Wednesday, June 27, 2018

Ventures Highway

A three-year suspension from the South Carolina Supreme Court

The charges against Kern arise from Securities and Exchange Commission (SEC) proceedings initiated against Kern and others following an SEC investigation of a fraudulent investment scheme perpetrated by Craig Berkman. Berkman fraudulently raised around $13.2 million from approximately 120 investors by selling membership interests in limited liability companies (LLCs) that he controlled. Unfortunately for these investors, Berkman was subject to a $28 million judgment in Oregon—in connection with another fraudulent investment scheme—and was also facing bankruptcy in Florida. Berkman began to use some of the funds from his new ventures to pay his bankruptcy obligations in Florida. Kern helped form and served as general counsel for Ventures Trust II LLC (Ventures II) and Face-Off Acquisitions, LLC, two of the LLCs Berkman used to carry out his crimes. Berkman pled guilty to criminal conduct in a criminal action parallel to the SEC's administrative proceeding.

He consented to an order that denied him practice privileges before the SEC, which the court concluded was not a basis for reciprocal discipline

We find the SEC is not a jurisdiction for purposes of reciprocal discipline. We also find that because Kern failed to take exception to the Panel Report, the Panel's findings that Kern committed misconduct are deemed admitted pursuant to Rule 27(a), RLDE, Rule 413, SCACR. Rule 27(a) provides in pertinent part, "The failure of a party to file a brief taking exceptions to the [Panel Report] constitutes acceptance of the findings of fact, conclusions of law, and recommendations." Rule 27(a), RLDE, Rule 413, SCACR. As noted above, Kern did not file a brief taking exceptions to the Panel Report. Kern's failure to adhere to Rule 27 is consistent with his conduct throughout these disciplinary proceedings.

He made false statements to investors and an attorney 

Kern's primary defense before the Panel and at oral argument was that he was totally unaware of Berkman's malfeasance and that as soon as he became aware, he resigned as general counsel for the investment entities and encouraged a principal in the companies to act as a whistleblower to the SEC. Kern's professed ignorance of Berkman's malfeasance does not save him. At the Panel hearing, Professor John Freeman was qualified as an expert in the field of securities regulation and testified as to a lawyer's duties and obligations when acting as general counsel for a private securities company. Professor Freeman explained that when a company makes representations to investors as to how their money is to be invested, general counsel is obligated to exercise due diligence to ensure the money is invested for the represented purposes. We conclude Kern acted recklessly in making the foregoing assurances to Berkman's bankruptcy attorney and to the Ventures II investors and that Kern failed to exercise the required diligence to ensure investors' money was invested for the purposes represented to them.

Sanction

We find Kern committed professional misconduct by recklessly providing false information to the investors and to Berkman's bankruptcy attorney. We find the appropriate sanction for Kern's misconduct is an eighteen-month definite suspension, and we order Kern to pay the costs of the disciplinary proceedings within thirty days of the date of this opinion.

ABA Journal reported on the Berkman conviction

A prominent graduate of an Oregon law school who once headed the state’s Republican party and was a candidate for governor has taken a plea in a criminal securities fraud case.

Craig Berkman, 71, sobbed in federal court in Manhattan on Tuesday as he apologized and pleaded guilty to one count each of securities and wire fraud, according to Bloomberg and Reuters. The charges concerned a scheme in which he persuaded 120 investors to hand over $13.2 million by pretending he had access to scarce shares of social media stock in companies including Facebook

(Mike Frisch)

June 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Two Disbarred In British Columbia

The Law Society of British Columbia has disbarred two attorneys for misappropriation of entrusted funds in unrelated matters.

One matter involved a fee for the administration of the estate of a deceased whose relatives were in Italy.

In May 2009, the Respondent was introduced to the Deceased to assist in addressing potential elder fraud on the part of an Attorney appointed under a Power of Attorney.  The Respondent prepared a new will and a revocation of the Power of Attorney, which the Deceased executed.  The new will appointed the Respondent and a friend of the Deceased as co-executors of the will.

On November 9, 2010, the Deceased passed away.  The Deceased’s elderly friend who had been appointed as co-executor under the will renounced her appointment as co-executrix of the Deceased’s estate (the “Estate”), leaving the Respondent as the sole executor of the Estate.

The Deceased’s brother, LG was the sole beneficiary of the Estate.  LG and his family, including his daughter, lived in a small town in Italy.  As LG was unfamiliar with legal documents and email, LG’s daughter often communicated with the Respondent on LG’s behalf.

The attorney took $50,000 more than the statutory fee.

When a compliance audit caught the issue, she explained

The family was extremely appreciative and grateful to me for the assistance provided to [the Deceased] prior to his passing and for attending to the administration of the Estate.  They had been so worried for him over the involvement of the former Attorney and felt helpless to be of assistance from such a distance.  Without me, they felt, much if not all would have been lost and [the Deceased] would have suffered in his last years, rather than be at peace knowing that all was well and he was not being taken advantage of.  For this, [the Deceased’s] family was adamant that I be compensated in a measure that to them was reflective of their appreciation of my personal attendances upon [the Deceased] and my professional assistance before and after his passing, as well as the peace of mind that I brought to [the Deceased] and [his] family, following the terrible experience he had with his former appointed Attorney.

There is a cultural element to this as well … Their generosity towards me was their way of repaying a social debt towards me, and showing in a fashion they deemed appropriate their gratitude and appreciation that a trusted person was found to support [the Deceased] to attend to his affairs before and after his passing.

… LG made it clear that he wished to confer a benefit on me as an expression of his gratitude for my role in handling matters on behalf of his brother, as outlined above, in addition to payment of my firms’ legal fees.

… I cannot now recite word for word how the figure of $100,000 was arrived at.  I do recall, however, specifically advising LG that he was under no legal obligation to compensate me beyond payment of my firm’s legal fees.

Not true, it turned out

The Respondent admits that she altered the figures in Interim Summary Version #2 and Final Summary Version #2 to conceal from LG and LG’s daughter that she had taken $110,000 rather than $60,000 in executrix fees.  In particular, the Respondent admitted that, under the Estate Income columns, she had changed two deposits of Estate funds to reduce the total income by $40,000, and the last income tax refund had been omitted.  The Respondent admitted that, under the Estate Disbursement columns, she changed the executrix fees to be $50,000 less; the income tax refund of $5,945.92 was reflected as tax owing; there was an additional debit for accounting and she altered her last invoice.

Disbarment was imposed notwithstanding the attorney's serious medical problems.

One effect of disbarment is a declaration that the Respondent is not suitable to practise law.  Disbarment is not immediately necessary to protect the public in this case, as the Respondent is a former member and not able to practise law.  However, that penalty serves to ensure that, should the Respondent apply in the future for reinstatement in the Law Society, a credentials hearing on that application for reinstatement must be held:  Rule 2-85(11).  Moreover, a lawyer who has been disbarred may not perform legal services for anyone, even for free:  Legal Profession Act, section 15(3); and Law Society of BC v. Power2009 LSBC 23 (CanLII)

The second case had superficially similar facts

In summary, the Respondent admits that she:

(a) intentionally misappropriated from trust the sum of $50,516.80 received on behalf of the estate she was representing;

(b) created 27 false bills for the estate and delivered them to her bookkeeper for the purpose of reconciling her trust account and concealing a trust shortage totalling $50,516.80; and

(c) misappropriated the sum of $4,312.91 and improperly withdrew the balance of $13,567.50 withdrawn from trust with respect to another estate.

In addition, the Respondent consented to an order that she be disbarred.

(Mike Frisch)

June 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Lease Of His Sins

Dishonest conduct merits a 90-day suspension, according to a recommendation of the Illinois Review Board

In 2015 and early 2016, Respondent leased office space at 55 East Jackson Boulevard in Chicago. He, in turn, sublet office space to other attorneys, including Carla Buterman, Eric Rakoczy, Phillip Brigham, Jason Epstein, and a few others. In March 2015, Respondent fell behind in his rent payments, and in September 2015, he stopped paying rent entirely. During that time, however, he continued accepting rent payments from his subtenants, who did not know that he had fallen behind in his own rent payments, and was struggling to pay his other bills.

On November 5, 2015, attorney Allen B. Glass filed an eviction lawsuit on behalf of the landlord against Respondent personally, his law office, and the law offices of Brigham, Epstein, Rakoczy, and "unknown occupants." Glass testified at Respondent's hearing that the subtenants had to be named in the lawsuit for possession purposes.

On November 6, Cook County Sheriff's Deputy Tony R. Lampkin went to Respondent's office and served the summons on him. He asked Respondent if he was authorized to accept service for the others on the service list, and Respondent said that he was. Lampkin thus indicated on the affidavit of service that he had left copies of the summonses and complaint with authorized persons. The subtenants were not in the office at the time Respondent accepted service. Respondent thinks he put the complaint and summonses in his desk drawer.

Buterman (who was not named in the complaint), Epstein, Brigham, and Rakoczy all testified that they did not authorize Respondent to accept service of process for them, and that Respondent did not tell them about the lawsuit or that they were named as defendants.

Respondent acknowledged that he accepted service on behalf of his subtenants; that he did not seek their authority to accept service on their behalf; and that he did not tell any of them that he had accepted service on their behalf.

On at least three occasions, Glass and Respondent appeared in court on the eviction lawsuit. Respondent did not tell the judge that the subtenants were not properly served. Glass testified that Respondent represented to the court that he was appearing on behalf of himself and the other named defendants. Respondent denied making any such representation and testified that the issue of who represented the subtenants never came up. The Hearing Board credited Glass's testimony, not Respondent's.

Respondent told Glass that he would be able to pay his back rent when he received a settlement from the City of Chicago. Glass agreed to continue the matter a few times to give Respondent a chance to present a payment plan. But the settlement that Respondent expected did not come through, and Respondent did not present a payment plan or pay any of his back rent.

Respondent told Glass that he would be able to pay his back rent when he received a settlement from the City of Chicago. Glass agreed to continue the matter a few times to give Respondent a chance to present a payment plan. The settlement that Respondent expected did not materialize and Respondent never presented a payment plan or paid any of his back rent.

Consequently, on January 21, 2016, the court entered an order of eviction and a judgment of $43,468.48 against Respondent and his law office subtenants. Respondent's subtenants learned of the order of eviction around the time it was entered, or shortly thereafter.

Buterman testified that she learned about the impending eviction around January 19, when another subtenant, who was not named in the complaint, told her he thought they were being evicted. Respondent told Buterman about the eviction about a day later. He showed her a copy of the eviction complaint, after she asked to see it, but did not give her a copy. According to Buterman, Respondent said he had accepted service of the complaint on behalf of everyone in the office and then put the complaint in his drawer because he did not want anyone to know he had been served with the complaint. He told her that he did not notify her about the eviction because he feared the subtenants would leave before he had a chance to work things out with the landlord.

Rakoczy testified that Respondent told him about the eviction at the end of January. Respondent did not tell him that an order of possession had been entered or show him the complaint or summons. Rakoczy did not learn about the lawsuit or that he had been named as a defendant until after he had moved out in February. He learned about the lawsuit from either Brigham or Buterman.

Brigham testified that he learned of the eviction from Rakoczy, and that Respondent came to talk with him later that day or the next day. Respondent told Brigham he made a business decision not to notify anyone and that he thought he would be able to resolve the eviction lawsuit because he had expected some cases to settle. Respondent did not show or give Brigham a copy of the complaint, or tell Brigham that he was named as a defendant.

Epstein testified that he learned of the eviction when Respondent and another male subtenant came into his office and told him they had to move in ten to fourteen days. He did not recall Respondent saying that a lawsuit had been filed and that he had been named as a defendant. Respondent did not give Epstein a copy of the complaint or summons, or tell Epstein that he had accepted service on Epstein's behalf. Epstein learned about the judgment after his conversation with Respondent.

After all of the tenants had moved out of 55 East Jackson, Rakoczy, Brigham, and Epstein filed motions to vacate the judgment against them, on the ground that service was improper because Respondent was not authorized to accept service for them. Glass agreed to vacate the judgment against the subtenants, and the court issued an order vacating the judgment against them.

Sanction

the cases cited by Respondent have less egregious misconduct, more mitigation, less aggravation, or some combination thereof, and do not support reprimand or censure here. Rather, we conclude that the 90-day suspension recommended by the Hearing Board is commensurate with Respondent's misconduct, consistent with discipline that has been imposed for comparable misconduct, and sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct.

A 90-day sit down for this pattern of deception strikes me as a very light sanction. (Mike Frisch)

June 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Second Time Around

Dan Trevas summarizes a decision of the Ohio Supreme Court

The Ohio Supreme Court today suspended a Solon attorney for two years, with one year conditionally stayed, for failing to promptly deliver client funds from a personal-injury lawsuit settlement, and several other violations of professional conduct rules.

Debbie Kay Horton’s two-year suspension is the second she has received in the past eight years. In 2010, the Supreme Court also suspended her for two years, with the second year stayed, for settling the claims of clients without their authority and converting settlement proceeds to her own use.

In a per curiam opinion, the Court noted that the Board of Professional Conduct concluded that Horton demonstrated “she has difficulty understanding and implementing acceptable law-office practices,” based on her two suspensions and another complaint about Horton that was investigated.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion. Justice Mary DeGenaro did not participate in the case.

Dispute Arises from Accident Representation
In 2012, Raquel Green and her minor daughter were injured in a car crash, and Green hired Horton to represent her and her daughter in a personal-injury lawsuit. Green signed Horton’s standard contingent-fee agreement, which provided Horton with a 33.3 percent fee if the case was settled before a lawsuit was filed, and a 40 percent fee if a lawsuit was filed.

Horton failed to properly document the agreement and make required disclosures to Green, including providing a written statement that indicated Horton had no malpractice insurance, or obtaining Green’s written approval to hire another attorney to serve as co-counsel.

Horton filed the lawsuit in 2014, then voluntarily dismissed it, and refiled the suit in February 2015. At a final pretrial conference nearly a year later, Green agreed to settle her daughter’s claim against the person responsible for the accident for $100,000 and settle her own claim for $25,000.

Fee Amount Disputed
Because Green’s daughter was a minor, Horton had to file for probate court approval of the settlement. A probate court magistrate ruled that the attorney fee for a minor’s claim was limited to one-third of the settlement, which was around $33,000. The magistrate then awarded Green $7,000 from her daughter’s settlement for “loss of service.” Horton indicated the money to Green was intended to be used to pay the remainder of Horton’s 40 percent contingency fee.

Horton and Green met at the Warrensville Public Library to sign the settlement checks. They had a disagreement about the fees and a $5,500 discount Horton offered to Green. As a result of the verbal altercation, a Warrensville police offer ordered the two women not to have contact with each other.

At that point Horton ceased contact with Green to abide by the officer’s order, but she did not file a written motion to withdraw from representation as required by local court rules. Horton also failed to appear at a hearing requested by the opposing lawyer to enforce the settlement.

Green filed a grievance with the Cleveland Metropolitan Bar Association, claiming she had not received the $7,000 awarded to her by the probate court. Horton told the bar association she sent Green a $7,000 check in April 2016 when the magistrate issued the decision, but Green reported she had not received it. Horton then waited another five months before issuing a new check to Green and stopping the payment on the original check.

Lawyer Admits Rule Violations
The bar association filed a complaint against Horton with the Board of Professional Conduct, alleging she violated 17 rules governing the conduct of Ohio lawyers. A three-member board hearing panel found that she committed nine rule violations. Along with failing to get her client’s written acknowledgement regarding the lack of malpractice insurance and use of a co-counsel, Horton also acknowledged she failed to properly withdraw from a legal proceeding, did not promptly deliver funds that her client was entitled to receive, did not maintain adequate records of her client trust account, and failed to take other steps to protect her client’s interests.

Court Considers Sanction
The board recommended that Horton be suspended for two years, with one year stayed with conditions. When considering a sanction, the Court considers aggravating circumstances that would increase the punishment it imposes on a lawyer and mitigating factors, which could lead to a reduced penalty.

The Court found Horton has a prior disciplinary record, engaged in a pattern of misconduct, and violated multiple professional rules. The opinion noted that in 2015, Horton was investigated by the bar association for a client-trust fund overdraft issue, and that Horton failed to meet required trust-account management practices after that investigation.

The Court also found the Horton demonstrated a cooperative attitude toward disciplinary proceedings, was forthright in discussing her past and present account mismanagement, and admitted to her rule violations.

The Court stayed the second year of her suspension on the condition that she not engage in further misconduct. To be reinstated to the practice of law in Ohio, Horton must prove she completed 12 hours of continuing legal education regarding law-office management, with three of the hours focused on client-trust-account management, and that she serve one-year of monitored probation.

2017-1416. Cleveland Metro. Bar Assn. v. Horton, Slip Opinion No. 2018-Ohio-2390.

(Mike Frisch)

June 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, June 26, 2018

Return To Sender

The Tennessee Supreme Court reversed a chancery court decision and denied reinstatement to a disbarred attorney

Attorney originally was admitted to the practice of law in Tennessee in 1974 and established himself in the practice area of trusts and estates. As of 2007, Attorney had not been disciplined by the BPR. In November 2006, Attorney was arrested on a seven count federal indictment related to the receipt and possession of child pornography, based on images discovered on Attorney’s laptop computer. In June 2007, Attorney pled guilty in federal court to three of these counts. In conjunction with these charges, Attorney executed a Consent to Disbarment Affidavit in August 2007, and an Order of Disbarment was entered in May 2008. After serving a portion of his five-year sentence of imprisonment, on October 4, 2011, Attorney was transferred to a Memphis halfway house. Attorney was discharged on March 16, 2012, after completing his sentence of incarceration.

He sought reinstatement in 2014

The conduct for which Attorney was prosecuted consisted of his downloading onto his computer between thirty and forty photographs of girls, between nine and fourteen years of age, appearing either nude or engaged in sex acts. There was no proof, however, that Attorney ever had engaged in sexual physical contact with a child. Following his incarceration, Attorney was diagnosed with pedophilia.

While the Chancery Court had subject matter jurisdiction, it erred on the merits

We have carefully reviewed the entire record in this case, and, contrary to the chancery court’s determinations, we hold that the record contains material and substantial evidence supporting the Panel’s conclusion that Attorney did not carry his burden of proving by clear and convincing evidence that he has the moral qualifications required to practice law in Tennessee. We agree with the BPR that the chancery court impermissibly engaged in reweighing the evidence in order to overturn the Panel. That is, the chancery court misapplied the applicable standard of review. Because, upon the proper application of the standard of review, the record supports the Panel’s conclusion, we reverse the chancery court and reinstate the Panel’s judgment.

Specifically, the record supports the Panel’s concern that Attorney was less than entirely honest with his probation officer about his inappropriate activities following his release from prison. Additionally, Attorney proffered witnesses to testify about his character without providing them with adverse information that might have had a negative impact on their assessment of his character, both the details of his criminal conduct and a description of his inappropriate conduct following his release from prison. While Attorney disclosed his inappropriate activities to the persons conducting his VCAP Evaluation and to Dr. Abel, we note that both of these evaluations were sought by Attorney not in order to further his treatment but in order to obtain reinstatement. It appears that the level of Attorney’s candor depends upon to whom he is speaking and for what purpose. 

The court chided the BPR

As set forth above, although the BPR filed its application for costs weeks after the deadline for doing so, the Panel nevertheless considered the application and awarded the requested costs to the BPR. The chancery court reversed the Panel’s award of costs solely on the basis that the application was late-filed. The BPR contends in this Court that, because Attorney never voiced any objection to the untimeliness of the BPR’s application, the chancery court’s “intervention on this issue was inappropriate and improper.”

We reject the BPR’s attempt to use its own missed deadline as both weapon and shield. However, we also disagree with Attorney that “[t]he assessment of costs to the [BPR] is only appropriate where the [BPR] is the prevailing party” and that, therefore, the chancery court’s reversal of costs was warranted because the chancery court reversed the Panel on the merits. In support of this proposition, Attorney cites to Tennessee Supreme Court Rule 9, Section 31.3(a). Contrary to Attorney’s assertion, Section 31.3(a) provides that the BPR shall seek costs even when the result of the formal proceeding is reinstatement. Tenn. Sup. Ct. R. 9, § 31.3(a). Moreover, it is the attorney’s burden to prove by a preponderance of the evidence that the costs sought by the BPR are unnecessary or unreasonable. Id. Clearly, the purpose of Section 31.3(a) is to allow the BPR to recover its reasonable costs in defending the integrity of the Tennessee bar. That the BPR may occasionally lose a quest to prevent a disbarred lawyer from being reinstated should not prevent the BPR from recovering the reasonable costs it incurs by undertaking the quest.

WMCactionnews5 reported that he had represented the Elvis Presley estate.

A Mid-South attorney who pled guilty to child pornography charges was sentenced Friday. Drayton Beecher Smith, once the attorney for the Elvis Presley estate, now knows his fate.

Smith was once a well respected local attorney. After pleading guilty to child pornography charges, Smith lost his license to practice law and a federal judge sentenced him to five years behind bars.

Thirty years ago, Beecher Smith was Elvis Presley's attorney. He's been a well respected lawyer ever since.

"Beecher has been a preeminent probate attorney. He has been a writer, he's been very active in civic matters around the community and he's just a well respected gentleman," says Beecher's attorney, Mark McDaniel.

In June, Smith pleaded guilty to possessing child pornography he viewed on the Internet.

The victims were multiple minors under the age of 12.

Friday morning, Smith was sentenced to five years in federal prison, and 10 years supervised release, the minimum mandatory sentence under federal guidelines.

"I think he's a good person. I think he's made some very bad decisions and he had a lot of tragedy in his life that led him down that particular path," adds McDaniel.

That tragedy includes the conviction of Smith's identical twin who is serving time in California for molesting a child.

Smith says he was researching his brothers criminal case online when he was lured to pornographic websites. Smith told the judge he was truly sorry.

Oral argument linked here. (Mike Frisch)

June 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Twofer

A legal malpractice claim against two law firm survived summary judgment per the New York Appellate Division for the First Judicial Department

The complaint sufficiently alleges a claim for legal malpractice against both the Budin defendants and the Neimark defendants as plaintiff has sufficiently met the minimum pleading requirements (see Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 198 [1st Dept 2003]).

The Budin defendants, as successor counsel, had an opportunity to protect plaintiff's rights by seeking discretionary leave, pursuant to General Municipal Law § 50-e(5), to serve a late notice of claim. Whether the Budin defendants would have prevailed on such motion will have to be determined by the trier of fact (see Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 284 AD2d 104 [1st Dept 2001], lv denied 97 NY2d 613 [2002]; F.P. v Herstic, 263 AD2d 393 [1st Dept 1999]). We do not find this determination to be speculative given that Supreme Court will weigh established factors in exercising its General Municipal Law § 50-e(5) discretion (see e.g. Rodriguez v City of New York, 144 AD3d 574 [1st Dept 2016]; Matter of Strohmeier v Metropolitan Transp. Auth., 121 AD3d 548 [1st Dept 2014]).

We agree with plaintiff's argument that the Neimark defendants' failure to serve a timely notice of claim, as of right, on the New York City Department of Education in the underlying personal injury action remains a potential proximate cause of his alleged damages. Plaintiff has a viable claim against the Neimark defendants despite the fact that the Budin defendants were substituted as counsel before the expiration of time to move to serve a late notice of claim. Thusthe Budin defendants' substitution can only be deemed a superseding and intervening act that severed any potential liability for legal malpractice on the part of the Neimark defendants if a determination is made that a motion for leave to serve a late notice of claim would have been successful in the underlying personal injury action (see Pyne v Block & Assoc., 305 AD2d 213 [1st Dept 2003]).

(Mike Frisch)

June 26, 2018 in Clients | Permalink | Comments (0)

For The Sake Of The Children

A Louisiana Hearing Committee proposes a year and a day suspension of an attorney for conduct after he had left his marital home

At approximately 2:00 a.m. on the morning of March 4, 2017, the Respondent drove his vehicle to the home of SD with his children in his vehicle after returning from a ski trip in Colorado. Believing that SD was in her rental home with a male guest, without permission or authority, Respondent kicked in the locked front door of SD’s dwelling, entered the inhabited dwelling, and located his wife and her male guest. After pushing his wife aside, the Respondent committed a physical battery upon her male guest. When SD attempted to intercede, Respondent battered/pushed her once again until such time as SD could persuade the Respondent to leave the residence.

The Respondent did so and drove to the marital home where he retrieved his wife’s clothing articles and returned with the minor children still in the vehicle to her dwelling and tossed her clothes on the front lawn and driveway area. After departing briefly, Respondent returned to his wife’s dwelling where, after attempting unsuccessfully to gain entry into her vehicle in order to retrieve items belonging to the children, he secured a nearby cement object/block and smashed it through the driver side rear side window. During the process of attempting to stop Respondent from damaging the vehicle, SD was again struck and pushed by Respondent while the children were in his vehicle crying.

He admitted the violations but sought a reprimand or a deferred sanction

The respondent is seeking a public reprimand or a fully deferred sentence; however, there are some aggravating factors to consider. There was an apparent selfish motive in the respondent’s behavior, and it had the potential of putting several lives in danger. The crime he has admitted to is a crime of violence. Additionally, he has  substantial experience (12 years) in the practice of law and was somewhat deceptive in dealing with ODC during the disciplinary process. For example, he was not consistent in his reasons given for why he departed the District Attorney’s Office. (Trial Transcript, Day 1, pp. 234, 241-46). Given the nature and seriousness of the offence, a suspension of one year and one day from the practice of law would seem appropriate.

The Advocate reported on the criminal case as did WBRZ 2. 

WBRZ has also learned, Deblieux's former boss has asked his office not be a part of any future criminal proceedings. Filings with the East Baton Rouge Parish Clerk of Court show District Attorney Hillar Moore states he's recusing his office from prosecution since Deblieux worked as an Assistant District Attorney. The DA's office notified the Attorney General's Office, however, Deblieux's wife is employed by the Louisiana Department of Justice. The recusal document states it's believed Attorney General Jeff Landry will recuse his office from prosecution of Deblieux as well. 

(Mike Frisch)

June 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

It Adds Up To A Proposed Disbarment

Disbarment has been recommended by the Louisiana Attorney Disciplinary Board for client-related and personal misconduct offenses

On July 23, 2014, deputies were dispatched to take the statement of Ms. Patureau, who suffered domestic abuse at the hand of Respondent. According to the crime report, Respondent had isolated Ms. Patureau in the master bedroom closet of her home and verbally abused her. When she tried to leave the closet, Respondent physically grabbe[d] her and threw her to the floor. While on the floor, Respondent grabbed Ms. Paturea by the neck and pinned her down. Ms. Patureau tried to get up, but Respondent grabber her hair and held her down. Ms. Patureau felt shortness of breath, and Respondent told her that she “deserved to die.” Respondent then rose and wielded a leather belt, menacing Ms. Patureau with it. Ms. Patureau was able to escape, shortly thereafter, the home with her two children. The crime report noted that Ms. Patureau had sustained minor injuries in the form of swelling of her left wrist and redness of her neck. Respondent was apprehended by deputies and placed under arrest for domestic abuse battery.

Ms. Patureau tendered a sworn statement to the ODC. She advised that while she was pinned to the floor, Respondent, who consumes chewing tobacco, spat tobacco saliva in her face. This is also evidenced in the crime report. Additionally, Ms. Patureau advised that on a later, separate occasion while she and Respondent lived with his parents, Respondent held the edge of a straight razor to her throat in a menacing and threatening manner. Asked if she feared for life, she admitted she did.

Another count involved another domestic violence victim.

Accusations against a judge in his child custody case

The basis of the formal complaint was statements that Respondent made to the news media (NOLA.com and the Advocate) during the election. Judge Mentz had, during the pendency of Respondent's family case, ordered that Respondent submit to a drug test, which Respondent had refused. Respondent spoke with the news media and it was reported "there was no basis for his ex-wife's request that he be drug-tested, and he accused Mentz of altering the court transcript as it related to the deadline by which he was supposed to take the drug test." According to a news story on NOLA.com, Respondent made accusations against Complainant by "asserting that Mentz has doctored the public record, altering the transcript of an August 7 court hearing." According to the Advocate article, Respondent further commented, stating that he was running for judge against Mentz to "highlight that Mentz doesn't belong on the bench." Respondent said that "when faced with a situation where I have firsthand knowledge (of misconduct) and I know it happened, how can I turn my back on this and not do it?"

...The investigation into the matter by the Fifth Circuit concluded that Respondent's accusations against Judge Mentz were without merit. It is undisputed that slander and libel are not speech protected by the First Amendment.

Sanction

In this consolidated matter, Respondent has engaged in multiple instances of neglect and failure to return unearned fees/pay restitution, has made false statements regarding the integrity of a member of the judiciary, and has committed several acts of domestic violence. As the lengthy discussion of cases above illustrates, any of this misconduct, standing alone, would warrant a lengthy suspension. In fact, the Board has previously determined that the combination of misconduct in 17-DB-002 warranted disbarment. Likewise, the Board finds that the combination of misconduct in 17-DB-025 warrants disbarment as well. Thus, the Board recommends disbarment for the misconduct in 17-DB-002 and 17-DB-025.

(Mike Frisch)

June 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 25, 2018

Nine Days After Admission

An attorney admitted to practice on October 10, 2017 is the subject of a recent complaint filed by the North Carolina State Bar.

It is alleged that, nine days later on a Thursday afternoon, he went to Goldston Park seeking the services of a prostitute.

He stopped his car near one T. H., who got into his car. He got some cash from the ATM, went to T.H.'s home for the agreed - upon act but then disagreed over the fee for services rendered.

T.H. threatened to cry rape, the attorney panicked and told her to "name her price." She did so then back to the ATM.

So far, so bad, but no arrest and he got out there physically if not financially intact.

But no.

Shortly before 8 pm that evening, he allegedly made a false report with the High Point Police that he had been robbed and sexually assaulted by a unknown prostitute.

It is not alleged that criminal charges were filed. (Mike Frisch)

June 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Scorched Earth

The Michigan Attorney Discipline Board has affirmed a disbarment order.

After he secured a judgment for a client, the defendant declared bankruptcy

On May 20,2009, a hearing was held in the bankruptcy matter on respondent's motions. Bankruptcy Court Judge Keith Lundin found that the evidence was overwhelming that the Manganos' bankruptcy filing was legitimate, not fraudulent. The judge described respondent's conduct as a "scorched earth collection action by [respondent] on behalf of Mr. Chaban." The judge also described respondent's claim that the Manganos' were engaged in fraud as "disingenuous at best, and frivolous at worst." The judge further found that respondent's motion for sanctions, which he subsequently withdrew, was not based on any reasonable investigation and that it was inappropriate for respondent to sign the motion. Finally, the judge ordered respondent to personally pay the reasonable expenses and attorney fees ofthe opposing parties for filing his frivolous motion to dismiss the bankruptcy petition. (Petitioner's Exhibits 13, 14.) Respondent appealed the bankruptcy court's rulings to the Sixth Circuit Court of Appeals, but the appeal was dismissed for lack of jurisdiction.

Nevertheless he persisted which led to

On January 4,2012, the U.S. District Court issued a second opinion and order that granted Chase[Financial]'s motion for summary judgment and imposed sanctions against respondent pursuant to 28  usc § 1927, noting that respondent's actions were "egregious and warrant the imposition of sanctions." The court further found that respondent "knowingly pursued meritless claims, intentionally abused the judicial process, and needlessly multiplied the proceedings in this action," and that respondent "engaged in overly aggressive tactics - aimed at harassing Chase into settling with Saffady - that unquestionably caused Chase to incur unnecessary legal fees." (Petitioner's Exhibit 35.) The court ultimately declined to impose sanctions on respondent because Chase withdrew its request that the court do so, citing confidentiality concerns and a reluctance to engage in further litigation with respondent.

In the bar case

As mentioned earlier, when respondent filed his answer to the formal complaint, he included a counter-complaint naming the former Grievance Administrator, Robert Agacinski, and the Administrator's Counsel, Ms. Uhuru, as "counter-respondents." Respondent argues that the hearing panel erred as a matter of law by dismissing his counter-complaint prior to the first misconduct hearing, and in denying his attempt to call the Administrator's counsel as an adverse witness at the January 10,2017 misconduct hearing.

Bottom line

we conclude that no error or abuse of discretion occurred in regard to the pre-hearing and evidentiary rulings made by the hearing panel. Likewise, the hearing panel's findings of misconduct have proper evidentiary support in the record, and the panel's application of the ABA Standards and rationale for the discipline imposed is similarly supported. Accordingly, the hearing panel's order of disbarment is affirmed.

(Mike Frisch)

June 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Opines

Two new opinions of the Board on Professional Conduct are described in this staff report on the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct has issued two advisory opinions. The first concerns out-of-state lawyers engaging in temporary transactional legal services in Ohio, and another concerns civil settlements.

Advisory Opinion 2018-02 replaces a 1990 advisory opinion and provides updated guidance to out-of-state lawyers representing financial institutions on a temporary basis in Ohio in order to close a loan secured by property in the state. The board concludes that an out-of-state lawyer, under the Rules of Professional Conduct, may prepare loan documents, negotiate the terms of the loan, and physically attend a loan closing in Ohio without running afoul of the general rule prohibiting the unauthorized practice of law by out-of-state lawyers.

Ohio conduct rules permit an out-of-state lawyer to engage in transactional legal services that arise out of, or are reasonably related to, the lawyer’s practice in another jurisdiction. The board points to several factors that demonstrate that the out-of-state lawyer is permissibly performing legal services in Ohio including whether significant aspects of the work involve the law of his or her jurisdiction and the client currently or previously was represented by the lawyer.

The board also concludes that the relatively short time frame required to complete the loan transaction satisfies a requirement in the rule that the services be performed on a “temporary basis.” This opinion withdraws Adv. Op. 90-12.

Advisory Opinion 2018-03 addresses the propriety of offering or accepting a civil settlement agreement that includes a provision restricting a lawyer’s post-settlement communications about information contained in the court record.  The board concludes that the use of such a provision in a settlement agreement limits a lawyer’s ability to attract new clients and thus represents an impermissible restriction on the lawyer’s right to practice under the Rules of Professional Conduct. The board notes that the rule protects the public’s unfettered ability to choose lawyers who have the requisite background and experience in certain areas of the law and prevents conflicts from arising between current and future clients.

Lawyers may refer to their participation in the underlying litigation, even when the settlement agreement was confidential, in order to advertise their expertise and availability to potential clients. The board recommends that the advisory opinion be applied prospectively to lawyer conduct.

The Ohio Supreme Court has indicated that it will be reviewing Adv. Op. 2018-3 and may propose amendments to the Rules of Professional Conduct in response to the opinion.

(Mike Frisch)

June 25, 2018 | Permalink | Comments (0)

Art Of The Steal

After rejecting as unduly lenient a proposed two-year suspension, the Georgia Supreme Court found a four-year suspension insufficient and ordered disbarment of an attorney

based on his conduct in connection with his representation, beginning in 2003, of a client and the various organizations his client created related to his professional endeavors as an art promoter (collectively, “the client”)...

Although Coulter’s work for the complaining client began as representation on personal tax matters and a landlord-tenant dispute, it expanded over the years to include a number of matters including personal and business issues. In 2010, Coulter assumed more responsibility over the client’s affairs, becoming involved in the receipt, depositing, transfer, and disbursement of the client’s funds collected in the course of the client’s businesses [and in doing so opened up a number of bank accounts on behalf of the client]. It appears that the client knew of some of the accounts Coulter had opened on behalf of the client but did not know of others, and in some of the accounts Coulter was the sole authorized signer. Coulter concedes these accounts were not approved lawyer-trust accounts and that they held only funds related to the client and his businesses, yet Coulter transferred funds from or through the client’s accounts to his operating account as payment  of attorney fees. It also appears that in just the final ten months of Coulter’s representation of this client, he administered more than $1 million through the client’s accounts. In those final months, Coulter paid himself $400,000 in fees from the client’s bank accounts. . . . Coulter did not provide any billing invoices to the client after 2008, but two of the complainants are lawyers who were formerly associates in Coulter’s law firm, and they printed a set of invoices from the firm’s billing system in 2011 and provided them to the client. The invoices contained substantial discrepancies that Coulter could not explain. Coulter concedes he did not keep and maintain complete and accurate records of this client’s funds and did not promptly notify the client of Coulter’s receipt of funds in which the client possessed an interest.

And

In addition, Coulter obtained from the client over 100 pieces of art, with an estimated value of over $850,000, as security for the substantial sums (often as much as $200,000 to $300,000) that Coulter claimed the client owed to him for professional services, and kept the art in an unsecure location in his personal office at his law firm.

Several justices dissented. (Mike Frisch)

June 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 24, 2018

Tippecanoe And Suspension Too

The Indiana Supreme Court accepted consent discipline of a 30-day suspension with automatic reinstatement on these facts

In 2015, Respondent entered into an “of counsel” relationship with a Texas law firm, Eastman Meyler, PC, d/b/a WipeRecord, which marketed various “criminal record removal services” nationwide. Under this contractual relationship, Eastman Meyler would generate customer leads, enter into representation agreements with clients, and provide all document preparation and processing, customer service, billing, and client management. Respondent, in turn, would “render only the legal services . . . which specifically require a license to practice law in Indiana.”

In sum, an Eastman Meyler attorney performed substantially all the work on cases. Typically, Respondent had no communication with Eastman Meyler’s Indiana clients, either before or after those clients had entered into representation agreements with Eastman Meyler. Respondent’s role in these cases largely involved reviewing and signing documents that were prepared and filed by Eastman Meyler. Respondent entered appearances on behalf of 57 of Eastman Meyler’s Indiana clients. No attorneys from Eastman Meyler petitioned for temporary admission in any of these Indiana expungement cases.

Leah Stein, an Eastman Meyler attorney who was not admitted in Indiana, performed the work and filed the pleadings in two particular expungement cases filed in Tippecanoe County. In each of those cases, Stein held herself out to the court and to opposing counsel as an attorney on the case. Respondent initially was unaware of this because he was not properly supervising Stein’s actions. When Respondent eventually did become aware of Stein’s actions, Respondent immediately acknowledged the error and apologized to the court, and he promptly contacted the managing partner of Eastman Meyler to ensure this would not happen again. Respondent later terminated his affiliation with Eastman Meyler after ensuring that all pending client matters had been resolved.


The parties do not cite any facts in aggravation. The parties cite the following facts in mitigation: (1) Respondent has no prior discipline; (2) each of Respondent’s clients received the expungements they were seeking; and (3) Respondent took prompt corrective measures upon learning of the problems with his arrangement with Eastman Meyler.

(Mike Frisch)

June 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Selling Bridges In Canada

An attorney has had a license revoked by the Tribunal Hearing Division of the Upper Canada Law Society

The Lawyer, Paul Thomas McEnery, was called to the bar in 1974. He practised for approximately 38 years in Ottawa. The central allegations in this application are that he misapplied or misappropriated over $2.5 million held on behalf of clients, failed to be honest and candid with clients, and failed to respond to the Law Society.

Mr. McEnery did not attend the hearing, although his counsel was present. Counsel agreed that Mr. McEnery had not responded and advised that he would not be responding to a Request to Admit. Accordingly, counsel agreed that Mr. McEnery was deemed to admit the facts set out in the Request to Admit under the Tribunal Rules of Practice and Procedure (“Tribunal Rules”).

Based on the deemed admissions, we found at the hearing that professional misconduct was established as alleged. After considering the parties’ submissions as to penalty, we ordered at the hearing that his licence be revoked, effective immediately, that he repay amounts to the Compensation Fund, and that there be no costs.

The story

Mr. McEnery asked at least 10 of his clients if they were interested in investing excess funds in “bridge loans” to other parties. These “bridge loans” provided a substantial return on short-term investments. Most of the particulars before us relate to those funds received in trust by the Lawyer that the Lawyer either misappropriated or directed to other people. Some of the monies received in trust funds were held for estate matters while other monies were the proceeds of sale of houses or condominiums. It appears there never were any bridge loans.

Despite a thorough investigation by a forensic auditor of the Law Society, it has not been possible to determine what happened to approximately $2.5 million that the Lawyer received from the clients, supposedly for investing in the bridge loans.

The Lawyer failed to co-operate with the Law Society, in 23 investigations, by failing to respond to correspondence from the Law Society and failing to produce information and documents, including books and records of his law practice, contrary to s. 49.3 of the Law Society Act, RSO 1990, c. L.8.

 It has been determined that all of the funds provided by one client were not used for bridge financing and were used without authorization for the benefit of either Mr. McEnery or other clients. In other instances, it was determined that the Lawyer withdrew funds from his trust account, made a cheque payable to a bank and then purchased a bank draft. By so doing Mr. McEnery was able to conceal the flow of funds from his trust account so that it was impossible to trace and determine the ultimate recipient of those trust funds.

 Mr. McEnery also represented to clients that he held funds in trust from the proceeds of sale of a house sold by an estate when in fact the statement was not true.

Mr. McEnery also repaid various clients with monies that had been drawn from monies in his trust account held for other clients for other fictitious “bridge financing” loans without the consent or knowledge of those other clients.

 Mr. McEnery also received payment for fees from clients that he claimed were owing to him, without rendering an account for services rendered, contrary to By-Law 9, s. 9.

Ottawa Citizen reported on the sanction. (Mike Frisch)

June 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 23, 2018

84,375 Feet To Let

It is almost July and time to pony up for the annual dues payment to the District of Columbia Bar.

If you suffer from sticker shock as dues have been going up significantly, a hint of the reason is buried in the latest edition of the Washington Lawyer magazine. 

The Bar has approximately 32,000 feet to lease in its old 13th and K digs and a whopping 52,375 feet to sublease in its new place on 4th Street.

If you are a D.C. bar member, welcome to the real estate business that you are now subsidizing.

My 2015 Cassandra warning is linked here. (Mike Frisch)

June 23, 2018 | Permalink | Comments (0)

Friday, June 22, 2018

Revenge Of The Eastern Shore Hicks

A road rage incident led to a 30-day suspension by the Maryland Court of Appeals

Paul was admitted to the Bar of this Court in June 2002. He is a full-time solo practitioner who has maintained a law office in Anne Arundel County.

This attorney grievance matter stems from two separate incidents. The first involved multiple confrontations between Paul and another driver which occurred in Wicomico and Dorchester counties. The second incident involved contentious litigation between Paul’s client, David Burke, and opposing parties, some of whom were represented by Edward Kerman, Esquire

Notably, he had a prior reprimand in a case where a dissent would have suspended him f or 90 days. 

The rage

The vehicular incident consisted of dangerous driving, a confrontation at a traffic light, and an accident that led to Paul being charged with multiple misdemeanors. Paul’s behavior and recollections both before and at the district and circuit court proceedings are also at issue.

At the evidentiary hearing, Paul chose not to testify to this portion of Bar Counsel’s allegations. Instead, Paul’s deposition testimony, taken on August 24, 2017, and testimony during the District Court trial in the criminal case, held on August 20, 2013, was admitted into evidence.

According to Paul’s version, in late afternoon on May 13, 2013, he was driving in the westbound lane on Route 50 in Wicomico County after attending an unrelated pretrial settlement conference held in Salisbury. Paul was traveling in the left lane when a black car in front of him slowed down and he observed that the female driver of the black car  was using her mobile phone. Paul moved to the right lane, beeped his horn while passing the black car, and then switched back to the left lane. During his deposition, Paul stated that he beeps his car horn every time he observes a driver using a mobile phone as a way of telling drivers to not use their phones while operating a vehicle.

Editor's note so do I.

The black car then sped past Paul, driving approximately seventy miles per hour and “cut him off while waiving her hand at him.” Paul admitted that, after being cut off, he probably drove too close to the black car. The black car sped up and then braked suddenly, causing Paul to nearly collide with the back of the black car. At first, Paul believed that the black car’s sudden stop may have been due to the driver’s use of her cell phone. After three consecutive sudden stops though, Paul determined that the black car’s driver was intentionally slamming on her brakes. Soon after, Paul and the black car approached a red traffic light, at which point Paul exited his vehicle and questioned the driver of the black car about why she was purposely decelerating suddenly. Paul stated that, while he was outside of his vehicle, the driver of the black car made faces at him, gave him the middle finger, stuck her tongue out at him, and generally acted belligerent. After the traffic light turned green, Paul moved to the right lane to “get away from the black car.”

Minutes later, now in Dorchester County, Paul attempted to move from the right lane to the left lane. Although Paul witnessed a car approaching in the left lane from
behind, he determined he had enough time and room to enter the left lane. While Paul was shifting lanes, the approaching car sped up and attempted to keep Paul from entering the left lane. Paul then realized that this car was the same black car from the earlier encounter. Paul alleged that the black car moved onto the shoulder located to the left of Paul’s car and sped up. Paul heard the rumble strip being driven on and saw the mud flap of the black car being torn off. Paul stated that the black car then attempted to merge into the left lane so he moved into the right lane. Paul was confident that the two vehicles did not make contact.

The black car then slowed down and eventually entered the left lane. Paul continued driving until he entered Easton and pulled off at a restaurant to use the restroom. When Paul entered the parking lot, a Maryland state trooper approached Paul and asked what had happened to his vehicle. Paul stated that nothing had occurred. The trooper pointed to paint on the side of Paul’s vehicle, and Paul asserted that he did not know where the paint came from. The trooper then told Paul that the driver of the black car had reported that Paul hit her vehicle, which Paul immediately denied. After another trooper arrived, Paul was arrested and given traffic citations charging negligent driving, failure to stop after accident involving damages to attended vehicle/property, unsafe lane change, and failure to return to/remain at scene of accident involving attended vehicle/property damage.

He showed up for trial without counsel but retained counsel on the day of trial. A continuance was denied because two witnesses had travelled distances to testify.

During the trial, the driver of the black car, Jasmine Taylor, recalled the details of May 13, 2013 differently than Paul’s trial testimony. Taylor testified that Paul was tailgating her car presumably because Paul wanted Taylor to move into the right lane. When the cars stopped at the red traffic light, Taylor stated that Paul exited his vehicle and began “aggressively yelling” and displayed his middle finger to Taylor before finally returning to his vehicle. After approximately eight miles, Taylor recalled that, while in the
process of passing Paul’s vehicle, Paul “swerved his car into [hers].” Taylor described being almost off the road due to Paul’s maneuver until Paul eventually moved into the right lane. After this, Taylor moved into the right lane behind Paul, and Paul sped off. Taylor asserted that her car was damaged.

A driver of a different car who observed both the altercation at the red traffic light and the impact between the vehicles, Roselle Harde, also testified. At the traffic light, Harde asserted that Paul exited his vehicle, displayed both of his middle fingers towards Taylor, and reentered his vehicle and drove off. Approximately eight miles later, Harde was driving in the right lane while Taylor drove next to Harde in the left lane. Harde witnessed Paul’s car drive in between Harde and Taylor’s cars, causing Harde to move to the right shoulder. Harde attempted to alert Paul that he could drive in front of her in order to avoid injury to any party. Thereafter, Harde observed Paul’s vehicle make contact with Taylor’s vehicle. After the cars hit, Harde stated that Paul moved behind Taylor and took a picture of Taylor’s license plate. Once Taylor then pulled off onto the shoulder, Harde did the same and gave Taylor her name and address. Harde later drove to Easton at the request of the police to identify Paul as the person who struck Taylor’s vehicle.

The district court judge considered the testimony of Harde to be credible and found Paul guilty of two charges: failure to return to/remain at scene of accident involving damage to attended vehicle/property and negligent driving. The district court judge then sentenced Paul to sixty days of incarceration, suspending all but twenty days, to begin immediately. The district court judge did not immediately set a bond and made a request that Paul’s attorney return at 4:30 p.m. While confined in a holding cell, Paul made a phone call to his wife. Paul told her that he had not received a fair trial because “these people on the Eastern Shore, they’re a bunch of hicks here and they hate people from Annapolis.” Paul asserts that, when his attorney conversed with the district court judge at 4:30 p.m., the district court judge set a $100,000 bond because “he didn’t appreciate [Paul] calling people from the Eastern Shore hicks.” That evening, Paul paid a bondsman $10,000 to secure his release.

Paul appealed the district court judge’s ruling to the circuit court and hired a new attorney for the appeal. Although Paul was not privy to the conversations between his new attorney and the Assistant State’s Attorney, Paul believed that the attorneys had worked out a plea agreement prior to the court proceeding. At the circuit court trial on September 16, 2013, Paul’s attorney offered a plea agreement for the record but the Assistant State’s Attorney claimed that the State had not agreed to that deal. In his deposition, Paul admitted that his attorney “maybe thought he had a deal and maybe put too much emphasis on that thought.” Thus, before the circuit court judge, Paul pleaded guilty to the two charges he  had been found guilty of in district court. After the Assistant State’s Attorney reiterated the factual background, the circuit court judge described Paul’s actions in the road rage incident as “not only strange” but “dangerous behavior.” The circuit court judge sentenced Paul to twenty days of incarceration to be served on weekends, with credit for the one day Paul served prior to posting bond following the district court case.

The other matter involved a misrepresentation to opposing counsel. The court found those allegations were not proven.

The court rejected a host of charges made by Bar Counsel but found some misconduct

We agree with the hearing judge’s assessment of Paul’s conduct; Paul’s dangerous and threatening conduct reflected adversely on his trustworthiness and fitness as an attorney. Accordingly, clear and convincing evidence supports the conclusion that Paul’s conduct violated both MLRPC 8.4(a) and (b).

Maryland Bar Counsel overcharged the case as per its recent custom and had several charges rejected, including those relating to the "bunch of hicks" remark that apparently was overheard on surveillance and reported to the judge violated Rule 8.2.

Paul suggested that the district court judge imposed a greater bond upon him because the district court judge had heard of his telephone conversation with his wife in which Paul stated “you can’t get a fair trial from these people on the Eastern Shore. They’re a bunch of hicks here and they hate people from Annapolis.” The hearing judge found that Paul “was merely stating his opinion to his wife” and that there was “no evidence that he was aware his private conversation could be overheard” or that Paul intended his opinion to be made public. The hearing judge concluded that without testimony from Paul’s lawyer in the district court case, whom Paul testified at his deposition told him that the district court judge had imposed the high bond because of overhearing the conversation, or from the district court judge himself, Bar Counsel did not meet its burden. For these reasons, we agree with the hearing judge’s determination that Bar Counsel failed to present clear and convincing evidence that Paul violated MLRPC 8.2(a) for his statements regarding the district court judge.

In the second matter, two issues emerged.

First, Bar Counsel prosecuted a "sad duty to report opposing counsel" complaint. 

Second, the court again rejected Bar Counsel's charge of a Rule 3.1 frivolous litigation violation. Perhaps that office should re-evaluate its understanding of that rule. 

The court here rejected both Bar Counsel's call for a longer suspension and the Respondent's suggestion that he had been punished enough.

Interestingly, the court awarded full costs to Bar Counsel notwithstanding the rejection of several charges. The court has focused on this issue in a number of recent cases.

Oral argument video linked here. (Mike Frisch)

June 22, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 21, 2018

His Award Is Disbarment

The Oklahoma Supreme Court disbarred an attorney for misconduct in three client matters.

His self-representation made an impression

The case at bar is an extreme example of how the trial panel's effort to provide due process to a respondent provides fertile ground for a respondent inclined to mischief to abuse the process.
. . . .
. . . [A]s is readily apparent in the 3083 page transcript, the Respondent routinely ignored deadlines and Orders all the while complaining that he wasn't being treated fairly. He was late to virtually every day of hearing. He falsified evidence. His disdain and contempt for the disciplinary process was palpable by his actions.
Respondent's utter failure to recognize that the door of due process swings both ways is punctuated by his application to this Court for Extraordinary Relief complaining that the Presiding Master had concluded that Respondent would not be permitted to elicit the testimony of his expert witness because of his failure to comply with the most fundamental of multiple orders and clear statutory mandate requiring that documents upon which his expert relied be produced to the Complainant.
Respondent's evolving defense as to Counts One and Two is that[,] to properly know whether he had accurately accounted to his clients[,] records going back to 2006 had to be considered (records he alternately claimed to not have but necessarily furnished to his expert). As the record became more and more confused because of Respondent's late production and manipulation of data, the Complainant asked leave to have yet another expert (in addition to the investigator for the Complainant) review and testify. Respondent agreed to this before he disagreed. . . .
The Trial Panel and the Presiding Master have been called upon throughout these proceedings to balance the need for an orderly proceeding and due process to all in accordance with fundamental rules of civil procedure as over and against the Respondent's seemingly endless quiver of obfuscatory tactics--all in the interest of providing an adequate record for this Court. It is the Byzantine abuse of the process by the Respondent which provides the clearest record in establishing the appropriate discipline in this matter.

We cannot agree more.

But what is even more insulting than Kruger's lack of respect for this institution is his lack of respect for his clients, as evidenced by his utter failure to express remorse or acknowledge the gravity of his wrongdoing. For example, at one point in his testimony--after hearing days of evidence demonstrating his mishandling of thousands of dollars of his clients' money--Kruger said: "you know, we're talking about nickels and dimes really." And at another point, in describing his work in representing Ms. McCarroll and her family, he stated: "So I should receive some kind of award from the Bar, I would think, like lawyer of -- of the universe." We find this irreverence particularly disturbing.

In light of this evidence, we conclude that Kruger breached his duty of candor owed to the tribunal, breached his duty to act fairly to the opposing party and counsel, and knowingly made false statements of fact in connection with a bar matter, thereby violating Rules 3.3, 3.4, and 8.1 of the Oklahoma Rules of Professional Conduct.

* * *

Based on the foregoing, it is clear that Kruger has committed professional misconduct as that term is defined in Rule 8.4 of the Rules of Professional Conduct. It is also quite clear that the only appropriate response to Kruger's misconduct is to disbar him. The possibility of Mr. Kruger continuing to practice law in our State poses too great a danger to its courts and to its people.

(Mike Frisch)

June 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Play On

The PGA lost a bid for summary judgment in an action brought by Vijay Singh per this decision of the New York Appellate Division for the First Judicial Department 

The motion court correctly denied summary judgment dismissing the cause of action against defendant for breach of the implied covenant of good faith and fair dealing based on defendant's alleged failure to exercise its discretion in good faith by summarily suspending plaintiff and publicly discussing the suspension (see generally Dalton v Educational Testing Serv. , 87 NY2d 384, 389 [1995]). Issues of fact exist as to whether defendant exercised such discretion arbitrarily, irrationally or in bad faith by failing to confer with or defer to the World Anti-Doping Agency (WADA), the alleged authority on the matter, prior to taking action against plaintiff and making public statements, since WADA's position on the substance at issue was nuanced. Issues of fact also exist on whether false and inaccurate statements made by Vowtow and Fincham implicating plaintiff's use of a banned substance were in violation of the implied covenant of good faith and fair dealing. The issue of whether and what damage resulted from any offending conduct remains an issue for trail. The court properly dismissed so much of that claim as relied on plaintiff's allegation that he was treated differently than other similarly situated members of the Tour.

Golf Digest covered the controversy

 Almost exactly a decade ago, Vijay Singh stepped into a public relations hornet's nest when he said he hoped Annika Sorenstam would miss the cut at the 2003 Bank of America Colonial on the PGA Tour.

Singh still doesn't talk to the writer who published that quote. That cone of silence may expand now -- on all sides. Suing the PGA Tour on the eve of its flagship event is not a way to win friends and influence people.

Lawyers for Singh said Wednesday they are suing the PGA Tour to "reclaim his reputation and hold the PGA TOUR responsible for its unwarranted effort to suspend Singh for his use of deer antler spray." The tour, not surprisingly, has no comment at this time.

By suing the tour, Singh is not only biting that hand that has fed him very well -- he has $67.5 million in career earnings, third all-time behind Tiger Woods and Phil Mickelson -- he is sort of suing the other players who benefit from the tour and its events.

And there are many among those players who were not happy when the World Anti-Doping Agency rescinded its ban on deer antler spray, leading to the tour dropping its 90-day suspension of Singh, which was under appeal at the time.

Singh freely admitted to using deer antler spray in a magazine interview while it was on the PGA Tour's banned substance list. That was changed when WADA concluded there was not enough human growth hormone in the spray to make it a performance-enhancing drug.

"I am proud of my achievements, my work ethic, and the way I live my life," Singh says in a news release by Peter R. Ginsberg Law, LLC, in New York City. "The PGA TOUR not only treated me unfairly, but displayed a lack of professionalism that should concern every professional golfer and fan of the game."

The timing of the suit is sure to annoy many players almost as much as it irks officials in PGA Tour headquarters here. That's about as in-your-face as it gets and is somewhat reminiscent of when three LPGA executives quit on the eve of the 2006 LPGA Championship, saying they had lost confidence in then commissioner Caroline Bivens.

At the time the suit was filed, Singh was still listed as having a 2 p.m. tee time in Thursday's first round of The Players. It's a pretty safe guess that the media room is rooting for a 64 by Vijay in the first round - and a trip to the interview room.

One of the risks in filing the suit is that the move likely means that anything in his file at the PGA Tour headquarters - and Singh has been controversial enough that a file certainly exists - is now fair game for public release, as it was in the case of John Daly when he sued a newspaper for libel.

The PGA Tour has a policy of not making public any fines or suspensions levied against players. The extent of the disciplinary actions against Daly were not known until he sued.

If there has ever been any actions against Singh, or even complaints, those would now become public knowledge. In fact, his 90-day suspension for deer antler spray was only made public when it was detailed in the suit Singh filed.

It's also probably safe to assume the PGA Tour will have crack investigators thoroughly probe every aspect of Singh's medical history.

The other risk for Singh is the elephant in the room throughout his career - a suspension for allegedly cheating, an allegation he denies, in the 1980s, would resurface larger than ever.

The accusation was that Singh changed a scorecard in the 1985 Indonesian Open in order to make a cut. The South East Asia Golf Federation suspended him indefinitely and he was not a member of any tour until resurfacing on the European Tour in 1989.

The only way this suit makes sense -- and the greatest risk to the PGA Tour is going to court rather than reaching a negotiated settlement -- is if Singh knows something. Have there been other drug penalties -- either performance enhancing or recreational -- the tour has issued to prominent players that Singh knows about but the public does not? If that is the case, then is the motive purely vindictiveness?

According to the the lawsuit filed Wednesday in New York:

"Singh seeks damages for the PGA TOUR's reckless administration and implementation of its Anti-Doping Program. After exposing Singh, one of the PGA TOUR's most respected and hardest working golfers, to public humiliation and ridicule for months, and forcing Singh to perform the type of scientific analyses and review that the PGA TOUR was responsible for performing, the PGA TOUR finally admitted that the grounds on which it sought to impose discipline were specious and unsupportable."

As for what Vijay want, the suit asks for:

"WHEREFORE, Singh respectfully requests that this Court enter judgment in Singh's favor, granting the following relief: 1.damages in an amount to be determined at trial; 2.punitive damages and attorney's fees; 3.and such other relief as the Court finds just and proper."

Singh withdrew last week at the Wells Fargo Championship pretty much as soon as the PGA Tour announced it was dropping its case against him in light of the WADA reversal on deer antler spray.

He last played at the RBC Heritage, where he missed the cut, and according to the lawsuit the tour had held more than $99,000 of his winnings in escrow pending his appeal of the suspension.

When Singh made his inflammatory comments about Sorenstam, he went out and won the EDS Byron Nelson Championship that week and then withdrew from Colonial, thus escaping further media scrutiny. It's not clear he has an easy road out this time, other than fully extending his cone of silence.

It could very well be that the next words we hear from Singh on this matter will be in court, where the questions are certain to be far more reaching than he ever gets in the interview room - and where the answers will have far greater consequences.

A matter that seemed as if it would quietly be forgotten now has the potential to not only drag on in a very public manner but also could drift into areas Singh has for decades avoided.

(Mike Frisch)

June 21, 2018 | Permalink | Comments (0)

But Her Emails

The Maryland Court of Appeals overturned a circuit court order commanding Bar Counsel to investigate Hillary Clinton's attorneys

Jurisdiction is not a flashy or glamorous area of the law. What it lacks in luster, however, it makes up for in fundamental importance in our legal system. As a threshold issue, one of significant constitutional dimension, jurisdiction must be addressed before a cause of action may proceed.

This case began when the Appellee, Ty Clevenger, submitted to the Attorney Grievance Commission of Maryland a complaint alleging professional misconduct by three Maryland-barred attorneys while they were representing former Secretary of State Hillary Clinton. The Office of Bar Counsel thereafter informed Mr. Clevenger that it would not undertake an investigation of the allegations in his complaint because he had no personal knowledge of the allegations presented and was not an aggrieved party or client.

Mr. Clevenger filed a petition for writ of mandamus in the Circuit Court for Anne Arundel County, seeking to compel Bar Counsel to open an investigation into the alleged misconduct of the named attorneys. The Attorney Grievance Commission and Bar Counsel (collectively, “the Commission”) filed motions to dismiss the petition and to seal the case to protect the confidentiality of the complaint and responses. Mr. Clevenger opposed both motions. The circuit court granted the motion to seal and denied the Commission’s motion to dismiss the petition. Following a hearing on the merits of the mandamus petition, the circuit court ordered the Commission to investigate the allegations presented in the complaint. The circuit court also vacated its previous order sealing the case.

We granted a writ of certiorari to determine whether, before reaching the merits of the case, the circuit court had jurisdiction to entertain the petition for writ of mandamus. For the reasons that follow, we hold that because this Court has original and exclusive  jurisdiction over attorney disciplinary matters, of which Bar Counsel’s decision to investigate a complaint is a part, the circuit court was without jurisdiction to consider and grant the mandamus petition and to order Bar Counsel to conduct an investigation of the allegations in Mr. Clevenger’s complaint.

Clevenger is an attorney admitted in Texas who filed a bar complaint

Specifically, Mr. Clevenger alleged that the attorneys violated Rules 19-308.3, 19-303.4(a), and 19-308.4(c) by destroying evidence related to ongoing federal investigations, failing to report the misconduct of the other attorneys, and engaging in conduct involving dishonesty. The allegations appeared to Bar Counsel to be based solely on information derived from publicly available sources.

Deputy Bar Counsel responded

It appears that you have no personal knowledge of the allegations presented in your correspondence, nor are you a personally aggrieved client or party possessing material information that would assist this office in reviewing such allegations. Under these circumstances, we decline to conduct an investigation of the named attorneys with you designated as the complainant.

The Maryland Rules grant Bar Counsel authority to open a complaint on Bar Counsel’s own initiative. Pursuant to Maryland Rule 19-707(b), the records of an investigation by Bar Counsel, including the existence and content of any complaint or response, are confidential. In accordance with that rule, we are unable to provide you with additional information.

He was undeterred

On December 20, 2016, Mr. Clevenger, proceeding without the assistance of a Maryland-barred attorney, filed in the Circuit Court for Anne Arundel County a Petition for Writ of Mandamus (“Petition”). He sought to have the circuit court compel Bar Counsel to conduct an investigation, arguing that then-effective Maryland Rule 19-711 required Bar Counsel to investigate every complaint that was not facially frivolous or unfounded. The Commission moved to dismiss the Petition for lack of jurisdiction, among other grounds.

And to the surprise of many onlookers

By a written order dated September 22, 2017, the court granted the Petition and ordered the Commission to investigate the allegations presented in Mr. Clevenger’s complaint.

The obvious jurisdictional bar prevents the court from addressing important issues of bar discipline accountability and transparency. An obviously politically motivated complaint is a poor  vehicle for such a discussion.

Video of the argument on the merits linked here.

Update: Capital Gazette covered the story and interviewed Clevenger. He is quoted as saying that with the right connections you can get away with "just about anything" in Maryland.

This is actually true but has nothing to do with this particular disposition. (Mike Frisch)

June 21, 2018 in Bar Discipline & Process | Permalink | Comments (1)

A Failed Test Of Character

An attorney who was censured in New Jersey received the same sanction as reciprocal discipline in New York

On February 25, 2015, Arthur Alte IV, a TD Bank customer, cashed a check for $1,185.65 at the drive-up window of the Hazlet, New Jersey, branch of TD Bank. Mr. Alte became distracted while on his cell phone and left the drive-up window without retrieving from the transaction tube the bank envelope containing $1,185.65 in cash and his driver’s license. A few minutes later, Mr. Alte realized his error and returned to the bank, and saw the transaction tube still sitting in place with a white envelope inside. When he opened the envelope, he found his driver’s license and 65 cents. He immediately alerted bank personnel about the missing $1,185, and contacted local police.

The Hazlet police reviewed the bank’s surveillance video for the drive-up area, and observed the driver of a white BMW automobile, the very next automobile to move through that lane after Alte, taking cash out of the transaction tube, counting it, and returning the envelope containing Alte’s driver’s license and 65 cents. The driver of that vehicle then drove away without conducting a transaction.

Two weeks later, on March 10, 2015, police received information from TD Bank identifying the respondent as the driver of the white BMW. The respondent had not returned the cash to TD Bank. Once contacted by police, the respondent went to the police station, cooperated fully with police, and admitted having taken the $1,185 on February 25, 2015. The respondent explained that he “had a momentary lapse of reason,” made a bad decision, and took the money.

Sanction

The DRB, upon review, found that although the respondent claimed that he had “a  momentary lapse of reason” when deciding whether to keep or return the $1,185, which he knew belonged to another bank customer, he “failed that impromptu character test, deciding to keep the money.” Further, the respondent’s lapse continued for another two weeks, until he was finally identified by bank employees. In mitigation, the DRB noted that once the respondent was identified, he cooperated with police, self-reported his conduct to the OAE, completed the PTI program, and paid full restitution to the victim. Further, the respondent demonstrated remorse for his conduct, and had no prior discipline in 30 years at the New Jersey bar. The DRB concluded that a censure “adequately addresses [the] respondent’s single, apparently aberrant, act.”

(Mike Frisch)

June 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)