Likewise, the Court will not place the responsibility on Petitioner's wife to "keep an eye on him" and manage his tendencies for the foreseeable future. The gambling behaviors are Petitioner's problem, and he must be the one to remedy them before the Court will favor reinstatement.

Equally troubling, Petitioner does not appear to fully appreciate the wrongfulness of his prior misconduct and the resulting disrepute upon the legal profession. The Trial Panel asked Petitioner if he believed he possessed the good moral character to warrant reinstatement, to which he plainly replied: "Yes, I think I always have." Id. at 341 (emphasis added). Unfortunately, we disagree. Petitioner dismisses the gravity of his dishonesty and in doing so minimizes the corrosive impact of his decisions on clients and family members left in his wake.

Contrary to accepting responsibility, at the reinstatement hearing Petitioner attempted to recant his prior waiver of rights to contest the Bar's allegations by denying certain portions of their findings. Specifically, Petitioner testified that he did not coerce or pressure his former client to sign the cover-up affidavit after he siphoned off her money. To now switch his position on this critical aspect of the original complaint shows Petitioner possesses neither remorse nor a willingness to stand by his word and take responsibility for his wrongdoing.

Conlusion

The combination of Petitioner's ongoing addiction, significant debt, and failure to accept responsibility indicate the potential for greater malfeasance, harm to clients, and disrespect upon all who practice law in Oklahoma. Upon thorough review, we find Petitioner has engaged in the unauthorized practice of law, lacks sufficient competency, and does not currently possess the moral character befitting membership to the Bar. Petitioner has failed to meet his burden by clear and convincing evidence. Therefore, his request for reinstatement is denied. Pursuant to Rule 11.1(c) of the RGDP, Petitioner is ordered to pay costs associated with this proceeding in the amount of $148.25. 5 O.S.2011, ch. 1, app. 1-A. Petitioner must wait at least one (1) year from this denial before applying again for reinstatement. RGDP 11.1(e).

(Mike Frisch)

September 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Fine Mess

A town court justice has entered into a stipulation and resigned her office in a determination of the New York Commission on Judicial Conduct.

AHAM reported  on charges

 Manchester Town judge who ordered people to pay up for traffic and other infractions has been indicted for stealing that money.

13WHAM News had exclusive camera access to the courtroom where we learned the alleged theft is three times higher than first reported.

 
 
 
 
 
 
 
 

Prosecutors say Judge Erika Martin pocketed the money beginning the very first month as her swearing in - which was January 2016. Additional thefts happened through December of that year, prosecutors said.

The money came from traffic fines and other court surcharges. Prosecutors say the thefts totaled $9,000.

Judge Martin pleaded not guilty to a single count of three-degree grand larceny. Her attorney said she had no intention of taking a plea deal or pleading guilty.

"This case is going to be wrought with book keeping errors," said defense attorney Jason Housel. He contends the town used a flawed process for collecting, handling and depositing the cash.

"This isn't a situation where Ms. Martin is a bank teller taking in people's money and depositing it into a bank account," Housel said. "I don't think there was an adequate investigation into the other people who may have had their hands on these funds."

District Attorney Tantillo would not discuss the evidence other than to say it was sufficient enough to get an indictment.

In granting cameras in the courtroom, Ontario County Judge William Kocher overrode objections by the defense that this case is about a small town and the presence of the media would make it difficult to get an impartial jury. The defense also indicated they may seek a change of venue.

13WHAM News fought for access because Judge Martin is a public figure who was elected into a position of public trust.

"It's always troubling when you have an allegation against someone in a position of responsibility like this because we all rely on these people to do the job in the right way," said Tantillo.

Martin is the first woman justice to serve in Manchester, Ontario County. She is a former probation officer. She is one of two justices and has been relieved of her duties pending the outcome of the case.

Martin is scheduled to return to court in December.

(Mike Frisch)

September 25, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

No (Debt) Relief

The Ohio Supreme Court has this discipline summary per Dan Travas

The Ohio Supreme Court indefinitely suspended a Cincinnati attorney for doing little to no work for clients he received through referrals from a now defunct California debt-relief company.

Justin E. Fernandez, whom the Supreme Court publicly reprimanded in 2016, was indefinitely suspended by the Court for violating multiple rules governing the conduct of Ohio attorneys. The per curiam opinion stated the violations included improperly retaining fees paid by the clients, overdrafting his client trust account, and failing to respond to disciplinary investigations.

The Cincinnati Bar Association, which brought the complaint against Fernandez to the Board of Professional Conduct, recommended a one-year suspension. The board recommended an indefinite suspension, and a Court majority adopted that sanction.

Chief Justice Maureen O’Connor and Justices Judith L. French and Patrick F. Fischer voted for the indefinite suspension. They were joined by Second District Court of Appeals Judge Michael T. Hall, sitting for former Justice William M. O’Neill, who resigned.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that the appropriate sanction was the one-year suspension proposed by the bar association. Justices Terrence O’Donnell and R. Patrick DeWine joined her opinion.

Attorney Relied on Outsourced Paralegal Service
Fernandez, a solo practice attorney, represented clients referred to him by Morgan Drexen, a California company that provided paralegal and paraprofessional services to his practice. Fernandez represented at any one time between 100 and 400 clients referred to him by Morgan Drexen and stipulated that the firm performed “non-formal debt resolution” for his clients.

In April 2015, a federal court shut Morgan Drexen’s operations and froze its accounts. The company then filed for bankruptcy and went out of business. Three months later, Morgan Drexen sent letters to clients informing them of the bankruptcy and indicating that the attorney who represented them through the company was no longer affiliated with it.

Fernandez’s clients, Cleora Jean Smith, Betty Smith Carpenter, and Eddie and Amie Foster, were referred to him by Morgan Drexen and received the notifications.

Fernandez had agreed to assist Smith and Carpenter in debt settlements and to file a Chapter 7 bankruptcy for the Fosters. Smith paid $926, Carpenter $2,618, and the Fosters $900 to secure his services. Fernandez did not respond to their efforts to communicate with him and confirmed to the board that his voicemail prompt instructed clients to leave no more than one message per week because of his work volume.

Fernandez did no work for the clients, and did not advise the Fosters they were ineligible to file bankruptcy. He did not return money to the clients.

Board Finds Rule Violations
The board adopted the panel’s findings that Fernandez violated a number of rules, including not acting with reasonable diligence in representing a client; failing to explain a matter to a client that would allow the client to make an informed decision; and not promptly delivering to his clients funds they were entitled to receive. He also violated the rules by failing to respond to disciplinary investigations.

The board concluded that Fernandez acted with a dishonest and selfish motive and that he deserved no mitigating credit for his cooperation in the disciplinary process. Fernandez objected to recommended indefinite suspension. He asked the Supreme Court to consider his intermittent homelessness and unspecified mental disorders, and to suspend him instead for one year.

Court Considers Factors
Fernandez argued that a homeless attorney is likely to have impaired judgment and that poor decision-making, not selfishness, caused his behavior. He also noted that he cooperated after the disciplinary proceedings were initiated.

The Court’s opinion stated there was ample evidence to demonstrate he acted with a selfish motive.

“His business relationship with Morgan Drexen was driven to maximize profit with high-volume representation by using paraprofessionals to perform much of the work with minimal attorney oversight,” the Court stated. “He took his clients’ money, relied on Morgan Drexen to do the work, and failed to adequately monitor the status of his clients’ legal matters.”

The opinion noted that when Fernandez was asked if it were possible other clients were charged fees that he did not earn, he responded that he could not definitively answer because attorneys working with Morgan Drexen were heavily dependent on the electronic information the company’s paraprofessionals assembled. He stated he did not closely review what “was done and what wasn’t done.”

The Court also indicated that Fernandez knew little about the operation of the client trust account Morgan Drexen established for his clients and did not know how money moved between his clients, the company, and himself because he never reviewed the bank records.

“His misconduct is far more serious than his neglect of three client matters, his failure to refund unearned fees, and his failure to maintain required trust-account records, because he completely abdicated his duty to safeguard the client funds entrusted to his care,” the opinion stated.

Fernandez stated he was having mental health issues and a gambling problem, but presented no evidence at the panel hearing that he had been diagnosed by a qualified healthcare professional and that the issues contributed to his misconduct.

In addition to the suspension, the Court ordered that Fernandez’s reinstatement will be conditioned on proof that he made restitution to Smith, Carpenter, and the Fosters; completed 12 hours of continuing legal education focused on law-office and client-trust management; submitted to an evaluation by a qualified healthcare professional; and did not commit any more misconduct. If he is reinstated, he must serve two years of monitored probation.

Dissent Concludes Aggravating Factors Not Proven
Justice Kennedy wrote that although Fernandez’s behavior “fell well short of the professional standards demanded of all attorneys,” the record does not contain clear and convincing evidence that he acted with a selfish motive or failed to cooperate in the disciplinary process.

Regarding a selfish motive, the dissent explained that the board had improperly equated Fernandez’s conduct with a prior case where an attorney had fraudulently altered fee applications to seek payment for court-appointed work that was not performed. The dissenting opinion stated that there is a difference between collecting fees with no intention of completing the work or giving a refund – misconduct that is tantamount to theft – and agreeing to perform the work but failing to do so out of neglect.

The dissent noted that Fernandez had relied on Morgan Drexen and its paralegals to manage his practice and the fees paid by the clients it solicited. Although the evidence indicated that Fernandez took on too many clients and neglected their cases, that does not prove he acted with a selfish motive, the opinion concluded.

Fernandez had conceded that he failed to respond to the bar association’s complaints, but he subsequently admitted his misconduct and accepted responsibility for it during the proceedings. The dissent explained that in other cases the Court has recognized that an attorney’s eventual cooperation is a basis for a lesser sanction, and here the record does not reflect that he exhibited a “complete failure” to cooperate.

The dissenting justices would impose a one-year suspension with the same reinstatement conditions as the majority.

2017-1409. Cincinnati Bar Assn.v. Fernandez, Slip Opinion No. 2018-Ohio-3828.

Video camera icon View oral argument video of this case.

(Mike Frisch)

September 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 24, 2018

A Matter Of Percentages

The Indiana Supreme Court has publicly reprimanded an attorney for collecting an unreasonable fee

“Client” signed a representation agreement with “Law Firm” in a personal injury matter. The agreement called for a contingent attorney fee of 35% if the case was resolved without trial and 45% plus expenses if the case was resolved with trial. The agreement also included a provision under which Law Firm, in the event it was discharged by Client prior to an eventual settlement or recovery, would be entitled to a fee of $175/hr for work performed on the case.

Respondent was an associate with Law Firm from June 2015 until February 2017 and represented Client during that time. When Respondent departed Law Firm and began working with a new firm, Client elected to have Respondent complete his case. Respondent informed Client her representation and fees would be governed by identical terms as his agreement with Law Firm and that any fees owed to Law Firm would be deducted from any settlement award or judgment obtained in Client’s case. However, Respondent failed to explicitly contract away her liability for attorney fees owed to Law Firm.

In September 2017, an $18,000 mediated settlement of Client’s case was reached. Respondent kept 35% ($6,300) as her fee and then negotiated a $2,000 settlement with Law Firm for its fee. This resulted in Client being charged a total attorney fee of 46% of the settlement amount instead of the contracted amount of 35%. Respondent has no prior discipline, cooperated with the disciplinary process, and refunded the $2,000 owed to Client.

(Mike Frisch)

September 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Charges Dismissed: Defense Counsel Acted Reasonably

The Louisiana Supreme Court rejected the Office of Disciplinary Counsel's appeal of a dismissal of bar charges

Briefly stated, this case involves the obligations of an attorney who learns his client has failed to produce evidence in response to a search warrant in an ongoing criminal investigation. Upon learning the evidence was in his client’s possession, respondent counseled his client on several occasions to turn the evidence over to the authorities. Respondent also informed his client that he was likely to be charged with obstruction of justice. Respondent was ultimately successful in persuading his client to allow him to release the evidence to the authorities; however, this release occurred approximately three months after respondent learned of the existence of the evidence, during which time respondent had an expert retrieve, preserve, and copy the evidence.

After a formal hearing, the hearing committee made a finding that respondent was credible when he testified that he knew he would be bound to inform the court and the prosecutor of the existence of the evidence if he could not convince his client to turn over the evidence. The committee also accepted respondent’s testimony that he always believed his client would comply with his legal advice, which the client ultimately did. Based on these findings, the committee recommended the charges be dismissed. The disciplinary board found no manifest error in the committee’s findings and also recommended the charges be dismissed.

In its argument to this court, the ODC focuses on the three-month period between the time respondent learned of the evidence and ultimately released it to the authorities. The ODC argues respondent took no action whatsoever to force his client to release the evidence sooner. The ODC contends respondent should have advised his client that he (respondent) would be compelled, as an officer of the court, to go to the authorities if the client did not turn over the evidence. According to the ODC, the delay in production created a possibility that the evidence might be damaged or lost and potentially impaired the prosecution.

The primary provision of the Rules of Professional Conduct at issue in this case is Rule 3.3(b), which provides:

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. [emphasis added].

As the board observed, this rule does not contain any temporal elements, but instead focuses on the reasonableness of the remedial measures taken by the lawyer. The hearing committee made a factual finding that respondent’s actions were reasonable under the circumstances presented.

Based on our review of the record, we cannot say the hearing committee’s factual findings, which were based on credibility determinations, are clearly wrong. In reaching this conclusion, we make it clear that the determination of whether a lawyer has fulfias standing for any proposition beyond the stated holding. We caution members of the bar to be very sensitive to their obligations under this rule, as any breach of these lled the duties imposed under Rule 3.3(b) will turn on the specific facts presented in each individual case, and our ruling today should not be considered as standing for any proposition beyond the stated holding. We caution members of the bar to be very sensitive to their obligations under this rule, as any breach of these  duties can have significant adverse impacts on the administration of justice. However, under the specific facts of the case presented, we find the board correctly concluded respondent did not breach his ethical obligations.

(Mike Frisch)

September 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, September 23, 2018

Were Exonerated Clients Abused And Cheated By Attorney?

The North Carolina State Bar has filed charges against an attorney alleging misconduct in his dealings with two exonerated defendants.

The complaint allege violations of Rule 1.1 to multiple violations of Rule 8.4 (b), (c), and (d)  with many stops along the way such as Rules 1.5(a) (excessive fees), 1.6(a) (breaching confidentiality), 1.16(a)(improper financial penalty on withdrawal), 1.8(a)&(e) (improper business transaction with client ), 3.3(a) (false statement to tribunal), Rule 5.4(a) (sharing fees with non-lawyers), 5.5(f)(taking direction from "consultant advisors") and 7.1(a).

The Marshall Project reported on the Bar's investigation

The North Carolina State Bar is investigating a Florida lawyer for his treatment of two mentally disabled clients who spent 31 years in prison before being declared innocent.

Henry McCollum and his half-brother, Leon Brown, were exonerated in 2014 after serving decades in prison for the notorious rape and murder of an 11-year-old girl. They received $750,000 each from the state in compensation.

After they were freed, lawyer Patrick Megaro pocketed a third of each award despite having done virtually no work on the exonerations or pardons the men received in 2015. He approved loans at 42 percent interest for the brothers and a $20,000 payment to two women, self-described advocates for the brothers who brought Megaro the case.

McCollum went broke and began borrowing more money at 39 percent with the lawyer’s approval.

The Marshall Project detailed the brothers’ plight in a story in The New York Times.

McCollum’s court-appointed guardian removed Megaro from the case earlier this week. High-powered Washington, D.C., law firm Hogan Lovells, where U.S. Supreme Court Chief Justice John Roberts once practiced, now will be representing him for free in his lawsuits against the police agencies who allegedly wronged him.

“We are honored to be representing Henry in this important case,” said Cate Stetson, a partner in the firm. “We hope to bring him some measure of justice for the wrongs he’s suffered.”

Megaro did not respond to requests for comment. He is still representing Brown, McCollum’s half-brother. Duane Gilliam, a Fayetteville, N.C., lawyer who is Brown’s legal guardian, did not return phone calls inquiring about Megaro’s status.

The state bar is looking into at least two complaints against Megaro in connection with the McCollum case, said lawyer Ken Rose, who represented McCollum for 20 years when he was on death row. Rose said he filed a complaint earlier this year and was told the bar was already probing the Florida lawyer.

The president of North Carolina Advocates for Justice, an association of criminal defense and plaintiff lawyers, also asked the bar to investigate. This is not Megaro’s first run-in with the bar, which reprimanded him in 2015 for making false and misleading statements about legal services provided through an out-of-state law firm not licensed in North Carolina.

The bar also has a third case pending: An Alamance County woman filed a complaint saying Megaro did nothing after she paid him thousand of dollars to appeal her divorce case. The judge dismissed the appeal after ruling that Megaro “blatantly disregarded” court rules.

The link takes the reader to an in depth background story.

The Death Penalty Information Center had this report with links to additional articles. (Mike Frisch)

September 23, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 22, 2018

A Dangerous Mix Of Sex, Drugs And Farming

The Louisiana Supreme Court disbarred an attorney who defaulted on these charges:

Count One

On September 28, 2009, New Orleans police, while responding to a report of suspicious activity, observed respondent exiting a vehicle with a needle sticking out of her forearm and blood trickling down her arm. After taking possession of the needle and questioning respondent, she acknowledged the presence of additional drug paraphernalia in a bag located under the vehicle’s seat. This drug paraphernalia included additional needles, a lighter, a “coppertop” that had been burned on the bottom, and an elastic band that the police confirmed is associated with heroin use.

After respondent’s arrest and arraignment for possession with intent to use drug paraphernalia in violation of La. R.S. 40:1033, she was released on bond. Respondent subsequently failed to appear in court for trial, which resulted in a bench warrant for her arrest. The district attorney’s office eventually dismissed the charges against respondent when they became stale after not locating her.

Count Two 

Respondent represented M.S and her husband W.S in connection with their corporate farming enterprise and business. During the representation, respondent commenced a sexual relationship with W.S. and introduced him to the drug culture in which she was engaged. Respondent’s conduct with W.S. resulted in the acrimonious divorce of M.S. and W.S.

Count Three

Respondent has been ineligible to practice law since September 10, 2010 for failing to pay her bar dues and the disciplinary assessment. Additionally, as a result of her conduct in Count I above, respondent was interimly suspended from the practice of law by order of this court effective February 7, 2012. Notwithstanding her status, in December 2011, respondent continued to represent W.S. and his farming enterprise.

Count Four

In September 2010, respondent was arrested on an attachment for contempt of court arising from her failure to appear in response to a speeding citation. Months later, respondent appeared and paid her court fine.

In October 2012, respondent was involved in a motor vehicle accident and was cited for driving with a suspended driver’s license and failure to maintain control. Respondent failed to appear for her arraignment, and an attachment was issued, which attachment remains open.

Count Five

In March 2013, respondent and W.S. were arrested in Ascension Parish when they were caught by police in a bathroom of the Lamar Dixon Center in possession of cocaine, crack cocaine, and a crack pipe. Respondent was released on bond but failed to appear for her arraignment. A bench warrant was issued for her arrest, and she is currently a fugitive from justice.

The attorney did participate in the discipline matter.

Sanction

Respondent knowingly and intentionally violated duties owed to her clients, the public, the legal system, and the legal profession, causing significant actual harm. The baseline sanction for this type of misconduct is disbarment. The record supports the aggravating and mitigating factors found by the disciplinary board. Additionally, the mitigating factor of personal or emotional problems is present because evidence in the record indicates respondent has a severe drug problem.

Regarding the appropriate sanction for respondent’s misconduct, in addition to the cases cited by the board, we find guidance from In re: Blanche, 12-0552 (La. 6/22/12), 90 So. 3d 1034. In Blanche, an attorney neglected a legal matter, failed to communicate with a client, and was convicted of three drug- and alcohol-related criminal offenses. For this misconduct, we suspended the attorney from the practice of law for three years. In light of this case law, and given that respondent also practiced law while ineligible to do so and engaged in a sexual relationship with a client, we find disbarment is warranted.

Justice Hughes would impose a lesser sanction. (Mike Frisch)

September 22, 2018 | Permalink | Comments (0)

Friday, September 21, 2018

Wicked Words, Wicked Deeds

An order entered by a Connecticut Superior Court Judge yesterday in the case of Corona v. Day Kimball Healthcare Inc. suspending an attorney for 120 days begins as follows

For the courts to guarantee the triumph of the law over the loud, there must be civility in court proceedings.

The court's ire was drawn by a statement picked up by a lapel microphone before a deposition that revealed the attorney's strategy to an associate

"Fuck him," she said - referring either to opposing counsel or the court itself - "I am going to give him such a fucking hard time."

The court rejected the suggestion that these bon mots were "ordinary lawyer talk" and explained at length how the attorney's conduct of the proceeding showed that her "wicked words betoken[ed] wicked deeds." 

The ABA Journal noted prior sanctions

A 24-year practitioner has been sanctioned $11,484 by a Connecticut judge for coaching a witness during a deposition.

Defense lawyer Madonna Sacco has been sanctioned four times previously for “strikingly similar” behavior during depositions, but the penalties apparently didn’t have the desired deterrent effect, according to Hartford Superior Court Judge Robert Shapiro. He found not only that the medical malpractice specialist had violated discovery practice standards but that she had also violated attorney ethical rules, reports the Connecticut Law Tribune.

During a hearing earlier this year, Sacco argued that the judge had incorrectly invoked the ethics rules without adequate notice, contending that the state’s attorney disciplinary system was the proper forum for any such complaint. However, she has since paid the sanction, the legal publication reports. She declined to comment for the article.

No attorney grievance has been filed against Sacco, notes Mark Dubois, the chief disciplinary counsel for the the state. “Sometimes,” he says, “judges just like to handle these things themselves.”

Thanks to Steve Zoni for sending this order to us. (Mike Frisch )

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Shades Of Gray And Black

A public  censure of an attorney has been imposed the the New Yor k Appellate Division for the First Judicial Department

The Attorney Grievance Committee commenced this disciplinary proceeding by a petition of charges (Judiciary Law § 90[2], Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.8), alleging that respondent was guilty of certain misconduct in violation of the Rules of Professional Conduct (22 NYCRR 1200.0) because he counseled a client to engage in conduct he knew was illegal or fraudulent and misrepresented his personal experience and knowledge during a meeting with the client. Specifically, respondent met with a potential client who represented himself as appearing on behalf of a West African minister. The individual stated that the minister desired to purchase real property in the form of a brownstone, an airplane, and a yacht in the United States and identified the money as "gray money" or "black money." Respondent did not personally inquire as to the provenance of the money. Although respondent knew that the money was questionable, he informed the individual that he would have to consult with an expert to determine whether the money could be moved anonymously and to make sure that the money was "clean" and not criminally derived. Nonetheless, respondent offered suggestions on how to transfer the money into the United States from other countries in ways that would mask the minister as the ultimate or beneficial owner. He also misrepresented his personal experience and knowledge of the subject matter to keep the potential client interested.

Sanction

In light of the significant factors in mitigation, including respondent's cooperation, admitted conduct and acceptance of responsibility, and the fact that the misconduct was aberrational and occurred in the context of a single, open-ended conversation during a meeting with a potential client after which respondent took no further steps, the parties agree that a public censure is appropriate.

(Mike Frisch)

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Supervision Obligations When Secretary's Ex-Husband Is Murdered

An attorney has been suspended for 60 days by the Iowa Supreme Court

Mathahs has practiced law in Iowa since 2001. Upon obtaining his law license, Mathahs has practiced mostly from an office in Marengo. Although he practiced with a firm for a brief period after becoming an attorney, Mathahs has been in a solo practice for most of his career.

In October 2001, the SPD and Mathahs entered into a contract whereby Mathahs would provide legal services to indigent adults and juveniles in certain Iowa counties. The contract initially specified that Mathahs would provide services in seven counties. Through a series of renewals, the geographic scope increased to as many as nineteen counties. Mathahs testified his SPD work eventually constituted more than ninety-nine percent of his practice. The parties agree Mathahs was very busy and performed his representation of indigents and juveniles satisfactorily. Mathahs continued in this line of work until the expiration of his most recent contract with the SPD on May 1, 2013. Since that time, Mathahs has not been under contract with the SPD.

To receive payment from the SPD for his services, Mathahs was required to submit General Accounting Expof expenses, including mileage. enditure (GAX) forms to the SPD detailing the dates, specific services performed, and the amount of time for each service. Mathahs was also required to submit itemization of expenses, including mileage...

On March 1, 2013, Samuel Langholz from the SPD wrote to Mathahs about his concerns over the accuracy of the hours and mileage expenses recorded on Mathahs’s GAX forms. Langholz wrote that Mathahs had claimed more than 3000 hours and had received more than $180,000 in fiscal year 2010 (July 1, 2009, to June 30, 2010).

Langholz and Mathahs met on March 7 to discuss the matter. On March 24, Mathahs wrote to Langholz to explain the inaccuracies and discrepancies in his GAX forms. After acknowledging he had signed the GAX forms and accepting responsibility for the incorrect information, Mathahs explained how the errors had occurred.

With regard to the excessive hours, Mathahs explained it was the result of inattentiveness on the part of his legal secretary. Mathahs attributed his secretary’s inattentiveness to the brutal murder of her exhusband. He stated he could not fire her because her ex-husband’s death had ended child support and left her with no income. Mathahs further explained he had instructed his secretary as to her duties by dictation on cassette tapes and had told her to work from the dictation sequentially. Each tape contained information regarding  the correspondence, motions, and reports but would put the billing off until later. She would then go back and listen to the same tapes, fastforwarding through the correspondence, motions, and reports she had already completed to get to the parts about billing. Because she skipped around when transcribing the dictation, she would bunch together time from many different dates into one date instead of recording the time as hours spent over the course of many days. According to Mathahs, after becoming aware of her mistakes, he told her to stop skipping around, but she failed to comply. The secretary also haphazardly entered the dates of service, and thus the dates of service on the GAX forms often did not correspond to the dates Mathahs had done the actual work.

With regard to the excessive mileage expenses, Mathahs explained that beginning in 2009, he made single trips for several clients and erroneously billed each client for the total mileage.

The court rejected a defense of  laches based on a four-year delay in the bar process.

Misconduct re fees and expenses

Mathahs conceded he billed the SPD for excessive hours and mileage and reimbursed the state for some of the excessive fees and mileage expenses he billed. Based on the record, we conclude the Board proved by a convincing preponderance of the evidence that Mathahs violated rule 32:1.5(a).

And he failed to properly supervise his secretary'

Mathahs knew of her diminished mental state and lack of attentiveness at work because of her ex-husband’s murder. Yet upon finding billing errors, he simply instructed her to listen to the dictations sequentially and continued to allow her to prepare his GAX forms. A reasonably prudent lawyer in Mathahs’s shoes would have taken more care to ascertain that his secretary did not repeat her mistakes, especially when she began working remotely and Mathahs found it difficult to monitor her compliance with office procedures.

The court looked to prior caselaw as well as the mitigating and aggravating factors in determining sanction. (Mike Frisch)

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)