Thursday, June 26, 2014

A Fine Line

The Florida Supreme Court has reprimanded and fined a judge for campaign violations.

The judge purchased a table at a Republican Party event, left out "for" prior to the office she sought in campaign material (which is required of non-incumbants) and accepted funds fron her spouse.

Justice Lewis in dissent decried the use of large fines as a sanction

While I recognize that this Court has the authority to impose fines for ethical violations committed by judges and judicial candidates, I continue to oppose the utilization of large fines to punish serious violations of the Code of Judicial Conduct. See In re Pando, 903 So. 2d 902, 904-05 (Fla. 2005) (Lewis, J., specially concurring); In re Kinsey, 842 So. 2d 77, 99 (Fla. 2003) (Lewis, J., concurring in part, dissenting in part). Faith and confidence in our judicial system is rooted in the ability to rely upon the integrity and independence of our judges. That confidence is severely undermined when an ethical transgression of a judge or judicial candidate is so severe that it justifies the imposition of a fine of this magnitude.

(Mike Frisch)

June 26, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Judge Removal From Office Upheld

 The New York Court of Appeals has upheld an order removing a surrogate's court judge from office.

The judge had presided over matters involving a very close friend (and former judge) as well as a matter in which her personal attorney was counsel.

The judge claimed that the matters were uncontested and thus no harm, no foul.

The court

The Rules Governing Judicial Conduct create no distinction between contested and uncontested/ministerial matters. The perception that these attorneys were in a position to be accorded preferential treatment is based on their relationships to the judge, not the type of proceedings. As the Commission pointed out, assuming that petitioner actually believed recusal was unnecessary under existing precedent and that there could be no appearance of impropriety or favoritism in her presiding over the matters involving these three individuals, her behavior reflects "exceedingly poor judgment and an inability to recognize impropriety."

A dissent notes the judge's "remarkable" career and would impose censure

Judge Doyle's tenure is remarkable. She served for 20 years as Chief Clerk of the Albany County Surrogate's Court. She was an Adjunct Professor of Law at Albany Law School teaching courses on trusts and estates and Surrogate Court procedure. She has been a frequent lecturer for the New York State Bar Association, Surrogate Judges Association and the Office of Court Administration. She also served as an Acting Supreme Court Justice by designation of the Office of Court Administration. The voters of Albany County elected her Surrogate twice.

Judge Doyle was first elected Surrogate in 2000 and reelected in 2010. She presided over a Court that has processed over 3,500 cases annually. The charges here are few and minor and involve only an "appearance of impropriety" and concededly involved no impropriety in fact.

The judge had previously been censured for giving misleading and evasive testimony. 

The determination of the Commission on Judicial Conduct is linked here. (Mike Frisch)

June 26, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

How Not To Use Social Media: Suspension Proposed For Tweets And Online Campaign

A Louisiana Hearing Committee has recommended a year and a day suspension of an attorney found to have "used the internet and social media in an effort to influence ...future rulings in pending litigation."

The litigation involved a "very contentious" custody/visitation matter litigated in Louisiana and Mississippi.


...also used her Twitter account to publish multiple tweets linking audio recordings of the minor children discussing alleged sexual abuse; to publish false, misleading and inflammatory information about [two judges], and to promote [an] online petition, all of which was designed to intimidate and influence the judges' future rulings in the underlying proceedings.

Respondent knowingly if not intentionally embarked on a campaign using internet, social media and ex parte communication specifically designed to intimidate and to influence the judges' future rulings in pending litigation. Her online campaign to influence judges in pending litigation threatened the independence and integrity of the judiciary. Respondent's conduct also caused the judges concern for their personal safety.

The complaint was filed by one of the judges. The hearing committee found that the attorney was not remorseful.

It appears that the attorney is a candidate for judicial office. (Mike Frisch)

June 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Failure To Seek Disqualification Waives Objection

The New York Appellate Division for the Second Judicial Department affirmed the dismissal of a legal malpractice claim arising from the representation of an entity formed to acquire, own and operate a Manhatten office building.

The court agreed with the trial court that the plaintiffs could not prove proximate cause for their alleged damages and

The Supreme Court also properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the cause of action alleging breach of fiduciary duty. Parklex alleged that the defendants breached their fiduciary duty by continuing to represent Deutsch after Deutsch and one of his affiliates asserted claims against it in the Holtkamp action. The defendants established their prima facie entitlement to judgment as a matter of law dismissing this cause of action by demonstrating that Parklex never sought to disqualify [the law firm] FZWZ from representing Deutsch and his affiliates in the Holtkamp action after FZWZ discontinued representing it in that action. Parklex's failure to seek to disqualify FZWZ from representing its adversary in the Holtkamp action constituted a waiver of its objection to FZWZ's legal representation. In opposition to this prima facie showing, Parklex failed to raise a triable issue of fact (citations omitted)

(Mike Frisch)

June 26, 2014 | Permalink | Comments (0) | TrackBack (0)

The Candyman

An Illinois Hearing Board majority has recommended disbarment of an attorney for misconduct in several matters.

...the Hearing Board  determined Respondent had: a) improperly diverted over $4,500 donated to benefit  teenagers injured in an automobile accident; b) raised frivolous issues and made  false statements to the court and the ARDC in an effort to justify keeping those  funds; c) attempted to represent the defendant and the victim in each of two  criminal cases; d) brought unfounded contempt proceedings against the prosecutor  in that matter; e) failed to return the unearned portion of a fee; f) created a  false billing record and made false statements to the ARDC in an effort to  justify keeping all of that fee; g) improperly represented a wife in a  dissolution of marriage action, while representing her husband on criminal  charges and both of them in civil litigation arising out of the husband's  crimes; h) improperly revealed client confidences to police and opposing  counsel; i) sent the wife threatening e-mails; j) improperly retained funds  belonging to the wife; and k) improperly diverted insurance payments intended to  pay for a client's medical treatment.

The attorney represented three teenage pedestrians who had been severely injured. He misappropriated the proceeds of a candy sale held on their behalf.

The attorney engaged in misconduct in a criminal matter

...we believe Respondent intentionally sought to frustrate those  proceedings, by using improper tactics, such as his effort to have Assistant  State's Attorney Whitfield held in contempt. From our perspective also, in  seeking to represent Soto and Sackette, Respondent was not attempting to benefit  either of them, but rather to obtain an acquittal for Hernandez by precluding  the State from access to witnesses important to its case against Hernandez. This  is not a proper tactic.

And there is this tangled web in another matter

Respondent represented Kelly in seeking a  divorce from Michael, Michael in criminal proceedings in which he was charged  with embezzling funds and represented Michael and his accounting firm in civil  litigation arising out of the embezzlement. Respondent also represented Kelly in  some aspects of the civil litigation.

The board majority found that the attorney had inflicted great harm on a number of clients and had no remorse. The attorney had prior discipline of a one-year suspension.

The dissent as to sanction would impose a three-year suspension. (Mike Frisch)

June 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2014

Wendy Brown Scott chosen as new Dean of Mississippi College's law school

As a former resident of Clinton, Mississippi -- home of Mississippi College's main campus -- and more importantly as a former colleague of Wendy Brown Scott at Tulane, I wanted to congratulate her and Wendy-scottespecially MC for a great match of leadership and community-directed law school. This Miss. business blog has a good account of the announcement.

Having been supervised by Wendy as my Vice Dean during a time of much upheaval and sadness in Katrina (she and her husband Eddie, a pastor, even lost their church in the Ninth Ward), it's nice that what makes her return to the deep South is good news and not diaspora. Welcome back, and visit Nola every once in a while! [Alan Childress]

June 25, 2014 in Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Klayman Update

The Legal Times is reporting that the Office of Bar Counsel and Mr. Klayman submitted a proposed consent disposition that will resolve conflicts of interest charges by a court-imposed public censure.

The petition (a public record but lamentably not available on line) alleged Rule 1.9 violations against his former client Judicial Watch.

The disposition was reached prior to the start of the hearing on Monday.

Be assured that this agreement is not necessarily the end of the story. The assigned hearing committee must review and may reject the consent disposition.

If the committee favors it, a report must then be filed with the Court of Appeals. The court may accept or reject the disposition and sometimes will ask for the views of the Board on Professional Responsibility.

In sum, stay tuned if you are interested. It likely will take a couple of years to complete the process. (Mike Frisch)

June 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 24, 2014

The Gentleman Of Verona

The Wisconsin Supreme Court has imposed a four-month suspension of a solo practitioner from Verona.

The attorney had engaged in misconduct in several matters. The court noted that his ethical problems were attributed to health issues

Within a week after the referee filed her report in this matter, the OLR received a letter from one of Attorney B.'s health care providers.  The provider stated that he was writing at the request of and with the permission of Attorney B.  The letter described health issues which were then affecting Attorney B. and which had led to symptoms that included problems with memory, concentration, and the ability to make decisions.  The letter further stated that due to those health issues, Attorney B. was unable at that time to respond to complaints that had been filed with the OLR.  It requested that the OLR temporarily suspend all administrative proceedings involving Attorney B.

The attorney nonetheless agreed to the suspension.

The court rejected the referee's proposal that monitoring by the bar's assistance program be a requirement of reinstatement

...we do not think it necessary to require Attorney B. to submit to an extended monitoring program administered by WisLAP.  In order to ensure that Attorney B.'s health will be in a sufficient condition to allow him to resume the practice of law, however, we conclude that the reinstatement of his license to practice law in this state following his four-month suspension should be conditioned upon him obtaining a satisfactory mental health evaluation and providing that evaluation to the OLR.  In order to be satisfactory, the evaluator must render an opinion, to a reasonable degree of professional certainty, that Attorney B. is presently capable of discharging the duties of a person licensed to practice law in this state.  We further conclude that as an additional condition of reinstatement, Attorney B. must execute medical releases that authorize the OLR for a period of three years to review his medical and mental health records and to speak with his medical or mental health care providers.  Once Attorney B. has complied with these conditions and the other conditions that are always required for reinstatement after a disciplinary suspension of less than six months, his license to practice law in this state can be reinstated.

(Mike Frisch)

June 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

Dead Wrong

The Florida Judicial Ethics Advisory Committee opines


May a judge who  is a candidate for re-election use in the judge’s campaign literature and  electronic media a picture of the judge being sworn in at the judge’s  investiture by a now deceased former judge?



Regardless of whether the judge in the  photograph is deceased or alive, it appears the use of this photograph could  “imply” to the voting public that the judge pictured with the candidate judge previously  endorsed or would have endorsed the candidate judge.  It must be recognized that the  audience to whom the campaign materials are directed may or may not realize the  pictured judge is deceased, but this realization arguably does not change the  outcome of the inquiry.  For example, if  the voting public knows the judge pictured with the candidate judge is  deceased, the picture still potentially implies the deceased judge previously endorsed  or would have endorsed the candidate judge.   If the voting public does not know the judge pictured is deceased, the  picture potentially implies the pictured judge endorses the candidate  judge.  These implications, and potential  misrepresentations, are the very type of conduct addressed in Fla. JEAC Op.  10-18 and prohibited by Canon 7A(3)(e)(ii).

Therefore, given this Committee’s prior  opinions prohibiting the use of photographs depicting other judges, both in  campaign literature and on any website, and given candidates have an obligation  under Canon 7A(3)(e)(ii) to not knowingly misrepresent a fact concerning their  candidacy, and given that use of the photograph in question could imply and  give to the voting public the perception of endorsement of the inquiring candidate  judge by the deceased judge pictured in the photograph, the Committee believes  the inquiring judge should avoid use of the photograph in question in the  judge’s campaign materials and electronic media.

(Mike Frisch)

June 23, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Serious Question Remains (For Dissenting Justice)

The Rhode Island Supreme Court has ordered a public censure of an attorney who practiced while suspended for non-payment of annual dues.

Justice Goldberg dissented

When the respondent appeared before this Court it was disclosed—apparently for the first time—that throughout the period of time she has been removed from the Master Roll of Attorneys, including now, the respondent has been employed as staff counsel in the Office of Legislative Counsel at the Rhode Island General Assembly. Upon further inquiry, this Court was advised by Disciplinary Counsel of the following:

"Whether the title is staff counsel or legal counsel, there is certainly an implication that the person holding the position is an attorney. While there is no written job description, it can be presumed that only attorneys are hired for these part-time positions. Ms. Napolitano was duly licensed when first hired at Legislative Counsel, but it is not clear that maintaining active status is a prerequisite for holding such a position."

Because this position was not disclosed to Disciplinary Counsel or the Disciplinary Board, it is my belief that further inquiry into whether the respondent’s continued employment after she was removed from the rolls is warranted. A serious question remains as to whether the respondent continued to act as an attorney while she was no longer eligible to practice law in this state, and, whether her failure to disclose this employment constitutes another violation of the disciplinary rules.

Furthermore, the fact that there is no job description for the position of legal counsel is of no moment to whether this matter should be referred back to the Disciplinary Board for further inquiry. The position of legal counsel or staff counsel clearly signifies to this Justice and the public that the respondent has been employed in the capacity of an attorney throughout these proceedings, notwithstanding that she is not authorized to do so. Consequently, I dissent.

(Mike Frisch)

June 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Christmas Story

The California State Bar Court Review Department has recommended a partially-stayed two year suspension of an attorney who had misappropriated the proceeds of a settlement of a tort action on behalf of his parents.

The attorney had assigned his interest in the settlement to a New York company (Modeso) in exchange for a $10.000 payment.

When the case settled, he failed to pay and lied to the company representative.

At trial, [the attorney] testified that he lied to Modeso because he needed the money to pay his staff. He reasoned that he could not live with himself if he laid off his employees just before Christmas. [He] claimed that he intended to pay Modeso as soon as other cases settled, but they spiraled into protracted litigation. He described his remorse: "I am ashamed that I lied the way I did. What I should have done is told Modeso about my situation and been forthright with them and let them take the course of conduct that they chose to take in response."

He must serve a minimum of six months actuual suspension under the proposed sanction.

The California Supreme Court previously had rejected a stipulated 30 day suspension in the matter. (Mike Frisch)

June 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Klayman Hearing Starts Today

This listing from the D.C. Bar web page reports that the disciplinary hearing in In re Larry Klayman is scheduled to start today

Hearings are held in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals located at 430 E Street NW, Washington, DC 20001.

Please contact the Office of the Executive Attorney at (202) 638-4290 to confirm the date, time, and location of hearings, as schedules are subject to change.

In re Larry Klayman, D.N. 048-08 June 23-24 & 26-27, 2014, 9:30 a.m. Courtroom II

The docket number means that the invesigation into this matter began in early 2008. Also, it is somewhat unusual for a hearing committee to hold hearings on four out of five consecutive days.

We previously reported on the allegations

The petition (which is not available on line) alleges three instances of violations of District of Columbia Rule of Professional Conduct 1.9 in representing  interests materially adverse to Judicial Watch in the same or substantially related matters.  

It states that Mr. Klayman was Chairman and General Counsel of Judicial Watch from July 1994 to September 2003.

(Mike Frisch)

June 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, June 20, 2014

Reinstatement Denied With One Vote For Mercy

The West Virginia Supreme Court of Appeals has acknowledged a petitioner's commendable progress in drug rehabilitation but nonetheless denied his application to be reinstated to practice.

The attorney's license had been annulled in West Virginia and Georgia as a result of a federal felony conviction for forgery. He also misappropriated entrusted funds.

The court noted that the attorney became involved with drugs as a teenager. He was sober for many years, completed his education and had gone to work at his father's law firm.

He resumed  illegal drug use after being prescribed cough syrup that contained hydrocodone. He failed to advise the prescribing doctor of his drug history. He got hooked on the syrup and then moved on to oxycodone and crack cocaine.

The triggering event for the relapse was the death of his child's six-year-old friend in his swimming pool.

He went to federal prison as a result of the conviction and has been sober since 2007.

The court was concerned about his candor and acceptance of responsibility

More compelling are the falsehoods. These also indicate that Mr. DiTrapano’s inclinations regarding the truth have not been amended to an extent that would overcome the nature of his prior dishonest conduct. While he may no longer be under the influence of illegal drugs, we cannot overlook his failure to be thoroughly forthright with the [Lawyer Disciplinary Board] and this Court.

In view of the foregoing, we choose not to adopt the recommendation of the HPS, and we deny Mr. DiTrapano’s petition for reinstatement of his law license. Mr. DiTrapano has failed to carry his burden of showing this Court that he currently possesses the integrity and moral character necessary to resume the practice of law. We conclude that reinstatement would have a justifiable and substantial adverse effect on the public’s confidence in the administration of justice.

There was a concurring opinion linked  here.

Justice Ketchum dissented

 Sometimes we need to mix a little mercy with justice...

Mr. Ditrapano was in legal trouble for years because of his drug and alcohol addiction. However, he has been drug and alcohol free for over seven years and straightened up his life. In fact, he has more than met our five-factor test for rehabilitation in order to be readmitted to the practice of law.

 The hearing Panel Subcommittee of the Lawyer Disciplinary Board heard the evidence, considered the extent of the rehabilitation, weighed the demeanor of the witnesses and Mr. Ditrapano, and made a thoughtful, measured recommendation. I would accept their recommendation to conditionally reinstate Mr. Ditrapano’s law license after the completion of his supervised release.

I disagree with my distinguished colleagues.

(Mike Frisch)

June 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Only Washington Can Cross The Delaware

The Delaware Supreme Court has suspended a Pennsylvania attorney for one year and prohited his pro hac vice admission in any matter for three years based on findings of a pattern of unauthorized Delaware practice.

From 2006 to 2013, the attorney (never admitted in Delaware) "represented Delaware residents in over 100 matters arising out of motor vehicle accidents which occurred in Delaware and involved a policy of insurance issued for a vehicle registered in the State of Delaware."

Many of the matters were referrals from a Wilmington doctor. The attorney met with some clients in the doctor's office. Some of the clients came from television ads "which targeted Delaware residents." The attorney met with some of these clients in his firm's Wilmington office.

 The attorney was admitted in Pennsylvania in 1965 and began practice in 1968.  The Pennsylvania reciprocal discipline case could be interesting, as that jurisdiction takes a notably dim view of practicing while suspended. (Mike Frisch)

June 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Immigration Inquiries/Threats Unethical?

The Nebraska State Bar Association has sought to amend the comments to Rule 4.3 - respect for the rights of third persons - by adding the following language

 The duty imposed by paragraph (a) of this Rule includes a lawyer’s assertion or inquiry about a third person’s immigration status when the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter. When a lawyer is representing a client in a civil matter, a lawyer’s communication to a party or a witness that the lawyer will report that person to immigration authorities, or a lawyer’s report of that person to immigration authorities, furthers no substantial purpose of the civil adjudicative system if the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter. See, also, Rules 8.4(b) (prohibiting criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) and 8.4(d) (prohibiting conduct that is prejudicial to the administration of justice or adversely discriminatory toward litigants, witnesses, lawyers, judges, judicial officers, or court personnel on the basis of race, national origin, gender, religion, disability, age, sexual orientation, or socioeconomic status).

The comment period to comment on the proposed new comment ends on Septemeber 1, 2014. (Mike Frisch)

June 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Malpractice Award Affirmed

A $17.2 summary judgment for legal malpractice was affirmed by the New York Appellate Division for the First Judicial Department.

Plaintiff commenced this action for legal malpractice against defendant law firm based on the alleged negligent drafting of an agreement (Side Agreement) that was intended to memorialize an oral agreement between plaintiff and nonparty UBS Securities LLC (UBS) to cap at $2 million the amount of fees UBS was to receive for acting as plaintiff's exclusive financial advisor in its effort to acquire control of nonparty Six Flags, Inc., unless plaintiff acquired more than 51% of the voting shares of Six Flags. Prior to the instant lawsuit, UBS successfully sued plaintiff for $10 million in fees in connection with the Six Flags transaction. In the course of that lawsuit, we rejected plaintiff's argument that the Side Agreement, read in tandem with the main agreement (Engagement Agreement), capped UBS's fee at $2 million (UBS Sec. LLC v Red Zone LLC, 77 AD3d 575 [1st Dept 2010], lv denied 17 NY3d 706 [2011]) (UBS Decision)...

The motion court properly concluded that the continuous representation doctrine applies to toll the statute of limitations on plaintiff's legal malpractice claim. Although defendant drafted the Side Agreement in 2005, it provided legal advice throughout the UBS litigation from 2007 through late 2010. Although plaintiff was represented by other counsel in the UBS litigation, plaintiff and its trial counsel continued to confer with defendant and share privileged documents regarding its defense strategy. In doing so, defendant apparently sought to rectify its earlier alleged malpractice, namely to prevent UBS from demanding more than $2 million when the Side Agreement was intended to limit UBS's fee. In such cases, the continuous representation doctrine applies. There is no basis to find that the earlier "gap" in representation from roughly 2005 to 2007 ended defendant's prior representation. There was simply no need to consult defendant during that time, and defendant never communicated to plaintiff that its prior representation had ended.

Plaintiff's motion for summary judgment on its legal malpractice claim was also properly granted. Notably, defendant does not dispute that the Side Agreement was intended to cap UBS's fees at $2 million. Given our prior finding in the UBS litigation that the Side Agreement failed to do just that (UBS Sec. LLC, 77 AD3d 575), summary judgment is warranted. Accordingly, no expert opinion evidence was necessary before granting the motion. There are no triable issues as to whether defendant, as opposed to plaintiff or its trial counsel in the UBS litigation, caused plaintiff's injuries. But for defendant's drafting of the Side Agreement, UBS would not have prevailed in its lawsuit seeking $10 million. (citations omitted)

(Mike Frisch)

June 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Not A Profligate Lifestyle

An attorney who had failed to file and pay New York City and State taxes was suspended for six months and until further order by the Appellate Division for the First Judicial Department.

The court noted

By a report dated February 10, 2014, the Panel recommended a six-month suspension as the appropriate sanction in light of certain mitigating factors. In particular, the Panel noted that (1) respondent acknowledged her wrongdoing; (2) she took "prompt corrective action to make necessary filings in dealing with taxing and criminal authorities, including retaining attorneys and accountants to organize and manage the process, and [put] in place safeguards to ensure ongoing compliance"; and (3) she has no prior disciplinary history in over 25 years of practice.

The Panel found only one aggravating factor, namely that during the period at issue, respondent annually earned between $101,380 and $187,212, and rather than pay her taxes, had traveled within the United States and abroad. Nevertheless, the Panel noted that respondent had not lived an unduly extravagant lifestyle, as evidenced by the fact that she did not own her own home or a car and still had $18,000 in law school debt more than 25 years after her graduation. The Panel concluded that while respondent's "lack of substantial outside expenses should have made payment of her taxes less onerous, ... it does not appear to be the case that [r]espondent failed to pay her taxes because of a profligate lifestyle. Rather, it appears that her lifestyle was moderate, her failure to pay was not venal and was instead due to a mental block with the task before her".

(Mike Frisch)

June 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

What It Takes To Get Disbarred In New Jersey

The New Jersey Supreme Court agreed with a dissenting opinion of the Disciplinary Review Board and disbarred a convicted sex offender.

The offense involved a minor child.

The DRB majority had proposed a two-year suspension.

From the dissent

How can clients then trust the sound advice that they seek from an attorney - in any area of the law - when they know that the attorney is morally deficient?

..,.we cannot help but wonder how members of the public would feel if, during the course of the representation, they learned that the attorney they had placed so much trust in was a registered Megan’s Law offender. How would they then feel, when they learned that we, as a profession, allowed that attorney to maintain a license? We doubt they would have much faith in any of us going forward, always wondering what the next attorney might be hiding about his or her character. We also doubt many members of the public would be able to understand why this attorney was not disbarred.

The dissent also notes that the attorney concealed the conviction from disciplinary authorities "for almost fifteen years, despite his legal duty to notify the [Office of Attorney Ethics] of his guilty plea."

The dissent was authored by Chair Bonnie Frost and member Jeanne Doremus. (Mike Frisch)

June 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Criminal Throughout

The New Jersey Supreme Court has imposed a three year suspension of an attorney convicted of conspiracy to defraud the United States.

The crimes involved income derived from a business that involve the repair and resell of amusement and gaming-machine components.

The crimes were committed in concert with two admitted attorneys, Bagdis and Klein. Bagdis employed Klein, who also was suspended for three years.

The criminal activity began before the attorney entered law school and continued into his legal career.

The Disciplinary Review Board noted

In respondent’s case, the sentencing judge found significant aggravating factors that led him to impose a harsher custodial sentence on respondent. Specifically, respondent had not assisted the federal authorities in their investigation of Bagdis. Moreover, respondent waited until two weeks before his trial to "come clean." Respondent also engaged in repeated criminal acts with every paycheck that he received, for years on end, while attending law school, during an internship in the Camden County Prosecutor’s office, when serving a judicial clerkship, and, finally, as a newly licensed, practicing attorney...

While both respondent and Klein engaged in criminal activity for more than eight years, we find respondent's actions to be more egregious, because his plan to deceive the government had already taken root and became an integral part of his life as he honed his attorney skills in law school, the internship with a prosecutor's office, and a judicial clerkship.

If an attorney is engaged in criminal activity throughout his entire career, I would think that would logically result in disbarment.

The Pennsylvania Supreme Court ordered a five-year suspension for the misconduct.

The court here agreed with the DRB that the attorney should not get credit for time served since his Pennsylvania suspension.

So far as I can tell, the disciplinary case was predicated solely on the conviction. I would think there must also have been concealment of the unfavorable character information in the admissions process. (Mike Frisch)

June 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, June 19, 2014

The End Of A Monumental Struggle

The Wisconsin Supreme Court has revoked the license of an attorney with a record of prior discipline.

The court noted the referee's evaluation of the attorney's credibility

The referee vigorously rejected Attorney Grogan's defenses to the OLR's allegations.  The referee variously described Attorney Grogan's defenses as "entirely incredible," "riddled with inconsistency," "baseless," and "advanced without a shred of supporting documentary evidence . . . , and in the face of a mountain of contemporaneous written evidence to the contrary."  The referee wrote that one of Attorney Grogan's arguments during the six-day disciplinary hearing "literally destroyed any remaining credibility he possessed."  The referee also commented that Attorney Grogan's noncooperation with the disciplinary process rose "to a level never before seen by this referee.  [Attorney Grogan] has made engaging in basic communication with him a monumental struggle.  The jobs of OLR investigators, Court clerks, and even this referee were needlessly magnified by his avoidance behavior."

As mentioned above, the referee ultimately recommended the revocation of Attorney Grogan's law license.  The referee wrote that "[w]hile it is almost unfathomable to think that an attorney would risk censure over such trifling amounts as [Attorney Grogan] took in this case, it is the blatant nature of the violations, combined with a long pattern of unremorseful behavior, which tips the scale."

The attorney has been suspended since 2011. (Mike Frisch)

June 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)