Sunday, September 18, 2016

Ten Years A Blog

We started this blog ten years ago today. 

It actually took me a few weeks to figure out advanced technological functions such as linking to documents and cut-and-paste. 

I am using some new teaching materials this semester including the Oklahoma decision linked here that strikes fear in the hearts of tech-adverse oldtimer attorneys like me.

Attorney Oliver was admitted in 1967 and had practiced since then without discipline. He ran afoul of - and was suspended from - a federal bankruptcy court.

The State Bar sought reciprocal discipline

During the hearing before the trial tribunal Mr. Oliver acknowledged his lack of expertise in computer skills and his frustration in trying to meet the federal court's expectations in filing electronic pleadings. Mr. Oliver is suspended from the bankruptcy court. This, in itself, does not disqualify him from practicing law in the courts of Oklahoma. There is no such argument in the briefs. The trial panel made no such finding...

The record supports by clear and convincing evidence that Mr. Oliver failed to report his suspensions to the general counsel of the Bar Association, and that he did not timely notify his bankruptcy clients of those suspensions. We encourage Mr. Oliver to continue to improve his computer skills, or better, to hire an adept administrative assistant to do his pleadings. Public censure is appropriate.

There was a dissent

I respectfully dissent to the majority's decision to publicly censure the Respondent, James Edward Oliver. The decision merely to publicly censure the Respondent results from a mischaracterization of his problematic conduct while practicing before the United States Bankruptcy Court for the Western District of Oklahoma (Bankruptcy Court). Respondent's actions resulted, after several temporary suspensions, in his permanent suspension by the Bankruptcy Court in June of 2015.

The majority determines Respondent's problem to be one of computer illiteracy and declares Respondent's inability to adapt to electronic forms and filing to be the reason for the Bankruptcy Court's progressive disciplinary orders, noting those issues have little bearing on his ability to practice law in the State of Oklahoma generally. A detailed examination of the record in this cause reveals that Respondent's issues go far beyond technological illiteracy.

The series of disciplinary orders concerning Respondent reveal an attorney not only unable to meet the minimum requirements of modern bankruptcy practice but also one unwilling to make any substantial effort to do so. Respondent effectively ignored the local rules and guidelines, made no effort to correct his work despite being given personalized help by the Bankruptcy Court's staff on more than one occasion, and insulted court staff when the Bankruptcy Court refused to bend the rules for him.

After giving Respondent multiple chances, the Bankruptcy Court ordered Respondent to submit draft templates of nine frequently filed documents, and specifically stated that "in doing so, [Respondent] may not seek or obtain assistance from this Court's law clerk, the staff of the Court Clerk's office or any other person." In a separate portion of the same order, the Bankruptcy Court required Respondent to file a document certified under oath by a bankruptcy attorney conforming that the attorney would assist Respondent in his practice.

Respondent violated the terms of this order. Either he did so deliberately or because he did not read it carefully. Respondent hired another bankruptcy attorney to review and make corrections to the draft templates he was ordered to complete on his own. He did not disclose to this attorney his disciplinary issues with the Bankruptcy Court or the underlying reason he needed the draft forms. The attorney hired by Respondent only learned all the details when he became concerned and contacted the Bankruptcy Court himself.

Respondent: 1) in both form and substance demonstrated incompetency to practice law before the Bankruptcy Court of the Western District of Oklahoma; 2) failed to make honest attempts to improve despite personalized help from court staff, directing insults instead; 3) violated a direct order of the Bankruptcy Court; 4) displayed a profound lack of candor; 5) failed to notify this Court of his suspensions; and 6) failed to timely notify his clients of his suspensions, resulting in the administrative closure of several of their cases.

To quote the Bankruptcy Court's own Order of Permanent Suspension: "[Respondent] has blamed his problems on software deficiencies and computer glitches, even when poor reading comprehension, impatience and/or lack of attention to detail were the real culprits." As part of the disciplinary process, it is our duty to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, of the courts, and of the legal profession. State ex rel. Okla. Bar Ass'n v. Friesen, 2015 OK 34, ¶18, 350 P.3d 1269; State ex rel. Okla. Bar Ass'n v. Layton, 2014 OK 21, ¶34, 324 P.3d 1244. I am unconvinced Respondent will represent future clients with any more competence than he displayed in his bankruptcy practice, and find his lack of candor and blatant disregard for the Bankruptcy Court's orders disturbing. I would suspend Respondent for two years and one day.

 We are grateful for the reader response to our efforts. (Mike Frisch)

September 18, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Supervisory Obligations And Impaired Attorneys

A draft opinion of the Virginia State Bar Standing Committee on Legal Ethics deals with an important question of professional responsibility - supervisory duties of attorneys dealing with an impaired colleague.

This proposed opinion addresses the ethical duties of partners and supervisory lawyers in a law firm to take remedial measures when they reasonably believe another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public. The proposed opinion specifically focuses on the obligations of partners and supervisory lawyers to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public.

In this proposed opinion, the Committee concludes that Rule of Professional Conduct 5.1(b) requires a partner or supervising lawyer to take reasonable steps to prevent an impaired lawyer under his direction and control from violating the Rules of Professional Conduct. Drawing on the analysis of ABA Formal Opinion 03-429, the proposed opinion concludes that supervisory lawyers must protect the interests of the firm’s clients by establishing procedures that require the impaired lawyer to get treatment as a condition of continued employment and/or limit the impaired lawyer’s work to tasks he is capable of doing. The supervisory lawyers have a duty to take action in this situation even if no misconduct has occurred that would trigger the duty to report the impaired lawyer under Rule 8.3(a) because the duty of supervisory lawyers under Rule 5.1 is prospective and applies even before any misconduct has occurred. The proposed opinion applies this analysis to two different hypotheticals to demonstrate the various actions that may need to be taken depending on the nature and circumstances of the affected lawyer’s impairment.

(Mike Frisch)

September 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 17, 2016

The Evolving Views Of Doctor Jeckel

The Illinois Review Board saw fit to chide the Administrator in the course of affirming findings of neglect in two bankruptcy matters.

we find that, while the Administrator improperly failed to advise Respondent of a significant change in the opinion of the Administrator's expert witness, the Hearing Panel Chair properly denied Respondent's motion to bar that testimony because Respondent did not sufficiently show that he was substantially prejudiced by the admission of the testimony. Furthermore, even if the Hearing Panel Chair had erred in refusing to strike that testimony, the error was harmless and caused no prejudice to Respondent because, apart from the expert's testimony, the manifest weight of the undisputed evidence supported the Hearing Board's sanction recommendation. Therefore, we conclude that no remand is necessary. We concur with the Hearing Board's sanction recommendation.

The issue related to mitigation evidence that had been addressed in an earlier discipline case.

In 2009, the Hearing Board found Respondent had engaged in misconduct by neglecting appeals in two matters where he had been appointed to help persons whose parental rights had been terminated by the circuit court. His conduct resulted in the appeals being dismissed and the clients losing their parental rights. Respondent admitted to his misconduct, and discipline was imposed by consent. The consent petition stated that recurrent depression and anxiety contributed to his misconduct, and that he had begun taking medication and seeing a psychiatrist prior to consenting to discipline. The Illinois Supreme Court allowed the petition to impose discipline on consent and suspended Respondent for two years and until further order of court, with the suspension stayed in its entirety by a two-year term of probation with conditions relating to improving the management of Respondent's law firm and monitoring his continued psychiatric care. In re Dees, 08 SH 33, petition to impose discipline on consent allowed, M.R. 21347 (Sept. 22, 2009). Respondent successfully completed his two-year probation. However, a few years after the probation period ended, he engaged in the current misconduct.

The Administrator had a forensic expert - Dr. Jeckel - evaluate the attorney. He opined in a written report

I believe Mr. Dees was correct when he confided to me that the weight of his debt has worsened his anxiety, depression and obsessiveness. He probably does need to file for bankruptcy, if he can bring himself to do it, to lift this burden. He is currently looking for a salaried position, perhaps in state government that may or may not require a law degree; that also appears to be a good idea. I would like to see he and his wife pursue marital therapy. He needs his wife very much and separation and/or divorce would likely worsen his mental state. A better functioning marriage might also reduce his depression, anxiety and obsessiveness. He becomes so isolated - and he is much more isolated now than at the time of the previous ARDC investigation. He becomes so isolated - and he is much more isolated now than at the time of the previous ARDC investigation. I would not call him totally incapacitated or unfit to practice at this juncture, but he needs to make some changes relatively soon. Perhaps a 'psychiatric probation' period might be in order here so he can make the necessary changes and find the right equilibrium. If he continues to withdraw, and/or his marriage is endangered, or if he cannot function in a new salaried position, then I likely would find that he was not capable of practicing law. He is at risk to regress further into self-destructive isolation unless he makes some changes.

The attorney testified at the hearing that he had taken these views to heart but Dr. Jeckel testified thus

Well, I think his fitness to practice law, given everything that you've told me, is that he -- he would be unable to function as an attorney at this time.

The Hearing Board accepted the doctor's testimony and recommended a suspension of six-months and until further court order. 

The Review Board

The Administrator acknowledges that Rule 253 requires a party to "seasonably supplement or amend any prior answer or response whenever new or additional information becomes known to that party," but contends that no violation of Rule 253 occurred in this case. He argues that Dr. Jeckel's opinion in his February 2015 report was guarded, at best, and that he was clear in his report that his opinion would change if Respondent did not make progress in addressing his debt, marriage, and job circumstances. Thus, he argues, Respondent and his counsel were on notice that Dr. Jeckel's opinion would likely change if Respondent failed to correct the external problems in his life that tended to worsen his paralysis. After Respondent testified about his lack of progress on the issues that Dr. Jeckel had identified, it was obvious that the Administrator's counsel would inform Dr. Jeckel about Respondent's current circumstances and ask if his opinion on Respondent's fitness to practice law remained the same.

The Review Board found no prejudice and agreed with the sanction recommendation. (Mike Frisch)

September 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 16, 2016

A New Sheriff In Town

The South Carolina Supreme Court publicly reprimanded a Magistrate

On May 18, 2011, respondent was appointed a magistrate. At the time, respondent's husband had retired from the South Carolina Law Enforcement Division and he did not hold any political offices. Respondent's husband later ran for and was elected Sheriff of Chester County.

South Carolina Court Administration forwarded a spreadsheet to ODC which indicated that, between July 1, 2013, and sometime in April of 2015, respondent's "judge code" was entered as having handled numerous traffic citations, arrest warrants, and bond hearings in Chester County Sheriff's Department cases. A total of 101 cases were identified with respondent's "judge code." In response to this information, Court Administration went to the Chester County Magistrate's Office and obtained a sampling of cases which corroborated respondent's involvement in cases involving the Chester County Sheriff's Department.

In mitigation, respondent states she attempted to follow the remittal of disqualification process on many of the matters, but now recognizes she did so incorrectly after having reviewed Section 3F of Canon 3 of the Code of Judicial Conduct, Rule 501, SCACR, with ODC. Respondent asserts she thought that she was complying with the remittal requirements by announcing her conflict before court and proceeding when no objections were voiced. She now recognizes that remittal requires that the disclosure be made on the record to each defendant, that each defendant be given time to consider the matter with counsel, and that the defendant's decision on the matter be placed on the record.

Respondent also incorrectly believed that when defendants requested she take their plea and/or knew her connection with the Sheriff's Department that the conflict was waived and she could take the plea. Respondent now recognizes that in these situations she was required to comply with the requirements of Section 3F of Canon 3. Respondent submits that she will comply with Section 3F at all times in the future.

In one instance, respondent mistakenly conducted a jury trial thinking that she could preside over the trial since the jury would decide the matter. Respondent now recognizes she must comply with Section 3F of Canon 3 in all jury trials.

(Mike Frisch)

In mitigation, respondent offers that no parties complained about the bonds that she set or the disposition of matters in question. ODC confirms it has received no complaints from the defendants in question.

September 16, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Pattern Of Misconduct May Lead To License Revocation

A six-month suspension was imposed by the Iowa Supreme Court of an attorney who had engaged in misconduct in the wake of an earlier 60-day suspension.

The attorney had run up a large bill in a mechanic's lien matter, failed to comply with an arbitration ruling against her and falsely claimed to have paid the refund.

By the time the matter ended, Barnhill had billed Jayne over $60,000 for her work. Jayne paid the bill but believed it was unreasonable given the breadth of his legal problem. He retained new counsel and filed a complaint with the Polk County Bar Association Attorney Fee Arbitration Committee. In April 2014, the committee determined the fee Barnhill charged was "unreasonable given the amount of work performed . . . in relation to the scope of the problem." It ordered Barnhill to refund Jayne twenty-five percent of the fees collected...

Barnhill missed her intended payment deadline and did not repay Jayne by the end of October. Jayne subsequently filed a complaint with the Board and retained attorney Kevin Abbott to collect the amount owed. Abbott sent Barnhill a letter dated November 24, 2014, in which he requested payment from Barnhill within ten days. Two weeks later, Barnhill responded by email that Abbott "should have [a] check for full  payment." Barnhill further requested that upon receiving the check (check #2), Jayne execute "a full release and satisfaction," including a "release" of Jayne’s complaint to the Board. Barnhill indicated she was "prepared to take all actions available," including "claims against Don Jayne resulting from his continuing conduct," unless she received "a global release within 48 hours." She also sent a fax to Abbott’s office warning Abbott that she did not consent to him disbursing any proceeds of check #2 to Jayne until she received an acceptable release.

The pattern of misconduct concerned the court

After considering these cases and the circumstances presented here, we conclude a six-month suspension is appropriate. Barnhill’s misconduct is just as serious as the conduct we condemned in McGinness. And while we imposed a three-month suspension for a one-time occurrence in Hohnbaum, Barnhill has established a pattern of unethical conduct and a disciplinary history justifying a lengthier suspension in this case. If that pattern continues, the sanctions will escalate further in any future disciplinary proceedings—including possible revocation.

The McGuinness case involved an NCAA champion wrestler who forged certificates of service to avoid the consequences of discovery lapses. (Mike Frisch)

September 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 15, 2016

52 Pickup: Voyeur Rabbi Properly Sentenced

The District of Columbia Court of Appeals affirmed consecutive sentences

Appellant Bernard Freundel pleaded guilty to fifty-two counts of voyeurism. The trial court sentenced Mr. Freundel to consecutive sentences of forty-five days of incarceration on each count and also imposed a fine on each count. Mr. Freundel argues that the consecutive sentences violate the Double Jeopardy Clause. We affirm.

The crimes

In pleading guilty, Mr. Freundel acknowledged the truth of a proffer that included the following facts. Mr. Freundel was a rabbi in Washington, D.C. His congregation was affiliated with a nearby mikvah, which is a ritual bath primarily used by Orthodox Jewish women for spiritual purification. There were two showering and changing rooms connected to the room housing the mikvah. On numerous occasions between 2009 and 2014, Mr. Freundel placed video-recording devices inside one of those rooms. Mr. Freundel installed and maintained the devices "for the sole purpose of secretly and surreptitiously recording women who were . . . totally and partially undressed before and/or after showering" in the room...

At sentencing, defense counsel argued that it would be illegal for the trial court to impose consecutive sentences on the fifty-two counts, because Mr. Freundel engaged in a single course of conduct. The trial court disagreed. Mr. Freundel filed a motion to correct illegal sentences pursuant to Super. Ct. Crim. R. 35 (a), again arguing that the trial court could not lawfully impose consecutive sentences. The trial court denied the motion, and Mr. Freundel seeks review of that ruling.

The court here held that there were 52 victims and 52 separate crimes.

By his own acknowledgment, Mr. Freundel used multiple recording devices over a period of years to record multiple victims, each of whom was recorded undressing separately. Because each victim was recorded undressing separately, we need not decide whether multiple punishments would be permissible based on a single recording depicting more than one victim at the same time. Nor need we address what other factual circumstances might reflect a "fork in the road" or "new impulse" permitting multiple punishments...

section 22-3531 (c) unambiguously permits separate punishment for each of Mr. Freundel’s fifty-two victims in this case. 

 (Mike Frisch)

September 15, 2016 | Permalink | Comments (0)

Negotiated Sanction Approved In D.C.

A two-year consent suspension was approved by the District of Columbia Court of Appeals.

Respondent acknowledged that she (1) negligently misappropriated funds belonging to her firm’s clients; (2) failed to hold client funds and third-party funds separate from the firm’s funds; (3) failed to maintain adequate records of client funds; (4) failed to make reasonable efforts to ensure her firm had in effect measures giving reasonable assurance that all lawyers in the firm conformed to the District of Columbia Rules of Professional Conduct ("the Rules"); (5) was responsible for another lawyer’s violation of the Rules; (6) failed to make reasonable efforts to ensure her firm had in effect measures giving reasonable assurance that the conduct of all nonlawyers in the firm was compatible with the professional obligations of a lawyer; and (7) supervised a nonlawyer but failed to make reasonable efforts to ensure that the person’s conduct was compatible with the professional obligations of a lawyer, thereby violating Rules 1.15 (a), 5.1 (a) & (c), and 5.3 (a) & (b) of the Rules, and D.C. Bar Rule XI, § 19 (f).

 The court (Associate Judges Beckwith and McLeese and Senior Judge Farrell)

We accept the Committee’s recommendation because the Committee properly applied D.C. Bar R. XI, § 12.1 (c), and we find no error in the Committee’s determination. Based upon the record before the court, the negotiated discipline of a two-year suspension from the practice of law, with reinstatement conditioned upon demonstrating fitness to practice law, is appropriate considering the existence of both aggravating and mitigating factors and the discipline imposed by this court in other cases of misappropriation.

The attorney also must prove present fitness to secure reinstatement.

Any day that the court approves a negotiated discipline is a good day.

But note that this case which was handled pursuant to expedited procedures still took four years to get resolved. (Mike Frisch)

September 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 14, 2016

Attorney Charged With Discrimination; Allegedly Falsely Claimed Black Male Drove Her Car

The Ohio Supreme Court web page has posted the charges and hearing schedule of a number of bar disciplinary matters.

One case filed by the Lorain County Bar Association alleges that an attorney who was admitted in December 2014 drove while under the influence and made a false police report.

The charges allege that the attorney caused an accident and began to walk away from the scene with a friend who had been a passenger. When police arrived, the two were noticed and questioned. They confirmed that they had been in the vehicle.

The attorney allegedly falsely claimed that an "unidentified black male" had offered to drive them from a bar called the Train Station and that he was the responsible driver.

The police checked video at the Train Station, saw evidence that the attorney was both intoxicated and the driver and concluded that the black male was a fictional character.

Criminal charges ensued.

Notably, the attorney is charged with a violation of Rule 8.4(g) in that her "false and misleading representations to [the police] in an official law investigation that the suspect was a black male who caused the accident in which she was the actual driver constitutes discrimination prohibited by law because of race by a lawyer in her professional capacity and is a violation of OPRC 8.4(g)."

Given the recent ABA rule amendment, that charge will be interesting to monitor.

The passenger also is an attorney and faces related charges. He is alleged to have given the police the story

Respondent advised that the unknown black male, whom he described as wearing a red ball cap, dark colored shirt and camouflage shorts, ran from the scene in a southbound direction through the parking lot following the accident.

The passenger has a record of prior discipline.

on April 21, 2009 Respondent was suspended from the practice of law for one year by the Supreme Court of Ohio for forging a judge's signature on a previously time-stamped judgment entry...

He was reinstated in May 2010. (Mike Frisch)

September 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 13, 2016

On The Qui Vive In Ohio

I have now had the opportunity to review the decision of the Ohio Supreme Court described by Dan Trevas in the below post.

I agree with the majority on policy grounds. If the Ohio rules of discipline accord quasi-double jeopardy status to grievance panel dismissals, the rules defeat the purpose of bar discipline - protection of the public from unethical lawyers.

The 4-3 majority holds that a determination by a panel to decline to authorize charges does not tie the hands of Disciplinary Counsel

Regardless of whether the grievances against Kramer alleged the same misconduct, nothing in the rules currently limits the authority of disciplinary counsel to investigate a grievance that alleges attorney misconduct. To the contrary, Gov.Bar R. V(9)(C) specifically requires disciplinary counsel to review any matter that comes before it and authorizes it to investigate any matter...

the dissent’s distortion of our decision is based on a mischaracterization of the facts and the rules. Quite simply, nothing in the rules precludes disciplinary counsel’s review and investigation of the second grievance that led to the board’s disciplinary recommendation in this case. Kramer and the dissenting justices essentially request that the Rules for the Government of the Bar be revised. To do so, the court must follow its rulemaking procedures pursuant to its constitutional authority to “make rules governing the admission to the practice of law and discipline of persons so admitted.” Ohio Constitution, Article IV, Section 5(B). And any change would not affect our decision today, which is decided based on the current status of the rules.

In response to Justice Kennedy's dissent

 Lawyers on the “qui vive” pursuant to the dissent’s cry are no doubt aware that judicial decision-making based on the current status of the rules is required for the uniformity, consistency, and predictability that are hallmarks of an independent judiciary. The dissent attempts to frame its indefensible stand as an interpretation of the rules, but it reads into the rules a limitation that does not exist. The dissent’s approach circumvents the stability inherent in the consistent application of the Rules of Professional Conduct on a case-by-case basis. This does our profession no good.

Because the rules, as they exist today, do not restrict disciplinary counsel’s authority to investigate the anonymous grievance that is the basis of this disciplinary action, nothing precludes the imposition of the board-recommended sanction here.

From the dissent

Lawyers across Ohio, be on the qui vive! Certified grievance committees be damned! Like the sinners in Dante Alighieri’s Canto VII of the Divine Comedy: Inferno, the lead opinion’s interpretation of our rules would subject members of the Ohio bar to the prospect of multiple disciplinary proceedings in connection with the same alleged misconduct involving the same alleged victim.

(Mike Frisch)

September 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Important Ohio Decision: Charges May Be Pursued Despite Bar Association Declination

The Ohio Supreme Court decided a significant bar discipline matter (per Dan Trevas)

The Ohio Supreme Court today issued a former Cuyahoga County assistant prosecutor a one-year stayed suspension from the practice of law for falsifying his work timesheets while serving as a county board of revision hearing officer.

The suspension of Roger S. Kramer of Shaker Heights is the result of a complaint brought by the Office of Disciplinary Counsel. The Supreme Court closely split on whether the rules governing Ohio attorneys allowed the disciplinary counsel to pursue charges against Kramer even though the certified grievance committee of the Cleveland Metropolitan Bar Association (CMBA) declined to do so in response to a prior, separate grievance.

Chief Justice Maureen O’Connor wrote in the Court’s lead opinion that nothing in the rules prevented the disciplinary counsel from reviewing the grievance it received and filing a complaint in this case.

In a dissenting opinion, Justice Sharon L. Kennedy wrote the majority’s interpretation of the rules would subject Ohio lawyers to the prospect of multiple disciplinary proceedings in connection with the same alleged misconduct involving the same alleged victim.

Kramer Subject of Inspector General Investigation
In 2011, the Cuyahoga County Council appointed Kramer as a board of revision hearing officer. In 2012, a Cuyahoga County Office of the Inspector General investigation revealed 129 discrepancies between the hours Kramer reported on his timesheets and parking garage records. The report stated Kramer was aware that he was paid for time he did not work, and he acknowledged he owed the county money. Kramer resigned in 2012, but denied any violation of the law.

In 2013, the inspector general informed the CMBA grievance committee about the findings of its investigation.

The CMBA grievance committee decided in October 2013 not to file a complaint against Kramer and notified the inspector general of its decision. The committee stated that it considered Kramer’s loss of his job to be a sanction and no further disciplinary action was warranted. The committee’s letter explained how the inspector general could pursue a review of the committee’s decision, but the inspector general declined to seek further review.

Anonymous Grievance Leads to Second Review
A week before the CMBA committee dismissed the inspector general’s grievance, the disciplinary counsel received a separate anonymous grievance that stated the grievant was a Cuyahoga County employee who feared the loss of employment if discovered reporting the matter. The grievance attached a copy of the inspector general’s report.

The disciplinary counsel sent Kramer a letter asking him to reply to the information contained in the inspector general’s report. Kramer responded that the CMBA just investigated him and dismissed a related grievance.

The disciplinary counsel then initiated an investigation of Kramer that the office described as significantly exceeding the scope of the inspector general’s investigation. It filed a complaint with the Board of Professional Conduct, alleging Kramer’s timekeeping violated the rules prohibiting a lawyer from conduct involving dishonesty, fraud, deceit, or misrepresentation, and conduct that is prejudicial to the administration of justice.

Kramer Seeks Dismissal
Kramer moved to dismiss the complaint, arguing the board should honor the grievance committee’s dismissal of the prior grievance against him. A three-member board panel found that while both grievances arose from the same set of facts and circumstances, the rules do not prevent a second grievance from being filed by a separate person. The panel recommended, and the board accepted, that Kramer be suspended for a year, but his entire suspension should be stayed.

The Court adopted the board’s finding that Kramer admitted misconduct to the inspector general, and that the board characterized Kramer’s testimony denying any violations of the law as “not credible.”

“There can be no dispute that some discipline is warranted here,” Chief Justice O’Connor wrote.

Kramer suggested that any sanction imposed on him as a result of the disciplinary counsel’s complaint would “have broad impact on the entire disciplinary system in Ohio” because it occurred after the CMBA committee dismissed its complaint.

“Initially, Kramer requests that the court determine whether a dismissal by a certified grievance committee that is not appealed by the grievant should become final and be given full faith and credit by another disciplinary agency,” Chief Justice O’Connor wrote. “In other words, Kramer asks this court to address whether disciplinary counsel had the authority to investigate and pursue disciplinary action on the separate, anonymous grievance.”

Rules Establish Roles for Disciplinary Counsel and Grievance Committees
Chief Justice O’Connor noted the Rules for the Government of the Bar of Ohio provide the professional conduct board with exclusive jurisdiction to consider all grievances of misconduct by judges and attorneys, and the board appoints the disciplinary counsel to investigate allegations of misconduct. The rules also allow the board to certify a local bar association’s grievance committee to investigate misconduct for the geographic area it serves.

She explained that the committees and the disciplinary counsel have broad authority under the rules to review and investigate grievances. The rules also state that if a grievance committee dismisses a complaint, a dissatisfied grievant has 14 days after being notified of the decision to ask the professional conduct board for a review.

However, nothing in the rules prevents the disciplinary counsel from reviewing a grievance that alleges attorney misconduct, Chief Justice O’Connor wrote. She noted that Gov. Bar V(9)(C) specifically requires the disciplinary counsel to review any matter that comes before it.

The chief justice explained that to change the rules, the Court must follow its rulemaking procedures, which include public notice, time for public comment, input from those impacted by the rule, and a vote by the justices to approve the rule change.

“Any change to the rules — and particularly those (like that which Kramer and the dissenting justices request) that are of great import to the public — should not be done without completing our longstanding process,” she wrote.

Justices Judith Ann Lanzinger and William M. O’Neill joined Chief Justice O’Connor’s opinion.

Justice Judith L. French concurred in judgment only.

Dissent Argues Committee’s Final Decision Must Be Given “Full Faith and Credit”
Justice Kennedy maintained that when separate grievances involve the same victim (in this case, Cuyahoga County taxpayers) and the same misconduct (falsification of timesheets), when a decision made by the grievance committee achieves finality, that decision must be honored by the board. She would vote to dismiss the complaint, and give full faith and credit to the certified grievance committee’s decision.

Justice Kennedy wrote this is the first time the Court has had the chance to interpret the rules regarding whether a decision following an investigation achieves finality and is entitled to full faith and credit.

She objected to the majority’s focus on treating the second grievance as different from the inspector general because it was supposedly made by someone other than the inspector general, even though the complaint about Kramer in both were based on the inspector general’s report. The identity of the grievant is not relevant. She wrote the focal point of the investigation should be on the grievance and, in this case, they are both the same.

Justice Kennedy explained that under the rules when a grievance is filed with disciplinary counsel and the office disposes of it without filing a complaint with the board, there is no right for a dissatisfied grievant to seek the board’s review of the dismissal. However, if a grievance committee declines to file a complaint, the grievant has 14 days to seek the board’s review. She asserts that by reading the two rules together, the grievance filed with a committee is final if the decision not to file a complaint is not appealed in 14 days.

She concludes, applying the traditional rules of statutory construction, the specific finality provision in the rule regarding the committee’s action controls over the more general provision allowing disciplinary counsel to review and investigate all complaints. Construing the rules together, while disciplinary counsel has independent authority to investigate if a formal complaint is filed based on the same misconduct and involving the same victim that was previously investigated and dismissed, the finality rule precludes the board from proceeding further.

Because the author and joiners of the lead opinion believed that “some discipline is warranted,” they interpreted the rules to achieve their desired outcome, she argued. If both certified grievance committees and disciplinary counsel are allowed to file complaints based on the same grievance, a grievance rejected by disciplinary counsel could be refiled with a certified grievance committee. In the same way, a grievance rejected by a committee and not appealed by the grievant could be filed with disciplinary counsel or another certified grievance committee with jurisdiction leaving the attorney or judge who is the subject of the grievance “in perpetual limbo,” Justice Kennedy wrote. Any other interpretation renders the finality rule meaningless, she concluded.

Justices Paul E. Pfeifer and Terrence O’Donnell joined Justice Kennedy’s dissent.

2015-2000. Disciplinary Counsel v. Kramer, Slip Opinion No. 2016-Ohio-5734.

Video of the oral argument is linked here. (Mike Frisch)

September 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 12, 2016

Hold The Phone

An Illinois Hearing Board has found that an attorney used demeaning and insulting language to a client's father in one matter and a third party in another

Buchanan recalled that Respondent kept calling and asking for more money. Buchanan paid an additional $200, even though he felt Respondent did nothing. Buchanan testified Respondent did not advise him to consult with independent counsel regarding the change in the fee arrangement, nor did Respondent tell him the request for additional fees was contrary to the original agreement or that Buchanan had no obligation to pay more money. Further, Respondent did not use the term "conflict of interest." Buchanan denied that Respondent provided any explanation for his request or advised him that fee adjustments happen in lengthy cases, and denied consenting to a change in the original agreement. (Tr. 31-34, 41-42, 66-67, 83).

Buchanan testified that during the phone calls from Respondent, Respondent cursed Buchanan and his family and used demeaning language, which was very upsetting for Buchanan. Buchanan began taping the telephone calls and eventually played the tape for a representative of the ARDC. Buchanan no longer possesses the recordings due to a problem with his phone, but confirmed that Respondent made the following statements:

You are a piece of garbage. All black people are alike. You're slovenly, ignorant.

You better give me my money or your son's case is going to be delayed.

I'm sick of you, you piece of shit.

I don't know who's the biggest bitch. You or [family]. I'm going to lock you up.

Low class n-----s. I'm going to have you all locked up.

You call me with stupid shit. Wait until next court date.

You have until 5:00 on Thursday. $300, no $500 check... Or on Friday I'll withdraw. I already told the State's Attorney to writ your son over.

You are such a pussy. They are going to writ him over. I tried to tell your stupid ass. Other lawyers would charge $10,000 for this case. Start planning for another lawyer.

You're ugly, low class, ignorant. I'll finish with you when he gets off. You're demeaning your son.

Help your son. Pay. Stop delaying case.

During the time period of the phone calls, Leon was in jail waiting for his trial. The messages caused Buchanan to worry, feel disgraced, and think his son's case would be jeopardized if Respondent did not receive more money. Buchanan recalled acting like a gentleman toward Respondent and denied ever being rude or disrespectful to him, but he did acknowledge being upset at Respondent for cursing and hanging up on him. Respondent had not been previously disrespectful to Buchanan.

Respondent admitted making the statements set forth above. He testified that after money became an issue, Buchanan was consistently rude and disrespectful and began criticizing Respondent's representation of Leon and hanging up on him. Respondent believes Buchanan is a "typical deadbeat."

With respect to the specific statements in the voice messages, Respondent testified when he told Buchanan that Leon's case could be delayed, he was referring to the fact that a hearing over a fee dispute would delay the case. When he said he was going to have Buchanan "locked up," he was reminding Buchanan of an earlier incident in court when the judge had threatened to lock up an attorney who appeared and objected to Respondent's representation of Leon on the basis of Respondent's visual impairment. Respondent acknowledged telling Buchanan he had to make a decision about the fee by a certain time or Respondent would withdraw and Buchanan would have to get another attorney.

In a separate matter involving a client in a nursing home

After Adler left a message for Respondent advising him that Durr was leaving the facility, Respondent responded with a long voice message which Adler felt was racially provocative and discriminatory. In the voice message, which was left on about July 5, 2015 and later provided to the ARDC, Respondent stated:

You know, I'm trying to be academic, intellectual, and - and - and community-minded and everything else with you. What you're supposed to do as a nursing home, you piece of Jew garbage. You put my girl out in the street and didn't give a fuck, and didn't let her come back, and know that she is mentally - are you mentally challenged, you piece of shit? Let me tell you something. There is a tort--with your stupid ass, you don't know what that is, called -- called violation of fiduciary capacity. And that's what you've done in this, with your stupid Jew ass. As a - Mother fuck you, how you fucked my girl. Okay, I'm going to sue you, a federal -- sue you, sue the fuck out of you. You should have knew better. Fiduciary capacity carries with it a responsibility of the particular concerns of the person involved. She's schizophrenic, hyper-paranoid schizophrenic, you piece of shit.

 The board also found incompetence and lack of diligence.

The board recommends a suspension with automatic reinstatement

We also consider, in aggravation, the fact that when Respondent left the offensive voice message for Adler (Count II), he was already under investigation for leaving offensive messages for Buchanan (Count I). In fact, the message to Adler occurred approximately one week after Respondent gave a sworn statement in which he indicated he regretted the language he used toward Buchanan and had learned something from his experience.

Turning now to the appropriate discipline, we have determined that Respondent left insulting and offensive voice messages in two client matters and failed to properly pursue a criminal appeal for another client. The Administrator urged us to recommend a suspension of six months and until further order of the court, but that suggestion was based on the assumption we would find all of the charged misconduct proved, which we do not... 

we recommend that Respondent Michael J. Moore be suspended from the practice of law for a period of sixty (60) days.

(Mike Frisch)

September 12, 2016 in Bar Discipline & Process | Permalink | Comments (2)

"Your Slimy Israeli Punk Client [Will] Wish He Had Never Thought Of Hiring A White, Brilliant Gentile"

An interesting complaint filed by the Illinois Administrator alleges that an attorney engaged in harassing conduct in a dispute with an entity client

The background

On May 12, 2015, Respondent and Roca Labs Inc. ("Roca"), by its agent, Don Juravin, agreed that Respondent would represent Roca in providing general business advice and representation in litigation, mediation, and other matters regarding Roca's sale of weight-loss supplements. Respondent and Roca agreed that Respondent would work as part of Roca's legal team, which included Florida attorneys April S. Goodwin, Paul Berger, and Rachel Hyman. Respondent and Roca entered into a written agreement that Respondent would work as an independent contractor for a 90-day trial period..

After issues of billing irregularities were raised, the client did not renew the attorney and sued her for legal malpractice. She sued the client for breach of contract.

The allegations here

 Between July 11, 2015 and July 27, 2015, Respondent sent to Goodman, Juravin and Hyman hundreds of texts, emails, tweets and Skype instant messages containing racial slurs, anti-Semitic comments and threats of litigation, including the following:

" You are a witness. You better be damn straight that every word can be backed up because I will never let this go. I will litigate this until you and your slimey Israeli punk client wish he had never thought of hiring a white, brilliant Gentile." Email to Hyman dated July 20, 2015, 12:16 p.m.

"…so suck some more on that Israeli slong [sic] girl. Hope you choke as I will take you apart bit by bit in every legal way possible from now until the end of your career." Email to Goodwin dated July 20, 2015, 9:35 a.m.

" You WILL regret ever meeting me. I will turn over every rock you and your fucking towel head Arab crawled out from under from now to eternity." Email to Goodwin dated July 20, 2015, 9:35 a.m.

"Tell your Israeli terrorist that this is American [sic] and he can go fuck himself and the camel he rode in on. Take that pussy little Monk loving faggott [sic] and his retarded kid with him." Email to Goodwin dated July 20, 2015, 9:35 a.m.

" J ust talked to a Jewish friend, he says that this is typical of an Israeli Jew. And he suggests a fraud count and treble damages." Text message to Hyman dated July 16, 2015, 9:58 p.m.

"Lose some weight, get a facial and deal with the speech impediment. Jackass." Email to Goodwin dated July 20, 2015, 9:35 a.m.

"It will be a public proceeding and everyone that sees and hears you will think: He must be a poor man. He must be a thief. And in the process you will look like a low life scummy thief. Because making me foot the bill for your litigation is STEALING. I do not know what God or idol you worship but my God says that stealing is breaking a commandment. Do you look in a mirror Don? What do your kids think about their Father when the policeman comes to the house AGAIN to serve him papers? Little kids are scared of cops. Maybe they think that the policeman might take Daddy away?" Email to Juravin dated July 20, 2015 at 2:37 a.m.

"So get the Israeli to pay me in full. Drop the ducking suit and apologize….Eat that shit. All of you." Skype message to Goodwin dated July 20, 2015, 10:33 a.m.

"Today I might tweet and Facebook all your personal comments about your coworkers from our Skype conversations . . . After I call Paul's [Berger] wife today." Email to Goodwin dated July 20, 2015, 6:41 a.m.

" You are just a piece of shit." Email to Goodwin dated July 20, 2015, 9:35 a.m.

"Rachel Hyman is Orthodox Jew. Berger is Jewish. But they bash Juravin for cheap practices and Jewing down all for discount." July 21, 2015 11:02 a.m. Tweet

"cheap Jew bastard" Email to Goodwin dated July 21, 2015, 2:24 p.m.

"So get your Team and the Israeli together. Work up a sweat on his swarthy oily brow and put together a proposed order." Email to Goodwin dated July 23, 2015, 8:57 p.m.

"you are simply morally bankrupt and sociopathic or so terrified of having to get another job that you have taken leave of your senses….." Email to Berger, Goodwin and Hyman dated July 24, 2015 at 4:40 a.m.

"You do not have the right to call yourself a lawyer. Because there is another name for a woman who will do anything for pay. It is not "counsel"." Email to Berger, Goodwin and Hyman dated July 24, 2015, 4:40 a.m.

"Though Israeli slong [sic] might have been a bit over the top Twitter LOVES it." Email to Goodwin dated July 25, 2015 at 1:25 a.m...

I want to litigate this matter to uncover every little detail. You can expect to come here for my deposition. I want to depose every one of you and all office staff that I interacted with, including Jack." Email to Goodwin dated July 21, 2015, 2:24 p.m.

"I want preserved all accounts, all electron Devices, all phones, all computers used at any time to communicate with me or about me, including but not limited to:

Paul Berger
Rachel Hyman
April Goodwin
Don Juravin
Legalteam@rocalabs.com
"Jack"
"Shannon or Sharon"

This is also my request to take these depositions. I will have all depositions videotaped. I will Skype them and I will have attendees at the depositions." Email to Goodwin and Berger dated July 21, 2015, 2:51 p.m.

"We are issuing notices for your depositions. Will you accept service for Shannon, Selena, Jack, Roca's accountant, the employees who I discussed the call from Marc with, Don and Don's wife or should I issue subpoenaes for their depositions and have the Sheriff serve them?

I will also need to take the deposition of Mr. Hyman on certain questions posed to him by Rachel on my behalf. Also he is a witness to conversations about my legal ability and Rachel's upset with Don for a variety of things. Will Rachel accept service or should I serve Brett?" Email to Goodwin and Berger dated July 21, 2015 at 5:53 p.m.

"There are no threats against family members. There are only promises. Paul's kids were parties to conversations. They heard him speak to me. Once again, he elected to put them in a position to testify and you filed the garbage." Email to Goodwin dated July 24, 2015 at 4:40 a.m.

The attorney is charged with a conflict of interest in an unrelated matter. (Mike Frisch) 

 

September 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Rush To Judgment Of "The Praiseless And The Blameless Dead"

The District of Columbia Board on Professional Responsibility has published the schedule of hearings to be conducted before Hearing Committees in the near future.

Two of the four merit attention on timing issues

In re Luis Salgado, DN. 158-10
October 17 & 18, 2016, 9:30 a.m.
Courtroom II

The bar docket number shows that the investigation has been pending for more than six years.

The other

In re Evan Krame, DNos. 040-07 & 449-12
October 26-31 & November 2-4 & 7-10, 2016, 10:00 a.m.
Courtroom II

Apparently, here Disciplinary Counsel has joined charges that were under investigation for nearly four years with a more than nine-year-old case.

On the Board oral argument docket are two cases of interest.

The endless saga of In re Quinne Harris-Lindsay will move forward with argument on September 22.

The case has bounced around for fourteen years. It is a potentially hugely significant case on both the law of misappropriation and the effect of systemic delay. I expect nothing good to come out of this train wreck.

My view when the hearing committee issued its report

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

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

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

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

And the Roy Pearson pants case will be heard on November 17.

The case -  where the facts were largely uncontested and which was the focus of national scrutiny in a bygone age - took seven years for now-Disciplinary Counsel to file charges.

In other words, business as usual.  

The leading case on then-Bar Counsel delay is In re Dudley Williams  where the court rejected dismissal of charges on speedy trial grounds but lamented the tortured path of the case

We trust that this lapse will not be repeated. Tardy prosecution of potential offenders does a disservice to the attorney, to the affected clients, to the courts, and to society in general. An undue delay in prosecuting charges casts an unjustified shadow over an innocent attorney; it allows a guilty one to practice with impunity; it dims memories and so distorts the truth-finding process; it threatens to put the integrity of the courts at the mercy of an unethical practitioner; it does nothing to deter other members of the bar from misconduct; and it erodes public confidence in the bar's announced intention to keep its own house in order. See The Florida Bar v. Randolph, 238 So. 2d 635, 638 (Fla.1970); Louisiana Bar Association v. Edwards, supra note 2, 387 So. 2d at 1139. The damaging effects of delay have been described in more picturesque language by the Florida Supreme Court: "During [an] unduly long period of investigation and prosecution, the accused lawyer is left roaming through the fields of Limbo where dwelt what Dante called `the praiseless and the blameless dead.'" The Florida Bar v. Randolph, supra, 238 So. 2d at 638-39.

That was in 1986.

The court's trust has lately (and for a long time) been badly misplaced.

The story of the delay in Williams is interesting and complicated. Then-Bar Counsel had taken a default in five bar complaints and secured a disbarment recommendation from the Board on Professional Responsibility. The court remanded the case and rejected the concept of discipline by default.

This aversion to discipline by default turned out to be a hugely consequential decision. 

The remand came at a time of significant staff turnover (the end of the Fred Grabowsky era and a story in itself) and the trail of the five cases (there was very little record due to the default) was more than cold. The attorney assigned to the cases departed a few month after naive I had showed up in February 1984.

I pulled the cases together as best I could and then defended against the Board's attempt to dismiss on grounds of delay.

It was an educational experience that started me on a path that led to the conclusion that self-regulation is a false and empty promise to the public. (Mike Frisch)

September 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Three Years Is Not Enough

The Georgia Supreme Court has rejected an attorney's petition for a voluntary three-year suspension.

The [criminal] charges arose out of Gaines’s efforts to suppress and eliminate competition by rigging bids for the purchase of real estate at public foreclosure auctions; Gaines was acting on his own behalf as a real estate investor and not on behalf of any client. The conduct, which occurred between 2008 and 2010 in Fulton County and between 2006 and 2011 in DeKalb County, involved over a dozen properties and more than six co-conspirators. Gaines and his coconspirators negotiated payoffs with each other in exchange for agreements not to compete at public auctions; conducted secret, second auctions, open only to members of the conspiracy; transferred title to rigged foreclosure properties into the names of the co-conspirators who submitted the highest bids at the secret auctions; distributed payoffs to co-conspirators that otherwise would have gone to financial institutions, homeowners, and others with a legal interest in the foreclosed properties; made materially false representations to trustees and others involved in the public auctions; and caused artificially suppressed purchase prices to be reported and paid to financial institutions and others.

The court noted the lengthy pattern of criminal conduct and concluded 

Having carefully considered the petition, response, the precedent cited by both parties, and the lengthy criminal conduct to which Gaines has admitted, we cannot agree that a three-year suspension is the appropriate sanction in this matter.

(Mike Frisch)

September 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Convicted Of Drug Distribution, Attorney Resigns

The Georgia Supreme Court has accepted the resignation of an attorney convicted of a federal drug charge.

13WMAZ had the story of the plea

A Macon attorney admitted in federal court that she tried to sell drugs to a GBI undercover agent last year.
 
Holly Hogue Edwards pleaded guilty Wednesday to one count of distributing oxycodone and methamphetamine, according to court documents.
 
She faces a sentence of up to 20 years and a fine of up to a $1 million dollars.
 
According to a plea agreement, Edwards met the GBI undercover agent on June 4 of last year at the parking lot of Church's Chicken on Hardeman Avenue in Macon.
 
She took $500 from the agent and promised to deliver an "eight ball" of methamphetamine and 10 oxycodone pills.
 
Edwards then drove to a nearby Citgo station to meet with her supplier, the court document says, but returned only with the pills.
 
She promised to deliver the meth later in the day.
 
The undercover agent tried to contact Edwards, but she never delivered the meth, the agreement says.
 
In exchange for her guilty plea, federal prosecutors agreed to drop three other charges against Edwards.
 
She is scheduled to be sentenced July 6.
 
Holly Hogue Edwards has appeared on Law Call on 13WMAZ, offering advice on legal matters.
 
The Georgia Bar Association web site on Wednesday still listed Edwards as a "member in good standing."
 
According to Firstcoast News ABC, the public defender lost his job as a result.
 
Resignation is "tantamount to disbarment. " (Mike Frisch)

September 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, September 11, 2016

Public Censure For Domestic Violence

A public censure was imposed by the Colorado Presiding Disciplinary Judge for misconduct described in this summary

On December 20, 2012, Holcomb had an argument with his then-fiancée. According to police reports, Holcomb threw water at her, getting her wet, and pushed her toward the stairs, causing her to stumble. The police observed no injuries, nor did Holcomb’s then-fiancée report any. Holcomb pled guilty to Disorderly Conduct—Unreasonable Noise, a class I petty offense, with “domestic violence enhancer proven.” He was given a two-year deferred sentence. Conditions included twelve months supervised probation with domestic violence evaluation and treatment, no further infractions, drug and alcohol monitoring and testing, and 120 hours of public service. Holcomb successfully completed his deferred sentence and conditions of probation on November 14, 2014, and his guilty plea was withdrawn.

Holcomb did not report his conviction to the Office of Attorney Regulation Counsel. He states that he read the reporting rule but interpreted it incorrectly.

Holcomb’s conduct violated Colo. RPC 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) and Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal).

The parties had submitted a conditional admission of misconduct. (Mike Frisch)

September 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 10, 2016

Texting Prosecutor Suspended

The Wyoming Supreme Court has suspended an attorney pending resolution of disciplinary charges.

The Powell Tribune reported on his resignation from a deputy county attorney position

A Park County prosecutor who serves in the state Legislature was fired from his job last month after sending a series of profane and belittling texts to a woman being prosecuted by his office.

In the text messages, then-Deputy Park County Attorney Sam Krone of Cody appears to taunt the woman about her pending charge for driving while under the influence of alcohol — asking if she plans to tell her grandson “that Grandma is going back to jail” — and mocks her for past relationships she’s had.

“Its awesome that you have a boyfriend that doesnt know all that sh—. And you supported Steve Simonton over me,” Krone wrote in one unpunctuated message, referring to a Cody attorney who ran for the state House against him in 2010. Krone concluded that text by saying, “Dont f— with me. Ever”

In a Wednesday interview with the Tribune, Krone acknowledged he’d sent inappropriate messages and said he’d lost his temper.

“I just feel like the situation was very unfortunate,” he said. “I made mistakes, and I’m sorry for those.”

Krone stressed that he’d had no involvement in prosecuting the woman, who he’d known for years.

The text message exchange occurred late on a Sunday night in mid-December, but the woman — who’d initially been unsure about whether to do anything about the texts — said they weren’t brought to the attention of the Park County Attorney’s Office until Friday, Feb. 19.

On Wednesday, Feb. 24, while Krone was serving in the Legislature in Cheyenne, he said he got an email from Park County Attorney Bryan Skoric telling him that he’d been fired.

Krone had served with the office for 12 years.

Skoric would not comment on the circumstances of Krone’s departure or confirm that he was fired, citing state laws that generally make information about government employees’ conduct confidential.

After the Tribune obtained a copy of the text messages and asked Skoric to comment on their content, he called the messages “disgusting.”

“I can look at those and say it’s absolutely despicable conduct,” Skoric said. “The entire subject matter offends me, the language offends me and the fact that she was a represented defendant — and not in any particular order.”

Wyoming’s Rules of Professional Conduct for attorneys generally prohibit lawyers from communicating with defendants who have an attorney; the Wyoming State Bar is responsible for investigating any violations of those rules.

The DWUI case against the woman has now been turned over to a special prosecutor from outside of Park County.

“The whole thing’s inexcusable,” Skoric said.

Krone said he had some drinks the night he sent the messages, “but I don’t think that that played into it. I think that was just the nature of the communication.”

Krone and the woman had been friends for years, but saw little of each other between 2010 and last year.

They talked about possibly hanging out one day last August, but ultimately did not meet.

The woman ended up being pulled over by Powell police and arrested on an allegation that she had driven while under the influence of alcohol — which would be her second offense in 10 years.

The woman contacted Krone and asked if he could fix things. By both their accounts, Krone provided no help.

“I would never influence a case like that,” Krone said.

Krone said he didn’t speak to anyone about the woman’s case after she asked for help — which he now says was actually his big mistake.

“When she reached out to me, I should have told Bryan (Skoric) ... and I didn’t,” Krone said, adding, “That’s my bad.”

At the time, Krone said he didn’t think it was a big deal, because a different deputy was prosecuting the case.

Plus, “When you work in Cody, Wyoming, and you’re a prosecutor, you prosecute a lot of people you know,” he said, adding, “It really is hard to separate those relationships out.”

After late August, the two didn’t communicate again until the night of Sunday, Dec. 13, they both said.

Though he said he no longer has a copy of the texts, Krone says the woman started the conversation with a complaint that Skoric was treating her unfairly in her DWUI case.

“When she contacted me, I should not have responded,” he said.

In contrast, the chain of text messages that the woman provided to the Tribune begins at 10:11 p.m. with Krone asking, “When do you go to jail again?”

The woman said that was the first message and her response suggests she was puzzled by Krone’s question.

“No idea. I haven’t gone to court. Why do you ask?” she wrote.

“Just wondering if you got a deal,” Krone responds.

He’s initially pleasant, but then becomes sarcastic — “Of course things are working out great for you! You are so well respected and loved,” he says in one — and appears to complain that the woman declined to go out with him.

After she gives an explanation for why she hadn’t gone out with Krone, he responds with crude language, mocks her past relationships and questions whether she’s been tested for sexually transmitted diseases.

“Try not to get arrested until your sentencing,” he says at one point.

After some more texts from Krone, the woman eventually says she doesn’t feel a need to defend herself.

“Look in the mirror. Look at things you have done. I don’t judge you or belittle you,” she writes.

Krone then calls her a “f—ing liar” and tells her to “bring it on with me. What have I done?”

He then makes the advisement to not “f— with me.”

Eventually, the woman says Krone won’t hear from her again. He sends additional sexually explicit and demeaning messages, the last at 12:11 a.m.

The two haven’t spoken since.

“I didn’t sleep that night, because that’s horrible,” the woman said of the messages. “You can’t have someone say that to you and just roll over and fall asleep. It doesn’t just ruin your night; it kind of eats on you forever.”

The woman said she later mentioned the Dec. 13 texts to a counselor who — over the course of three sessions — ultimately convinced her to share the messages with someone she trusted.

The woman said she gave them to an attorney friend in mid-February, who gave them to her defense attorney in the DWUI case, who gave them to Skoric.

The Tribune agreed to not use the woman’s name to protect her privacy.

For his part, Krone says there were additional text messages — including where he urged the woman to seek treatment — but “I shouldn’t have responded to her and ... I shouldn’t have lost my temper with her and I should have told Bryan (Skoric) right away that she contacted me.”

Krone said he has no ill will toward the woman and wished her well. He also said he truly enjoyed working for Skoric, whom he praised as “an excellent county attorney,” and “I appreciate what Bryan did.”

Krone now plans to enter private practice.

Park County commissioners — who’ve instituted a hiring freeze — gave Skoric the OK during their Tuesday meeting to fill Krone’s vacant position.

Krone initially declined to speak with the Tribune about the circumstances of his exit at the county attorney’s office, but agreed to do so after being told the paper was moving forward with a story about the texts.

Krone said he has not yet decided whether to file for re-election to the state House. The filing period opens May 12. His current term runs through the end of the year.

The Cody Enterprise noted recent larceny charges.

The alleged victim is a bar association

Krone has been serving as treasurer of the Park County Bar Association since 2008. An affidavit by a Wyoming Division of Criminal Investigation agent states as treasurer he had sole access to the account and alleges he diverted $9,633 from the bar association for personal use.

The alleged thefts occurred from March 2010 to October 2013, however it was not discovered this past April, at which time Brady Patrick of the Wyoming Division of Criminal Investigation began looking into the alleged violations.

(Mike Frisch)

September 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 9, 2016

After The Flood

The Iowa Supreme Court imposed a sixty-day suspension of an attorney who had violated record keeping obligations.

The court rejected the contention that because she had been through two state bar audits that charges were barred.

We reject Smith’s assertion that because prior audits occurred without a disciplinary referral, her trust account practices were presumptively permissible. Lawyers always bear responsibility for knowing and following the applicable rules. “[I]gnorance of [one’s] ethical obligation is no defense.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Howe, 706 N.W.2d 360, 370 (Iowa 2005). At the commission hearing, one member of the panel asked a specific question about this principle, and Smith’s answer is revealing:

Q. As lawyers, we don’t do anything without consulting the rules. If you’re going to court, you know, the rules of court or the rules of civil procedure, or with any criminal proceeding, you had to know those rules to practice. How is it you weren’t aware of the rules regarding your records?

A. Well, I’m going to acknowledge that I’m not—I was not aware of—you know, I should have been, but was not.

There were a number of escrow account violations.

Smith did not preserve and could not produce upon request adequately detailed trust account records regarding her representation of Hopkins less than six years ago. We conclude that constitutes a violation. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelissen, 871 N.W.2d 694, 699 (Iowa 2015) (concluding an attorney committed a violation “by failing to retain for six years billing and trust account records relating to [a particular] representation”). Although we have no doubt the severe 2008 flood greatly affected Smith’s practice, her representation of Hopkins did not begin until 2012. Thus, the flood could not have affected Smith’s recordkeeping regarding Hopkins.

There was also commingling

Some funds are inappropriate for deposit in a trust account, even if they are related to a lawyer’s practice. For example, Smith deposited earned fees from court-appointed work—which she had earned by the time the state paid them and which were therefore personal funds—into the trust account.

The attorney had three prior private admonitions. Pro bono work was treated as a mitigating factor. (Mike Frisch)

September 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Confidentiality Trumps History

Should the interests of history create an exception to a lawyer's duty of confidentiality?

No, according to an opinion of the Maine Professional Ethics Committee

Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney’s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?

Analysis

The obligations imposed by Rule 1.6 extend indefinitely. They survive the death of the attorney, as well as the client, and may continue after the dissolution of a corporate client. Absent informed consent from the affected clients or some other applicable exception, a lawyer may not divulge information that constitutes a “confidence” or “secret” as defined above. This would mean that an individualized, document-by-document assessment would need to be undertaken in order to determine whether the particular document and the information within it constituted a “confidence” or “secret” of the client at the time it was made.

The Commission is not unmindful that this opinion may well restrict information that may have independent historical value. However, those values, though significant, do not trump the attorney’s obligation to keep the client’s confidences and secrets confidential. See, e.g., Oregon Formal Opinion 32005-23 (revised 2014); Virginia Legal Ethics Opinion #1307, dated November 13, 1989; Opinion #128, Committee of Legal Ethics of the District of Columbia Bar, dated July 19, 1983; and Oklahoma Bar Association Ethics Opinion #301, adopted June 16, 1983.

If the attorney believes that the files may contain a variety of matters that do not constitute confidences or secrets, the attorney nonetheless must make that determination consistent with Rule 1.6(d). A waiver by the family, the Personal Representative of an estate (to the extent one still exists) or similar person appearing to stand in the shoes of a deceased client is not sufficient to constitute a waiver of the attorney’s obligations of confidentiality. See Professional Ethics Commission Advisory Opinion # 192: Deceased client: Confidential information requested by Personal Representative, dated June 20, 2007.

We would note that to the extent the materials maintained by the attorney and that attorney’s law firm include files that are clearly segregated and marked in a manner that would make them non-legal (for example, copies of ancient and public documents, information that was directed to others outside of the attorney/client privilege, such as correspondence to third parties, and similar documents), those items may fall outside of the definition of “confidence” or “secret.” However, the attorney must be mindful, in making an analysis under Rule 1.6(d), that the determination of whether a client considered materials to be a “confidence” or “secret” is a subjective one unique to the client. Absent the attorney being able to make a reasonably reliable determination that the client did not consider the information to be confidential, disclosure is prohibited by Rule 1.6. See Board of Overseers of the Bar v. Turesky, File No. 93-S-124, Report dated April 26, 1995.

Lastly, it should be noted that in the event that a review is contemplated, it must be undertaken by the attorney and at that attorney’s direction. It would not be proper to allow any non-lawyer or other personnel not affiliated with the lawyer’s practice to review the files regardless of whether the outside party (such as a representative of a charitable or educational institution) agreed to hold any questionable materials confidential. See Virginia Legal Ethics Opinion 1307, supra.

Conclusion

In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.

(Mike Frisch)

September 9, 2016 in Hot Topics, Privilege | Permalink | Comments (0)

Good Gamble

The Iowa Supreme Court has provisionally reinstated an attorney whose license was revoked due to misappropriation of entrusted funds.

The court had rejected an earlier effort but then changed its rules regarding reinstatement of revoked attorneys

In May 2015, following a period of public comment, we amended Iowa Court Rule 35.14 to renumber existing provisions within the rule and incorporate new provisions setting forth a procedure by which an individual whose license to practice law has been revoked may apply for its reinstatement. The amendments became effective September 1, 2015. By subsequent amendment shortly thereafter, we moved the provisions addressing reinstatement to Iowa Court Rule 34.25. The purpose of the amendment was to allow an attorney who has rehabilitated him or herself the opportunity to petition the court for reinstatement and prove to the court he or she has good moral character, is fit to practice law, and is in all respects worthy of readmission to the Iowa bar. Reinstatement under the rule is not meant to be automatic.

On the merits

With his application for reinstatement, Reilly submitted an affidavit detailing his personal history, work history, and educational history following his license revocation along with letters from six attorneys currently practicing in the Fourth Judicial District of Iowa recommending his license to practice law be reinstated. See id. r. 34.25(9)(c). In the affidavit, Reilly indicated he received treatment for his compulsive gambling addiction from April 2002 through November 2008. He also indicated he has abstained from casino gambling since February 2002. Reilly also described his work immediately following his license revocation as a litigation consultant offering mediation services to law firms and individual attorneys, as well as his current work providing consulting services on insurance litigation and claims handling involving insurance policies of various types issued to clients throughout the country. Finally, Reilly indicated that although he has not received any formal educational training since we revoked his license, he has maintained his familiarity with current Iowa law by regularly reviewing state and federal appellate court decisions as well as through his employment, which requires him to deal with statutes, rules, and regulations in most states.

The court set forth the factors considered and concludes

In light of the evidence Reilly submitted in support of his application for reinstatement, we conclude he has proved by a convincing preponderance of the evidence that he has good moral character, is fit to practice law, and is in all respects worthy of readmission to the Iowa bar. Though the conduct that led us to revoke Reilly’s license to practice law was egregious, it occurred during a relatively brief period following years of bar membership during which Reilly earned a reputation as a particularly diligent and skilled attorney. We find this notable given that Reilly struggled with his casino gambling addiction for years. Although his addiction does not obviate the seriousness of his improper conduct, the evidence he submitted demonstrating his efforts to overcome it supports his eligibility for reinstatement to the bar. For years before and for years after we revoked his license, Reilly voluntarily underwent treatment for his addiction with a licensed mental health provider and certified compulsive gambling counselor. Furthermore, he has managed to abstain from engaging in the behaviors his treatment provider has advised him to avoid for more than fourteen years. Thus, his treatment provider has concluded he requires no further treatment for his addiction.

As his dedication to his recovery might suggest, Reilly has consistently accepted responsibility for the impropriety of his conduct and acknowledged the harm it caused his clients, the bank that reported him to the federal government, and the bar. The members of the bar who have recommended we reinstate Reilly uniformly attest to his good moral character and fitness for the practice of law and express confidence that he is presently equipped to exercise the responsibility and judgment bar membership requires. Their letters commend Reilly for his outstanding legal ability, his commitment to treating his casino gambling addiction, and his acceptance of responsibility and remorse for the harm he caused. Moreover, they confirm Reilly has held a position of executive responsibility with his current employer for years without incident and maintains a personal and professional support system that includes, among others, many of his former colleagues in the bar.

There are conditions

Upon Reilly’s demonstration that he has satisfied the preconditions of reinstatement set forth in this opinion, we will order the reinstatement of his license to practice law subject to his continued maintenance of a malpractice insurance policy whenever he is engaged in the private practice of law. Within thirty days of the reinstatement of his license to practice law, Reilly shall provide the Iowa Supreme Court Attorney Disciplinary Board with proof that he has obtained a malpractice insurance policy or a report indicating he is not currently engaged in private practice. Upon his subsequent entry into the private practice of law, if applicable, he shall provide the Board with proof that he has obtained malpractice insurance within thirty days.

(Mike Frisch)

September 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)