Thursday, January 28, 2016

Allegations Conclusory Or "Utterly Refuted"

The New York Appellate Division for the Second Judicial Department has reversed a trial court order and dismissed a legal malpractice claim by a client against her former divorce attorneys.

The plaintiff's former husband commenced an action for a divorce and ancillary relief against her, and the plaintiff retained the appellants to represent her in that action. Prior to trial, the plaintiff and her former husband entered into a stipulation of settlement on the record in open court, which ended that case. Approximately two years later, the plaintiff commenced this action to recover damages for, among other things, legal malpractice. The plaintiff alleged, inter alia, that the appellants failed to ascertain the full extent of her former husband's assets and failed to adequately explain the stipulation of settlement to her. The appellants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The Supreme Court, among other things, denied the appellants' motion. We reverse insofar as appealed from.

The malpractice claims fail because

Here, to the extent that the complaint asserted that the appellants were negligent in failing to ascertain the full extent of the assets of the plaintiff's former husband, it failed to sufficiently allege that the stipulation of settlement entered into was effectively compelled by the mistakes of counsel, since the plaintiff acknowledged that she elected to enter into the settlement agreement even though she was aware that her former husband had not fully disclosed his assets...

The allegation that, but for the appellants' alleged negligence, the plaintiff would have received a more favorable settlement offer from her former husband is conclusory and speculative...In addition, to the extent that the complaint alleged that the plaintiff was not advised about certain aspects of the stipulation of settlement pertaining to the marital residence, the transcript of the court proceedings submitted by the appellants, wherein the attorneys set forth the terms of the stipulation, utterly refuted those factual allegations.

(Mike Frisch)

January 28, 2016 in Clients | Permalink | Comments (0)

Wednesday, January 27, 2016

A Difficult Transition From Government To Disbarment

The Oklahoma Supreme Court disbarred a former prosecutor for misconduct both in and out of the practice of law.

Respondent was admitted to practice law in this state on September 28, 1995. Upon admittance, he worked as an assistant district attorney for about eleven years and as an assistant attorney general for a year. Respondent moved to Oregon in 2005, but did not practice law. During his three-year hiatus, he maintained his Oklahoma law license. He returned to Oklahoma in 2008, and worked as a public defender for the Oklahoma Indigent Defense System for two years. During his time in public service, Respondent received several awards for his service. In 2010, Respondent opened his own practice, but private practice did not go as Respondent had envisioned. "[M]aking the transition from government service to private practice was difficult" for him. Respondent admitted he compounded this difficult transition by maintaining an unhealthy relationship with his girlfriend.

There were a series of arrests culminating in this incident

Although the exact date is unclear, Respondent was arrested yet again sometime in 2012 in Oklahoma County after an altercation with his girlfriend wherein Respondent hit his girlfriend to "get her off of my mother." Neither Respondent nor his girlfriend was charged in that case. Respondent was arrested again in Lincoln County after an officer had to pull a gun on Respondent to get him off of his girlfriend, and he was charged in September of 2013 with domestic assault and battery by strangulation. Those charges were later dismissed. In February of 2013, Respondent and his girlfriend became the parents of twin boys. Respondent testified that about a year after the children were born, one of the children had severe health issues and had to be hospitalized for approximately three and half weeks, complicating Respondent's personal life even further. Respondent testified he is currently undergoing counseling for these and other personal issues.

There was a conviction for this conduct

In April 8, 2012, Guthrie police received a call regarding a domestic dispute. Upon the officer's arrival, Alisha LeClair, who had called in the dispute, came out of the residence, appeared nervous and shaking, and told the officer she needed to speak to him outside. Ms. LeClair told the officer that Respondent had barricaded himself in the bathroom and would not leave her home. The officer followed Ms. LeClair into the home and to the bathroom. Ms. LeClair opened the bathroom door, and the officer observed Respondent in the bathroom, fully clothed, shoes on, with the shower running. After requesting that Respondent exit the bathroom and after repeatedly requesting that Respondent put his hands behind his back, the officer subdued Respondent, placed him in handcuffs, and took him outside. Once outside, Respondent became belligerent and began yelling obscenities, which attracted the attention of several neighbors. Respondent continued to resist arrest, forcing the officer to put Respondent on the ground and call for assistance.

Respondent was then transported to Mercy Hospital in Logan County for treatment of a possible shoulder injury. Respondent continued to direct obscenities to the arresting officer while at the emergency room, and another Guthrie police officer was dispatched to sit with Respondent while he was being treated. While waiting with Respondent at the hospital, Respondent continued to insist he had been falsely arrested. After being released from the emergency room, the officer attempted to put handcuffs on Respondent to transfer him to the Guthrie Police Department, but Respondent sat on the floor refusing to stand or comply with the officer's commands. The officer had to call for assistance from another officer to physically pick Respondent up off the floor and place him in a wheelchair. Respondent refused to sit in the wheelchair, so the officer had to hold Respondent in the wheelchair while a nurse pushed him to the patrol car. After refusing to get in the patrol car, the two officers again had to lift Respondent and put him in the back of the patrol car. Respondent continued to scream and yell while being transported to the police station, and again, had to be carried from the patrol car to the jail after refusing to get out of the patrol car. As a result of the incident, Respondent was charged on April 9, 2012, with three misdemeanor counts of resisting an officer, obstructing an officer, and disturbing the peace. Respondent pled guilty to obstructing an officer and disturbing the peace and was given a deferred sentence.

He also engaged in misconduct in two client matters.

Respondent has provided this Court with little evidence in support of mitigation. His assertion that he has taken responsibility for and admitted wrongdoing in these proceedings is not supported by the record. During the PRT hearing, Respondent continually attempted to deflect responsibility for his actions. For example, despite Respondent's conviction for obstructing an officer and disturbing the peace, Respondent continued to argue before the PRT and in his brief to this Court that the officer illegally arrested him at Ms. LeClair's house in April of 2012. Respondent also attributed the domestic altercations to his girlfriend, saying she "has a history of attacking people" and "has some issues."  Also concerning is Respondent's blameful attitude toward his former client Mr. Foster. After a somewhat heated exchange during his cross examination of Mr. Foster, Respondent told the PRT: "And Bill Foster, bless his heart, is a difficult client. He's very demanding, which can be an asset. He can be very aggressive. . . ."  Respondent's attitude and his comments at the PRT hearing reflect his lack of remorse or acceptance of responsibility for his actions.

In addition, Respondent continues to dispute whether Ms. Martin or the Fosters are entitled to a refund for unearned fees, and if so, how much. Respondent persistently maintained at the PRT hearing that he earned the fees paid by each of the clients despite the fact he has yet to provide a detailed accounting for time spent on each of those cases. The fees paid in advance of representation should have been deposited into a client trust account, but Respondent admitted before the PRT he did not maintain a client trust account. Upon inquiry from his clients, Respondent should have provided a detailed accounting and returned unearned fees. Instead, after repeated attempts to contact Respondent, both Ms. Martin and the Fosters were forced to find and pay for new attorneys to pursue their respective causes and have yet to be refunded for unearned fees.


...we find Respondent has forfeited his right to practice law in this state. Anything less than disbarment would severely undermine public confidence and trust in the dignity and integrity of the legal profession. 

(Mike Frisch)

January 27, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Those Who Trespass Against Us

A recommendation issued recently by the Illinois Review Board is summarized below.

The Hearing Board found that Respondent, previously disciplined in 2005, assisted his client in crimes or a fraud and engaged in dishonest conduct by purposefully deceiving others into believing Respondent and his client had legal authority to enter a property and remove personal property when he knew he did not have the authority to do so. Respondent assisted his client in the crimes of criminal trespass to property, criminal trespass to residence and theft. The Hearing Board recommended that Respondent be suspended for a period of ninety days and until he completes the ARDC Professionalism Seminar.

The sole issue before us is the appropriate sanction for a previously disciplined attorney who assisted his client in a crime or a fraud by purposefully deceiving numerous individuals into believing he and his client had authority from a court to take personal property the client believed belonged to him. The Hearing Board recommended that Respondent be suspended for ninety days and until he completes the ARDC Professionalism Seminar. The Administrator asks that this Board recommend that Respondent be suspended for one year. The Respondent asks that the sanction recommendation be reduced to a thirty day or sixty day suspension...we believe a one year suspension is warranted.A recommendation recently issued by the Illinois Review Board

 On sanction

Respondent's lack of remorse and his lies to the ARDC during the investigation of his conduct make this matter more egregious than the dishonest conduct in the cases relied upon by the Hearing Board and in the cases cited by the Respondent in his request for a lesser sanction. Moreover, the Hearing Board failed to consider any cases where the attorney assisted his or her client in a crime or a fraud, the primary misconduct found here. Respondent not only engaged in dishonest conduct, but he also he actively assisted his client in conduct that was illegal, conduct that if prosecuted could have resulted in incarceration for both Respondent and Hanson. His conduct jeopardized his client, harmed others, and brought the legal profession into disrepute. His conduct was calculated, deliberate and was not isolated to a single occurrence. W cannot condone or ignore such conduct by a member of the legal profession. The legal profession depends on attorneys to counsel clients to behave lawfully, rather than to help them engage in criminal acts.

(Mike Frisch)

January 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Child Porn Charges Lead To Consent Disbarment

The Maryland Court of Appeals has imposed consent disbarment of an attorney who admitted a Rule 8.4(b) violation.

JD Journal  reported on criminal charges last July, quoting a story from

According to legal documents, an undercover officer communicated with Gigot online.

The pair exchanged messages on a website that is commonly visited by individuals with sexual interests in children, as well as incest. The pair also communicated through their phones on an app called Kik.

An Illinois attorney also faces child porn allegations.

Gigot allegedly texted the officer and told him that he wanted to have sex with a 12-year-old boy. The cover story was that the father of the boy was organizing the event.

Gigot reportedly asked, “[h]ow young would you go…I’d do 5[,] [b]ut 0-12 is hot.”

Internet search engines have implemented technology to try to delete child pornography from the web.

Gigot also sent the officer a video of a boy, estimated to be about eight years old, performing a sexual act while naked.

Gigot also sent a picture of himself. Kik turned over its chat logs associated with the user name “pervyboy20” and a Gmail address.

AT&T then traced these messages to Gigot’s phone, and Comcast linked records to Gigot’s home address.

Gigot is licensed to practice law in Maryland and previously worked for LDiscovery, which is a legal services company based out of Virginia. LDiscovery stated that Gigot was a temporary employee there, but that he currently does not work there.

Gigot must wear an ankle bracelet and has been ordered to abstain from communicating with minors.

(Mike Frisch)

January 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Practice Does Not Go Better With Coke

The Arizona Presiding Disciplinary Judge approved a consent suspension of six months and a day of an attorney who was alleged to have snorted cocaine (and offered some to the client) after a case settlement conference in a custody dispute.

The client contended that the attorney came to the office that morning looking like she had been up all night and ate chocolate cake for breakfast.

Then the client was prepared to testify that she and the attorney were in adjoining bathroom stalls when 

After the conference, the client heard what she thought was someone snorting and then observed white resin under Ms. Brown’s nose. The client would have testified Ms. Brown asked her if she would “like a line,” and days later texted the client, telling her she was in recovery and attends AA (Alcohol Anonymous) and CA (Cocaine Anonymous) meetings. She also texted “I am not trying to defend what I did on Wednesday (at the settlement conference) but I want you to know that I have always had your best interests.” Ms. Brown denied using an illegal substance. The client then filed a bar charge.

When confronted by disciplinary counsel about the client's complaint, the attorney took the Fifth Amendment on advice of counsel.

The attorney must demonstrate fitness for reinstatement. (Mike Frisch)

January 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 26, 2016

"Best Lawyer" Accepts Lengthy Suspension

The Louisiana Supreme Court accepted a 30-month consent suspension for an attorney's acknowledged violation of Rule 8.4(b).

WAFB 9 had this story from 2009

Baton Rouge police report the second man wanted in connection with the alleged rape of a 22-year-old man surrendered to them late Thursday night.

Samuel J. Moore, 25, was booked into the East Baton Rouge Parish Prison after turning himself in around 10 p.m. He was charged with aggravated rape. The alleged crime happened early Monday morning.

According to police, the victim was invited to the home of attorney James Michael Cutshaw, 59, on Sassy Lane by Moore. Sometime after arriving, the victim said he was given a drink, which he believes contained an incapacitating drug. The victim said he soon passed out and drifted in and out of consciousness.

The victim said he awoke several times to find his clothes had been removed. He had been placed into a sexual sling apparatus, bound, gagged and raped. Police report the victim eventually regained full consciousness and was able to gather his clothes and leave.

"The victim's story was graphic and disturbing. It was something that needed to be backed up with physical evidence," said Don Kelly with the Baton Rouge Police Department. "Many parts of the evening came fuzzy to him and he didn't really know the sequence of what happened."

Kelly said during a raid of Cutshaw's home, detectives found quite a bit of evidence inside to corroborate the victim's story. Among the evidence collected was what police believe are drugs. Reportedly, the evidence was sent to a lab for testing.

Cutshaw was arrested at his home Wednesday. He was booked into the East Baton Rouge Parish Prison on an aggravated rape charge. John Delgado, Cutshaw's attorney, issued a statement late Thursday.

"Mr. Cutshaw denies these spurious allegations and looks forward to clearing his good name at trial," Delgado said. "We are confident he will be fully exonerated."

"I don't want to believe that he would do something like that," said Danielle Clark, Moore's sister. "You just really never know. In my heart, I don't believe he did it."

Cutshaw practices law out of his home. In 1987, Cutshaw ran against Fox McKeithen for Louisiana Secretary of State and almost won the election, gaining 49% of the vote. He is a member of the choir at his church and has earned numerous honors through the years. He's published in the 2010 edition of "Best Lawyers in America." He also serves on various boards.

The attorney has been serving an interim suspension since 2013. The 30 months runs from the date of that interim suspension.

The court's order did not identify the criminal conduct that led to the suspension. (Mike Frisch)

January 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

An Offer To Refuse (And Record)

An attorney has been suspended for 18 months for his attempt to settle an employment dispute in an unethical manner

In 2004, respondent represented a family friend pro bono, and attempted to negotiate a severance agreement with her former employer. The friend's former employer, a broker dealer, was at the time the subject of an administrative proceeding before the Securities Exchange Commission. Respondent offered, without the friend's knowledge, to have her either avoid testifying or falsely testify in the SEC proceeding if her former employer agreed to the proposed severance agreement. The employer's counsel taped his telephone conversations with respondent and disclosed them during the course of impeaching the employee while she was testifying in the SEC proceeding.

The SEC brought a separate proceeding against respondent on account of the taped conversations. Following a hearing, an SEC ALJ made misconduct findings and suspended respondent from appearing before the SEC for nine months. On appeal, the SEC affirmed the misconduct findings but increased the sanction and permanently barred respondent from practicing before the SEC. Respondent unsuccessfully appealed to the District of Columbia[Circuit] (Altman v Securities Exch. Commn., 666 F3d 1322 [DC Cir 2011]).

The New York Appellate Division for the First Judicial Department applied collateral estoppel and considered only sanction

We find an 18-month suspension to be appropriate under the circumstances. Such a suspension acknowledges the gravity of respondent's misconduct and the previous misrepresentations regarding his disciplinary history, while at the same time taking into account the mitigation, namely, respondent's condition and recovery efforts, and his community service.

The initial SEC decision is here.  

The attorney represented a high school friend (Rosen). The Administrative Law Judge rejected a host of contentions, including the assertion by the attorney that he was intoxicated during the conversations at issue

 None of the explanations or defenses that Altman offers can change the plain meaning of the words he spoke. His attempt to distinguish between a legitimate request to continue to get Rosen’s name off the leases and an illegitimate request to change her testimony is tortured, invalid, and high level sophistry. The plain fact is that Rosen’s status had changed after Altman learned on or about January 28, 2004, that the Division wanted to call Rosen as a witness. After that, Altman could not ethically or legitimately seek benefits for Rosen from the persons who were the subject of the proceeding using her status as a prospective government witness as leverage to obtain benefits for her. 

Broke and Broker blog had this story. (Mike Frisch)

January 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"I Am F***ing Done Communicating With Youse... Lawyer Babe"

Some interesting charges are alleged in a complaint recently filed by  the Illinois Administrator.

Common to all counts is the allegation that the attorney was practicing while suspended.

In a suit brought against his stepsister over an inheritance, it is alleged that he falsely represented that he was an attorney in good standing, filed pleadings and filed the case with an improper purpose.

In another matter

Prior to October 27, 2009, while Respondent was registered as inactive, Respondent and Cindy Chiappe-Kay ("Chiappe-Kay") agreed that Respondent would initiate a claim on behalf of Chiappe-Kay relating to her dispute with Donald and Nancy Barthel over ownership of two seats to Chicago Bears football games. At the time that Respondent agreed to initiate a claim on behalf of Chiappe Kay, Respondent informed Chiappe-Kay that he was on inactive status and was not authorized to practice. Respondent and Chiappe-Kay also agreed that Respondent would prepare pleadings related to her dispute for her signature, and that he would do so on a pro bono basis.

On or about October 27, 2009, Respondent prepared a "pro se" verified complaint for specific performance for Chiappe-Kay, obtained the signature of Chiappe-Kay as a purported pro se litigant, and caused that complaint to be filed in the Circuit Court of DuPage County. The clerk of the court assigned the matter case number 09 CH 5084, entitled Cindy Chiappe-Kay v. Donald Barthel, Nancy Barthel and the Chicago Bears Football Club, Inc., a Corporation.

He allegedly actively participated in the litigation.

And this email to opposing counsel in a domestic case

Respondent sent Donnelly and[sic] email stating as follows:

"(1) Done! You persuaded me. I am fucking done communicating with youse…….lawyer babe.

(2) But you never answered my question: Are youse gonna draft something….anything…..and send it to……well, to someone???

(3) The snail-mail address for Mrs. Caryn Brieschke you already know. Fyi, it is 1011 Grant Place, Wauconda, Illinois 60084.-------GOOD FUCKING LUCK, SWEETIE!!!---stanley.

(Mike Frisch)

January 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Removal Proposed For Judge Who Hung Hitler Portrait In "Hall Of Heroes"

The Oregonian has a report concerning the conduct of a state court judge

A state commission recommended Monday that Marion County Circuit Judge Vance Day be ousted from his job for his refusal to marry same-sex couples and other ethical violations.

The Oregon Commission on Judicial Fitness and Disability made its rare recommendationto the Oregon Supreme Court in a 48-page report. The high court ultimately will decide whether to remove Day from the bench.

The nine-member commission -- which held a two-week hearing in November into Day's conduct -- concluded that he has undermined public trust in the judiciary and that he should no longer be allowed to work as a judge.

"Judge Day shows no outward sign of comprehending the extent or nature of his ethical violations," the commission wrote. "His misconduct is of such a nature as to impugn his honesty and integrity."

Day released a statement through a spokesman, saying he and his legal team are "disappointed" with the commission's findings.

"A quick review of the decision indicates that the Commission's 'finding of facts' are at odds with evidence presented at the hearing, and some have no evidentiary support at all," the statement read. "The opinion is especially troubling because it disregards Judge Day's First Amendment rights to freedom of religion, speech and association. He will vigorously defend these rights, and his innocence of the remaining charges, before the Oregon Supreme Court."

Among the commission's findings:

Day instructed his staff members to embark on a "discriminatory plan" by telling people that they would have to check the judge's schedule before he could perform a wedding, the commission said. The judge then told his staff to investigate if the couples were gay.

If so, staff members were to tell the couple that the judge was "unavailable" on the requested day and to call another judge, the commission said.

"Judge Day is a Christian whose firmly held religious beliefs include defining marriage as only between a man and a woman," the commission said in its decision.

The commission noted that those beliefs clash with U.S. District Judge Michael McShane's ruling in May 2014 overturning Oregon's ban on same-sex marriage.

Marion County Circuit Judge Cheryl Pellegrini told the commission that when she was appointed to the bench in 2014, Day invited her out to breakfast and told her he was opposed to her appointment because of her sexual orientation as a lesbian. Day, however, said he told Pellegrini that he was opposed because she had been a government lawyer. The commission found Pellegrini's account "to be more credible."

Beyond the issue of marriage or sexual orientation, the commission found that Day committed many other ethical missteps, including some "amounting to criminal behavior."

The commission said that Day intentionally deceived media and the public by saying he was being unfairly attacked by the commission because of his religious beliefs when in reality the commission had been investigating him for other concerns before discovering his refusal to marry same-sex couples.

"His misconduct is not isolated," the commission wrote. "It is frequent and extensive. ...(P)ossibly the most disturbing, Judge Day has engaged in a pattern of dishonesty. Although the goal of much of his disingenuousness appears to be covering up misconduct, some of this conduct seems to have other independent objectives."

The commission found that Day has little insight into "the boundaries required" for being a judge.

For example, the commission wrote that Day included a portrait of Adolf Hitler in a "Hall of Heroes" artwork display he erected in the Marion County Courthouse. When Presiding Judge Jamese Rhoades told him to take it down, he told her, "You don't want to go there because some very influential people in this town want it up," the commission wrote. Rhoades viewed that as "a veiled political threat," the commission said.

The commission found that Day did ultimately take down the portrait, but was reimbursed twice for the $879 that he spent matting it.

Among other problems with boundaries, the commission said that the judge hired defendants he was overseeing on probation to help with home projects for himself and his family.

The commission also said that Day "relentlessly" texted and sent personal photos to a felon who was on probation, even though the felon was trying to avoid a personal relationship with Day. The felon was a Navy Seal, and the commission wrote that Day compelled the man to introduce Day to the his Navy Seal friends and that Day even brought one "noted Navy Seal" to a wedding to "show him off."

What's more, the commission found that after Day's son was hurt during a Chemeketa Community College soccer game in 2012, Day shoved "his judicial business card at a soccer referee" to intimidate the referee because Day was mad at him for a call he'd made before his son's injury.

Day also allowed a felon to handle a gun -- despite knowing that was illegal -- so the man could help Day's son prepare for his entry into the military, the commission said.

Day is in his mid-50s, married and a father of three. He has been a licensed attorney in Oregon since 1991. He was appointed to be a Marion County Circuit judge in 2011 and elected in 2012.

Read the commission's report here.

-- Aimee Green

(Mike Frisch)

January 26, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Online Records Used To Uncover Neglect

The availability of online information led to a client's discovery that his attorney had neglected his case.

Respondent represented Client in a tort action against the City of Hammond. After the case was removed from state to federal court, Respondent failed: (1) to serve initial disclosures as required under federal rules of procedure; (2) to respond to discovery requests; (3) to respond to an order compelling discovery; (4) to pay attorney fees awarded to the defendants; (5) to respond to the defendants’ motion for sanctions; and (6) to appear at the hearing on the motion for sanctions. The federal court granted the defendants’ motion for sanctions and dismissed the tort action with prejudice. Respondent failed to apprise Client of the status of the case or respond to Client’s requests for information.

Client eventually learned of the case disposition from his daughter, who looked it up online

The Indiana Supreme Court accepted a consented-to public reprimand. (Mike Frisch)

January 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 25, 2016


The Illinois Review Board has recommended that a petition for reinstatement be denied.

He was disbarred as a consequence of a federal felony conviction

In 1985, Petitioner was convicted in federal court of conspiracy to defraud the United States Department of Housing and Urban Development of funds designated for the construction of a low income housing project in East St. Louis, Illinois. Petitioner was also convicted of soliciting bribes while acting in an official capacity, theft of funds and filing false income tax returns. He was sentenced to seven years imprisonment. In 1986, Petitioner was disbarred. In 1986, Petitioner was convicted in state court of theft by deception by taking funds belonging to a Park District Board. In 1992, the Court denied Petitioner's first petition to the practice of law.

One problem

Petitioner primarily contends that the Hearing Board erred in considering his lack of restitution as evidence of his lack of rehabilitation. Petitioner continues to contend that restitution is not appropriate because no courts have ordered him to pay restitution. As noted by the Hearing Boards in both of Petitioner's reinstatement proceedings, Petitioner misunderstands restitution in the context of a disciplinary reinstatement proceeding. An order of restitution by a court is not a prerequisite to the establishment of restitution in a reinstatement proceeding. In a reinstatement context, the question is whether there is either "an improper benefit to the disbarred attorney or a loss to some victim." In re Alexander, 128 Ill.2d 524, 536, 539 N.E.2d 1260 (1989). Disgorgement of an improper benefit and repayment of funds taken illegally or improperly are viewed as a factor indicating a petitioner's rehabilitation. Here, Petitioner clearly obtained an improper benefit by receiving illegal kickbacks and his conduct resulted in a loss of funds to HUD.


Petitioner's employment and his charitable activities following his disbarment have been commendable. However, as found by the Hearing Board, Petitioner failed to demonstrate on balance that reinstatement to the practice of law is warranted at this time. Petitioner has not yet presented sufficient evidence as to his understanding of his misconduct and as to his plans to avoid future misdeeds. To recommend reinstatement, we should be confident that Petitioner has recognized the causes of his misconduct, has made amends for his misdeeds by making restitution, has refrained from engaging in misconduct for a reasonable period of time, and has presented a realistic, detailed plan to face any future challenges.

(Mike Frisch)

January 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Fraud Of Self Regulation

Jane Ann Morrison in the Las Vegas Review-Journal has a report on the sorry state of the Nevada bar discipline system

The backlog of attorney discipline proceedings in Nevada reached a point of ridiculousness around four years ago.

Complaints alleging attorney misconduct languished for as long as three years, sometimes even five. Clients complained. Other attorneys complained. Even judges privately complained their referrals of certain lawyers to the State Bar of Nevada seemed to drop into Neverland.

There were two places where backlogs emerged — the State Bar and the Nevada Supreme Court, which made the final decisions.

The State Bar counsel lacked adequate staff to handle the growing number of complaints. The Supreme Court lacked time to make the final decisions about appropriate discipline.

Those two points of delay meant some lousy lawyers were allowed to keep practicing for years because no action was taken by the State Bar or Supreme Court. On the other hand, some good lawyers had disciplinary actions hovering over them unnecessarily.

In June 2014, the bar's board of governors decided to make reducing the backlog of attorney discipline grievances a priority.

I've written for years about complaints going nowhere. The answer I always received: not enough staff.

When Rob Bare headed the Office of State Bar Counsel between 1993 and 2011, he had 10 staffers, including three attorneys and four legal assistants. After he became a judge, David Clark took over and the backlog, which had grown under Bare, increased under Clark.

When State Bar President Laurence Digesti took office in 2015, the numbers were horrifying. As of July 1, 2014, there were 415 grievances pending that had been screened and were ready for hearings. Of those, 38 were more than six months old and involved a total of 114 attorneys — an unacceptable backlog.

However, as discipline cases are resolved, more are filed, so the bar added new staff to the Office of Bar Counsel.

New State Bar Counsel Stan Hunterton, hired in October, has hired a retired Internal Revenue Service financial expert. Another attorney has been hired. By the end of January, there will be eight lawyers and five paralegals among the total staff of 18 in Las Vegas and Reno.

"We've made significant progress in 2015, but we haven't reached our goal," Digesti said. "We are on schedule to complete 110 attorney discipline hearings in 2015, a 72 percent increase over 2014," he wrote in the bar's publication, Nevada Lawyer. Pending investigations were reduced from 441 to 240, a reduction of 46 percent.

While the bar hasn't met its goal of having no cases ready for hearing that are more than six months old, he's pleased with the progress.

The bar also proposed, and the Supreme Court approved, substantive changes that will make attorney discipline more open. No more private letters of reprimand, the lightest form of discipline. Those letters will be public. No more informal hearings. And if an attorney is disbarred, the most serious discipline, the disbarred attorney cannot apply for reinstatement.

Hearing panels will be cut to three people from five — two attorneys and a lay person — making it faster and easier to schedule disciplinary hearing panels together.

Supreme Court Justice James Hardesty credited the new Court of Appeals with giving the justices more time to reduce the discipline backlog. The appeals court has been assigned 816 cases since it began work last year, and it has resolved 712.

"We had 25 discipline cases pending as of Jan. 1, 2015," Hardesty said. Meanwhile, throughout 2015, 113 more discipline cases were filed. The court disposed of 126 discipline cases last year. Only six of the pending 25 are older than six months. "A lot of these cases went back three years," he said.

"There is no question these improvements by the State Bar and the court will better protect the public," Hardesty said, referring to reducing the backlog as well as process changes.

"For bar discipline to be effective, it has to be timely," the justice said.

Hardesty was one of the leading proponents of the appellate court, which flopped with voters in 1972, 1988 and 2010 before winning voter approval in 2014. "I am delighted with the performance of the Court of Appeals," Hardesty said.

Hardesty said the court started seeing the backlog at least four years ago. When he was first elected in 2004, about 30 to 35 bar cases were sent to the court. Then it increased to 70 a year. "This year alone we saw 113," Hardesty said.

When a lawyer is no good, people are harmed.

"We made a commitment to get this problem fixed," Digesti said. "I see some improvement, and it's not where I'd like it to be, but we're getting there. We owe it to the public."

Client complaints range from the attorney won't call them back to the attorney stole from their client trust funds. Maybe they lost their home because the lawyer didn't flle the right paperwork on time.

At times, I became aware that multiple complaints had been filed against a particular attorney. Bankruptcy attorney Randolph Goldberg comes to mind. Clients began filing grievances against him starting in 2007. Bankruptcy judges sanctioned him in 2009, 2010 and 2013. Two of his clients grew so frustrated, they went to the Internal Revenue Service, which moved faster than the bar had. He went to prison in 2013 for tax evasion and was suspended from practicing.

Goldberg was released from prison in May, if anyone cares.

A judge in Louisiana recommended in September 2013 the Nevada bar investigate personal injury attorney Glen Lerner in connection with alleged unethical behavior in the British Petroleum oil spill case. Lerner denies any wrongdoing.

At this time, no complaint has been filed against him, more than two years after a judge asked the bar to look at him.

Hunterton said speeding the process up to discipline attorneys is like "turning a battleship around. It's one thing to give the order to turn it around, but it takes time to turn that big boat."

The numbers at the end of 2016 will tell whether the efforts of the State Bar and the Supreme Court turn the battleship and succeed in protecting the public from unethical, even criminal, lawyers.

The math is telling. If 115 complaints against lawyers made it to the Supreme Court in 2015, and hundreds more were screened and dismissed as without merit, and there are about 11,500 attorneys, then there's a minuscule number of rotten attorneys in Nevada.

Still, the public needs to be protected from the bad lawyers who ruin people's lives.

Dillydallying is not acceptable.

In the District of Columbia system - supposedly a model to emulate - the problem of delay is even worse than that described here (although a hearing committee noted the issue). So far as I can determine, no one in a position of responsibility cares at all.

When will the public revulsion change the fraud that is lawyer self-regulation? It is painfully obvious that the foxes do a lousy job guarding the henhouse. (Mike Frisch) 

January 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Motive At Issue

From the web page of the Ohio Supreme Court

The Board of Professional Conduct recommends that Lorain lawyer Mark R. Provenza be suspended from practicing law for one year, with six months stayed, for mishandling cases for two clients, not carrying professional liability insurance, and neglecting to deposit funds into his trust account as required by professional conduct rules.

Two Clients File Grievances
Robin Maxwell-Smith hired Provenza in December 2013 to handle her divorce. According to the board’s report, Maxwell-Smith paid the lawyer $300 for court costs to initiate the divorce and $500 to retain his services. Provenza didn’t deposit the money into his trust account.

The board found that Provenza never filed the divorce complaint, told Maxwell-Smith to appear in court when he hadn’t submitted any paperwork, and refused to respond to multiple calls and texts from her. He also didn’t put their fee agreement in writing and failed to inform his client that he wasn’t covered by professional liability insurance.

In March 2014, Provenza was appointed by a juvenile court to represent Susan Hughes, who had been accused of contributing to truancy. Provenza didn’t respond to Hughes’ attempts to reach him, didn’t meet with her about her case except for one five-minute discussion before a court hearing, and didn’t research her case or review her materials. The board found that Provenza failed to properly and adequately communicate with his client and neglected to diligently represent her. He also failed to tell Hughes he had no professional liability insurance.

Board Proposes Actual Suspension
The Lorain County Bar Association, which filed the charges, and Provenza agreed to certain aggravating and mitigating factors in this disciplinary case. The board, however, added another aggravating factor – a dishonest and selfish motive – for his failure to refund Maxwell-Smith’s fees. The board stated that the lawyer’s “cavalier attitude” necessitates a sanction that protects the public. It concluded a one-year suspension with six months stayed with conditions, including that he pay back $800 to Maxwell-Smith within a specific timeframe, was appropriate.

Lawyer Objects to Additional Finding, Increased Sanction
Attorneys for Provenza have filed objections to the board’s report. While they emphasize their agreement with the factual findings and recommendations made by the bar association, they contest the board’s addition of the dishonest and selfish motive aggravating factor and the elevated sanction.

They note Provenza was experiencing some personal problems, centering on his fiancée’s medical issues, at the time he took on these two cases. The situation drained him both financially and emotionally, they assert. They argue that the financial burden explains Provenza’s inability at the time to repay Maxwell-Smith’s fees and to renew his professional liability insurance. The facts don’t support an intent to defraud or a dishonest motive, they maintain, adding that the bar association recommended only a six-month fully stayed suspension without this finding. They ask the Court to accept the agreement made with the bar association for a lesser sanction.

Bar Association Agrees with Attorney
Lawyers for the bar association first point out that the professional conduct rules require attorneys to place fees not yet earned into trust accounts so the money can be returned to the client if unearned. In that regard, the bar association’s counsel finds Provenza’s personal reasons for why he couldn’t refund Maxwell-Smith unconvincing.

However, they don’t believe Provenza’s actions stemmed from a dishonest or selfish motive. If the Court agrees that the addition of this aggravating factor isn’t supported by the evidence, then the bar association maintains the original, stipulated six-month stayed suspension should be imposed.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

(Mike Frisch)

January 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, January 24, 2016

Heed The Warning

A prosecutor's Golden Rule argument was improper but did not warrant reversal of the conviction, held the Florida Fifth District Court of Appeal

The minor victim in this case suffered numerous significant injuries at the hands of Panchoo, including a fracture to her right elbow and a large subdural hemorrhage on the left side of her brain, which required emergency surgical intervention to reduce the swelling and resulted in the victim remaining in a coma for three days. During closing argument, the prosecutor explained to the jury each element of the crime that he believed he had readily established. The prosecutor then stated: “Think how bad a broken elbow would hurt by itself. Imagine getting bashed in the head like this. Bashed on the back of the head . . . . I submit to you that’s torture.” Defense counsel timely objected, asserting that this argument violated the “Golden Rule.” The court overruled the objection and, thereafter, denied counsel’s motion for mistrial.

Affirmed with a warning

In the present case, the prosecutor needlessly jeopardized a conviction with this improper argument. Long ago, Justice Terrell, writing for the court in Stewart, eloquently observed:

[W]e are committed to the principle of fair and impartial trial, regardless of the offense one is charged with. So it is immaterial what one is charged with, he is entitled to a fair and orderly trial in an environment reflecting the constitutional guarantees which constitute fair trial. Under our system of jurisprudence, prosecuting officers are clothed with quasi judicial powers and it is consonant with the oath they take to conduct a fair and impartial trial. The trial of one charged with crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament. It imposes an added burden on the taxpayers for court expenses and clutters the docket of this court with unnecessary appeals. 51 So. 2d at 494–95.

Prosecutors would do well to heed Justice Terrell’s admonition when making closing argument to avoid future reversals on appeal and/or referrals to The Florida Bar by this court.

(Mike Frisch)

January 24, 2016 | Permalink | Comments (0)

Less Than Disbarment For Attorney Who Took Funds To "Satisfy Personal Desires"

The Illinois Review Board has proposed a one-year suspension of an attorney  who failed to safeguard funds.

A sanction less less than disbarment was appropriate because

We agree with the Hearing Board that Respondent's conduct is mitigated by certain factors. Respondent has not been previously disciplined. He has performed pro bono services and volunteer work, particularly in the Ukrainian and Latin American communities. He called one character witness who testified as to his good reputation. He expressed remorse and acknowledged his misconduct. He made full restitution of the funds he took. Given these factors, Respondent's misconduct warrants a suspension rather than disbarment.

Respondent also testified that he was experiencing stress when he took the funds. His cousin owned a building in Chicago that housed a bakery, Ann's Bakery. The building had a fire in June 2012, and Respondent helped his cousin and spent a significant amount of time seeing to the repairs and insurance claims. Respondent expected to be paid for his work but he testified that the payments to him were late. He also testified that his grandmother, who lived in California, died in 2013. Respondent's mother, who also lives in California with his father, experienced declining health in 2012.

However, Respondent offered no medical testimony tying his stress to the conversion of client funds. Respondent did not spend any of the converted funds on his family members or renovation of his cousin's building. We see no evidence that Respondent's stress contributed to his decision to take client funds totaling $23,000 and use them for frivolous purchases. Accordingly, we give this evidence little weight as mitigation.

In aggravation, the Hearing Board found that Respondent's former position as an Assistant States Attorney should have heightened his awareness of the wrongfulness of his conduct. See, e.g., In re Crisel, 101 Ill.2d 332, 343, 461 N.E.2d 994 (1984). In addition, Respondent's conduct was aggravated by his poor financial condition at the time of his misconduct, which makes his decisions to take the funds to maintain his lifestyle even more troubling. See, e.g., In re Uhler, 126 Ill.2d 532, 540, 535 N.E.2d 825 (1989).

...we believe that a one year suspension is also appropriate in this case. While Respondent has not been previously disciplined, his misconduct in deliberately taking settlement proceeds and using the proceeds for arguably frivolous personal expenses warrants a significant sanction. We also believe that a one year suspension meets the purposes of the disciplinary proceeding, will serve to protect the public and will hopefully deter other attorneys from deliberately taking client funds to satisfy their personal desires.

Disbarment is a more effective deterrent. (Mike Frisch)

January 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 22, 2016

Making The Victim Whole?

The Illinois Supreme Court has ordered a suspension of a year and a day of an attorney convicted of retail theft.

We had the story when the ethics charges were filed

 In the early afternoon of  February 22, 2013, Respondent was present at the Whole Foods supermarket in  River Forest, Illinois. She placed approximately seventeen articles of  merchandise, including food items and cosmetics, into her pockets and purse. The  items had a value of approximately $176.98. Thereafter, she walked past the cash  registers and attempted to leave the store without paying for the items. Loss  prevention agents detained Respondent outside the store. Respondent admitted to  taking the items, stating, "I don’t know why I did it." The loss prevention  agents contacted the River Forest Police Department, and an officer responded to  the scene.

She had previously been sanctioned for unauthorized practice and driving under the influence.

The bar charges are linked here. (Mike Frisch)

January 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Not Wonder Woman

A disciplinary sanction imposed by the Colorado hearing board

Following a hearing, a hearing board suspended Lynda Elizabeth Carter (Attorney Registration Number 41106) for eighteen months. Carter’s suspension took effect on January 20, 2016. To be reinstated, Carter will bear the burden of proving by clear and convincing evidence that she has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law.

Carter, a recent admittee to the bar who operated a solo practice in Pagosa Springs, represented a man charged with misdemeanor sexual assault. She inadequately communicated with him, failed to safeguard his funds, neglected to properly withdraw from his representation, and recklessly converted advance legal fees. She thereby violated Colo. RPC 1.4(a)(3) (a lawyer shall keep a client reasonably informed about the status of the matter); Colo. RPC 1.5(f) (a lawyer does not earn fees until a benefit is conferred on the client or the lawyer performs a legal service); Colo. RPC 1.15(a) (2008) (a lawyer shall hold client property separate from the lawyer’s own property); Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including by giving reasonable notice to the client and refunding unearned fees); and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

In a second representation, Carter agreed to help a client recover funds from the sale of logging machinery. She did not communicate with the client sufficiently and did not safeguard his retainer, again violating Colo. RPC 1.4(a)(3), 1.5(f) and 1.15(a) (2008).

In addition to this client-focused misconduct, Carter failed to pay a court reporter’s invoice for deposition transcripts. By doing so, she breached Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).

The opinion is linked here. (Mike Frisch)

January 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Photo Finish

An attorney convicted of a tax crime has been disbarred by the New York Appellate Division for the First Judicial Department.

On April 14, 2015, respondent pled guilty in the United States District Court for the Southern District of New York to corruptly endeavoring to obstruct and impede the due administration of the Internal Revenue laws in violation of 26 USC § 7212(a), a felony. The facts underlying her plea are as follows: in an attempt to lower her tax burden and in response to an IRS audit, respondent, inter alia, created false tax documentation which indicated that two individuals, a photographer who performed services in connection with religious celebrations for members of respondent's family and a medical professional who had performed medical services for a member of respondent's family, had provided services to her law practice and had been paid fee income by respondent as a result. In fact, neither of these individuals had provided such services. Respondent presented the false documentation to the IRS during the course of an audit of her and her husband's joint tax returns in order to substantiate fake deductions and expenses.

On July 31, 2015, respondent was sentenced to incarceration for one year and one day, one year of supervised release upon her release from prison, and restitution in the amount of $99,546, representing the tax loss to the federal government. Respondent paid the restitution prior to sentencing. Due to child care issues, the court directed respondent to begin serving her prison sentence after her husband completed his 18-month prison sentence for similarly obstructing the IRS as well as for tax evasion.

Disbarment is automatic in New York for such an offense. (Mike Frisch)

January 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 21, 2016

The Finger

The New Jersey Supreme Court has disbarred an attorney convicted of a robbery offense.

The crimes committed by the attorney are described in the report of the Disciplinary Review Board

According to an April 2, 2009 indictment, on five occasions, between February and April 2008, respondent entered and robbed eating establishments. She was charged with two counts of second-degree robbery...three counts of first-degree armed robbery...and two counts of third-degree aggravated assault...

On April 19, 2010, respondent pleaded guilty to one count of the indictment, admitting that she had robbed McMillan’s Bakery on February 21, 2008... Respondent concealed her finger in a paper bag and told McMillan’s employees "something to the effect of give me the money and nobody gets hurt." The remaining counts of the indictment were dismissed.

The sentencing judge noted that the attorney suffers from physical and mental issues. She was sentenced to five years.

The DRB felt "some measure of sympathy" for the attorney but not enough to warrant a lesser sanction. She had been on disability inactive status since 2002. (Mike Frisch)

January 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

That's What Friends Are For

The Indiana Supreme Court has held that a Facebook friendship between a juror and rape victim did not invalidate a guilty verdict

 After Kastin Slaybaugh was convicted of rape, he moved for mistrial on grounds there had been juror misconduct. His motion asserted that in voir dire, a juror had denied knowing the victim or her family, but Slaybaugh discovered that a relative of the victim was a "Facebook friend" of that juror. The trial court ordered the juror deposed. The juror testified she was a  realtor, had more than 1000 "friends" on Facebook—most of whom she had "friended" for networking purposes—but she had not recognized the victim’s name during voir dire, did not recognize the victim when she testified, and did not know the victim or her family. The trial court determined that the juror had been truthful when answering that she had no knowledge of the victim or her family, and denied Slaybaugh’s motion for mistrial. Noting the novel issue involving a juror’s "expansive list of Facebook friends," the Court of Appeals affirmed in Slaybaugh v. State, ___ N.E.3d ___, ___, 2015 WL 5612205, *1 (Ind. Ct. App. 2015).

We agree with the result reached by the Court of Appeals, grant transfer, expressly adopt and incorporate by reference the Court of Appeals opinion in accordance with Indiana Appellate Rule 58(A)(1), and affirm the trial court.

(Mike Frisch)


January 21, 2016 | Permalink | Comments (0)