Wednesday, August 9, 2017

"For Love Of Money"

The New York Appellate Division for the Second Judicial Department accepted the resignation of a convicted attorney and ordered disbarment.

A press release on the case from the Office of the United States Attorney for the Eastern District of New York

On June 24, 2016, following a five-day trial, a federal jury convicted Flom of money laundering. According to previous court filings and the testimony at trial, between December 2013 and April 2014, Flom accepted $141,300 into his bank account from investors whom he believed to be the victims of a securities fraud scheme. He then funneled those monies to a man he believed was orchestrating the fraud scheme, but who in fact was an undercover agent with the FBI—while keeping a 5% fee for himself. At trial, the jury heard that recorded conversations between Flom and the undercover agent in which Flom bragged that the letters of his name stood for “For Love of Money” and provided advice to the undercover agent about how they could use the guise of attorney-client privilege to conceal the fraud from law enforcement.

At trial and at sentencing, the government also presented evidence that between approximately February 2012 and August 2013, Flom knowingly laundered $756,168 in a nearly identical securities fraud scheme with Cecil Franklin Speight. In this scheme, investor-victims who believed they were making legitimate stock purchases were instructed to send money to bank accounts belonging to Flom, knowing he was a lawyer and believing that he was going to transfer funds to the issuers of the securities. In fact, Flom took the investor-victims’ money, kept a percentage for himself and sent the remainder to Speight. The investor-victims received only worthless counterfeit stock certificates.

On February 12, 2016, Speight was sentenced to 42 months’ imprisonment and ordered to pay $3.3 million dollars in restitution following his guilty plea to conspiracy to commit mail fraud and securities fraud.

The root of many but not all disbarments. (Mike Frisch)

August 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Khalid Shaikh Mohammed Judge Removed

A decision from the United States Court of Appeals for the District of Columbia Circuit granted the recusal of a judge in the case arising from the September 11 attacks

 Petitioner Khalid Shaikh Mohammad is a detainee at Guantanamo Bay, Cuba, who is currently being tried by military commission on charges of planning and  bringing about the attacks of September 11, 2001. He asks this Court to issue a writ of mandamus directing that the Hon. Scott L. Silliman of the United States Court of Military Commission Review (CMCR) recuse himself from serving as a judge in Petitioner’s case on the basis of public statements made by Judge Silliman prior to and during his service on that court. Specifically, Petitioner identifies more than a dozen statements—from press interviews, speeches, and academic writing—that he says indicate Judge Silliman is biased against him. In addition, Petitioner asks us to vacate a June 29, 2017, opinion by a panel of the CMCR that included Judge Silliman.

Recusal is required in light of the judge's expressed views on the case

As Petitioner explains, Judge Silliman has done just that: expressed an opinion that Petitioner is guilty of the very crimes of which he is accused. Specifically, he points to an interview that then-professor Silliman gave to The World Today in 2010, prior to his appointment to the CMCR. Pet. App. 148–50. In that interview, which concerned the trial of Guantanamo Bay detainee Ahmed Khalfan Ghailani, Silliman stated that: “We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others.” Id. at 149. Later in the interview, Silliman said that “[t]o compare Ghailani to Khalid Sheikh Mohammed, they’re two totally different types of cases. And the magnitude of what they did is very different.” Id. (emphasis added).

Those statements represent the “express[ion] [of] an opinion concerning the guilt or innocence” of Petitioner within the plain meaning of Rule 902(b)(3). While the Rule contains an exception for statements made “in the performance of duties as military judge in a previous trial of the same or a related case,” that has no application here, as Judge Silliman’s statements were not made “in the performance of duties as military judge” but before he was ever appointed to the CMCR. R.M.C. 902(b)(3). Because the Rule prescribes that a military judge who has expressed such an opinion “shall . . . disqualify himself,” R.M.C. 902(b)(3), and Judge Silliman failed to do so, Petitioner has adequately demonstrated that his “right to issuance of the writ is clear and indisputable.” Cheney, 542 U.S. at 381 (citation and internal quotation marks omitted).

The court rejected the Government's contentions that it mattered that the statements were made prior to the judicial appointment. The court further rejected the contention that the judge had not expressed his personal views concerning guilt.

Because Petitioner has satisfied all three conditions for its issuance, we grant the petition for a writ of mandamus recusing Judge Silliman and vacate the June 29, 2017, decision of the CMCR.

Judge Silliman's biography is linked here. 

Circuit Judges Rogers, Tatel and Griffith joined the per curiam opinion. (Mike Frisch)

August 9, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Reprimand For Post-Suspension Error

An Arizona Hearing Panel ordered a reprimand of an attorney based on misconduct findings in the wake of a suspension imposed by the state Supreme Court.

The original suspension was for criminal conduct unrelated to practice and may have been unexpected

The hearing panel erred in recommending diversion as the presumptive form of discipline appeared likely to be greater than a reprimand. On appeal, the Supreme Court ordered a three month suspension followed by one-and-one-half years of probation.

The panel here found that the attorney, once suspended, made substantial efforts to comply with the suspension order

Donna Kent, the Chief Operating Officer of Mr. Henderson’s law firm testified Mr. Henderson was “devastated” by this decision, but quickly “got down to work,” “dogged[ly]” working to ensure that he complied with the suspension Order. [Tr. 254:7-25.] He started by meeting with his lawyer, Scott Rhodes, to discuss a letter from the Bar which described the parameters of the suspension. [Tr. 334:3-15; Ex. 72. The Bar’s letter did not mention negotiations.

A negotiation matter led to the charges and findings but the panel squarely rejected the State Bar's view of the matter

Under Standard 6.1, the Bar also seeks disbarment. We fail to see how the actions of Mr. Henderson constituted “threats and intimidation” which “caused potentially serious interfere[ance] with the legal proceeding between the Robbs family and Loiselle.” After this unsupported conclusory allegation the State Bar specifies the actions of Mr. Henderson that caused the interference. “Specifically, the Loiselle matter resulted in a lawsuit filed by the Robbs against Loiselle.” [Id.]

The final concluding sentence of its Standard 6.1 argument is unsupported by the record and contains speculation that is contradictory. The State Bar concludes, “Had a licensed lawyer been involved in negotiations on the Robbs behalf, rather than a suspended lawyer engaging in unethical conduct, the lawsuit may have been avoided all together.” [Id. 18-19.] But under the Bar’s argument, Loiselle believed Henderson was a lawyer (although we find no occasion within the record where Mr. Henderson stated to Loiselle or others that he was) and did not settle. Mr. Henderson ultimately referred the Robbs to a licensed lawyer and the matter still did not settle.

Lawyers who are suspended or disbarred may not practice law or hold themselves out as eligible to practice. In Arizona, Rule 31 defines the practice of law. Mr. Henderson testified that he regretted sending the communications and in retrospect understood how a reasonable person might believe they came from a lawyer. [Tr. 360:4-22, 375:12-376:10.] However ill-advised those communications were, nothing about them indicates that Henderson intended, knew or believed they violated his suspension. 

To the contrary – Henderson’s open pattern of communications indicates that he did not believe he was violating his suspension. Henderson did not communicate in a secretive manner indicating consciousness of guilt. He sent numerous emails and letters, not only to Loiselle, See Exhibit 4 at Bates SBA102-134, Exhibits 29-34; but to third parties, including a real estate agent, Exhibit 17, and numerous officers of companies affiliated with Loiselle, Exhibit 27. Mr. Henderson did not take actions consistent with a person who was conscious that he was violating the Order and trying to “cover his tracks.” We find his actions were negligent.

While much testimony was presented seeming to raise new allegations, the complaint was not amended. We decline to consider allegations not alleged in the complaint. Nor are we convinced the unsupported conclusory opinion of the State Bar that Mr. Henderson was obligated to close his trust account is accurate.

(Mike Frisch)

August 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Designated Cashroom Partner

The Scottish Solicitors' Discipline Tribunal has ordered sanctions against an attorney as described in this summary

Edinburgh 11 May 2017.  The Tribunal having considered the Complaint dated 20 February 2017  at the instance of the Council of the Law Society of Scotland against Alison Hazel Margaret Greer, 5 Brady Crescent, Moodiesburn, Glasgow; Find the Respondent guilty of professional misconduct in respect of (a) her failure in her obligation to see that the firm, in which she was a partner with the added duties incumbent on her as Designated Cashroom Partner, complied with the Accounts Rules, in her duty to supervise the firm’s office manager and cashier, in her duty to take steps to satisfy herself that fees being charged to executries were properly so charged and that fee notes were properly rendered and to see that at all times the sums at credit of the client account exceeded the sums due to clients and (b) her continued drawing of funds from the firm while it was being financed by the overcharges to clients; Order that the name of the Respondent be Struck Off the Roll of Solicitors in Scotland; Find the Respondent liable in the expenses of the Complainers and of the Tribunal including expenses of the Clerk, chargeable on a time and line basis as the same may be taxed by the Auditor of the Court of Session on an agent and client, client paying basis in terms of Chapter Three of the last published Law Society’s Table of Fees for general business with a unit rate of £14.00; and Direct that publicity will be given to this decision and that this publicity should include the name of the Respondent but that this publicity shall not include the names of clients of the firm.

The full findings are linked here. (Mike Frisch)

August 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 8, 2017

North Dakota: Personal Representatives And Personal Conflicts

The North Dakota Supreme Court imposed a six-month suspension of an attorney who had engaged in a conflict of interest as attorney-in-fact and personal representative of his mother and her estate.

The will left the estate to the attorney's daughter. He fathered a son after his mother's death and wanted him to share

The hearing panel reasoned that Allen acted as the attorney for himself as the personal representative of the estate, thereby binding himself to the rules of professional responsibility, and that he had a duty "to advance the cause of the estate through his actions and counsel." The panel found that "[w]hen Allen's son was born in 2013, Allen's personal interests became adverse to the interests of the estate and contrary to his fiduciary duty because Allen wanted [his son] to receive a portion of the estate," and "[t]hese contrary interests created conflicts of interest" in violation of the rule "when Allen failed to withdraw as counsel for the personal representative." The panel reasoned, "Allen's role as personal representative and attorney for the personal representative prevented him from self-dealing with regard to the estate property" under N.D.C.C. § 30.1-18-13 (U.P.C. § 3-713), and "[b]y attempting to negotiate a proposal of which he was a direct beneficiary, Allen created . . . a conflict of interest by placing himself in a situation where he was unable to place his duty to his client before his personal interest." The panel found that "Allen's two adverse interests kept Allen from being able to consider, recommend, or carry out [a] course of action on behalf of his client" and that by continuing the representation despite the conflicts, Allen violated the rule.

But the court rejected this finding

The hearing panel found that when Allen filed the application for informal probate in April 2012, he made statements of material fact indicating the will was validly executed, he was unaware of any documents revoking the will, and the instrument submitted was Margaret Allen's last will. The panel found that sometime before his son's birth in July 2013, Allen decided the son "should be included within the distribution of the estate, even though [the son] could not take under the terms of Margaret's will." The panel found, "Allen's conclusion that [the son] became a potential heir was not shared with the court and Allen made no corrective filings to the informal probate documents, nor were any other actions taken by Allen to advance his position at that time." When Allen attempted to negotiate with Baker after the son's birth, "[n]o terms of Allen's proposals were contemplated by the will." The panel found that Allen resigned as personal representative in January 2014 and filed the petition for formal adjudication of intestacy in May 2014, claiming "for the first time . . . that Margaret's will was invalid, that [the son] took under the will, and that Allen himself was entitled to property as an intestate heir." The panel found this position was "factually inconsistent" with the April 2012 informal probate documents. The panel concluded the rule was violated because "Allen failed to correct a statement made to the court when he did not inform the court that the previously provided information, which had been the basis for the informal probate, was now believed to be incorrect after further consideration of Margaret Allen's will."

The court's decision to impose a moderate sanction was influenced by the unlikelihood that the misconduct would recur.

The hearing panel recommended that "a more severe sanction of disbarment is warranted" in this case, but determined "Allen's lack of a disciplinary record merits a downward departure." The panel further recommended that "Allen's conduct is egregious and he should be made to demonstrate to the Court that he has taken steps to ensure that such conduct will not occur in the future." In addition to Allen's lack of a disciplinary record, we are persuaded to depart downward because the circumstances that led to discipline here are unlikely to reoccur.

No mothers left presumably.

Justice Crothers concurred

Our decision today makes clear that lawyers acting in a non-lawyer representational capacity are exposed to disciplinary sanction for professional misconduct AND potentially limit their future ability to assert personal claims. I agree with the Court's order. I write separately to highlight what I believe is the impact of our ruling on the ability of a family member-lawyer to later assert any claim against a decedent's estate. Specifically, if a lawyer agrees to serve in a familial fiduciary capacity such as a personal representative, the lawyer likely is barred from using information obtained in that capacity (and by the inherent simultaneous representation by the lawyer under Rule 1.7) in any subsequent proceeding involving the estate...

Reading Rules 1.71.8 and 1.9 together leads to the conclusion that lawyers acting as family member-personal representatives are barred in the future from asserting any claims that may adversely affect the former client. This limitation applies whether the lawyer personally asserts a claim or later represents another party against a successor personal representative. The Rules presumably bar such claims whether a lawyer self-represents or hires counsel. The exception is when a personal representative (meaning the successor personal representative) expressly consents according to the particular requirements in Rules 1.7(d)and 1.8(b)See Majority, at ¶ 19.

 I write separately to highlight these constraints placed on lawyers and to point out that today's case will broadly impact a lawyer's ability to assert future claims. In light of our ruling, lawyers should advisedly and cautiously accept representational positions in family-related matters where they might have a personal interest that is or might be adverse to the estate.

(Mike Frisch)

August 8, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Ineffective Assistance In Failure To Pursue Fantasy Defense

The United States Court of Appeals for the District of Columbia Circuit granted a new trial on a showing of ineffective assistance of counsel in defending a case where the defendant wanted to offer expert testimony that he was engaged in online fantasy rather than an attempt to sexually entice a minor.

In particular, [expert] Dr. Berlin observed that online fantasizing can seem very real, but a layperson would not necessarily know that, and that a person could be aroused by talking about child sex without then proceeding to seek sex with children.

Dr. Berlin also rebutted certain quasi-expert assertions made at trial by Detective Palchak, such as that there are only three categories of chat participants who engage in child-sex fantasy: (1) those who masturbate while chatting online, (2) those who want to go offline for phone sex, and (3) those who actually want to meet and engage in sex with a child. If those three categories were exhaustive, Laureys would fall into the third, because he left his house and drove to the District of Columbia for a sexual encounter. But Dr. Berlin would have testified that Palchak’s list of categories was not exhaustive, and that significant numbers of chat participants are interested in meeting one another to have adult sex while fantasizing about children. And, whereas Palchak testified that people interested only in fantasy chat will reveal that right up front, Dr. Berlin would have testified that, in fact, it can be very difficult to distinguish chats in which adults are arranging for sex with children from chats in which adults are arranging to meet one another and pretending that a child will join them. Finally, Dr. Berlin testified that Laureys’ history of promiscuity with adult men, as well as a series of Laureys’ prior chat transcripts in which a discussion of child sex was followed by an invitation to meet the other adult male participant, led Dr. Berlin to conclude there was a high likelihood that Laureys was interested in having sex with Palchak while fantasizing about children. All of that testimony would have bolstered Laureys’ testimony that he sought to meet with Palchak to “engage in homosexual activity while indulging in [taboo] fantasies.”

The court

Here, trial counsel recognized from his very first meeting with Laureys that a mental health expert would be necessary to his defense, and rightly so. Laureys has steadfastly maintained his innocence, despite the existence of a chat transcript in which he discussed child sex in graphic detail, because he insists that he was only engaging in fantasy and that his actual intent was to engage in an adult sexual encounter while fantasizing about a child. Such a defense might seem unimaginable to the average juror absent a clinical presentation regarding, for instance, the prevalence of fantasy in internet chat rooms, or the use of fantasy chat as a coping mechanism to deal with inappropriate or unlawful sexual urges. Therefore, with trial counsel having correctly identified the need for a mental health expert, the question is whether his failure to provide that expert at trial “fell below an objective standard of reasonableness,”

...trial counsel’s error led to the complete failure to provide expert mental health testimony that trial counsel himself recognized was necessary, thereby depriving Laureys of an adequate defense. This was a slow-moving train wreck, one set in motion long before Dr. Berlin’s eventual exit; indeed, it played out as the trial judge had predicted seven months before trial. It was thus unreasonable for trial counsel, so warned, to have done so little to avert it...

Turning to prejudice, there is no question that Laureys’ defense, and his own testimony, would have been significantly bolstered by expert testimony regarding fantasy chat and, more specifically, the existence of a subculture of men who meet first online and then offline for sex with one another spurred on by child sex fantasies, such that a “reasonable probability” of a different outcome at trial exists.

Circuit Judge Rogers authored the opinion. (Mike Frisch)

August 8, 2017 | Permalink | Comments (0)

In the Pinck

A public censure has been imposed by the New York Appellate Division for the First Judicial Department for a comparable sanction imposed in New Jersey.

The professional misconduct arose from respondent's purchase of the law practice formerly known as Pinck & Pinck, LLP. In April 2013, Lawrence and Justin Pinck sold their law practice to respondent. Respondent failed to publish a notice of his purchase of the law practice, in violation of NJRPC 1.17(c)(3). Further, respondent stipulated that he accepted approximately 130 active files from the Pincks despite not sending, and knowing that the Pincks had not sent, 60-days' prior notice of the transfer to the clients, in violation of NJRPC 1.17(c)(2). Respondent charged 44 of those clients additional fees in violation of NJRPC 1.17(d). Respondent also violated NJRPC 8.4(a), which provides that it is professional misconduct for an attorney to "violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another."

In his affidavit of consent, respondent explained that this misconduct arose from his exercise of poor judgment in agreeing to take over cases from the Pincks. The transaction transpired quickly, without respondent performing due diligence, based upon his trust in Lawrence Pinck, a long-time colleague. Respondent had not been aware of the requirements set forth by NJRPC 1.17 regarding the sale of a law practice and expressed remorse for not adhering to the disciplinary rules.

While the obligations regarding practice purchase notification differs in the two jurisdictions

The remaining misconduct for which respondent was disciplined in New Jersey does constitute misconduct in this State. NJRPC 1.17(c)(2), which requires the seller of a law practice to provide clients with 60-days' prior notice of the sale, is analogous to RPC rule 1.17(c)(2), which requires the seller and buyer of a law practice to jointly provide each of the seller's clients with 90-days' prior notice. Further, NJRPC 1.17(d), which provides that "[t]he fees charged to clients shall not be increased by reason of the sale of the practice," is analogous to RPC rule 1.17(e), which provides that "[t]he fee charged a client by the buyer [of a law practice] shall not [*3]be increased by reason of the sale, unless permitted by a retainer agreement with the client or otherwise specifically agreed to by the client." Further, NJRPC 8.4(a) and RPC rule 8.4(a) contain identical language prohibiting lawyers from violating or attempting to violate the rules of professional conduct, knowingly assisting or inducing another to do so or doing so through the acts of another.

Respondent has already stipulated to the finding of misconduct. As respondent's admitted violations of NJRPC 1.17(c)(2) and (d) and 8.4(a) also constitute misconduct in this State, the imposition of reciprocal discipline is appropriate.

(Mike Frisch)

August 8, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Malpractice Where Court Permits Withdrawal

The Washington State Supreme Court has held

In this case, former clients are suing their attorneys for legal malpractice based, in part, on the attorneys' withdrawal from a prior case. But the attorneys obtained that withdrawal by court order. In the original case, the former clients appealed the court's order approving withdrawal, and that appeal was rejected. The attorneys thus argue that collateral estoppel applies to bar a malpractice action based on their withdrawal. We agree. We hold that the fact of withdrawal by court order in an earlier proceeding is dispositive in a later malpractice suit against the attorney. Although  other malpractice complaints unrelated to the withdrawal would not be precluded, a client cannot relitigate whether the attorney's withdrawal was proper. If we are to have rules permitting attorney withdrawal, we must allow attorneys to have confidence in those rules. We, therefore, reverse the Court of Appeals...

In the prior proceeding, the Schibels had a full and fair opportunity to actually litigate their challenge to the trial court granting the Attorneys' motion to withdraw. The fact of withdrawal by court order is dispositive in a later malpractice suit. Collateral estoppel thus precludes any malpractice claim based on that withdrawal and summary judgment on those claims is appropriate. We therefore reverse the Court of Appeals as to those claims that involve withdrawal. Because the complaint alleges malpractice claims separate from the withdrawal, such as failing to prepare for trial, those claims are not precluded.

Justice McCloud dissented joined by two colleagues

This case presents a question of first impression for this court: whether a trial court order approving an attorney's withdrawal from representation, over the client's objection, has preclusive effect barring the client's later action for attorney malpractice arising from the withdrawal. Under traditional collateral estoppel analysis, as applied to the facts in this case, the answer is clearly no. The majority departs from traditional collateral estoppel analysis and adopts a new rule barring malpractice plaintiffs from asserting that a court-sanctioned withdrawal was, in fact, improper. The majority certainly asserts policy reasons for this departure. But the policy reasons can be addressed in the context of traditional collateral estoppel analysis, without adopting a new rule that will be difficult to apply. I therefore respectfully dissent...

I believe the majority's new rule will prove confusing and difficult to apply in practice. In this case, for example, the Schibels allege that the Attorneys failed to prepare adequately for trial and mishandled settlement negotiations. Majority at 2. The majority holds that they may pursue those claims since they are "separate from the withdrawal." Id. at 12. But in addition to proving that the Attorneys breached their professional and fiduciary duties, the Schibels must prove causation and damages—^they must prove that the Attorneys' breach caused them to lose money they would otherwise have recovered in a jury trial or settlement. Presumably, the Attorneys will defend against those allegations by arguing that any such loss had a very different cause: the Attorneys' proper withdrawal, necessitated by their "ethical obligations." CP at 73. If the Attorneys do raise that defense, will they be able to cite Judge Plese's withdrawal order, recognizing those "ethical obligations" as evidence? Will the Schibels be allowed to refute the allegation that their unethical conduct forced the Attorneys to withdraw?

The majority's new rule does not answer these questions. It assumes a clean distinction between malpractice claims "based on the withdrawal" and malpractice claims "separate from the withdrawal," but that distinction breaks down in practice. At best, this new rule will prove confusing to apply. At worst, it will shield attorneys who have not been candid about their true reasons for withdrawing from a case. Certainly, it is not justified by the policy concerns the majority cites.

(Mike Frisch)

August 8, 2017 in Clients | Permalink | Comments (0)

Time Was Of The Essence

The Arizona Presiding Disciplinary Judge approved an 18-month probation of an attorney who had failed to heed a client's directive that time was of the essence  in the representation

Mr. Schmerl has been licensed to practice law in Arizona since 1990. At an unstated date in early 2016, Ms. Hennel paid Mr. Schmerl $600 to represent her regarding a simple real estate transaction (contract and quit claim deed) of her father and stepmother’s townhome in Arizona. Ms. Hennel was attempting to buy her stepmother’s half interest in the property. Father was 92 years old and stepmother suffered from dementia and lived in a supervised care home in Oregon. The Stepmother’s son had power of attorney and approved of the real estate transaction. The parties stipulate Mr. Schmerl knew her father was 92 as he had been hired to draft burial instructions for him a year earlier in 2015.

On March 6, 2016, the Ms. Hennel corresponded with Mr. Schmerl reminding him that time was of the essence as her father and stepmother were elderly. He did not respond. Ms. Hennel emailed Mr. Schmerl’s assistant on March 10, 2016, and called on March 11, 2016 emphasizing the urgency of the matter. The assistant summarized the matter to Mr. Schmerl on March 10, 2016 and scheduled a phone call with Ms. Hennel for March 11, 2016.

In the March 11, 2016, telephone call, Mr. Schmerl communicated to Ms. Hennel that her case was a “straight forward transaction” and “should take a week, maybe two.” The project should have been completed no later than March 25, 2016, or an explanation given to Ms. Hennel. However, as Mr. Schmerl concedes in his agreement, he had no intention to complete the task by that date. Instead, he “created an internal deadline of April 6, 2016.” He did not inform his client of this. 

A week later, Ms. Hennel followed up by email to Mr. Schmerl’s assistant on March 17, 2016. Two weeks after his promise, on March 25, 2016, she again emailed his assistant and then called Mr. Schmerl’s assistant on March 30, 2016 reemphasizing the urgency given her father’s advanced age. The parties stipulate she was not given any useful information.

Finally, Mr. Schmerl called Ms. Hennel on April 6, 2016 (the date of his “internal deadline”) and stated he understood the urgency. The parties stipulate that Mr. Schmerl “promised to send Complainant a draft on April 8, 2016. It was another promise he did not keep as Mr. Schmerl sent nothing to Ms. Hennel by April 8, 2016. As conceded by Mr. Schmerl, that was because he “pushed back that date due to the demand of other cases.” The ignoring of his client and his task was because of the baseless conclusion by Mr. Hennel that Ms. Hennel “was just being antsy.”

Despite the multiple requests for immediate action on the “straightforward” task by his client and his multiple failed promises to perform, Mr. Schmerl continues to rationalize his misconduct. In the agreement he claims, “had he understood that Ms. Hennel’s father was terminal ill he would have accelerated his efforts.” There is no offered foundation for Mr. Schmerl’s hunch that his client “was just being antsy.”

The inaction continued and led to serious consequences when father died

The inaction of Mr. Schmerl was the direct cause of substantial financial loss to his client. In the agreement, Mr. Schmerl only concedes “that he did not complete Ms. Hennel’s projects as quickly as he would like have liked, and he did not update her as promptly as he should have.” It is unclear what his statement should mean. The facts are Mr. Schmerl did nothing. He never updated her and apparently never even began the “projects.”

The interest of Ms. Hennel’s father passed to his step-wife and the parties stipulate that “defeated the intentions of all concerned parties.” The loss to his client is stipulated to be $39, 250.

The judge expressed concerns about the appropriateness of probation but approved the sanction

Nothing is stated to explain how it is not dishonest to prioritize other cases while promising to prioritize the “straightforward” task for Ms. Hennel. Nor is there any explanation of why the prioritization of these other cases was not for selfish reasons. No explanation is stated that any efforts at restitution were made, or how the consequences of his misconduct was rectified. Similarly, there is nothing offered to suggest “remorse.” Unless the parties are submitting the self-serving concession of Mr. Schmerl that he “did not complete Ms. Hennel’s projects as quickly as he would like have liked, and he did not update her as promptly as he should have.”

... On these admitted facts, it appears Mr. Schmerl knowingly, if not intentionally, misled his client, ignored her communications, and delayed in refunding her monies. The agreement appears to rely on the rationalizations that his case load has grown and that he had a right to disbelieve his client based on his own baseless, speculative hunches about the health of her 92 year old father. He admits  he did nothing to complete the task he acknowledged was “straightforward” because he favored the demands of other cases. The parties stipulate his client suffered actual harm of over $39,000. It is not clear how a repeat of LOMAP will prevent untruthfulness, and a lack of loyalty to his client. 

Nonetheless

Consent agreements, are a necessary part of the prioritization of discipline matters by the State Bar. Consent agreements are resolutions based on minimal information, rather than the fuller presentation brought by a litigated hearing with exhibits and testimony. The PDJ defers to the parties and the ADPCC, but remains troubled by the admitted facts, yet also recognizes pertinent information may have been omitted.

(Mike Frisch)

August 8, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Maryland Holds Battered Spouse Defense May Be Pursued Where Defendant Hired Third Party To Kill Spouse

The Maryland Court of Appeals has held that a battered spouse defense may be pursued where the defendant hired a thi,rd party to kill her husband

Battered spouse syndrome is a form of posttraumatic stress disorder that develops in victims of intimate partner violence. Maryland law allows a woman on trial for harming her abuser to present evidence explaining battered spouse syndrome and its psychological effects regardless of whether she was the first aggressor, used excessive force, or failed to retreat. Md. Code (1991, 2013 Repl. Vol.), § 10-916(b) of the Courts and Judicial Proceedings Article (“CJP”).  This case asks us to analyze how Maryland’s battered spouse syndrome statute interacts with the elements of imperfect self-defense. It presents the question of whether a defendant who contracted with a third-party to kill her abusive husband can present sufficient evidence that she felt as though she was in imminent danger to be entitled to an imperfect self-defense jury instruction.

Held

We hold that [defendant] Porter presented sufficient evidence that she feared imminent harm to be entitled to an imperfect self-defense jury instruction. Additionally, we hold that the substantive error in the delivered instruction was not harmless and infected the verdict as to each of the charges against her. Thus, we remand for a new trial on all counts.

The evidence

After they were married in 1986, Ray began physically and verbally abusing Porter. At trial, Porter testified to numerous instances of violent abuse throughout their 24-year marriage, including that her husband had: beaten her with a belt; hit her with a wooden board; pushed her head into her mother’s headstone and told her that she “should be with [her] dead mother”; stabbed a drill into her stomach, leaving a large scar; hit her with a rake; smeared dog excrement across her back; hit her with a toolbox; kicked her in the side; shoved her head into leaking sewage; and given her a black eye. She also testified that on multiple occasions he had: told her that she was “worthless” and “should die”; threatened to kill her; and forced her to drink water until she urinated on herself. Porter testified that she did not call the police or leave Ray after any of these instances of abuse because she was afraid he would retaliate. When asked why she did not move out of their home, she testified, “I knew he would follow me. I knew that there was no getting away.”

...Beginning in mid-2009, Porter approached multiple people about killing her husband. That summer, she gave her daughter’s boyfriend, Daniel Blackwell, $1,000 to “take care of” her husband. The week before Christmas, she asked one of Ray’s coworkers, Tony Fails, to kill him. When asked why she solicited Fails to kill Ray, Porter testified, “It was getting so bad that I knew that Ray was going to kill me and I just wanted to kill him first.” Neither Blackwell nor Fails took any action against Ray. In January 2010, Porter asked an acquaintance, Paige Huemann, if she knew where she could get some potassium cyanide to poison Ray. Eventually, Porter’s nephew, Seamus Coyle, put her in touch with Walter Bishop, who agreed to kill her husband in exchange for $400. As to her mental state on the day her husband was shot, Porter testified, “In my mind, I knew he was going to kill me at any point.”

Bishop committed the murder.

On the morning of Ray’s death, March 1, 2010, Porter told him that the alarm had gone off at the gas station that they owned. Ray went to the station, and around 6:30 a.m., Bishop came in and shot Ray twice. Immediately afterwards, Porter called 911 and told the police that the gas station had been robbed and that the thief had shot her husband.

Porter was arrested a week later and admitted that she had paid Bishop to beat up Ray. 

The jury found Porter guilty of first-degree murder, conspiracy to commit first degree murder, three counts of solicitation to commit first-degree murder, and use of a handgun in commission of a crime of violence. She was sentenced to life plus 40 years in prison. Porter filed a motion for a new trial, arguing that the jury was not properly instructed “as to the definition of battered spouse syndrome and how to consider this type of evidence in the context of imperfect self[-]defense.” The court denied the motion, and Porter appealed.

Judge Greene dissented

I would adopt the reasoning of the Court of Special Appeals and hold that Ms. Porter was not entitled to an imperfect self-defense instruction and, therefore, the trial court’s error in issuing an improper imperfect self-defense instruction was harmless. The Majority opinion takes an unprecedented pivot in the area of imperfect self-defense by relaxing the requirement of an imminent and immediate threat for a battered spouse. And, a defendant who hires a third party to murder her spouse, even if she is suffering from battered spouse syndrome, should not be entitled to a perfect or imperfect self-defense instruction. This is so because a contract killing by its nature is more consistent with an act of retaliation for past abuse. Thus, respectfully, I dissent.

Two colleagues joined the dissent.

ABC News covered the arrest. WBLT TV reported on  the sentencing. (Mike Frisch)

August 8, 2017 in Current Affairs | Permalink | Comments (0)

Monday, August 7, 2017

How To Deal with An Overbilling Partner

A consent two-year suspension for billing and other misconduct was imposed by the Arizona Presiding Disciplinary Judge

Mr. Neal billed multiple clients for legal services not performed and misrepresented to another client exactly what legal services had been performed on the client’s behalf. Mr. Neal’s misconduct caused actual harm to clients.

He was a partner in a law firm and was responsible for a civil matter. He directed an associate attorney to draft a petition for attorneys' fees and costs.

The associate became concerned that the attorney billed for services that had not been performed. The attorney had, among other things, billed for depositions that he had not attended. 

The associate reported his concerns to another firm lawyer and the response to the expressed concerns was a model for appropriate law firm behavior.

They conducted a prompt investigation, confirmed the associate's suspicions, terminated the overbiller (not the associate!) and made restitution to the client.

A+ on the ethics grading curve.

ABA Model Rule 5.1, comment 3 has resonance here

the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will inevitably conform to the Rules.

This firm sent the exact correct message about their ethical standards.

There was another case where the attorney falsely claimed a family emergency to avoid attending a deposition, overbilled, instructed an associate to backdate her bills and made misrepresentations.

An on line profile of the attorney notes that he 

is also an adjunct professor at Scottsdale Community College, where he teaches Business Transactions, Business Law and Ethics.

He has been suspended since June 2017. (Mike Frisch)

August 7, 2017 | Permalink | Comments (0)

Sunday, August 6, 2017

Porn Producing Attorney Consents To Disbarment

An attorney has consented to disbarment in Illinois in the wake of a recent guilty plea

On July 18, 2017, Movant was charged in a two-count superseding information with knowingly possessing a video tape and other material that entertained images of child pornography, in violation of Title 18, United States Code, 2252A(a)(5)(B), and with knowingly possessing a camera containing images of child pornography, in violation of Title 18, United States Code 2256A(a)(5)(B).

On July 19, 2017, Movant entered a plea to guilty to the two-count superseding information, and an order confirming Movant’s plea was entered in case number 16 CR 542. Movant is scheduled to be sentenced in case number 16 CR 542 on November 2, 2017.

The Naperville Sun reported on the crimes

A Naperville man charged with producing child pornography in his home had victims sign contracts after they turned 18 to cover the fact that they were underage when they were filmed and photographed, a federal indictment said.

Douglas Alan Willis, 53, a corporate lawyer for Oakbrook Terrace-based Intertek-Professional Service Industries Inc., was charged Tuesday with one count of producing child pornography and one count of conspiracy to produce child pornography.

Willis pleaded not guilty in federal court in Chicago and was released after paying a $5,000 bond, said Joseph Fitzpatrick, a spokesman for the U.S. Attorney's Office. Willis was issued a summons to appear in court rather than being arrested, Fitzpatrick said. His next court date has not been set.

The terms of the bond — such as whether Willis is prohibited from traveling or having contact with minors – was not made public, Fitzpatrick said. His mug shot was not released.

From the Chicago Sun-Times

A west suburban Naperville man pleaded not guilty in federal court on Tuesday to charges that he created child pornography.

Douglas A. Willis, 52, was charged with one count of conspiracy to produce child pornography and one count of producing child pornography, according to a statement from the U.S. Attorney’s Office for the Northern District of Illinois.

According to the indictment, Willis and an unidentified person agreed that the other person would recruit boys under 18 to engage in sex acts and pose for nude photographs.

The other person allegedly brought the boys to Willis’ home, where they were given controlled substances and alcohol, federal prosecutors allege.

Willis then took photos of the boys showing their genitals and having sex acts performed on them, prosecutors claim. Both Willis and the other person also took photos and videos of each other engaged in sex acts with the underage boys.

The conduct charged in the indictment spans from September 1993 until at least August 2001, prosecutors said.

He faces 10-20 years if convicted, prosecutors said.

The state Supreme Court must approve the consent. (Mike Frisch)

August 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

What Happens When An Attorney Is Suspended Or Disbarred

When an attorney is suspended from practice, he or she is generally obligated to so notify current clients, opposing counsel and the courts in each case in which an appearance has been entered.

Most places require an affidavit demonstrating compliance. 

Some places take that obligation seriously; others do not.

California does.

Attorneys there  are regularly prosecuted - and are subject to tough sanctions - for the failure to comply with the notification and affidavit obligations.

An unpublished opinion of the California State Bar Court Review Department concludes that an attorney failed to comply with the notification requirements ordered as part of a two year suspension.

we affirm the hearing judge’s finding that Eldridge willfully violated rule 9.20, but also find her culpable for moral turpitude by gross negligence for filing a false compliance affidavit. We affirm the judge’s finding in aggravation for Eldridge’s prior discipline and assign it significant weight because the prior misconduct was serious and similar to the misconduct here. We also affirm the judge’s mitigation findings for good character, emotional difficulties, and remorse, but do not allow mitigation for lack of harm.

The Review Department further concluded that progressive discipline requires a three-year suspension.

In this matter, the attorney had failed to properly notify four clients of her suspension

Eldridge argues that she had only “imperfect compliance” because she had either substituted out or withdrawn from each case on May 26, 2010, the day before the effective date of her suspension. However, as the hearing judge found, Eldridge’s assertion that withdrawing as of May 26, 2010, immunized her from rule 9.20’s requirements is not supported by case law. To the contrary, case law is well settled that strict compliance with rule 9.20 is required because the rule “performs the critical prophylactic function of ensuring that all concerned parties— including clients, co-counsel, opposing counsel or adverse parties, and any tribunal in which litigation is pending—learn about an attorney’s discipline.” (Lydon v. State Bar (1988) 45 Cal.3d 1181, 1187, citing Durbin v. State Bar (1979) 23 Cal.3d 461, 467-468 [referring to former rule 9.55, previous version of rule 9.20].) The operative date for identification of clients being represented in pending matters and others to be notified under rule 9.20 is the filing date of the Supreme Court order for compliance, not the later effective date. (Athearn v. State Bar (1982) 32 Cal.3d 38, 45 [rule 9.55 clearly contemplates advance notice to existing clients— notice to clients at effective date of Supreme Court order does not comply].) Therefore, Eldridge had to provide written notice, as required by rule 9.20, for cases that were pending as of the April 27, 2010, filing date of the Supreme Court’s order, and her failure to do so establishes her culpability.

And the lapse involved the dread moral turpitude

We find that Eldridge’s misrepresentations were made with gross negligence amounting to moral turpitude because she recklessly failed to carefully and accurately fill out the rule 9.20 declaration. The Supreme Court has held that gross negligence can constitute moral turpitude— both when the behavior impacts an attorney’s duties to a client and when it affects non-clients.

The Review Department accepted the findings below on mitigation but nonetheless increased the sanction proposed  by the hearing department by a year, noting that the misconduct involved a false affidavit.  

In the District of Columbia, the only significant consequence of not filing the required affidavit is that the time for serving the suspension does not start for reinstatement purposes until a  compliant affidavit is filed.

 until the § 14(f) affidavit is filed, the period of suspension does not begin to run (although the suspension itself is, of course, effective from the time it is imposed)

(Mike Frisch)

August 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 5, 2017

No Private Discipline In D.C. Unless Disciplinary Counsel Approves

The District of Columbia Board on Professional Responsibility rejected an attorney 's request for confidential discipline for a violation of the duty to communicate with a client

It is undisputed that Respondent violated Rule 1.4(a). Indeed, Respondent conceded this violation in the hearing, in his post-hearing briefs, and in his brief to the Board. Respondent excepts to the sanction recommendation of the Hearing Committee and seeks a private sanction. In doing so, however, Respondent argues for a sanction that is not available in the District of Columbia. In his briefs, Respondent repeatedly asserts that the Board has the authority to impose a private sanction, but does not provide any statutory, rule, or case support for this proposition

...Despite Respondent’s assertion that there should be private discipline, there is none.

The board explains that the only non-public discipline is diversion, which is only given if Disciplinary Counsel proposes it and obtains approval.

Here, the board recommended that the attorney receive an informal admonition.

I actually think that the board has the power to order an informal ad, not just recommend it. Perhaps it anticipates a petition for review by Disciplinary Counsel.

Disciplinary Counsel had sought a public censure but

Disciplinary Counsel asserts that Respondent should receive a public censure because there is “a laundry list of aggravating factors” in this case. ODC Br. at 7. Disciplinary Counsel argues that Respondent “deliberately withheld work product he claimed was critical to Dr. Chen’s case when he represented him, [and] refused to surrender them when discharged, despite having received $2000 for whatever work he made purportedly performed . . . .” Id. at 7. Before the Hearing Committee, Disciplinary Counsel argued that “[a]lthough this disciplinary matter involves only one client’s case, Respondent has not shown he appreciates the need to communicate effectively with his clients, and to date has refused to recompense Dr. Chen for the fee that yielded him no benefit.” ODC PFF at 20.

We note that Disciplinary Counsel did not charge Respondent with any Rule violations that would encompass these assertions.

The case is In re Frederic Schwartz and can be found at this link. (Mike Frisch)

August 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 4, 2017

Unappealing Behavior Draws Suspension In Tennessee

A disciplinary decision issued today by the Tennessee Supreme Court is summarized on the court's web page

The Tennessee Supreme Court has increased a hearing panel’s recommended punishment of a public censure and suspended Paul Julius Walwyn from the practice of law for one year.  He will serve six months of the suspension on active suspension and six months will be served on probation with a practice monitor.   The Court also required that Mr. Walwyn complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.

This disciplinary matter arose out of Mr. Walwyn’s representation of his client in a first degree murder trial.  Following the client’s conviction, Mr. Walwyn filed a motion for new trial, which was denied.  Mr. Walwyn failed to file a notice of appeal for three and a half years and failed to adequately communicate with his client in the interim.  The client filed this complaint during the delay in his proceedings, after which a late-filed notice of appeal was filed and was later accepted by the Court of Criminal Appeals.

The hearing panel determined that Mr. Walwyn had violated the Rules of Professional Conduct by not exhibiting the skill, thoroughness, or preparation necessary when representing his client; by failing to file a timely notice of appeal; by waiting three and a half years to file a motion to accept a delayed appeal; by failing to keep his client informed about the status of his case; by violating the Rules of Professional Misconduct; and by engaging in conduct that was prejudicial to the administration of justice with the above stated conduct.  Accordingly, the hearing panel imposed a public censure with the conditions that he be supervised by a practice monitor for one year and that he complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.

Neither the Board of Professional Responsibility nor Mr. Walwyn appealed the hearing panel’s decision.  The Tennessee Supreme Court then reviewed the discipline pursuant to Rule 9 of the Tennessee Supreme Court Rules and entered an order proposing to increase the punishment because it seemed inadequate.  After review, the Court, in a unanimous opinion authored by Justice Roger A. Page, concluded that a public censure was inadequate, particularly in light of Mr. Walwyn’s prior disciplinary record.  As a result, the Court increased the attorney’s discipline to one year on suspension with six months of the suspension on active suspension and six months to be served on probation with a practice monitor.  The Court also required that the attorney complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.

To read the Court’s opinion in In re: Paul Julius Walwyn, BPR #018263, authored by Justice Roger A. Page, go to the opinions section of TNCourts.gov

Notably, the court looked to a series of prior cases for purposes of assessing comparable discipline. Two involved the same attorney. (Mike Frisch)

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

Blackwater Decision Out: Sentences Cruel And Unusual (With Dissent)

The United States Court of Appeals for the District of Columbia Circuit has decided the criminal case involving Blackwater employees involved in the 2007 shootings in Baghdad

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security (ABlackwater@), which in 2007  was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds.

For the following reasons, we hold that the Court has jurisdiction pursuant to the Military Extraterritorial Jurisdiction Act (“MEJA”), 18 U.S.C. §§ 3261 et seq., and that venue in the District of Columbia was proper. We further hold that the district court did not abuse its discretion in denying the defendants= motion for a new trial based on post-trial statements of a government witness. Regarding the challenges to the sufficiency of the evidence, we hold that the evidence was sufficient as to all except one of Liberty’s attempted manslaughter convictions, and that the evidence was sufficient as to Slatten. We further hold that Slatten's indictment charging first-degree murder did not constitute vindictive prosecution.

The Court concludes, however, that statements made by a co-defendant shortly following the attack, statements asserting that he—not Slatten—fired the first shots on the day in
question, were admissible. Accordingly, the Court concludes that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

On the Eighth Amendment issue

 The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant. 

Circuit Judge Rogers concurred and dissented

First, in accordance with the Supreme Court’s instruction, portions of a co-defendant’s statements to investigators should have been admitted in Slatten’s defense,  but not as a result of unduly expanding a narrow residual hearsay exception when the statements are covered by an established exception. Second, defendants’ Eighth Amendment challenge lacks any merit whatsoever, especially in view of the district court judge’s express assessment, which my colleagues ignore, that the sentences were an appropriate response to the human carnage for which these defendants were convicted by a jury...

Paul Slough was convicted by a jury of killing thirteen (13) people and attempting to kill seventeen (17) others. Evan Liberty was convicted by a jury of killing eight (8) people and attempting to kill twelve (12) others. Dustin Heard was convicted by a jury of killing six (6) people and attempting to kill eleven (11) others.

Circuit Judge Brown concurred and dissented on other grounds

The question of how our criminal justice system should treat private contractors who commit crimes overseas in war time is a difficult one. However, Congress has made the determination that such individuals should be held responsible for their actions in federal courts if they either work for the military or commit a crime during the performance of a task related to supporting the military, such as the atrocities committed at Abu Ghraib. Today’s opinion expands MEJA beyond the limits defined by this history and clearly laid out  in the text. Because it is not possible to conclude, beyond a reasonable doubt, that the erroneous instruction did not improperly influence the ultimate outcome of the case, I respectfully dissent from this portion of the Court’s decision.

(Mike Frisch)

August 4, 2017 in Current Affairs | Permalink | Comments (0)

Still Waiting After All These Years

This is the time of the year when the District of Columbia Board on Professional Responsibility tries to clear its docket and move cases along to their conclusion.

The board has released a number of reports over the past week or so, some of which have been blog-worthy. 

But still to come - hopefully soon - is the next stage in the drama of Judge Roy Pearson, famed for suing a cleaners over a pair of pants.

The underlying civil case was concluded in 2007. 

In June 2016, a hearing committee concluded

the Hearing Committee respectfully recommends that the Board find that Disciplinary Counsel has proved by clear and convincing evidence that Respondent violated Rules 3.1 and 8.4(d) and that Disciplinary Counsel has not proved by clear and convincing evidence that Respondent violated Rule 3.2(a). The Hearing Committee further recommends that Respondent be suspended for 30 days, that the suspension be stayed, that the stay be conditioned upon the successful completion of a period of probation of two years during which Respondent shall not make assertions in litigation unless there is a basis in law or fact for doing so that is not frivolous and shall not be sanctioned by a court for litigation-related conduct; and that any clients Respondent represents in litigation during the period of his probation be informed of the fact of his probation. If Respondent appears as lead counsel in a litigated matter, he should consider associating with other counsel.

The board received briefs and heard oral argument in the matter.

Our coverage of the hearing committee report noted that the bar investigation opened in 2007 and lay fallow for many years for reasons that the record does not address. (Mike Frisch)

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

Thursday, August 3, 2017

More Than A Reprimand

The full Massachusetts Supreme Judicial Court affirmed a single justice's conclusion that an attorney

"systematically extracted illegal and excessive fees from numerous vulnerable and desperate clients with deceptive advertisements, misleading contractual arrangements, and deceptive and useless services such as the 'lender benefit analysis' and the 'forensic loan audit.' In addition, he engaged in unlawful fee-splitting to provide his partner and his employees with the financial incentive to use the machinations to enhance his personal financial interest at the expense of his clients."

The attorney appealed the single justice's order of disbarment and sought a public reprimand.

As to misconduct

Both State and Federal law prohibits a lawyer from charging advance fees for mortgage assistance relief services unless the fees are deposited into a client trust account...There was no error in the single justice's determination that the respondent violated rule 1.5 (a). 

The full court also affirmed false advertising and fee-splitting with non-lawyer violations.

And no way to a reprimand

The repeated nature of the respondent's misconduct, over a period of years, involving hundreds of economically, educationally, and linguistically disadvantaged clients in strained financial circumstances, evidenced by threatened foreclosure of their homes, warrants a substantial sanction...

Considering the extent of the misconduct, weighing the presence of the factors in aggravation and the absence of factors in mitigation, and giving due deference to the board's
recommendation, we conclude there was no error in the single justice's judgment that disbarment is warranted.

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

False Statement Draws Two Year Suspension

The Oregon Supreme Court has suspended an attorney for two years for a false statement to a tribunal in a domestic relations matter

The accused made his first appearance in the matter as attorney of record when he filed a Motion to Vacate Default Judgment on husband’s behalf on March 7. The accused based his motion on ORCP 69 B(2), which requires a party to file and serve notice of the intent to apply for an order of default at least 10 days before applying for the order, if the opposing party or the party’s counsel has previously provided written notice of intent to appear. The accused attached to that motion a declaration in which he stated, “I provided to counsel for Petitioner written notice of intent to appear in [this] action on January 29, 2014.” The accused, however, did not attach as an exhibit to the declaration any written notice of intent to appear.

Opposing counsel contended that an email used in a motion to show the date was fabricated

The court granted the accused’s motion to vacate. The court declined to make a finding that the email was fraudulent and asked the accused to find the email in electronic form and forward it to [opposing counsel] Claar. The accused never did so. The parties subsequently settled the dissolution matter.

He then filed a bar complaint

A Bar technology expert, Johnson, examined the purported email and concluded that it had not been sent. As Johnson later testified before the trial panel, the fact that the email had not been sent was evident from its formatting.

And the accused's attorney own technology expert chimed in with this rather unhelpful nugget

When a trial panel member asked Englen whether, in his opinion, the purported January 29 email could have been fabricated intentionally, Englen responded, “Completely, yeah, absolutely. * ** No doubt, this could be completely totally made up.”

The court

Having reviewed de novo all the evidence in this case, which we have summarized above, we agree with the trial panel and conclude that there is clear and convincing evidence that the accused violated RPC 3.3(a)(1) (making a false statement of fact or law to a tribunal or failing to correct a false statement of material fact or law previously made to the tribunal by the lawyer); RPC 3.4(b) (falsifying evidence); RPC 8.4(a)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice law); and RPC 8.1(a)(1) (knowingly making a false statement of material fact in connection with a disciplinary matter). Further recitation of the factual bases for our independent conclusion would not benefit the bench, the Bar, or the public. Because, as noted, neither party has challenged the appropriateness of the sanction, we also conclude that a two-year suspension is appropriate.

(Mike Frisch)

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

Threats As Conduct Prejudicial?

The North Carolina State Bar has filed a complaint alleging that an attorney who had been sued for malpractice engaged in a campaign of retaliation against the former client's law firm  that was prejudicial to the administration of justice.

After the case was voluntarily dismissed, it is alleged that the attorney sought a meeting with the firm that had filed the suit and wanted them to pay his fees in defending the action.

The demand was rebuffed.

Then, according to the complaint, the attorney threatened a social media campaign that included potential attacks on several firm lawyers who had no involvement in the malpractice case.

He sent an email that threatened to expose that an attorney at the firm  "forgave his wife for sleeping with a lawyer at the firm so long as the lawyer left the firm" and to tell the children "how forgiving their father is."

And that was "just for starters." (Mike Frisch)

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