Saturday, July 30, 2016

Video Voyeurism Was Moral Turpitude On The Facts: Sports Club Taping May Lead To Disbarment

The District of Columbia Board on Professional Responsibility has issued its long-awaited report in the Kelly Cross case.

The BPR disagreed with a hearing committee recommendation and concluded that the attorney's crime involved moral turpitude on the facts.

 The Board considers this to be a difficult case because of its novel facts and the absence of direct precedent and has concluded, contrary to the recommendation of the Hearing Committee, that Respondent’s crime involved moral turpitude on the facts. We thus recommend that Respondent be disbarred pursuant to the mandatory disbarment provision of D.C. Code § 11- 2503(a). We agree with the Hearing Committee’s determination that Respondent violated Rules  8.4(b) and 8.4(c), and in the event the Court disagrees with the Board’s moral turpitude finding, recommend that he be suspended for one year, with a requirement to prove fitness as a condition of reinstatement for these violations, as recommended by the Hearing Committee.

As recounted in detail in this prior post, the attorney was just back from a stint in Europe with the Freshfields firm, about to tie the knot with his longtime partner and looking for an encounter in the Washington Sports Club.

He videotaped a person who happened to be an attorney and former police officer without consent.

In the WSC locker room, Respondent encountered Complainant, another gym patron, who was changing from street clothes into workout clothes. FF 19; Tr. 37. Respondent positioned himself behind Complainant and used his video camera to record a 20-second video of Complainant undressing, including photographing Complainant’s buttocks and genitals. FF 6, 19, 45. Because Respondent’s camera was concealed within his bag, Complainant was not aware that he had been filmed. FF 19.

After Complainant finished dressing, he walked to the toilet area of the locker room, entered a middle toilet stall, and sat on the toilet. FF 20. The latch on that stall was defective, and the door did not close properly. Id. Respondent followed Complainant into the toilet area, and entered the neighboring stall. FF 21. Respondent slammed the door of his stall and placed the toiletry bag containing his camera on the floor between the two stalls, although the camera was not recording. Id. Respondent kept his hand on the toiletry bag, and slowly moved it toward Complainant. Id. Complainant noticed that a hole had been cut in the side of the bag and could see a camera lens pointing outward through the hole. Id. Complainant grabbed the toiletry bag, opened it, moved the toiletries in the bag, and discovered the camera. FF 22.

Crediting Complainant’s testimony, the Hearing Committee found that after Complainant grabbed the toiletry bag, Respondent went into Complainant’s toilet stall and demanded the bag back. FF 23. Complainant, still seated on the toilet, held on to the bag “like a football.” Id. Although Complainant perceived Respondent to be a smaller man, Complainant felt fearful because he believed Respondent was upset and “crazy or something.” Id. Complainant stood up to pull up his pants, still holding on to the bag, and Respondent “lunged” at him. FF 24. Complainant forced Respondent out of the stall, and toward the sink area. Id. Complainant held Respondent against the sinks and told another gym patron to call the police. FF 26. At some point during the scuffle, Complainant suffered a bruise to his right forearm. FF 25.

The attorney pled guilty to video voyeurism and was placed on probation

During the period of his probation, Respondent was prohibited from joining a gym, owning a camera or camcorder, or utilizing any social networking sites (such as Craigslist). Id. He was also ordered to stay away from Complainant.

The BPR's analysis of the moral turpitude issue

In the few moral turpitude cases involving sex-based offenses, the Court has held that a crime involves moral turpitude where “[t]he participant’s desire for . . . gratification [exceeded] his ability to demonstrate a public respect and appreciation of existing societal morals and values.” In re Wolff, 511 A.2d 1047 (D.C. 1986) (en banc) (adopting the opinion of In re Wolff, 490 A.2d 1118 (D.C. 1985) (citation omitted)). Thus, in Wolff, the Court found that the respondent’s conviction of distribution of child pornography involved moral turpitude, because the respondent sought out sexual gratification and attempted to profit by selling materials that exploit children. Id. at 1119-20. Similarly, in In re Bewig, 791 A.2d 908 (D.C. 2002) (per curiam), the Court found that the respondent’s conviction of misdemeanor sexual contact with a minor was a crime of moral turpitude on the facts. In In re Rehberger, 891 A.2d 249 (D.C. 2006), the Court found moral turpitude on the facts where a respondent was convicted of misdemeanor sexual battery and simple battery after he detained and physically abused a female client who had sought respondent’s advice in a divorce case. The Court explained that “misdemeanor sexual convictions” may involve moral turpitude where the victim is placed in a vulnerable position by being “subjected to [the respondent’s] forceful, unwelcome, sordid sexual conduct.” Id. at 252.

Thus, in cases where the Court has determined that a sex-based offense involves moral turpitude, it has found that the respondent knowingly exploited, intruded upon, or invaded the privacy of another person in the interest of his own sexual gratification. By contrast, the Court found no moral turpitude on the facts where a respondent was convicted of carnal knowledge, where there was not clear and convincing evidence that the respondent knew or should have known that the victim was not of the age of consent. In re Lovendusky, No. 84-1672 (D.C. April 4, 1986).

A trip down memory lane here for me.

I prosecuted the Bewig and Rehberger cases. Rehberger took so long (eight years) that I was gone by the time the court imposed the inevitable disbarment.

The Georgia Court of Appeals tells the unsavory story of Rehberger's conviction and disbarment. 

...Rehberger escorted [the 27-year-old divorce client] into his office, closed the door and the two stood in front of his desk discussing the papers. The victim was holding her umbrella, pocketbook and day-planner when Rehberger asked if she had the original of her husband's pay stub. She indicated it was in the planner and Rehberger took the book and tossed it on his desk. He grabbed her right arm and pulled her against him, holding her with his right arm. He rubbed his body against her while holding her so tightly she could feel he was aroused. He rubbed her backside with his hand, then took her hand and rubbed it up and down on his groin. The victim attempted to push away but he continued to grope her and pulled her skirt up high enough to reveal her underwear. At one point he said to her "What's the matter, you got a boyfriend? I'm sure you do. You're a beautiful girl."

Rehberger pulled her shirt open exposing her breast which he touched. The victim said, "Please don't; I need to go," and she clutched her shirt to her body. Rehberger said, "well, you can't fault me for trying" and put his mouth on hers. She continued to push him away and tell him, "Please don't," but when he let go and she turned to leave, he pulled her back. He began rubbing himself back and forth on her backside. He had one arm around her waist and with his other hand held her right arm over her head. She finally got free, grabbed her book and went out the door. When she got into her car she saw it was 3:19 p.m.

I told the story of the Bewig case - and did not offer plaudits to the BPR - in my article No Stone Left Unturned under the header A Tale of Two Associates.

He was an associate at a prominent law firm. He sexually abused a child entrusted to his care when the child was three years old.

He stopped the abuse for a period of time but as the BPR recounted

Sexual abuse resumed when the victim was six years old, again during a period when the victim was in Respondent’s care.

Over a period of three to four months, the pattern of sexual abuse included:

causing the victim to touch Respondent’s penis;

digital penetration of the victim’s anus; and

oral stimulation of the victim’s penis.

Respondent instructed the six-year-old not to tell anyone about their sexual interactions.

The victim disobeyed and Bewig pled to a misdemeanor sex offense.

The BPR had sympathy for this devil.

At the Board, Respondent represented himself. The Board can scarcely imagine how difficult it must be for a member of the Bar to appear before a panel of peers and members of the public to discuss such conduct. Respondent could not have handled the situation with greater decency and dignity. His sincere understanding of the harm he has caused – to the victim, to his own future, and to persons who care about him – is very clear to the Board. What happened here is tragic for all concerned.

I regard this as the single most abhorrent passage written in any matter that I litigated in my Bar Counsel career. 

Another potentially citable case here is In re Sharp, prosecuted by me, that was the subject of a story in the New York Times .

A former member of the Federal Communications Commission has been convicted of sexually assaulting a neighborhood boy in the early 1980's and twice engaging in sex acts with him.

The 44-year-old former official, still facing trial in two similar cases, is Stephen A. Sharp, who served 18 months on the F.C.C. after his appointment by President Ronald Reagan in 1982 and is now a member of a Washington law firm.

Mr. Sharp was convicted on Friday in Alexandria Circuit Court by jurors who then recommended that Judge Alfred D. Swersky sentence him to a year in prison on the assault count and to two years on each of two sodomy counts. Judge Swersky set sentencing for Oct. 8, revoked Mr. Sharp's bond and ordered him jailed immediately.

Mr. Sharp is a former official in Alexandria's youth soccer association. The victim of his assault, who is now a 22-year-old resident of Manassas, Va., testified that he had met Mr. Sharp through his interest in athletics and that the sex acts had occurred in Mr. Sharp's home.

Lovendusky was not mine but I well remember the case. His counsel was a pre-famous Greta Van Susteren.

I may have more to say about the Lovendusky case in the near future. Forewarned is forearmed. 

The damning facts cited in here by the BPR

First, Respondent’s surreptitious filming was premeditated; he did not merely take out his camera on the spur of the moment. Rather, before arriving at the gym, he securely affixed the camera to the inside of the bag using heavy duty tape and used a sharp blade to neatly cut a hole in the bag for the lens so that he could film without being detected.

Second, Respondent brought the bag and video camera into the locker room, in contravention of club policy and a clearly visible sign that prohibited video recording. We disagree with the Hearing Committee’s observation that the sign reflects a societal recognition that “a camera can be expected to be everywhere,” thus making the filming less culpable. H.C. Rpt. at 36. To the contrary, the sign put Respondent on notice of the club’s prohibition on filming, and provided gym patrons some level of assurance that they would not be filmed while using the locker room. Tr. at 244-45.

Third, Respondent filmed Complainant from behind, with the camera concealed, so there was virtually no way Complainant could have known there was a camera in his changing area.

Fourth, the seriousness of Respondent’s crime is aggravated by his subsequent actions. Respondent followed Complainant into the toilet area, entered the stall next to him, and started pushing his toiletry bag into Complainant’s stall. 7 After Complainant discovered the camera, Respondent assaulted Complainant in an attempt to avoid the consequences of his actions. Respondent pushed into Complainant’s bathroom stall, effectively cornering Complainant in a vulnerable position, in an attempt to retrieve the bag. During the scuffle, Complainant suffered a bruise on his arm. Then, after the scuffle, Respondent offered Complainant $1,000, in an attempt to buy his silence...

In short, Respondent filmed Complainant and essentially stalked him through the locker room and the bathroom in pursuit of his own sexual desires, despite the fact that he knew there was a good chance Complainant was simply there to use the gym. While Rehberger and Bewig involved sexual assaults, and this case did not, here Respondent violated the Complainant’s reasonable expectation of privacy by surreptitiously filming him changing clothes. As in Wolff, Rehberger, and Bewig, Respondent sought out sexual gratification at the expense of Complainant’s legitimate and reasonable privacy interest. Respondent compounded the seriousness of his intrusion upon Complainant by assaulting him in an attempt to get the toiletry bag back and then offering Complainant money in order to avoid police involvement. Based on the foregoing, and the criteria set forth by the Court in other cases involving sex-based offenses, the Board finds that Respondent’s crime involves moral turpitude within the meaning of D.C. Code § 11-2503(a).

The report is in In re Kelly Cross and was authored by Mary Lou Soller. The report can be found by clicking on disciplinary decisions and entering the attorney 's name at this link. 

I blogged on the undue length of the process here.

Correction: Elizabeth A. Herman tried the Rehberger case after I had moved to greener pastures.

If memory serves (an increasingly dubious proposition), I had argued that Rehberger was not entitled to a hearing but rather should have been disbarred as reciprocal discipline for his Georgia disbarment.

The BPR was uncomfortable because Rehberger was disbarred by order of the trial judge who presided at the criminal trial. That procedure was entirely lawful in Georgia and was affirmed by the Georgia Court of Appeals. I continue to believe that the BPR erred in granting him a hearing but could not appeal their order.

Betsy picked the case up by the time the heavy lifting was done. (Mike Frisch)

July 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Lay Judge Charged With Ethics Violations

A Vermont assistant judge has been charged with violations of the Canons of Judicial Ethics relating to his dealings with an elderly relative.

In approximately October, 2009 Katherine ("Kay") Tolaro, who is Respondent's father's brother's second wife, moved into Respondent's home in Westminster, Vermont. She was 82 at the time and showing signs of dementia.

The charges allege misconduct both before and after Ms. Tolaro's death.

Perhaps the most unsavory charge

On July 31, 2015 Respondent filed a manifestly implausible claim against Ms. Tolaro's estate for $833,292.51. Among other things, Respondent's wage calculation left only 4 hours per week for Respondent to work, sleep or do anything other than care for Ms. Tolaro. Given that he was employed at the time, that is not possible. Asserting such a manifestly unsupportable claim does not comport with high standards of integrity and candor expected of judges by the Judicial Code.

He also is charged with giving "not entirely truthful" testimony in the related probate proceeding described below.

Seven Days has a detailed story on the situation and the history of so-called Side Judges.

Paul Kane filed a motion to try to avoid testifying in Windsor County Probate Court, but a judge ordered him to talk. As soon as he took the witness stand last November, it was obvious why he'd been reluctant. For 90 minutes, an attorney grilled Kane about whether he'd bilked an elderly woman with Alzheimer's disease of roughly $500,000.

Brattleboro attorney Jodi French asked Kane why, after the ailing Catherine Tolaro granted him power of attorney, he purchased an $180,000 annuity with her money and named himself the beneficiary.

Under French's questioning, Kane claimed that he did so with Tolaro's interests in mind...

Despite his apparent discomfort throughout the hearing, Kane knows his way around the courtroom. In fact, he's a Windham County assistant judge who was elected two years ago. But like most of Vermont's 27 other assistant judges, who advise regular judges in civil and family court cases and occasionally preside over minor cases, Kane does not have a law degree.

Nonetheless, attorneys in the Tolaro estate case say Kane, 63, may have flouted laws and regulations when he converted the funds of the elderly woman he called his "aunt." They are considering whether to refer the case for further investigation to the Department of Financial Regulation, a state agency that regulates bank transactions, once the estate is settled.

Kane has claimed that any irregularities in his handling of Tolaro's estate were due to mistakes and poor understanding of relevant laws. He says he is the victim of "character assassination."

As to Side Judges

The ongoing case is the latest controversy involving assistant judges, colloquially known as "side" or "lay" judges, who retain an antiquated role in the Vermont judiciary despite repeated attempts to strip them of power.

In recent years, side judges in Vermont have been caught directing taxpayer money to their own charities, shoplifting from local stores, doling out bonuses to themselves from public budgets and accusing each other of assault.

Those embarrassing episodes, along with concerns that side judges lack legal training and operate with almost no oversight, have fueled arguments against preserving their positions.

Their harshest critics tend to be traditional judges, some of whom believe that "these people aren't really adequately trained and prepared, and they ought not participate on important decisions in people's lives," said Vermont Law School professor Peter Teachout, who has consulted for the Vermont judiciary. "A prevailing view — not a unanimous view — in the judiciary is that they couldn't be relied upon to perform even a limited judicial function. There's been clear hostility to allowing lay judges to have any legal function."

VTDigger.com reported on the recently-filed ethics allegations.

The events leading up to the complaint filed against Paul Kane, of Westminster, began in October 2009, when Kane moved into the Westminster home of his uncle’s second wife, Catherine Tolaro, who was 82 at the time and showing signs of dementia. That same month, Tolaro executed a “Limited Power of Attorney For Finances” granting Kane and his wife the ability to obtain financial information on her behalf. One month later, Tolaro executed a will that gave 30 percent of her assets to charity and distributed the rest to six beneficiaries, one of whom was Kane. At the time, Tolaro’s net worth was $767,500. Over the next six years, Tolaro’s estate dwindled away, as Kane issued a pair of loans and made claims against the state for the costs of Tolaro’s care.

In July 2015, Kane filed a written statement of claim against Tolaro’s estate, claiming $833,292.51 was owed to him, including $722,740 for caring for her at $18 per hour, 159 hours per week (a week contains a total of 168 hours) for 135 weeks. This amounted to around the clock payment except when a home care nurse was there for two to three hours three times per week.

The claim also included $20,925 for 31 months of room and board calculated at $675 per month, $7,800 due to (Kane) and his wife for financial and property management and $31,827.51 for “expenses advanced to the estate by Paul Kane from April 21, 2012 to July 31, 2015.”

(Mike Frisch)

July 30, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, July 29, 2016

Fort Knox For Pot: Better Not Call Matt

The Michigan Attorney Discipline Board Hearing Panel has disbarred an attorney.

Fox 17 West Michigan had a report on the nature of his practice.

 A commercial property owner in Grand Rapids said attorney Matthew Herman vandalized and stole property from his building. Landlord Eric Butler said his contractor estimates $93,000 in damages and stolen property.

Herman, who has also been accused of ripping off his legal clients, ran a medical marijuana business inside Butler's property on Butterworth in Grand Rapids. Butler said Herman sublet space to pot growers.

"They were throwing numbers around, Matt was, that he was drawing $4,000 to $6,000 per pod, per month. That's a huge cash flow," Butler told FOX 17.

However, the landlord said Herman failed to keep up on rent and utilities. Butler said he learned through the city that Herman cut corners on doing upgrades.

"I started getting letters from the building code inspectors, and oh my God," Butler said.

"He built this whole place up... them not knowing anything. I mean, electrical, plumbing, heating, the whole gambit, all of this stuff was put up illegally," Butler said, adding that no permits were pulled as required.
 
The property owner said he filed a police report with the Grand Rapids Police Department for the vandalism and theft. Butler wants Herman charged criminally, but he said a detective told him it's a civil issue.
 
"I understand about civil issues. [I've] been renting to people for a lot of years. This is not your typical civil matter. This is a matter of larceny where they actually took big parts of the building out of here and removed it for their own gain. That's stealing," Butler said.
 
Herman also owned the law firm West Michigan Legal Group in Grand Rapids. To many of his clients' surprise, that office is now closed. The Problem Solvers reached out to Herman for an interview about the Grand Rapids property. He didn't respond.

The Problem Solvers retrieved court records showing Herman is also being sued by a company that owns a property in Portage. The suit states Herman owes more than $200,000 in unpaid rent, late fees and improvements.

The same source had this report that the attorney borrowed his marketing slogan from "Better Call Saul."

This story quotes the attorney as turning the warehouse into the "Fort Knox for Pot." (Mike Frisch)

July 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Best Lawyer" Suspended For 30 Months

The District of Columbia Court of Appeals has imposed a reciprocal 30 month suspension of an attorney based on discipline imposed by the Louisiana Supreme Court.

WAFB9 had the background

Baton Rouge police report the second man wanted in connection with the alleged rape of a 22-year-old man surrendered to them late Thursday night.

Samuel J. Moore, 25, was booked into the East Baton Rouge Parish Prison after turning himself in around 10 p.m. He was charged with aggravated rape. The alleged crime happened early Monday morning.

According to police, the victim was invited to the home of attorney James Michael Cutshaw, 59, on Sassy Lane by Moore. Sometime after arriving, the victim said he was given a drink, which he believes contained an incapacitating drug. The victim said he soon passed out and drifted in and out of consciousness.

The victim said he awoke several times to find his clothes had been removed. He had been placed into a sexual sling apparatus, bound, gagged and raped. Police report the victim eventually regained full consciousness and was able to gather his clothes and leave.

"The victim's story was graphic and disturbing. It was something that needed to be backed up with physical evidence," said Don Kelly with the Baton Rouge Police Department. "Many parts of the evening came fuzzy to him and he didn't really know the sequence of what happened."

Kelly said during a raid of Cutshaw's home, detectives found quite a bit of evidence inside to corroborate the victim's story. Among the evidence collected was what police believe are drugs. Reportedly, the evidence was sent to a lab for testing.

Cutshaw was arrested at his home Wednesday. He was booked into the East Baton Rouge Parish Prison on an aggravated rape charge. John Delgado, Cutshaw's attorney, issued a statement late Thursday.

"Mr. Cutshaw denies these spurious allegations and looks forward to clearing his good name at trial," Delgado said. "We are confident he will be fully exonerated."

"I don't want to believe that he would do something like that," said Danielle Clark, Moore's sister. "You just really never know. In my heart, I don't believe he did it."

Cutshaw practices law out of his home. In 1987, Cutshaw ran against Fox McKeithen for Louisiana Secretary of State and almost won the election, gaining 49% of the vote. He is a member of the choir at his church and has earned numerous honors through the years. He's published in the 2010 edition of "Best Lawyers in America." He also serves on various boards.

The Louisiana Supreme Court had imposed discipline by consent.

He must demonstrate his fitness to secure reinstatement in D.C. (Mike Frisch)

July 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Unauthorized Practice Draws Fine, Injunction

Correction: I erroneously reported that the subject of this order was a Florida attorney. I am advised that she is not licensed to practice law.

A Florida resident engaged in unauthorized practice in Ohio and has been fined and enjoined for the misconduct by the Ohio Supreme Court.

The three-count complaint alleged that Catalfina, who is not licensed to practice law in Ohio, engaged in the unauthorized practice of law by holding herself out to three individuals as an Ohio attorney. Catalfina initially sought and was granted leave to retain counsel and file an answer. However, to date she has not filed an answer or retained counsel. Following numerous attempts to engage Catalfina, relator filed a motion for default judgment on July 1, 2014, but Catalfina again failed to respond...

Catalfina has never been licensed to practice law in Ohio. We have previously held that “one who purports to negotiate legal claims on behalf of another and advises persons of their legal rights * * * engages in the practice of law.” Cleveland Bar Assn. v. Henley, 95 Ohio St.3d 91, 92, 766 N.E.2d 130 (2002). Also, representing that one is authorized to practice law in Ohio without such authorization, by directly or indirectly creating the misimpression of that authority through manipulation of credentials and strategic silence, constitutes the unauthorized practice of law. Casey at ¶ 11, citing Cleveland Bar Assn. v. Misch, 82 Ohio St.3d 256, 261, 695 N.E.2d 244 (1998). Thus, by purporting to negotiate Social Security disability claims on behalf of Lisa Kellett, accepting money to do so, and holding herself out as an attorney to Kellett, Catalfina engaged in the unauthorized practice of law. And by holding herself out as an attorney to Jason Gall, indicating that she would represent him in his divorce and collecting $150 from him purportedly for filing fees, Catalfina engaged in the unauthorized practice of law.

Sanction

Kelly Catalfina is enjoined from engaging in the unauthorized practice of law, including performing legal services or directly or indirectly holding herself out to be authorized to perform legal services in the state of Ohio. We also impose a civil penalty against Catalfina in the amount of $6,000—$3,000 for each of the Kellett and Gall matters. Costs are taxed to Catalfina.

(Mike Frisch)

July 29, 2016 in Bar Discipline & Process, Billable Hours | Permalink | Comments (0)

Thursday, July 28, 2016

Disbarred For Extortion

A former New York lawmaker has been disbarred by the New York Appellate Division for the Second Judicial Department.

We conclude that the respondent's convictions of extortion under color of official right constitute felonies within the meaning of Judiciary Law § 90(4)(e) (see Matter of Margiotta, 60 NY2d 147). As such, upon his conviction of that crime, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

USA Today had a story on the criminal case

Former New York Senate majority leader Dean Skelos and his son were sentenced to years in prison and hundreds of thousands in forfeitures Thursday for their convictions on federal corruption charges that further documented entrenched dysfunction in the state's political culture.

U.S. District Court Judge Kimba Wood ordered Skelos, 68, a Republican from suburban Long Island, to spend 5 years behind bars, pay $500,000 in fines and more than $300,000 in forfeitures for using his post to pressure companies with interests before the state government to give financial aid to his 33-year-old son.

Adam Skelos, who got a no-show job, $300,000 in consulting work and a $20,000 direct payment at his father's command, drew a 6-year, 6-month prison term and was ordered to pay forfeitures jointly with his father for his conviction in the criminal scheme.

"You sent a message that you, one of the three most powerful officials in New York state, were in some measure corrupt, and you used your official position for personal gain," Wood lectured the disgraced lawmaker. All New Yorkers were victimized by the crimes of bribery, extortion and conspiracy she said.

(Mike Frisch)

July 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reversal Of Fortune

A criminal tax conviction for failure to pay state income tax over an extended period warrants a two-year suspension from practice, according to a decision of the New York Appellate Division for the Second Judicial Department.

The respondent asks that this matter be referred back to the Grievance Committee for issuance of a private reprimand, or, in the alternative, for the imposition of a public censure, in view of the following mitigating factors: (1) the respondent's personal and financial problems suffered during the relevant period (loss of $400,000 annual salary after having amassed significant debt, and before he could build up a new practice); (2) the aberrational nature of the misconduct; (3) his acceptance of full responsibility for his misconduct and full cooperation with the investigation; (4) his payment of full restitution; (5) his sincere remorse; (6) the lack of any harm to any client; (7) the respondent's pro bono and charitable activities in the community; (8) the respondent's general reputation in the community as an ethical and honest attorney; and (9) his unblemished disciplinary record. According to the respondent, his failure to file "resulted from an actual inability to pay and was not motivated by dishonesty or a desire to accumulate wealth."

Notwithstanding the aforementioned mitigating factors advanced by the respondent, we find that a suspension from the practice of law is warranted in view of the pattern of avoidance engaged in by the respondent and the protracted period of 10 years during which he did not file state personal tax returns (see Matter of Gamliel, 122 AD3d 125; Matter of Burns, 242 AD2d 49; Matter of Barnes, 241 AD2d 13). While the respondent did suffer a sudden reversal of fortune when he lost his partnership position at a law firm, the respondent attempted to maintain his lifestyle, including running a horse farm, which not only was not profitable, but required him to use personal income to help cover the expenses required to keep the farm running. The respondent made a calculated decision to pay his federal taxes, but not his state taxes, based on his stated belief that the Internal Revenue Service was the more aggressive tax entity. Although the respondent claimed that he was putting aside savings to pay his overdue taxes, and, indeed, had saved enough money, the respondent continued his pattern of avoidance until he learned that he was under investigation by the taxing authorities.

The East Hampton Star had a story on the charges. (Mike Frisch)

July 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Court Has Authority To Require Arbitration Of Attorney Fees

The District of Columbia Court of Appeals rejected an attack on its rule compelling arbitration of attorney-client fee disputes.

It is well established that this court has statutory and inherent authority to regulate all aspects of the District of Columbia Bar. See Sitcov, supra, 885 A.2d at 295, 297. [Attorney] Ms. Stuart attempts to challenge this court’s inherent authority to regulate the Bar by highlighting D.C. Code § 11-1322 of the Court Reform Act — a section that discusses arbitration, but is unrelated to the subject of managing the District of Columbia Bar. However, what is more relevant to this court’s power to promulgate Rule XIII, is the language in the Court Reform Act that gives this court the express authority to “make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion.” D.C. Code § 11-2501 (a) (2012 Repl.) (emphasis added); see also D.C. Code § 11-2502 (2012 Repl.).

The reasonableness of an attorney’s fee is a disciplinary matter subject to censure, suspension, and expulsion, and thus a matter to be regulated by this court. See, e.g., In re Martin, 67 A.3d 1032, 1035 (D.C. 2013) (issuing an eighteen month suspension for, inter alia, charging a grossly unreasonable fee); see also D.C. R. Prof. Cond. 1.5 (a) (“A lawyer’s fee shall be reasonable”). It follows that the method of disputing attorney’s fees is also subject to regulation by this court given that a dispute over attorney’s fees may lead to censure, suspension, or expulsion should an attorney’s fee be deemed unreasonable...

Moreover, “clients are at a significant disadvantage in litigating” attorneyclient fee disputes, and Rule XIII “protects their ability to present meritorious claims and defenses, and . . . thereby fosters public confidence in the bar.” BiotechPharma, supra, 98 A.3d at 997. Accordingly, the language “make such rules as it deems proper” in the Court Reform Act establishes the inherent authority to regulate attorney-client fee agreements, and this court created Rule XIII because it deemed it proper to mandate arbitration in order to ensure a fair process for resolving disputes over attorney’s fees.

The mandatory arbitration provision is Constitutional

Ms. Stuart argues that by preventing lawyers from accessing the judicial system for fee disputes, Rule XIII denies them the First Amendment right of “access to the courts” and equal protection under the Constitution. However, lawyers are not a protected class under the Constitution, and as we stated in BiotechPharma, it is a privilege, not a right, to practice law and that privilege must be regulated for the protection of clients. Id. at 997. This critical goal would be defeated if arbitration of fee disputes was voluntary for attorneys, as Ms. Stuart argues it should be. Our holding, with respect to Ms. Stuart’s First Amendment equal access to the courts argument, is consistent with the court’s holding in BiotechPharma that Rule XIII does not violate an attorney’s Seventh Amendment right to a jury trial for fee disputes with clients. Id. at 995.

The order denying the attorney's motion to vacate the arbitration award was affirmed. (Mike Frisch)

July 28, 2016 in Bar Discipline & Process, Billable Hours | Permalink | Comments (0)

Wednesday, July 27, 2016

No Conditional Admissions In Minnesota Bar Discipline; Attorney Sanctioned For Fee Sharing And Knifing Former Miss South Dakota's Boyfriend

The Minnesota Supreme Court imposed an indefinite suspension with no right to reapply for five years on charges

alleging two counts of misconduct: (1) an improper referral and fee-sharing arrangement and (2) a first-degree assault conviction.

The court

At a hearing before the referee, [attorney] Riehm admitted the allegations in the Director’s petitions as part of an oral stipulation for discipline, and the parties agreed to recommend that we indefinitely suspend Riehm for a minimum of 5 years. But Riehm now contends that he may withdraw his admissions if we decide not to impose the parties’ recommended discipline. We conclude that Riehm unconditionally admitted the Director’s allegations of misconduct as part of the oral stipulation; therefore, he cannot now withdraw his admissions. We further hold that, as a matter of law, an attorney may not condition his or her admissions to allegations of misconduct on receiving a particular disposition from our court. Finally, after considering Riehm’s admissions and the recommendations of the Director and the referee, we indefinitely suspend Riehm from the practice of law for a minimum of 5 years.

The fee sharing

Riehm’s misconduct began with an improper referral and fee-sharing arrangement. Around August 2010 Riehm entered into a secret referral agreement with M.M., an associate at another law firm. Riehm promised to pay M.M. one-third of any attorney fees recovered in matters referred by M.M. M.M. referred over 100 matters to Riehm, and Riehm undertook representation in at least 23 of these matters. Riehm paid M.M. approximately $11,000 in return for the referrals. Although Riehm’s retainer agreements with the referred clients stated that Riehm may share attorney fees with another lawyer, the retainer agreements did not disclose Riehm’s referral and fee-sharing arrangement with M.M. Additionally, Riehm took steps to prevent M.M.’s firm from learning about the arrangement. Riehm wrote checks for the referral fees payable to M.M. personally, used M.M.’s home address on the checks, delivered the checks personally, and sent communications to M.M.’s personal e-mail account.

Beginning around March 2011 Riehm entered into a similar arrangement with R.D., another associate at M.M.’s firm. Riehm undertook representation of at least one client that R.D. referred, but Riehm did not make any payments to R.D. Riehm’s retainer agreement with the referred client did not disclose that he had agreed to share fees with R.D.

The parties had twice submitted a stipulation for discipline

One of the allegations in the petition, which Riehm unconditionally admitted, was that Riehm had “assisted M.M. in secreting the arrangement from” M.M.’s firm. Yet, the stipulation stated that Riehm “unknowingly assisted M.M. in the conduct referenced in the petition.” (Emphasis added.) Because of these contradictory statements, we ordered the parties to file memoranda or a new stipulation clarifying whether Riehm admitted to purposefully hiding the referral arrangement from M.M.’s firm. The parties’ memoranda expressed conflicting interpretations of the stipulation, and we therefore rejected the second stipulation.

Another fly entered the ointment

During the time period in which we were considering the first stipulation, Riehm committed an assault. In the early morning hours of January 1, 2014, Riehm stabbed a fellow bar patron with a steak knife, puncturing the victim’s lung. Riehm was charged with one count of first-degree assault, Minn. Stat. § 609.221, subd. 1 (2014). After a bench trial on stipulated facts, the district court found Riehm guilty and convicted him of the offense.

There was another stipulation entered before a referee

To discern the scope of the parties’ oral stipulation, we need look no further than the elementary principles of contract law. A contract is formed when two or more parties exchange bargained-for promises, manifest mutual assent to the exchange, and support their promises with consideration.

The effect of the stipulation

Riehm seems to argue that if we reject the recommended discipline, then the parties’ agreement to enter into the stipulation lacked consideration. According to Riehm, the concept of a binding agreement “would have no meaning at all if the relinquishment of a right was not conditioned upon the receipt of some other benefit.” The “benefit” Riehm seems to expect is an indefinite suspension of a minimum of 5 years, as opposed to a more severe penalty, such as disbarment. Under this logic, if we impose a harsher sanction than the one proposed in the parties’ stipulation, then Riehm will not have obtained the benefit of his bargain. We are not persuaded.

Consideration merely requires “that one party to a transaction voluntarily assume an obligation on the condition of an act or forbearance by the other party.” U.S. Sprint Commc’ns Co. v. Comm’r of Revenue, 578 N.W.2d 752, 754 (Minn. 1998). Riehm received a significant benefit from the parties’ agreement to enter into a stipulation: the Director recommended a minimum 5-year suspension rather than disbarment. Riehm’s argument is meritless.

To summarize, Riehm unconditionally admitted the allegations of misconduct in the first amended petition and the second amended petition and agreed that, based on these admissions, the parties would recommend that he receive a minimum 5-year suspension. Riehm is not entitled to withdraw his admissions at this stage of the proceedings.

Conditional admissions are not permitted

the Director has advised attorneys that they may not conditionally admit allegations of professional misconduct. The Director is correct. We hold that, in attorney discipline matters, an attorney may not condition his or her admissions to allegations of professional misconduct on receiving a specific disposition from our court.

Sanction

Although we recognize that Riehm cooperated with the Director’s investigation, we are troubled by Riehm’s conduct before our court. In November 2014 Riehm entered into an internally contradictory stipulation. Riehm now argues that the July 2015 stipulation was conditional; yet, he admitted at oral argument that he did not raise this issue with the Director before putting the terms of the agreement on the record before the referee. Riehm’s positions border on frivolous and have substantially delayed resolution of this matter.

...we must decide the appropriate discipline for Riehm’s misconduct. This is a close issue. Riehm’s misconduct is serious and arguably warrants disbarment. But we give some deference to the Director’s decision to enter into a stipulation, and we also give weight to the referee’s recommendation. Moreover, a minimum 5-year suspension is lengthy and subject to reinstatement procedures, see Rule 18, RLPR. Accordingly, we impose the parties’ recommended discipline of an indefinite suspension for a minimum of 5 years.

The Star Tribune reported on the assault and civil judgment obtained by the victim.

Jurors have decided a personal injury attorney must pay more than $200,000 to a man he stabbed in the rib cage with a steak knife in the lobby of a posh hotel in downtown Minneapolis.

The clash during New Year’s revelry ringing in 2014 at Manny’s Living Room and Prohibition Bar on the main level of the W Minneapolis Hotel in Foshay Tower was ignited when the victim made a suggestive joke about his beauty queen fiancée and his attacker’s wife, according to court records.

The verdict against Michael Riehm by the Hennepin County District Court jury awaits final judgment by Judge Bridget Sullivan. Riehm has already been convicted of felony first-degree assault and put on supervised probation for seven years in his attack on Daniel Kerkinni, 31, of Edina.

Most of the money awarded by the jury is for Kerkinni’s medical expenses, with smaller amounts for “pain, disability and emotional distress” and loss of earnings. There’s also a $25,000 punitive judgment against Riehm. The overall total Riehm is liable for could shrink, depending on what Kerkinni’s health insurance covers for the injuries.

The operators of Manny’s Steakhouse and the hotel were also sued, but not found liable by the judge. Kerkinni’s suit contended that the bar and hotel employees failed to do enough to break up the confrontation involving an “obviously intoxicated” Riehm.

And described the incident

The criminal complaint against Riehm further detailed that Kerkinni heard Riehm’s wife, Heather Griego, compliment his fiancée, Sitania Syrovatka, on her looks. Kerkinni then explained to Griego that Syrovatka, a model and 2002 Miss South Dakota, “was already taken.” That comment upset Griego and Riehm, according to the charging document.

The criminal complaint continued:

Riehm and Kerkinni got in a shoving match that bar security broke up. Sometime later, Griego tried to kick Kerkinni in the groin. Riehm intervened, and again bar security broke up the two.

 However, as Kerkinni was getting ready to leave, Riehm confronted him in the lobby and “thrust at [Kerkinni]” in the rib cage with a large restaurant-style steak knife. The stabbing punctured and deflated Kerkinni’s lung.

A waitress told police she saw Riehm get the knife and say, “Nobody hits my wife in the face.”

(Mike Frisch)

July 27, 2016 in Bar Discipline & Process | Permalink | Comments (2)

A Letter To A Debtor

The United States Court of Appeals for the District of Columbia Circuit agreed with the district court that a lawyer's letter to a debtor did not create a cause of action.

The court rejected the claim that the letter was deceptive and/or violated consumer protection statutes

Jones’s argument focuses on § 1692e(3) and (5) of the federal act, which deal with attorney involvement and threats of legal action. In passing, she invokes several other sections containing general prohibitions against deception, unfairness, and false representations in connection with debt collection. She offers no separate arguments in support of these claims. Instead, she simply says that because the letter falsely implied than an attorney was involved and threatened legal action, the letter was a fortiori deceptive and unfair in a general sense. We have held that the letter did not contain any such false implications or threats, so we reject the remainder of her arguments under the federal act.

District of Columbia law also did not provide a basis for relief.

The letter

Dear [plaintiff] TAWANDA JONES,

This office has been retained to collect the debt owed by you to CACH, LLC.

As of the date of this letter you owe the sum of $1,050.29. Because of interest, late charges and other charges that may vary from day to day the amount due on the day you pay may be greater.

You are hereby advised: Unless you, the consumer, notify this office within thirty days after receipt of this notice that you dispute the validity of this debt or any portion thereof, the debt will be assumed to be valid by this office. If you, the consumer, notify this office in writing within thirty days after receipt of this notice, that the debt or any portion thereof is disputed, this office will obtain verification of the debt or a copy of a judgment against you and a copy of such verification or judgment will be mailed to you by this office. Upon your written request within thirty days after receipt of this notice this office will provide you with the name and address of the original creditor, if different from the current creditor.

Please remit your payment to: David Sean Dufek

[Address]

If you would like to make a payment online, please visit our website: [website URL]

Please call our office. The toll free number is  

[telephone number].

Sincerely,

[Signature]

Attorney David Sean Dufek

Please be advised that we are acting in our capacity as a debt collector and at this time, no attorney with our law firm has personally reviewed the particular circumstances of your account. Be advised this is an attempt to collect a debt. Any information obtained will be used for that purpose.

The disclaimer

We do not mean to imply that a disclaimer must be in the same font and size as the body of the letter, but the fact that it was in this case further indicates that this disclaimer was not hidden.

(Mike Frisch)

July 27, 2016 | Permalink | Comments (0)

Attorney Consents To Disbarment For Threatening To Shoot His Son

An Illinois attorney has filed a motion for consent disbarment as a consequence of a felony conviction

On March 19, 2015, an amended information was filed in the Circuit Court of Cape Girardeau County, Missouri, charging Movant with one count of the class C felony of endangering the welfare of a child, in violation of Missouri Revised Statute sec. 568.045. The amended information alleged that Movant, between May 10 and 11, 2014, knowingly created a substantial risk to the life, health and body of his son, who was then under the age of 17, by pointing a 9 mm handgun at him and threatening to shoot him.

On March 24, 2015, the Circuit Court conducted a plea hearing in the case in which Movant withdrew his plea of not guilty to an earlier complaint charging Movant with the same felony. On that same date, Movant entered his plea of guilty to the class C felony.

 On May 11, 2015, the Circuit Court entered judgment in the case, finding Movant guilty on his plea of guilty. The Court sentenced Movant to serve seven years in the custody of the Missouri Department of Corrections.

(Mike Frisch)

July 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Pay Or Don't Play

The web page of the Ohio Supreme Court has a summary of a disciplinary case from Dan Trevas.

Notably, the attorney must resolve a malpractice judgment secured by his former client in order to be reinstated.

The Ohio Supreme Court today suspended from the practice of law a Westerville attorney who missed key deadlines for filing a personal injury lawsuit then misled his client to cover up his mistakes.

In a unanimous per curiam opinion, the Supreme Court suspended Darwin R. Roseman for one year with six months stayed on conditions. One condition Roseman must meet to be reinstated is to resolve the $135,000 malpractice judgment his ex-client secured.

Suspension Stems from Single Case
The Columbus Bar Association filed a complaint against Roseman, charging him with neglect, dishonesty, and engaging in a pattern of misconduct based on his handling of Michael Williams’ personal injury case.

In 2007, Williams retained Roseman to represent him, and Roseman waited almost two years to the last applicable day of the statute of limitations to file Williams’ lawsuit. The defendant’s insurance carrier requested information from Roseman about Williams’ injuries, but Roseman did not send it nor did he respond to discovery requests. In 2010, the trial court ordered Roseman to comply with the discovery request within seven days, but instead Roseman filed a notice to voluntarily dismiss the case without prejudice with the intent of refiling it.

Williams complained that Roseman failed to communicate with him about the case and only told him he was planning a “legal maneuver” to buy more time, but not that he intended to dismiss the lawsuit. Roseman then notified the opposing counsel he would work with the opponent’s insurance company to settle the lawsuit, but again failed to respond the insurer’s request for injury information.

Roseman then missed the one-year deadline to refile the case, which barred Williams from suing to recover for his injuries.

Roseman Claims He Was Discharged
At an attorney-discipline hearing based on Williams’ complaint, Roseman testified he was discharged by Williams at some point before the refiling deadline. Williams denied discharging Roseman. He said after the refiling deadline, he received two letters from Roseman claiming Williams had discharged him.

Williams provided letters that Roseman dated weeks before the deadline, but were actually sent four or five days after the deadline informing Williams he needed to get a new attorney and file his case or forever lose his right to sue. Williams testified he was upset and confused that Roseman informed him after it was too late to refile, and that he sued Roseman for malpractice and obtained a $135,000 judgment.

A Board of Professional Conduct panel found Williams’ version of events to be more credible, and the board found Roseman violated several rules governing the behavior of lawyers, including failing to promptly inform the client of decisions that require the client’s consent, failing to keep the client reasonably informed about the status of a case, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Court Considers Sanction
The Court accepted two mitigating factors when considering the sanction for Roseman’s violations – that he had no prior discipline and he cooperated with the disciplinary proceedings. The Court found the aggravating factor of Roseman acting with a dishonest and selfish motive.

After reviewing past sanctions of other lawyers who engaged in similar misconduct to Roseman’s, the Court approved the board recommendation to suspend Roseman for one year, but stay six months on the conditions that he commit no further misconduct. Also upon reinstatement, he must submit to one year of monitored probation. In addition, the Court ruled before Roseman can be reinstated, he must resolve the judgment imposed against him in Williams’ malpractice case.

2015-2012. Columbus Bar Assn. v. Roseman, Slip Opinion No. 2016-Ohio-5085.

(mike Frisch)

July 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Admission Granted: "A Little Bit Of Light Can Shut Out A Lot Of Darkness"

A Hearing Division Tribunal of the Law Society of Upper Canada held that an applicant for an L1 law license has the present good character for admission.

The behavior

The applicant is now 39 years old.

The applicant has a history of criminal charges and convictions.  In 1997 and 1998, he was charged with offences including mischief, assault, and dangerous operation of a motor vehicle, all of which were stayed. 

The most serious misconduct occurred between 2001 and 2005 and included impaired driving, breach of probation, assault of a former girlfriend whom he struck on one occasion, an indecent act in front of a female roommate, and criminal harassment of four women he had relationships with previously.  The criminal harassment involved unwanted phone calls and e-mails and direct contact. The applicant pled guilty to all of these charges.

There were also a number of protective orders, some of which involved the women whom he had harassed, and one involving the applicant’s stepmother.

The nature and duration of the misconduct in this case weighs heavily against the applicant.

This misconduct occurred over approximately eight years, involved a wide breadth of sustained and different kinds of criminal activity.  The misconduct against women is particularly troubling, unacceptable and inconsistent with the duties and obligations which lawyers owe to society.  Apart from the criminality of such conduct, it is also inconsistent with Rule 5.03 of the pre-2014 Rules of Professional Conduct, which prohibits sexual harassment. Violence against and harassment of women in our society cannot be condoned and is compelling evidence of a lack of good character. 

There has been progress

From 2006 to the date of this hearing, the applicant would have had an unblemished record but for an incident involving his father and stepmother in 2011, when the applicant drove his car into his father’s garage after a family dispute.  His stepmother obtained a protection order after this incident and also informed the police of a past incident in 2010, during which the applicant allegedly attended at his father’s work, assaulted his father and threw objects about.  The applicant denied this last assault and the applicant’s father supported him in a statement filed with the panel. The applicant was very forthright during this hearing, admitting to many embarrassing aspects of his past.  We have no reason to doubt his honesty in denying his stepmother’s assertion about the alleged assault of his father in 2010.

This incident raised concerns but did not detract from his significant efforts at rehabilitation.

This extensive counseling has given the applicant insight into his past behaviour.  His parents’ relationship did not provide a good role model for interpersonal relationships.  While he was provided with many “things” while growing up, he was not given emotional support or made accountable for his actions.  As a result, he had trouble coping with stress, anger and anxiety and lacked control over his emotions.  He would act out impulsively when facing difficult or challenging situations or rejection.  Although he knew the difference between right and wrong, he readily admitted that he was self-centered and caught up in his own desires...

the applicant continued with therapy until in or around 2011. There are ongoing positive reports from his treating physicians.  He has not taken any medications for five to six years and feels that he no longer suffers from mental health issues.

He joined the Chabad- Lubavitch faith community

Rabbi Yaakov Shlomo Goldstein (also a member of the Chabad) testified on behalf of the applicant, and corroborated the applicant’s sincere commitment to the Chabad.  He was not aware of all the details of the applicant’s past because he is more interested in the person the applicant is now.  For the last three years, Rabbi Goldstein has spent anywhere from 2 to 12 hours per week with the applicant.  He described the applicant as a good person who can always be counted on and who goes out of his way to help others.  He felt that the applicant has a very strong character and a great deal of self-control, which he described as “better than most.”

In Rabbi Goldstein’s view, a little bit of light can shut out a lot of darkness.  He felt that whatever the applicant ends up doing with his life, it will be to the benefit of others.  

As to his treatment of women

The applicant is interested in getting married and has been introduced to several women over the past few years. When it has not worked out, he has not repeated his past behaviour.  He indicated that when he is uncertain about a situation, he seeks guidance from others, like his mother, or someone in his community.

He knows that he will have to work with women and he believes that this will not present any difficulty for him.  He will always ensure that there is a proper respectful tone regardless of whether he is working with or for men or women.

He is admitted subject to certain conditions. (Mike Frisch)

July 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reasonable Grounds To Believe

A psychiatric examination of an attorney was ordered by the Law Society of Upper Canada Tribunal Hearing Division

There are reasonable grounds to believe that the Lawyer might be or might have been incapacitated, and that the proposed examination by a psychiatrist would provide significant additional assistance in determining that issue, given the evidence available so far.  The fact that the Lawyer is administratively suspended is not a reason for the Tribunal not to proceed with the issues in the capacity application, including obtaining the necessary medical information. At the hearing, we made the order requested by the Law Society, with reasons to follow. These are our reasons...

As we heard from the Spouse during her submissions at the May 2, 2016 hearing, it appears that originally the Lawyer told the police that he saw his spouse trying to drown their baby. The Society received, however, what appeared to be a written confession signed by the Lawyer, a copy of which had also been sent to the Crown.  The document states that an earlier statement made by him about the drowning was a lie.  It also states that he and his daughter – an older child from a previous marriage – had tried to kill his spouse and the baby by drugging them.  In the Lawyer’s communication to the Law Society, he asks that his licence to practise law be revoked.  The Spouse, in her comments to us on May 2, 2016, acknowledged her involvement in drafting this document, but says that it reflects the Lawyer’s statements and wishes.

The Spouse reports that the Lawyer is seriously ill and cannot speak for himself.  Her comments to us at the previous hearing suggest that the Lawyer is not able to make even the most basic contact with the Society, be it in writing or even by telephone.

The Law Society has received numerous e-mails from the Spouse which presented a confusing picture of accusations towards the Lawyer, and which in numerous instances requested that the Lawyer be disbarred.

The Law Society received an e-mail dated February 13, 2015, purportedly from the Lawyer, making allegations about an attempt on the Spouse’s life by the Lawyer’s older daughter by drugging her with Ketamine.  The e-mail also refers to “criminal activities” by the writer of the e-mail, committed in addition to his professional misconduct, and asks that his “Law Licence” be revoked.  The e-mail continues with three pages of generalities and details about the alleged murder plot.  The e-mail has as an attachment a four-page document entitled “Tom’s Confession Jan 18 15” which was addressed to two senior counsel, a judge, and the Attorney General of Ontario.  Much of that document was rambling and at times bordering on incoherent.  It includes the statement that “I am offering my resignation to this court for this ‘false allegation’ which I can no longer bear and sit back watching my wife and a most vulnerable baby paying the price”.  The document ends with the cryptic message: “From Mr. Greenspan who my wife last consulted with on Dec.10, 2014, I understand this case basically has no merits – a waste of tax payers money; And therefore should be dropped.”  It concludes with “Sincerely yours” followed by a signature where only the first letter (B) is legible.

Another document was submitted to us entitled “Attempted murder plot in 5 milestone periods”.   The opening paragraph reads as follows: “The 4 Defendants committed: Attempted Willful Deliberate Premeditated Murder and Solicitation of Murder of Baby Pippa and her mother Catherine May”.  It then proceeds to outline various details about the periods referred to in the title.

The legal standard

In Lyon the Tribunal noted (at paras. 24-26) that ordering a medical examination to which the licensee does not agree is a significant step that affects his or her autonomy, dignity and privacy, but that such orders may be made because of the public role played by lawyers and paralegals as part of a regulated profession with its accompanying benefits. An order should be restricted to what is necessary to achieve the goal of public protection...

There are reasonable grounds to believe that the Lawyer might be incapacitated, given the statement of the family doctor that he has dementia.  Moreover, this is supported by the observations of the investigator at the interview and the concerning and contradictory communications that the Lawyer appears to have signed. As there is very little detail in the family physician’s letter, the proposed examination would provide significant additional assistance in determining whether medical conditions in fact make him incapable of meeting his obligations as a licensee.

Our earlier coverage here. (Mike Frisch)

July 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 26, 2016

Assistant Public Defender Convicted And Public Defender Loses Job

The Georgia Supreme Court has suspended an attorney who had not adequately responded to ethics charges.

13WMAZ reported on criminal charges in April 2016

A Macon attorney admitted in federal court that she tried to sell drugs to a GBI undercover agent last year.
 
Holly Hogue Edwards pleaded guilty Wednesday to one count of distributing oxycodone and methamphetamine, according to court documents.
 
She faces a sentence of up to 20 years and a fine of up to a $1 million dollars.
 
According to a plea agreement, Edwards met the GBI undercover agent on June 4 of last year at the parking lot of Church's Chicken on Hardeman Avenue in Macon.
 
She took $500 from the agent and promised to deliver an "eight ball" of methamphetamine and 10 oxycodone pills.
 
Edwards then drove to a nearby Citgo station to meet with her supplier, the court document says, but returned only with the pills.
 
She promised to deliver the meth later in the day.
 
The undercover agent tried to contact Edwards, but she never delivered the meth, the agreement says.
 
In exchange for her guilty plea, federal prosecutors agreed to drop three other charges against Edwards.
 
She is scheduled to be sentenced July 6.
 
Holly Hogue Edwards has appeared on Law Call on 13WMAZ, offering advice on legal matters.
 
The Georgia Bar Association web site on Wednesday still listed Edwards as a "member in good standing."
 
First Coast News had the story of how this situation led to another casualty
 
Kevin Gough, public defender of the Brunswick Judicial Circuit, was dismissed Thursday a day after one his former assistants pleaded guilty in Macon to a federal charge of selling methamphetamine and oxycodone, court records show.

After a meeting Thursday morning with Bryan Thompson, executive director of the Public Defender Council, it was agreed that Gough “would no longer serve as Brunswick [Circuit Public Defender],” a release from Thompson’s office said...

Area criminal defense lawyers have told the Times-Union privately that Holly Hogue Edwards’ representation of public defender clients while she was under a four-count federal indictment could leave some criminal cases subject to future appeals.

Edwards entered a plea Wednesday in federal court in Macon, court records show. In exchange for her guilty plea, the government will dismiss three counts of distributing the painkiller oxycodone when Edwards is sentenced July 6, the plea agreement says.

In February, Edwards was working for the Public Defenders office in Brunswick and was representing defendants in bail hearings in Glynn County Magistrate Court.

(Mike Frisch)

July 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Right To Appointed Counsel Upheld In Termination Of Parental Rights Case

The New Jersey Supreme Court has held that an indigent parent has the right to appointed counsel in a matter involving termination of parental rights.

From the headnotes

On August 1, 2013, with the agency’s consent, J.E.V. and D.G.V. filed a complaint for adoption. The court entered an order scheduling a hearing and directing that L.A. receive notice. The order stated, among other things, that L.A. had “the right to appear, object, file written objections, [and] have counsel or court-appointed counsel, if unable to afford counsel.” The notice advised L.A. as follows: “If you are unable to obtain an attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000. You may also contact the Lawyer Referral Services of the Essex County Bar Association at (973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid Society at (973) 622-0063 or the Essex County Surrogate’s Court at (973) 621- 4900. If you qualify, the Court will appoint counsel for you free of charge.” On October 31, 2013, at the case management conference, the trial court briefly raised the topic of representation with L.A., but did not tell her that a lawyer would be appointed to represent her if she could not afford one.

The court presided over a two-day trial in February and March 2014. J.E.V. and D.G.V. were ably represented by counsel; L.A. appeared pro se. L.A. was confused about several aspects of the trial process, the role of expert psychologists, and the legal standards that applied to the case. Petitioners called eight witnesses to testify, including an expert psychologist; L.A. declined to cross-examine most of them. L.A. testified but did not call an expert or any other witnesses. L.A. also declined to make a closing statement. At the close of the trial, the court concluded that the statutory requirements had been met and terminated L.A.’s parental rights.

L.A. appealed, and the Appellate Division appointed counsel to represent her. The panel reversed and remanded for a new trial, holding “that L.A. had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first determined to proceed with an adoption over her objection.” 442 N.J. Super. 472, 474-75 (App. Div. 2015)...

HELD: Indigent parents who face termination of parental rights in contested proceedings under the Adoption Act, N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution...

The Court holds that an indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel. A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution. In so holding, the Court draws on certain common principles from B.R. and the Mathews test to analyze the due process issue. The termination of one’s parental rights plainly “implicates a fundamental liberty interest.” B.R., supra, 192 N.J. at 305. When parental rights are terminated, the tie between parent and child is severed completely and permanently. That is true whether the State files a petition to terminate or a prospective adoptive parent proceeds under the Adoption Act. Without the assistance of counsel to prepare for and participate in the hearing, the risk of an erroneous outcome is high. The parties are best served when both sides present arguments with the help of able attorneys; the outcome not only protects the parent’s rights and the child’s welfare, but also helps bring finality to an adoption proceeding. (pp. 24-27)

(Mike Frisch)

July 26, 2016 in Current Affairs | Permalink | Comments (0)

Ticket-Fixing Judge Reinstated In Ohio

The Columbus Dispatch has a story of a judge's reinstatement to the Ohio Bar.

Former Franklin County Judge Harland H. Hale's license to practice law was reinstated today by the Ohio Supreme Court.

Hale's license was suspended in 2014 for six months for fixing a speeding ticket for a fellow lawyer and for attempting to cover up his action. He did not seek reinstatement until June this year. The court approved the reinstatement today.

Justices voted 5-2 in Nov. 2014 to suspend the license of the former environmental court judge who occasionally was assigned to municipal court to handle traffic cases.

The court first rejected a recommendation by the disciplinary counsel that six months was too lenient a suspension, but later accepted the same sentence, with Chief Justice Maureen O'Connor and Justice Judith Ann Lanzinger dissenting that it was not harsh enough.

Hale admitted improperly dismissing a 2011 speeding ticket issued to Patrick M. Quinn, a lawyer whose firm was defending Hale in a sexual-harassment case, later settled out of court. Hale also falsified a court entry stating that the prosecutor had dismissed the ticket. Quinn pleaded guilty to speeding and paid $171 in fines and costs.

The Dispatch revealed that Hale fixed the speeding ticket. Hale resigned from the court, but still wants to practice law.

The court cited Hale for "serious violations of his ethical duties as both an attorney and judge" as well as "efforts to cover his tracks."

Earlier coverage from the Columbus Dispatch.

Former Franklin County Environmental Court Judge Harland Hale argues he already has paid a big price for fixing a speeding ticket.

The ex-judge shed tears yesterday as he talked about resigning on May 24 in response to a charge that he dismissed a ticket issued to a lawyer whose firm was defending Hale against sexual-harassment lawsuits.

He talked of losing his seat on the bench and his fear of what the epitaph on his grave marker might read, of disappointing dirt-poor parents who only ever asked that he do what was right.

The Ohio Supreme Court order is linked here. (Mike Frisch)

July 26, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Former Prosecutor Charged With Ethics Violations In Police Shooting Case

A former Assistant Corporation Counsel was charged with ethical violations in his prosecution of a criminal case.

The Chicago Tribune had a story about the conduct and his resignation

A veteran attorney in Mayor Rahm Emanuel's administration resigned hours after a federal judge ruled Monday that he intentionally concealed crucial evidence in a trial over a fatal Chicago police shooting and then lied about his reasons for doing so.

The abrupt departure of Senior Corporation Counsel Jordan Marsh, who has worked for the city since 1997, was the latest black eye for the mayor's office in the continuing fallout over the city's handling of police shootings.

In overturning the jury's verdict in a lawsuit brought by the family of Darius Pinex, U.S. District Judge Edmond Chang imposed sanctions against the city and Marsh, ordering that they pay attorney's fees to plaintiffs that likely will amount to hundreds of thousands of dollars even before a retrial can take place.

"Attorneys who might be tempted to bury late-surfacing information need to know that, if discovered, any verdict they win will be forfeit and their clients will pay the price," Chang wrote in his 72-page opinion. "They need to know it is not worth it."

Chang faulted lax training and oversight at the city's Law Department for hampering the production of records from the Chicago Police Department and other city agencies when officers are accused of misconduct.

Corporation Counsel Stephen Patton said Monday night that the city would "double down" on its efforts to properly train lawyers to produce records. He rejected the notion that recent sanctions pointed to systemic problems in his office.

He is charged with false statements to the tribunal, offering false evidence and concealing evidence.

One notable aspect of the disciplinary case is that the charges were filed within six months of the court ruling.

If this conduct had been found by a court in the District of Columbia, such prompt charges would be inconceivable. (Mike Frisch)

July 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Mother 's Forgiveness

A non-practicing attorney has been suspended for three months by the New Jersey Supreme Court as a result of an assault conviction.

The victim was his mother.

From the report of the Disciplinary Review Board

During his allocution before the court, on October 19, 2010, respondent offered a sparse factual basis in support of his guilty plea. Specifically, he admitted that, on May 12, 2010, while in Edison, he attempted to cause significant bodily injury to his mother, Keung Jae Park (Mrs. Park), by forcing her to take a quantity of prescription pills, knowing that he was harming her by doing so. As part of the plea negotiation, respondent agreed to immediately enter a long-term, inpatient drug treatment program pending his sentencing date.

Subsequently, on January 6, 2011, Judge DeVesa held a sentencing hearing. Prior to imposing sentence, Judge DeVesa noted that respondent had committed a very serious and violent assault against his mother, which included a threat to kill her. Thus, the judge denied respondent’s appeal from the State’s adverse PTI determination. In determining the appropriate sentence to be imposed, Judge DeVesa recited a specific need to deter respondent. Nevertheless, he found that respondent’s crime had been "triggered by a use of Controlled Dangerous Substances as well as a failure to really have proper treatment for some mental health issues." Moreover, the judge acknowledged, as a mitigating factor, the absence of any criminal history. Thus, in accordance with the terms of the plea agreement, Judge DeVesa sentenced respondent to five years of non-custodial probation and ordered him to submit to an updated mental health evaluation, to complete the inpatient drug treatment program, and to take any medication prescribed for him.

The Office of Attorney Ethics had sought a six-month suspension

Standing alone, the nature of respondent’s violent behavior in this matter and the terror inflicted on the victim would warrant a lengthy suspension. Although respondent’s criminal behavior was undoubtedly linked to his mental health and substance abuse issues, it was more egregious than the violent behavior in the censure cases cited by respondent and by the OAE in its summary...

Over five years have passed since respondent assaulted his mother, as they share a home. She has apparently forgiven him. Finally, respondent has no disciplinary history.

No interim suspension was imposed for the conviction. (MIke Frisch)

July 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Suspended Means Suspended; Disbarred Means Disbarred

A suspended attorney who had continued to practice in violation of the order has been disbarred by the Indiana Supreme Court.

On or about the date his active suspension began, Respondent entered his appearance as counsel for the mother in a paternity action. Two months later, after the paternity court had ordered Respondent’s appearance be withdrawn due to his suspension, Respondent filed with the court a minute entry purporting to represent the mother as her “translator” and requesting a final hearing be set. As a result of that conduct, we issued an order finding Respondent in contempt and ordering Respondent to pay a fine of $500 within sixty days. Matter of Lehman, ___ N.E.3d ___, 2015 WL 10844474 (Ind. Oct. 7, 2015). Respondent has not paid that fine.

The court found he represented clients in two other matters and concludes

The sanctions this Court may impose for contempt include ordering a fine, disgorgement of ill-gotten gains, imprisonment, and extension of an attorney’s suspension or removal from practice. See Matter of Hurtt, 43 N.E.3d 567 (Ind. 2015); Matter of Haigh, 7 N.E.3d 980 (Ind. 2014). Respondent’s repeated contemptuous acts over the years have resulted in fines, imprisonment, and the suspension of his law license. None of the sanctions previously imposed has deterred Respondent from continuing to engage in the practice of law in defiance of his suspension order, and Respondent’s repeated violations of that order have exposed the public to the danger of misconduct by an attorney who has yet to prove his remorse, rehabilitation, and fitness to practice law through the reinstatement process. Under these circumstances, the Court concludes that disbarment is warranted.

He has also been criminally convicted of unauthorized practice. (Mike Frisch)

July 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)