Saturday, March 3, 2018

Bar Discipline For Domestic Violence Conviction

The web page of the Georgia Supreme Court has announced its anticipated opinions scheduled for release next Monday.

Among the disciplinary matters slated for release is a case described by the Aiken Standard

After former S.C. lawmaker Chris Corley pleaded guilty to a felony domestic violence charge Monday, the question remained as to whether he would lose his license to practice law in Georgia.

Second Judicial Circuit Judge Doyet A. Early III said Monday that Corley would be be disbarred in South Carolina; however, Corley practices law in Augusta, Georgia.

Corley, 36, pleaded guilty to the charge of first-degree domestic violence and was sentenced to six years in prison, suspended to five years probation. 

 He must also follow several stipulations that come with his probationary sentence, which includes hundreds of hours of community service and anger management.

According to the State Bar of Georgia's website: "Upon receipt of information or evidence that an attorney has been convicted of any felony or misdemeanor," the Office of the General Counsel will immediately assign the matter a State Disciplinary Board docket number and petition the Supreme Court of Georgia for the appointment of a Special Master to conduct a show cause hearing.

Within 30 days of the show cause hearing, the appointed Special Master will then file a recommendation with the Supreme Court of Georgia, which may order discipline as deemed appropriate, according to the Georgia State Bar's website.

 It is not known at this time whether or not Corley will be disbarred.

Corley was indicted earlier this year after he was arrested for punching his wife with a closed fist until she bled, biting her on the nose, and then pointing a handgun at her and threatening to kill her and himself at the couple's Sugar Hill Drive home in Graniteville on Dec. 26, 2016, according to court records.

The assault took place in front of two of the couple's three children, according to court records.

The lawmaker resigned from his State House seat in January amid news of his indictment and reported expulsion efforts. 

Also from Palmetto State

Former S.C. lawmaker Chris Corley pleaded guilty Monday to beating his wife in their Aiken County home in December but will avoid prison as long as he completes his court-ordered probation.

Corley pleaded guilty to first-degree criminal domestic violence, a felony. Circuit Judge Jack Early sentenced Corley, 36, to six years, suspended to five years probation. That means Corely will avoid prison as long as he successfully completes his probation, which includes community service and anger-management classes.

The judge could have sentenced him to up to 10 years.

Early’s decision followed emotional testimony from Corley’s wife, Heather, who said her husband was diagnosed in January with bipolar disorder II. Monday was the couple’s 13th wedding anniversary, she said.

“None of this was my intention, for my husband to be facing prison,” she said in court. “I only wanted him to get help.”

Heather Corley said that her husband saw three doctors in the year before the assault, and that he was misdiagnosed and prescribed medications that exacerbated his behavior, which included periods of high stress and memory loss.

“He just wasn’t our Chris,” she said. “He told me several times, ‘I feel like I’m losing months of my life.’”

Prosecutors said the Dec. 26 incident was sparked by a text message Corley sent to his wife that she believed was intended for another woman. When she confronted him about it, he threw her on the bed, hit her in the head, bit her nose, grabbed the skin under her eyes and pulled it down and pulled a gun on her, prosecutors said.

Heather Corley said she tried getting the charges dropped, and was upset that the state subpoenaed the couple’s 8-year-old daughter to testify. Their oldest son was recently diagnosed with autism and bipolar disorder, she said, adding that they could not afford the school he now attends if her husband were sent to prison.

“I’m desperate to save my family and keep my family together,” she said.

Corley was charged initially with first-degree criminal domestic violence. However, a grand jury indicted him on a charge of aggravated domestic violence, for which he faced up to 20 years. In exchange for pleading to the lesser, first-degree charge, prosecutors dismissed a firearm charge.

Before sentencing Monday, Corley apologized to his family and the Aiken County residents he formerly represented as a Republican in the S.C. House. He heard for the first time Monday the 911 call made from their Graniteville home during the incident, in which his 8-year-old daughter is heard pleading, “Please stop. Just stop, Daddy. Just stop. Daddy, why are you doing this?”

“It’s a very difficult thing for a father to hear,” Corley said. “... I would beg this court for mercy in this matter, so that I can continue to be a father to my children.”

Corley was suspended from the House in early January and resigned later that month, just before House members were to vote on a resolution to expel him.

Elected in 2014, Corley was among those voting to stiffen the state’s domestic violence laws in 2015 after South Carolina ranked among the deadliest states for violence against women each year for nearly 20 years.

Corley leaving the courthouse Monday with no prison time sends the wrong message about the state’s approach to domestic violence, said Susan Selden, executive director of the Cumbee Center to Assist Abused Persons, an Aiken nonprofit dedicated to advocacy for victims of domestic violence and sexual assault.

“I really fear for this family’s safety,” she said. “I think it says to the community that South Carolina is still not willing to take a good, strict stance on domestic violence, and Aiken County is certainly not taking this seriously. You can’t just say somebody’s a good family and they’ve been good people in the community and just brush it under the rug.”

An attorney in Augusta, Ga., Corley could face suspension or disbarment by the Georgia bar pleading guilty to a felony. His attorney said he will report the conviction to the bar Tuesday.

(Mike Frisch)

March 3, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Probate Judge Accused Of Handling His Own Private Practice Matters

A recently-certified complaint alleging misconduct by a probate judge may be found on the web page of the Ohio Board of Professional Conduct.

The judge was sworn in to fill an unexpired term on July 8, 2014 as a Mahoning County Probate Judge. He was coming from an obviously busy private practice.

One allegation involves his representation of an executor who had apparently depleted estate assets. He warned her that the allegations created a "serious situation that needs your immediate attention." 

The executor failed to give the serious matter that required attention.

The accused judge did not report the possible defalcation.

Rather, it is alleged, he presided over that very same case and issue as a probate judge!

The executor's brother filed the complaint.

Not only that.

It is further alleged that he presided over 200 matters in which he had represented parties in private practice, appointed fiduciaries, approved legal fees for himself and his former firm and other activities associated with his private work.

The judge's answer admits most of the factual averments but appears to deny misconduct. The 200 matters were apparently the result of an oversight.

The case is In re: The Complaint Against  the Hon. Robert Ruso, Jr. The pleadings can be accessed here. (Mike Frisch)

March 3, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Loose Lips

The North Carolina State Bar has filed charges against an attorney who allegedly violated his duty of confidentiality in two criminal defense matters.

In a robbery case, he allegedly told the jury in his opening statement that the "client had engaged in a discussion about robbing a person."

The judge halted the proceedings, excused the jury and inquired of the client if said statement had been authorized.



After the mistrial, the attorney allegedly without consent told the prosecutor that his client said that he had planned the crime but it  was a "joke among friends."

In a second matter, the attorney allegedly visited a represented defendant without the counsel's permission, made inappropriate promises to secure the representation and violated confidentiality in his discussions with the prosecutor by indicating additional criminal activities by his client.

A third count involves problems revealed in a trust account audit. (Mike Frisch)

March 3, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, March 2, 2018

Failure To Disclose Leads To Disbarment

The Maryland Court of Appeals has disbarred an attorney

 Court of Appeals disbarred lawyer who knowingly failed to disclose during bar application process that, in civil case to which lawyer was party, trial court found that lawyer had engaged in dishonesty and misconduct, and lawyer falsely stated to Bar Counsel that he had disclosed all required information during bar application process.

The case involved his pre-law school work as an independent journalist and a video he recorded

Before becoming a member of the Bar of Maryland, Gregory Allen Slate, Respondent, initiated a civil case [against the American Broadcasting Company] concerning alleged copyright infringement, claiming that hidden camera footage that he had recorded was used without his authorization. The trial court dismissed the case on the ground that Slate had engaged in bad-faith litigation conduct. The trial court found that Slate: fabricated a letter and submitted it to the trial court in bad faith; gave deposition testimony that was either perjurious or, at least, intentionally misleading; and repeatedly attempted to abuse the discovery process through such actions as attempting to fraudulently collect evidence, providing discovery materials in a soiled envelope that strongly smelled of excrement, improperly videotaping his own deposition testimony, and providing voluminous irrelevant and misleading materials. Slate filed a motion for reconsideration. The trial court denied the motion, and found that Slate’s filings in connection with the motion showed a continuing pattern of omissions and obfuscations.

Slate did not attach copies of the trial court’s opinions to his bar application or provide any information about the findings therein. In response to Question 11 on the bar application, which called for information about cases to which an applicant had been a party, Slate disclosed basic facts about the case, such as the circumstance that an appeal was pending at the time. Slate, however, did not disclose the trial court’s opinions or the findings therein. Significantly, Slate responded "No" to Question 18—a "catchall question" that calls for any negative information that was not requested by, or given in the responses to, any of the other questions.

After submitting his bar application, Slate falsely affirmed under oath that all of the facts in his bar application remained correct. Slate did not supplement his bar application with the trial court’s opinions or the findings therein. Nor did Slate disclose the trial court’s opinions or the findings therein during the character interview. Nor did Slate disclose the information during a meeting with the co-chairs of the Character Committee for the Fourth Appellate Judicial Circuit ("the Character Committee"). Consistent with the Character Committee’s co-chairs’ recommendation, the State Board of Law Examiners ("the SBLE") cleared Slate for admission without a hearing. This Court, unaware of the trial court’s findings of dishonesty and misconduct, admitted Slate to the Bar of Maryland.

He had disclosed

In his bar application, Slate disclosed that he had been involved in thirty-three criminal cases, and had been a party to forty-three civil cases, including the ABC Case. Slate disclosed the ABC Case’s name, the filing date, the court’s name and address, the date of trial, and the date of disposition. Next to “Disposition[,]” Slate wrote: “Dismissed pending appeal in the United States Court of Appeals for District of Columbia Circuit[.]” Slate responded “No” to the question “Are you [the] subject of any continuing court order?” Slate also responded “No” to the question “Was the judgment entered against you?” Slate responded “No” to Question 11(b), which stated: “Have any judgments ever been entered against you?” Slate also responded “No” to Question 11(c), which stated: “I have attached to this Application certified copies of all judgments listed in 11(b), whether satisfied or unsatisfied, and listed below the names and present addresses (with zip codes) of the holders.”

The problem was reported by an attorney who discovered the adverse opinions on a web page set up by a former business associate of Slate who became an enemy.

Within a year, a Maryland lawyer became aware of the trial court’s opinions, and filed a complaint against Slate with Bar Counsel. Subsequently, Bar Counsel requested from Slate a response to the complaint. In a written response, Slate stated that he had disclosed all required information during the bar application process.

He sought to blame an Assistant Dean at his law school and the Secretary to the State Board of Law Examiners for his non-disclosure

At the disciplinary hearing, Slate testified that Shipley, Diamond, and various other individuals advised him not to disclose the Opinions in his bar application. Slate blamed these individuals for his failure to disclose the Opinions in his bar application. The hearing judge found: “Perhaps the individuals did, in fact, navigate [Slate] toward nondisclosure on his bar application; nevertheless, [Slate]’s attempt to shift the blame does not absolve him of his responsibility to prove his character to practice law, and to do so without knowingly omitting material facts[.]” (Citations omitted).


At oral argument, when asked about the appropriate sanction, Slate responded that "this is an all-or-nothing scenario." We agree. "[A]bsent compelling extenuating circumstances, disbarment is ordinarily the sanction for intentional dishonest conduct[.]" Attorney Grievance Comm’n v. Mahone, 451 Md. 25, 46, 150 A.3d 870, 883 (2016) (cleaned up). Here, Slate does not contend that there are any compelling extenuating circumstances. Upon our independent review, the hearing judge’s opinion is devoid of any facts that could possibly constitute compelling extenuating circumstances.

Oral argument linked here. (Mike Frisch)

March 2, 2018 in Bar Discipline & Process | Permalink | Comments (1)

A "Kangaroo Kourt" Proposes Disbarment

The California State Bar Court Hearing Department proposes disbarment of an attorney for misconduct in connection with a family-owned property

 Respondent filed five bankruptcy petitions. With respect to two of the petitions, the bankruptcy court determined that they were “part of a scheme to delay, hinder and defraud creditors.” This court agrees with the bankruptcy court. In at least three of the five bankruptcies, Respondent abandoned his bankruptcy petitions once the mortgage company filed a motion for relief from the automatic stay or the automatic stay was lifted. Four of the bankruptcy matters were closed after Respondent failed to file required documents or failed to appear at mandatory proceedings. Clear and convincing evidence exists establishing that Respondent intentionally filed bankruptcy petitions specifically to delay foreclosures rather than to obtain bankruptcy relief. Respondent knowingly engaged in a scheme to delay, hinder and defraud creditors, which abused the bankruptcy system. “Such serious, habitual abuse of the judicial system constitutes moral turpitude in violation of section 6106.”

He had three prior bar discipline matters and here

Respondent knowingly engaged in a scheme to defraud creditors by repeatedly filling bankruptcy petitions to delay the foreclosure of the San Pedro property, made false representations and concealed facts from the bankruptcy court in an effort to mislead the court. Respondent’s multiple acts of wrongdoing are a significant aggravating factor.

This did not help

Respondent has shown indifference to his misconduct while exhibiting disregard and disrespect for these proceedings. Respondent refused to testify during the hearing in this matter and refused to call any witnesses. Respondent claimed that he was unable to testify because he was ill; yet he ably and aggressively cr0ss—examined the OCTC investigator in this matter. Respondent’s indifference demonstrates his failure “to appreciate the seriousness of the charges in the instant proceeding or to comprehend the importance of participating in the disciplinary proceedings. [Citation.]” (Conroy v. State Bar (1990) 51 Cal.3d 799, 805.)

Moreover, as evidence of his disrespect, Respondent referred to these proceedings as a “mockery” and “a kangaroo kourt.” “It is well settled that an attomey’s contemptuous attitude toward the disciplinary proceedings is relevant to the determination of an appropriate sanction. [Citations.]” (Weber v. State Bar (1988) 47 Cal.3d 492, 507.) Respondent’s indifference is a significant aggravating factor.

(Mike Frisch)

March 2, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Confused But Not Dishonest

An Illinois  Hearing Board recommends  a year and a day suspension for findings neglect while rejecting a series of other charges levied by the Administrator

This matter arises out of the Administrator's four-count Complaint alleging Respondent engaged in dishonesty by knowingly making a false statement to a police officer (Count I); committed the criminal act of possession of cocaine and thereby also engaged in dishonesty (Count II); committed the criminal act of driving under the influence (Count III); and failed to act with reasonable diligence, failed to keep a client reasonably informed and failed to expedite litigation (Count IV). Respondent did not answer the Complaint, and the allegations were deemed admitted. Respondent failed to appear at her disciplinary hearing.

Count I alleged

On October 13, 2016, Respondent left her home alone, driving a white pickup truck. She drove to Bogies Sports Bar in Morris, Illinois. After leaving Bogies, Respondent crashed her truck into a parked utility vehicle. At about 11:20 p.m., Mia Shannon, a concerned citizen, called 911 and reported a car crash. Shannon saw Respondent's white truck traveling on west Chapin Road in Morris and saw the truck crash into a parked utility vehicle. Morris Police Officer Mark Vanderploeg was dispatched to the area to investigate.

At 11:23 p.m., Officer Vanderploeg observed that a white pickup truck had crashed into a parked heavy duty utility vehicle on Chapin Street. No one was inside or near the pickup truck. Inside the truck, Officer Vanderploeg found a deployed airbag with blood on it, an earring in the driver's seat, an empty plastic cup next to spilled liquid and a strong odor of alcohol, drug paraphernalia with residue, cannabis, and pills.

After conducting some investigation about the circumstances of the crash, Officer Vanderploeg went to a hospital where he spoke with Respondent. Her speech was slurred and she smelled of alcohol. Respondent told him that her truck had been stolen. However, Respondent had crashed her truck on Chapin Road. Her statement that her truck was stolen was false, and she knew it was false.

Not proven 

Based upon the above information regarding the overall physical and mental condition of Respondent on the night in question, we are unable to find that Respondent knowingly sought to deceive the police by making a false statement about her vehicle being stolen. Rather, we find it much more likely that Respondent made statements while in a confused state of mind based upon alcohol use, physical injuries arising from the accident, or both.

Thus, we find that the Administrator failed to prove that Respondent engaged in dishonesty, fraud, deceit or misrepresentation by knowingly making a false statement to a police officer, as charged in Count I.

Count II arose from these alleged facts

On December 24, 2016, at 1:42 a.m., Deputy Butterfield and Sergeant Clampitt, both of the Grundy County Sheriff's Office, located Respondent inside Honest Abe's Tavern, a bar in Will County. Respondent was wanted in Will County on a failure to appear warrant stemming from a Joliet traffic ticket. The officers entered the bar and saw Respondent inside. They told bar security personnel that they were there to speak to Respondent. Security informed the officers of Respondent's exact table inside the bar.

Security personnel informed Respondent that the police were there to speak with her. Respondent then picked up her jacket and walked over to the bar section of Abe's. Respondent had two small plastic bags containing cocaine and cannabis inside her jacket. She walked over to Philip Centracchio and handed him both plastic bags. Both Respondent and Centracchio were immediately detained by deputies.

While being detained, Centracchio stated that the plastic bags did not belong to him and that Respondent had walked up to him and handed them to him. The contents of the plastic bags were suspect cannabis and cocaine, and one bag field tested positive as cocaine.

On December 24, 2016, Respondent was arrested for possession of cocaine and charged with Possession of a Controlled Substance in case number 2016CF282 in Grundy County. A custodial search of Respondent found drug paraphernalia (a bowl) with cannabis residue. The suspect cannabis was entered into evidence. As of the date of the filing of the disciplinary Complaint, the criminal case was still pending in Grundy County.

Nope as to dishonesty

The unlawful possession of a controlled substance, including cocaine, under 720 ILCS 570/402, does not include any element of dishonesty or deceit. Additionally, we have not been cited to and we have not found any authority to support a finding of dishonesty based upon the possession of a controlled substance. We note, for example, that in Scarnavack, 108 Ill. 2d at 459, the respondent engaged in misconduct by possessing .46 grams of cocaine. However, the findings of misconduct did not include dishonesty. Thus, we find that the Administrator failed to prove that Respondent engaged in dishonesty, fraud, deceit or misrepresentation by knowingly possessing cocaine.

And Count III

On January 15, 2017, Respondent visited Fergy's Bar & Grill on Main Street in Seneca, Illinois. Also on that date, Police Officer Michael Hetelle was on duty in the area of Main Street in Seneca. Shortly after 3:00 a.m., Respondent and another person were in the parking lot of Fergy's yelling at two other people across the parking lot. Respondent and the person with her got into a pickup truck with Respondent driving.

Respondent drove out of the Fergy's parking lot onto the roadway. After driving about two blocks, Respondent drove through a stop sign and was pulled over by Officer Hetelle. Inside the truck, there was a plastic cup containing alcohol. Respondent admitted to Officer Hetelle that she had consumed alcohol before driving that evening. Officer Hetelle smelled alcohol on

Respondent's breath, observed that her eyes were glassy and red, and that her speech was slurred. Respondent agreed to submit to a "standardized field sobriety test" (SFST). Respondent failed all SFSTs that were administered. Respondent refused to submit to a preliminary breath test.

Respondent was arrested for driving under the influence and taken to the police station. She was again offered a breath alcohol test, but declined to take it. A Summary Suspension was issued to Respondent. She was also issued citations for disobeying a stop sign, driving under the influence, and illegal transportation of alcohol. She was given a notice to appear in court on March 3, 2017, at the LaSalle County Courthouse, in case numbers 17 TR 465, 17 DT 21, and 17 TR 466.

Strike three

Based upon the overall facts alleged, the exhibits presented by the Administrator, and the lack of any allegations regarding the arresting officer's education and experience, we are unable to find by clear and convincing evidence that Respondent committed the criminal act of driving under the influence of alcohol.

Thus, we find that the Administrator failed to prove by clear and convincing evidence that Respondent committed the criminal act of driving under the influence in violation of 625 ILCS 5/11-501, and as charged in Count III.


The Administrator requested the sanction of suspension for two years and until further order of the Court. (Tr. 38). We note that the Administrator's recommendation was based upon all of the charges of misconduct in the four-count Complaint and that we have found that the misconduct charged in Count I, a portion of Count II, and Count III was not proved.

The Respondent engaged in misconduct by committing the criminal offense of unlawfully possessing the controlled substance of cocaine. (Count II). The Supreme Court has made it clear that an attorney who commits the criminal act of unlawfully possessing even a small amount of cocaine demonstrates a lack of respect for the law and violates an attorney's solemn duty to encourage respect for the law. In re Scarnavack, 108 Ill. 2d 456, 460-61, 485 N.E.2d 1 (1985).

Similarly, in In re Dempsey, 94 CH 454, M.R. 11064 (May 26, 1995), the Hearing Board stated that the attorney's "DUI conviction demonstrates his disrespect for the laws of this State" and "diminishes the public's confidence in the entire legal profession." Dempsey, 94 CH 454 (Hearing Bd. at 8-9). See also In re Schickendanz, 01 SH 108, M.R. 18725 (May 22, 2003); In re Law, 00CH 53, M.R. 17664 (Nov. 28, 2001). Thus, the Respondent's commission of a criminal act is serious misconduct.

Respondent also neglected a client's case and failed to take any steps to keep her client informed or to respond to several inquiries from her client over a five month period. (Count IV). Although the neglect occurred in one case involving one client, the Respondent failed to appear in court on three separate occasions The Supreme Court has stated that "[u]nethical conduct, especially in attorneys' relationships with clients, must not and will not be taken lightly by the profession or by this court." In re Gerard, 132 Ill. 2d 507, 541, 548 N.E.2d 1051(1989). The Court has also stated that the "neglect of a legal matter is in itself sufficient ground for suspension." In re Houdek, 113 Ill. 2d 323, 327, 497 N.E.2d 1169 (1986).

In aggravation, we consider that the Respondent's failure to appear in court for scheduled court proceedings caused harm to her client. Her failure to appear or timely appear in court caused her client Gilbert Milton to waste his time by going to court on five separate occasions when his cases were continued because of Respondent's absence or very late arrival. Respondent's neglect also caused her client to request and obtain appointed counsel to represent him after more than seven months of inaction and delay by Respondent. Additionally Respondent's neglect caused her client needless anxiety. In In re Smith, 168 Ill. 2d 269, 285, 659 N.E.2d 896 (1995), the Supreme Court stated "[r]espondent's claim that his clients did not suffer from his misconduct ignores the anguish that his inaction necessarily inflicted upon his clients."

...After considering the nature of the Respondent's misconduct, the aggravating factors, the mitigating factor, the cases set out above, and the purposes for a disciplinary sanction, we conclude that a suspension for one year and until further order of the Court is appropriate in this case to protect the public, the legal profession, and the administration of justice. This will require Respondent to petition and establish her fitness before she is again allowed to engage in the practice of law.

(Mike Frisch)

March 2, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, March 1, 2018

The Cancer That Wasn't

The Colorado Presiding Disciplinary Judge approved a stipulated three-year suspension in a matter involving three  client complaints.

From the summary

In the second matter, a client hired Rose in a dispute over construction services. Rose’s client prevailed on his claim but lost a counterclaim. Rose appealed the counterclaim yet failed to give his client a new fee agreement. Rose asked the court of appeals for an extension of time to file the record on appeal, citing health issues, including fatigue, exhaustion, and thyroid issues. He also stated that he had begun treatment for papillary thyroid cancer. But Rose had not been diagnosed with thyroid cancer. Rose made similar misrepresentations about his health to the court of appeals in a response to show cause. The court of appeals eventually dismissed the case for Rose’s failure to respond to a second show cause order. Rose never notified his client that the appeal had been dismissed.

(Mike Frisch)

March 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Magistrate Can Dream

A recent opinion from the South Carolina Advisory Committee on Standards of  Judicial Conduct

OPINION NO. 4 - 2018

RE: Propriety of a full-time magistrate judge working part-time as an independent sales representative for a travel club.


A full time magistrate has inquired about the propriety of working part-time as an independent sales representative for a travel club. The judge is a member of a travel club and has the opportunity to become employed as a sales representative. In addition to compensation for the sales made, a sales representative may also receive dream vacation packages, entertainment discounts, discounts on dining, car rentals, airfare, etc. from the travel club.


A full-time magistrate may work part-time as an independent sales representative, provided that such employment does not conflict with the judge’s judicial duties.

(Mike Frisch)

March 1, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Whose Funds Are They Anyway?

A very interesting oral argument before the Ohio Supreme Court involves an attorney's admitted failure to maintain required trust account records.

The argument deals with - at least in part - the fact that, after a forensic audit of the account, there is money left over for which the legitimate owner is unknown.

From Kathleen Maloney's case summary

While the Columbus Bar Association doesn’t take issue with the recommended six-month stayed suspension or the conditions, it asks the Supreme Court to impose another condition on Keating’s suspension.

The bar association explains that Keating can’t account for the $74,517.14 that remains in account 2500 as of October 2017. The purpose of financial records required by the attorney conduct rules is to ensure that the lawyer can identify “who owns every penny in the lawyer’s trust account,” the bar association’s objection states. Keating hired a forensic accountant in 2017 to try to sort out this issue, but her report concluded that these funds are “most likely” profits for the firm and “unlikely” to be client funds. Noting that the records don’t exist for clients whose funds may be in the account, the bar association recommends that Keating be required to turn over the money to the state’s division of unclaimed funds to follow certain statutory procedures.

Attorney Believes Extras Condition Is Unwarranted
Keating responds that no client or third party is making a claim to any of these funds, the last payment from account 2500 was at least six years ago, and the forensic accountant concluded the money is owned by the law firm. He argues that other disciplinary cases have allowed lawyers to collect legal fees once any client disputes or IOLTA discrepancies are resolved. He maintains that the funds in account 2500 aren’t “unclaimed funds” based on the definition in R.C. 169.01, nor is he a “holder” of unclaimed funds. Keating asks the Court to decline to impose the additional condition recommended by the bar association.

The court's questions concerning burden of proof in such circumstances are of real practical significance in Rule 1.15 litigation.

The case is Columbus Bar Association v. Bradley Keating.  (Mike Frisch)

March 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The News In Rhinelander

The Wisconsin Supreme Court has agreed with a referee that a suspended attorney who practiced in Rhinelander be denied reinstatement

After two relatively minor brushes with discipline

In 2014, Attorney Voss's license to practice law was suspended for 18 months for his conduct as the court appointed guardian of the person and estate of an individual suffering from mental illness. This court determined that Attorney Voss committed 11 counts of misconduct by, among other things, converting at least $48,791.73 of his client's funds either for his own use or to cover expenditures for other client matters, committing various trust account violations, and making misrepresentations to the circuit court about the client's assets...

In 2015, Attorney Voss's law license was suspended for a period of 60 days, to run consecutive to the discipline imposed in 2014. The misconduct at issue in the 2014 case included improprieties in the handling of matters filed in United States Bankruptcy Courts; failing to adequately supervise his staff so as to ensure the documents prepared and filed by staff on behalf of clients conformed in all respects with applicable law and court rules and were in all respects accurate; failing to take reasonable steps to ensure his staff timely informed him and/or clients of case developments, including the payment status of filing fees; trust account violations; and failing to provide the Office of Lawyer Regulation (OLR) with a copy of his trust account transaction register for the period requested of him by the OLR.

Findings on reinstatement

The referee said most importantly, Attorney Voss failed to comply with the Order of Suspension by not properly notifying his clients, by mail, of his suspension and that the cessation of his law practice was a result of the suspension. The referee said while it was true that Attorney Voss did send letters to his bankruptcy clients, those letters made no mention of any suspension or attorney disciplinary action. Rather, the letters simply indicated that Attorney Voss would be "leaving my Law Practice on September 4, 2014." The referee said when questioned about the letters at the evidentiary hearing, Attorney Voss seemed to feel that there was no need to give his bankruptcy clients a reason for why he was leaving his law practice since the end result —— the client would need to find a new attorney —— would be the same whether or not the clients knew about the suspension. The referee said, "any reasonable reading of the Voss letters makes clear that Voss was trying to give his clients the impression that his winding up of his practice was just a routine matter and was, implicitly, based upon some 'good' reason such as retirement."

There were other failures to properly notify

the referee noted that SCR 22.26(1)(c) requires all suspended or revoked attorneys to give written notice to all courts, agencies, and opposing counsel of the suspension or revocation and of the termination of practice. The referee said Attorney Voss provided no such notification to any of the required persons or entities, nor did he attempt to gain the circuit court's approval for withdrawal and substitution of counsel with respect to his criminal clients.  The referee noted that at the evidentiary hearing, Attorney Voss said there had been an article about his suspension in the Rhinelander newspaper. The referee said Attorney Voss seemed to consider the newspaper article substitute notice sufficient to meet the requirements of SCR 22.26.

The court

We adopt the referee's findings and conclusions and agree that Attorney Voss has failed to meet his burden of demonstrating by clear, satisfactory, and convincing evidence that he fully complied with all of the terms of the order of suspension. We also agree with the referee that, at the present time, Attorney Voss cannot safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the court.

(Mike Frisch)

March 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, February 28, 2018

Reinstatement Failure To Disclose Draws Disbarment

An attorney who had been suspended for a year and been reinstated has now suffered disbarment at the hands of the New York Appellate Division for the Second Judicial Department

The verified petition contains nine charges, alleging, inter alia, that the respondent engaged in conduct prejudicial to the administration of justice by failing to cooperate with the Grievance Committee’s investigation of a complaint filed by Michael Diederich, Jr., Esq., and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by testifying falsely at an examination under oath conducted by the Grievance Committee and, in connection with her motion for reinstatement under Appellate Division Docket No. 2001-08741, by failing to disclose in her reinstatement affidavit dated April 14, 2004, a debt stemming from a $10,000 loan given to her by a client. The notice of petition directed the respondent to serve and file her answer to the verified petition within 20 days after service upon her of the verified petition. To date, the respondent has neither served or filed an answer to the verified petition, as directed, nor requested additional time in which to do so.

In light of no response

 the Grievance Committee’s motion is granted, the charges in the verified petition are deemed established, and, effective immediately, the respondent is disbarred and her name is stricken from the roll of attorneys and counselors-at-law.


February 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Failed Collaboration in Hoosierland

The Indiana Supreme Court has suspended an attorney

We find that Respondent, Robert John Wray, engaged in attorney misconduct arising from his solicitation of clients through a nonlawyer intermediary. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least nine months without automatic reinstatement.

The case

The Commission filed a five-count "Verified Complaint for Disciplinary Action" on November 13, 2015, and later amended that complaint to add a sixth count. As set forth in more detail below, the amended complaint charged Respondent with a wide range of rule violations arising out of his professional relationship with Douglas Stephan, a nonlawyer. Following a hearing, the hearing officer filed a 64- page report finding Respondent committed violations as charged.

Respondent has represented several owners of allegedly defective modular or manufactured homes in actions against the homes’ installers, builders, or manufacturers. One of those owners was Stephan, who purchased a home from Joseph Callaghan, d/b/a Fahl Manufactured Homes ("Callaghan"). Respondent and Stephan developed a relationship under which Stephan (through his company Stephan Consulting, Inc., which Respondent helped Stephan incorporate) would solicit other owners to become plaintiffs in Stephan’s action and in other actions against Callaghan and other installers, builders, and manufacturers. Typically, Stephan would "cold call" the owners, offer to perform home inspections for them, and then ask those owners to sign an "Investor Agreement" and an "Attorney Agreement," both of which were drafted and/or approved by Respondent and included Respondent’s name throughout. The owners, and subsequently Respondent, would sign the Attorney Agreements, frequently without any direct communication with one another or discussion about the merits of the claim.

The Investor Agreements included statements falsely representing that the owners already had entered into fee agreements with Respondent. The Investor Agreements also included several statements that inaccurately described how litigation costs would be advanced and how the risks of litigation would be assumed. For example, the Investor Agreements stated Stephan would advance the costs of litigation in exchange for 50% of the client’s net recovery, but aside from the first few cases Stephan did not actually advance these costs.1 The Attorney Agreements provided that Respondent would receive a contingent fee of between 33% and 50%, and some Attorney Agreements also required a nonrefundable $1,000 retainer for costs.

Respondent entered into contracts with about 118 owners through his relationship with Stephan. One of these clients was David Lomperski, who – in exchange for a reduced contingent fee in his case – agreed to work with Stephan to identify other potential clients. Respondent helped draft an employment and noncompete agreement between Stephan and Lomperski.

The relationship between Respondent and Stephan eventually soured due to a dispute involving the advancement of costs, and Respondent proposed to Lomperski that they work together in the same capacity that Respondent had been working with Stephan. When they met to discuss this, Lomperski secretly recorded the conversation. Respondent also briefly entered into a similar relationship with David Blumenherst, who solicited at least two new clients using the same "Investor Agreement" template Respondent had provided Stephan.

 In addition to the misleading representations in the Investor Agreements regarding the advancement of litigation costs, after cases settled Respondent drafted a "Disbursement Authorization and Acknowledgement" form for his clients that in some instances inaccurately reflected the actual distributions and advancement of costs. After the accounting dispute arose between Respondent and Stephan, Respondent represented to clients that he had paid Stephan his share and instructed them not to pay Stephan, when in fact Respondent merely had "allocated" Stephan’s share against the amount Respondent believed Stephan owed him.

The Investor Agreements provided that Stephan "shall take the lead in communications with the attorney" and others and purported to grant Stephan the authority to advance the client’s claims and to "arrange for settlement." Notwithstanding this language, Respondent did have a general practice of writing his clients to notify them of significant events in their cases. However, Respondent admitted there often were delays of several months between the time that Stephan had clients execute Attorney Agreements and the time that Respondent eventually received those Agreements, and Respondent admitted further that he never raised the issue of these delays with Stephan. These delays could have led to claims being time-barred, although there is no evidence this occurred in any of the cases.

Several clients testified about what they felt was a lack of adequate communication or explanation from Respondent. Several clients also testified that they agreed to settle a claim against one defendant (Callaghan) based, at least in part, on Respondent’s representation that they could recover additional amounts against another defendant (Chilton). However, Chilton would have been among the parties covered by the release in the Callaghan settlement.2 The hearing officer found that Respondent misrepresented the viability of a potential claim against Chilton in order to motivate clients to settle claims against Callaghan.

During the Commission’s investigation into the events described above, Respondent represented to the Commission that "Stephan Consulting did not ‘solicit’ clients for my law office. Stephan Consulting provided financing and consulting to various homeowners under separate and distinct agreements with homeowners." The hearing officer found this statement was false with respect to both solicitation and financing.

Finally, from 2008 through 2015, Respondent failed to keep adequate trust account records and separate ledgers for each client. Respondent also kept more than a nominal amount of personal funds in his trust account.


...the actual and potential harm resulting from this type of arrangement is readily apparent. In this case, Respondent’s delegation of client intake responsibilities to Stephan led to impermissible solicitation of clients, misrepresentations to clients about financing and costs, and delays of several months before Respondent became involved with (or even aware of) the clients’ cases. Clients, whose primary point of contact was Stephan, encountered difficulty communicating with Respondent and remaining sufficiently apprised about their cases. Although many clients did obtain some recovery, those recoveries were greatly reduced due to a second contingent fee owed to Stephan, a middleman who was not actually providing the financing services clients were paying him to provide. And when a financial dispute arose between Respondent and Stephan, clients were caught in the middle.

Throughout all of this, Respondent lied. Respondent provided Stephan with Investor Agreements for clients to execute that Respondent knew were false in several material respects. Respondent falsely told several clients at the conclusion of their cases that Respondent already had paid Stephan. And when the Commission began investigating Respondent’s practices, Respondent falsely told the Commission that Stephan provided financing for clients, when Respondent knew Stephan was not doing so. Respondent’s pattern of dishonesty elevates his problematic arrangement with Stephan into a much more serious offense... 

Nor is this Respondent’s first encounter with the disciplinary process. Respondent and two other attorneys were publicly reprimanded by this Court in 2009 for deceptive advertising and improper use of a trade name

(Mike Frisch)

February 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Attorney's Mistake Does Not Justify Relief

The New Jersey Appellate Division has held that an attorney's error did not justify equitable reinstatement of a dismissed complaint.

Twenty-seven-year-old David Eric Yearby, an alleged mentally ill man, died strapped to a "restraint chair" in the Middlesex County Adult Correctional Facility, approximately twenty-four hours after he was arrested for assault and resisting arrest by the local police department. The legal representative of his estate filed a multi-count civil suit against a number of public entities and their employees, including three nurses employed by the Middlesex County Adult Correctional Facility

After joinder of issue, the nurses moved to dismiss with prejudice the counts in plaintiffs' complaint alleging professional and/or medical malpractice based on plaintiffs' failure to file a timely Affidavit of Merit (AOM) as required by the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. The trial court granted the nurses' unopposed motion.

Nearly two months later, plaintiffs, represented by substitute counsel, moved to restore the counts dismissed by the court based on the doctrine of substantial compliance and due to "extraordinary circumstances." Plaintiffs' substitute counsel argued that former counsel's failure to take any action to comply with the requirements of the Affidavit of Merit statute, including failing to oppose defendants' motion to dismiss, constituted "extraordinary circumstances" warranting a dispensation from the draconian sanction of dismissal with prejudice

The trial court had reinstated the claim but

We are keenly aware of the seriousness of the allegations raised in this civil action. The circumstances that plaintiffs allege caused this young man's death are unimaginably horrific. Those who are found civilly liable should be held accountable. However, as established by the Legislature and recognized by the Supreme Court, "an affidavit of merit strikes at the heart of the cause of action[.]" Paragon Contrs., Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2009). Thus, neglecting to provide an affidavit of merit after the expiration of the 120-day time period in N.J.S.A. 2A:53A-27 "generally requires dismissal with prejudice[.]" Ibid. Here, there is no evidential basis to support the trial court's decision to apply equitable principles to relax this statutory time restriction.

 (Mike Frisch)

February 28, 2018 | Permalink | Comments (0)

Tuesday, February 27, 2018

56 Days Of Hearings In "One Of Those Classic Cases"

The Tribunal Appeal Division of the Upper Canada Law Society has dismissed the appeal of an attorney who sought costs after he had successfully defended against bar charges

 These proceedings arise out of a conduct application. Following 56 days of hearing, and shortly after a lengthy cross-examination of the complainant had been concluded, the Law Society determined that there was no reasonable prospect that finding of misconduct would be made and sought to withdraw the application. The hearing panel agreed with the Law Society’s assessment, but rather than permitting the withdrawal of the application, it granted the request of the Lawyer for a dismissal of the application. Following the dismissal of the conduct application, the Lawyer brought a motion before the hearing panel that heard the conduct application requesting his costs of the application (“the First Costs Motion”). However, before the motion was heard, one of the hearing panel members was appointed to the bench, and the motion proceeded before the two remaining panel members. Unfortunately, those members could not agree on how to dispose of the motion. A new panel was constituted to rehear the costs motion. The Lawyer then amended his motion to include a claim for costs of the First Costs Motion. The Lawyer also brought a motion for disclosure of the [Proceedings Authorization Panel] Memorandum.

The new hearing panel dismissed all of the motions. It found that the proceeding was warranted at the outset, based on the evidence available at the time that the proceedings were authorized. It found that the available evidence did not demonstrate that the complainant’s evidence was flawed in a fundamental way. To the contrary, it found that this was one of those classic cases where the public interest demanded a hearing so that the serious allegations the complainant made against the Lawyer could be publicly aired and determined. Finally, the hearing panel found that the proceedings had not become unwarranted at some point after the hearing commenced and before the Law Society sought to withdraw the application, or that the Law Society wasted costs by undue delay, negligence or other default. The hearing panel dismissed the motion for disclosure of the PAC Memorandum on the basis that it was privileged and not relevant. Finally, the hearing panel awarded the Law Society its costs of the Disclosure Motion and the Second Costs Motion.

The complaint involved a concert series

The events underlying the conduct application centered on a project to stage a concert series in China in and around the August 2008 Beijing Olympic and Paralympic Games (the “Beijing Project”). The Beijing Project was the brainchild of the complainant, Sylvia Sweeney (“Sweeney”).

The Lawyer is a sole practitioner and businessman who worked on the Beijing Project in various capacities during 2007 and 2008, although his exact role and responsibilities were hotly contested during the conduct hearing.

The tribunal found the charges were warranted even if eventually unproven

 We conclude that the process of undermining Sweeney’s credibility at the hearing was gradual and did not turn on any particular issue or document. At the conclusion of Sweeney’s cross-examination, Law Society counsel obviously concluded that her credibility had been fatally eroded and that there was no longer any reasonable prospect of a finding of professional misconduct. We are not satisfied, based on the evidence before us, that this should have been apparent to the Law Society at any earlier point in the hearing.

Imposing costs has its costs

In concluding, we would be remiss if we did not share our concern about the time‑consuming and extensive nature of these costs proceedings. In Chan, the appeal panel expressed caution about turning a motion for costs against the Law Society into a wide-ranging forensic exploration of potential prosecutorial misconduct:

Applications against the Society pursuant to Rule 14.03 are not free-standing, but tied to the conduct proceeding in relation to the licensee. While a licensee is entitled to pursue a costs application, and provide the hearing panel with support for that application, there are necessarily limits upon the scope of evidence that will be heard in support. Simply put, a costs application is not, by its nature, designed to overshadow the conduct proceeding itself, or permit a wide-ranging exploration of potential prosecutorial misconduct. Such an application is designed to be a fairly summary way in which a hearing panel can decide the issue of costs.

We agree. In motions such as this one, where there are no allegations that the proceeding was initiated maliciously, in bad faith, or for a collateral purpose, a hearing panel which is asked to consider whether a proceeding was “unwarranted” under Branch 1 should focus on whether the totality of the evidence reasonably available to the Law Society, at the time when the proceedings were authorized, was so clearly deficient that any proceeding based on that evidence would be unwarranted.

For the above reasons, the appeal is dismissed. Should the Law Society seek its costs of this appeal, the Law Society shall provide its written costs submissions to the panel (costs submissions not to exceed five pages) within 14 days of the release of this order. The Lawyer shall have 28 days from the release of this order within which to respond (responding submissions not to exceed five pages).

(Mike Frisch)

February 27, 2018 in Bar Discipline & Process | Permalink | Comments (1)

A Man In Kentucky

A Kentucky sanction was imposed reciprocally on an attorney by the New York Appellate Division for the First Judicial Department

The instant matter arises from respondent's representation of a client whose employment as a Kentucky public school teacher was terminated based on findings of misconduct made by an administrative tribunal. In 2005, the teacher, represented by respondent, commenced an action under 42 USC § 1983 in the United States District Court for the Eastern District of Kentucky against the school principal, an attorney for the school board, the superintendent of the school system, and the presiding officer at the final administrative hearing on the charges against the teacher. The district court dismissed the complaint as time-barred and, upon its own motion, imposed sanctions on respondent personally pursuant to 28 USC § 1927, based on findings that, in spite of prior warnings by the court, he had repeatedly filed papers advancing specious legal claims, using inappropriate language, and/or engaging in personal attacks. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed both the dismissal of the complaint and the imposition of sanctions on respondent (Dixon v Clem, 492 F3d 665 [6th Cir 2006]).

Based on his conduct in Dixon, as found by the federal courts, the Kentucky Bar Association brought disciplinary charges against respondent. The Kentucky disciplinary proceedings culminated in April 2013 with a decision by the Supreme Court of Kentucky that affirmed three findings of misconduct against respondent and imposed on him a suspension from the practice of law of 181 days (Kentucky Bar Assn. v Blum, 404 SW3d 841 [Ky 2013], cert denied sub nom Blum v Kentucky Bar Assn., __ US __, 134 S Ct 1952 [2014]). The Kentucky Supreme Court affirmed the following findings of misconduct: (1) that respondent had improperly threatened to advance disciplinary charges against opposing counsel in the federal litigation in order to gain advantage in a civil matter, in violation of Kentucky Supreme Court Rule 3.130-3.4(f); (2) that respondent had engaged in conduct intended to disrupt a tribunal, in violation of Kentucky Supreme Court Rule 3.130-3.5(c); and (3) that respondent, without basis, had repeatedly impugned the personal integrity of the administrative hearing officer his client was suing in the federal litigation, in violation of Kentucky Supreme Court Rule 3.130-8.2(a), which prohibits an attorney to make false statements concerning the integrity of an adjudicatory office.

The court rejected his contentions

With regard to respondent's defense that there was a lack of notice or opportunity for him to be heard in the Kentucky proceedings, he argues that the charges filed against him did not allege with specificity the disciplinary rule violated by each of his offending statements and actions. Respondent raised this argument before the Kentucky Supreme Court, which rejected it. Moreover, the record shows that respondent appeared pro se at the disciplinary proceeding before a trial commissioner of the Kentucky Bar Association, at which he actively defended himself, and then pursued appeals to the Association's Board of Governors and, ultimately, to the Kentucky Supreme Court. Accordingly, we are satisfied that respondent received notice and an opportunity to be heard in the Kentucky disciplinary proceedings, consistent with the requirements of due process.

With regard to respondent's defense of infirmity of proof, he argues that the Kentucky court provided insufficient evidence to support its finding that discipline should be imposed. However, the record relied on by the Kentucky Supreme Court, which includes respondent's filings in Dixon, and that court's detailed discussion of the evidence against respondent in its decision imposing discipline, demonstrate that the findings of misconduct against respondent in Kentucky were based on sufficient evidence.


the imposition of the same sanction imposed by the Kentucky Supreme Court is in order here, and respondent should be suspended from the practice of law in New York, prospectively, for six months. In addition, respondent, in violation of former 22 NYCRR 603.3(d), waited nearly three years before finally, in December 2015, notifying the Committee of the discipline imposed by the Kentucky Supreme Court in April 2013, and he provided such notice only after an adversary in litigation in Supreme Court, New York County, brought the Kentucky discipline to the attention of the court, which thereupon directed respondent to notify the Committee. We note that a suspension retroactive to the date of respondent's suspension in Kentucky would be inappropriate in light of respondent's failure to give this state's disciplinary authorities prompt notice of the Kentucky discipline (see Matter of Gilbert, 268 AD2d 67, 70 [1st Dept 2000]).

The Sixth Circuit decision is linked here. (Mike Frisch)

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

Monday, February 26, 2018

Contempt Affirmed

An order of the United States District Court for the District of Columbia (Judge Amy Berman Jackson) affirms a contempt finding against an attorney.

Plaintiff District Title, a real estate settlement company, was handling the sale of a property formerly owned by defendant Anita K. Warren when it erroneously transferred $293,514.44 to Warren instead of the mortgage lender, Wells Fargo Bank, N.A. Am. Compl. [Dkt. # 5] ¶ 15. Warren promptly transferred the funds to her son Timothy Day, and the two refused to give the money back. See District Title v. Warren, No. 14-1808, 2015 WL 7180200, at *1 (D.D.C. Nov. 13, 2015). District Title sued, and attorney LeFande represented the defendants in that action.

After the plaintiffs prevailed

On March 22, 2016, plaintiff filed a motion to conduct post-judgment discovery related to its efforts to collect on the judgment, which included a request for court permission to serve subpoenas on three individuals, including LeFande. See Mem. of P. & A. in Supp. of Pl.’s Mot. for Oral Examination of J. Debtor Timothy Day & Third Parties, & for Leave to Serve Subpoenas [Dkt. # 88-1]. Plaintiff asserted that LeFande “may have information concerning assets held or transferred by Timothy Day.” Id. at 5.

The matter was referred to a magistrate judge and a motion for contempt was filed

In support of its motion, plaintiff pointed to testimony in a related proceeding in a Maryland state court that suggested that LeFande was complicit in the concealment of defendant Day’s assets. Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. [Dkt. # 107- 1] (“Pl.’s Mem.”) at 3. Plaintiff proffered that Day transferred over $80,000 in profits received from a November 2014 sale of property in St. Mary’s County, Maryland to an account in New Zealand. Id. At a trial related to the St. Mary’s County transaction, a witness testified that it was Day’s attorney, Matthew LeFande, who instructed the settlement company to transfer the funds to the New Zealand account. Id.

LeFande opposed the motion and sought a protective order. Opp. to Pl.’s Mot. & Request for Protective Order [Dkt. # 108] (“LeFande’s Opp.”). In his opposition, LeFande asserted his Fifth Amendment right against self-incrimination, and he also asserted that any testimony would be covered by the attorney-client privilege. Id. 

The magistrate judge directed that he appear for deposition and assert any privilege on a question-by-question basis.

He failed to appear and was ordered to be deposed before the magistrate judge, was held in contempt and appealed to the district court

On the date of the deposition, LeFande appeared in Magistrate Judge’s courtroom with his counsel, but he refused to comply with the Magistrate Judge’s order to take the stand and to be sworn. Minute Entry and Order (Sept. 21, 2017); Criminal Contempt Order at 2. The Magistrate Judge “repeated the order at least twice, and each time, Mr. LeFande refused to comply.” Id. His “response in each instance was to assert that he would not comply . . . and to invoke the Fifth Amendment.” Id. The Magistrate Judge took a brief recess to allow LeFande to further confer with counsel. Id. at 3. But after the recess, LeFande again refused to comply with the Magistrate Judge’s orders to take the stand and be sworn. Id.

Consequently, the Magistrate Judge held LeFande in criminal contempt for “obstructing the administration of justice” pursuant to her authority under 28 U.S.C. § 636(e)(2) and she fined him $5,000.00, payable no later than October 5, 2017. Criminal Contempt Order at 3–4. On October 03, 2017, LeFande filed objections to the Magistrate Judge’s bench ruling and Contempt Order, and he renewed his request for a protective order. Obj. to Contempt Order. Because LeFande violated multiple orders that he appear at the deposition and respond to questions, interposing any privilege objections on a question-by-question basis, LeFande’s objections will be overruled, and the Court will uphold the judgment of criminal contempt...

LeFande challenges the Magistrate Judge’s Criminal Contempt Order in a scattershot fashion, recycling many of the same arguments already presented to and rejected by this Court, including his invocation of the Fifth Amendment and attorney-client privileges. Obj. to Contempt Order at 16–23, 28–30. As this Court has explicitly stated in its prior Memorandum Opinion and subsequent Minute Order, LeFande may not avoid appearing at the deposition entirely with a blanket assertion of attorney-client privilege. Dist. Title v. Warren, 265 F. Supp. 3d 17, 23 (D.D.C. 2017); Minute Order (Sept. 18, 2017). LeFande was required to take the stand and to assert both the Fifth Amendment privilege and the attorney-client privilege on a question-by-question basis. Id.

The court found 

The Court finds that all of the elements required to uphold the criminal contempt order are satisfied here. In accordance with Rule 42 of the Federal Rules of Criminal Procedure, the Magistrate Judge witnessed first-hand LeFande’s misbehavior in her courtroom, she recited those facts in her contempt order, signed the order, and filed it with the clerk. Under 28 U.S.C. § 636(e)(2) the Magistrate Judge appropriately exercised her criminal contempt authority because LeFande’s actions “constituted misbehavior” that “obstruct[ed] the administration justice.” 28 U.S.C. § 636(e)(2). He not only disobeyed the Magistrate Judge’s multiple orders in the courtroom in her presence, but he also failed to comply with the opinions and orders of this Court which required him to appear and to respond to the questions on an individual basis. Lefande’s violation of these orders impeded the administration of justice by making it impossible for the plaintiff to conduct post-judgment discovery. Finally, the Court finds that the evidence recited in the Magistrate Judge’s Criminal Contempt Order is sufficient to establish beyond a reasonable doubt that LeFande had the necessary intent, and that his actions were “both calculated and willful.” Criminal Contempt Order at 3. Indeed, LeFande informed the Magistrate Judge through his counsel that he would rather “take the risk of going to jail” than comply with her orders. 

(Mike Frisch)

February 26, 2018 | Permalink | Comments (1)

Telling Bar Officials To "Go F**k" Themselves Draws Same Sanction As Sex With Client

Bad language gets a New Jersey attorney the same sanction - reprimand -  imposed for sex with a vulnerable client.

The offending language came in two emails to bar officials investigating the attorney's complaint against his former employer.

On November 7, 2012, in the course of communicating with the Office of Attorney Ethics (OAE) about grievances that he had filed against, his former employer, Stanley Marcus, and others, respondent sent two e-mails to the OAE. The first email was sent to the OAE investigator, Scott Fitz-Patrick; the second e-mail was sent to OAE Director Charles Centinaro

Per the report of the Disciplinary Review Board

The Centinaro e-mail contained vulgar, highly offensive language, directed at a significant official in the Court’s attorney discipline system. To respondent’s credit, he ultimately admitted, in a written stipulation, that his actions in that regard were discourteous and inconsiderate, in violation of RPC 3.2. Nevertheless, in a brief to us, respondent again suggested that the complaint against him should be dismissed, as having been filed in bad faith in order to either silence his allegations of corruption in the attorney discipline system or to retaliate against him for having alleged such corruption.

Although respondent admitted that the e-mail sent to Director Centinaro violated RPC 3.2, he took issue with the allegation that the Fitz-Patrick e-mail, too, violated the Rule. Respondent claimed that he and Fitz-Patrick enjoyed a rapport that permitted the use of foul and offensive language.

Even if true, that argument misses the mark. By instructing Fitz-Patrick in the first e-mail to tell Director Centinaro to go "F**K" himself, he intended for that vulgar and offensive comment to reach the Director. Incredibly, respondent testified that the reason he sent the second e-mail directly to Centinaro minutes later was out of concern that Fitz-Patrick might not relay his remarks to the Director for him. Respondent, thus, wanted to make sure that Director Centinaro received his message. Because both e-mails contained the very same offensive message, which respondent wanted to reach Director Centinaro, the first e-mail to Fitz-Patrick was equally as offensive as the second One to which respondent stipulated. We, thus, find a violation of RPC 3.2 as to both communications.


 We, however, reject another factor in aggravation that the DEC considered -- that respondent did not care whether he received an admonition or a reprimand. Respondent admittedly was unconcerned about the quantum of discipline, because he no longer practices law. In our view, he should not be faulted simply because he confessed that he is not concerned about the sanction, especially when it is within a very limited range.

Respondent’s lack of prior discipline in twenty-four years at the bar represents the only mitigating factor here.

Although we are deeply troubled by respondent’s behavior, on balance, we find that the aggravating and mitigating factors are in near equipoise. We, therefore, determine to impose a reprimand for respondent’s misconduct.

 I must state that in my many years as a bar prosecutor (admittedly in a pre-email era), I was called all sorts of things that I did not consider prosecution-worthy. (Mike Frisch)

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

New Jersey Reprimands Former PD For Sex With Vulnerable Assigned Client

The New Jersey Supreme Court has reprimanded a former public defender for sex with his client.

The Disciplinary Review Board report describes the misconduct

In October 2015, in the normal course of his employment at the Office of the Public Defender (OPD), respondent was appointed to defend L.S. against allegations that she had abused her minor son. The Division of Child Protection and Permanency (DCPP) alleged that L.S., an alcoholic, had gotten drunk and passed out while caring for him. Due to L.S.’s struggles with alcoholism, her son was placed in the custody of his maternal grandmother. The DCPP sought to curtail L.S.’s parenting time and implement supervised visitation.

On October 30, 2015, after representing L.S. at an Order to Show Cause in family court, represent offered to drive her home; the weather was inclement due to Hurricane Patricia. L.S. declined respondent’s offer, but, shortly thereafter, she and respondent began texting each other, including messages that were sexual in nature. On the day before Thanksgiving, respondent and L.S. consummated a sexual relationship,

Respondent admits that, after their first sexual encounter, he began to question L.S.’s mental state, due to her texting and calling him "at all hours of the night and morning hours after Thanksgiving." Despite commencing the sexual relationship with L.S., and having concerns regarding her mental health, respondent failed to withdraw as her assigned counsel, and continued representing her in connection with the family court proceedings. He also continued the sexual relationship with her.

In January 2016, L.S. disclosed her sexual relationship with respondent to a friend, who reported the inappropriate relationship to the OPD. The OPD investigated the matter, and, during an interview, L.S. "alleged that respondent had brought a bottle of vodka to her home upon their first meeting, after which they got drunk and had sex." L.S. also stated that "she was afraid of respondent, did not want to lose custody of her son, and wanted another attorney to represent her." As a result of its investigation, the OPD terminated respondent’s employment, effective February 3, 2016, assigned a new attorney to represent L.S., and reported respondent’s misconduct to the OAE.

Respondent admitted to the OAE his inappropriate sexual relationship with L.S., but denied providing her with alcohol or coercing her in any manner. Respondent maintained that "L.S. could have terminated their personal relationship at any time without affecting his representation as he always fought for her best interest." The stipulation further states, however, that, due to her status as an assigned client and her alcoholism, L.S. "lacked the capacity to freely consent to a sexual relationship with respondent."

Respondent stipulated that he violated (i) RPC 1.7(a)(2) by representing L.S. because there was a significant risk that the representation would be materially limited by the personal interest of the lawyer; and (2) RPC 8.4(d) by engaging in conduct prejudicial to the administration of justice.

A very lenient sanction for this misconduct. (Mike Frisch) 

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


Oral argument before the Ohio Supreme Court

Columbus Bar Association v. Bradley D. Keating, Case no. 2017-1740
Franklin County

The Ohio Board of Professional Conduct recommends that Columbus attorney Bradley Keating receive a six-month suspension, fully stayed on certain conditions, for failing to keep and maintain appropriate financial records.

Attorney Takes Over Law Firm in 2012
From 2003 to 2009, Keating was an associate attorney at Magelaner & Associates. He was made partner in 2009, and his name was added to the firm’s name. In January 2012, Keating became owner of the firm and renamed it The Keating Firm after Thomas L. Magelaner sold his interest. Since that time Keating has had authority over the firm’s financial matters, including its client trust accounts, which are referred to as an Interest on Lawyers’ Trust Account (IOLTA).

The firm employed Rebecca Gee Meyer as an associate attorney from 2006 to 2012. Meyer worked in the Cincinnati office, and Keating’s office was in Columbus. Beginning in 2010, Meyer was suspended from practicing law for varied periods, including an indefinite suspension imposed in February 2015.

Chiropractor Doesn’t Receive Payments from Law Firm
In separate cases, three clients hired the firm through the Cincinnati office in 2011 to represent them after suffering injuries in motor vehicle accidents. Two of the clients and the third client’s child received treatment from a local chiropractor. The firm agreed to pay the chiropractor from any settlement funds. When he wasn’t paid, the chiropractor filed a grievance against Keating. By May 2017, Keating still hadn’t paid the chiropractor, in part because of inaccurate records that indicated checks had been written to the health care professional.

Law Firm Changes Accounting Services
In 2008, Keating and Magelaner noticed accounting discrepancies in work done by the Louisiana company that handled the firm’s bookkeeping. The lawyers hired a new accounting service that year, and the prior accounting firm refused to provide records to help reconcile the prior IOLTA. The lawyers opened a new IOLTA, identified as account 2500, and eventually transferred funds from the old account. In July 2011, the law firm opened another new IOLTA. Because there were unidentified funds in account 2500, Magelaner and Keating left it open. It is unclear who owns the approximately $75,000 in account 2500.

Board Recommends Six-Month Stayed Suspension with Conditions
The professional conduct board concluded that Keating violated various attorney conduct rules, including requirements to perform monthly financial reconciliations and to maintain records of client’s accounts for seven years. There was also a period between December 2015 and July 2017 when Keating didn’t inform clients that he no longer had professional liability insurance, the board noted.

The board report to the Supreme Court points to the multiple offenses as an aggravating factor. The report also states that Keating has now paid the chiropractor in full, has no prior discipline, hasn’t shown a dishonest motive, and has been cooperative during the disciplinary process. The board report also finds as mitigating that the problems with the first accounting firm and the law firm’s transfer of funds from old to new IOLTAs were steps taken in good faith and appeared to be intended to protect clients and third parties.

With Meyer no longer employed by the firm, the board concluded that the public will be protected if Keating’s suspension is completely stayed on certain conditions, including two years of monitored probation, the hiring of someone with accounting expertise during the probation to ensure proper IOLTA management, and completion of three hours of continuing legal education related to client fund management.

Bar Association Argues for Additional Condition
While the Columbus Bar Association doesn’t take issue with the recommended six-month stayed suspension or the conditions, it asks the Supreme Court to impose another condition on Keating’s suspension.

The bar association explains that Keating can’t account for the $74,517.14 that remains in account 2500 as of October 2017. The purpose of financial records required by the attorney conduct rules is to ensure that the lawyer can identify “who owns every penny in the lawyer’s trust account,” the bar association’s objection states. Keating hired a forensic accountant in 2017 to try to sort out this issue, but her report concluded that these funds are “most likely” profits for the firm and “unlikely” to be client funds. Noting that the records don’t exist for clients whose funds may be in the account, the bar association recommends that Keating be required to turn over the money to the state’s division of unclaimed funds to follow certain statutory procedures.

Attorney Believes Extras Condition Is Unwarranted
Keating responds that no client or third party is making a claim to any of these funds, the last payment from account 2500 was at least six years ago, and the forensic accountant concluded the money is owned by the law firm. He argues that other disciplinary cases have allowed lawyers to collect legal fees once any client disputes or IOLTA discrepancies are resolved. He maintains that the funds in account 2500 aren’t “unclaimed funds” based on the definition in R.C. 169.01, nor is he a “holder” of unclaimed funds. Keating asks the Court to decline to impose the additional condition recommended by the bar association.

- Kathleen Maloney

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

(Mike Frisch)

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

Sunday, February 25, 2018

License Annulled After Gun Theft Conviction

The Charleston Gazette Mail reported 0n a sanction imposed in the wake of a guilty plea

The West Virginia Supreme Court has annulled a Boone County attorney’s law license after he pleaded guilty to federal gun charges last year.

Joshua W. Sheets voluntarily consented to be disbarred, meaning he no longer can practice law in West Virginia, according to the order issued on Feb. 14 and filed last week.

The state Lawyer Disciplinary Counsel was pursuing its own sanctions against Sheets last fall when he agreed to be disbarred while his case proceeded through the court system.

 On Dec. 20, Sheets, 32, of Danville, and Jason Allen Davis, 34, of Van, pleaded guilty to federal gun charges in U.S. District Court for the Southern District of West Virginia.

Sheets pleaded guilty to one count of aiding and abetting the receipt, possession and sale of stolen firearms. Davis pleaded guilty to one count of aiding and abetting the theft of firearms from a federal firearms licensee.

Sheets was one of four defendants indicted in August 2017 and charged with stealing guns from a Boone County firearms dealer, according to a news release from the U.S. Attorney’s Office for the Southern District of West Virginia.

 Davis admitted to serving as a lookout for Sheets in November 2016 while Sheets broke into a firearms store and stole multiple firearms. Sheets admitted to arranging a sale of guns that were stolen from the same dealer in an earlier burglary, according to the release.

Sheets and Davis each face up to 10 years in federal prison when U.S. District Judge John Copenhaver Jr. hands down their sentences on March 21.

Hat tip coolcrosby. (Mike Frisch)

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