Wednesday, September 7, 2016

Don't Mess With Louisiana

A Texas resignation translates into a Louisiana disbarment, according to a recent opinion of the Louisiana Supreme Court.

 In February 2016, respondent filed with the Supreme Court of Texas a "Motion for Acceptance of Resignation as Attorney and Counselor at Law" in lieu of discipline. The Chief Disciplinary Counsel ("CDC") of the State Bar of Texas filed a response to the motion, agreeing that acceptance of respondent’s resignation in lieu of discipline is in the best interest of the public and the legal profession.

By my count (a traditionally questionable source), there were 38 pending complaints when the attorney threw in the Texas towel.

The court

In the instant case, respondent has made no showing of infirmities in the Texas proceeding, nor do we discern any from our review of the record. Furthermore, we feel there is no reason to deviate from the sanction imposed in Texas as only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction...

Under these circumstances, we believe it is appropriate to defer to the Texas judgment imposing discipline upon respondent. The discipline imposed in Texas was the acceptance of respondent’s resignation from the practice of law in lieu of discipline, with a list of conditions if respondent wishes to be reinstated to the practice of law in Texas in the future...

acceptance of respondent’s resignation from the practice of law in lieu of discipline in Louisiana would permanently prohibit him from seeking reinstatement in Louisiana and/or Texas, which is not equivalent to the discipline imposed in Texas...

In light of the Texas Rules of Disciplinary Procedure, the most equivalent reciprocal discipline we could impose upon respondent is disbarment. Accordingly, we will impose reciprocal discipline upon respondent in the form of disbarment.

(Mike Frisch)

September 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Lawyer Convicted, Imprisoned, Disbarred For Taking $32,500 Bribe

The New Jersey Supreme Court has accepted the consent disbarment of a former Ropes & Gray attorney convicted of leaking confidential client information

Reuters reported on the criminal case

Arthur Cutillo, a former lawyer with the well-known Ropes & Gray law firm who admitted leaking corporate secrets in exchange for $32,500 in cash, was sentenced on Thursday to 2-1/2 years in prison for his part in a sweeping insider trading case.

Cutillo's name featured prominently at a trial that ended on June 13 with the conviction of three traders on securities fraud and conspiracy charges brought by federal prosecutors in New York in a crackdown on insider trading at hedge funds.

Cutillo said at his plea proceeding in January that he received $32,500 in cash for providing inside information to trader Zvi Goffer about merger activity involving computer network equipment maker 3Com Corp and Canadian drug company Axcan Pharma Inc in 2007.

Zvi Goffer once worked for the Galleon Group hedge fund, whose founder, Raj Rajaratnam, was also found guilty on insider trading charges after a separate high-profile two-month-long trial that ended on May 11.

During Thursday's sentencing by District Judge Richard Sullivan, the court heard how Cutillo, who is married with four young children, once earned $200,000 a year as a lawyer but since his November 2009 arrest and disbarment, had worked as a waiter for as little as $2.13 an hour.

The judge remarked on the notoriety of the insider trading cases, what he called their "negative impact on the nation's economy" and the need for deterrence because Cutillo had breached a lawyer's "sacred trust" of clients.

"Every lawyer in New York, every lawyer in the country is going to pay attention to this sentence," Sullivan said before imposing the prison term of 30 months.

Cutillo, 34, will report to prison on September 16. The judge ordered a forfeiture amount of $378,000 jointly with Zvi Goffer and Cutillo's former Ropes & Gray colleague Brien Santarlas.

Goffer, his brother Emanuel Goffer and their former partner at Incremental Capital LLC trading firm, Michael Kimelman, plan to appeal their convictions. Cutillo did not testify at the trial but Santarlas told the jury that he and Cutillo conspired to find confidential information about the firm's clients.

Cutillo told Sullivan when he pleaded guilty in January that he and Santarlas provided another lawyer, Jason Goldfarb, with information about the two companies. He said Goldfarb, an old college roommate of Cutillo, passed it on to Goffer.

"I just want to apologize for everyone that I hurt by what I did," Cutillo said on Thursday as his wife sat in the courtroom. "I am and always am going to be ashamed."

Santarlas, Goldfarb, the Goffer brothers, Kimelman and others will be sentenced separately later this year.

Rajaratnam will be sentenced on September 27, according to an order issued on Thursday by District Judge Richard Holwell postponing the proceeding from July 29.

(Mike Frisch)

September 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Indefinite Suprension In Ohio

A discipline decision is summarized on the web page of the Ohio Supreme Court

 A Youngstown attorney with four prior suspensions has been indefinitely suspended from practicing law by the Ohio Supreme Court today.

In a 6-1 per curiam opinion, the Supreme Court indefinitely suspended Dennis A. DiMartino and ruled that he cannot petition for reinstatement for at least two years. The sanction is the fifth against DiMartino, and the Mahoning County Bar Association charged him with violating the rules governing the behavior of Ohio lawyers while the Supreme Court was still considering his fourth report of professional misconduct.

Justice Judith Ann Lanzinger dissented and voted to permanently disbar DiMartino.

Disciplinary Cases Date Back to 1994
DiMartino was first sanctioned with a six-month stayed suspension in 1994 for violating several rules, including failing to respond to client inquiries, and failing to forward a client’s portion of settlement proceeds. In 2007, he was given a one-year stayed suspension for neglecting a client matter.

In 2010, the Court found he engaged in dishonest conduct by falsely representing on an out-of-state marriage application that he had never been married although his Ohio divorce was pending at the time. Because that misconduct occurred while his 2007 stayed suspension was in effect, the Court made its 2007 sanction an actual one-year suspension from practicing and added a six-month suspension that ran concurrently.

In 2016, the Court found he committed several acts of misconduct in two client matters and imposed an indefinite suspension with conditions that if met would allow him to apply for reinstatement. While the fourth misconduct case was pending, the bar association charged him with neglecting a client matter and failing to cooperate in the ensuing disciplinary investigation.

DiMartino Did Not File Suit for Client
In 2014, George M. Joseph paid DiMartino $1,800 to help him secure personal property he believed was wrongfully withheld by a former girlfriend. DiMartino promised to file the necessary court pleadings, but failed to take any action to help his client. He also did not respond to Joseph’s repeated phone calls and office visits, and when Joseph phoned to ask him to refund his fee, DiMartino did not comply.

Joseph filed a grievance with the bar association, and DiMartino initially failed to respond to the bar association’s letters. He later agreed to refund Joseph’s money. During the bar association’s investigation, DiMartino revealed he did not deposit Joseph’s money into a required client trust account, but instead placed the money into his general business account even though he did not complete any work on the case.

Board Recommends Indefinite Suspension
The Board of Professional Conduct, the bar association and DiMartino stipulated that he violated several rules, including failing to act with reasonable diligence in representing a client, and keeping a client reasonably informed about the status of the matter. He also did not follow the requirement of holding a client’s fund in an interest-bearing account separate from the lawyer’s own accounts, and not cooperating with a disciplinary investigation.

When considering a recommended sanction, the board noted DiMartino had been disciplined before and initially failed to cooperate, but that after the bar association filed its complaint, DiMartino cooperated and admitted to most of allegations.

The board also considered that DiMartino lacked a selfish or dishonest motive, made restitution to Joseph, and submitted numerous letters from local judges and attorneys who indicated he was an excellent attorney. It also found he had submitted sufficient evidence that he had been receiving treatment for depression-related mental disorders, and a treating psychologist suggested the grievances against him were directly related to his mental disorders.

The board suggested that the type of misconduct DiMartino committed in his representation of Joseph would typically warrant a suspension, and perhaps a stayed suspension. However, in the context of having been disciplined on four prior occasions, the board recommended an indefinite suspension with additional conditions that ensure he continues his mental health treatment. The Court agreed with the proposal.

“The underlying misconduct here is not uncommon or particularly egregious,” the opinion stated. “Yet because this is DiMartino’s fifth disciplinary case and he committed some of the misconduct while being investigating or prosecuted for his fourth case makes this an extraordinary set of circumstances.”

The Court conditioned any future reinstatement on DiMartino’s compliance with the prior conditions imposed on him in his fourth disciplinary case, his submission of proof that he continued treatment with a qualified health-care professional, complied with his contract with the Ohio Lawyers Assistance Program, and proved he completed continuing legal education in law office management, specifically in the area of client trust accounts.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined the opinion.

2016-0537. Mahoning Cty. Bar Assn. v. DiMartino, Slip Opinion No. 2016-Ohio-5665.

(Mike Frisch)

September 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Patience And Dignity Are Judicial Virtues

The New York Commission on Judicial Conduct has admonished a judge for inappropriate discourteous remarks in three matters

Respondent has acknowledged that on three separate occasions he made inappropriate statements that were inconsistent with his obligation to be "patient, dignified and courteous" in performing his judicial duties (Rules, § 100 .3 [B][3 ]).

In the Swank case, respondent's comments about an alleged victim of statutory rape were insensitive and created the appearance that he was being critical of her. In a plea discussion with counsel as the jury was deliberating, respondent told the prosecutor that he was "a little surprised" by a proposed plea that would require the defendant to register as a sex offender since the victim, who was then age 16, was "apparently not upset at the whole incident, from her testimony." (The alleged crime had occurred two years earlier.) When the prosecutor said that the point of the statute was that a 14 year-old could not consent to sexual activity, respondent commented that the victim now had a baby (fathered by a different man) and added, "She's only 16 now. So the statute didn't save her, did it ... I don't think it's going to save her."

Our system of justice is designed to protect young teenagers from sexual abuse, and such individuals must be viewed with sensitivity and respect. While respondent has acknowledged that his comments were insensitive, he avers that he made the statements in an attempt to determine whether a plea disposition might be acceptable, a discussion that had heightened significance since the possibility that the jury was deadlocked had been raised. In plea discussions, blunt statements, opinions and speculation that would be inappropriate in other contexts may be part of the process in achieving an agreement. Although such a discussion at that stage might appropriately include a frank assessment of any factors that might be relevant to the likelihood of conviction and an appropriate plea, respondent's choice of words could be perceived as a harsh, judgmental statement about a young woman who was the alleged victim of a serious crime.

Remarks to prosecutors in two matters also crossed the line

Respondent's criticism of the handling of the case involving the District Attorney's relative was especially improper since (i) that case was not before him, (ii) he seemed to have little information about the matter, and (iii) some of his information was inaccurate (the relative was not A_'s "co-defendant," as respondent stated, and was never charged with a felony). By making such comments, respondent violated his duty as a judge to be an exemplar of dignity, courtesy and neutrality.

The commission

While respondent's comments in the Swank and Johnson matters, standing alone, might otherwise warrant a confidential caution, his statements in the matter set forth in Charge III, in our view, elevate this matter to public discipline.

(Mike Frisch)

September 7, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, September 6, 2016

The Rime Of The Ancient Mortgages

A public censure was imposed by the New York Appellate Division for the Second Judicial Department based upon a consent sanction in New Jersey.

The story

The respondent represented three buyers in the purchase of residential real estate located in New York, owned by Mary Abernathy. A title search conducted by Icon Abstracts Solutions, Inc. (hereinafter Icon), of which the respondent was a co-owner, revealed three "ancient" mortgages. Consequently, the parties to the transaction agreed that Icon would hold $33,000 from the sale proceeds in escrow until the mortgages were discharged and title cleared. New York had in place a statutory framework to discharge such "ancient" mortgages of record. Abernathy, who later died, and her son retained the respondent to clear title on the property. During the course of his representation for that purpose, the respondent did not exercise due diligence, causing the unopposed action to quiet title to unnecessarily span over two years. During that time period, he refused to respond to reasonable questions posed on behalf of Abernathy's estate by her children (one of whom was her executor) and the estate's attorney. Moreover, the respondent took the position with the estate's new attorney that he "had never held any escrow monies on behalf of Mary," ignoring his principal ownership of Icon and his related fiduciary duties. Additionally, he attempted to demand payment of an additional $500 in legal fees for his "continued cooperation"—presumably the necessary instruction to Icon to disburse Abernathy's escrow funds.

In New York

The respondent has submitted a letter response dated June 3, 2016, wherein he asks for the imposition of the lightest sanction. He acknowledges that he stipulated to the above findings. Nonetheless, he wishes to note that the New Jersey disciplinary authorities were "incapable of adequately judging the pace of a Queens County adjudication," suggesting that the delay was attributable to the court system and the "glacial pace" at which it operates. The respondent concedes that he should have been more communicative with his clients. He accepts responsibility for his actions, noting in mitigation that he has practiced law for 25 years and has had "very few" complaints filed against him during that stretch of time.

Apologies to Samuel Coleridge. (Mike Frisch) 

September 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 5, 2016

The Ethics Of The F-Bomb: Provocation And "One-Off" Defenses Rejected

The Law Society of British Columbia Benchers on Review upheld a one-month suspension of an attorney for the offense of hurling an F-bomb at a police officer outside a courtroom

The Respondent was cited for being involved in a verbal altercation outside of a courtroom with a police officer who was also a potential witness in a trial where the Respondent represented a client in a criminal matter. In the altercation the police officer said to the Respondent, “Don’t for a minute think I don’t know who you are and what you’re all about,” and the Respondent replied to the officer “fuck you” in an angry and insulting manner. After a hearing the Respondent was found to have committed professional misconduct and was suspended for one month.

The attorney had sought review of both the misconduct finding and sanction.

The review standard

It was agreed by both parties that the standard of review is “correctness.” This applies to both the finding of professional misconduct and the penalty imposed.

The officer's riposte

Officer B said, “You don’t scare me, you big shot lawyer,” and he pointed out that their chests were touching. Officer B then said, “That’s assaulting a police officer”

The attorney was then handcuffed and arrested.

The Bencher majority

As for whether or not the words “fuck you” were spoken in anger, there is evidence from Crown Counsel that the Respondent became angry, and the demeanour of both the Respondent and Officer B were heated and volatile at the time they were “nose to nose” and moments later when the Respondent uttered the words “fuck you”. Accordingly, it is the view of the Majority that the words were spoken in anger, and not innocuously or harmlessly. Indeed, under the circumstances, it is clear the Respondent could not have used those words in these particular circumstances without the words being meant as an insult and spoken, no matter how loudly, in anger.

Likewise, we do not see the facts of this case as an over-aggressive police officer provoking a lawyer into uttering a verbal insult, leading to a citation from the Law Society. Although Officer B might have taken more proactive steps to diffuse the situation, we believe the Respondent had a higher duty to avoid putting himself into the position where the police officer and Mr. Johnson were “nose to nose”, leading to the expletive being angrily uttered by him.

Provocation was no defense

it does not matter if a lawyer is provoked, or whether the lawyer has reached a breaking point or if litigation is sometimes hostile, aggressive and fierce. Saying “fuck you” to a witness, another lawyer, or a member of the public in a courthouse in an angry, insulting, hostile or belligerent manner, as the Respondent did, is totally indefensible, is always a marked departure from the standard of conduct that the Law Society expects of lawyers and, therefore, always constitutes professional misconduct...

If the hearing panel erred in the use of provocation in assessing whether professional misconduct occurred, does it change the outcome? The Respondent argues that the use of the words “fuck you” are a one-off remark that should be treated as falling short of professional misconduct.

Conclusion

The determination of professional misconduct by the hearing panel is well supported by the facts of this case, and we find no error that should cause the result to be overturned. Thus we uphold the finding of professional misconduct by the hearing panel.

The majority also upheld the penalty.

A dissent from Jamie Maclaren

The findings of fact suggest that the Respondent’s profane reply was more reflexive than purposeful. It was uttered under sudden loss of self-control. I agree with the Respondent’s submission that it was a “one-off” remark that, while clearly rude and aggressive, had no ulterior motive. I also agree with the hearing panel majority’s view that the word “fuck” is not as vulgar and offensive as it used to be; the majority acknowledged that “it is used in everyday conversation harmlessly and innocuously.” Its common and denatured use now extends as far as barrister lounges, law offices, and legislature hallways. When uttered spontaneously in anger, without any accompanying threats, its meaning is largely constrained to emotional punctuation...

Courts and law society panels have repeatedly held that rude and aggressive “oneoff” remarks may not rise to the threshold of professional misconduct, particularly when unaccompanied by threats, violence or intimidation...

I find that the Respondent’s single, bald utterance of “fuck you” was provoked by Officer B’s aggressive and offensive behaviour and did not extend beyond “mere rudeness or discourtesy” under the circumstances. The Respondent uttered the profane but commonplace words without ulterior motive, in a momentary act of anger, and in a private conversation in a quiet area of the courthouse. There is no evidence of bystanders overhearing the utterance. And while Officer B was technically a potential witness in the case then nearing disposition, he had prior knowledge of the Respondent from dealings outside of the courthouse.

The Hearing Panel decision is linked here.  

The panel noted that the attorney had previously engaged in professional misconduct by arguing and coming into physical contact with a prosecutor. 

the evidence discloses that his previous misconduct and other infractions were in part fueled by substance abuse that has now apparently been resolved.

Merriam-Webster has a definition of one-off. The New York Times Magazine reported on the expression in greater depth. (Mike Frisch)

September 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tone Deaf In Saskatchewan

I have begun to delve into a new treasure trove of attorney misconduct allegations - the web pages of the various Law Societies of the Canadian provinces.

Each site I have visited so far has been wonderfully user-friendly and transparent.

The web page of the Law Society of Saskatchewan is a good example. 

The charging documents are spare and to the point, far more so than their American counterparts.

One complaint simply charges that the attorney "participat[ed] in the concealment of physical evidence so as to obstruct or attempt to obstruct the course of justice."

Another complaint alleges that an attorney (with the last name of de Whytell) provided "false, misleading or untrustworthy"  testimony as a Crown's witness in a criminal case. The name might be considered an aptronym. 

Here is a complaint recently filed against another attorney.

A news report from CBC News Saskatoon on the allegations

A prominent Saskatoon lawyer is under investigation by the Law Society of Saskatchewan for his conduct while director of the Saskatoon Legal Aid office.

George Combe was fired from the top Legal Aid job in 2013 after 13 female co-workers complained about how he treated them.

CBC obtained documents detailing the complaints.

One lawyer said Combe described her as "an idiot or a lazy ass."

Another said he referred to her as "dumber than a sack of hammers."

And another said he referred to clients in domestic violence cases as "wife beaters."

In other cases, lawyers were referred to as "witches or bitches."

Combe has since gone into private practice. The 13 complainants forwarded the results of the Legal Aid matter to the Law Society. It will investigate the matter itself and decide whether disciplinary action is necessary.

Combe referred an interview request from CBC to his own lawyer, Nick Stooshinoff.

Stooshinoff said it's important to note that these are not new allegations. He confirmed that Combe had been fired from Legal Aid, and he did not dispute the substance of the complaints.

"It is nothing particularly new, it's simply a different forum or venue to try to take proceedings against Mr. Combe," he said.

"The nature of the complaints don't necessarily call into question his competence as a lawyer, or that he has engaged in any unethical conduct. It touches on his other interpersonal relations."

Combe worked at Legal Aid from 2006 to 2013.

The complaint alleges that the attorney sexually harassed a co-worker and engaged in multiple interactions that were "abusive, offensive or otherwise inconsistent with the proper tone of a professional communication with a lawyer." (Mike Frisch)

September 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Amended Charges For Attorney's Vigorous Self- Representation

A Hearing Panel rejected an attempt by the Nova Scotia Barristers' Society to add charges against an attorney for alleged misconduct in defending himself in a hotly contested disciplinary hearing

A hearing before a Professional Responsibility Hearing Panel, regardless of the potential outcomes for the member under charge, is not an ethics-free zone. There is no ethical immunity for an advocate. There are legitimate restrictions on the scope of appropriate advocacy in order to preserve the integrity of the professional responsibility process. A lawyer is required to demonstrate integrity in all of his dealings with tribunals and other members of the profession: Rule 2. A lawyer is required to act with courtesy and good faith “with all persons with whom the lawyer has dealings in the course of his or her practice”: Rule 7.2-1.

But

Unethical advocacy has to involve something more than being in the full flight of oratory and over-shooting the mark when challenging a witness on cross examination. It has to be something more than “mere rudeness or discourtesy”: Dore c. Barreau du Quebec, 2012 SCC 12, at para.61. Offensive language, or apparently impertinent queries, or arguments that depend on breath-taking logic, or poor judgment, do not necessarily demonstrate any ethical misconduct on the part of an advocate: e.g., Visic v. Law Society of Upper Canada, 2013 ONLSHP 71, at paras.146, 152 - 154.

The accused attorney had made disparaging remarks about judges and prosecutors who were labeled as liars

Frankly, this is fairly mild stuff when one considers the sharp and harsh conclusions that Crown Prosecutors, Defence counsel, and Judges regularly express about witnesses, victims of crime, children, police officers, and experts during the course of advocacy in the criminal courts. We must remember that the Society is complaining about Mr Howe being disparaging of lawyers as witnesses, not as his legal adversaries in the proceedings before us – where we have noted his continuing efforts at maintaining a high level of civility. And we must add this: the validity or persuasiveness of Mr Howe’s description of these people has still not been decided.

And had asked pointed questions on cross

We have heard many lengthy cross-examinations in this matter. We have heard many questions put to witnesses on cross-examination to which the witnesses have expressed disagreement or denial. Mr Howe is stuck with those answers on issues which are collateral. On other issues, Mr Howe is entitled to provide his own competing or complementary version of events. For the Society to ask us to make a decision that we should amend the charges to include instances where they feel that there is no evidence yet to support Mr Howe’s questions on cross-examination, or where the Society believes that there is evidence that runs contrary to Mr Howe’s stated position, is to put the cart before the horse.

The Society’ position unfortunately amounts to this. The Society appears to be asking us to endorse their threat of a charge of professional misconduct to chill Mr Howe’s choices about how he conducts his cross-examinations based on three instances where the Society feels that he went over the line of propriety in questioning a witness. Even if that is not the Society’s purpose, that is certainly a risk of this kind of amendment request. The Society appears to be asking us to tell Mr Howe that it is only legitimate to ask questions on cross-examination relating to an issue already covered in evidence, and which do not challenge the fundamental accuracy of the evidence already before the Panel.

In sum, no amended charges based on in-hearing conduct

If we were to allow the Society, with its substantial resources, to assert misconduct against a young, fairly inexperienced litigator based on approximately 8 alleged litigation errors over the course of approximately 30 hearing days, that would be intimidating to the lawyer who is defending himself. It would also create the appearance that one side in the process could control the kind of defence that the defendant lawyer would be permitted to mount. The risk of chilling the self represented lawyer from his full and vigorous defence of himself out of fear of new charges is too great to allow the requested amendment here. The Society is absolutely free to engage its Complaints Investigation Committee to do its proper work now, or later, to decide whether further charges against Mr Howe are warranted.

The pleadings in the disciplinary case are linked here. 

An order suspending the attorney (reported by the New Breton Post) was entered on September 1, 2016.

CBC News Nova Scotia covered the disciplinary hearing. (Mike Frisch)

September 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, September 4, 2016

Words Fail

A Hearing Panel of the Law Society of British Columbia found these words to describe how words could not describe an attorney's practice in the course of finding misappropriation and other entrusted funds irregularities

The Panel begins with an appreciation that the state of the financial records of the Respondent at all material times was beyond description. The English language has insufficient adjectives to pay proper respect to the mess that was the financial records of the Respondent for the period of time from the commencement of the private practice to the date of the completion of the Law Society visits to gather records and information.

The record of these proceedings establishes that the Respondent successfully completed the Small Firm Course on two occasions. In this result, two possibilities emerge for consideration. Either the Course is ineffective and easily passed without comprehension or the Respondent had assistance with the testing sections of the course to establish a passing status. The anecdotal evidence available to the Panel disproves the first option.

What is manifestly clear to the Panel is that the substantive information intended to be communicated in the Course to prospective or actual small firm practitioners did not make it from the Course to the knowledge of the Respondent. During the material time covered by the citation, there are simply far too many specific examples of a blatant misunderstanding by the Respondent of the foundations of elementary trust accounting practices to accept the premise that the Respondent understood his trust accounting obligations. He did not.

As a consequence

For example, after many months of engagement with the Law Society on these trust accounting issues, all the while being chastised for financial misbehaviour, the Respondent provided a trust cheque to a client when he had no money in trust to cover it. This approach was adopted by the Respondent on the basis that the client had apparently agreed to await advice from the Respondent as to when the trust cheque could be cashed.

This substantially unconventional approach to trust account management was adopted by the Respondent because the client was a single mother without convenient transportation to the Respondent’s office and the Respondent expected the covering funds would be provided by an Alberta lawyer in the near future. Contrary to arrangements made with the client, the trust cheque was cashed before the covering deposit was made. The trust account was overdrawn.

There are many such examples of similar mistakes made leading to trust shortages. There are equally numerous examples of continuing breaches of Law Society accounting rules. It is clear to the Panel that the Respondent was challenged to find appropriate financial record-keeping assistance in the early years of his practice. Resources were scarce and the skill level of bookkeeping staff did not meet minimum expectations. Many, many mistakes were made.

The horror

The trust account behaviour evidenced by the Respondent over the time period described in the citation is nothing short of deplorable. The events describe a horrific time period in the practice of the Respondent where, with respect to the trust account, almost nothing was done properly.

We find that, taken as whole, the conduct of the Respondent represents a manifestly marked departure from conduct the Law Society expects of lawyers. Accordingly, we confirm that the behaviour of the Respondent, in the circumstances described in the Notice to Admit and as acknowledged by the Respondent with his admissions, constitutes professional misconduct.

That is however, not the end of the analysis. The Law Society seeks a finding of “misappropriation,” and the Respondent categorically disputes that allegation. It is important to determine if the behaviour of the Respondent amounts to “misappropriation,” as that determination will impact upon the nature and extent of any penalties to be imposed upon the Respondent. This will be the final determination of significance, since virtually all other components of the multicount citation were admitted.

The panel defined misappropriation and concludes

We believe that the circumstances of the Respondent are unique. He is clearly guilty of negligence and gross incompetence in the conduct of the financial aspects of his practice. So comprehensively inept is he that it may not be appropriate to characterize his behaviour as negligent. Negligence suggests that there has been dereliction of a duty owed. That characterization requires there to be an understanding of an initial duty that is owed. Nothing in the evidence before us suggests that the Respondent was aware of the duty owed to clients in the financial administration of his practice.

We American lawyers can learn from the Canadian word choices to describe the self-regulatory process. Woe betide the lawyer who gets a "visit to gather records and information" from the Law Society. (Mike Frisch)

September 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Should Be Disbarred; Recovery From Severe Opioid Addiction Not Considered

A Louisiana Hearing Committee has recommended that an attorney who had stolen nearly $40,000 from his law firm be disbarred notwithstanding his progress in recovery from a severe opioid addiction

The evidence presented to the committee establishes that Respondent was addicted to opioid medication, has been sober since June 2015, and is well equipped with the tools needed to manage his sobriety moving forward. The committee was impressed by the friends and family members who testified on Respondent’s behalf, and is confident that Respondent has the support structure in place around him to help maintain his sobriety.

All of the evidence presented to this committee was that, prior to developing a severe opioid addiction in late 2012, at age 32, Respondent was respected for his character, integrity and professional skills. There was no evidence presented that, prior to developing the opioid addiction, Respondent had any previous substance abuse or addiction problems.

While addiction recovery is a “day by day” process, all of the evidence presented suggests that Respondent has a high likelihood of maintaining his sobriety. His recovery program at Palmetto was specifically focused on professionals returning to work, and, through the JLAP program, he has on-demand access to high-quality treatment options. Though, at the peak of his addiction, Respondent was consuming shockingly high doses of opioids, it does not appear to the Committee that the specter of his prior addiction, if managed properly, presents a significant danger to the public or the profession.

However, the committee finds that the thefts committed by Respondent, though done in the midst of a severe addiction, were executed knowingly, over an extended period of time, and with significant planning and forethought.  Respondent stole a total of $39,085.86 in eleven separate acts. It was Respondent’s specific business and professional knowledge and skill that allowed him to commit these thefts and, for a time, conceal them from his employer and clients...

It is clear that, for the better portion of the last few years, Mr. Abdalla was a fully ensnared opioid addict, but this Committee finds that there was not sufficient evidence presented to show “direct causation between” his chemical dependency and the misconduct for which he has been charged...

While, in the instant matter, some friends and family testified that Mr. Abdalla was a different man during his addiction, and not someone who would be expected to steal under normal circumstances, Respondent did not present expert testimony that his disability was the cause of the misconduct. Though he may have used the money taken to support his addiction, that fact is not necessarily proof that the addiction caused his misconduct. Respondent knew that what he was doing was wrong and he used various, sophisticated methods to accomplish his criminal acts over an extended period.

I was the disciplinary prosecutor in the first addiction-as-mitigation case in the District of Columbia.

I confess that I am a bit uncomfortable with the "all or nothing" approach to such mitigation evidence.

The D. C. Court of Appeals held that concerns about ongoing recovery in a case that involved bipolar disorder merited rejection of mitigation in light of the care required to execute a dishonest scheme.

We are...troubled by the fact that respondent carried on a complex course of misconduct for a period of some five years. During that entire period, none of respondent's co-workers and employees knew he had any type of illness, let alone suspected misconduct. Respondent's own wife told Dr. Kraff that she'd had no idea what had been going on and, indeed, was shocked to learn of her husband's billing misconduct. It is therefore not a frivolous concern that should respondent suffer a relapse, he could resume his misconduct and cause significantly more harm before he is found out once more...

We are not without sympathy for Mr. Appler; at least for the time being, his bipolar condition will prevent him from continuing to practice law.  But respondent is not being disbarred because he suffers from bipolar illness; he is being disbarred because that illness caused him to commit serious, damaging crimes in the past, and we are not convinced that it will not likely cause him to commit similar crimes in the future. Therefore, even though our purpose is not to punish, we, unfortunately, cannot put our sympathies for an attorney's medical condition above the interests of the public at large.

A footnote in the Appler case noted he also had a narcissistic personality disorder

This distinction is important. Bipolar illness takes away some degree of control and thus, in the right circumstances, could be cause for mitigation. A person suffering from narcissistic disorder maintains the ability to exercise volition and thus would seem to have a harder time raising a Kersey defense. See HCP 3/25:156-57. Because we ultimately find that bipolar disorder was a substantial cause of the misconduct in this case, however, we need not reach the issue of whether narcissistic personality disorder can be grounds for Kersey mitigation.

If and when a court concludes that lawyer sanctions are mitigated by narcissism, we can pretty much stop disbarring lawyers and place them all on probation.

How does one demonstrate recovery from narcissistic personality disorder? (Mike Frisch)

September 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 3, 2016

Not A Gray Area

Sex with a client drew a suspension without possibility of reinstatement for 30 days from the Iowa Supreme Court.

An Iowa attorney engaged in an intimate relationship with one of her clients whom she was representing in several criminal and civil matters. When their relationship was discovered, the attorney self reported her conduct and withdrew from representation of the client. The Iowa Supreme Court Attorney Disciplinary Board charged her with violations of Iowa Rules of Professional Conduct 32:1.8(j) (sexual relationship with a client) and 32:8.4(d) (conduct prejudicial to the administration of justice).

The attorney had represented the client in various matters before he was arrested on federal charges. The relationship came to light during the criminal investigation.

On March 6 and 9, [client] Doe made monitored and recorded phone calls from the jail to [attorney] Johnson. A few days later, FBI agents appeared at Johnson’s law office. They asked about her relationship with Doe. Initially, Johnson said, “He is my client, we are friends, we go out to lunch and to [Alcoholics Anonymous] meetings.” The FBI agents indicated they did not believe this statement. They told Johnson that jail personnel from the Polk County Jail had seen Johnson and Doe’s interactions and listened to the recorded phone calls between them. Based on these observations, the jail officials had come to believe that Johnson and Doe maintained a personal relationship and had notified the FBI of their suspicions. The FBI agents told Johnson they were concerned that her relationship with Doe could threaten the safety of their [confidential informant]. Johnson then admitted that her relationship with Doe was “more than attorney/client/friend.” The agents told Johnson she would no longer be allowed unrestricted access to Doe at the jail. Johnson did not object. The agents also advised Johnson that the gang to which Doe allegedly belonged was very dangerous. Johnson agreed to inform the FBI if she learned anything that might jeopardize the safety of their CI. She later sent several text messages to the FBI about information she received.

On March 12, Johnson received a letter from the Jasper County Attorney’s office asking her to withdraw from Doe’s four pending criminal matters because of a “personal conflict.” The letter also requested she abstain from representing Doe in any future criminal cases. Johnson responded by agreeing to withdraw after informing Doe. That same day she contacted Doe and told him she would be withdrawing from his pending criminal and civil matters. Johnson filed motions to withdraw in all six cases. Johnson arranged for another attorney to take over Doe’s civil cases pro bono. The court appointed new counsel for Doe in the criminal matters on March 24. 

Johnson admits she violated rule 32:1.8(j). The Board and Johnson stipulated to the fact that Johnson and Doe began an intimate relationship in January 2014, well after Johnson commenced her representation of Doe in several matters. This relationship does not meet either exception to the rule—i.e., it did not predate the initiation of the client–lawyer relationship, and Doe is not Johnson’s spouse.

The court on sex with a client

When considering alleged violations of this rule and its precursor, we have repeatedly stated that “[p]rofessional responsibility involves many gray areas, but sexual relationships between attorney and client is not one of these. Such conduct is clearly improper.” Morrison, 727 N.W.2d at 118 (quoting Furlong, 625 N.W.2d at 714); see also Monroe, 784 N.W.2d at 790 (“There is no gray area with respect to the prohibition of such conduct, no nuance subject to differing interpretations.”); Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 703 (Iowa 2006).

There were mitigating factors

 Johnson has sought counseling to address certain mental health issues that may have contributed to her misconduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Stoller, 879 N.W.2d 199, 221 (Iowa 2016) (“[We] consistently recognize seeking mental health or other substance abuse treatment as a mitigating factor.”). And although the facts of this case illustrate the potential dangers that can arise when a criminal defense attorney develops too close a relationship with an incarcerated client who is charged with serious crimes, there is no evidence here that anyone suffered harm as a result.

The attorney initially had represented the client as court-appointed counsel in a child in need of assistance matter and thereafter rendered legal services on a pro bono basis.

The Des Moines Register reported on the disciplinary matter .  (Mike Frisch)

September 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 2, 2016

Disbarment Proposed For Shoplifting Hair Dye

An attorney who engaged in retail theft and failed to participate in the disciplinary response should be disbarred, according to a recent report and recommendation of a Louisiana Hearing Committee. 

The property taken was hair dye valued at $7.29. 

The committee noted that the attorney's theft conviction was a specific intent crime. 

The attorney had been disciplined in the past and placed on probation

LaMartina I demonstrated that respondent was convicted of unauthorized access to a public school and resisting arrest, stemming from a series of incidents in which she entered the campus of her son’s middle school without authorization from school officials. Following her conviction, which occurred prior to her admission to the Louisiana bar, respondent was placed on probation and ordered to stay off the premises of any public school in St. Tammany Parish. She was also required to pay a monthly supervision fee of $50 while she was on probation. Thereafter, in 2007, respondent violated the conditions of her criminal probation by going onto the campus of an elementary school in St. Tammany Parish without authorization and by failing to pay her monthly supervision fee.

Details of the school premises conduct

The testimony at respondent's criminal trial revealed that, on one occasion, respondent entered TMS after school hours and asked a custodian to open the door to her child's classroom so she could obtain evidence against the teacher to prove the teacher was lying about her child's behavior in class. Further testimony revealed respondent entered the playground area without permission and asked another student to get off of a swing so her child could swing.Her child's teacher testified that respondent walked her child to the classroom almost every morning after class had already started. The teacher also testified that, two or three times a week, respondent would call her into the hall to talk while class was in session. Furthermore, during a parent-teacher conference, respondent physically threatened the teacher by charging at her across the table because she did not agree with the grades the teacher had given her child. She also called the teacher a liar.

The court revoked probation in part because of an unrelated shoplifting

The ODC also suggests that respondent’s probation should be revoked as the result of her arrest for shoplifting. The board agreed, based upon the panel’s finding that the testimony of Target’s employee, Ms. Luke, was credible and consistent with the security video introduced into evidence by the ODC. In light of the testimony and documentary evidence in the record, we cannot say this finding is clearly wrong. See In re: Bolton, 02-0257 (La. 6/21/02), 820 So. 2d 548 (“Although this court is the trier of fact in bar disciplinary cases, we are not prepared to disregard the credibility evaluations made by those committee members who were present during respondent’s testimony and who act as the eyes and ears of this court.”). Therefore, we find respondent’s commission of the criminal act of shoplifting forms an additional basis for the revocation of her probation.

In sum, respondent has knowingly disobeyed an obligation under the rules of a tribunal, in violation of Rule 3.4(c) of the Rules of Professional Conduct, and has engaged in criminal conduct, in violation of Rule 8.4(b). Accordingly, she has committed additional misconduct during the period of her probation in LaMartina I, warranting the revocation of her probation and the imposition of the previously deferred one year and one day suspension.

 (Mike Frisch)

September 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Pro Hac Admission No Cure For Administratively Suspended Attorney

An attorney admitted to practice in Missouri and Kansas allowed his active license in Kansas to lapse. 

His subsequent participation in two Kansas matters was deemed to constitute unauthorized practice notwithstanding his pro hac vice admission in both cases.

More important than respondent's stipulation, clear and convincing evidence shows that his conduct violates the plain language of the two rules—i.e., practicing law while on a suspended license constitutes the unauthorized practice of law. In 1990, respondent went on inactive status in Kansas and then, in 1996, failed to pay the inactive fee. Due to his failure to pay the fee, this court ordered an administrative suspension of his license. In 2003 and 2009, respondent called the office of the Clerk of the Appellate Courts to learn what steps he could take to reinstate his license. But he failed to complete the necessary steps. Respondent's administrative suspension qualifies as a suspension for Rule 218(c)(1) purposes. See In re Thompson, 301 Kan. 428, 433, 343 P.3d 108 (2015) (an administrative suspension was sufficient to constitute a violation of Kansas Supreme Court Rule 218 for failure to notify clients, opposing counsel, and the courts of a suspension).

Respondent claims that despite his administrative suspension, he did not engage in the unauthorized practice of law because he was authorized through his pro hac vice admissions. In 2012, respondent submitted two applications to appear pro hac vice on behalf of two separate clients. On both applications, he failed to list his Kansas bar admittance, inform the court his license to practice law in Kansas was not in good standing, or inform the court his license in Kansas was on administrative suspension. Subsequently, respondent was admitted pro hac vice in both cases.

The panel merely found respondent's pro hac vice admission invalid: "Respondent obtained admission pro hac vice improperly as the respondent was not eligible for admission pro hac vice." The Disciplinary Administrator correctly points out that, under Kansas Supreme Court Rule 116 (2015 Kan. Ct. R. Annot. 222), only out-of-state attorneys who are not admitted to practice in Kansas are eligible for pro hac vice admission. That rule states: "An attorney not admitted to practice law in Kansas may be admitted on motion to practice law in a Kansas court or administrative tribunal—for a particular case only[.]" In the instant case, respondent was admitted to practice law in Kansas and therefore could not be admitted pro hac vice.

The Kansas Supreme Court imposed a 60-day suspension for the misconduct.

Respondent's violations and the record both reveal he acted with knowledge. But respondent argues he was acting negligently when he applied for pro hac vice status. He contends at the time of his application he believed he was not suspended in Kansas, but simply on inactive status. This argument fails for two reasons.

First, the record indicates that respondent had actual knowledge of his suspension. Twice he received letters from this court specifically informing him of his suspension and the procedure for reinstating his license. And twice he called the court's clerk to inquire how to reactivate his license. Even with this knowledge, he still submitted two pro hac vice admissions where he failed to include his Kansas suspension, as required by the application.

Second, the argument that he negligently believed he was inactive in Kansas does not explain his failure to include his Kansas bar admission on the verified application for pro hac vice admission. The application required respondent to list all "[b]ars to which the applicant is admitted, the dates of admission, and the applicable attorney registration number(s)." Even if respondent had acted under the belief he was simply on inactive status, he was still a lawyer admitted to the Kansas bar and listed as such with the Office of Attorney Registration...

Considering both the panel's findings and our legal conclusions, a majority of the court holds that respondent is to be suspended from the practice of law in the state of Kansas for a period of 60 days. A minority of this court would impose a greater sanction.

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

September 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Detrimental Reliance

The Maine Board of Bar Overseers has imposed an agreed-to reprimand of an attorney for deficient performance in an appeal.

This complaint matter was initiated on a sua sponte basis by Bar Counsel Davis under Maine Bar Rule 2(b)(2), as a result of the Maine Law Court’s decision in Estate of Mildred Maccomb, 2015 ME 126, issued on September 22, 2015 (see attached Exhibit 1).

Within its decision in Maccomb, the Law Court noted and discussed Attorney Robinson’s repetitious failures to properly comply with and follow the Court’s Maine Rules of Appellate Procedure in the appeal by his client (James Richman) of the Kennebec County Probate Court’s Judgment regarding the probate of the Estate of Mildred Maccomb. The Law Court issued two dismissals of Richman’s appeals, each due to Attorney Robinson’s failure to follow those appellate rules. Through Attorney Robinson, Richman then sought reconsideration of the Law Court’s rejection of his second brief. In its Order of July 30, 2015, the Law Court included an entry that specifically “Rejected” Richman’s brief (filed by Attorney Robinson), and then ordered that an amended brief, “with correct citations to the record,” must be filed for that matter to properly proceed.

When Attorney Robinson then filed Richman’s second amended brief, the pro se Appellee filed a motion requesting the Law Court reject that still deficient brief. In &para 5 of Maccomb, the Law Court specifically referenced and quoted from Attorney Robinson’s stated opposition to that motion:

“…counsel (Attorney Robinson) has struggled mightily with the Brief and this Amended Brief, as he double checked for accuracy citations and law as they relate to the body of the Brief, putting too much effort still into substance rather than form, given the Court’s Order.”

In fact, however, from Bar Counsel’s investigation of this grievance matter, he learned that Attorney Robinson had actually enlisted another attorney, Andrews B. Campbell, to make those corrections to the brief. Furthermore, with no specific reason provided, Attorney Robinson reported to Bar Counsel that he “had very little time left to review the legal and record citations, to make sure that Attorney Campbell had corrected them appropriately.”

As a result, Attorney Robinson now agrees that above-quoted statement included by him within his opposition filing (as cited by the Law Court) was a misrepresentation by him to the Law Court in violation M. R. Prof. Conduct 3.3(a); 4.1(a); and 8.4(a)(c)(d). He also agrees that he acted in an incompetent manner by repeatedly failing to follow the Law Court’s appellate rules, in violation of M.R. Prof. Conduct 1.1 and 3.4(c).

A lesson here might well be not to rely on the efforts of a disbarred and reinstated lawyer.

Indeed, the Portland Press Herald reported on Campbell's more recent ethics travails.

A once-disbarred lawyer is back before a disciplinary panel of his peers on separate complaints that he failed to adequately represent two clients, including an allegation that he was improperly added as a beneficiary in an elderly client’s will.

Andrews Campbell, 72, of Bowdoinham has been the defense attorney in some high-profile trials in Maine, including the defense of Raymond Bellavance Jr., who was convicted of setting fire to the Grand View Topless Coffee Shop in Vassalboro in 2009.

The disciplinary petitions filed by the Board of Overseers of the Bar accuse Campbell of misconduct and multiple violations of the Maine Code of Professional Responsibility.

Campbell denies he committed any violations of the code, or if he did, “such violation was inadvertent and did not do harm to any client or the public,” said a filing by his attorney, Justin Andrus.

Campbell said by email: “To my best knowledge, neither (petition) has merit. Beyond that I do not believe further comment would be appropriate at this time.”

Reached by phone Thursday, Andrus said he does not comment on active cases.

One charge says Campbell failed to properly protect the late Mildred D. MacComb of Pittston and her interests.

“Instead Campbell’s actions placed MacComb, her property and her finances at risk,” the petition says. It is based on a complaint filed by Catherine A. Gero, a relative of MacComb.

It cited MacComb’s wills, which Campbell drafted in 2005 and 2006 and which included him as a beneficiary. The 2005 will, filed in Kennebec County Probate Court, lists Campbell as an alternate beneficiary of her sheep and as the recipient of a two-acre parcel she owned in Pittston.

The petition also says Campbell at the same time permitted James A. Richman, a registered sex offender, to move in with MacComb and drafted a document giving Richman a life interest in MacComb’s house.

A 2007 will gives Richman MacComb’s home and land on Mountainview Lane in Pittston, as long as he continued to care for her.

The complaint also says Campbell signed to allow a timber company to drill on property that MacComb had an interest in, yet she received none of the proceeds.

There is a 1998 will as well, heavily marked up in blue ink, each change initialed “MM.” MacComb died in 2010 and a trial in probate court on the three later wills is set for May 9.

A claim by Richman, for $24,000 for care-taking duties, has been rejected by MacComb’s estate. That claim was filed on Richman’s behalf by Campbell.

Attorney Stephen Langsdorf, who was appointed to handle MacComb’s estate, said Wednesday via email that the estate is insolvent. “I am trying to get whatever value there is for creditors,” he said. “We have had a very difficult time serving all the necessary parties.” Notes in the probate file indicate that several heirs listed in the wills are deceased.

Campbell “denies acting in a manner that failed to protect Ms. MacComb or her interests,” according to filings by Andrus. It also says Campbell took direction from MacComb.

The second petition brought by the overseers’ board is based on a complaint that Campbell failed to properly represent Matthew M. Fleury, who is currently serving a lengthy prison sentence on 112 convictions in July 2007 for gross sexual assault, unlawful sexual contact and sexual abuse of a minor over a four-year period.

That petition says Campbell drafted a promissory note in May 2006 requiring Fleury to pay two other clients of Campbell $12,000: “It was an improper conflict of interest for Campbell to be the attorney advocate for (the other two clients) in their adversarial financial transaction with Campbell’s then current criminal client, Fleury.”

It also says Campbell failed to get proper consent for the simultaneous representation, and that Campbell confirmed Fleury’s indigency when Fleury applied for a court-appointed lawyer in criminal proceedings.

Campbell denies those allegations as well, saying the financial transaction was not adversarial to Fleury and that he offered Fleury an opportunity to get independent counsel.

The tall, affable, and occasionally rumpled Campbell has represented a number of high-profile defendants in criminal court.

One of the most unusual cases brought Campbell his first reprimand from the Board of Overseers – in 1987 – for his actions a year earlier in defending Dennis Eugene Friel, who was accused of defacing 30 churches and a town hall during the summer of 1983. Campbell insisted he was following his client’s directions by standing mute and refusing to cross-examine the state’s witnesses at Friel’s jury trial. The judge declared a mistrial, and later the charges against Friel, who has since died, were dismissed.

Campbell was suspended and finally disbarred following his 1987 conviction in U.S. District Court in Maine for marijuana distribution. He was reinstated conditionally in 1999 and fully in 2001.

Campbell was reprimanded again for his professional conduct in 2006 and 2010. A hearing in the new case is set for 9 a.m. April 29 before a panel of the Grievance Commission of the Board of Overseers of the Bar in Cumberland County Superior Court.

Among the other high-profile cases handled by Campbell was his defense of Olland Reese, convicted of the 2002 murder of 16-year-old Cody Green of Bowdoin.

In 2007, Campbell represented Fern Clark of Somerville, convicted by a judge in Lincoln County Superior Court of 15 counts of animal cruelty, but cleared of aggravated cruelty to animals.

Campbell’s website, 207legal.com;http://207legal.com, boasts Campbell’s own accomplishments in “cases in which the defendant prevailed notwithstanding counsel having been jailed in the middle of trial for overly aggressive conduct, and won at trial level even when the jury came in with a guilty verdict.”

I handled Andrews Campbell's D.C. disbarment for a criminal conviction

The Board concluded the respondent's conviction for unlawful possession, with the intent to distribute, of a controlled substance (marijuana) involved a crime of moral turpitude and ordered the statutory disbarment. Respondent contends that his due process rights were violated by the denial of an evidentiary hearing and that the offense for which he was convicted does not involve a crime of moral turpitude. Consistent with decisions that are binding on this division, M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971), we hold that respondent's due process rights were not violated, In re Colson, 412 A.2d 1160 (D.C.1979) (en banc), and that he was convicted of a crime of moral turpitude, see In re Roberson, 429 A.2d 530(D.C.1981), and, therefore, must be disbarred.

Campbell had appointed counsel from an obscure law firm known as Williams & Connolly. Both attorneys - Bob Litt and Robin Jacobsohn - have gone on to notable careers in  public service. (Mike Frisch)

September 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

New memoirs by Barbara Babcock and William Norris tell life stories in the legal profession

[Posted by Alan Childress] As part of my Quid Pro Books project, announced first here in 2010 (has it been that long?!), we've released two compelling autobiographies. Judge William Norris wrote the prescient opinion striking down the ban on gays in the military (almost three decades before marriage equality), but also shares his time before and after serving on the Ninth Circuit. Judge Alex Kozinski blurbs:

Recounted in this remarkable book is a conversation Bill Norris had with Justice White following his opinion for the Supreme Court in Bowers v. Hardwick, upholding Georgia’s sodomy law. Shortly after, Justice White visited the Ninth Circuit Judicial Conference and Bill confronted him about the injustice of the decision. I witnessed the interaction. No one else was bold enough to challenge the Justice, though others harbored the same doubts. Justice White shrugged off Bill’s concerns as trivial, but Bill stood firm and I could see from his tone and look that he would have none of it. Soon, Bill set about undermining Bowers with his brilliant opinion in the Perry Watkins case. The theory in Watkins resulted, a decade and a half later, in the overruling of Bowers and, eventually, to marriage equality. This story, among many others, makes this personal history a gripping and fulfilling read.

Here's its link at Amazon and B&N, and also our informational page with more links and info. Cover

The other new release is by Barbara Babcock--the first woman law prof at Stanford, the first director of the D.C. Public Defender, and one of the first Asst. AG's at the Justice Department. Her life of "firsts" includes candid reflections on a tough childhood, her emergence (somewhat reluctant or naive) into feminism, and her biographical authorship on Clara Foltz. And she answers "How can you defend guilty people?" Blurbist Dahlia Lithwick writes:

Life will afford you no better sherpa on the extraordinary journey women have taken in the legal profession than Barbara Babcock. This book should be required reading for anyone who isn’t certain that they have a place at the lawyers table. Babcock’s amazing life has made a space for so many of us. Her story will do the same.

Our information page has info and links, and it's new at Amazon and B&N, etc. Thanks.

September 2, 2016 in Books, Childress, Judicial Ethics and the Courts, Lawyers & Popular Culture | Permalink | Comments (0)

Not A Client

It's a new school year and Professional Responsibility professors everywhere are teaching students the elements that establish an attorney-client relationship.

As the Preface to the ABA Model Rules notes

for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.

Thus, a decision issued yesterday by the Maine Supreme Judicial Court affirming the dismissal of a legal malpractice action is a timely one.

The purported representation related to a medical practice dispute where the attorney (Duddy) clearly represented one side in negotiations with its chief executive officer Savell.

The [lower] court found that Savell failed to adduce evidence that he had “sought legal advice or assistance” from Duddy, thereby failing to satisfy the first prong of the Mangan test. Mangan, 2001 ME 7, ¶ 9, 763 A.2d 1189; see also Oceanic Inn, Inc. v. Sloan’s Cove, LLC, 2016 ME 34, ¶ 26, 133 A.3d 1021 (“The nonmoving plaintiff . . . must make out a prima facie case for its claim.”). Savell argues on appeal, as he did in the trial court, that the series of email exchanges between himself and Duddy amounted to prima facie evidence of an attorney-client relationship.

Savell contends that the first prong of the Mangan test is satisfied because “[i]n every email [he] reiterated to Duddy his request for payment” and therefore he “repeatedly asked Duddy for assistance.” The summary judgment record shows that Savell indeed made various requests and demands of Duddy. For instance, in his October 9 email to Duddy, Savell made the demand, “I want my [$]187[,]402 paid directly to me”; Savell’s October 11 email states, “I would like to have my share of the net proceeds received and placed in escrow after [SMP’s] closing. . . . Thank you for your anticipated cooperation”; and Savell’s October 14 email tells Duddy that he is “requesting that EMMC’s legal [counsel] be made aware” that he wanted the money placed in escrow.

Contrary to Savell’s contention, however, the uncontroverted email exchanges show that Savell did not seek legal advice or assistance from Duddy. As opposed to asking questions of or voicing concerns to Duddy in an effort to seek legal advice or assistance, Savell simply sought to use Duddy as a vehicle, in his capacity as an attorney for SMP and SPC, to relay his conviction that certain escrowed funds were due him. Requests or demands that an attorney obtain his client’s acknowledgement of a claim for monies owed by the client to the claimant do not by themselves constitute the seeking of legal assistance within the purview of Mangan, and do not give rise to an attorney-client relationship.

The court also declined to impose liability on other grounds

Savell argues, in the alternative, that even if he was not Duddy’s client, Duddy owed him a duty as a nonclient based on the multifactor third-party beneficiary test that we adopted in Canders, 2014 ME 133, ¶ 16, 105 A.3d 439. The multifactor balancing test involves analysis of the following six favors: “(1) the extent to which the transaction was intended to benefit the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury; (5) the policy of preventing future harm; and (6) the extent to which the profession would be unduly burdened by a finding of liability.” Trask v. Butler, 872 P.2d 1080, 1084 (Wash. 1994); see also Canders, 2014 ME 133, ¶ 16, 105 A.3d 439 (adopting the multifactor third-party beneficiary test created by the Trask court).

Because Savell notes in his statement of material facts that Duddy represented SPC and SMP, and because Duddy’s representation of Savell individually would have given rise to a conflict of interest with Duddy’s other clients, Duddy could not have owed Savell a duty of care as a nonclient.

(Mike Frisch)

September 2, 2016 in The Practice | Permalink | Comments (0)

Must A Convicted Attorney Confess To Get Reinstated? Ask Alger Hiss

Must an attorney convicted at a criminal trial admit guilt to secure reinstatement from the ensuing disbarment?

No, according to a 2012 reinstatement decision of the District of Columbia Court of Appeals.

The crime

In 2000, a Virginia jury convicted Mr. Sabo of attempted malicious wounding, a felony, in violation of Va.Code §§ 18.2–26 and 18.2–51 (1994). The conviction was upheld by a divided panel of the Court of Appeals of Virginia. Sabo v. Commonwealth, 38 Va.App. 63, 561 S.E.2d 761 (Va.2002). Mr. Sabo served twelve months in prison and paid a fine of $1,628. Mr. Sabo conceded that the crime of which he was convicted involved an act of moral turpitude and, in 2003, consented to disbarment. In re Sabo, 828 A.2d 168 (D.C.2003) (per curiam).

The jury heard evidence that Mr. Sabo cut the brake lines of a vehicle owned by his former girlfriend, Heather Nicole Lawrence, days after she ended their relationship. When Ms. Lawrence next drove her vehicle, she lost control and hit a fence, a low brick wall, and a tree. No one sustained injury. From trial through this reinstatement proceeding, Mr. Sabo has maintained his innocence.

The Washington Post had a story on the criminal charges

An Arlington grand jury yesterday indicted Kevin Sabo, a member of the Commonwealth Transportation Board and a Republican Party activist, on a charge of attempted malicious wounding.

Police allege that Sabo, 37, a former congressional candidate who also served as general counsel to two congressional committees, cut the brake lines on an Arlington woman's car, causing her to crash the vehicle into a fence.

The woman, identified in court papers as Heather Lawrence, was driving her 1997 Volkswagen Jetta on Brookside Drive about 9:26 a.m. March 17 when she realized her brakes weren't working, police said. She was approaching the busy intersection with Washington Boulevard and veered off the roadway and struck a fence, they said.

Police said Lawrence, described as an acquaintance of Sabo's, was not injured but that her car was damaged. Sabo waived his right to a preliminary hearing, and the case was sent straight to the grand jury. In a previous interview, Sabo denied the allegations.

The Virginia Court of Appeals affirmed the resulting conviction with a dissent.

The attorney had sought reinstatement and received an unfavorable Board on Professional Responsibility recommendation.

Inexplicably, Disciplinary (then Bar) Counsel then supported summary reinstatement, thereby bypassing the BPR.

The court majority concluded that confession may be good for the soul but is not obligatory when seeking reinstatement after a contested conviction

Determining if and how a petitioner may recognize the seriousness of misconduct while steadfastly maintaining his or her innocence is a matter of first impression for this court. It is a rare occurrence where an attorney is convicted of a felony involving a crime of moral turpitude but denies culpability throughout the criminal proceedings, and later petitions for reinstatement to the bar.

The Board asserts that Mr. Sabo cannot establish that he “recognizes the seriousness of his misconduct” and “at the same time, deny his culpability.” We disagree. Neither our legal standard for reinstatement to the Bar, as set forth in the Roundtree factors, nor case law from other jurisdictions requires that one who petitions for reinstatement must affirm culpability for his adjudicated guilt, and we decline to adopt such a rule. “Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit.” In re Hiss, 368 Mass. 447, 333 N.E.2d 429, 437 (Mass.1975), disavowed on other grounds by Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (Mass.1985)...

Of the courts that have addressed this situation, none requires a confession of guilt as a requirement for reinstatement or holds that an assertion of innocence is a bar to reinstatement...

To hold otherwise and enact “a rule requiring admission of guilt and repentance” would “create[ ] a cruel quandary: [petitioner] may stand mute and lose his opportunity; or he may cast aside his hard[-]retained scruples and, paradoxically, commit what he regards as perjury to prove his worthiness to practice law.” Hiss, 333 N.E.2d at 437. Mr. Sabo himself recognized this quandary in his testimony before the Hearing Committee:

I will continue to claim my innocence of the underlying charge. And if making that claim would prevent me from being an attorney, then that's the price I would have to pay because I, long ago, as soon as the accusations and arrest was made, rejected opportunities to either avoid jail or to lessen the penalties if I made some admission. I cannot do so 10 years later and will pay whatever price I have to for that.

Nevertheless, a claim of innocence will not relieve the petitioner of his or her burden to demonstrate recognition of the seriousness of the misconduct that led to disbarment. In this unusual situation, we look to the purpose of the second Roundtree factor, which is to predict the likelihood that misconduct will not reoccur in the future. Reynolds, 867 A.2d at 984; see also Hiss, 333 N.E.2d at 436 (finding that it is “sufficient that the petitioner adduce substantial proof that he has such an appreciation of the distinctions between right and wrong in the conduct of men toward each other as will make him a fit and safe person to engage in the practice of law”) (internal quotation marks omitted). We decline the opportunity to set parameters encompassing all future reinstatement cases in which a petitioner asserts his or her innocence. These cases are necessarily decided on an individual basis. However, based on the totality of the circumstances in this case, we conclude, in light of the facts found by the Hearing Committee and set forth below, that Mr. Sabo proved by clear and convincing evidence that he has accepted responsibility for the conduct that led to his conviction and that he will not engage in similar conduct in the future.

Senior Judge John Steadman (one of my alltime favorite judges and a Georgetown Law professor alum) dissented

At this time, I would deny reinstatement, substantially for the reasons set forth by the Board in its conscientious report and recommendation. Mr. Sabo has the right to maintain his innocence, but it does not seem to me that the Board is unreasonable in asking for a full and complete exposition for this position. Such an exposition would not be to retry the conviction but rather to provide a total picture of Mr. Sabo's present state of mind vis-a-vis the conviction and its surrounding circumstances. Likewise, given the unquestioned concern that any lapse in therapy could have serious consequences and the “red flag” event of 2009, it seems quite reasonable for the Board to require a “longer track record of compliance, without incident.” Mr. Sabo was unable to convince a single one of the nine members of the Board that he had shown by “clear and convincing evidence” his entitlement to reinstatement, nor, by the same standard, has he yet convinced me.

The "red flag" event was described in the BPR report

As part of his remodeling business, Petitioner has purchased tens of thousands of dollars of raw material at Home Depot, Lowes, and other stores. On April 19, 2009, Petitioner sought to resolve a dispute with Home Depot over a special order that was damaged. Petitioner needed the item to complete a remodeling job he was doing for a customer. In the past when this had happened, Home Depot had agreed to accept “purchase returns.”  “In this instance, the Home Depot clerk accused Petitioner of damaging the [special order] item after he received it, which infuriated Petitioner.” Petitioner asked the customer service representative to simply accept as a “return” various items in his shopping cart, which also included a few off-the-shelf items he had not yet purchased. As Petitioner left the store, he was stopped by a Home Depot employee who had been observing Petitioner’s “heated” conversation with Home Depot customer service staff. Id. Some of the items in Petitioner’s cart had not yet been purchased, prompting the store to press charges. 

I argued 30+ cases before Judge Steadman and always enjoyed the experience. Like most of his colleagues in my era, he was invariably incisive, well-prepared and unfailingly polite. In bar discipline cases, his favorite question was

"How does this work?" 

I was responsible for the Sabo case when it first came in. He consented to disbarment after I had departed. (Mike Frisch)

September 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 1, 2016

Impassioned Plea Falls On Deaf Ears

The Indiana Supreme Court has disbarred an attorney based on these findings

Respondent was the elected Clerk-Treasurer of the Town of Warren Park. Over the span of several months in 2014, Respondent stole $20,800 from the Town by writing dozens of checks payable to himself. Respondent was charged with theft and official misconduct, both Class D felonies, and later pled guilty as charged. Respondent has been under an order of interim suspension since October 7, 2015, as a result of his felony convictions. See Matter of Bean, 53 N.E.3d 402 (Ind. 2015).

The Commission charged Respondent with violating Indiana Professional Conduct Rule 8.4(b) by committing criminal acts that reflect adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. Following a hearing, the hearing officer filed his report to this Court on June 14, 2016, concluding that Respondent violated Rule 8.4(b) as charged and recommending that Respondent be disbarred.

The court takes a dim view of criminal conduct by a public official

As we have observed before, criminal action by an attorney in public office “strikes at the very heart of public trust in our institutions of government and the legal profession.” Matter of White, 54 N.E.3d 993, 994 (Ind. 2016) (quoting Matter of Gutman, 599 N.E.2d 604, 609 (Ind. 1992)). Such misconduct consistently has resulted in disbarment or a substantial period of suspension without automatic reinstatement. See, e.g., Matter of Philpot, 31 N.E.3d 468 (Ind. 2015) (following an interim suspension of over two years, suspending an elected county clerk convicted of theft and mail fraud for an additional four years without automatic reinstatement); Matter of Hughes, 640 N.E.2d 1065 (Ind. 1994) (disbarring a city court judge convicted of theft and official misconduct); Matter of Willardo, 493 N.E.2d 466 (Ind. 1986) (disbarring an elected coroner convicted of theft for fraudulently diverting county funds into his campaign account).

We acknowledge Respondent’s acceptance of responsibility, his efforts to address the ongoing gambling addiction underlying his misconduct, and his impassioned plea during proceedings before the hearing officer for a sanction short of disbarment. However, the seriousness of Respondent’s misconduct, and Respondent’s history of attorney and judicial discipline (the latter of which, significantly, also included willful misconduct in office), compel us to agree with the hearing officer that disbarment is warranted in this case.

The judicial discipline order is linked here. (Mike Frisch )

September 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Citing Costanza v. Seinfeld

Lindsay Lohan and Karen Gravano lost their attempt to sue a video game when the New York Appellate Division for the First Judicial Department affirmed dismissal

In these appeals, each plaintiff alleges that defendants violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness for use in the video game "Grand Theft Auto V." This video game takes place in the fictional city "Los Santos," which itself is in a fictional American state of "San Andreas." Players control one of several main characters at various points in the game, engaging in approximately 80 main story missions as well as many optional random events. Plaintiffs allege that during certain optional random events, the player encounters characters that are depictions of plaintiffs.

Gravano alleges that in one of the optional random events in the video game, the character Andrea Bottino is introduced, and that her image, portrait, voice, and likeness are incorporated in this character. Specifically, Gravano argues that the character uses the same phrases she uses; that the character's father mirrors Gravano's own father; that the character's story about moving out west to safe houses mirrors Gravano's fear of being ripped out of her former life and being sent to Nebraska; that the character's story about dealing with the character's father cooperating with the state government is the same as Gravano dealing with the repercussions of her father's cooperation; and that the character's father not letting the character do a reality show is the same as Gravano's father publicly decrying her doing a reality show.

Lohan alleges that defendants used a look-alike model to evoke Lohan's persona and image. Further, Lohan argues that defendants purposefully used Lohan's bikini, shoulder-length blonde hair, jewelry, cell phone, and "signature peace sign' pose" in one image, and used Lohan's likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top. Finally, Lohan argues that defendants used her portraits and voice impersonation in a character that is introduced to the player in a "side mission."

Both Gravano's and Lohan's respective causes of action under Civil Rights Law § 51 "must fail because defendants did not use [plaintiffs'] name, portrait, or picture'" (see Costanza v Seinfeld , 279 AD2d 255, 255 [1st Dept 2001], citing Wojtowicz v Delacorte Press , 43 NY2d 858, 860 [1978]). Despite Gravano's contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her (see Costanza at 255; see generally Wojtowicz at 860). As to Lohan's claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan (see Costanza at 255).

Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" (see Costanza at 255, citing Hampton v Guare, 195 AD2d 366, 366 [1st Dept 1993], lv denied 82 NY2d 659 [1993] [stating that "works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising' and trade'"]; see generally Brown v Entertainment Merchants Assn. , 564 US 786, 790 [2011] ["(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas . . ." and deserve First Amendment protection]). This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire.

Further, Lohan's claim that her image was used in advertising materials for the video game should also be dismissed. The images are not of Lohan herself, but merely the avatar in the game that Lohan claims is a depiction of her (see Costanza at 255 [the "use of the character in advertising was incidental or ancillary to the permitted use[,]" and therefore was not commercial]).

In view of the foregoing, it is unnecessary to address defendants' remaining grounds for dismissal.

(Mike Frisch)

September 1, 2016 in Current Affairs | Permalink | Comments (0)

That's Not Entertainment

From the September 2016 California Bar Journal

A Los Angeles entertainment attorney took client money that was earmarked for the purchase of Jackson 5 recordings and used it to cover business and personal expenses, including payments on a Mercedes-Benz and purchases at Tiffany’s and Bloomingdale's, the State Bar Court found.

JEFFREY PAUL KRANZDORF, [#90207], 61, of Los Angeles, eventually made restitution, but was disbarred May 29, 2016 and ordered to comply with rule 9.20 of the California Rules of Court. 

Kranzdorf had agreed to hold $53,000 of his client’s money toward his client’s purchase of a collection of original master sound recordings by the Jackson 5, also known as the “Steel Town Masters.”

But within three months, Kranzdorf had spent the money on car and mortgage payments. as well as shopping trips to Tiffany’s, Bloomingdale's and Neiman Marcus. Some of the funds went towards tuition payments for his daughter.

When it came time for Kranzdorf to deliver the $25,000 purchase price for the recordings, Kranzdorf falsely claimed he needed the money for cancer treatments. He repaid the money after the State Bar initiated disciplinary proceedings.

Judge Donald F. Miles said it was disconcerting that Kranzdorf’s misconduct was directed at people he regarded as colleagues in the entertainment business and who viewed him as a friend.

“The fact that he solicited and submitted to this court character declarations from two of these colleagues … at a time when those individuals were still under the impression he had been fighting cancer during the time when he was misusing their funds is especially alarming to this court,” Miles wrote.

(Mike Frisch)

September 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)