Tuesday, May 15, 2018

Swift Action And Its Opposite

The Ohio Supreme Court has imposed an interim suspension of an attorney with a Washington, D.C.  address for a Virginia felony conviction.

On certified entry of felony conviction. Christopher Paul Mitchell, Attorney Registration No. 0077327, last known address in Washington, District of Columbia, suspended from the practice of law for an interim period.

On May 1, 2018, the attorney was convicted of a felony leaving the scene of an accident causing personal injury or death in the City of Fredricksburg Circuit Court . He received a suspended sentence of three years and 60 days.

Notably, a District of Columbia attorney was convicted of the exact same offense (Virginia Code section 46.2 - 894) in 2005 and has yet to serve a single day of suspension for a felony hit and run conviction.

We reported on the lawyer-absolving report and recommendation of the Board on Professional Responsibility in August 2015

The report of the District of Columbia Board of Professional Responsibility in the case of Wayne Rohde, Board Docket No. D347-05, has been filed.

You may remember the case - it involves an attorney who drove from the District of Columbia to Virginia after a night of heavy drinking. He struck and seriously injured another motorist, fled the scene but left his car bumper with license plate affixed behind.

He pled guilty and was sentenced in 2005 to felony criminal charges in Virginia.

The D.C. disciplinary system began its processes that same year.

It took seven years for the hearing committee to file a report on the ethics charges. On the plus side, the Board acted faster but to no better result.

Oral argument before the Court of Appeals took place in the Rohde case in October 2016. No decision has yet been forthcoming. 

An attorney convicted of felony hit-and-run in Virginia was suspended in Ohio within two weeks of his conviction.

In the District of Columbia, no sanction has been imposed in the thirteen years since the precise same felony conviction.  (Mike Frisch)

May 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

An Inexact Science

The dismissal of a legal malpractice claim has been affirmed by the North Carolina Court of Appeals

Carol D. Moore (“plaintiff”) appeals from the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s claim for legal malpractice. After careful review, we conclude that plaintiff failed to forecast any evidence to prove that, but for defendants’ alleged negligence, plaintiff would have received a more favorable judgment in her prior equitable distribution action. Accordingly, we affirm the trial court’s order.

At issue was the end of a 25-year marriage

Plaintiff hired defendants due to their experience tracing marital assets in complex equitable distribution proceedings. Defendants were aware that plaintiff believed that Dr. Moore had hidden assets in anticipation of the parties’ divorce. In addition to defendants, plaintiff also retained certified public accountant Heather Linton and certified fraud examiner Carl Allen (“Allen”) to help locate the alleged missing assets.

During discovery, defendants conducted depositions; subpoenaed financial institutions; and reviewed tax returns and other documents for evidence of undisclosed earnings or accounts, including potential off-shore transactions. However, neither defendants nor plaintiff’s experts ever located any undisclosed assets. Jordan ultimately concluded that the Moores’ once-substantial marital estate had been depleted as a result of market factors and the parties’ extravagant lifestyle choices. Although Allen had “theories” that Dr. Moore might have mismanaged marital funds, Jordan determined that the evidence was speculative, unsubstantiated, and likely inadmissible. Therefore, when the trial commenced on 3 January 2011, Jordan notified Allen that he would not call him to testify. At trial, defendants did not present any expert witness evidence to support plaintiff’s theory that Dr. Moore hid marital assets prior to the parties’ divorce.

The plaintiff did not appeal the distribution of marital assets by the trial court; rather, she sued her lawyer

“The law is not an exact science but is, rather, a profession which involves the exercise of individual judgment.” Id. Contrary to plaintiff’s arguments, Jordan’s failure to present evidence that he, in his professional judgment, deemed “speculative” and “unsupported” is consistent both with the exercise of due care in representing plaintiff’s action, and with his duty of candor to the court.

Plaintiff failed to forecast sufficient evidence for the trial court to consider regarding any alleged marital asset. Without such evidence, the trial court could not determine whether plaintiff might have obtained a judgment in excess of the one that she actually received at equitable distribution. Furthermore, contrary to plaintiff’s arguments, there is no evidence that defendants failed to exercise due care and diligence in representing plaintiff’s action. Since plaintiff failed to establish that any alleged negligence on the part of defendants proximately caused damage to her, we affirm the trial court’s order granting defendants’ motion for summary judgment.

(Mike Frisch)

May 15, 2018 in Clients | Permalink | Comments (0)

Sunday, May 13, 2018

A UFO Is A Big Deal

An attorney who practiced after an administrative suspension should be suspended for six months and until further order ("UFO"), according to a recommendation of the Illinois Review Board.

The suspension

Respondent did not timely register or pay his registration fee to the ARDC for the year beginning on January 1, 2015. After receiving two notices about his failure to register, Respondent was removed from the Master Roll on March 10, 2015. He eventually registered and paid the fees that were due and was restored to the Master Roll on November 17, 2015.

Between March 10 and November 17, however, Respondent represented clients in three matters. Each matter forms the basis of a count in the complaint, and is described fully in the Hearing Board's report. There are no issues raised regarding the Hearing Board's factual findings that Respondent represented three clients between March 10 and November 17, 2015.

Respondent also was removed from the Master Roll in each of the years from 2003 to 2007, 2010, and 2011 for failure to register and/or failure to comply with his MCLE requirements. After receiving notice of those removals, Respondent registered, paid any fees and penalties that were due, and was restored to active status.

Respondent requested and received waivers of his 2016 and 2017 registration fees because of his demonstrated low income.

The attorney had a prior misconduct suspension

...in 2011, Respondent was suspended, on consent, for two years and until further order, with all but the first five months stayed by probation, for converting escrow funds, failing to hold the funds separate from his own property, neglect, failing to communicate, and charging an unreasonable fee. It found that, while his prior misconduct was different from his present misconduct, the prior disciplinary matter should have given Respondent an increased awareness of all of his professional obligations.

Sanction here

The Hearing Board based its UFO recommendation on the fact that Respondent did not fully participate in his disciplinary proceedings. We agree that Respondent's inadequate but partial participation in his disciplinary proceedings is not acceptable and raises some concern about his ability to adhere to his professional obligations. But the most significant factor bearing upon our recommendation of a suspension until further order is that Respondent has utterly failed to recognize or acknowledge that he engaged in misconduct, or to express remorse for his actions.

Moreover, Respondent's arguments in his appellate briefs and during oral argument convince us that he does not understand or accept his ethical obligation to timely register with the ARDC as a precursor to practicing law, which necessitates a suspension until further order. See In re Kesinger, 2014PR00083 and 2015PR00042 (Review Bd., Nov. 29, 2016), at 17, approved and confirmed, M.R. 28530 (March 20, 2017) (imposing suspension until further order where "Respondent's arguments on appeal show that he still does not recognize or understand the nature and seriousness of his misconduct and has no remorse for it"). We are particularly disturbed that, when Respondent was asked at oral argument if he has learned from this disciplinary proceeding, he responded: "Yes - that, according to these two cases, it's no big deal to not pay your attorney fees and continue practicing law." But it is indeed a "big deal," because it is required by the rules of the Illinois Supreme Court and the ARDC.

Accordingly, we do not believe that Respondent, at this time, is able or willing to conform his behavior to the Rules of Professional Conduct. For this reason, we believe his suspension should continue until further order, so that he is required to demonstrate his fitness before he returns to the practice of law. See In re Houdek, 113 Ill.2d 323, 327, 497 N.E.2d 1169 (1986) ("lack of any evidence that [respondent] is willing or able to meet professional standards of conduct in the future warrant suspension until further order of the court").

(Mike Frisch)

May 13, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 11, 2018

Sanction Reduced For "Overzealous" Rosa Parks Estate Attorney

An attorney for the Rosa Parks estate who made incendiary allegations against a judge and filed a suit to force disqualification had his sanction reduced from a 180 day suspension to a reprimand by the Michigan Attorney Discipline Board.

The hearing panel determined that respondent's actions in filing the pleadings in question, and using the "incendiary" language that he did, warranted a suspension of sufficient length to require reinstatement proceedings under MeR 9.123(B). However, we view respondent's actions differently.

Respondent's vociferous representation of his clients and dedication to their cause is evident and was evident during respondent's presentation to this Board at oral argument. But what is also evident to us is that respondent's actions in filing the subject pleadings, resulted from overzealous advocacy, rather than a selfish or dishonest motive, an aggravating factor the Administrator's counsel argued applied, but the panel specifically found inapplicable. For those reasons, and given the fact that respondent has no prior disciplinary history in twenty-four years of practice, we find that the level of discipline imposed should be decreased to a reprimand.

The Detroit News covered the bar case.

CBS Detroit reported on the underlying case in 2012

Civil rights hero Rosa Parks’ personal papers, photographs and other mementoes are locked in a court battle with no end in sight.

The attorney battling on behalf of the institute Parks founded before her 2005 death sued the judge on the case this week — and the attorneys the judge appointed as trustees — saying they’re corrupt. Attorney Steven Cohen claims the judge and attorneys are intentionally draining the estate of all its cash through legal fees to force the sale of Parks’ potentially valuable personal effects to pay the debt they created.

“Right now the estate’s a mess,” Cohen said on the Charlie Langton Talk Radio 1270 morning show.

At the heart of the issue are Parks’ heirs — nieces and nephews — who want her personal effects sold and the money invested back in the estate, and to paying off debts including legal fees. On the other side is the charitable institute Parks founded.

The institute’s leader Eileen Steel, appointed by Parks, wants the effects to go to the institute, which is dedicated to civil rights education.

“These artifacts have been locked up in NYC for about five or six years now, and the institute and the family have absolutely no control over it and the judge has the control, which he should not have,” Cohen said. “This matter should not be under the control of (Wayne Probate Court Judge Freddie Burton.) He should be removed from the case, frankly, he should be removed from the bench for his corrupt actions.”

After Cohen filed suit against the judge overseeing the case — forcing the judge to tackle a case against himself in his own courtroom — the judge issued an order of harassment against Cohen. Burton claimed Cohen was creating “unfounded, illegal pleadings.”

“I took the rare step of suing a judge in his own courtroom because he simply would not give up his corrupt ways,” Cohen said.

Farmington Hills attorney Larry Pepper, who represents Parks’ nieces and nephews but is not involved in Cohen’s actions against the judge and trustees, said his clients just want to move forward.

“Their overriding concern, although some people don’t believe this, but it’s true, their concern is the legacy of Rosa Parks and they are very fearful that legacy is going to be tarnished, either through disreputable use of her name or image,” Pepper said.

Through an agreement reached between the institute and Parks’ heirs in 2007, the nieces and nephews have the right to 20 percent of the proceeds from anything earned by or sold through her estate.

Pepper said he trusts the two attorneys appointed by the judge, John Chase Jr. and Melvin Jefferson Jr., to oversee Parks’ artifacts.

“I’ve known both of these gentlemen for close to the 37 years, I would trust them with my personal matters,” Pepper said. “I have nothing but positive things to say about both of them … It really is infuriating that Cohen would make these charges.”

He adds that Parks’ things need to be sold: “It’s my position that the estate needs funds … These things should be sold and the proceeds divided,” Pepper said.

The artifacts are housed right now at Guernsey’s auction house in New York.

But Cohen believes the artifacts should just be sent to the Rosa Parks Institute. Some estimates say the memorabilia could be worth $8 million.

“No one knows how much it’s worth … But there are valuable papers and photographs and artifacts and all of those things were given by Mrs. Parks to her institute long before she died,” Cohen said. “The institute used these artifacts in its civil rights work and educational mission.”

Parks had perhaps $100,000 when she died, Cohen said. After she died, proceeds came in from a lawsuit against Outkast, which brought it another $200,000. “All told her estate had about $390,000,” Cohen said, adding, “She gave all of that to her charitable institute … She wanted her institute to carry on her work.”

The problem? “Most of the liquid assets, or all of the liquid assets, of the estate are gone, they’ve gone in attorney
fees to Chase and Jefferson, and the artifacts are still controlled by Chase and Jefferson and Burton … They do retain possession and control of the artifacts,” Cohen said.

He added: “This is something that happens all the time in Wayne County Probate Court, basically the system tends to rape and pillage the estates of deceased persons for their own selfish uses and the families and beneficiaries end up with a very small amount of what was intended for them. It happens all the time.”

 

May 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Shirvell Disbarment Affirmed

A recent decision of the Michigan Attorney Discipline Board affirms the disbarment of Andrew Shirvell

Disbarment is well within the realm of discipline that could have been imposed by the hearing panel. The panel's conclusions are supported by the record and by an appropriate application of the American Bar Association Standards for Imposing Lawyer Sanctions. Respondent filed a completely unfounded and frivolous lawsuit, without any consideration for the harm and expense it would cause the defendant or the waste of the court's resources. Likewise, respondent publicly made unfounded, offensive, defamatory statements about Armstrong with absolutely no consideration for the harm it would cause. In doing so, respondent demonstrated an egregious failure of professional judgment and character. Such conduct demands discipline for the protection of the public. Therefore, the hearing panel's order of disbarment is affirmed.

The board cites the history of the misconduct set forth in an opinion of the United States Court of Appeals for the Sixth Circuit.

The Grievance Administrator filed a Formal Complaint alleging in three separate Counts that respondent committed professional misconduct. Specifically, Count One alleged respondent harassed and stalked Armstrong; Count Two alleged respondent engaged in frivolous litigation; and Count Three alleged a conflict of interest based upon respondent's employment as an Assistant Attorney General. The hearing panel determined that petitioner had established the misconduct charged in Counts One and Two,  but found that the Grievance Administrator failed to prove respondent violated MRPC 1.7(b)(2) [conflict of interest], as alleged in Count Three.

Shirvell appealed the panel order

Respondent petitioned the Attorney Discipline Board for review of the hearing panel's order, raising six issues, arguing that: (1) the disciplinary proceedings were fatally compromised where all three panel members failed to disclose alleged biases against respondent; (2) respondent was not given fair notice that his questioning of Deborah Gordon during her deposition would subject him to a finding of misconduct; (3) the hearing panel abused its discretion by admitting into evidence the Sixth Circuit Court of Appeals' opinion in Armstrong v Shirvell, supra; (4) the hearing panel abused its discretion in failing to admit three of respondent's exhibits; (5) the panel's findings of misconduct are not supported by the record; and (6) the discipline imposed does not fit the misconduct established in this matter.

As to his claim of panel bias

Respondent's argument is misplaced and otherwise without merit. Respondent is claiming persecution for his beliefs and political views and is focusing on what he presumes are the beliefs and political views of the three hearing panelists; however, this case is not about beliefs, it is about respondent's behavior. There is no evidence respondent was disciplined by the hearing panel because of his beliefs; rather, the evidence supports the conclusion that it was respondent's behavior that warranted a finding of misconduct.

The merits

With regard to Count One, there is overwhelming support for the panel's finding of misconduct. Respondent's blog was a public forum and contained vicious, unfounded attacks against Armstrong personally. This was not merely disagreeing with Armstrong's views - this was a "smear" campaign against Armstrong, where it seemed respondent had no boundaries. For example, the home page of the blog featured Armstrong's face next to a swastika; respondent referred to Armstrong as "the privileged pervert;" he referred to Armstrong as a "gay Nazi" on national television; he accused Armstrong of hosting an orgy at his University of Michigan dorm; he accused Armstrong of being sexually promiscuous and engaging in lewd activities in churches and children's playgrounds - all allegations that had absolutely no factual support. The civil jury concluded that, in total, 100 statements made by respondent were defamatory - and more than 60 of those were made with actual malice. Respondent also repeatedly followed Armstrong to various public establishments and private parties, including Armstrong's personal residence. Even when Armstrong was working in Washington D.C., respondent contacted Armstrong's employer. Respondent's rhetoric was not political as asserted; it was hostile and vindictive, and a personal attack on Armstrong.

Likewise, with regard to Count Two, misconduct is also clear. In the complaint against Deborah Gordon, respondent alleged Gordon interfered with the internal investigation the Attorney General's office conducted regarding respondent's actions, and as a result, he was discharged from the AG's office. Respondent made these allegations recklessly without any support or concern for the truth. In fact, prior to filing the lawsuit, respondent knew the AG special investigator had already testified that he had never communicated with Gordon prior to the completion of his investigation. As determined by the district court and affirmed by the Sixth Circuit Court of Appeals, respondent's claims were based entirely on speculation. For these reasons, there was also sufficient evidence introduced to support the panel's finding of misconduct in Count Two.

(Mike Frisch)

May 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Runner Named Samantha

Disbarment has been imposed by the New York Appellate Division for the First Judicial Department for misconduct after suspension

In August 2015, the Attorney Grievance Committee (Committee) commenced an investigation into respondent's conduct after receiving complaints from two former clients alleging neglect and that after respondent approached them in a Bronx courthouse and asked about their cases, he offered his legal services and they retained him. Respondent submitted answers to the complaints, although he did not expressly address the allegation of in-person solicitation.

By order entered October 26, 2017, this Court granted the Committee's motion for respondent's immediate suspension for failing to appear pursuant to subpoena and to comply with lawful demands by the Committee (see 155 AD3d 61 [1st Dept 2017]). The Committee served the suspension order on respondent by priority and certified mail, and according to the return receipt and tracking information, respondent received both copies of the suspension order on October 30, 2017.

In November 2017, respondent filed a motion seeking his reinstatement stating, inter alia, that he was in discussions with the complainants to resolve their grievances and that he was submitting a supplemental statement denying the allegations of in-person solicitation. Attached to respondent's motion were two checks dated November 2, 2017, totaling $250 from him to one of the two complainants with the memo line referring to "consideration for waiver of Grievance," a letter from him to the Committee advising that the client had waived her grievance against him, and that as of November 12, 2017, he and the other complainant "agreed in principle to terms for him to waive his grievance."

The Committee opposed and the court denied reinstatement

The following facts are taken from a complaint filed with the Committee in December 2017, from documents submitted by the complainant, and from an affidavit executed by the complainant. The complainant stated that on October 26, 2017 (the date of this Court's order of immediate suspension), an individual named "Samantha," who claimed to be respondent's associate, approached him at the Bronx County Civil courthouse and asked if he needed the assistance of an attorney with his landlord tenant matter; respondent was also present at the time. After speaking with "Samantha" and respondent, the complainant agreed to retain respondent for a $1,000 fee, to be paid in installments. The complainant paid the first installment of $300 that day, for which respondent provided a receipt, and complainant executed a retainer agreement for legal services.

Notwithstanding having been served with this Court's suspension order on October 30, 2017 and filing his motion for reinstatement with this Court on or about November 4, 2017, respondent, on November 10, 2017, telephoned complainant asking for the next $300 installment. That day complainant met respondent and "Samantha" at a restaurant near the Bronx courthouse and gave him the additional $300 payment. Respondent provided him with a second receipt, which they both signed, and which had written at the top "Brian D. Thomas, Esq. Senior Partner, Trial Attorney Law Office of Brian D. Thomas, Esq." When asked, respondent admitted that he had not yet commenced complainant's case...

The Committee contends that it has provided incontrovertible evidence that respondent sought to provide legal services to a new client on and after the effective date of his suspension, even though he was aware that he was suspended. The Committee has indeed established that respondent engaged in the unauthorized practice of law by continuing to seek installment payments of his legal fee and continuing to represent the complainant after he was suspended. However, because respondent did not receive notice of this Court's October 26, 2017 order of suspension until October 30, 2017, he was not yet aware of his suspension when he entered into the retainer agreement with the complainant on October 26. Regardless, respondent violated this Court's order of suspension, 22 NYCRR 1240.15 and Judiciary Law §§ 478, 484 and 486, by holding himself out as an attorney entitled to practice law when he met with the complainant on November 10, by accepting the second installment of legal fees and by providing a receipt which still identified himself as an "attorney" (see Matter of Sampson, 145 AD3d at 97-98; Matter of Rosabianca, 131 AD3d at 216-218; Matter of McDowall, 33 AD3d 246 [4th Dept 2006]). Moreover, respondent violated Judiciary Law § 479 by his and "Samantha's" improper solicitation of the complainant at the Bronx courthouse. Additionally, respondent has failed to answer the complaint and has defaulted on this motion (Matter of Hyde, 148 AD3d 9 [1st Dept 2017]).

In light of the undisputed evidence that respondent continued to hold himself out as an attorney while suspended, disbarment without further proceedings is warranted.

Accordingly, the Committee's motion should be granted, respondent disbarred from the practice of law, and his name stricken from the roll of attorneys and counselors-at-law in the State of New York, effective immediately.

(Mike Frisch)

May 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

"An Utter Lack Of Integrity"

The New York Appellate Division for the First Judicial Department imposed reciprocal discipline of a two year suspension and until further order of an attorney who was permanently barred from New Jersey practice

In February 2016, the New Jersey Office of Attorney Ethics (OAE) filed a formal disciplinary complaint charging respondent with violating New Jersey Rules of Professional Conduct (NJ RPC) rule 3.3(a)(1) (lack of candor to a tribunal), rule 5.5(a)(1) (unauthorized practice of law), rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and rule 8.4(d) (conduct prejudicial to the administration of justice) stemming from, inter alia, her violating the terms of her pro hac vice admission in New Jersey.

The matter was presented to the New Jersey Disciplinary Review Board (DRB) on a certification of default. The DRB found that most of the facts recited in the complaint supported the charges of unethical conduct, deemed respondent's failure to file an answer an admission that the allegations at issue were true, and, as to sanction, recommended that respondent's pro hac vice privileges in New Jersey be suspended until further order of the New Jersey Supreme Court.

The DRB's findings of fact are as follows. In September 2011, respondent's law school classmate, Sarah M., sponsored respondent's application before the Criminal Division, Union County, for admission pro hac vice in New Jersey so that she could represent Angel R. in a pending criminal matter. The court entered an order admitting respondent pro hac vice counsel for Angel R. and required her to pay the annual registration fee (pursuant to court rules), within 10 days, and to submit an affidavit of compliance. Respondent failed to pay the registration fee and under the terms of the order, the pro hac vice admission self-terminated at the end of the 10-day grace period. Nevertheless, respondent represented Angel R. in his criminal matter from 2011 through 2014. Respondent's failure to pay the annual fee rendered her ineligible to practice law in New Jersey under NJ Court Rule 1:20-1(b).

In June 2012, attorney Sarah M. filed another application to have respondent admitted pro hac vice to serve as counsel for Christian A., the defendant in a matrimonial action. The court issued an order granting respondent pro hac vice admission requiring her to pay the annual registration fee within 10 days and submit an affidavit of compliance. Respondent again failed to pay the registration fee within the time frame provided in the court's order but, nonetheless, she represented Christian A. in his matrimonial matter in 2012 and 2013. In April 2014, respondent finally paid the annual registration fees due for 2011 through 2014.

In addition to representing Angel R. in the criminal matter discussed above, respondent represented him in an earlier workers' compensation matter. In March 2011, respondent sent a letter of representation to the workers' compensation insurance carrier on fabricated letterhead which stated that respondent worked for "The Law Office of Sarah [M.]" but the address listed under Sarah M.'s name was that of respondent. The letter also requested that the carrier send all future correspondence regarding the case to the address listed which, as noted, was respondent's address. Respondent signed the letter as "Amy Gold." Sarah M. did not authorize or consent to respondent's use of her name or letterhead. Further, respondent was not licensed to practice law in New Jersey when she sent the letter of representation to the carrier, nor had she been admitted pro hac vice for the workers' compensation claim.

In January 2012, respondent told Sarah M. that Angel R.'s criminal matter had concluded after he pled guilty, which representation respondent knew to be false because Angel R.'s case was still pending at that time and did not conclude until 2014 

Respondent first met Angel R. in January 2010 and the two began a social relationship which quickly turned romantic. When criminal charges for aggravated assault were brought against Angel R. in March 2010, respondent agreed to represent him. In April 2011, respondent obtained a written waiver of any potential conflict of interest.

In August 2012, respondent and Angel R. were married while in Cuba and were married again in September 2012 in New Jersey. In or about 2013, at Angel R.'s request, respondent agreed to file for divorce in order to pose as the fiancee of Angel R.'s cousin, Gorge R., a Cuban national, in order to facilitate Gorge's entry into the United States. Once Gorge's residency in the United States had been established, respondent planned on remarrying Angel R.

In furtherance of this scheme, respondent in March 2013, signed and filed a pro se complaint for divorce. The complaint stated that she and Angel R. had irreconcilable differences, that there was no reasonable prospect of reconciliation, that they lived at separate addresses, and that their marriage should be dissolved.

In fact, respondent's statements were false because the couple did not have irreconcilable differences, they lived together at the time of the divorce, and respondent was pregnant with their first child. Nevertheless, they were divorced in September 2013 and, three months later, respondent gave birth to their daughter.

Soon after the September 2013 divorce, respondent determined that it would be unethical for her to pose as Gorge's fiancee and abandoned efforts to assist him in what would have constituted immigration fraud; instead, she agreed to remarry Angel R.

In New Jersey

On the issue of sanctions, the DRB opined that under New Jersey precedent respondent's misconduct in totem would warrant a significant suspension. New Jersey Supreme Court adopted the DRB's decision by finding respondent guilty of violating NJ RPC rules 3.3(a)(1), [*3]5.5(a)(1), 8.4(c), and 8.4(d), and upon its review of the matter, determined that respondent should be permanently barred from appearing pro hac vice in New Jersey, and directed the OAE to refer respondent's conduct to the AGC. This order forms the basis for this proceeding.

Here

The aggravating factors we have considered include respondent's showing of an utter lack of integrity by misusing a law school friend to twice sponsor her for pro hac vice admission in New Jersey; after she failed to comply with the court's orders, and thereby allowed her pro hac vice status to automatically terminate, she continued to practice law in New Jersey; she lied to Sarah M. about the status of Angel R.'s criminal case; she altered Sarah M.'s letterhead and surreptitiously sent it to an insurer, which act had the potential to harm Sarah M.'s reputation; she filed a pro se divorce pleading with the court which contained false statements as part of a plan to commit immigration fraud which she later abandoned; and she defaulted in both disciplinary proceedings. As noted, while the AGC asserts that respondent failed to promptly advise it of her discipline in New Jersey, the OAE did so pursuant to the court's order. Further, it is entirely within this Court's discretion to impose reciprocal discipline retroactively or prospectively, both of which we have directed.

(Mike Frisch)

May 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Too Late To Sue

The Iowa Supreme Court reversed a court appeals decision and granted summary judgment to the defendant law firm in a legal malpractice case

A client appealed the district court’s grant of summary judgment in favor of her attorney and the attorney’s law firm in her legal negligence action. The client argued the court erred in finding the statute of limitations barred her action. She also contended the court erred in declining to apply the discovery rule, the continuous-representation rule, or the doctrine of fraudulent concealment.

We transferred the case to the court of appeals, which reversed the judgment of the district court. The attorney and his firm applied for further review, which we granted. On further review, we hold no genuine issue of material fact exists as to when the cause of action accrued and the statute of limitations bars the client’s action because the cause of action accrued more than five years before she filed suit. We also hold the client may not use the discovery rule, the continuous-representation rule, or the doctrine of fraudulent concealment to circumvent the limitations period. Accordingly, we vacate the decision of the court of appeals and affirm the judgment of the district court.

The alleged malpractice was advice to the client to pay estate bills from exempt funds (life insurance and 401k payments). 

we find Skadburg sustained actual, nonspeculative injury when she paid the creditors with the exempt funds on Gately’s alleged advice in 2008. Therefore, her cause of action accrued in 2008 when she made those payments. Because Skadburg made these payments more than five years before she commenced this action on August 19, 2015, section 614.1(4) bars her action unless a legal doctrine tolls the limitations period or estops Gately from raising the statute of limitations as an affirmative defense.

Skadburg argues three exceptions to the strict commencement of the limitations period. These exceptions are the discovery rule, the continuous-representation rule, and the doctrine of fraudulent concealment. Although Gately has the burden of establishing the statute-of-limitations defense, Skadburg, as the party attempting to avoid the limitations period, has the burden of demonstrating any exception.

Communications between lawyer and client showed client knowledge

Viewing the record in the light most favorable to Skadburg, the latest date she had actual or imputed knowledge of the possible connection between Gately’s advice and the damages caused by that advice, i.e., the payment of the estate’s debts from exempt funds was March 26, 2010. Accordingly, we find there is no genuine issue of material fact that by March 26, 2010, Skadburg had the duty to investigate the possible connection between Gately’s bad legal advice and her damages once she knew of such a possibility. At that time, the statute of limitations began to run under the discovery rule. She filed her action more than five years after March 26, 2010.

The court rejects the continuous representation rule where the client knows of the alleged malpractice and as to fraudulent concealment

We conclude as a matter of law Skadburg failed to prove by a clear and convincing preponderance of the evidence elements (2) and (4) of fraudulent concealment because Skadburg knew or was on inquiry notice about the deficiencies in Gately’s advice at the time she sent her communications. Thus, her reliance upon the alleged concealment was unreasonable. Accordingly, no genuine issue of fact exists as to whether Gately fraudulently concealed Skadburg’s cause of action for legal negligence, and Gately is entitled to judgment.

Link to the briefs and oral argument here. (Mike Frisch)

May 11, 2018 in Clients | Permalink | Comments (0)

Another Bite

The Maryland Court of Appeals has indefinitely suspended an attorney for misconduct in the wake of an earlier suspension

This attorney discipline case involves an attorney who took on representation of a client but was then suspended from the practice of law due to an unrelated matter. While representing the client, the attorney failed to communicate to his client that he was suspended, made misrepresentations to the client about his suspension, continued to render legal assistance on behalf of the client, and made misrepresentations to Bar Counsel during the investigation.

The suspension came during the representation of a client in a personal injury case.

Hecht was admitted to the Bar of this Court on June 23, 1994. In late September 2009, Lynn Crummitt was injured in a motor vehicle accident in Frederick County, Maryland. In early 2010, Lynn Crummitt and her husband, Irving J. Crummitt (“Jay Crummitt”) (collectively, “the Crummitts”) retained Hecht to represent them in a motor tort action resulting from the accident on a contingency basis. Hecht filed a complaint on behalf of the Crummitts in the Circuit Court for Frederick County. Defendants’ attorney, Keith M. Bonner (“Bonner”), filed an answer to the complaint and subsequently sent discovery requests to Hecht on May 9, 2013.

The suspension was handed down a week later.

The attorney failed to properly notify the client of the suspension and tried to secure new counsel while stage-managing the matter

Contrary to his assertion, Hecht’s actions rose to the level of performing legal tasks rather than, as Hecht argues, informal, non-legal assistance. In certain instances, Hecht would sign the Crummitts’ signatures on documents he drafted and submit the legal documents to the circuit court or opposing party even though he was suspended. MLRPC 5.5 forbids an attorney from engaging in the practice of law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction” and forbids a suspended attorney from “hold[ing] out to the public” that the attorney is authorized to practice law. By not affirmatively telling the Crummitts that he was suspended, Hecht held himself out to be an attorney authorized to practice law in Maryland. Hecht’s suspension combined with his admission that he drafted various discovery documents on the Crummitts’ behalf lead to the inescapable conclusion that Hecht participated in the unauthorized practice of law. MLRPC 4.1 states that a lawyer must not “make a false statement of material fact or law to a third person.” Hecht was not honest in his communications with the Crummitts, opposing counsel, or the circuit court and misrepresented the source of the Crummitts’ discovery responses to opposing counsel and the circuit court. Therefore, we agree with the hearing judge and conclude that this conduct violated MLRPC 4.1, 5.5(a), and 5.5(b).  For these reasons, we overrule Hecht’s exceptions.

Bar Counsel sought disbarment

The hearing court also recognized several mitigating factors. Hecht has repeatedly admitted that he made mistakes in the way he handled the Crummitts’ case. As the hearing judge noted, Hecht has “expressed remorse for the mistakes he made in this matter and did not profit from the Crummitts case,” instead paying the Crummitts $30,000 of his own money as restitution. Finally, the hearing judge found that Hecht “made numerous unsuccessful efforts to get new counsel to represent the Crummitts and had a reputation as a competent and truthful practitioner.”

Although we agree with Bar Counsel that Hecht’s conduct did involve “fraud, dishonesty, or deceit” and that conduct involving “fraud, dishonesty, or deceit” usually results in disbarment, we conclude there is sufficient mitigation to warrant deviating from disbarment in this case. Hecht, upon being suspended, turned away prospective clients and attempted to inform all of his current clients that he was suspended and could no longer represent them. When he discovered that his attempted suspension communication to the Crummitts had failed, he made the wrong decision, predicated on worry and a sense of loyalty for his wife’s friends, in continuing to act as their attorney while attempting to find alternative counsel for them. When the Crummitts’ lawsuit was dismissed, Hecht financially reimbursed them. Upon our independent review, we conclude that indefinite suspension is the proper sanction. For the reasons found above, we indefinitely suspend Hecht with the right to petition for reinstatement after twelve months from the date of this opinion.

A dissent from Judge Watts would disbar for intentionally dishonest conduct

In my view, given Hecht’s intentionally dishonest conduct and other numerous instances of misconduct, and that there are no compelling extenuating circumstances, the sanction of disbarment is warranted. I would conclude that the mitigating factors found by the hearing judge, which the majority opinion accepts—remorse, restitution, and reputation, see Maj. Slip Op. at 25—do not constitute compelling extenuating circumstances and are insufficient to mitigate Hecht’s misconduct such that a second indefinite suspension is appropriate. Obviously, the previous indefinite suspension imposed by consent against Hecht was insufficient to protect the public, and it is unclear why a second indefinite suspension would somehow now be sufficient given the multitude of MLRPC that Hecht violated while indefinitely suspended from the practice of law the first time. By imposing an indefinite suspension with the right to apply for reinstatement after twelve months, the Majority has given Hecht yet another bite at the apple with respect to harming the public and further eroding the public’s confidence in the legal profession. With this sanction, despite his intentional dishonest conduct, the Majority has guaranteed Hecht yet another date by which he has the right to apply for reinstatement to the practice of law in Maryland. In my view, the indefinite suspension imposed by the Majority is inadequate to protect the public under the circumstances of the case.

Judge Greene joined the dissent. (Mike Frisch)

May 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 10, 2018

In Name Only

An admonition from Massachusetts

The respondent is the principal in a law firm in which he historically has employed at least one associate. Between 2000 and 2012 the respondent employed an attorney, first as an associate and later “of counsel” to the firm. The respondent owned the office building where one of the firm’s offices was located. In 2005, he put signage on the building’s façade including the associate’s name. The sign was displayed prominently above the main entrance to the building on a main street near the local courthouse.

In August 2012, the associate left the respondent’s employ entirely and in December 2012, began working in a government position. Eighteen months later, having noticed that the building’s façade still displayed her name, the now former associate contacted the respondent and requested that he remove it. The respondent acknowledged that he needed to do so and agreed to do it. By October 2016, the respondent had not removed her name from the building’s external façade.

The respondent removed the signage from the building nearly four years after the associate left the firm, and only after a complaint had been filed with bar counsel.

By holding his firm out to the public as including the associate for almost four years after she had left the firm, the respondent violated Mass. R. Prof. C. 7.1 and 7.5(a).

The respondent has been a member of the Massachusetts bar since 1987 and has no prior discipline. He received an admonition for the above misconduct.

(Mike Frisch) 

May 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Lewd Texts To Child Get Attorney Suspended

An attorney convicted on a no contest plea to misdemeanor Corruption of Minors has consented to a three-year suspension by the Pennsylvania Supreme Court.

The Times-Tribune reported

A local attorney is facing charges after investigators say he sent lewd, suggestive texts to the teenage child of a client. Jeffrey Toman, 33, 1515 Pittston Ave., Scranton, turned himself in at police headquarters Wednesday, according to police. Mr. Toman is charged with three felonies related to sending obscene and sexual content to a minor, plus a misdemeanor charge of corruption of minors.

The 14-year-old told investigators during an interview that Mr. Toman started sending the texts last summer. Mr. Toman first started to ask the child personal questions of a sexual nature, like if the child was a virgin, and as time went on, he began asking for photos of the child in underwear and also sent pictures of his genitals, according to court documents.

The Times-Tribune does not identify victims of sexual crimes.

The teen also said Mr. Toman would ask if he could come over to the juvenile’s house when no one else was home, according to charging papers. The teen said the texting ended because the child was afraid of getting in trouble.

City detectives started investigating the texts last month and spoke to the child’s mother.

The woman showed texts to Detective Jeffrey Gilroy where Mr. Toman asks her not to turn him into the police and ruin his life and that he would be seeking psychological help, according to court documents.

A call to Mr. Toman’s office number Tuesday afternoon went unanswered and a message requesting comment was not returned.

Mr. Toman was arraigned before Magisterial District Judge Theodore Giglio on Wednesday and released on $100,000 unsecured bail. A preliminary hearing is scheduled for July 20.

The same source reported that he was sentenced to a term of imprisonment. (Mike Frisch)

May 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 9, 2018

Hindsight And Brady In Louisiana

The Louisiana Attorney Disciplinary Board rejected a Hearing Committee's findings of misconduct against a prosecutor for alleged misconduct in a case tried in the last century

This disciplinary action, consisting of one count, follows what we now know to have been the wrongful conviction of Michael Williams for second degree murder twenty years ago. The only evidence linking Williams to the murder was the testimony of Christopher Landry, who completely recanted his testimony in 2009. The Respondent, Ken Dohre, was the prosecutor in the case, which was prosecuted and tried from 1996 to 1997. After investigating the complaint made by Williams’ Innocence Project attorney, the Office of Disciplinary Counsel (“ODC”) charged the Respondent with violating Rule 3.3(a)(4) of the Rules of Professional Conduct due to his failure to disclose exculpatory evidence to the trial court following the witness’s differing testimony at trial, and Rule 3.8(d) due to his failure to timely disclose the grand jury testimony to the defense prior to trial. Although the hearing committee found misconduct and recommended that Respondent be suspended for a year and a day, the Board finds that the facts do not establish a violation of the charged Rules in effect in 1996/1997 by clear and convincing evidence. Accordingly, the Board orders that the formal charges be dismissed.

The complaint originates out of a 1996/97 Jefferson Parish prosecution of Michael Williams on a second-degree murder charge in the death of Michelle Gallagher. Christopher Landry reported seeing Mr. Williams in the company of the victim shortly before her body was discovered on River Road, in Waggaman, Louisiana, on the night of March 6, 1996. Mr. Landry provided a description of the events he claimed to have witnessed on several occasions during the investigation of the crime and the prosecution of Mr. Williams. Pertinent to this matter are three pre-trial accounts provided by Mr. Landry, as well as his trial testimony.  At issue in these disciplinary proceedings is an alleged inconsistency in Mr. Landry’s grand jury testimony and his trial testimony relative to his description of what he saw Mr. Williams remove from the vehicle: the victim’s body or “something”

At issue were three statements by Landry. who later admitted he "made the whole thing up."

Before the board

Subsequent to oral argument, a decision was rendered by the Louisiana Supreme Court in In re Seastrunk, 2017-0178 (10/18/2017); --So.3d--. In that case, a prosecutor was charged with a violation of Rule 3.8(d). In dismissing the charges against the prosecutor, the Court held that the disclosure obligations found in Rule 3.8(d) are not broader than, but are coextensive with disclosure obligations under Brady. Both the ODC and Respondent filed supplemental briefs recognizing that the opinion bears on the issue of whether Respondent violated Rule 3.8(d). In addition, the parties indicated that the opinion appears to require that a “considered judicial finding” that the evidence at issue is Brady material is required for a finding of a Rule 3.8(d) violation. The ODC admits that there is no such judicial finding in the instant matter.

The board found that the prosecutor had not knowingly presented false evidence.

As to Rule 3.8(d)

Rather than applying the standard set forth in the version of Rule 3.8(d) as it existed at the time of the alleged misconduct, the committee applied the current version of Rule 3.8(d). The current version of the Rule makes it a violation for a prosecutor to fail to disclose evidence “known to the prosecutor that the prosecutor knows, or reasonably should know . . . tends to negate the guilt of the accused . . . .” (Emphasis added.) As previously discussed relative to Rule 3.3(a)(4), the record fails to support a finding that Respondent had actual knowledge that Landry’s accounts were false, inconsistent or otherwise tended to negate the guilt of the accused. Based on the plain language of the Rule as it existed in 1996/97, the Board finds a lack of sufficient proof to establish a violation of Rule 3.8(d).

Bottom line

In this case, the Board is asked to review in hindsight the conduct of a young prosecutor that occurred twenty years ago and to find that he acted unethically when he did not disclose the grand jury testimony of a key witness to the defense after the witness testified in an allegedly materially inconsistent manner at trial. This alleged failure occurred after the trial judge, who eventually tried the case, conducted an in camera inspection of the prosecutor’s file, which contained the grand jury testimony, and determined that no further disclosures were required. Review of this case has presented unique challenges not only with respect to the committee’s inappropriate consideration of certain facts, but more importantly, relative to the proper application and interpretation of the ethical Rules to conduct that occurred in 1996/97. This review takes place after Mr. Landry completely recanted his testimony in 2009, admitting he “made it all up”, and after the Jefferson Parish District Attorney’s office issued correspondence, on June 1, 2011, “pursuant to Brady v. Maryland,” quoting Mr. Landry’s grand jury testimony. In addition, the consideration comes after the Court’s recent decision in Seastrunk, supra, which the parties agree has bearing on the issue of whether Respondent has violated Rule 3.8(d).

The board found no rule violations had been proven by clear and convincing evidence. (Mike Frisch)

May 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wired

The Michigan Attorney Discipline Board has suspended an attorney on his federal wire fraud guilty plea.

Biz Times reported

According to the plea agreement, Scott Hess and Craig Hilborn began their scheme in April 2000. Hess, a tax lawyer at Johnson Controls, had gone to law school in the 1980s with Hilborn, who had taken over a small personal injury and product liability firm in Michigan.

The plea agreement says the two stayed in touch over the years and Hess complained to Hilborn that he was overworked. Sometime in the year 2000, Hess proposed a scheme where he would bill Hilborn’s law firm for work Hess had actually done.

“Hilborn agreed, although he knew that his firm would not, and indeed could not, perform the type of legal services for which he would be ‘billing,’” the agreement says.

The duo agreed Hess would receive two-thirds of the payments Hilborn received from JCI. The company paid out $4.48 million of the $4.7 million Hilborn invoiced JCI for during the duration of the scheme.

Hilborn would mail a check to Hess’ Menomonee Falls home for about two-thirds the amount he received from JCI and kept a log of the payments, documenting them as “referral fees.”

The agreement says Hess deposited the checks into his personal bank account, using the money to invest in stocks and to purchase “tens of thousands of dollars of guns.”

Johnson Controls discovered the scheme in late 2015 and conducted an internal investigation. The plea agreement says Hess and Hilborn both admitted to their role in the scheme and Hess made a voluntary restitution payment of $2.3 million.

“Following an internal investigation, Johnson Controls notified the FBI of its findings of a multi-year scheme of fraud committed by former employee Scott Hess in collusion with a third party vendor,” Fraser Engerman, a JCI spokesman said in a statement. “The company cooperated with the FBI and U.S. Attorney as the investigation was conducted and we are appreciative of their efforts to resolve the case. Doing business with integrity is the only way Johnson Controls does business and we hold all employees accountable to act in an ethical and legal manner.”

The agreement also says Hess conducted a similar scheme to benefit an ex-girlfriend, submitting invoices to the company for hourly administrative work supposedly done by the woman.

Hess and Hilborn each face up to 20 year in prison and a $250,000 fine. Hess has agreed to pay nearly $3 million in restitution before sentencing and Hilborn has agreed to pay nearly $1.5 million.

A sentencing date has not been set. Attorneys for Hess and Hilborn did not immediately respond to requests for comment.

More on the crimes from the Milwaukee Journal Sentinel. (Mike Frisch)

May 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Reinstatement Sought By Attorney Banned From Representing Female Clients

A Connecticut attorney has filed a notice of intent to seek reinstatement.

The Registrar Citizen reported on the bar case

The state has filed a motion to disbar a Torrington attorney after he allegedly violated an agreement prohibiting him from representing women just weeks after the deal was struck in July.

The latest allegations of misconduct against Ira S. Mayo resulted in a July deal which would have suspended him for four months in the fall to avoid disbarrment. However, the state claims Mayo has already violated the terms of that agreement.

According to court documents filed Aug. 6 by state disciplinary counsel Desi Imetovski, Mayo is scheduled to appear at Middlesex Superior Court in Middletown Sept. 8 for allegedly violating an agreement between Mayo and his attorney Randolph Richardson that prohibited him from representing women.

Mayo’s career has been marred with accusations of misconduct, with female clients accusing him of requesting sexual acts in exchange for services and others alleging he made inappropriate comments to them. His misbehavior has resulted in previous suspensions.

 His latest misstep could cost him his law license.

The deal in early July offered Mayo an opportunity for reinstatement after the suspension was served. It also forbid Mayo from representing any women in any legal matter.

The motion for disbarment alleges that on July 30, Mayo represented Jessica Policastro in her case in Litchfield. A transcript of the court appearance shows Mayo addressing the court briefly during Policastro’s appearance.

This is the second time this year that the state disciplinary counsel has attempted to disbar Mayo.

 According to the Connecticut Law Tribune, the state attempted to disbar him in July after Mayo violated a previous clause to not represent women. The paper reported Mayo represented as many as 11 female clients after being readmitted. He was first ordered to refrain from representing women in domestic relation cases on July 2010.

While the ruling against him was made July 2, his suspension was set to start Oct. 1 and end Jan. 30, 2015.

Mayo was previously accused of having an improper sexual relationship with a woman he represented, which resulted in a 15-month suspension in September 2005. He was reinstated in January 2007.

A grievance filed in 2009 reported that Mayo made sexual advances toward a woman seeking legal representation for a domestic violence case, including an expectation that the client would sleep with him if he represented her in court. The court documents state that Mayo never collected any legal fees from the client while he represented her.

In 2013, the Litchfield Judicial District Grievance Panel found probable cause of an ethical violation after Mayo allegedly made inappropriate comments to the mother of a man he was representing. The man later discharged him as counsel. Mayo was ordered by the grievance panel to take online legal ethics courses after that incident.

Mayo has been licensed to practice in the state of Connecticut since 1999. He did not return calls seeking comment. There was no one present Monday at his office on 62 Cook St. in Torrington. A neighbor said they had not seen anyone near the office during the last two weeks.

Richardson declined to comment on Monday and Imetovski did not return calls seeking comment.

The ABA Journal reported that he had been banned from representing female clients for life.  The New Haven Register had an editorial calling for his disbarment. (Mike Frisch)

May 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Spoliation Civil Action Without Destruction Of Evidence

The Ohio Supreme Court reversed a decision that had allowed a civil suit for spoliation of evidence against opposing counsel in litigation.

From the court's summary 

Ohio is among a small number of states that recognize civil causes of action for intentional spoliation of evidence, but the actions are limited to evidence that was physically destroyed, the Ohio Supreme Court ruled today.

The Supreme Court unanimously rejected former Warren City School District employee Kristen Elliott-Thomas’ claim that the tort of spoliation of evidence applied to her case against two attorneys representing the district. She alleged the two intentionally withheld and hid evidence she needed to pursue a wrongful termination and sex discrimination suit against the district.

Writing for the Court majority, Justice Sharon L. Kennedy stated the Court had several reasons not to expand the scope of “spoliation of evidence” to included interfering with or concealing evidence, including the concern that juries would have difficulty assessing the harm of those acts. She also wrote there are other means to “deter and punish interference with and concealment of evidence by parties and counsel.”

...The opinion stated the Court was not convinced the cases Elliott-Thomas cited supported her theory and noted that several Ohio appellate courts have concluded the intentional concealment or interference with evidence are not included in an intentional spoliation claim. The Court majority also found that none of the other state supreme courts that recognize an intentional spoliation claim have defined the claim to include concealment or interference.

The opinion noted that most states have declined to adopt a cause of action for intentional spoliation. The Court majority found guidance in the reasons and principles discussed by these courts in rejecting an expansion of the cause of action to encompass intentional concealment or interference. 

The opinion stated one reason to find that the cause is limited only to physical destruction is that other remedies exist when a party conceals or interferes with the production of evidence. It noted that in the Ohio Rules for Civil Procedure — rule Civ.R. 37 — trial courts are empowered with broad discretion to impose sanctions on parties who violate the discovery rules by concealing or interfering with evidence. And the Ohio Rules of Professional Conduct, including Prof. Cond. R. 3.3 and 3.4, subjects lawyers to disciplinary actions for violating discovery rules.

The Court reversed the Eleventh District’s decision and reinstated the trial court’s judgment in favor of the district and board members.

2017-0693Elliott-Thomas v. SmithSlip Opinion No. 2018-Ohio-1783.

Video camera icon View oral argument video of this case.

(Mike Frisch)

May 9, 2018 | Permalink | Comments (0)

Depression And Bar Discipline

A very interesting oral argument yesterday before the Ohio Supreme Court is linked here.

From the preview

The Ohio Board of Professional Conduct recommends a two-year suspension with 18 months stayed for Cleveland attorney Harlan D. Karp. The board found that the attorney neglected an immigration case and lied to his client about its status.

The attorney and the Office of Disciplinary Counsel, which submitted the complaint to the board, had agreed to a fully stayed two-year suspension. In recommending the six-month actual suspension, the panel of the board that reviewed the matter expressed concern about Karp’s repeated misrepresentations about filing important immigration paperwork, which could have serious consequences for his client. The board adopted the proposal to recommend to the Court a two-year suspension, with 18 months stayed.


Veronika Gadzheva, a Bulgarian ballroom dancer, entered the United States in May 2015 on an O-1B visa to work for the Fred Astaire Dance Studio in Morristown, New Jersey. The visa was valid until Feb. 27, 2018. Unhappy with her job, Gadzheva looked elsewhere for work, and Londance III Studio in Laguna Niguel, California, offered her a position in July 2015.

A friend referred Gadzheva to Karp, who has a solo practice in Cleveland focused on immigration law. The dancer contacted Karp in July for assistance in having her visa transferred to her new employer. Karp agreed to represent the dancer to file an I-129 petition with U.S. Citizenship and Immigration Services (CIS). He communicated that his fee was $750 and that she also would need to pay the $325 filing charge. Gadzheva shared that she hoped to leave the New Jersey dance studio as soon as possible, and Karp told her she could move once the I-129 was filed.

During August and early September, Gadzheva asked Karp several times about the status of the I-129 filing. On Sept. 11, 2015, Karp told Gadzheva that he had filed the paperwork with CIS. In early October, Gadzheva notified Karp that she was heading to California.

He admittedly mishandled the case and lied to the client, putting her in severe jeopardy.

The argument focuses on the mitigating impact of the attorney 's then-undiagnosed depression and present compliance with the Bar's recovery program.

The court asks some challenging questions in light of the fact that the attorney had an active immigration practice throughout the period of misconduct and presently that he conducted with no other complaints.

Why did his depression cause misconduct in this single but no other matter?

Tough question. 

The Relator supports the fully-stayed suspension as sought by the attorney, leading to a moment of levity at the end.

Respondent's counsel had reserved but did not use her two minutes of rebuttal. 

Chief Justice O'Connor:

Ms. Cibella, do you have anything more to say? I suspect not. 

(Mike Frisch)

May 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 8, 2018

Mr. Popper's Practice

The North Dakota Supreme Court has reprimanded a non-member for unauthorized practice

Popper has never been admitted or licensed to practice law in North Dakota. He has not been admitted pro hac vice, or registered under any other rule to practice law in North Dakota. He was admitted to practice in Illinois in 1974...

Popper admitted the following facts. Popper is an employee of Lienguard, Inc. Lienguard, Inc. was hired by L S Drywall, Inc. to place a construction lien on property located in North Dakota. Popper researched the property recordings and researched North Dakota statutes. He mailed a Preliminary Notice of Furnishing for Private Work and a Notice of Intent to Claim a Construction Lien to the current owners of the property and he demanded payment of $3,515. He drafted and signed a verification acknowledging that the information contained within the notice was true to the best of his knowledge and belief. Popper did not associate with an attorney licensed to practice law in North Dakota. He did not indicate in the drafted legal documents that he was not licensed in North Dakota or that he was an attorney.

He must cease and desist from practice and cannot seek pro hac admission for two years. (Mike Frisch)

May 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tardy Slip

The Oklahoma Supreme Court has ordered an attorney's immediate suspension

the OBA presented notices of criminal convictions for direct contempt of court for Minks= failure to appear on behalf of his clients at two felony jury trial sounding dockets and two disposition dockets, all in LeFlore County, Oklahoma. Minks was sentenced as follows:

a. In Case No. CF-2017-78, Minks was found guilty of Direct Contempt of Court on March 8, 2018, and sentenced to a term of imprisonment of 1 day;

b. In Case No. CF-2016-611A, Minks was found guilty of Direct Contempt of Court on March 8, 2018, and sentenced to a term of imprisonment of 1 day, to run concurrently with No. CF-2017-78;

c. In Case No. 2016-393, Minks was found guilty of Direct Contempt of Court on March 22, 2018, and sentenced to a term of imprisonment of 3 days;

d. In Case No. 2017-78 (2nd offense), Minks was found guilty of Direct Contempt of Court on March 22, 2018, and sentenced to a term of imprisonment of 3 days.

 In addition to the 4 criminal convictions, the OBA listed 12 other incidents where Mink failed to appear at court hearings on behalf of his clients during the 3 months preceding the filing of the Notice in this Court. The OBA also alleged Mink failed to appear at a hearing for a client, failed to refund any portion of her fee after she terminated his employment, and refused to communicate with her regarding the unearned fee. The OBA further alleged Respondent acted in violation of statutes by damaging property, violating a protective order, and unlawfully operating a vehicle while under the influence of drugs.

On March 30, this Court ordered Respondent to show cause no later than April 13, 2018, why an order of immediate interim suspension should not be entered. Respondent did not respond.

Upon consideration of the OBA= s Rule 6.2 verified complaint and application for an order of emergency interim suspension, and the evidence presented, the Court finds that Respondent=s has committed conduct in violation of the Oklahoma Rules of Professional Conduct and such conduct poses an immediate threat of substantial and irreparable public harm.

(Mike Frisch)

May 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Attorney-Client Relationship

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a legal malpractice claim

Plaintiff failed to state a claim for legal malpractice against defendant Lori H. Goldstein (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 10 [1st Dept 2008]). The documentary evidence conclusively establishes that she was not acting as plaintiff's attorney. Rather, the terms of the post-nuptial agreement which plaintiff now challenges, as well as numerous emails between plaintiff, his former wife, and Goldstein, reflect the parties' understanding and agreement that Goldstein would draft the post-nuptial agreement, and the spouses' separate counsel would review it before execution. Accordingly, plaintiff has not sufficiently alleged an attorney-client relationship between him and Goldstein, or that she was negligent and that her negligence was the "but for" cause of his alleged injuries (id.).

Neither has plaintiff stated a legal malpractice claim against the remaining defendants, who reviewed the post-nuptial agreement and/or served as his counsel in the divorce action. He cannot explain how their failure to challenge the terms of the post-nuptial agreement in the divorce action was the "but for" cause of his alleged damages, given that his subsequent counsel also did not challenge the terms of the agreement (id.). In any event, plaintiff concedes that he made a strategic decision not to challenge the terms of the agreement in the divorce action. The claims for fraud and breach of fiduciary duty are duplicative of the legal malpractice claim, since they all arose from identical facts and allege the same damages (Voutsas v Hochberg, 103 AD3d 445, 446 [1st Dept 2013], lv denied 22 NY3d 853 [2013]).

(Mike Frisch)

May 8, 2018 in Clients | Permalink | Comments (0)

No Habeas For Chimpanzees

The New York Court of Appeals denied habeas relief with a concurring opinion from Judge Fahey

In these habeas corpus proceedings brought by petitioner Nonhuman Rights Project on behalf of Tommy and Kiko, two captive chimpanzees, petitioner seeks leave to appeal from an order of the Appellate Division, First Department affirming two judgments of Supreme Court declining to sign orders to show cause to grant the chimpanzees habeas relief. The adult chimpanzees, according to the habeas petition, have been confined by their owners to small cages in a warehouse and a cement storefront in a crowded residential area, respectively...

However, I write to underscore that denial of leave to appeal is not a decision on the merits of petitioner’s claims. The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence a thing? “A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his [or her] behalf . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance” (CPLR § 7002 [a]). The lower courts in this appeal and related cases, in deciding that habeas corpus is unavailable to challenge the legality of the chimpanzees’ confinement, rely in the first instance on dictionary definitions. The habeas corpus statute does not define “person,” but dictionaries instruct us that the meaning of the word extends to any “entity . . . that is recognized by law as having most of the rights and duties of a human being” (Black’s Law Dictionary [10th ed 2014], person [3]; see also e.g. Oxford English Dictionary, http://www.oed.com [last accessed May 4, 2018], person [7] [“An individual . . . or corporate body . . . recognized by the law as having certain rights and duties”])...

The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-awareness and self-control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by selfinitiating intentional, adequately informed actions, free of controlling influence...

Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect (see generally Regan, The Case for Animal Rights 248-250).

The Appellate Division’s approach to these proceedings is mistaken in another respect. Petitioner seeks the transfers of the chimpanzees to a primate sanctuary, rather than the wild. The Appellate Division held that habeas relief was properly denied, because petitioner “does not challenge the legality of the chimpanzees’ detention, but merely seeks
their transfer to a different facility” (Nonhuman Rights Project, Inc., 152 AD3d at 79; see also Matter of Nonhuman Rights Project, Inc. v Presti, 124 AD3d 1334, 1335 [4th Dept 2015], lv denied 26 NY3d 901 [2015]). Notably, the Appellate Division erred in this matter, by misreading the case it relied on, which instead stands for the proposition that habeas corpus can be used to seek a transfer to “an institution separate and different in nature from the . . . facility to which petitioner had been committed,” as opposed to a transfer “within the facility” (People ex rel. Dawson v Smith, 69 NY2d 689, 691 [1986]). The chimpanzees’ predicament is analogous to the former situation, not the latter.
The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a “person” or relegated to the category of a “thing” amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek freedom from confinement through the writ of habeas corpus should not be treated as a simple
either/or proposition. The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.

(Mike Frisch)

May 8, 2018 in Current Affairs | Permalink | Comments (0)