Monday, December 4, 2017

Moment Of Truth

A stayed six-month suspension is summarized on the web page of the Massachusetts Board of Bar Overseers.

After his 2004 Connecticut admission

In July 2004, the respondent took the Massachusetts’ bar examination and in November 2004, he was notified by the BBE that he had passed the examination.

He failed to disclose a alcohol-related driving arrest that occurred in Mashpee prior to his swearing in to Massachusetts.

Then

In December 2011, the respondent applied for admission to the Supreme Court of New York and as a result from an inquiry of the New York admissions office, disclosed the Mashpee arrest. On July 9, 2012, the respondent self-reported the above described Mashpee arrest and conviction in writing to the BBE and the Board of Bar Overseers and on July 12, 2012, the BBE referred the matter to bar counsel.

At some point, the respondent applied for admission to the New Jersey bar, disclosing the Mashpee arrest and the conviction and a lengthy and exhaustive vetting process ensued. The proceedings disclosed a long history of legal difficulties involving alcohol when the respondent was young. On March 12, 2014, a New Jersey panel on character and fitness recommended admission, subject to four enumerated conditions. The recommended conditions were then appealed in part by the respondent. On December 7, 2016 the Supreme Court of New Jersey adopted the recommendations of the panel and certified the respondent for admission, subject to conditions to be in effect for two years including abstinence, attendance at one AA or LCL meeting per month, continuing treatment with a therapist and a requirement that he not engage in solo practice without associating with experienced counsel.

 Agreed sanction

The parties also agreed that the respondent be suspended for six months, with the suspension stayed for two years, subject to the conditions for admission imposed by the New Jersey Supreme Court.

December 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

To Suspend Or Not to Suspend

An oral argument preview on the web page of the Ohio Supreme Court

Disciplinary Counsel v. Andrew Mahlon Engel, Case no. 2017-1087
Montgomery County

A Dayton area lawyer who has twice been sanctioned by the Ohio Supreme Court for violating the rules governing attorneys faces a two-year suspension, with 18 months stayed, for failing to respond to a client matter and other conduct violations.

The Board of Professional Conduct recommends the suspension of Andrew M. Engel of Centerville, who was publicly reprimanded by the Supreme Court in 2001, and suspended for two years, with six months stayed, in 2004. The board is recommending Engel now be forced to cease practicing law for six months with the possibility of having to sit out two years if he doesn’t meet certain conditions.

Engel counters that he provided the board sufficient evidence to show he was suffering from a mental health disability at the time of his misconduct and that he is successfully undergoing treatment for the condition. He argues that his behavior warrants a fully stayed two-year suspension as long as he meets the conditions recommended by the board.

Engel Neglects Client’s Debt Settlement Case
In April 2015 Dianne Shelton hired Engel to represent her in a consumer debt matter. She paid Engel a $500 retainer, and he obtained information from Shelton and two municipal courts in order to pursue a settlementwith Shelton’s creditor. Shelton had explained to Engel that the debt was preventing her and her husband from financing the purchase of a home.

About two weeks after the initial meeting, Engel sent a letter to the lawyer for the creditor. More than a month later, Shelton called Engel seeking information about the status of her case and was unable to reach him. In mid-June Engel promised to call the opposing attorney to follow up, and then sent a follow up letter to the creditor’s lawyer. Between June and mid-August, Shelton repeatedly tried to reach Engel about the status of her case, and Engel didn’t respond to phone calls or emails. By mid-August, Engel hadn’t spoken directly to the opposing attorney, and Shelton field a grievance against Engel with the Office of Disciplinary Counsel.

In September 2015, Engel responded to Shelton by email and sent another follow up letter to the opposing attorney. At the time he wasn’t aware of the grievance Shelton filed against him. In October, the disciplinary counsel sent a letter of inquiry to Engel, and Engel responded later that month. In November, he told the disciplinary counsel he would contact Shelton and ask if she wanted him to continue to represent her or return her fees.

But Engel didn’t respond to follow up contacts from Shelton or the disciplinary counsel until February 2016. She agreed to allow Engel to continue to represent her, but after not hearing from him for several weeks, she settled her debt herself in March 2016. After being informed of the settlement, Engel promised to refund Shelton the “balance” of her $500 retainer. In May 2016, Engel sent Shelton $50. The disciplinary counsel continued to request documentation from Engel who appeared for a June 2016 deposition. Weeks after the deposition, Engel sent a letter to Shelton apologizing for her failure to respond to her, and refunded the remaining $450 of her retainer.

A three-member panel of the board found Engel violated several rules of professional conduct while representing Shelton, including a requirement that he act with diligence to resolve her legal matter, and failing to keep her reasonably informed about the status of her case. The board also found that he failed to respond to information requests from the disciplinary counsel and violated his duty to cooperate with the disciplinary proceeding.

Board Considers Sanction
The board considers several issues before recommending a sanction, including aggravating circumstances that can increase a penalty and mitigating factors that can lessen it. The board noted that Engel has prior disciplinary offenses, committed multiple rules violations, and didn’t cooperate in the investigative stage of the disciplinary process.

It also found that he didn’t act with a dishonest or selfish motive, eventually made full disclosure to the board and cooperated in the proceedings, provided proof of good character and reputation, and presented proof of a disorder that affected his representation of Shelton.

The panel heard from several witnesses including psychologist Marsha K. Weston, who testified that Engel was depressed and anxious when he first started to see her in August 2016. Weston prescribed medication and said Engel responded well to it and can competently practice law.

Engel testified that he was insufficiently attentive to Shelton’s case and didn’t realize he was suffering from depression and anxiety that was affecting his practice. He admitted he should have been more responsive and that this type of misconduct will not happen again. He said he contracted with the Ohio Lawyers Assistance Program (OLAP) for treatment assistance and hired a new office associate to focus on client communications. He also entered into a mentoring relationship with attorney Jonathan Hollingsworth, the former Ohio State Bar Association president, who has advised Engel.

The disciplinary counsel recommended a two-year suspension with six months stayed. The board adopted the recommendation, stating it was consistent with sanctions imposed on lawyers with similar infractions. It recommended to the Supreme Court that the 18-month stay be conditioned on Engel continuing to receive counseling from Weston or another qualified health care provider; that he adhere to recommendations from his primary care physician, and stay in compliance with his OLAP contract. In addition, the board suggested that once Engel is reinstated to practicing law, he should be placed under two years of monitored probation.

Engel Seeks Fully Stayed Suspension
Engel notes the parties and the board stipulated to nearly all the facts as well as the aggravating and mitigating circumstances in the case, except for one. He argues the hearing panel did not “expressly” adopt the position that Engel’s mental disorder contributed to his misconduct or credit him for being sufficiently treated for the disorder. He also maintains the board didn’t consider his participation in OLAP, his attorney mentoring with Hollingsworth, or the changes to his legal practice as mitigating factors.

Engel cites several cases, including the Court’s recent 2017 Ashtabula County Bar Association v. Brown as examples where lawyers similarly situated to him have received fully stayed suspension on certain grounds. Engel noted that he had to part with his initial attorney handling his disciplinary matter after serious disagreements. He objects to the panel’s refusal to allow him to supplement his closing arguments with additional information, including the impact of the Brown case, which was decided after closing arguments were submitted. He maintains the failure to consider the cases he cited along without crediting him for his contributions to the profession by teaching for the Supreme Court’s Judicial College and representing a population that is underserved in Ohio led the board to erroneously suggest a sentence that prevents him from practicing law.

Disciplinary Counsel Says Suspension Warranted
The disciplinary counsel observes that this is the third time Engel has been found to have neglected a client and the second time he has failed to cooperate in a disciplinary matter, and insists that this behavior warrants an actual suspension from practicing law. The disciplinary counsel notes that Engel’s behavior caused a delay in Shelton’s ability to purchase a home and left her to settle her debt on her own.

The disciplinary counsel compares the mental disability claims of one of Engel’s past disciplinary matters with the current case. In Engel’s 2004 case, he didn’t receive mitigation credit for his mental disability because he didn’t present evidence that the depression contributed to his misconduct, the disciplinary counsel explains. The 2004 sanction specified his reinstatement was conditioned on providing a statement from a qualified mental health professional that he was could ethically and competently practice law, which he did provide.

Similarly to 2004, the disciplinary counsel contends in the Shelton matter, Engel presented evidence of a mental health disability, but no evidence that the disorder prevented him from following the professional conduct rules. The disciplinary counsel notes Engel didn’t seek treatment until after he received an official board complaint about his behavior.

The disciplinary counsel maintains that Weston, Engel’s treating psychologist, wouldn’t conclude whether Engel was competent to practice law when he sought treatment, and she could not explain why Engel neglected this client and apparently did not neglect other clients at the same time. Nevertheless, the disciplinary counsel argues the board did give Engel some mitigation credit for the disability.

Absent significant mitigation credit, Engel’s record and failure to cooperate would warrant an indefinite suspension, the disciplinary counsel argues. While the board may not have stated explicitly how it factored his mental health treatment into its finding, the recommended lower sanction of a two-year suspension, rather than an indefinite suspension, indicates Engel was given mitigation credit, the disciplinary counsel maintains.

The disciplinary counsel supports the proposed sanction recommended by the board, and argues that it’s consistent with prior sanctions handed down to attorneys displaying similar patterns of misconduct. The disciplinary counsel also rejects Engel’s arguments that he was unfairly prevented from providing supplemental material after closing arguments and suggests that Engel’s own inaction to promptly notify the board of his request for more time led to its exclusion.

 Dan Trevas

(Mike Frisch)

December 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, December 3, 2017

No Longer Licensed As Massage Therapist But Still A Lawyer

A bar discipline summary from the web page of the Massachusetts Board of Bar Overseers describes conduct that led to a stayed three-month suspension

On January 11, 2016, the respondent, Gary R. Edwards, who was admitted to the bar of the Commonwealth on December 15, 1998, admitted in the Plymouth District Court to sufficient facts to one count of indecent assault and battery on a person fourteen or over, a felony, in violation of M.G.L. c. 265, § 13H. The matter was continued without a finding until January 11, 2017, with probationary terms. The circumstances supporting the admission to sufficient facts were as follows.

The respondent was employed as a massage therapist. During a massage, he asked a female customer, age 34, if she wanted her chest massaged. When she said yes, the respondent massaged her breasts and touched her nipples. She immediately told him to stop, and he did. The customer allowed the massage to continue but reported the incident to the owner of the facility later that day.

In mitigation, the respondent’s criminal conduct did not involve the practice of law. The respondent ceased his indecent assault and apologized when the victim objected. The respondent complied with the terms of his probation, including a mental health evaluation and counseling, as a result of which the charge was dismissed at the end of the continuance period. The respondent has surrendered his license as a Massage Therapist Practitioner.

The sanction is stayed for 12 months. (Mike Frisch)

December 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Challenged

The California State Bar Court Hearing Department approved a stipulated sanction of a two-year suspension with all but 30 days stayed and probation for a Challenging Another to a Fight infraction

On August 8, 2016, the Los Angeles County District Attorney filed a criminal complaint in the Los Angeles County Superior Court, case no. 6CJ 12203, charging respondent with one count of violating Penal Code section 242 [Battery], a misdemeanor, one count of violating Penal Code section 415(1) [Challenging Another to a Fight], an infraction, one count of violating Penal Code section 415(2) [Causing Disturbance to Another by Loud and Unreasonable Noise], a misdemeanor and one count of violating Penal Code section 647(1) [Under Influence of Liquor in Public Place], a misdemeanor.

On April 13, 2017, respondent pled no contest to one count of violating Penal Code section 242 [Battery], a misdemeanor and one count of violating of Penal Code section 415(1) [Challenging Another to a Fight], an infraction. On that date, the court accepted respondent’s plea, found him guilty, and dismissed the remaining two counts.

On the night in question, police were called

When the officers arrived, they saw respondent and an adult male, (“victim”) lying on the street in front of a restaurant with respondent on top of the victim.

The victim told the officers that there was a dispute inside the restaurant and respondent was verbally attacking another waiter. Respondent was escorted out of the restaurant.

As respondent left the restaurant, he punched the victim in the face, which caused a small laceration and swelling to the victim’s face.

The attorney has a frecord of prior discipline for misconduct related to the practice of law. (Mike Frisch)

December 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 1, 2017

Murder Most Disbarrable

An attorney convicted of three murders should be disbarred, according to a recommendation of the California State Bar Court Hearing Department

On March 15, 1984, respondent was arrested on a warrant pursuant to a complaint filed by the Orange County District Attorney, in in Orange County Superior Court, case no. A4CF00251, which alleged that in or about May 1980 respondent killed Richard Rizzone, Rena Miley and Thomas Monahan in Westminster, California...

On January 3, 1990, a jury trial commenced, which ended in a mistrial on November 6, 1990.

On November 24, 1993, a second jury trial commenced, which concluded on March 15, 1994. At the conclusion of trial, the court issued jury instructions for first degree murder, and for second degree murder with express malice.

On March 25, 1994, a jury returned a verdict, finding respondent guilty of three counts of violating Penal Code section 187 [murder — second degree] for the killings of the Richard Rizzone, Rena Miley and Thomas Monahan.

On April 13, 1994, the Review Department of the State Bar Court issued an order finding that respondent had been convicted of a crime involving moral turpitude and placing respondent on an interim suspension while the instant discipline case is pending.

On June 29, 1994, the Orange County Superior Court sentenced respondent to a term of 46 years to life in state prison.

The conviction was affirmed and the matter was sent to the State Bar Hearing Department  in 2002.

Sanction

The killing of a human being with the presence of a manifest deliberate intention to unlawfully to take away life constitutes moral turpitude, as defined by Lesansky. Such actions are indisputably a serious breach duty owed to the victim, and society, and is a flagrant disrespect for the law and societal norms. Therefore, respondent's conviction, on its face, justifies disbarment. Moreover, the sanction of disbarment is necessary to fulfil the purposes of attorney discipline, including the maintenance of the highest professional standards and the preservation of the public’s confidence in the legal profession.

It took 15 years from the referral to this recommendation.

The Orange County Register reported in 2013.

Everyone in Orange County law enforcement during the 1970s and ’80s knew about Tom Maniscalco – and that was before he was charged with three counts of murder.

He was one of the founders of the Hessians motorcycle gang who rode Harleys by day and went to law school by night in the 1960s.

After he passed the bar exam, Maniscalco defended his biker buddies in Orange County courts by day while running a meth and counterfeiting ring by night, according to court records.

And then he became a suspect in the May 1980 deaths of two former motorcycle gang members and the 19-year-old girlfriend of one of the victims. His case became one of the 60 featured in “Notorious OC,” an e-book published in 2012 by the Register about the most notorious criminal cases in the county’s history.

The verdict was reported by the Los Angeles Times.

I prosecuted the bar discipline case stemming from Ruthann Aron's conviction for solicitation of the murder of her husband and an attorney.

After full briefing and argument before the D.C. Court of Appeals on the question of moral turpitude, she consented to disbarment.

Bethesda Magainzine Beat had a 2016 update on the Aron case. (Mike Frisch)

December 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Dangers Of Cigarettes

The Kansas Supreme Court imposed an indefinite suspension for a criminal conviction.

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Harry Louis Najim, of Wichita, an attorney admitted to the practice of law in Kansas in 1972. Pursuant to a plea agreement, respondent admitted that he provided legal services to an undercover agent who was engaged in a conspiracy to commit wire fraud and contraband cigarette trafficking. The undercover agent paid respondent $16,500 in cash. But respondent did not notify his law firm so it could report the payment to the Financial Crimes Enforcement Network despite his knowing a report of that amount was required by law.

The panel below proposed a three-year suspension

Respondent appeals the finding that he violated KRPC 8.4(b) and the recommended three-year suspension. We hold that respondent violated KRPC 8.4(b) and impose an indefinite suspension that is retroactive to his temporary suspension imposed on May 18, 2015...

Respondent disputes whether he committed a crime at all. But a record of the criminal judgment was admitted into evidence during the disciplinary hearing. And under Supreme Court Rule 202 (2017 Kan. S. Ct. R. 233), the criminal judgment is conclusive evidence in a disciplinary proceeding of the crime's commission.

Justice Stegell concurred but 

I take the unusual step of writing separately in a disciplinary matter because I am troubled by the hearing panel's apparent disregard of respondent's due process rights. See State v. Caenen, 235 Kan. 451, 458-59, 681 P.2d 639 (1984) (recognizing that due process protections apply in attorney discipline proceedings); In re Daugherty, 277 Kan. 257, 261, 83 P.3d 789 (2004) (same). During respondent's sentencing in the underlying criminal case, the court made a finding that "Mr. Najim did know the funds were from . . . unlawful activity." Panel Majority Report, at ¶ 13. The panel then relied on Supreme Court Rule 202 (2017 Kan. S. Ct. R. 233) to relieve the Disciplinary Administrator of his burden to demonstrate this fact and instead shifted the burden to respondent to "disprove the findings made by the sentencing court." Panel Majority Report, at ¶ 14.

But on its face Rule 202 plainly and clearly applies only to civil judgments. This finding was not a civil judgment, as everyone acknowledges. Instead, the panel reasoned that because the criminal sentencing court had made its findings under a "preponderance of the evidence" standard, Rule 202 could apply. But while this may make some sense as a matter of policy, it is not what the rule says. In fact, the panel chose to ignore the plain meaning of the rule so as to short-cut the disciplinary process—a process that requires the government to prove its allegations before it deprives an individual of a protected property interest. There is no justification for this when a respondent's license and livelihood hangs in the balance.

Moreover, the panel's creative application of our rule was unnecessary to its conclusions and recommendations. Even without this aggravating factor—which our decision assumes away—the evidence below supports our finding that respondent violated Rule 8.4; and the nature of his conduct justifies the discipline meted out. For this reason alone, I concur with and join fully the decision of the court.

Oral argument video linked here. (Mike Frisch)

December 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Mitigation Sufficient For Suspension Rather Than Revocation

The Iowa Supreme Court imposed a suspension rather than the proposed license revocation of the Attorney Disciplinary Board

Jason Springer was admitted to practice law in Iowa in 2002. He resides in Madrid and is well regarded by other lawyers in the profession. He is active in a number of community activities, including volunteering for the Madrid Fire Department and coaching youth basketball and baseball. He is also active in his church. He suffered from alcohol abuse prior to seeking treatment in 2015. Prior to this proceeding, Springer practiced real estate and personal injury law and had no disciplinary history. His license to practice law, however, was suspended on November 9, 2016, in a separate action based on the conduct giving rise to this proceeding.

The conduct responsible for this proceeding relates back to 2008 when Springer assisted two clients in organizing a business that negotiated the sale of homes for financially distressed owners in lieu of foreclosure. His clients would first negotiate a price for the house that the lender would accept in settlement of the outstanding balance of the mortgage. Once the sale price was fixed, the clients would purchase the home for the short sale amount. Then, often the same day or a few days later, the clients would sell the home to a prearranged third party for a profit.

Springer assisted his clients in the two-part transaction. First, Springer and his office staff would perform the work needed to close the sale of the house between the parties to the foreclosure and his clients. This work included completing a HUD–1 form, disbursing the funds, and collecting a fee. Second, Springer and his office staff would perform the services necessary to close the second sale of the home to the third party. Again, this work included completing a HUD–1 form, disbursing the funds, and collecting a fee. From 2009 to 2011, Springer assisted his clients in approximately forty such transactions.

In seven of the transactions, however, Springer’s clients were without sufficient funds to purchase the homes secured by the delinquent mortgages. During such transactions, to complete the first sale, Springer would falsely represent to the lender on the HUD–1 form that his clients paid cash at the short sale closing. The clients would present Springer with a check made payable to the lender for the purchase price, which Springer would hold to deposit until the second sale was closed. Springer would then disburse the sale proceeds from
the second sale to his clients by depositing the proceeds into their account. Once the funds were secured, he would deposit the check representing the sale price in the first transaction drawn on the account from his clients to the mortgage lender.

The false documents prepared by Springer and his staff in the course of the transaction concealed from the lender that Springer’s clients did not have sufficient funds to purchase the home. The documents further concealed that the clients used the proceeds from the second sale to finance the first sale.

In 2011, Springer learned while attending a continuing legal education seminar that the short sale transactions violated federal law. He stopped performing the services for his clients a short time later.

In 2015, Springer was convicted in federal court of seven counts of bank fraud for knowingly executing a scheme to defraud a financial institution in violation of 18 U.S.C. § 1344(1) (2012). He was ultimately sentenced to four months in prison, placed on probation for two years, and fined in the amount of $15,000. He served the sentence in 2016 and 2017.

Mitigation prevented revocation

Overall, the sanction in this case falls between the revocation imposed in Nelsen and Engelmann and the six-month suspension imposed in Bieber and Wheeler. While Springer’s conduct more resembles the conduct in Nelsen and Engelmann, it is apparent that Springer lacked the specific intent to convert funds. Considering all the circumstances, we conclude Springer’s license to practice law in Iowa should be suspended for a period of two years.

Note the improvement of the Iowa Supreme Court's web page that now provides access to briefs and oral argument, if held. (Mike Frisch)

December 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Perilously Close

The Massachusetts Supreme Judicial Court affirmed the dismissal of a claim on appeal, declined to impose sanctions and cautioned counsel

Because the borrower's various arguments are either squarely barred by precedent or border on the frivolous, we affirm. Although we deny Deutsche Bank's request that, as a sanction for a frivolous appeal, we award attorney's fees and costs against the borrower and her counsel jointly and severally, we caution counsel here that such a sanction is within an appellate court's authority and is more likely to be imposed if counsel fails to heed warnings against repetitive pursuit of unmeritorious appeals...

Here, this appeal comes perilously close to being frivolous. Counsel, who also represented the borrowers in the unsuccessful appeals in the Woods, Bolling, and Strawbridge cases we rely upon supra,  as well as other appeals unsuccessfully presenting variants of the theories advanced here,  likely should have known better than to pursue it, particularly after the decision in Strawbridge. We have carefully considered all of the arguments made in the borrower's brief, even those not rising to the level of appellate argument under Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and determined that none of them has merit. We decline to hold the appeal so utterly without basis as to warrant an award of fees and costs against either counsel or his client. We caution, however, that "[r]epetitive pursuit of unmeritorious appeals after prior warnings from trial and appellate courts will increase counsel's exposure to the assessment of financial sanctions." 20 Worcester, 77 Mass. App. Ct. at 73 n.6.

(Mike Frisch)

December 1, 2017 | Permalink | Comments (0)

The Meaning Of "Suspended"

The Nevada Supreme Court suspended an attorney who violated an earlier order of suspension

Crowley was suspended from the practice of law in Nevada in July 2013. Despite his suspension, he continues to operate out of the same office with the same firm name that he had before his suspension. He uses the same letterhead, with minor changes, such as a M.D." designation after his name instead of "Esq." While he is supervised by another attorney, that attorney's office is in a different location. In 2015, Crowley assisted Larry Muecke in arranging his estate so his belongings would transfer to his cousin Timothy McLenic without having to go through probate. After Muecke's death, McLenic was unable to obtain Muecke's IRA funds so he met with Crowley. McLenic's fiance Lynae Hummel paid Crowley $400 to send a demand letter to Muecke's bank to release the funds to McLenic. McLenic and Hummel were unaware that Crowley was suspended. Thereafter, McLenic was forced to retain another attorney to assist him with obtaining the funds through probate.

Sanction

Although a suspension is appropriate, we conclude that a longer suspension than recommended by the panel is warranted. We are concerned with the appearance that Crowley has maintained his legal practice with very little change since his suspension, and thus, are concerned that further unauthorized practice of law may occur. Additionally, because Crowley has been publicly reprimanded twice for engaging in the unauthorized practice of law since his suspension, we conclude a longer suspension is necessary to protect the public and the legal profession. The aggravating circumstances (pattern of misconduct and refusal to acknowledge the wrongful nature of conduct) also support a longer suspension.

Accordingly, we hereby suspend attorney Martin Crowley from the practice of law in Nevada for 18 months from the date of this order.

Justice Gibbons and Pickering dissented 

We would impose the nine-month suspension recommended by the hearing panel. While the majority asserts that Crowley knew he should not send the September 15, 2015, demand letter because he was subject to previous discipline for sending a demand letter while suspended, we note that he sent the September 15 letter before this court's public reprimand was issued in In re Discipline of Crowley, Docket Nos. 64457 and 68200. Thus, we respectfully dissent.

The case is Discipline of Martin Crowley. (Mike Frisch)

December 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 30, 2017

Suspension Imposed But Reinstatement Not Conditioned On Passing Bar Exam

The New York Appellate Division for the First Judicial Department declined to adopt one aspect of a referee's recommendation in a bar discipline matter.

In November 2016, the Attorney Grievance Committee (the Committee) brought 20 charges against respondent, stemming from its investigation of notices from the Lawyers' Fund for Client Protection that a check and an electronic debit drawn against respondent's IOLA account were dishonored due to insufficient funds. As part of its investigation, the Committee repeatedly requested that respondent produce his personal and business income tax returns for the 2010 through 2013 tax years and also served him with a judicial subpoena directing him to produce them. He failed to produce the requested documents. As a result, this Court granted the Committee's motion for respondent's interim suspension (149 AD3d 65 [1st Dept 2017]).

Respondent did not file an answer to the charges. He appeared at a hearing held in February 2017 and testified, but did not produce other witnesses or any exhibits. Following the hearing, the Referee sustained all 20 charges, finding, in summary, that respondent had failed to pay $48,284.42 in child support and failed to turn over his tax returns as requested, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(d) and (h); misused his IOLA account in violation of rules 1.15(a), (b)(1), (d)(2), and (e); and shown incompetence and a lack of candor in three client matters in violation of rules 1.1(a), 1.3(a) and (b), 1.8(e), and 8.4(c). His misconduct in regard to client matters resulted in one client being barred from pursuing a claim against the City of New York and the New York City Police Department; another client being barred from pursuing a discrimination claim against his employer; and a third losing her right to appeal from termination of her parental rights, leading to the adoption of her child.

The Referee found that respondent offered no mitigation, showed no remorse and offered no assurance that he intended to make any effort to improve his legal practice.

As a sanction, the Referee recommended that respondent be suspended from the practice of law for four years, and "be required to retake the New York Bar examination as part of any reapplication to practice law in New York," noting that "[r]espondent has demonstrated a frightful lack of knowledge of New York practice and law."

Four years, yes; bar exam, no.

We decline to grant the Committee's request that his reinstatement be conditioned upon his retaking and passing the New York State Bar Examination.

(Mike Frisch)

November 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Action Packed Expense Account

The Nevada Supreme Court imposed a suspension of five years and a day for misconduct described by the court majority

for approximately four years, Cohen sought and obtained reimbursement for expenses that he did not actually incur during the course of representing an insurance client. Specifically, Cohen repeatedly made false entries on expense forms, allowed his insurance client to be billed for and pay those false charges, and accepted the fraudulent reimbursement funds totaling $214,345 from his firm. By falsely representing to his client and his firm that he was owed the reimbursements, he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. We therefore conclude that clear and convincing evidence supports the panel's findings that Cohen violated RPC 4.1 and RPC 8.4...

The hearing panel found four aggravating circumstances (dishonest or selfish motive, a pattern of misconduct, substantial experience in the practice of law, and illegal conduct) and five mitigating circumstances (absence of a prior disciplinary record, personal or emotional problems, full and free disclosure or cooperative attitude toward the proceeding, character or reputation, and interim rehabilitation), all of which are supported by the record. In light of the mitigating circumstances, we conclude that a suspension of five years and one day is appropriate and sufficient to serve the purpose of attorney discipline—to protect the public, the courts, and the legal profession.

Justices Hardesty and Stiglich dissented

We do not agree that suspension is an adequate discipline for Cohen's violations. Over the course of five years, Cohen intentionally and repeatedly stole more than $200,000 by submitting false expense forms to his firm and billing his client for reimbursement of expenses he did not incur. Before this fraudulent scheme was discovered, partners at his law firm learned that he was padding his billable hours on flat-fee cases to make it appear that he had worked more hours than he actually had. Though this was a fireable offense, the partners allowed him to continue working at the firm after he expressed remorse and vowed never to deceive them again. Yet, despite this promise and second chance, Cohen continued to lie to his partners and to his client about his expenses and submit false requests for reimbursements for several more years. At the disciplinary hearing, Cohen minimized the seriousness of his conduct by stating that it did not hinder the administration of justice and neither the client nor the law firm suffered any loss, as the firm reimbursed the client and was itself insured for the amount stolen by Cohen. Cohen himself had not made any attempt to pay back the money he stole. Cohen also appeared to blame his overbilling and theft in part on his law firm's culture and lack of oversight. Given the egregiousness of his misconduct, his violation of fiduciary duties owed to his firm and to his client, and the numerous aggravating factors, including a dishonest or selfish motive and a pattern of misconduct, we believe disbarment is necessary to protect the public and the legal profession. Even considering the mitigating circumstances, we cannot conclude that Cohen's conduct warrants any discipline other than disbarment.

The case is Discipline of Nelson Cohen.  (Mike Frisch)

November 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sex Drugs And Unauthorized Practice

An attorney who was arrested in September 2009 when a law enforcement officer "observed [her] exiting a vehicle with a needle sticking out of her forearm and observed blood tricking down her arm" and thereafter was a fugitive from the charges should be disbarred, according to a recent recommendation of a Louisiana Hearing Committee.

There were also a speeding charge in 2010 and a drug related arrest in 2013. She failed to appear in both matters.

She practiced after her 2010 administrative suspension. 

Finally, during the course of her representation of a husband and wife in their corporate farming business, she had sexual relations with the husband and "introduced him into the drug culture in which [she] was engaged."

This led to the husband's "acrimonious" divorce. 

The attorney defaulted on the disciplinary charges. (Mike Frisch)

 

November 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

New Bar Admission Rules Adopted In Florida

New rules adopted by Florida Florida Supreme Court for bar admission

In its petition, the Board explains that it is developing an applicant portal to allow all communications between the Board and applicants for admission to The Florida Bar to be done electronically. Thus, under rule 3-14 as amended, in lieu of a notarized paper copy of the bar application, an e-signature is required and the jurat on the application is modified to reflect this. Further, rule 3-14.1 (Filed as an Applicant) and rule 3-14.2 (Filed as a Registrant) are amended to delete the requirement that the bar application be “sworn,” and rule 3-14.1(f) is amended to require, instead of an “affidavit . . . attesting that the applicant has read Chapter 4, Rules of Professional Conduct, and Chapter 5, Rules Regulating Trust Accounts,” an online form “acknowledgement of compliance . . . declaring” the same. The name of this form is changed to “Acknowledgement of Compliance,” and the statement therein is amended to reference an e-signature PIN, rather than notarization. Rule 3-14.3 (Defective Applications) is amended to remove a reference to notarization.

There is a new rule for applicants who do not meet educational requirements.

As to the MBE

Rule 4-23.1 is amended to allow an applicant to transfer a score obtained on the Multistate Bar Examination (MBE) in another state, as long as the transferred scaled score meets the requirements of rule 4-26.2 (Pass/Fail Line)—the scaled score would have to be 136 or higher under the individual method—and as long as it is obtained within the timeframe required under rule 4-18.1—within 25 months of the date of the administration of any part of the examination that is passed. In 1983, we adopted the current rule prohibiting the transfer of scores because at that time, there were inconsistencies in the administration and scoring of the MBE administered in other jurisdictions. However, since then, the National Conference of Bar Examiners has established very specific guidelines and procedures for the administration of the MBE, making the transfer of scores feasible and acceptable.

November 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

More Than An Accident

A Michigan attorney has been disbarred for a felony conviction

Respondent was convicted in People of the State of Michigan v Jill Ann Tucker, 44th Circuit Court Case No. 16-023886-FH, ofthe following offenses: interference with the reporting of a crime, in violation of MCl 750.483A2B, a felony; unlawful posting of messages through electronic medium without consent, in violation of MCl 750.411 S2A, a felony; lying to a peace officer regarding a serious misdemeanor, in violation of MCl 750.479C2A, a misdemeanor; tampering with evidence, in violation of MCl 750.483A6A, a felony; failure to stop at the scene of a property accident, in violation of MCl 257.618, a misdemeanor; failure to stop at the scene of an accident involving serious personal injuries, in violation of MCl 257.617A, a misdemeanor; use of a computer to commit a crime, in violation of MCl 752.7973E, a felony; and operation of a motor vehicle in violation of a license restriction, in violation of MCl 257.312, a misdemeanor. In accordance with MCR 9.120(B)(1), respondent's license to practice law in Michigan was automatically suspended effective March 15, 2017, the date of respondent's felony convictions

The Detroit Free Press reported on the crime

A Whitmore Lake woman expressed relief Thursday that the men she injured in a hit-and-run crash survived, saying she “never had an opportunity to address the accident” until now.

Jill Ann Tucker had just learned she will spend 28 months to 10 years in prison for interfering with a crime report, tampering with evidence and using a computer to commit a crime.

Tucker, who is an attorney, also received concurrent county jail sentences for unlawful posting of a message, lying to a police officer, driving on a suspended license as well as leaving the scene of a personal property damage crash and failing to stop for a personal injury accident.

Assistant Prosecutor Daniel Rose told the court Tucker’s behavior was especially troubling because she’s a lawyer sworn to upload the law.

“There appears in this case that there were no principal of honesty or decency to others that were compelling her conduct other than nothing more than her own selfish interests,” he said.

 Defense attorney Lawrence Gadd described his client as an intelligent mother of four children who was highly successful until depression and alcohol got the better of her. He said she’s lost her family, job, law license, assets and friends.

“This is a person who has already incurred the highest penalties in life and it’s a result of depression and alcoholism,” Gadd said.

Testimony at Tucker’s March trial revealed she failed to stop for other motorists who had stopped at the intersection of M-36 and Lemen Road in Green Oak Township on June 4.

Tucker’s Dodge Ram pickup struck motorcyclist Brian Drake hard enough that it shot the motorcycle forward nearly the length of a football field. Drake went airborne, landing on his elbow and buttocks in the middle of the intersection next to a Chrysler 300.

 “This crash could have ended very differently for me,” said Drake, who suffered a bruised backside and elbow injuries.

“Looking back, it’s hard for me to believe how Miss Tucker could have known she was responsible for this crash and still fled the scene, not knowing if I or others were seriously injured or possibly dead,” he added. “Her selfish actions, both prior to and especially after the crash, have demonstrated a complete lack of regard for the well-being of the people involved and the law.”

The pickup – which Tucker purchased and insured through her then-employer, DXRacer, avoiding an interlock device on her personal vehicle for a prior drunken driving conviction – also rear-ended the Chrysler 300 hard enough to push the trunk up to the rear window.

The Chrysler driver, Donald Mayville, said he continues to feel apprehension when a motorist is behind him or tailgates.

Testimony also indicated that Tucker lied to a Green Oak Township police officer, whom she was dating and who initially investigated the crash.

Gadd took the officer and Rose to task for their handling of the case. He accused the officer of destroying evidence and participating in “some of the alleged criminal conduct.”

Gadd accused Rose of withholding evidence and providing discovery materials late. He also accused Rose of making “inappropriate accusations during the case,” which likely referenced Rose’s questioning at an earlier hearing about whether Gadd and his client were intimately involved. Gadd denied that accusation in March.

“I believe these public officials should be held to a higher standard, and I know they are going to walk away from here and high five because they won and got the defendant convicted of various offenses,” Gadd said Thursday.

Rose said Gadd’s comments reflected the defense’s position throughout the case: accusing others of wrongdoing and blaming the victim while ignoring Tucker’s criminal behavior, including allegations she broke into her estranged husband's house the day after the jury verdict and stole two rifles and two shotguns.

“The one thing you notice is missing from (Gadd’s) argument is … the people she harmed,” Rose said.

Rose said Tucker’s behavior has shown her ability to manipulate and deceive others. He called her behavior premeditated, from getting a second vehicle to avoid detection when she drank alcohol while on probation for her second drunk driving conviction to procuring a replacement bumper to hide the crash evidence, as well as leaving two injured people in the middle of an intersection.

Tucker also tore out computer cords to disable security cameras so she wouldn’t be caught returning the damaged pickup and she retaliated against the woman who placed her behind the wheel by sending naked photographs of the woman to her co-workers.

“She didn’t even do what a decent human being, even (one) making a mistake would do, and check on the two men she injured,” Rose said. “Instead, she hit the gas to save her own skin. …

“She blamed all of those around her to shift focus from her undeterred lawlessness. I don’t have to tell you she’s going to hurt someone with her criminal behavior. She’s already done that.”

Contact Livingston Daily justice reporter Lisa Roose-Church at 517-552-2846 or lrchurch@gannett.com. Follow her on Twitter @LisaRooseChurch.

(Mike Frisch)

November 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Fine[d] Intemperance In British Columbia

The Law Society of British Columbia fined an intemperate attorney

The Respondent faces a citation that alleges that the Respondent was involved in a verbal altercation with opposing counsel in Provincial Court.  The citation alleges that the Respondent breached his duty to maintain a courteous and respectful attitude towards the court, as described in Rules 2.1-2(a) and 5.1-1 of the Code of Professional Conduct, and failed to conduct himself with courtesy and civility towards other counsel, as described in Rules 2.1-4 and 5.1-5 of the Code of Professional Conduct.

The Law Society and the Respondent submitted an Agreed Statement of Facts, and we had the benefit of video and audio recordings, as well as a transcript of proceedings of the alleged altercation. 

The facts in respect of the events that led to the citation are not in dispute.  The Respondent and opposing counsel attended a Family Case Conference with their clients in person, and a judge of the court attended via video and audio connection.  A few minutes into the proceedings, the Respondent and opposing counsel began arguing and talking over one another, and opposing counsel asked the Respondent, “Could you shut up?”  The Respondent reacted by getting out of his chair and approaching opposing counsel, standing over him, saying, “You shut up yourself.  You shut up.  Don’t tell me to do anything back and forth like this.  I won’t put up with this.  Who the hell do you think you are anyway?”  The presiding judge was eventually able to shout over the exchange between the Respondent and opposing counsel, shouting “Counsel.  Counsel.  What are you doing?  What are you doing?”, ending that exchange.  The heated exchange between the Respondent and opposing counsel took only a few seconds.

Later that same day, the Respondent forwarded a letter to court staff apologizing for his part in the “disgraceful display” in proceedings earlier that day, and asking that the letter be passed through appropriate channels to the presiding judge.

That same day, the Respondent also forwarded a letter to opposing counsel, suggesting that they should not be behaving as they did in court earlier, and should agree that what took place will not happen again, but also saying “if you continue to insult me and my clients, I am going to stand up for them.” 

The Respondent, in the hearing before us, said he has thought about his role as senior counsel, and his responsibility to set a good example for more junior counsel.  The Respondent also said that he has taken active steps to improve his relationship with opposing counsel and their relationship is now better than it has ever been in the past.

The Respondent admitted service of the citation.  He admitted that his conduct alleged in the citation constitutes professional misconduct.

Finding

The conduct alleged and admitted to by the Respondent is a marked departure from what is expected by the Law Society of lawyers.  The conduct alleged and admitted to falls short of what would reasonably be expected by a member of the public, or by a court staff member or judicial officer.  We find the Respondent’s conduct constitutes professional misconduct.

On sanction

 The Respondent has been practising law in British Columbia since 1980.  He has a Professional Conduct Record that includes four conduct reviews, one proven citation, and a referral to the Practice Standards Committee.  In the proceedings involving the citation, the Respondent was found to have committed professional misconduct by making inappropriate comments about another lawyer and members of the judiciary in a series of letters.  In those proceedings, the Respondent was fined $3,000.  Intemperate and inflammatory language, and an unnecessarily combative and aggressive approach to conflict, form a recurring part of the subject matter of the Respondent’s Professional Conduct Record. 

Counsel for the Law Society submits that the Respondent be fined $10,000.  The Respondent submits that the local attention this matter has received and will receive in his community, as well as the cost of his having to travel to deal with this matter, are significant to him, and an additional fine will be of no public benefit.  The Respondent submits that he should receive a reprimand as the disciplinary action for his conduct in this matter...

In consideration of the factors listed above, the Respondent’s misconduct, although significant, was a brief exchange with opposing counsel.  The Respondent recognized the inappropriateness of his misconduct, apologized to the court quickly, and took responsibility for his misconduct.  He has taken active steps to improve his relationship with opposing counsel. 

The Respondent has, in previous discipline proceedings, been fined $3,000 for making inappropriate remarks about other counsel and members of the judiciary in a series of letters.  The disciplinary sanction must be significant and must take into account the Respondent’s Professional Conduct Record, but the sanction must also be proportionate.  No physical contact between the Respondent and opposing counsel occurred, and counsel stopped their exchange when the presiding judge raised his voice over an audio connection.  The court proceedings in which the exchange occurred were a Family Case Conference, which was not open to the public. 

In the circumstances, we believe a fine is the most appropriate disciplinary action we can impose.  We consider $5,000 to be an appropriate amount for the fine, in all the circumstances.  We order that the Respondent pay the fine by December 31, 2017.

(Mike Frisch)

November 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Law Of Absurd Results

The Ohio Supreme Court has held that a murderer father has rights to the medical records relating to the child he killed.

Dan Trevas summarizes the holding

The Cuyahoga County Medical Examiner’s Office must turn over the autopsy records of an infant to her father, who is serving 15 years to life for the murder of the child, the Ohio Supreme Court ruled today.

A divided Supreme Court determined that a provision of Ohio public records law that requires  incarcerated persons, who request public records, to comply with certain requirements before being granted access to those records does not apply to the request of a deceased’s person’s next of kin to the coroner for records of the deceased person.

Justice Sharon L. Kennedy, the author of the Court’s lead opinion, wrote that the plain language of the statute regarding coroner’s records is clear that the next of kin is entitled to the records. She concluded that if the legislature had intended to prevent the father from getting the records, then the General Assembly has the right to take note of today’s decision and amend the law.

Justice Kennedy’s decision granting Michael Clay the records was joined by Justices Terrence O’Donnell and R. Patrick DeWine.

In a concurring opinion, Justice Patrick F. Fischer wrote that while there is some overlap between the two laws, the medical examiner is clearly required to provide the records to Clay. He noted the results seem “out of step with the General Assembly’s apparent policy decision to limit incarcerated persons’ access to public records.” He, too, invited state lawmakers to consider amending the records laws to address the conflict. Justice O’Donnell joined the opinion to the extent that it encourages the General Assembly to address the issue.

In a dissenting opinion, Chief Justice Maureen O’Connor wrote that the lead opinion’s interpretation leads to an absurd result. The intent of the two statutes, when read together, would prevent the father from getting the records because he is imprisoned for the infant’s murder, she concluded. Her dissent was joined by Justices Judith L. French and William M. O’Neill.

The dissent analyses the law of absurd results

The lead opinion makes a conclusory statement, with no analysis, that “the plain language of R.C. 313.10 does not lead to an absurd result in this case.” Lead opinion at ¶ 27. But the lead opinion’s application of the law is contrary to the obvious intention of R.C. 313.10(C)(1), if not its literal terms. Indeed, before the legislature passed the bill that enacted R.C. 313.10(C)(1), House and Senate committees heard testimony about the importance of protecting the privacy of the families of deceased persons who do not wish for the autopsy photos of their loved ones to be made public. By murdering his daughter, Clay established that he has no regard for any of her interests or the interests of her other family members, least of all their privacy. He should not receive the benefit of a law designed to protect vulnerable families by keeping sensitive information, including suicide notes and autopsy photos, out of the public record.

The United States Supreme Court has, in fact, recognized that murderers are in a position to exploit these types of records. In a case involving a Freedom of Information Act (“FOIA”) request for death-scene photographs of Vince Foster Jr., a deputy counsel to President Clinton who committed suicide, the court recognized the surviving family members’ right to privacy with respect to the images...

The lead opinion’s decision will not only subvert the General Assembly’s intent here, it will set a calamitous precedent. An inmate imprisoned for murdering a spouse, parent, or sibling is still a convicted murderer, yet according to the lead opinion, the incarcerated murderer may be entitled to the victim’s autopsy records and photos. Ignoring R.C. 149.43(B)(8)’s prohibition on an inmate’s access to public records related to a criminal investigation or prosecution—merely because the inmate murdered a family member—does nothing to advance the goals of the General Assembly, including protecting the privacy and dignity of the victim and the victim’s family.

The lead opinion here, with its strict adherence to a literal interpretation dogma, implies that we would usurp the legislature’s role if we applied the plain language of a statute rationally and in concert with the General Assembly’s intent. Using the lead opinion’s guidance, a statutorily identified relative is entitled to the autopsy records, period. And no other statute need be consulted on the matter, even if the relative is a murderer guilty of matricide, patricide, fratricide, or filicide. I disagree. This case calls for us to apply two relevant laws to one murderer, which does not require us to add words to a statute or to ignore statutory provisions altogether. This case began with a murderer’s request for his victim’s autopsy records.

(Mike Frisch)

November 30, 2017 | Permalink | Comments (0)

Don't Talk To The Flight Attendants (If You Are Suing The Airline)

Ethics Profs attention here. This is a good teaching tool.

The United States District Court for the Eastern District of Pennsylvania concluded in a motion to disqualify counsel that an attorney admitted pro hac vice violated Rule 4.2 by talking to two flight attendants on a US Airways flight.

Because the underlying case had settled, the only issue before the court was possible sanctions.

The attorney represented a plaintiff suing the airline for injuries sustained as a result of turbulence in a flight from Cancun to Philadelphia

Plaintiff filed an Amended Complaint on October 25, 2016, for injuries sustained during US Airways Flight 815 travelling from Cancun, Mexico, to Philadelphia, Pennsylvania, when the flight encountered unexpected turbulence, asserting that US Airways is liable under the Montreal Convention.

During the case

On July 28, 2017, US Airways filed the pending Motion for Sanctions, alleging that plaintiff’s attorney, Alisa Brodkowitz, engaged in ex parte communications with two US Airways flight attendants in violation of Pennsylvania Rule of Professional Conduct 4.2, which prohibits a lawyer from communicating “about the subject matter of the representation with a person the lawyer knows to be represented by another lawyer in the matter” without prior authorization.

The court analyses Rule 4.2 in the employee context

According to Brodkowitz, because the complaint does not allege that the flight attendants were negligent or that “the acts or omissions of the flight attendants . . . might otherwise be the basis for imposing liability on US Airways,” the flight attendants were not represented parties. Pl.’s Memo in Opp. to Def.’s Mot. to Sanction Pl.’s Counsel at 13. Instead, she argues, the flight attendants were contacted as witnesses, as opposed to negligent actors. Id. In a discovery request dated March 22, 2017, however, plaintiff requested information related to US Airways’ employment and personnel files on the grounds that “[t]he flight and cabin’s [sic] crew’s training is at issue, with regard to transport and reporting of the injury causing event following government and or US Airways’ own policies and procedures.” Mot. for Sanctions, Ex. G...

The Court notes, however, that flight attendants are generally responsible for the safety of passengers in their custody. Statements made by the flight attendants regarding the flight and their acts and omissions during the flight that caused plaintiff’s injuries could certainly subject US Airways to liability. Viewing Brodkowitz’s communications in light of the circumstances of the case, the Court concludes that the flight attendants were represented parties because they are persons “whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” Pa R.P.C. 4.2, cmt. 7. Thus, Brodkowitz’s communications with the flight attendants violated Rule 4.2.

The court rejected a Rule 4.1 allegation for false statements to the flight attendants as unproven on the submissions .

The court denied sanctions

US Airways failed to provide any evidence of prejudice resulting from Brodkowitz’s communications with the two flight attendants. US Airways has stipulated to liability; evidence presented will thus be limited to damages. See Stipulation Regarding Defs.’ Election Not to Contest Liability. Pursuant to the stipulation, “[n]o evidence of . . . [t]he acts or omissions of the pilots or flight attendants of Flight 815 or any other employee or agent of US Airways, Inc.” shall be introduced or mentioned at trial. Id. at 2. Thus plaintiff is already precluded from using information related to the acts or omissions of the flight attendants—the very basis upon which the Court holds that the flight attendants are represented parties under Rule 4.2—against US Airways. US Airways has therefore failed to demonstrate that sanctions are necessary to avoid prejudice...

Under the circumstances, revocation of Brodkowitz’s pro hac vice admission is not an appropriate sanction. However, the Court concludes that admonishment for violating Rule 4.2 is warranted. This Memorandum constitutes such admonishment.

(Mike Frisch)

November 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Consent Stayed Suspension For Immigration Case Incompetence

The District of Columbia Court of Appeals accepted a consent disposition for the following misconduct

In brief, after the client had pleaded guilty and been convicted of burglary in the Circuit Court of Fairfax County, Virginia, the United States Department of Homeland Security instituted proceedings for his removal on the premise that he had been convicted of an “aggravated felony” as defined by the Immigration and Nationality Act, see 8 U.S.C. § 1101 (a)(43)(G). In attempting to forestall his client’s removal, respondent made several missteps that jeopardized his client’s rights. First, respondent petitioned the Virginia Circuit Court to vacate his client’s conviction and guilty plea based on the mistaken claim that the court had failed to advise his client about the potential immigration consequences of the conviction. Thereafter, without consulting his client, respondent dismissed the petition, conceded removability before the Immigration Court, and did not seek to challenge or delay his client’s deportation on any other ground. Ultimately, the client retained new counsel who successfully argued against removal on the ground that the burglary offense for which he had been convicted was not an “aggravated felony” within the meaning of the Immigration and Nationality Act.

The agreement

Disciplinary Counsel and respondent negotiated the imposition of discipline in the form of a thirty-day suspension, stayed, and one year of probation during which respondent must (1) contact the District of Columbia Bar’s Practice Management Advisory Service (PMAS) within thirty days of the commencement of the probationary period and schedule and obtain an assessment; (2) implement any PMAS recommendations; (3) provide PMAS with a signed release waiving confidentiality so Disciplinary Counsel can verify respondent  obtained an assessment; (4) join the American Immigration Lawyers’ Association (AILA), or an equivalent organization; (5) enroll in and attend ten CLE hours pertaining to immigration law; (6) submit proof of both his enrollment in AILA, or an equivalent organization, and his completion of ten CLE hours pertaining to immigration law; and (7) not be found to have engaged in any ethical misconduct.

The court 

In accordance with our procedures in uncontested disciplinary cases, we agree this case is appropriate for negotiated discipline.

Bravo as always but note that the single complaint matter still took a full three years to resolve. (Mike Frisch)

November 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 29, 2017

Divorce Does Not Mitigate License Revocation

The Louisiana Supreme Court revoked an attorney's license

The [hearing] committee determined that respondent violated duties owed to his clients, the public, the legal system, and the profession. His conduct was intentional. He settled his clients’ legal matter without their consent and forged their names on the settlement check and release documents. He lied to and misled his clients regarding the amount of the settlement. Finally, although he settled the matter in 2008 and dismissed their lawsuit without permission, respondent did not pay the settlement proceeds to his clients until 2013. This conduct caused actual and serious harm to the Ortegos, who lost their home and business and went bankrupt. The applicable baseline sanction in this matter is disbarment.

In aggravation, the committee found the following factors: a prior disciplinary record,5 a dishonest or selfish motive, a pattern of misconduct, and multiple offenses. In mitigation, the committee recognized that respondent was going through a divorce at the time of the misconduct.

 Considering the facts of this case, in particular the financial harm that befell the Ortegos in the five years they did not have access to their settlement funds, the hearing committee recommended respondent be disbarred.

Respondent filed an objection to the severity of the sanction recommended by the hearing committee. He urged that a three-year sanction is appropriate under the circumstances.

(Mike Frisch) 

November 29, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Lawyer Reprimanded For Limited Scope Debt Relief Representation

The Wisconsin Supreme Court reprimanded a former Green Bay attorney now residing in Las Vegas

The facts giving rise to this proceeding stem from Attorney Luther's involvement with Morgan Drexen, Inc. (MDI), a now defunct debt settlement company.

In June 2009, MDI and Attorney Luther agreed that she would serve as "engagement counsel" for MDI in Wisconsin. Attorney Luther was the attorney providing services to Wisconsin residents in MDI's program.

MM retained her

Before M.M. enrolled in MDI's plan, the company read her disclosures that Attorney Luther had approved. These disclosures did not adequately inform M.M. that it was unlikely the proposed plan could pay her debts. M.M. completed the MDI forms online, including two fee agreements with Attorney Luther. Attorney Luther's agreements with M.M. also charged her $50 per month for various services such as review of a document, a simple will, responding to email, and file maintenance. M.M. was charged for these services even if she did not use them. Attorney Luther had no contact with M.M. prior to M.M. signing the fee agreements. Attorney Luther was aware of MDI's practices, and that her client M.M. was using MDI's system. Attorney Luther did not give M.M. information reasonably necessary for her to understand the material advantages and disadvantages of MDI's plan or discuss with M.M. options and alternatives to it. MDI and Attorney Luther's letters to M.M. were form letters that provided little substantive information.

A creditor sued MM

Attorney Luther's limited scope representation agreement charged M.M. $550 for her assistance with M.M.'s selfrepresentation in the GE Capital case. It also listed various charges M.M. would incur, such as $65 for a "Phone Consult with Counsel." M.M. signed the agreement, and on April 23, 2013, spoke with Attorney Luther on the phone. Attorney Luther told M.M. that she would not appear in court for a May 13, 2013 hearing, or otherwise represent her in the matter. Attorney Luther advised M.M. to request a 90-day extension by which time she would have enough funds in her MDI account to pay Attorney Luther's fee and file for bankruptcy. Attorney Luther charged M.M. $35 for this conversation as a "rush job."

MM retained new counsel and the debt was discharged in bankruptcy.

There was also misconduct in a second MDI matter.

The court described the role of the referee where, as here, the matter comes on stipulation 

In determining an appropriate sanction recommendation referees should consider whether the lawyer has previously been disciplined and whether any aggravating and or mitigating factors are present. See ABA Standards for Imposing Lawyer Sanctions. Typically, the referee will consider factually similar cases. Stipulated discipline is entitled to no special deference.

To be sure, the parties' opinions on disciplinary sanctions are informative but they are just that – opinions, not authorities to which the referee must defer. We, in turn, "remain the ultimate arbiter of the appropriate level of discipline, owing no deference on this subject to either the parties or the referee." See Ruppelt, 377 Wis. 2d 441, ¶34.

Here, the referee has provided case law in the supplemental report that supports the recommended discipline.

Sanction

On balance, we will adopt the referee's findings of fact and conclusions of law that, based on the parties' stipulation, Attorney Luther violated the supreme court rules as alleged in the ten counts of the amended complaint. We further agree with the referee that a public reprimand of Attorney Luther's license to practice law in Wisconsin is sufficient.

A dissent of Justice Abrahamson

A public reprimand is an insufficient sanction for the serious misconduct to which Attorney Luther stipulated.

(Mike Frisch)

November 29, 2017 in Bar Discipline & Process | Permalink | Comments (0)