Wednesday, July 15, 2015

False Statement Concealing Travel To Cuba Gets New York Attorney Disbarred

An attorney convicted of a false statement to conceal his travel to Cuba was disbarred by the New York Appellate Division for the First Judicial Department.

On October 29, 2013, respondent was convicted, upon his plea of guilty, in the United States District Court for the Southern District of New York, of one count of making a false statement on a United States Customs and Border Protection form (USCBP), in violation of 18 [*2]USC § 1001, a felony. On June 3, 2014, respondent was sentenced to two years of probation and a $100 assessment was imposed.

Respondent's conviction arose from his submission, on or about September 13, 2011, of a USCBP Form 6059B on which he falsely stated that the only country he had visited while outside the United States was Mexico, when in fact he had also traveled to Cuba.

The sanction was premised on the preclusive effect of the conviction

This Court has repeatedly held that a federal conviction under 18 USC § 1001 is analogous to the New York felony of offering a false instrument for filing in the first degree under Penal Law § 175.35, a class E felony based on facial similarity of the statutory language (see Matter of Collazo, 81 AD3d 220 [1st Dept 2011]; Matter of Ramirez, 7 AD3d 52 [1st Dept 2004]). Even if the statutes were not analogous, respondent's allocution, in which he admitted that he willfully concealed a material fact on his USCBP Form 6059B, taken in conjunction with the information, demonstrates "essential similarity" between the statutes sufficient to strike respondent's name from the rolls (see e.g. Matter of Adams, 114 AD3d 1 [1st Dept 2013]).

Accordingly, the Committee's petition is granted to the extent of striking respondent's name from the roll of attorneys and counselors-at-law in the State of New York pursuant to Judiciary Law § 90(4)(b), effective nunc pro tunc to October 29, 2013, the date of his conviction.

(Mike Frisch)

July 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 14, 2015

A Fine Mess

The Elyria Chronicle - Telegram online has this report on a pending Ohio discipline matter by Brad Dicken. 

Michael W. Fine, the Sheffield attorney accused of hypnotizing female clients for his own sexual gratification, has filed paperwork with the Ohio Supreme Court to resign from the practice of law.

Michael W. Fine

Michael W. Fine

Fine made the request in April, but it didn’t become public until late last month, according to the Supreme Court’s website.

If the resignation is approved, Fine would be barred from ever practicing law again.

Fine agreed to an emergency suspension of his law license last year after the Lorain County Bar Association brought allegations he had hypnotized two of his clients to the Supreme Court.

Fine also is the target of an ongoing criminal investigation and the subject of three lawsuits filed by former clients. Those familiar with the case have said there could be as many as two dozen alleged victims.

Robert Housel, Fine’s attorney, said his client’s decision not to fight possible disciplinary action from the Supreme Court was made with an eye toward moving forward with his life.

“It didn’t make sense to fight it,” Housel said. “It made more sense to try and deal with his problem, which he has been, and go on with his life.”

Chris Cook, the bar association attorney who led the ethics investigation into Fine, said the resignation is part of a deal that will allow his organization not to have to spend the resources on a legal effort to keep Fine from returning to being a lawyer.

“The end result is exactly the same,” Cook said.

Fine fell under scrutiny last year when one of his clients became concerned that she couldn’t remember parts of her conversations with Fine and felt as if she’d engaged in sexual behavior following meetings with him. She contacted Sheffield police, who suggested she not return to Fine’s office.

Instead, the woman recorded a conversation with Fine in which he allegedly put her into a trance and gave her sexual commands and brought it to the authorities.

Police and investigators from county Prosecutor Dennis Will’s office set up a sting in November and when they heard Fine put the woman, who was wearing a wire, into a trance, they raided his office, according to court files.

Since then, numerous other alleged victims have come forward to investigators, although no charges have been filed against Fine.

The Chronicle - Telegram had an article on his temporary suspension

Fine, who hasn’t been charged with a crime, remains the subject of a criminal investigation into the allegations he hypnotized clients to perform sexual acts. He first fell under scrutiny after a female client noticed she experienced time loss, a wet vaginal area and a disheveled bra after meeting with Fine or talking with him on the phone.

Although Sheffield police warned the woman not to return to Fine’s office when she first brought her concerns to them, she instead began secretly recording her conversations with Fine.

Two of those recordings, made in October, allegedly feature Fine putting the woman into a trance and then giving her sexual commands, according to documents filed by Bar Association attorney Chris Cook.

After the woman took the recordings to Sheffield police, officers brought in investigators from county Prosecutor Dennis Will’s office to assist them. Law enforcement then set up a sting in which the woman wore a wire and went to a Nov. 7 meeting at Fine’s office.

Once he put her into a trance, police moved into Fine’s office and began to conduct a search, according to the documents.

A second woman who had hired Fine to do legal work also reported that she thought he had tried to hypnotize her. Cook has said multiple other victims have come forward with concerns about their interactions with Fine.

(Mike Frisch)

July 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Isn't That Special?

A District of Columbia Hearing Committee recently filed a report and recommendation for misconduct in two immigration matters.

The committee proposes a stayed 30-day suspension and probation for two years.

The lengthy and exhaustively detailed report raises a number of points worthy of mention.

First, the case was prosecuted by a Special Bar Counsel, a former member of the Board on Professional Responsibility.

While there have been prior instances of appointment of special bar counsel when the entire Bar Counsel office was recused, I believe this is first such case that actually got prosecuted.

Second, there was an extensive motions practice.

The charges alleged that the misconduct in one count pled in the alternative that either Maryland or D.C. rules applied. The special bar counsel was required to elect a single set of rules and chose Maryland.

I believe that this forced election brings an entirely unnecessary proceduralism to a bar discipline matter.

If either set of rules is violated, discipline follows. Sometimes the proper application of Rule 8.5 depends on the evidence. If you can plead in the alternative in civil practice, surely the more relaxed bar rules permit the practice.

Third, the Maryland disciplinary authorities had reprimanded the attorney for some of the conduct in one of the matters.

The hearing committee found that this action did not preclude findings of misconduct here.

Respondent agreed to be reprimanded by the AGCM for violating MLRPC 8.4(d) in the Minchala matter when the AGCM had under consideration only the basic facts relating to Respondent's lack of competence and diligence. The same facts were proved before the Hearing Committee by Special Bar Counsel, and the same conclusion follows: Respondent violated MLRPC 8.4(d). It only adds to the seriousness of Respondent's violation of MLRPC 8.4(d) that Special Bar Counsel has also provided clear and convincing evidence of Respondent's violation of MLRPC 1.15 in mishandling Mr. Minchala's advance fee payments, and Respondent's causing a waste of judicial resources by forcing Mr. Bloom to file a Lozada motion in order to obtain an extension of time to file Mr. Minchala's appeal with the BIA. (citations to record omitted)

As to the merits, the committee found that his response to a missed deadline was dishonest

 In considering Respondent's conduct in relation to the requirements of MLRPC 8.4(c), the Hearing Committee asked itself one very simple question: "What should an honest lawyer do upon realizing, as Respondent did on June 23, 2011, that the attorney missed an important court filing deadline?"  The answer is equally simple: an honest lawyer must promptly inform the client of the omission, and discuss with the client the means for dealing with the problem caused by the lawyer's error. Yet that is precisely what Respondent did not do in the case of Mr. Minchala. Instead, Respondent concocted a letter based on an unsubstantiated hope that somehow Mr. Minchala had hired a different attorney, and then did nothing further until Respondent was confronted with his dereliction by Mr. Minchala in February, 2012.

Special Bar Counsel had sought disbarment for misappropriation. The committee found only commingling and considered a number of mitigating factors.

If no mitigating factors were involved here, the combined seriousness of Respondent's ethics violations would warrant a six-month suspension, as they did in [the prior] Lopes [case]. However, because the Hearing Committee has found that Kersey mitigation is applicable to Respondent's misconduct in his representation of Ms. Seminiano, because of Respondent's many years of practicing law without any ethics violations other than the instant misconduct, and because of Respondent's record of professional involvement and pro bono service, the Hearing Committee is recommending only a 30-day suspension, stayed in favor of a two-year period of probation on conditions calculated to protect the public but which do not place an undue burden on Respondent.

The case is In re Laurence F. Johnson and can be found at this link. (Mike Frisch)

July 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Married Without Employment

A new opinion from the Florida Judicial Ethics Advisory Committee.

        ISSUE

Whether Canon 3C(4) is violated if a judge continues to employ the judge’s judicial assistant, after the assistant marries the judge’s child.

ANSWER: Yes, even if the proposed action may observe technical compliance with Florida’s nepotism statute.

The question posed by the inquiring judge calls on this Committee to examine not only the Code of Judicial Conduct, but also section 112.3135, Florida Statutes (2015). In light of Canon 2A of the Code of Judicial Conduct, which mandates that judges “shall respect and comply with the law,” the committee believes the judge’s inquiry should be answered although it does pose a mixed question of ethics and law, because under these particular facts those questions are inextricably linked.

A majority of this Committee (ten members) concludes that retaining the judicial assistant post-marriage would constitute a violation of Florida’s nepotism statute and therefore the Code of Judicial Conduct as well.  Moreover, even if the minority (two members) is correct in its legal analysis (which is that the law would not be violated), the majority believes the proposed action would still run afoul of the Code of Judicial Conduct.

The majority view

the facts of the present case are not limited solely to the employee’s future advancement. Instead, the focus should be on the word “employ” as used in the statute. There should be little question that a judicial assistant is selected by the judge and not assigned by some higher authority such as a Chief Judge or court administrator. The judicial assistant thereafter serves at the judge’s pleasure.  It should be emphasized that in the present case the inquiring judge did not actually hire a relative. Instead, the judge proposes to retain the employee once the familial relationship status is conferred by the upcoming marriage. The anti-nepotism statute does not actually mention retention - that is, it does not address the situation where an existing employee’s non-familial status suddenly changes. The minority concludes that this is a distinction with a difference. The majority cannot agree and would interpret the term “employ” as denoting, at least in this case, a continuing process...

The majority’s conclusion stems from the very nature of familial relationships and the unfortunate fact that they do not always remain intact. The legal definition of “relative” is broad and some relatives are more distant than others, but the statute itself attempts no such gradation. Would the minority reach the same result if the judge, rather than a relative, were the one marrying the judicial assistant? Even in the present case, suppose marital difficulties were to arise in the future, to the point litigation ensued. Even though, as would likely happen, the case could be transferred to a different circuit, the perception could arise that the judge has taken the side of the blood relation and has retaliated against the employee as a result. Such actions are the direct opposite of advancement or promotion, a contingency the anti-nepotism statute does not address, but one that presents ethical ramifications no less serious in nature. Personality conflicts, and the troubles that often follow them, will always be with us, but in this instance are easily avoidable by accepting that the Code of Judicial Conduct may impose broader restrictions on conduct than has the Florida legislature.

(Mike Frisch)

July 14, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Treatment And Recovery Secures Return To Practice

The Massachusetts Supreme Judicial Court has reinstated an attorney suspended in 2008, concluding that he has dealt with the problems that caused his misconduct.

He has demonstrated the required competence and learning in the law. He has demonstrated moral reform, as well as a support system to assist in maintaining his recovery from the depression and substance abuse that was at  the root of his misconduct. He has provided ample evidence he 1~ again worthy of the public trust. Based on these findings and our conclusion that the petitioner's reinstatement will not be · detrimental to the public welfare, the standing of the bar, and the administration of justice, we recommend that the petition for reinstatement...be allowed, on certain conditions.

The misconduct involved neglect of a personal injury matter, escrow violations and failure to cooperate with bar counsel.

He stipulated to a 2 1/2 year suspension.

The cause

The petitioner's wife was diagnosed with stage 4 breast cancer in the fall of 2003.  At the time, the wife was 36 years old.  The petitioner and his wife had a daughter who was then just under the age of two.  Around 2009, the cancer metastasized to her brain.  Because of this, the petitioner became depressed, which he recognized in 2005 or 2006. As a result, he was "~ticking his head in the sand" and not paying attention to the fact that he was not getting mail in his cases.  In 2006, the petitioner began using his wife's opiates, which continued until shortly after her death in 2013.  During that time, he tried several times to stop using drugs; each time was with the assistance of a physician and at least one occasion included an in-patient hospitalization. 

Shortly after his wife's death in September 2013, petitioner sought treatment for depression and drug addiction.

He has maintained sobriety and responded well to his treatment for depression.

As evidence that the petitioner was committed to overcoming his addiction and is unlikely to relapse, Dr. Cherney pointed to the following: when the petitioner's wife died, it would have been very easy for him to continue taking drugs. (petitioner; when his wife died, there was a "huge stockpile" of her drugs in the house). Likewise, when the petitioner's daughter was sent home with drugs after both of her surgeries, he did not use them. 

 Cites to the transcript have been omitted. (Mike Frisch)

July 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Firm That Handled Legal Malpractice Case Sued For Legal Malpractice

Some claims of legal malpractice survived motions to dismiss in a matter in which a law firm was disqualified as a result of a conflict of interest, according to a recent opinion of the New York Appellate Division for the Second Judicial Department.

the plaintiffs retained the defendant law firm Gusrae Kaplan Nusbaum, PLLC (hereinafter GKN), to represent them in an ongoing legal malpractice and fee dispute action, and to represent nonparty Nikolay Minkin, a liaison for the plaintiffs, in a related third-party indemnification action. GKN represented the plaintiffs and Minkin until April 24, 2012, when the Supreme Court disqualified GKN from continuing that representation due to a conflict of interest in representing both the plaintiffs and Minkin.

On a motion to dismiss based on documentary evidence

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326;Leon v Martinez, 84 NY2d 83, 88). On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 87-88).

The court

The Supreme Court erred in granting that branch of GKN's motion which was pursuant to CPLR 3211(a)(1) to dismiss the fourth cause of action. The fourth cause of action sought to recover damages for legal malpractice due to GKN's alleged misrepresentation that it had filed a motion to reargue on the plaintiffs' behalf. While the documentary evidence submitted by GKN in support of its motion established that such a motion was prepared, the motion itself indicates that it was not filed until after GKN ceased representing the plaintiffs.

The Supreme Court also erred in granting that branch of GKN's motion which was to dismiss the sixth cause of action, alleging unjust enrichment. "To prevail on a claim of unjust enrichment, a party must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Citibank, N.A. v Walker, 12 AD3d 480, 481 [internal quotation marks omitted]; see Marini v Lombardo, 79 AD3d 932, 934; Cruz v McAneney, 31 AD3d 54, 59). The complaint alleged that the plaintiffs paid GKN large sums of money, which purportedly represented legal fees associated with the work being performed on the plaintiffs' behalf. The complaint further alleged that, in light of the allegations of, among other things, legal malpractice, GKN had been unjustly enriched by those payments and GKN's retention of that money violated "fundamental principals of justice, equity, and good conscience." GKN did not address those allegations on its motion to dismiss, other than to claim lawful entitlement to the money as fees earned and billed. Accordingly, the Supreme Court erred in determining that the complaint failed to state a cause of action alleging unjust enrichment (see CPLR 3211[a][7]).

The trial court had dismissed the entire lawsuit. (Mike Frisch)

July 14, 2015 in Clients | Permalink | Comments (0)

Monday, July 13, 2015

Poor Defense Effort Results In New Trial

The inadequate work of defense counsel led the Massachusetts Supreme Judicial Court to overturn a murder conviction

There is no dispute that the defendant's counsel did not prepare for trial in an adequate manner. Among other things, defense counsel did not familiarize himself with the Commonwealth's discovery file, did not examine the physical evidence collected by police, did not conduct any independent investigation of the case, and did not consider seeking exclusion of any of the Commonwealth's evidence. Because of counsel's inadequate preparation, significant pieces of evidence supporting a third-party culprit defense were not introduced at trial. In addition, two in-court identifications of the defendant were admitted that, if objected to, could have been excluded. Although the case against the defendant was a strong one, it was not overwhelming, and we are persuaded that "better work might have accomplished something material for the defense."

...the defense available to the defendant was aired so inadequately at trial as to create a substantial likelihood of a miscarriage of justice.

The court remanded for a new trial. (Mike Frisch)

July 13, 2015 | Permalink | Comments (0)

Resigned To His Fate

The Ohio Supreme Court accepted the disciplinary resignation of an attorney convicted of insurance fraud.

The Blade had the story of the criminal case from 2008

A former Toledo lawyer convicted of conspiracy charges in a multimillion-dollar insurance scheme was sentenced yesterday in U.S. District Court in Toledo to 11 years, three months in prison.

Darrell Crosgrove, 47, of 5853 Cresthaven Lane, was found guilty by a jury June 3 on one count each of conspiracy to commit wire fraud and conspiracy to commit money laundering.

He was convicted of participating in a scheme to cheat real estate agents and appraisers by promising them malpractice insurance if they joined a trade organization.

Also found guilty for their roles in the scheme were former lawyer Douglas Ritson and the mastermind of the scheme, Mark Haukendahl.

Yesterday, Judge Jack Zouhary said the scheme the men devised lasted several years and bilked "hundreds, if not thousands, of real estate agents" nationwide.

He refuted Crosgrove's contention that his involvement in the plan - between 2001 and 2003 - was one of good faith.

As part of the sentence, Judge Zouhary ordered Crosgrove to pay $2,896,432 in restitution. Crosgrove previously forfeited $92,200 in a bank account in Monroe.

"The jury found you did act in bad faith," the judge said. "They found that not only did you make some bad choices, but you did some bad things."

Authorities said the conspirators created organizations called the Noble Group and American Real Estate Association to falsely sell insurance to as many as 4,500 real estate agents and appraisers. Throughout its existence from 1997 through 2004, the men bilked more than $11 million from their victims.

The real estate association operations were shut down in 2004 by a federal judge in New York presiding over a civil lawsuit brought by the U.S. Small Business Association. Charges were brought against the three men as part of a five-year investigation by the IRS and FBI.

Haukendahl, who pleaded guilty to money laundering, mail and wire fraud, and tax evasion charges in July, 2007, is serving a nine-year federal prison sentence and is responsible for the total restitution of $11.7 million.

Ritson pleaded guilty in December, 2006, to conspiracy to commit mail fraud and was sentenced Oct. 20 to one year in prison. He was convicted of serving as the organizations' attorney from 1997 to 2001.

Assistant U.S. Attorney Seth Uram said Ritson's cooperation with authorities led to a consideration at his sentence. He added that Ritson's cooperation likely caused Haukendahl to return from the Dominican Republic where he was living at the time charges were filed against him.

While working for the real estate organizations, Crosgrove falsely represented to the thousands of members that there was insurance coverage available to them if they were sued by a home buyer for negligence.

He then created a false identity of "John Thomas" and continued to act as counsel for the groups under the fictitious name.

Defense attorney Deborah Rump noted yesterday that Cosgrove did not live an extravagant lifestyle and said that his use of a fictitious name in some of his dealings was similar to the actions of IRS agents or debt collectors.

Judge Zouhary pointed to the use of a fictitious name as proof that Crosgrove "understood it was illegal."

Mr. Uram said the government will try to collect restitution from the men when they are released from prison.

He added that any money collected will not make whole the hundreds of real estate agents and appraisers who lost their reputations and businesses as a result of the scheme.

(Mike Frisch)

July 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Consent Disbarment For Attorney Facing SEC Judgment

The District of Columbia Board on Professional Responsibility has approved and forwarded to the Court of Appeals a consent disbarment of an attorney

Law360 had this story on the attorney's problems with the SEC

A D.C. Circuit panel expressed skepticism Thursday over attorney Brynee Baylor’s claim she was a victim of the perpetrators of a $2.7 million investment fraud scheme she had participated in, but pushed the U.S. Securities and Exchange Commission to explain why the penalties levied against Baylor weren’t excessive. 

Baylor had been tricked by her client, Frank L. Pavlico III, and his accomplice Valner Johnson when she was hired as outside counsel for Pavlico’s firm, The Milan Group, her counsel Gina Dennis argued to the three-judge panel.

She had carried out “all necessary due diligence” before agreeing to work with Pavlico on the scheme, which had appeared to her to be legitimate, and had relied on the advice of Johnson, another attorney and a “sophisticated third party,” regarding the nature of the scheme, Dennis said. Her only error had been to trust the pair, but the SEC had wrongly treated Baylor as a “villain,” according to Dennis.

“Frank and Val were the puppet masters here … surrounding her in a sandwich of deception,” Dennis said.

But Judge Merrick B. Garland seemed unmoved, questioning Dennis on whether Baylor’s conduct should be considered at the least reckless, which would be sufficient to uphold the ruling against her.

In emails to potential investors and in statements to undercover FBI agents who had posed as potential investors — purportedly based on her own observation of other investor transactions — Baylor had flagged a range of outsized benefits for participation in the scheme, with no risk, which a reasonable person could view as reckless, Judge Garland noted.

“That doesn’t sound like simply trusting someone else,” the judge said. “That sounds like she knew similar trades had occurred.”

Judge Nina Pillard also pushed Dennis to explain Baylor’s role in escrow transactions used to hold investors’ money, noting that she had dispersed money put into an escrow account almost immediately, despite the escrow agreements — which she had drawn up — requiring the money to be held for 60 days, with Judge Garland noting that about two-thirds of investor money had been funneled back to Baylor and Pavlico.

The judgment was the subject of this Law360 story. (Mike Frisch)

July 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Drummed Out

An Illinois Hearing Board has recommended disbarment of an attorney who had defaulted on allegations of misconduct

We have considered the Administrator's two-count Complaint, a copy of which is attached as Exhibit 1. We have also considered the Order entered on April 29, 2015 deeming the allegations of the Complaint admitted, a copy of which is attached as Exhibit 2.

We also considered the evidence the Administrator presented in aggravation, specifically the testimony of Schuyler Geller, Jack Kelly and James Burton and Administrator's Exhibits 1 - 3. In particular, Geller described behavior by Respondent, including making baseless claims against opposing counsel and filing baseless criminal charges against opposing counsel and police officers, which clearly exceeded any reasonable boundaries. In addition, in registering with the ARDC for 2015, Respondent provided address information which was false, as evident from the testimony of the Administrator's investigators. This shows a level of intent which provides further support for the sanction requested by the Administrator.

The Panel also considered in aggravation Respondent's lack of cooperation and failure to participate in the disciplinary proceedings. In mitigation, counsel for the Administrator stated on the record Respondent has not been previously disciplined. We did not afford this factor significant weight, given Respondent's serious misconduct and the significant aggravation.

The ABA Journal had reported on criminal charges relating to his creating a disturbance in a courthouse.

The charges were later dropped.

The Chicago Tribune had this story about the arrest and noted

According to his online biography, Fainman attended the University of Wisconsin and John Marshall Law School in Chicago. He cites experience as a pharmaceutical representative, a television producer and jazz drummer.

He apparently has a  "jazz, funk and acid jazz"  quartet. (Mike Frisch)

July 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

The Second Time Around

An attorney disbarred and reinstated has been recommended for a second disbarment by the California State Bar Court Review Department.

The offense was practicing after the first disbarment

Joseph Giovanazzi was admitted to practice in 1969, disbarred in 1990 after two prior disciplines, reinstated in 2003, and charged in 2012 with the unauthorized practice of law (UPL) and intentional deceit to a superior court that he was entitled to practice law when he knew that he was not. A State Bar Court hearing judge found Giovanazzi culpable of the charges and recommended disbarment, concluding that his prior discipline was an extremely aggravating circumstance not overcome by the minimal weight of mitigating circumstances.

...we affirm the hearing judge’s findings and uphold his recommendation.

The misconduct tool place after a 2011 suspension for non-payment of bar dues

In 2011, Giovanazzi represented a defendant, James Deck, in a multi-count felony jury trial in Riverside County Superior Court. The most serious charge against Deck — attempted murder of a peace officer — resulted in a mistrial and was set for a new trial setting on August 5, 2011. A hearing was also set for August 5, 2011 for Deck’s sentencing on the remaining counts of which the jury had found him guilty.

Between July 1 and August 10, 2011, Giovanazzi was suspended from the practice of law in California for failing to pay his State Bar member fees.

Despite the suspension, he appeared on August 5. The trial judge knew of his suspension.

His story

Giovanazzi testified below that he came to the August 5 hearing not to appear as Deck’s attorney of record, but to be “personally satisfied with an abundance of caution” that Deck’s rights were protected and that there would be a smooth transition to successor counsel. Giovanazzi claimed that he came to court with a motion in case the judge ordered Deck’s retrial to proceed and a continuance motion were needed, but denied that he lodged it with the Clerk or gave a copy of it to Garrett. He also denied indicating to the Court that he was entitled to practice law and he assumed from the nature of the sidebar conference that Judge Freer knew that he was suspended. Giovanazzi sought to explain to Judge Freer the circumstances of the suspension but testified that the judge cut him off.

The review department did not buy the explanation

We hold that Giovanazzi breached his duties as an attorney and committed an act of moral turpitude by engaging intentionally in the unauthorized practice of law, both by holding himself out on August 5, 2011, as entitled to practice, and appearing for his client, Deck. Giovanazzi testified below that he was a mere spectator in the courtroom, there to distantly observe the hearing. But the evidence showed that he was actively engaged first with opposing counsel Garrett and then with Garrett and Judge Freer at the sidebar conference about his status as attorney for Deck, never revealing to them that he was suspended when he knew that he was.

The review department rejected other attacks on the findings of fact below. (Mike Frisch)

July 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

D.C. Ethics Committee Approves Proposed Referral Fee Arrangement

A new opinion from the Legal Ethics Committee of the District of Columbia Bar

A lawyer may remit a percentage of fees earned on a matter referred to her by the inquiring "lawyer referral service" only if such fees (1) are derived from litigation matters, as set out in Rule 5.4(a)(5) of the D.C. Rules of Professional Conduct, or (2) are "usual fees" of such a service within the meaning of comment [6] to Rule 7.1.

The inquirer

The committee has been asked whether the D.C. Rules of Professional Conduct ("D.C. Rules" or "Rules") permit certain payments to a lawyer referral service ("Service"). The Service would direct prospective low-income clients to a network of lawyers willing to work for such clients at modest rates. For each client referred to a network lawyer by the Service, the lawyer would remit to the Service a flat "referral" payment ("Flat Payment") of approximately $200. Should the representation proceed beyond the initial consultation, the network lawyer would further remit to the Service fifteen percent of any fees earned through the representation ("Percentage Payment"). The arrangement would apply to all types of legal representation and would not be limited to litigation matters. The Service is or will be qualified as exempt from federal income taxation under section 501(c)(3) of the Internal Revenue Code.

The opinion noted that a number of revisions over the years impacted its analysis

The question, then, is whether the adoption of Rule 5.4(a)(5) was intended to repeal, sub silentio, the exception for the "usual fees" of a "lawyer referral service" that are recognized by comment [6] of Rule 7.1 and by Opinions 201, 286, and 307. We think not.

There was no provision like subparagraph (a)(5) in the D.C. Rules before 2007 and no counterpart in the D.C. Code of Professional Responsibility, which was in force prior to January 1, 1991.  Importantly, the discussions in the Wortham Report of proposed subparagraph (a)(5) and of Rule 7.1 do not suggest that adoption of the former would repeal or even narrow the latter’s existing approval of the payment of "usual fees" to lawyer referral programs. See Wortham Report at 174-77, 190-95.

Although Rule 5.4(a)(5) is narrower than comment [6] to Rule 7.1 in the sense that it is limited to fees derived from litigation matters, it is broader in that it applies not only to lawyer referral programs but to any non-profit organization. Moreover, Rule 5.4(a)(5) covers not only payments to the referring organization from outside lawyers but also from lawyers who are employed or retained directly by the organization. By contrast, comment [6] to Rule 7.1 contemplates only payments by lawyers to whom matters are referred by a lawyer referral service, and then only the "usual fees" of such a service...

We conclude that the Service will constitute a "lawyer referral service" within the meaning of comment [6] to D.C. Rule 7.1 if the Service—

  • is generally open to D.C. Bar members who agree to its reduced-fee prerequisite, see ABA Model Rule 7.2, cmt. [6];
  • takes reasonable steps to ensure that lawyers to whom matters are referred are competent to handle such matters, see D.C. Rule 1.1;
  • does not interfere with the lawyers’ professional independence of judgment;
  • requires only reasonable referral fees (a criterion that is met by its current fifteen percent requirement), see D.C. Rule 1.5(a);
  • requires that all lawyers in its network have reasonably adequate malpractice insurance see ABA Model Rule 7.2, cmt. [6];
  • has a neutral dispute resolution mechanism, see id.; and
  • does not refer matters to lawyers who own, operate, manage, or are employed by the Service, see id.

The committee finds that the charges are a "usual fee" for the service. (Mike Frisch)

July 13, 2015 | Permalink | Comments (0)

Sunday, July 12, 2015

Comstock Load

The California State Bar Court Review Department rejected mitigation found by a hearing judge and recommended disbarment of an attorney who had failed to comply with notice obligations of an earlier suspension.

This case illustrates the perils faced by an attorney who disregards the most basic of his discipline responsibilities. In this proceeding, Victor Marcel Comstock faces discipline for the third time for failing to file a compliance affidavit as required by California Rules of Court, rule 9.20(c). For this violation, the hearing judge recommended Comstock receive a two-year actual suspension, conditioned upon satisfactory proof of his rehabilitation. The Office of the Chief Trial Counsel of the State Bar (OCTC) appeals and urges that disbarment is the appropriate discipline. Comstock does not appeal. He concedes culpability and supports the hearing judge’s recommended discipline.

...we give less weight in mitigation for Comstock’s recovery from his emotional difficulties and substance abuse, which span almost 30 years and were a significant factor in his misconduct. His four months of sobriety at the time of trial is an insufficient period to show the requisite rehabilitation.

A suspended attorney must file an affidavit demonstrating compliance with the order of suspension.

Here, the attorney failed to do so in a timely manner but eventually complied.

He described how OCTC’s petition for disbarment shocked him into action; he retained counsel and he enrolled in the State Bar’s Lawyer Assistance Program (LAP), seeking treatment to assist him in recovery. On October 2, 2013, the hearing judge found “good cause” to grant Comstock’s motion, lifted the default, and ordered that his verified answer be filed.

Since then, Comstock participated fully in these proceedings and has been wholly cooperative. Weeks before trial, he entered into a Stipulation as to Facts and Admission of Documents (Stipulation). OCTC tendered the Stipulation as its only evidence at the hearing below, and the hearing judge immediately made a culpability finding. This allowed the trial to proceed directly to the discipline phase, which consisted solely of Comstock’s testimony in mitigation.

Disbarment is appropriate, according to the review department

Where professional misconduct is attributed to chemical dependency, “a heavy burden remains on [the respondent] to demonstrate the kind of totally effective rehabilitation that would justify relief from or substantial reduction of discipline.” Here, we do not have adequate assurances that Comstock’s addiction no longer poses a risk to the public, the courts, and the profession. As such, we are unable to justify a departure from disbarment as provided by standard 1.8(b). (citations omitted)

My take:

I respectfully disagree.

The hearing judge's analysis of the "wake up call" evidence gives me enough confidence to give weight to the attorney's recovery efforts.

Based on my experience, I suspect that the untimely affidavit compliance puts him in the top percentile of suspended lawyers. 

Unless there is some evidence of practice in violation of the suspension order, the misconduct found here is not disbarment-worthy. (Mike Frisch)

July 12, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Saturday, July 11, 2015

Defeated Judicial Candidate Reproved: Accused Judge Not Arnold's Bagman

In a published decision,  the California State Bar Court Review Department imposed a public reproval and ethics school for an attorney who made false statements in his judicial campaign against a sitting judge.

we agree with the hearing judge that Parish’s statement accusing his opponent of involvement in bribery and corporate fraud was a factual misrepresentation made with reckless disregard for the truth...

We disagree with the hearing judge, however, that this matter should be resolved with an order of admonition, which is not discipline. Instead, we find Parish’s reckless statement implicating a judge with bribery requires public discipline to maintain the integrity of the legal profession and to preserve public confidence in the impartiality of the judiciary. 

The story

As a Yolo County deputy district attorney and a political neophyte, Parish mounted a campaign to unseat Judge Daniel Maguire in Yolo County Superior Court during the June 2012 election cycle. Parish spent the majority of his campaign going door-to-door and appearing at events to meet people and ask for their votes and their money. For campaign strategy and messaging, Parish relied heavily on his trusted advisor, Kirby Wells, who had extensive campaign experience. Parish also enlisted the aid of two paid political consultants — first Frank Ford and then Aaron Park. When Ford left the campaign in March 2012, Parish began working with Park, who was highly recommended by Wells. Park and Wells agreed that Ford had not been “aggressive” enough in the campaign.

Aggressive meant a campaign to tie his opponent to Governor Schwarzenegger, who was unpopular in Yolo County. The judge was referred to in a mailer as  "Arnold's bagman"

Dan Maguire was quoted defending the Protocol Foundation — used to hide $1.7 million in Arnold’s Travel Expenses. 

As part of Arnold’s inner circle, Dan Maguire was part of Arnold’s legal team that made decisions including commuting the sentence of convicted murderer Esteban Nunez. Fabian Nunez (Estaban’s [sic] father) is the former Speaker of the Assembly and current business partner of Arnold.

Dan Maguire was involved in a sordid case of corporate fraud that involved payment of bribes in Russia.

Dan Maguire received a political appointment (never elected) and took the bench only three weeks before Arnold’s last-day Commutation of Esteban Nunez’ sentence!

California suffered through 7 years of Arnold — you can stop it in Yolo County!

In the bar proceeding

Parish concedes the statement implicating Judge Maguire in bribery and corporate fraud was “actually false.”

He sent out two sets of mailers - one for the  Democrats; another for the Republicans.

The fallout

The mailer was sent on May 15, 2012. It was controversial, and the fallout was immediate. Judge Maguire asked his colleague, another Yolo County Superior Court judge, to prepare a robocall for voters condemning the mailer, which he did. In addition, local newspapers printed several articles, portraying the mailer in a negative light. Within days of the mailer’s delivery, Parish’s key followers withdrew their support, including the Yolo County sheriff and the district attorney, the Winters Police Officers Association, and the Yolo County Republican Party. Parish quickly and formally acknowledged the inaccuracy of the statement about Judge Maguire’s involvement in bribery and corporate fraud. He said he regretted including it in the mailer. Parish fired Park and stopped actively fundraising and campaigning. The election took place on June 5; Parish was resoundingly defeated, receiving only 23% of the vote.

The court rejected procedural challenges to imposition of discipline. (Mike Frisch)

July 11, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, July 10, 2015

Not Nitpicking; Misconduct Not Proven

The Michigan Attorney Discipline Board affirmed the dismissal by a hearing panel of ethics charges involving allegedly false deposition testimony 

Respondent was initially charged in a formal complaint with: (1) violating the criminal law, specifically, the Michigan Campaign Finance Act, MCL 169.254 (prohibiting corporate contributions to campaigns and providing that an agent's actions in violation of this provision shall constitute a felony), contrary to MCR 9.104(5) and MRPC 8.4(b); and, (2) alleging that answers given by respondent while testifying as a witness during a deposition in a civil action were "intentionally and knowingly false and misleading," contrary to MRPC 8.4(b). Respondent successfully challenged the criminal conduct charge prior to hearing...

Respondent came to be deposed in a civil action for malicious prosecution as a result of his representation of Meijer, Inc., which sought to open a store in Acme Township, Michigan. The Township Board granted a special use permit, then, after the Board's composition changed as a result of this action, it took actions to slow or halt the development of "big box" stores in the township. Citizen's groups were formed, litigation, a referendum, and a recall election ensued.

The dismissal order was not clearly erroneous

We are not persuaded that the panel's findings were clearly erroneous, for at least two reasons. First, to prove the falsity of an answer disclaiming knowledge as to "how big a role" Meijer played in an election, it would have to be established that the person answering had complete knowledge of Meijer' s activities and "the role" those activities played in the election. We agree with the hearing panel that the proofs were inadequate to the task.

Also, we agree with Mr. Stoepker that the task would be almost impossible to accomplish. The question asks for an opinion or a judgment, not really a verifiable response. The questioner asked whether Mr. Stoepker could tell the questioner "how big a role" Meijer played. The questioner did not ask "what do you know about Meijer's involvement in the referendum?" or even "what do you know about the role Meijer played?" These are not nitpicking distinctions. The question actually asked matters greatly when it is alleged that the answer is false.

(Mike Frisch)

July 10, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Less Than Disbarment For Felony Drug Conviction

An attorney's drug conviction led to a suspension of no less than three years without automatic reinstatement by the Indiana Supreme Court.

Respondent was indicted in federal court on three counts involving the manufacture of methamphetamine. On October 4, 2013, Respondent pled guilty to one count of unlawful distribution of pseudoephedrine and the other two counts were dismissed. In her factual basis, Respondent admitted purchasing pseudoephedrine four times at different drug stores and then providing the pseudoephedrine to two other individuals, allowing those individuals to evade the identification statutes governing the purchase of pseudoephedrine. Respondent was sentenced to twenty-one months of imprisonment and two years of subsequent probation.

She cooperated with disciplinary authorities and has successfully completed a rehabilitation program.

Justice Dickson

dissents, and would reject the Conditional Agreement, believing that the Respondent, by engaging in conduct resulting in her conviction of a serious felony, has demonstrated unfitness to responsibly represent, advise, and serve future clients.

The attorney has been suspended since August 2014.

Pharos-Tribune Logansport had the story of the arrest

 Two Fulton County residents and a fugitive from South Bend were arrested Wednesday night on drug charges.

After a call about a domestic situation at J.J. Richard Dairy Farm in Fulton County, according to police reports, officers obtained a search warrant and found methamphetamine, marijuana and a fugitive hiding in the home. Charla Richard, 37, and John Wise, 45, of rural Rochester, were both arrested along with Tenneil Selner, 32, of South Bend.

 The Indiana State Police and the Fulton County Sheriff Department were on scene for the arrests.

Police were called to the dairy farm in the 2000 block of West 500 North in Fulton County after Richard’s husband reported she had cut the tires and broke the windows of a pickup truck and fired a pellet gun.

While searching the home, police said they found methamphetamine, marijuana and Selner inside the home, according to a press release.

After obtaining a second search warrant, the release also states, police found a methamphetamine lab, chemical precursors for manufacturing methamphetamine, hypodermic needles and two pellet guns. Two children were also in the residence and they were later turned over to relatives.

Richard and Wise, who also lived at the residence, were arrested on felony charges of possession of methamphetamine, maintaining a common nuisance, manufacturing methamphetamine, possession of drug precursors, and possession of a police scanner during the commission of a felony.

Selner was arrested on two federal arrest warrants and faces local felony charges for possession of methamphetamine and possession of hypodermic needles.

(Mike Frisch)

July 10, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 9, 2015

Disabled Not Disbarred

The New York Appellate Division for the First Judicial Department has granted a disability suspension request of an attorney who had been disbarred for misappropriation in the United States District Court for the Southern District of New York.

The federal court disbarment was affirmed by the Second Circuit. 

The background facts

In 2004, Abrahim Raphael retained respondent to represent him in connection with a federal criminal investigation and subsequent indictment concerning his role in the embezzlement of funds from his employer, International Gemological Institute (IGI). On September 13, 2005, Raphael pled guilty in the United States District Court for the Southern District of New York to conspiracy to commit money laundering and conspiracy to commit wire fraud (18 USC §§ 371, 1349, 1956[h]). His sentencing was adjourned for him to, inter alia, make restitution to IGI.

In July 2007, Raphael wired $250,000 to respondent's operating account for the payment of restitution to IGI. In September 2007, respondent advised Raphael that he was not holding the restitution funds in an escrow account and that to avoid any "tax problems" he needed Raphael to sign a letter stating that the $250,000 was a loan to respondent, which Raphael did.

In January 2008, respondent told Raphael that he had spent $50,000 of the restitution funds and requested that Raphael provide additional funds for the restitution. Raphael then borrowed an additional $50,000 which he remitted to respondent. Respondent ulitmately only paid $120,000 to IGI for restitution. From March 2008 through September 2009, respondent requested that Raphael's sentencing be adjourned approximately 15 times for various reasons which included the representation that Raphael was trying to raise the funds necessary to pay restitution as per the plea agreement.

In 2009, Raphael disclosed to James O. Druker, Esq., his counsel in a separate tax matter, that respondent had spent some of the $250,000 which was supposed to have been paid to IGI. In August 2009, Druker substituted respondent as Raphael's counsel and in September 2009, disclosed respondent's conduct to Judge Kimba Wood, who was presiding over respondent's case.

On January 21, 2010, Judge Wood sentenced Raphael to three years probation. In order to meet his restitution obligation, Raphael borrowed an additional $30,000 from his brother and assigned to IGI his claims against respondent and his right to $100,000, which Druker had requested from the Lawyers' Fund for Client Protection. That same month, after Raphael was sentenced, Judge Wood referred respondent to the Southern District's Committee on Grievances (Grievance Committee).

In September 2009, Druker also filed a complaint on Raphael's behalf with the First Department Disciplinary Committee (DDC), which initiated an investigation of respondent's conduct. During 2010, in connection with the DDC investigation, respondent answered the complaint and was deposed.

In March 2011, the Grievance Committee directed respondent to show cause why it should not impose discipline, based on a statement of six allegations charging respondent with misappropriation, conversion, commingling and improperly entering into a business transaction with a client without required disclosures.

In July 2011, respondent was again deposed by the DDC.

In December 2011, after learning that IGI intended to commence a civil action against him, respondent executed an Affidavit of Confession of Judgment in which he swore that Raphael had given him $250,000 to hold in trust for the benefit of IGI for the purpose of restitution which was to be paid over to IGI prior to Raphael's sentencing. Respondent spent approximately $180,000 of the funds he received from Raphael on personal and business expenses unrelated to Raphael's case. To date, respondent has not repaid any of these funds.

The court considered the impact of charges based on the same facts brought by Departmental Disciplinary Committee ("DDC")

...the DDC brought four charges against respondent, one of which (Charge 3) was based on Raphael's complaint, alleging that respondent violated Code of Professional Responsibility DR 5-104(a)(22 NYCRR 1200.23[a]) (improper loan transactions with a client). Significantly, the DDC did not charge respondent with misappropriation or conversion of Raphael's restitution funds. By subsequent stipulation, the DDC inter alia amended the language of Charge 3, referring to the $224,000 as "Rafael's funds" to read that "respondent had already used, at a minimum, $224,000 of the proceeds of the loan from Raphael for his own personal and/or business purposes" (emphasis added). Respondent admitted to Charge 3 as amended by the stipulation, as well as two other charges.

On March 15, 2012, a hearing on sanctions was held before a Referee. The DDC did not call any witnesses but relied solely on respondent's admissions to the charges in the pre hearing stipulation as well as other documentary evidence. Respondent testified on his own behalf in mitigation and called character witnesses. In post hearing memoranda, the DDC argued for a nine-month suspension and respondent urged a public censure.

By report dated October 25, 2012, the Referee sustained the three charges against respondent and recommended that he be suspended for six months.

And thus

The instant proceeding presents what appears to be an unprecedented situation in that the Committee seeks to disbar respondent based on a finding in a federal disciplinary proceeding that he, inter alia, intentionally converted client funds, notwithstanding that, in its own proceeding, the DDC stipulated, and a Referee concluded, that respondent had not done so. Thus, respondent may have an arguable defense under 22 NYCRR 603.3(c)(3).

Disability not disbarment

Respondent has submitted sufficient documentation from his various medical providers as to his current medical condition and how that, due to such condition, he is presently unable to adequately assist his counsel in preparing a defense.

The attorney was profiled in the New York Times.

He was admitted to practice in 1968. (Mike Frisch)

July 9, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Former Air Force Officer Suspended

The Texas Board of Disciplinary Appeals has ordered an interlocutory  suspension of a former Air Force officer convicted at a court martial 0f serious crimes.

Air Force Times had the story of the conviction

A military judge has convicted a Tyndall Air Force Base, Fla., lieutenant colonel of indecent acts with a child younger than 16, possession of child pornography and violating no-contact orders.

James W. Richards, who chose to be tried by a judge rather than a jury during a three-day court-martial that ended Feb. 21, was sentenced to 17 years in a military prison, forfeiture of all pay and allowances and dismissal from the Air Force, a base news release said. Dismissal is the officer equivalent of a dishonorable discharge.

The Bay County, Fla., sheriff's office arrested Richards, 40, in November 2011 for traveling to meet a minor for sex. The Air Force Office of Special Investigations had contacted the sheriff's office after receiving a complaint that Richards had molested a 10-year-old boy about a decade earlier in Texas, according to the sheriff's news release. OSI began surveillance of Richards and found he was picking up a 17-year-old boy in Bay County and taking him to his home for several hours at a time, it said.

OSI contacted the sheriff's office for help with the case. The boy told authorities he met Richards in an online gaming chat room and that they had begun a sexual relationship nine months earlier, when he was 16.

Richards was found guilty on all the charges he faced, which included five specifications of an indecent act with a child and four specifications of violating a no-contact order.

Richards was a judge advocate general assigned to the Air Force Legal Operations Agency in the utilities litigation team stationed at Tyndall, 2nd Lt. Andrea Valencia said in an email.

The Legal Intelligencer had noted a civil suit filed against the attorney and the Big Brothers organization in a separate matter.

The national Big Brothers Big Sisters organization could not escape a Pennsylvania lawsuit from an alleged victim who claimed one of its affiliate's mentors molested him.

The plaintiff, listed as J.P., claimed he was sexually assaulted by former Big Brother James W. Richards. In addition to Richards and Big Brothers' national body, J.P. sued the Big Brothers Big Sisters of Burlington, Camden and Gloucester Counties in New Jersey. The Legal does not name alleged or confirmed victims of sexual abuse...

[Judge] Massiah-Jackson wrote in her opinion that Richards claimed the Philadelphia court system had no jurisdiction in the case because the sex acts did not occur in Pennsylvania.

However, Massiah-Jackson said the process of what a plaintiffs expert called "seducing the child" occurred during activities such as taking J.P. to Phillies games, the Philadelphia Auto Show, and trips to the city's Chinatown.

"In this instance, the series of visits to Pennsylvania were undertaken to bring about the physical sexual acts," Massiah-Jackson said. "The harm, the tortious injury, and the cause of action of battery, did take place in Pennsylvania because all of the activities were part of the defendant Richards' tortious behavior," Massiah-Jackson said.

Massiah-Jackson also said the national Big Brothers organization was responsible for its affiliates and has demonstrated it through its mechanisms to screen potential abusers and a previous acknowledgement that the organization attracts child predators.

 (Mike Frisch)

July 9, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Florida Supremes Squelch Dues Increase Aimed At Improving Access To Justice

The Florida Supreme Court has declined to adopt a proposed dues increase designed to fund access to justice 

Pursuant to Rule 1-12.1 of the Rules Regulating the Florida Bar (Bar Rules),1 522 members in good standing with The Florida Bar (Petitioners) have filed a petition asking the Court to amend Bar Rule 1-7.3(a) (Membership Fees; Membership Fees Requirement) to authorize the Florida Bar Board of Governors to increase annual Bar membership dues in order to provide additional funding to The Legal Aid to the Poor Program of The Florida Bar Foundation for consideration—as Petitioners point out, the State of Florida is facing a significant decrease in funding for legal aid and there is an urgent need for new solutions to ensure that every person has equal access to our judicial system. However, because we believe this issue requires further study and a more comprehensive approach, we decline to adopt Petitioners’ proposed amendment at this time. We wish to commend Petitioners for bringing this important issue before the Court.

In other words. thanks but no thanks.

The court recognizes the problem

In their petition in this case, Petitioners assert that Florida’s delivery of legal services to the poor is in crisis. They allege that, in recent years, the number of people in Florida living below the poverty line has increased. Legal aid organizations across the state presently handle basic civil legal needs for many of these low income and disadvantaged Floridians. However, Petitioners point out some studies suggest that as much as 80 percent of the legal needs of the poor and disadvantaged are not being met. At the same time, funding and resources for legal aid have dropped dramatically.

But concludes

Although we decline to adopt their proposal at this time, we wish to thank Petitioners for bringing this important issue before the Court for consideration, and we commend their altruism in recommending an increase in Bar dues to support legal aid organizations. The petition in this case brought to the forefront a significant and critical issue affecting access to justice in our state. We believe a continuing discussion as to the best methods to fund legal aid programs, together with the work of the Florida Commission on Access to Civil Justice, will serve to strengthen equal access to our judicial system.

Justice Pariente concurred in the 4-3 per curiam opinion. He was joined by Chief Justice Labarga.

A dissent from Justice Lewis

It is truly an unfortunate day for Florida as a majority of this Court professes to be protecting the legal needs of many Floridians while it is actually rejecting the very simple availability of a limited tool to provide possible relief and a safety net to at least some most in need. I fully agree that the lawyers of this State cannot and should not be required to be the group of individuals solely and exclusively responsible for the monetary needs or programs necessary to provide access to justice for all Florida citizens. The petition we consider today does not seek such a result and was never designed or intended to reach that result. A number of outstanding members of The Florida Bar have simply requested that The Florida Bar be authorized (not mandated) to generate additional funds (not mandatory) as a tool for attempting to enhance access to justice for at least some Floridians in need...

I cannot subscribe to a theory that we authorize nothing unless we can resolve all. This reminds me of the story of the lawyer who traveled to the nursing home with the absolute best intentions of assisting the disabled and infirm. Upon his return home, inquiry was made as to how he had assisted the infirm that day. The lawyer responded that so many of those in the nursing home needed soft shoes and a comfortable chair that he did not have the resources to provide soft shoes and comfortable chairs for all, so he simply provided none. His family replied with great disappointment that the solution to many large problems may begin in the purchase of a single pair of soft shoes and a single comfortable chair.

I am part of the disappointed Court family who believes that one positive step at a time and one authorization at a time is far better than waiting until committees and commissions make recommendations that may or may not be fulfilled.

Justice Quince also dissented, joined by Justice Perry.

While I do not believe that lawyers should be solely responsible for providing the monetary assistance to help the poor and the middle class have access to our courts, I do believe that it is a part of our responsibility as lawyers to assist in this endeavor. I recognize that lawyers have for years contributed so that others have access to our legal system through both the giving of money and the giving of their time and talent. However, in this time of crisis, we would not be remiss in giving The Florida Bar the authority to require lawyers to dig just a little bit deeper to ensure that our courts remain open and accessible to all in need...I would authorize The Florida Bar to require lawyers to pay up to $100 a year with their Florida Bar renewal.

 (Mike Frisch)

July 9, 2015 | Permalink | Comments (0)

More Charges Against North Carolina Death Penalty Defense Attorney

The North Carolina State Bar has filed a new complaint against the death penalty defense attorney previously charged with keeping a water bottle without the permission of suspect's sister to test for exculpatory DNA. 

The attorney is now alleged to have given an uncertified transcript of an innocence hearing to a reporter for The News and Observer.

A staff member of The North Carolina Center on Actual Innocence conducted an informal inquiry into how the reporter had published an article that relied on the uncertified transcript.

The gravamen of the complaint is that the attorney provided false and misleading responses to the staff member.

The complaint involves the representation of the same defendant as in the water bottle case. (Mike Frisch)

July 9, 2015 in Bar Discipline & Process | Permalink | Comments (0)