Thursday, November 5, 2015

Vintage Argument Raises Questions

The District of Columbia Court of Appeals (Chief Judge Washington, Associate Judge Beckwith and Senior Judge Reid) heard oral argument yesterday in the bar disciplinary case of In re Layn Saint-Louis.

The matter involves misappropriation and a board recommendation for disbarment.

I was unable to attend but understand that Judge Reid asked a question that would have occurred to me (paraphrasing) and was an argument pressed by the accused attorney

Why did a case involving possible disbarment take so long?

When Bar Counsel (excuse me Disciplinary Counsel) decides to investigate a complaint, the matter is assigned a docket number. You can tell from that number the arc of the case.

Here the Docket Number is 2005- D217.

Because OB(D)C dockets about 500 cases a year, that means that the investigation began in the late spring of 2005 - more ten years ago.

From the June 27, 2014 Hearing Committee Report

There are no significant additional mitigating factors here. Thus, while Bar Counsel’s excessive and unjustifiable delay in bringing this action raises serious questions, under the Court of Appeals cases on Bar Counsel delay as mitigation, the delay does not reduce the appropriate recommended sanction in this case.

Assistant Bar Counsel Fox also publicly told the truth about the disciplinary system's most shameful secret. Once Bar Counsel completes an investigation and submits formal charges, those charges sit in the Office of the Board on Professional Responsibility for a full year awaiting review.

Thus, nothing can go forward for that year while witnesses move or die and the case gets harder to prove.

I was at Bar Counsel from 1984 to 2001. This never happened in those years. There is no excuse for BPR-induced delay in reviewing charges.

Neither the BPR or the hearing committees are understaffed to review and try these cases. There are twelve hearing committees and a huge roster of 52 alternates.

This delay only serves accused attorneys and prejudices the public's right to an honorable legal profession characterized by credible self-regulation.

The cases tend not to age well like a fine wine (to paraphrase former Bar Counsel Len Becker).

I have been asking Judge Reid's question for about a decade.

My earlier post on the case is linked here. (Mike Frisch)

November 5, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Sanction Imposed In E-Discovery Matter

Kathleen Maloney summarizes a discipline case on the Ohio Supreme Court web page

The Ohio Supreme Court today  suspended Robert P. DeMarco for one year, with six months stayed, for making  false statements to a Lucas County court.

While the lawyer disciplinary  board had recommended a full one-year suspension, the Court determined in a 6-1  decision that a partial suspension was appropriate in this case.

Discovery Documents Not Given to Court       While working on a civil case, DeMarco hired Jack Harper, a computer  expert, in 2011. Lawyers for the defendants and DeMarco,  who was representing the plaintiff, agreed to have Harper search the  defendants’ electronic devices. Any possibly relevant documents were to be  provided to the trial judge to inspect privately and to decide which materials  should be sent to DeMarco.

Harper conducted the search, put  the results on a disc, and gave it to DeMarco, who, disregarding the agreed-to  protocol, reviewed the contents and decided none were helpful. He also neglected  to submit the disc to the trial judge.

In March 2012, DeMarco told  defense counsel at a pretrial conference that Harper had examined the documents  and told him none were relevant to the case. After also denying to the defense that  he had the disc, DeMarco called Harper and left a message indicating his lie to  the court. DeMarco then gave the disc back to Harper.

Defense Requests Disc       A few months later when the  parties resolved the case, defense counsel asked Harper for the disc. The issue  went before a court, and Harper said he had destroyed the disc. The court  threatened to hold him in contempt. At a hearing, Harper testified that he had  handed the disc over to DeMarco and later destroyed it after DeMarco told him  the case was over.

DeMarco responded in the judge’s  chambers and openly in court that he had never received the disc nor reviewed  the contents. Harper stated that DeMarco had lied to the court in March 2012,  but DeMarco claimed he never had lied and “would like to go outside with  [Harper].” Harper then played the voicemail. The judge ended the hearing and  later, with the defense counsel, alerted the Toledo Bar Association about  DeMarco’s false statements.

Court Considers Whether Attorney Lacked Selfish Motive, Had Good  Reputation       During the disciplinary case, the  parties agreed that DeMarco violated professional conduct rules, including  knowingly making a false statement to the court and offering evidence that he  knew was false. The Supreme Court agreed with the misconduct findings. But the  Court disagreed with DeMarco’s request for a fully stayed one-year suspension.

“DeMarco engaged in a series of  misrepresentations directly to the court in March and November 2012,” the per curiam opinion stated. “At the November 2012  show-cause hearing, he threatened to take his own expert ‘outside’ after the  expert testified truthfully about giving the disc to DeMarco. And if Harper had  not saved DeMarco’s voicemail, Harper might have been sanctioned by the court. Additionally,  DeMarco admitted at the panel hearing that he was not remorseful for making the  repeated misrepresentations until Harper played the voicemail.”

The disciplinary board had  recommended an actual one-year suspension, and the Court noted that this type  of conduct often leads to an actual suspension.

However, “the character  references and character testimony indicate that his misconduct here was an  aberration in an otherwise unblemished 45-year legal career,” the Court  concluded. “We find that under these circumstances, staying a portion of the  one-year suspension is consistent with prior cases.”

Justices’ Votes       The majority opinion was joined  by Justices Paul E. Pfeifer, Terrence  O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and  William M. O’Neill.

Chief  Justice Maureen O’Connor dissented and would have imposed the board-recommended  suspension of one year with no stay.

2014-1738. Toledo Bar Assn. v. DeMarco, Slip  Opinion No. 2015-Ohio-4549.

Video camera icon View oral argument video of this case.

November 5, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 4, 2015

Crap Draws Reprimand

A Virginia State Bar Subcommittee has imposed a reprimand without terms for conduct at a deposition.

The attorney called the case "crap" at the outset of the proceeding. He later told opposing counsel that he had "only asked three pertinent questions during the 45-minute deposition" and again called the case "crap."

He called opposing counsel's position "nonsense" and "baloney."

The conduct violated the rules governing fairness to opposing counsel and parties as well as the rules requiring respect for the rights of third persons. (Mike Frisch)

November 4, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Give Me Probation Or Give Me Death

A Louisiana Hearing Board has recommended three years probation of attorney Patrick Henry.

Based on the evidence submitted and the testimony of the parties, the Committee finds that Patrick Henry, by clear and convincing evidence, failed to adequately advise Kevin Hambrice of the financial arrangements that had or had not been made with the Shockey firm. The Committee further finds that Patrick Henry misrepresented to the Shockey Law Firm the arrangement that he had made with Kevin Hambrice. These misrepresentations were knowingly made and negligent due to the mental and emotional condition of respondent at that time.

The hearing board found that the conduct was attributable to emotional problems and mental impairment and proposes treatment conditions as part of the probation. (Mike Frisch)

November 4, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 3, 2015

Two Strikes And Out

The Maryland Court of Appeals has accepted the consent disbarment of an attorney who admitted multiple ethics violations.

Law360 reported on this January 2015 opinion of the court imposing indefinite suspension

A Maryland attorney who lied to his client for years and eventually fabricated a phony settlement after botching her medical malpractice case escaped disbarment on Friday after a divided appellate court ordered that he be indefinitely suspended. 

Despite finding he had committed a laundry list of professional conduct violations, the Court of Appeals of Maryland stopped short of granting the state attorney grievance commission’s recommendation that attorney Eugene Alan Shapiro be disbarred.

Shapiro stood accused of failing to preserve client Diana Wisniewski’s medical malpractice claim from statutory expiration, then continuously lying to her over the next five years about the status of her case. He subsequently concocted a bogus settlement that he unsuccessfully tried to pay out of his own pocket, all while failing to direct Wisniewski to obtain independent counsel once he realized she would have a malpractice claim against him, according to the order.

The decision came over the dissent of two members of the seven-judge panel, who argued that Shapiro’s lies constituted a pattern of deceitful conduct rather than an isolated incident, and should therefore result in his disbarment.

“Although Shapiro’s violations do not involve multiple clients and cases, his misconduct spans a multiple-year period,” the dissent said. “Respondent only told Wisniewski the truth about her case — that it had been dismissed, that the statute of limitations had passed, and that no settlement occurred — after she filed a complaint with the Attorney Grievance Commission.”

The case began in 2004, when Wisniewski underwent knee surgery at St. Agnes Hospital that ostensibly resulted in an infection, leading her to retain Shapiro in pursuit of a medical malpractice claim, according to the opinion.

Shapiro claims he then forwarded her medical records to several outside medical experts, but had difficulty obtaining a certificate of merit. He subsequently filed Wisniewski’s claim with the Health Claims Arbitration Office, but the case was dismissed because it did not include a certificate to support the claim, the order said.

By this point, the statute of limitations on Wisniewski’s cause of action had expired. Although Shapiro admits that he failed to inform his client of either the dismissal or the expiration of her claim, he continued to represent her despite the conflict of interest his deception had created, the order said.

In the fall of 2012, Shapiro concocted a bogus story about a settlement in an apparent bid to cover his tracks, but when he failed to produce Wisniewski’s share of the supposed deal she filed a complaint with the Attorney Grievance Commission of Maryland, according to the order.

In response to that complaint, Shapiro put together a handwritten “settlement agreement” promising to pay her $12,500, followed by monthly payments that would total a combined $66,000 — the amount Shapiro alleges Wisniewski would have accepted in the event of an actual settlement in her medical malpractice claim, according to the order.

The court noted that despite his claims to the contrary, nowhere on Shapiro’s handwritten settlement agreement with Wisniewski was it indicated that he had advised her of her right to seek independent counsel.

In considering what punishment to dole out to Shapiro, the court noted that he had been the subject of a previous disciplinary reprimand regarding lapses in tax withholding, but also noted that Shapiro’s misdeeds did not necessarily appear to stem from dishonest or selfish motives.

“Not wishing to admit his mistakes to her, Shapiro created a lie that snowballed over time,” the order said.

(Mike Frisch)

November 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Meth Lab Crimes Leads To Resignation

The Indiana Supreme Court has accepted the resignation of a criminal defense attorney who got caught up with drugs.

WLKY reported on the case

Leah Fink was arrested in Corydon on Aug. 16, 2011, on charges of manufacturing meth, maintaining a common nuisance and possession of meth and marijuana.

Harrison County deputies said they raided the home she shared with her mother at the time, finding meth and other paraphernalia.

During her sentencing hearing Thursday, witnesses shed some light on what troubles might have caused the drug abuse.

From dealing with Crohn's disease and a crumbling marriage, family testified that Fink was in and out of the hospital after her arrest, which delayed the case four years.

Fink had a total of nine surgeries during those four years, spending more than 60 days in the hospital, her family testified.

Fink was arrested in 2014 after police conducted a search warrant and found active meth labs at a home in Jeffersonville.

ABA Journal also had the arrest. Indiana Law Blog carried a story on the recent conviction from the Corydon Democrat. 

The news report indicates that she had been a judicial candidate in 2008.

Civil War fans will recognize Corydon as the only battlefield in Indiana per Wikipedia

Corydon was the site of the only Civil War battle fought in Indiana. On July 9, 1863, Confederate cavalry led by Brigadier General John Hunt Morgan, aided by the citizens of Brandenburg, Kentucky, crossed the Ohio River into Indiana to begin what is known as "Morgan's Raid". Morgan's 2,500 men were opposed by 400 hastily assembled home guard at the Battle of Corydon. The Union troops were quickly defeated and the town surrendered. Corydon was sacked in retaliation for Union looting in Kentucky. The town's treasury of $690 was seized, and the inmates of the jail were released. Gen. Morgan demanded from $600 to $700 from each mill and shop owner; otherwise, their buildings would be burned. Tradition says one Corydon miller overpaid by $200; Morgan promptly returned it to him

For those interested in the story of Morgan's Raid, I suggest this book. (Mike Frisch)

November 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Counting Sheep

The Maine Supreme Judicial Court has imposed a six-month suspension of an attorney it had disbarred in 1989 and reinstated in 1999.

He has been reprimanded twice since reinstatement.

Here he engaged in conflicts of interest such as

In February of 2005, at [client] Ms. MacComb’s request, Attorney Campbell drafted a second will for her. The provisions of the 2005 will diminished the scope of the testamentary trust originally created in Ms. MacComb’s 2004 will, and devised Ms. MacComb’s livestock (eight sheep) jointly to Attorney Campbell and his friend, whom he later married...

Ms. MacComb also devised her interest in real estate previously bequeathed to her by Ethel Foley, together with an additional two acres of land, to Attorney Campbell. Attorney Campbell states that he believed that drafting the instrument was appropriate because he had been asked to do so by his client, and she had been given the opportunity to consult independent counsel.

There were further bequests and a resulting will contest.

He engaged in a conflict of interest in an unrelated  criminal matter.

Disclosure: I handled his D.C. disbarment for a marijuana distribution conviction

The Board, viewing our prior decisions as dispositive, rejected respondent's argument that for purposes of assessing moral turpitude there is a meaningful distinction between cocaine, heroin and marijuana. It relied on In re Roberson, supra, 429 A.2d at 530 (unspecified narcotic drug); In re Gates, No. D-32-79 (D.C.App. Nov. 7, 1979) (heroin) (published at 532 as appendix to In re Roberson), and In re Davis, No. M-92 (D.C.App. Nov. 18, 1981) (cocaine), in which the court concluded that a conviction for the crime of possession, with intent to distribute, of a controlled substance involved a crime of moral turpitude. The Board acknowledged that marijuana is listed by the Drug Enforcement Administration (DEA) as a Schedule I non-narcotic drug and carries a lesser penalty than do narcotic drugs such as cocaine or heroin, but reasoned that the difference in sentencing *1061 for narcotic and non-narcotic drugs is insignificant for purposes of assessing moral turpitude because marijuana distribution is still treated as a serious criminal offense.

 (Mike Frisch)

November 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 2, 2015

Patent Pending

The California State Bar Court Review Department proposes disbarment as the sanction for a second disciplinary offense

 The hearing judge in this proceeding found Wittenberg culpable of violating rule  1-300(B) of the Rules of Professional Conduct by engaging in the unauthorized practice of law (UPL) in 300 to 400 trademark matters before the United States Patents and Trademark Office (USPTO).

He had been convicted of insider trading

 As a result of his felony conviction, Wittenberg was placed on interim suspension in California in 2001 and disbarred in Virginia in 2002. In 2003, the USPTO Office of Enrollment and Discipline (OED) filed a complaint against him. Subsequently, he submitted a resignation affidavit, which the USPTO accepted. In June 2004, the USPTO ordered that Wittenberg "be excluded on consent from practice before the United States Patent and Trademark Office," and ordered the OED to publish a notice in the "Official Gazette," which stated that Wittenberg had been excluded from practice before the USPTO "in patent and trademark law cases beginning July 1, 2004." The USPTO final decision also recited that Wittenberg’s resignation affidavit contemplated that he will pursue the USPTO’s formal reinstatement process should he wish to later have the exclusion lifted; and, in that process, the USPTO Director of OED will conclusively presume certain facts as to the complaint against him.

The sanction


Wittenberg was an experienced practitioner before the USPTO, yet he continued to represent numerous trademark clients for nearly six and a half years after he was excluded from practice before the office. He never sought reinstatement, although the regulations in effect at the time of his exclusion and thereafter required such a process before resuming practice before the USPTO. The affidavit he executed regarding his exclusion also referenced such a process. We agree with the hearing judge that Wittenberg, as a long-time practitioner in his field, knew or should have known about the regulatory scheme and that he was engaging in UPL. However, rather than carefully determining what, if anything, he was required to do before resuming his practice, he assumed that his 2005 relief from actual suspension in California allowed him to resume practice before the USPTO. This exhibits, at best, a cavalier attitude toward compliance with the regulations that apply to practitioners in the field of law to which he has devoted much of his career.

(Mike Frisch)

November 2, 2015 in Bar Discipline & Process | Permalink | Comments (0)


WCHS8 has this report on the suspension of a West Virginia prosecutor from his job

A Logan County assistant prosecuting attorney has been suspended indefinitely after a bizarre incident involving a pistol and fake spiders.

According to Logan County Prosecutor John Bennett, assistant prosecutor Chris White was suspended on Wednesday due to an alleged incident that happened in early October.

White has been with the office for more than five years, according to Bennett.

"I never saw it coming, that's for sure. Obviously, I wouldn't have even hired him if I had seen it coming. And the fact that he's been there five years and we haven't had any incidents like this also, to me, is a pretty good indication it's certainly out of the ordinary," Bennett said.

The alleged incident happened on October 5th after several secretaries in the office decorated for Halloween. The decorations included many fake spiders that were throughout the office. Apparently, White has arachnophobia and became irate over the decorations.

"He said they had spiders everyplace and he said he told them it wasn't funny, and he couldn't stand them, and he did indeed get a gun out. It had no clip in it, of course they wouldn't know that, I wouldn't either if I looked at it, to tell you the truth," Bennett explained.

Bennett says it's his understanding that White didn't point the gun at anyone or wave it around but did threaten to shoot all of the spiders. Bennett says the incident caused quite the scare for the three secretaries that witnessed it.  

"Quite naturally, the ladies were concerned, as I would have been. Anybody would be, I would think, with a gun no matter where it was," Bennett said.

Shortly after the incident, Bennett says he sent a memo banning firearms from the office with the exception of the gun their investigator carries.

Logan County Chief Deputy M.A. Mays tells Eyewitness News he has seen surveillance video of the incident and is continuing to question several people.

Mays confirms there is an open criminal investigation, but says it's not concluded. Mays said he "didn't anticipate" charges being filed, but said that could change depending on the outcome of more interviews.

Bennett says it's a possibility White could be terminated, but at this time, he doesn't intend to fire him.

White could not be reached for comment.

(Mike Frisch)

November 2, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 30, 2015

Attention Ethics Professors

I assume that most of us try to give our law students a sense of what professional discipline really involves from the point of view of an accused attorney.

Teaching that aspect of professional responsibility has been greatly enhanced (in my view) by videos of state supreme court oral arguments.

If you want a first-rate 26 minute exposure to the reality of bar discipline, watch (and show) this case decided today by the Kansas Supreme Court. 

The attorney was a public defender who lost her job and career in a series of criminal matters caused by her alcoholism. She has now been sober for 4 1/2 years and works in a grocery store.

Disciplinary Counsel and her attorney argued for a stayed suspension and immediate probation. 

The attorney takes the lecturn for the last ten minutes. If you want to teach about the dangers of addiction to a practicing attorney, there is no better source. It will move the viewer to tears.

The court adopted the proposed sanction. 

The misconduct involved a series of arrests, conviction and failures to report to the Bar

 the respondent failed to comply with Kan. Sup. Ct. R. 203(c)(1) on four occasions. First, the respondent failed to inform the disciplinary administrator that she had been charged with a felony (possession of cocaine) in 2010 in Kansas City, Missouri, within 14 days. Next, the respondent failed to inform the disciplinary administrator of the disposition of the possession of cocaine charge within 14 days. Third, the respondent failed to inform the disciplinary administrator that she had been charged with a felony (driving under the influence of alcohol) in 2011 in Johnson County, Kansas. Finally, the respondent failed to inform the disciplinary administrator of the disposition of the felony driving under the influence of alcohol charge within 14 days. The respondent did not make any disclosures required by the rule until July 13, 2014. Accordingly, the hearing panel concludes that the respondent violated KRPC 203(c)(1).

The arguments also introduce the role of state bar lawyer assistance programs (link to the Kansas program here)  in aiding distressed and addicted attorneys. Also note that Kansas, like many bars, offers help to law students.

 Having stood in the shoes of disciplinary counsel, I applaud the fine arguments of Deputy Disciplinary Administrator Michael R. Serra and Amy E. Elliott of Overland Park, Kansas. 

Also note how respectful the court is of counsel. The justices sit patiently while counsel fully argues and ask questions only when counsel is done. (Mike Frisch)

October 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Bipolar Condition Mitigates Sanction

The Iowa Supreme Court has imposed an indefinite suspension of not less than 60 days of an attorney whose bipolar condition contributed to her misconduct.

She had been in solo practice.

While coping with the stress of [her husband's] immigration issue and the bipolar disorder, [the attorney] drank alcohol heavily and frequently in October 2013. Her life very quickly spun out of control, and by December her daily routine consisted only of buying alcohol, drinking alcohol, and sleeping. She did not open her mail, and she stopped responding to all communication from clients, opposing attorneys, court staff and judges, and the Board.

In January 2014, [she] sought medical assistance for detoxification. She received inpatient alcohol treatment in Waterloo and outpatient treatment in Decorah. In August 2014, [she] moved to West Des Moines so that she could be closer to a more robust support system and live in a bigger market for legal employment. She attends weekly support group meetings and has become an active church congregant there. She has also received helpful assistance from the Iowa Lawyers Assistance Program (ILAP). She has not consumed alcohol in over a year and has not practiced law since fall 2013. She currently holds a part-time job in retail customer service, but she hopes to resume practicing criminal law in the near future as an assistant county attorney, a private criminal defense attorney, or a public defender.

There were four counts of misconduct

The [disciplinary] commission found [her] lack of disciplinary history, alcoholism, and bipolar disorder to be significant mitigating factors. It also commended her for taking full responsibility and expressing remorse.

The court noted that a dozen clients had been affected by the ethics lapses. She must comply with treatment conditions to secure reinstatement. (Mike Frisch)


October 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Attorney "Imploded All At Once, Without Warning And Without Reason"

A lawyer already suspended for misconduct and other reasons got a nine-month suspension from the Wisconsin Supreme Court.

The violations 

In 2005, Attorney Smoler asked the S.s if they would loan her $50,000 so that she could pursue a medical malpractice lawsuit on behalf of another client, C.J., that would be brought against one of the same doctors involved in the S.s' case. The S.s agreed to loan the $50,000 to Attorney Smoler. To memorialize the loan, Attorney Smoler drafted a document entitled "Loan/Promissory Note" which set forth the terms of the loan. The loan called for five and one-half percent interest annually or statutory interest as awarded by the court. The loan was for two years. Attorney Smoler did not put any language in the note providing the S.s with an opportunity to speak with alternate counsel about the loan. The loan was signed by the parties on August 31, 2005. Attorney Smoler was paid $50,000 on September 13, 2005. She deposited the money into her business checking account.

Two years passed without Attorney Smoler making a payment to the S.s on the loan. The S.s agreed to extend the terms of the note one more year at Attorney Smoler's request. By October 2009, no payments had been made on the loan. The S.s hired an attorney who demanded payment. Attorney Smoler failed to pay the loan in response to a demand letter from the S.s' counsel.

She responded to the bar matter by asserting an inability to repay the loan. There were misconduct findings in another medical malpractice case.

The referee was puzzled

In discussing the appropriate sanction, the referee noted that Attorney Smoler apparently practiced at a very competent and accomplished level for many years. The referee said, "No facts of record explain her sad story. It is as though she imploded all at once, without warning, and without reason." The referee went on to comment, "For an attorney with an otherwise unblemished record, Smoler's slide into the dark side seems incredibly unfortunate. . . . . Smoler's failure in general to supply information to OLR in the course of the investigation into both client matters does not help the situation and only further indicates her inability to function at a very basic level."

The court ordered restitution. (Mike Frisch)

October 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 29, 2015

A Way With Words

A North Carolina attorney has been charged with ethics violations in three counts, the last of which is worthy of note.

The attorney is alleged to have filed a civil complaint on behalf of a client, responded to a motion to dismiss and handled an appeal to the state Court of Appeals.

He is alleged to have made a number of statements in the pleadings, accusing the court of "overwhelming incompetence and ignorance... I felt just as I imagine I would have over a century ago arguing to said court that slavery was bad labor relations policy... [the court showed] a stubborn arrogance and ignorance...[a judge] literally threw a temper tantrum...As I felt like I was attempting to teach physics to a class of unruly third graders."

In another brief: "the lack of intellectual functioning and overt partiality of this panel...being readily apparent but, acting like mentally challenged cheerleaders, knowing they wanted to motivate their team to victory, but not sure how to accomplish the goal... [the judge] was assuming the role of 'house negro' for purposes of this matter...Sounding more like 'Beaver Cleaver' than any person has a right to..."

And another brief: "the instant panel will glad [sic] play thee [sic] blind mice and [Judge] will serve the historical role played by Monica Lewinsky for President Clinton for the current governor of North Carolina... if these judges are intent upon making the [court] a literal 'whippin boy' for special interests, they are welcome to kiss my red white and blue American male ass."

(Mike Frisch)

October 29, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Past Forgetting

An Illinois Hearing Board proposes a reprimand

Respondent, an Assistant State's Attorney, was  charged with making false statements and failing to disclose exculpatory  information to the defense. In an interview with Respondent, about two weeks  before trial, the State's key witness stated that, in a prior description of the  incident, he exaggerated the defendant's participation because of threats from  gang members. Respondent did not inform defense counsel of that statement,  although defense counsel learned of that statement, from another source, the day  the trial began and was aware of other inconsistent statements by the witness.  At trial, when the witness referred to gang threats, Respondent stated she was  hearing about such threats for the first time. After trial, the defendant was  acquitted.

Respondent testified she had forgotten about the  statement the witness made during the interview. The attorney representing the  witness testified that when he reminded her of the statement Respondent appeared  genuinely surprised. The defendant's attorney, who was present at the time,  concurred. Both attorneys believed Respondent's misstatement was inadvertent.

The Hearing Board concluded the Administrator did  not prove Respondent knowingly made false statements to the court or  intentionally engaged in any dishonest conduct. The Hearing Board found  Respondent improperly failed to disclose exculpatory information to the defense  by not informing defense counsel of the statement made during the interview.

The Hearing Board determined a violation occurred  that warranted some discipline. Given all the circumstances, including  Respondent's state of mind, the lack of prejudice and the significant mitigating  factors, the Hearing Board concluded Respondent should be reprimanded.

No suspension because

there are significant mitigating  factors. Based on the evidence presented and our observations of her at the  hearing, Respondent impressed us as an ethical attorney, decent and  hard-working, committed to serving the public who has a good understanding of  the responsibilities her role entails. Testimony leading to that impression came  not only from Respondent's supervisors, but also from attorneys who had  regularly opposed her in litigation over time. We considered that testimony very  significant in mitigation. See Kakac, 07 SH 86 (Review Bd. at 20).  We do not regard this incident as representative of Respondent's usual conduct.  We also believe this experience has indeed been a difficult one for Respondent  and that she is highly unlikely to engage in misconduct in the future.

(Mike Frisch)

October 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Not Unauthorized Practice

From the web page of Pennsylvania's Disciplinary Board

By a 2-1 decision, the Commonwealth Court ruled that the Unemployment Compensation Board of Review erred in applying the Pennsylvania Rules of Disciplinary Enforcement to prevent a suspended lawyer from representing a client in an administrative hearing before an unemployment compensation referee.

In the case of Powell v. Unemployment Compensation Board of Review, the claimant appeared at the first hearing with a suspended attorney, who was allowed to represent the complainant consistent with 43 P.S. §774, which states, “Any party in any proceeding under this act before the department, a referee or the board may be represented by an attorney or other representative.” Neither the employer nor the referee objected to the suspended attorney’s participation. The hearing was continued due to an issue with subpoenas.

Before the hearing resumed, the employer retained counsel who notified the Board that he objected to the suspended attorney’s involvement, citing Rule 217(j)(4) of the Rules of Disciplinary Enforcement, which prohibits a formerly admitted attorney from “appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.” When the hearing was rescheduled, the suspended attorney and the claimant were notified the former attorney would not be allowed to appear on behalf of the claimant, who was given thirty days to obtain a new attorney. At the resumed hearing, the claimant appeared with a new representative, who was also a suspended attorney. The new representative was allowed to attend as an advisor but not to represent the claimant. The claimant presented his own case and received an adverse decision. He appealed to the UCBR, which upheld the decision, concluding that Rule 217(j)(4) prohibits a suspended attorney from representing a client before a UC referee.

The Commonwealth Court reversed and remanded the case to the UCBR, in a decision written by Judge P.Kevin Brobson. The opinion noted that the Supreme Court of Pennsylvania ruled in the case of Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007), that representation in unemployment compensation proceedings is not the practice of law. The Commonwealth Court then ruled that only the Disciplinary Board and the courts have the power to enforce the Rules of Disciplinary Enforcement, and that the UCBR could not apply the Rules of Disciplinary Enforcement to override 43 P.S. §774 as to the particular class of nonlawyer representatives who are formerly admitted attorneys.

(Mike Frisch)

October 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Mellon Headed Decision Draws Reprimand

The Ohio Supreme Court has publicly reprimanded an attorney

disciplinary counsel, charged Broyles with professional misconduct. Broyles had represented The Bank of New York Mellon (“NY Mellon”) at a default hearing in a foreclosure case and obtained a judgment against Felix and Barbara Aponte. Approximately nine months later, Broyles was retained by the Apontes to defend them in the foreclosure action filed by NY Mellon. Broyles subsequently filed a motion for relief from judgment and other pleadings in the case, arguing that the default judgment he had previously obtained against the Apontes should be vacated. NY Mellon did not give informed consent to allow Broyles to represent the Apontes.

The conduct violated Rule 1.9. (Mike Frisch)

October 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 28, 2015

Quantum Physics

An opinion from the Minnesota Supreme Court

Appellant Stowman Law Firm, P.A. (Stowman), which represented a client pursuant to a contingent-fee agreement, voluntarily withdrew from the representation of the client when efforts to settle the case failed. The client retained substitute counsel who then successfully settled the case. Stowman brought an action to recover in quantum meruit the value of the services provided prior to the withdrawal. Following a bench trial, the district court found that Stowman failed to establish good cause for withdrawal and, therefore, was not entitled to recover in quantum meruit. The court of appeals affirmed. We conclude that an attorney may withdraw from a contingent-fee agreement with or without cause, provided that the withdrawal satisfies the rules of professional responsibility. But the attorney must establish that the withdrawal is for good cause in order to recover in quantum meruit the reasonable value of the services rendered prior to withdrawal. Because Stowman failed to establish good cause, we affirm.


We conclude that an attorney who withdraws for good cause from representation under a contingent-fee agreement may recover in quantum meruit the reasonable value of services rendered prior to withdrawal, provided that the attorney’s recovery in the event of withdrawal for good cause is not otherwise addressed in the contract and the attorney satisfies the ethical obligations governing withdrawal from representation.

 (Mike Frisch)

October 28, 2015 in Billable Hours, Clients | Permalink | Comments (0)

Holocaust Survivor Victimized By Courts?

The New York Appellate Division for the First Judicial Department has held that sanctions against one of two attorneys who represented an incapacitated person were proper.

The court remanded in order to grant the firm fees.

Although it is a primary focal point of the dissent, which believes that neither Citak should be sanctioned for his "missteps" and that the court below is to blame for everything that transpired, the issue of whether the court erred in entering the coguardianship order, without either confirming the consent of Dr. Dworecki or conducting a capacity hearing, is not before us. Indeed, the attorney who replaced Citak & Citak as counsel for Dr. Dworecki represented to the court at the sanctions hearing that she discussed the temporary coguardianship at length with Dr. Dworecki and "was very confident . . . that she had no desire to appeal." Nor, under the particular circumstances of this case, where Donald initiated, participated in and consented on behalf of Dr. Dworecki to the procedure adopted by the court, then denied his role and falsely accused the court of wrongdoing and fraud, would any such error, in and of itself, excuse the sanctionable conduct at issue, including Donald's material false statements in support of his applications.

The facts

in July 2012 petitioner, as Vice President of Nazi Victims Service Programs of Self Help Community Services, Inc. (Self Help), sought to have a guardian appointed for the person and property of Dr. Dworecki, age 94. Self Help had been providing community based services to Dr. Dworecki since 2002 and was concerned that her short term memory, judgment, and ability to perform the activities of daily living had been declining and that she was refusing to obtain necessary additional home care services. This included Dr. Dworecki's inability to cook, clean her apartment and person, and manage her medications by herself.

Dr. Dworecki's friend and financial advisor, Edward Muster, procured Citak & Citak to represent her in opposing the petition. Mr. Muster is the primary beneficiary under Dr. Dworecki's Last Will & Testament, executed on August 11, 2010. Although Mr. Muster claims that he was not present when the will was executed, he states in an affidavit that "[p]rior to the preparation of the Will, [Dr. Dworecki] told me what she wanted included in the Will. As on other occasions, I followed [her] instructions." Thus, it appears that he was responsible for its preparation..

The Citaks also acknowledge that on August 7, 2012, after being retained to defend this proceeding, they prepared, and filed in the Surrogate's Court, a new will for Dr. Dworecki which did not materially change the terms of the 2010 will.

The attorneys were accused of filing a frivolous appeal.

The record amply supports Supreme Court's finding that filings and remarks made by counsel during oral argument contained a number of inaccurate and outright false material statements in support of the two orders to show cause, accusing the court of misconduct and dereliction in its duties that were devoid of merit, and undertaken "primarily . . . to harass or maliciously injure another," thereby warranting the award of costs and sanctions for engaging in frivolous conduct (22 NYCRR 130-1.[1c][2]). What is disturbing is the fact that the court order appointing a temporary guardian for the AIP, and the focus of counsel's attack, was consented to by Dr. Dworecki and counsel before the court. It should be noted that following the April 30, 2013 court order imposing costs and/or sanctions, the Citak firm voluntarily withdrew as counsel to Dr. Dworecki.

At the sanctions hearing, it was conceded by counsels' attorney that statements accusing the court of fraud were unjustifiable, acknowledging "the inappropriate style and the disrespectful tone" of the submissions. Nevertheless, it is equally clear that the statements are attributable to Donald Citak, and there is a lack of record support for the imposition of an equivalent sanction against Burton Citak, who neither argued before the court nor submitted an affirmation in connection with the respective applications. Finally, further proceedings are required to determine the appropriate costs to be awarded (22 NYCRR 130-1.2), to reduce the award of costs and sanctions to a judgment and to set the reasonable amount of legal fees payable to Citak & Citak for their representation of Dr. Dworecki prior to the filing of the frivolous orders to show cause.

An impassioned dissent

The first error, which is not the focus of this appeal but which informs all else that happened here, was the unlawful imposition of an article 81 guardianship on a 94-year-old Jewish survivor of Nazi Germany against her will, without her consent and without a hearing.

The second error was made when the court imposed punitive sanctions and costs upon the elderly woman's lawyers for protesting the court's action in their motion papers. And, while these lawyers used strong words to convey their opposition to the unlawful order, they were only that — words — and did not cause any disruption to the court other than to point out the necessity of a statutory-mandated hearing to protect their client's due process rights. For this, they were hammered with severe costs and sanctions by an irate court...

In its haste to impose its own sense of what would improve the life of the Alleged Incapacitated Person (AIP), Supreme Court ignored the AIP's repeatedly expressed, deep desire for self-determination and independence. The court simply failed to appreciate or take into account the fears and concerns of this then-94-year-old German-Jewish Holocaust survivor, Dr. Eva Dworecki, whose family had been forced to flee Germany, surrendering all of their assets to the Nazi government, and who as a result remains suspicious of forced intrusions and financial claims asserted by authorities. She explicitly did not want strangers, appointed by government authorities, taking control of her assets and her personal decisions. Now, at the end of her days, she is being met with a dazzling array of providers eager to "assist" her, for which they can claim payment from her carefully conserved estate.

The majority's assertion that it "fully appreciate[s] [Dr. Dworecki's] fears and concerns" is a hollow protest. Supreme Court failed to consider the unique perspective Dr. Dworecki brought, as a result of her family's experience, to the type of "assistance" at issue here. While some elderly people might welcome such attention, assistance, and intrusion, Dr. Dworecki did not; her past experiences made her ambivalent and fearful about giving up control of her assets and decision-making. Not only did Supreme Court ignore the doubts, fears, ambivalence and concerns she expressed openly to the court, but, now, the majority is perpetuating that lack of sensitivity.

The dissent recounts the life story of Dr. Dworecki's father - a wealthy winner of the German equivalent of the Medal of Honor who had prospered until the Nazis gained power. The family was able to flee in 1939.

On sanctions

A person who has not been determined to be incapacitated has every right to know the expenditures being made from her funds by someone else. The paternalistic approach suggested by the guardian and approved by the court may have been intended as kindness, but it nevertheless amounted to a fraud upon Dr. Dworecki. Indeed, this Court has disciplined an attorney for a well-meaning misrepresentation to his client, notwithstanding the advice of the client's psychiatrist that it would be in the client's interest that the attorney do so (see Matter of Rochlin, 93 AD2d 683 [1st Dept 1983]); the court's approval of the guardian's expressed intent to avoid disclosing expenditures because Dr. Dworecki might become upset, a lay conclusion unsupported by psychiatric or other expert opinion, is no more justified when sanctioned by the court.

(Mike Frisch)

October 28, 2015 | Permalink | Comments (0)

The Man From Independence

Kathleen Maloney does her usual excellent work in summarizing a bar discipline case on the web page of the Ohio Supreme Court

An attorney from Independence will serve a one-year suspension with six months stayed for failing to keep his cousin informed about matters related to a trust he managed for her. The Ohio Supreme Court imposed the sanction today in a 5-2 decision.

Robert J. Belinger created a living trust in 1992 for his aunt and uncle. During the times relevant to this case, Belinger served as the trustee and managed the trust’s assets. The surviving beneficiary of the trust is Sister Barbara Cervenka, Belinger’s cousin and a Dominican nun who lives in Michigan.

In 2004, Belinger loaned $100,000 from the trust to his sons’ business. He informed Cervenka that he had made a loan, but didn’t indicate in a letter he sent her that the loan was unsecured and that he had personally guaranteed it and had a financial interest in the company. Belinger also made a loan from the trust to a friend, and that loan had a $350,000 balance in 2004. Both loans went into default.

Belinger declared bankruptcy personally in October 2010, but did not tell Cervenka, failed to notify her in writing that the trust was a creditor in his bankruptcy, and neglected to return her calls in a reasonable time.

Cervenka hired a new attorney in Michigan to handle the trust and fired Belinger as trustee. They did not discover the defaulted loans until April 2011 and learned even later that year that Belinger had filed for bankruptcy.

Cervenka sued Belinger in Cuyahoga County for breaching his duties as trustee, and the cousins ultimately agreed to a settlement.

Disciplinary Case
Belinger and the Cleveland Metropolitan Bar Association, which filed the charges against the attorney, agreed during the disciplinary process that he did not keep Cervenka informed about matters important to the trust or details related to the loans. He also failed to tell her about litigation affecting the trust.

The panel of the disciplinary board that considered the case identified several mitigating factors, found no aggravating circumstances, and suggested a public reprimand. However, the board rejected the panel’s conclusion that Belinger lacked a selfish or dishonest motive. Taking assets from Cervenka’s trust to loan money to family and friends was an aggravating circumstance, the board found. It instead recommended an increased punishment of a one-year suspension with six months stayed if Belinger commits no further misconduct and pays the costs of the disciplinary proceedings.

In a per curiam opinion, the Court’s majority adopted the board’s findings and recommended sanction.

Joining the majority were Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and William M. O’Neill.

Chief Justice Maureen O’Connor and Justice Judith L. French dissented and would have suspended Belinger for one year with no time stayed.

2015-0292Cleveland Metro. Bar Assn. v. BelingerSlip Opinion No. 2015-Ohio-4436.

(Mike Frisch)

October 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Professional Courtesy

Law360 has a report on an opinion of the Texas Court of Appeals, Third District holding that a complainant in an attorney discipline matter has no legal right to see Disciplinary Counsel's recommendation for dismissal of the complaint.

Even if we were to conclude that Doe’s claims fall within this exception to sovereign immunity, however, Doe has failed to allege a legally cognizable interest in obtaining a copy of [Disciplinary Counsel] Acevedo’s recommendation. Doe argues that he “properly alleged his specific and legally cognizable interest affected by the State Bar Defendants’ actions.” However, Doe has asserted no statutory or other basis for his contention that he is entitled to a copy of Acevedo’s recommendation. He cites section 81.072 of the Government Code, which requires the Texas Supreme Court to establish standards and procedures that provide for a full explanation to each complainant on dismissal of a complaint. See Tex. Gov’t Code § 81.072(b)(2). Yet he points us to no statute or rule requiring or even authorizing the Chief DisciplinaryCounsel to provide the complainant with a copy of the recommendation to the summary disposition panel. It is undisputed that Rule 2.16 does not require disclosure, and we are unpersuaded by Doe’s argument that he is somehow entitled to disclosure merely because the confidentiality rule does not expressly prohibit disclosure to complainants.

Doe claims that Acevedo’s denial of his request for a copy of her recommendation has prevented him from being able to review Acevedo’s finding and evaluate how his complaint failed to meet the standard of just cause, “render[ing] futile any effort to correct [his] grievance in a new filing.” But he has cited to no authority, and we know of none, for the proposition that Doe has a statutory or common law cause of action encompassing the legal right to demand documentation from the State Bar Defendants in order to assist him in preparing a potential future complaint against an attorney. Even if we were to construe the confidentiality provision of Rule 2.16 as inapplicable to Doe, he has not alleged, nor can he allege, any legal basis supporting his right t0 access or view Acevedo’s recommendation to the summary disposition panel.

If Texas bar rules deny a complainant the right to see how the bar handled the complaint, those rules require immediate change. 

So long as lawyers enjoy the privilege of self-regulation, don't bet on change.

Time for a public uprising demanding meaningful improvement of bar discipline. (Mike Frisch)

October 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)