Sunday, April 9, 2017

Bar Discipline In A Google World

The Law Society of British Columbia Review Board cited precedent for the proposition that adverse publicity is not a mitigating factor in bar discipline

...the argument that adverse media publicity should be taken into account as a mitigating factor has been rejected by the panel in Law Society of BC v. O’Neill, 2013 LSBC 23 (CanLII), where the panel found at paragraph 20(j) as follows:

The Respondent and his counsel both said that the Respondent will suffer from the adverse publicity this will bring to the Respondent.  His counsel submitted that, as we live in a “Google World”, anyone who googles the Respondent will learn of these proceedings and he will carry that stigma with him forever.

We do recognize that possibility exists and that the Respondent may suffer somewhat from it in the future.  However, we do not believe that is a significant factor for consideration.  When lawyers have misconducted themselves, the adverse publicity that comes with that must be accepted by the lawyer.  That is true for all lawyers and is not unique to this case.  It should not, in our view, be a factor which should be considered to reduce the penalty that the Panel believes is otherwise appropriate.

All lawyers will face this potential embarrassment if they are disciplined for misconduct, and we believe that to reduce an otherwise appropriate penalty because of potential public knowledge of it would be wrong in principle.  It could mean that all penalties should be reduced because of the adverse publicity about the lawyer.  We do not believe that is a correct principle to follow.

Here, the board affirmed a hearing panel's four-month suspension of an attorney who has violated trust account rules in transitioning from solo practice to a law firm

In March 2010, Ms. Sas ceased practising as a sole practitioner and joined a larger firm of lawyers.  In early 2011, she still held monies in trust that had been received from clients while she was practising as a sole practitioner, and there were several outstanding files and unbilled time and disbursements relating to her former sole practitioner practice that needed to be dealt with.  At that time, she embarked on a file review project to deal with those outstanding files, including unbilled fees and disbursements and monies held in trust.

The hearing panel’s decision on Facts and Determination, reported at Law Society of BC v. Sas, 2015 LSBC 19 (CanLII), sets out in detail the transactions by which the Applicant “zeroed out” the trust accounts.

Having reviewed those transactions, the hearing panel concluded that the Applicant breached the Act and the Law Society Rules and that her conduct constituted professional misconduct in the following ways:

(a)         The Applicant improperly billed clients for disbursements that were not incurred;

(b)        The Applicant knew, or was wilfully blind to the fact, that those clients had been improperly billed for disbursements that were not incurred or, alternatively, was reckless as to whether those billings for disbursements were proper;

(c)         The Applicant instructed her bookkeeper to add disbursements that had not been incurred to client ledgers;

(d)        The Applicant made payments to her law corporation from trust funds:

(i)                 for disbursements that she knew, or ought to have known, were not properly incurred by those clients; and

(ii)               in some instances without immediately delivering bills to clients; and

(e)         The Applicant’s conduct in paying her law corporation from trust funds for disbursements that had not been incurred constituted misappropriation of the trust funds.

(Mike Frisch)

April 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Recovery From Alcohol Addiction Leads To Reinstatement

Reinstatement has been granted by the Colorado Hearing Board of a petitioner suspended for a crime committed while intoxicated.

The misconduct

On May 28, 2003, Petitioner engaged in conduct leading to the suspension of his license to practice law. Petitioner, while intoxicated, forced open the doors to an apartment belonging to someone he did not know and attacked the occupant. Petitioner ended up in the hospital with critical injuries after sustaining a blow to the head from a baseball bat. Police arrested Petitioner and took him into custody upon his release from the hospital.

In June 2003, Petitioner was charged in Arapahoe County with first degree burglary in violation of C.R.S. §18-4-202, and criminal mischief in violation of C.R.S. §18-4-501. Petitioner pled guilty to second-degree burglary (F4) and misdemeanor criminal mischief (M2). Petitioner was sentenced to one year of probation for the criminal mischief and a three-year deferred sentence for the second-degree burglary.

The petitioner began to deal with his alcohol problem after suspension

On May 15, 2006, Petitioner began working for the law firm of Underhill & Underhill, P.C. and remains there to the date of this reinstatement hearing.  He spends his limited spare time playing golf and playing rugby on a less competitive level. Now when he is alone, he does not feel depressed and does not feel any urge to take a drink.

Petitioner candidly testified about the conduct that directly led to the suspension of his license to practice law. He accepted the serious nature of his past behavior and accepts full responsibility for his excessive use of alcohol. Although suspended for only six months, Petitioner waited over two years to seek reinstatement knowing he was not ready earlier. Petitioner believes he has experienced the necessary fundamental or “psychic” change in his character. Petitioner acknowledged that he is not cured from alcoholism and that his continued sobriety depends on maintaining a positive lifestyle. He is willing to do everything to maintain his rehabilitation, because he wants to practice law again and be a productive member of society.

Now

The Hearing Board finds by clear and convincing evidence that Petitioner is now rehabilitated, has complied with all the applicable rules in the reinstatement, and therefore should be reinstated subject to the conditions set forth at the conclusion of this opinion and order.

While the Hearing Board finds Petitioner established rehabilitation by clear and convincing evidence, the Hearing Board’s primary concern is protection of the public. Therefore, the Hearing Board deems the condition that Petitioner meet with Dr. Muller one more time necessary to ensure his successful transition back into the practice of law.

The Hearing Board commends Petitioner for the zeal he demonstrated in these proceedings, and trusts he will maintain his enthusiasm and respect for the practice of law in the future. The Hearing Board also commends Petitioner for his candor concerning his prior alcohol usage. Petitioner’s honesty about, and desire to overcome, these problems speak to his integrity, and the good faith he brought to these proceedings.

(Mike Frisch)

April 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 7, 2017

Thirty!

The District of Columbia Board on Professional Responsibility has recommended a suspension of six months with fitness in a case involving multiple acts of misconduct in handling immigration appeals

Disciplinary Counsel charged Respondent with violations of the Rules of Professional Conduct arising from thirty separate cases. Prosecuting in bulk is not the typical approach, and it presents unique challenges for the disciplinary system. Nonetheless, on the whole, the Hearing Committee did an admirable job and, with a few exceptions, we adopt its Report and Recommendation.

We depart from those recommendations in three areas...First, we do not agree with the Hearing Committee’s conclusion that routinely disregarding court orders did not seriously interfere with the administration of justice. Second, we do not agree with the Hearing Committee’s conclusion that a lawyer must set forth all of the reasons why he or she would like more time to file a brief in a consent motion for an extension of time. Third, we do not agree with the Hearing Committee that when a lawyer seeks more time so that he or she can resolve the financial details of a relationship with his or her client, that constitutes a delay for no legitimate purpose. Finally, we do think that on these facts the Respondent should be required to show fitness.

The charges were filed in November 2012. An interim suspension was ordered on February 6, 2013.

The hearing was held in July 2013 and the hearing committee report did not arrive until August 10, 2016.

The attorney has now served an interim suspension of more than four years.

The process, at least in part, is the punishment.

The board described the violations

...after filing the thirty Petitions for Review, Respondent failed to file a brief in twenty-nine of those cases because his clients determined that they could not go forward with the Petition. Even in the one case in which Respondent did file a brief, he failed to file an appendix. Yet Respondent did not dismiss the actions when his clients decided not to go forward; instead, he simply did nothing, and the Fourth Circuit dismissed the petitions for failure to prosecute under Fourth Circuit Rule 45.

As a result, Respondent ignored court filing deadlines in all thirty cases. However, in seventeen of those cases, Respondent filed one or more consent motions for more time. Disciplinary Counsel noted that these requests for more time used the same boilerplate language in each case—that Respondent was a busy solo practitioner and that the case was complicated. Disciplinary Counsel alleges that Respondent filed these motions for different reasons than those given in the consent motions, and that the real reason for filing the extensions was that the persons for whom he filed Petitions had either not yet determined whether to hire Respondent or had already decided not to pursue the Petition.

The board found the conduct was prejudicial to the administration of justice

the Hearing Committee’s application of [precedent in finding no violation]  produces a counterintuitive result: whether a lawyer violates Rule 8.4(d) would seem to depend not on the lawyer’s conduct but, rather, on how efficiently the court before which the lawyer practices is managed. A lawyer who routinely disregards court orders—as Respondent did here—when practicing before a well-run court receives a disciplinary windfall under the Hearing Committee’s reading of Hopkins, which asked only if there was an actual interference with the administration of justice. However, Rule 8.4(d) broadly encompasses conduct that at least potentially impacts the judicial process to a “serious and adverse degree.” Hopkins, 677 A.2d at 61.

But the various motions for extensions were not dishonest

A motion for an extension does not require a confession of the lawyer’s primary reason for the request—for example, prior procrastination. Failing to disclose to the court the primary reason for a request for an extension is not generally misleading or dishonest, nor is it misleading or dishonest in this case. There is no requirement that an attorney “disclose a principal or substantial reason for [his or her] request, wholly apart from the reasons proffered to the court.” H.C. Rpt. at 87. Rules 3.3(a) and 8.4(c) require candor and honesty, not an exhaustive litany of every motivation for filing a motion. Respondent need only truthfully provide one or more of the legitimate reasons the Court would be justified in granting an extension, and not omit material facts in an effort to mislead the court. Rule 8.4(c) requires candor, but not completeness. See Rule 8.4(c) (“It is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”). Here, the information Respondent did not include was not material. It is hard to imagine, for example, that Respondent’s failure to include his clients’ financial situation would, in any way, have mattered to the Fourth Circuit. This is a far cry from misleading or lying to the Court. We do not agree with the Hearing Committee’s determination in these three cases that Respondent violated Rule 3.3(a) and Rule 8.4(c), because neither Rule requires that a lawyer present every reason, or even the principal reason, for the Court to grant a motion for extension. Disciplinary Counsel therefore did not prove by clear and convincing evidence that the reasons proffered in the motions for extension in either Lazo II, Ali, or Bowen were false or misleading.

Moreover, consent motions, generally, require less explanation of why they are justified. Short consent motions are good for every part of the legal system: judges have to wade through fewer papers; lawyers have less writing to do; and clients do not pay for lawyers to fight about things that are not in dispute.

And the attorney's motions were not brought solely for delay

Respondent had a purpose in bringing these motions other than delay: to allow Respondent to receive payment. The implicit premise in the argument that supports the Hearing Committee’s conclusion is that delaying a proceeding in order for the lawyer to receive payment is an improper purpose. The Hearing Committee does not offer support for this proposition. We have been able to find none...

Again, the motions Respondent filed were consent motions. The affected third-party agreed to the delay. While it may have been annoying for the Executive Office for Immigration Review to be unable to move the case along, these extensions of time added no more work, no more cost, and no potential for prejudicing that third-party’s interests. The third-party, in short, was minimally affected, if affected at all. Moreover, the reason Respondent sought the delay was not to injure or harass the third-party but, instead, to get paid. This is, of course, less noble than working to advance his client’s cause, but getting paid is an important reality of the private practice of law. In the absence of authority to the contrary, we are reluctant to determine that modest delay that does not meaningfully injure a third-party is an improper purpose such that it would violate Rule 4.4(a).

The board rejected a number of challenges to the process raised by the attorney.

Respondent argues that this matter should be dismissed for several reasons: (1) he has been suspended since February 2013, and has been prejudiced by the Hearing Committee’s delay in preparing its report and recommendation; (2) the Hearing Committee failed to complete its report within 120 days, in violation of D.C. Bar R. XI, § 9(a); (3) under D.C. Bar R. XI, § 3(a)(2), he cannot be suspended for more than three years (and he has already been suspended for more than four years pursuant to D.C. Bar R. XI, § 3(c)); (4) the evidence does not support a finding of misconduct; (5) the Board does not have jurisdiction to discipline him; and (6) he was not served with a copy of the hearing transcript together with the Hearing Committee report and recommendation. We reject these arguments.

Sanction

In thirty cases, Respondent ignored court orders. He did so as a matter of course. He testified that he believed having the Fourth Circuit dismiss an appeal instead of voluntarily dismissing it would help his clients (see, e.g., Tr. 392-96) when that is flatly inconsistent with the text of the rule and the testimony of an expert (see, e.g., Tr. 117-18). And he testified not only that this was his understanding in the past, but that it continued to be his understanding even as these proceedings unfolded, even during oral argument before the Board.

We are impressed by the sheer number of cases—thirty!—where Respondent violated court orders, his response to being corrected about basic issues such as how the rules of the Fourth Circuit function throughout this process, and his intransigence with respect to numerous points about how basic parts of the practice of law work (e.g., it is wrong to have a client sign something while in custody because that would be inherently coercive (Tr. 458)). On this record, with this quantum of continued misconduct and the likelihood of his repeating such conduct, we have little trouble concluding that there is “clear and convincing evidence that casts a serious doubt upon the attorney’s continuing fitness to practice law.” Carter, 887 A.2d at 6.

The case is In re Aroon Padharia and can be accessed at this link. (Mike Frisch)

April 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment But Not Permanent For iPad Theft

The Louisiana Supreme Court has disbarred an attorney for criminal conduct

In April 2015, a lobbyist working at the Louisiana State Capitol in Baton Rouge reported that his briefcase and Apple iPad, keyboard, and case were stolen from the Capitol building. The Louisiana State Police initiated an investigation into the matter and traced an electronic signal from the iPad to respondent’s home in New Orleans. Upon being questioned by law enforcement officers, respondent initially denied any knowledge of the theft; however, officers saw the stolen briefcase in plain view in respondent’s kitchen. Officers then obtained a search warrant and discovered the iPad, keyboard, and case in a pond at the rear of respondent’s property, where he had thrown them in an effort to hide and destroy evidence. Respondent was arrested and charged in Orleans Parish with illegal possession of stolen things and obstruction of justice. He was also charged in East Baton Rouge Parish with felony theft. In July 2015, respondent resolved the criminal charges by entering into a pretrial diversion program which permitted him to plead guilty to a misdemeanor charge of illegal possession of stolen things. He was also required to pay restitution in the amount of $800 to the victim.

Sanction

We have not hesitated to disbar lawyers who have engaged in serious crimes, including theft. In the instant case, respondent was convicted of illegal possession of stolen things, a misdemeanor offense which contains elements of willing and knowing deceit. This conduct warrants disbarment. Accordingly, we will accept the disciplinary board’s recommendation and disbar respondent.

Justice Clark would make it permanent

Respondent deliberately stole items of personal property from a fellow lobbyist while in the Capitol building, one of the seats of our state government. Following the theft, respondent attempted to destroy evidence of his wrongdoing, and then lied to police officers investigating the matter. Respondent refused to cooperate with the ODC in its investigation.

Based upon respondent’s history of prior discipline, failure to cooperate, failure to acknowledge wrongdoing, and intentional wrongdoing, the proper discipline is permanent disbarment.

Respondent is at the present time suspended from the practice of law, as he was at the time he committed the present misconduct. As the majority notes, bar discipline is designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Here, what amounts to more than a seven-year suspension from the practice of law has failed to do any of those things with respect to respondent. In such a case, permanent disbarment, rather than disbarment, is the more reasonable discipline to be imposed.

So would Justice Crichton

Suspended from the practice of law and apparently working as a lobbyist, respondent stole another lobbyist’s briefcase, iPad, keyboard and case, took the briefcase to his home, and threw the other items in a pond behind his house. These actions required the Louisiana State Police in two parishes to investigate respondent (during which he lied to the police), leading to three felony charges against him: Theft in East Baton Rouge Parish, Illegal Possession of Stolen Property, and Obstruction of Justice in Orleans Parish. Although he completed a diversion program and was allowed to enter a plea of guilty to one count of misdemeanor theft, in my view, this conduct by a lawyer, albeit a suspended one, is not only a violation of Rule 8.4 of the Rules of Professional Conduct, but it is also hideous and embarrassing for the profession. This criminal and ethical misconduct is also preceded by misconduct giving rise to this Court’s order of suspension for a year and a day, in which this Court deemed his misconduct “particularly troublesome.”

...In addressing lawyer disciplinary matters, it is the duty of the Louisiana Supreme Court to maintain the high standards of the legal profession, protect the public, preserve the integrity of the profession, and deter future misconduct. Based on Mr. Fahrenholtz’s lack of moral fitness and his astonishing lack of concern and respect for this profession, I believe that permanent disbarment is warranted in this instance. For these reasons, I dissent from the Per Curiam imposing “regular” disbarment, from which the respondent could at some point seek reinstatement.

(Mike Frisch)

April 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Urine Trouble

An attorney violated the conditions of his disciplinary probation by testing positive for drugs, according to a decision of the Arizona Presiding Disciplinary Judge.

Mr. Wolf committed the criminal offenses of DUI-drugs (methamphetamine) and possession of narcotic drugs (cocaine). Mr. Wolf was suspended from the practice of law in Arizona under an agreement for discipline by consent. See Rule 57. The hearing panel recommended reinstatement after formal reinstatement proceedings in File No. PDJ-2014-9035. By order dated May 19, 2016, the Supreme Court reinstated Mr. Wolf to the practice of law. Mr. Wolf was placed on probation for two years under stated conditions. Those conditions required Mr. Wolf abstain “from ingestion of mind-altering substances during the period of probation.” 

That Mr. Wolf ingested and tested positive for methamphetamines is undisputed. On November 21, 2016 at 14:03, Mr. Wolf submitted a urine sample to be tested. The lab result tested positive only for Amphetamines. This positive test was because of his use of Adderall by prescription. 

Mr. Wolf was ordered to submit to a random urine screening test on November 30, 2016. He tested positive for both amphetamines and methamphetamines. His creatinine level was normal, which excludes extreme dilution by Mr. Wolf. The specimen was re-examined by a scientist to assure validity which confirmed methamphetamines were ingested by Mr. Wolf. The testimony and Exhibit 6, confirm that the Adderall did not alter the test results.

Then

Ms. Yvette F. Penar is the compliance monitor in the lawyer regulation office for the State Bar. She has been monitoring Mr. Wolf since May 19, 2016, the date of his reinstatement. Upon receiving the notification of his positive methamphetamine test, she communicated with Donna Wagoner, the Chief Operating Officer of the testing company. According to Ms. Wagoner, Mr. Wolf attributed his positive result to the use of a nasal decongestant. Ms. Penar then requested a confirmatory test be conducted to determine the drug levels found in Mr. Wolf. She reported Mr. Wolf told his psychiatrist he tested positive because he accidently drank “his lady friend’s coffee” which was laced with methamphetamine to aid in her weight loss. 

The letter from Dr. Meyer states Mr. Wolf reported Mr. Wolf telling him “that prior to the drug test he’d been visiting some friends in Mexico and reports that the woman he was visiting was using methamphetamine for weight loss and was drinking it with her coffee.” Mr. Wolf reported to him “he’d accidently drank the coffee which she’s poured for herself which contained the methamphetamine.” 

Dr. Callister in his testimony confirmed his findings. Mr. Wolf testified he had been visiting friends in Mexico, Edgar Pacheco and his wife Marizza Pacheco. He went to their house, she had poured herself a cup of coffee and unbeknownst to him, she put methamphetamines in the coffee to help her lose weight. Mr. Wolf swears he was unaware of his ingesting methamphetamines and necessarily was submitting that he was unaffected by his consumption by such testimony. Mr. Wolf apologized profusely.

As a consequence

The State Bar recommended suspension of six months and one day. Mr. Wolf acknowledged the error and his unknowing association with an individual using methamphetamine. The scenario testified to by Mr. Wolf is difficult to accept. He testified Ms. Pacheco had poured herself a cup of coffee before he arrived, laced it with methamphetamines and momentarily left the room. Mr. Wolf went to this friend’s house next door and seeing the cup of coffee on the table drank it while no one was in the room and prior speaking to anyone.

Attorney discipline is rehabilitative. Imposing probation in disciplinary proceedings is not token punishment. The sanction Mr. Wolf was suspended for involved three separate counts, two involved his work as a lawyer, the third was for his DUI-methamphetamines, a class 1 misdemeanor and possession of cocaine, a class 4 felony. The latter rightly assured his suspension under Rule 61.

Mr. Wolf use of methamphetamines leading to his suspension was for a prolonged period. While he should have known its dangers, he minimized this in prior proceedings because in his view, he was never addicted. Hopefully whatever mental blocks he built to see himself in such a subjective light have now crumbled or fallen down. His possession of cocaine was a felony. His use of methamphetamine while driving was a misdemeanor and likely endangered others traveling the same road near him...

Mr. Wolf made no entitlement arguments. By acknowledging his violation and concentrating on issues as outlined above, Mr. Wolf avoided any distraction from the focus of probation; rehabilitation. Using drugs is an expensive substitute for reality. An insightful blink can come from the stark evaluation of self examination. A blink is infinitely better than blindness to reality. There are few individuals free from things they are ashamed of. In proceedings such as these, acknowledgement of the challenges of sobriety aids any judge in balancing what to do next. Mr. Wolf made a slip, not a fall. Two slips can equate to a fall. He should govern himself accordingly.

The probation was extended for two years. (Mike Frisch)

April 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Consent To Disbarment Filed By Attorney Who Attacked Husband's Former Boss

A lawyer convicted in a high-profile criminal matter has consented to disbarment in Illinois.

[The crime] involved Movant aiding and abetting her husband, Illinois attorney Andrew Gilbert Schmuhl, taking a partner in Movant’s former law firm, and the partner’s wife, hostage and attacking them in the couple’s McLean, Virginia, home...

Counts I and III of the indictment charged that on or about November 9, 2014, Movant abducted Leo Fisher ("Fisher") and Sue Duncan ("Duncan"), with the intent to gain pecuniary benefit, in violation of Section 18.2-48 of the Code of Virginia.1 Counts II and IV charged that Movant caused bodily injury to Fisher and Duncan with the intent to maim, disfigure, disable or kill them, thereby severely injuring and causing them to suffer permanent and significant physical impairment, in violation of Section 18.2-51.2 of the Code of Virginia. Count V charged Movant with entering Fisher and Duncan’s dwelling in McLean, Virginia, in the nighttime, while armed with a dangerous weapon, with the intent to commit an abduction, in violation of Section 18.2-91 of the Code of Virginia. Count VI charged Movant with driving her motor vehicle in a willful and wanton disregard of a visible or audible signal from a law enforcement officer to bring her motor vehicle to a stop, in violation of Section 46.2-817(B) of the Code of Virginia.

On September 19, 2016, Movant signed pleas of guilty to Counts I (abduction with the intent to extort money), II (aggravated maiming), III (abduction with the intent to extort money), IV (aggravated maiming), and V (burglary) of the indictment in case number FE-2015-465...

On January 24, 2017, the court in case number FE-2015-465 sentenced Movant to incarceration with the Virginia Department of Corrections for a term of life on each of Counts I, II, III, IV and V, with the sentences to run concurrently. The court further ordered that all but 45 years of the sentence be suspended. As conditions of the suspended sentence, the court ordered that upon her release from incarceration, Movant be of good behavior and be placed on probation for life.

(Mike Frisch)

April 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

False Denial Of Possession Charge Draws Censure

The Kansas Supreme Court has censured an attorney who in 2005 had been arrested for marijuana possession while in law school and falsely characterized the incident when he ran for judicial office.

He was unaware of the charges when he relocated to Kansas and applied for bar admission

Unbeknownst to the respondent, on July 1, 2005, the Ingham County, Michigan, prosecutor filed a complaint, charging the respondent with one count of misdemeanor possession of marijuana. A warrant for the respondent's arrest was issued that day.

In the Kansas application process

In November 2005, the respondent filed his petition for admission to the bar of the State of Kansas. According to the respondent, while the respondent's application was pending, the respondent's attorney sent the respondent a letter. In the letter, the respondent's attorney informed the respondent that no charges had been filed and the attorney was closing the matter. The respondent cannot recall the name of the attorney and did not retain a copy of the letter. The respondent took the Kansas bar examination in February 2006.

 He was admitted but

In 2014, the respondent ran for a district court judge position in the Sixteenth Judicial District of Kansas. The respondent faced competition in the Republican primary. The election was scheduled for August 4, 2014.

On July 15, 2014, a Dodge City Daily Globe reporter contacted the respondent and told him that an anonymous source had informed the newspaper that the respondent had an outstanding arrest warrant in Ingham County, Michigan.

 The attorney late responded to disciplinary counsel and resolved the criminal matter with a disorderly persons offense but

On July 22, 2014, the respondent falsely stated, to a Dodge City Daily Globe reporter, that he was not the person stopped during the March 20, 2005, incident. The respondent stated that his identification had been stolen a short time before the incident...

 The respondent's statements to the Dodge City Daily Globe reporter were published on the Dodge City Daily Globe's website and republished by the Associated Press and the Witchita Eagle.

On July 23, 2014, while speaking at a judicial candidate forum, the respondent publicly misrepresented that he was not the individual stopped during the March 20, 2005, incident.

On July 24, 2014, the respondent posted in the Dodge City dodgeboard.com, an online forum. The respondent's post contained false statements.

He admitted the misconduct in the bar proceeding

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, at which the respondent appeared, the office of the Disciplinary Administrator recommended that the respondent be suspended for a period of 1 year. Respondent recommended published censure. The hearing panel also recommended public censure.

At the hearing before this court, the office of the Disciplinary Administrator again recommended a 1-year suspension, and the respondent asked us to follow the hearing panel's recommendation of public censure. While a minority of this court would impose a more severe discipline, a majority of the court agrees with the hearing panel's recommendation that published censure is the appropriate remedy in this case.

 Video of oral argument linked here. (Mike Frisch)

April 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Kansas Sanctions Former Judge Who Lied In Disciplinary Hearing

The Kansas Supreme Court affirmed findings of judicial misconduct against a former judge.

 This is an original disciplinary proceeding against Honorable Timothy H. Henderson, former District Judge of the Eighteenth Judicial District, sitting in Sedgwick County (Respondent). This is a correlate case to a 2015 proceeding against the Respondent that resulted in a 90-day suspension imposed by this court. See In re Henderson, 301 Kan. 412, 343 P.3d 518 (2015). The present case involves Judicial Code charges that he was dishonest to the tribunal in responding to the violations in the earlier case.

In 2014, a panel of the Kansas Commission on Judicial Qualifications (Commission) initiated an investigation of the Respondent under Docket No. 1197. Following an evidentiary hearing, a separate panel (Panel B) found that the Respondent had violated the Kansas Code of Judicial Conduct and recommended to this court that it discipline him by public censure. The panel specifically confirmed misconduct set out in three counts: a pattern of engaging in inappropriate, sexually themed discourse with members of the Sedgwick County District Attorney's office; exhibiting bias or prejudice against an attorney based on socio-political outlooks, as well as engaging in ex parte communications involving an impending legal action; and abusing the power of his office in communications regarding employment of his wife as a public school teacher. The facts are recited in detail in Henderson, 301 Kan. 412. After the Respondent filed no exceptions to the factual findings of the hearing panel, this court upheld those findings and imposed a 90-day suspension without pay. 301 Kan. at 427.

The court rejected his contention here that he cannot be sanctioned further since he is no longer a judge

The duty to protect the public from malfeasance by judges does not terminate the moment a judge steps down from office. A judge may not evade public responsibility and our jurisdiction based on the misconduct simply by stepping away from the bench when the misconduct is revealed. As the Alaska Supreme Court noted in Johnstone, the purpose of judicial discipline is the protection of the public...

The conduct of which the Respondent is accused, including lying to the hearing panel, took place while he was occupying a position of judicial authority. In his response to the findings of the hearing panel and even after he resigned from his office, the Respondent refused to acknowledge wrongdoing. It would be disrespectful both to the public and to the witnesses whose reputations he impugned if we were to abdicate our responsibility of judicial supervision by dismissing the complaint merely because the Respondent walked away from his responsibilities.

And it did not violate his rights to bring a fresh case 

It would have been improper to include the new charges in the earlier proceeding. Because the charges arose out of the Respondent's testimony in that proceeding, the Commission could not have given him meaningful notice of the new charges.

Remedy

 Here, the Respondent's misconduct undermines the public's faith in the very judicial office he took a sworn oath to uphold. Because the Respondent is no longer serving as a judge, the sanctions of suspension or removal are not available.

We conclude the findings of the panel are supported by clear and convincing evidence.

IT IS THEREFORE ORDERED that this opinion shall be published in the official Kansas Reports.

Video of the oral argument linked here. (Mike Frisch)

April 7, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Crossing The Unauthorized Practice Line

A disbarred attorney may appear pro se but not represent others, according to an order enjoining unauthorized practice of the Iowa Supreme Court.

In this appeal, we must decide whether a disbarred attorney engaged in the unauthorized practice of law when he took a partial assignment of a judgment for back-due child support from a friend who owed him money and they both pursued collection in the same court proceedings. Nonlawyers can represent themselves in court to pursue collection on claims they wholly own by assignment. But a nonlawyer cannot represent another party in court. After a bench trial, the district court found this former lawyer engaged in the practice of law because his friend stood to receive part of the recovery on the assigned claim, and he helped her pursue collection of her own claims. We reach the same conclusion on our de novo review of the record and, therefore, affirm the injunction entered by the district court.

Analysis

 We must decide whether Sullins was representing Sarita in the collection efforts. If so, he engaged in the unauthorized practice of law. In his telling, he was simply pursuing collection on a claim he owned by assignment. The district court found otherwise after hearing the live testimony of both Sullins and Sarita. On the key disputed factual issue, the district court found Sarita more credible than Sullins and found that he was to repay her any amount collected on his assigned claim that exceeded what he had loaned her for living expenses. Based on our de novo review, we agree and affirm the injunction.

We first address whether the Commission’s pleadings encompassed the violations found by the district court. We conclude the pleadings adequately notified Sullins of the claims adjudicated. Next, we review caselaw addressing when a nonlawyer pursuing collection on assigned claims in court engages in the unauthorized practice of law. We conclude Sullins crossed the line by pursuing collection for Sarita. Then we address restrictions on drafting and legal assistance by one nonlawyer to another. We conclude Sullins crossed the line by assisting Sarita with her own court filings.

Document drafting is practicing law

But a party does not practice law when he or she merely assumes the role of a "scrivener." Sturgeon, 635 N.W.2d at 684. In " ‘determining what is the unauthorized practice of law,’ ‘practical considerations and common sense will prevail, not impractical and technical restrictions that may hamper or burden the public interest with no reasonable justification.’ " Bergantzel, 619 N.W.2d at 316 (quoting In re Opinion No. 26, 654 A.2d 1344, 1354 (N.J. 1995)). In Sturgeon, we drew a line between unauthorized drafting and filling blanks on preprinted forms. 635 N.W.2d at 682. We explained drafting became unauthorized practice when "data entry (either by typewriter or computer) crosses the line between copying written information provided by the client and oral solicitation of the information necessary to fill out the documents selected by the preparer." Id. LeRoy Sturgeon helped clients in his office prepare Chapter 7 bankruptcy documents. Id. at 680. Sturgeon claimed he "merely typed information, furnished by his clients, into preprinted forms." Id. at 682. But Sturgeon did more than that; he "drew on his knowledge and experience in bankruptcy matters" in representing clients...

 Considering Sullins’s services from this perspective, we acknowledge there is no evidence Sullins physically drafted any filings for Sarita. Sarita testified Redenbaugh or Wieslander instructed her about how to draft her March 3 filings, and she wrote them herself at the courthouse. The record reveals Sarita’s filings consisted of the caption and one line in the body, stating she joined Sullins’s motions. It is apparent Sarita copied Sullins’s captions—typos included. Although Sullins did not physically draft Sarita’s filings, he guided her through his own motions, which he suggested Sarita join. He acknowledged advising Sarita with respect to her filings, including the legal effect of joining the 252K motion and the desirability of assigning certain years of her claim. The record shows Sullins went beyond a mere scrivener of legal information. He selected a particular course of action and advised Sarita about its desirability and effects. We believe this invokes the professional judgment ordinarily used by one who is engaged in the practice of law.

 Remedy: Stop. (Mike Frisch)

April 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Deal

The Iowa Supreme Court declined to enforce a settlement agreement in a legal malpractice matter, concluding that the evidence did not establish the mutual consent to the deal.

Because there was "no deal," the court did not address whether the disputed confidentiality provision violates ethics rules.

In this case, we are asked to determine whether the parties in a legal malpractice case entered into a binding settlement agreement, and if so, whether the settlement’s confidentiality provision would result in a violation of our rules of professional conduct. Here, following mediation, the parties agreed on what would be paid to settle the case. They also exchanged versions of a confidentiality provision to be included in the settlement agreement, although they never settled on the same version at the same time. The defendant law firm nonetheless asked the district court to enforce the settlement.

Following a hearing, the court concluded that the parties had reached a final settlement and dismissed the underlying malpractice case. Plaintiffs now appeal, arguing (1) there was no meeting of the minds on settlement; (2) the confidentiality provision in the settlement as approved by the district court restricts the right of plaintiffs’ counsel to practice law in violation of Iowa Rule of Professional Conduct 32:5.6(b); (3) the court had no authority to seal documents relating to the settlement; and (4) because the defendant law firm practices primarily in Black Hawk County, this case should have been heard by a judge from a different judicial district.

 For the reasons discussed below, we hold that the parties never mutually assented to the same settlement agreement. We therefore do not reach the question whether a confidentiality provision requiring the attorneys not to disclose the existence and terms of the settlement may violate Iowa Rule of Professional Conduct 32:5.6(b). We also conclude the district court did not abuse its discretion in sealing documents related to the parties’ mediation and follow-up negotiations or in declining to arrange for an out-of-state district judge to preside over the case.

Accordingly, we reverse the judgment enforcing the settlement, we affirm the court’s orders sealing portions of the file and declining to arrange for an out-of-district judge, and we remand for further proceedings.

 The underlying allegations of legal malpractice involved a prenuptial agreement. (Mike Frisch)

April 7, 2017 in Clients | Permalink | Comments (0)

Reciprocal Incapacity Suspension

A reciprocal indefinite suspension on medical grounds was imposed by the New York Appellate division for the First Judicial Department based on a suspension imposed in Connecticut.

By motion dated January 5, 2017, the Attorney Grievance Committee (Committee) seeks an order, pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.14(b), indefinitely suspending respondent on medical grounds, as evidenced by an order dated June 16, 2016 issued by the Connecticut Superior Court, placing respondent on inactive status based upon its finding that she is incapacitated from continuing to practice law.

The Connecticut disposition came in the midst of the investigation of a bar complaint.

The Disciplinary Counsel sought an order of inactive status based upon, inter alia, respondent's incapacity to continue to practice law by reason of illness. After having reviewed respondent's medical records, the Connecticut Superior Court found her incapacitated from practice.

The attorney did not respond in New York.

While this Court has not reviewed respondent's medical documentation, the Connecticut Superior Court's finding of incapacity should be fully credited herein to protect the public interest. The Connecticut court's order makes clear that its determination that respondent is incapacitated from continuing to practice law and to place her on inactive status was based on its review of her medical records. Therefore, we find it proper to reciprocally suspend respondent based upon the Connecticut court's determination and the circumstances surrounding this case (see Matter of Grant, 263 AD2d 133 [1st Dept 1999] [granting medical suspension based upon Connecticut court's determination that attorney was incompetent to stand trial]; see also Matter of Falls, 121 AD3d 83 [1st Dept 2014] [granting medical suspension based upon, inter alia, letters from treating psychiatrist]).

(Mike Frisch)

April 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 6, 2017

Prosecutor Suspended

The Indiana Supreme Court ordered a 30-day suspension of a former prosecutor for intervening on behalf of his business partner's criminal client

During all relevant times, Respondent was the elected Marion County Prosecutor. The charges in this case arise from Respondent’s business relationship with former criminal defense attorney Paul Page. That relationship included a limited liability corporation (“LLC”), formed in connection with a joint real estate venture, in which Respondent held a 50% membership interest.

As an elected prosecutor, Respondent was required to file a Statement of Economic Interests annually with the Commission on Judicial Qualifications. In the Statement Respondent filed for calendar year 2008, Respondent failed to disclose his financial interest in the LLC. The Disciplinary Commission charged Respondent with violating Indiana Professional Conduct Rule 8.4(c), which proscribes conduct involving “dishonesty, fraud, deceit, or misrepresentation.” However, the HO found the evidence undisputed that Respondent’s omission was inadvertent and accordingly found no violation in this regard.

Separately, in early 2009 Page was representing an individual (“Mobareki”) facing several drug charges in Marion County, the most serious of which was a class B felony. The deputy prosecutors handling the case, including the chief deputy of the narcotics division, had worked out a tentative agreement with Page that called for Mobareki to plead guilty to a class C felony and forfeit $17,550 in cash that had been seized at the time of Mobareki’s arrest. However, Page brought the matter directly to Respondent, who then intervened and instructed his deputies to allow Mobareki to plead guilty to a class D felony (with eligibility for alternate misdemeanor sentencing) and to return a portion of the seized cash to Mobareki. Intervention of this nature was highly unusual; the chief deputy indicated he had never previously been given such an instruction by Respondent in a narcotics case, and both deputies knew of no reason to reduce the lead charge to a class D felony or to return any of the seized funds, as they felt the case against Mobareki was very strong. Based on these events, the Commission charged Respondent with violating Professional Conduct Rule 1.7(a)(2), which generally prohibits representation of a client if “there is a significant risk that the representation . . . will be materially limited by . . . a personal interest of the lawyer,” and the hearing officer concluded the evidence was clear and convincing that Respondent violated this rule. 

During the Commission’s investigation of the Mobareki matter, Respondent told the Commission that the deputy prosecutors had offered Mobareki a plea to a class D felony prior to Respondent’s intervention. Based on this, the Commission charged Respondent with a second Rule 8.4(c) violation, alleging this statement was knowingly false. While the statement was not accurate, the HO found insufficient evidence it was knowingly false and accordingly found no violation in this regard.

The court accepted the conclusions and proposed sanction of the hearing officer.

Indystar had a story about the prosecutor and a prior sanction

The Indiana Supreme Court previously disciplined Brizzi for making inappropriate comments regarding two cases during his tenure as prosecutor and ordered him to pay $2,500 in court and investigative costs.

The disciplinary commission accused Brizzi of making prejudicial comments in a 2006 news release about the Hamilton Avenue mass murders and during a 2008 news conference about convicted serial killer Bruce Mendenhall.

Brizzi said during a 2011 hearing that he stands by his comments.

But the court found that some of Brizzi's comments in the 2006 news release crossed the line. Brizzi said he "would not trade all the money and drugs in the world for the life of one person, let alone seven," and that one of the suspects in the Hamilton Avenue mass murders "deserves the ultimate penalty."

(Mike Frisch)

April 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Confidences, No Disqualification

The Nevada Supreme Court denied a petition for relief filed when the trial court declined to disqualify counsel.

We conclude that the Nevada Rules of Professional Conduct operate to disqualify a lawyer only when that lawyer, while employed at his former firm, gained actual knowledge of information protected by rules of confidentiality. In particular, if a lawyer acquired no confidential information about a particular client while at his former law firm and that lawyer later joins another firm, neither the lawyer nor his current firm are disqualified from representing a different client in the same or related matter even though the interests of the former and current clients conflict. We therefore deny the petition.

The story

In 2007, the law firm Hall Jaffee & Clayton (HJC) defended petitioner New Horizon Kids Quest III, Inc., in a tort action, namely Robann C. Blue, a Minor, by and through her Guardian ad Litem, Sandi Williamson v. New Horizon Kids Quest III, Inc. (Blue). Only two attorneys at HJC participated in HJC's representation of petitioner in Blue. Ultimately, the district court dismissed Blue with prejudice through stipulation and order.

For about the last half of HJC's representation in Blue, Jordan P. Schnitzer worked as an associate attorney at the firm. However, Schnitzer never represented petitioner in Blue or obtained confidential information regarding petitioner while employed at HJC. In 2011, Schnitzer left HJC to join the law firm Kravitz, Schnitzer & Johnson, Chtd. (KSJ). 

In 2014, Martin J. Kravitz from KSJ filed a tort action on behalf of real parties in interest Isabella Godoy, a minor, by and through her mother Veronica Jaime, against petitioner. After accepting this case, Kravitz discovered that HJC defended petitioner in Blue. He knew that Schnitzer previously worked at HJC and further inquired into Schnitzer's involvement in Blue. Schnitzer told Kravitz that he "had absolutely no knowledge about the Blue case" and confirmed that he had not gained any confidential information concerning petitioner while at HJC. Thus, Kravitz determined screening was not required and permitted Schnitzer to assist on this case.

In 2015, petitioner also discovered that Schnitzer worked at HJC during part of its representation in Blue. Petitioner then filed a motion to disqualify real parties in interest's attorneys, Kravitz and Schnitzer. Based on Schnitzer's affidavit denying obtainment of any confidential information concerning petitioner, and an affidavit from an attorney at HJC who participated in Blue confirming that Schnizter had not worked on that case, the district court concluded that Schnitzer never obtained confidential information from Blue. The court further concluded that the cases cited by petitioner in support of its position were distinguishable. Ultimately, the district court denied the motion. Petitioner then filed the instant petition for a writ of mandamus seeking review of the district court's order. Real parties in interest filed a timely answer, and oral argument was held.

Resolution

...petitioner argues that a presumption of imputed knowledge applies, and thus, Schnitzer and KSJ are disqualified based upon HJC's prior representation of petitioner in Blue. In contrast, real parties in interest argue that such a presumption of shared confidences does not apply due to the absence of evidence indicating that Schnitzer acquired confidential information regarding petitioner while employed at HJC. We agree with real parties in interest and conclude that petitioner's interpretation of the RPC is too strict in light of the lack of evidence showing that any confidential information was gained...

The plain language of RPC 1.9(b) requires that a lawyer be disqualified if (1) the current representation is materially adverse to the attorney's former firm's client, and (2) the attorney acquired confidential information about the client that is material to the current representation, unless the attorney's former firm's client gives informed consent. The requirement that the attorney actually acquire confidential information about his former firm's client is not a presumption; rather, it is a factual matter for the district court to resolve. In the absence of an attorney acquiring such confidential information, it follows that the attorney is not disqualified, and imputed disqualification pursuant to RPC 1.10 does not apply. Therefore, we conclude that the district court appropriately ended its inquiry when it determined that Schnitzer never obtained any confidential information.

(Mike Frisch)

April 6, 2017 | Permalink | Comments (0)

Conviction Of Public Defender Affirmed

The Utah Supreme Court affirmed the theft and attempt theft conviction of a public defender

Garfield County does not have a full-time public defender. Instead it retains a private attorney to handle all public defense cases for a flat annual fee. In 2008 and 2009 the county retained John Hummel to do its public defense work.

Hummel apparently concluded that he could make more money if he could convince his would-be public defense clients to retain him privately. So he met with a number of these clients before his formal appointment as public defender. In those meetings Hummel tried to persuade these clients to retain him privately.

Jerry Callies was one of the defendants who met with Hummel under these circumstances. Callies met with Hummel after Callies had applied for court-appointed counsel. A bailiff directed Callies to meet with Hummel to discuss Callies‘ application. During the meeting Hummel told Callies that he did not qualify for appointed counsel. Hummel then suggested that Callies retain him and pay him as his private lawyer.

Hummel told the imprisoned Callies that if Callies would sign over his guns and pay $2,500, Hummel would get him out of prison that day. He also warned that if Callies did not hire Hummel, Callies would spend thirty more days in prison and might even face additional charges. Callies relented. He gave Hummel his firearms and signed a promissory note for $2,500 in exchange for representation.

Callies also alleges that Hummel asked him to fill out a new application for appointment of counsel and to list an inflated income amount in order to guarantee that Hummel would not be appointed as counsel. At trial, there was conflicting evidence as to whether Hummel was in fact appointed as Callies‘ counsel (a minute entry suggested that Hummel was appointed, while a recommendation by the county attorney that Callies be denied counsel cuts the other way). 

John Burke was a second would-be public defense client who met with Hummel. Hummel met with Burke after Burke had been charged with various drug and weapons charges. After filling out an application for court-appointed counsel, Burke gave the application to Hummel, believing that Hummel was in charge of the paperwork. During the meeting, Hummel mentioned that Burke, who had been in court before, must "know how courts are about public defenders.' Hummel also indicated that he would be able to ―better represent [Burke]' if Burke paid Hummel $5,000. After this conversation, Burke‘s father agreed to a $2,500 charge to his credit card. Hummel suggested he would work out a plan for payment of the remaining $2,500.

Scotty Harville and Joe Sandberg also met with Hummel. A judge had told them both that they qualified for counsel. Yet Hummel told them that 'it would look better" in court if they hired private counsel rather than rely on the work of a public defender. He also said they had a ―better chance‖ of getting out of jail and avoiding further jail time if they retained him privately. Hummel convinced both Harville and Sandberg to sign promissory notes, which, Hummel claimed, would "make it seem as though" they had retained him as private counsel." Hummel indicated that he would never try to collect on the promissory notes. He also suggested that Harville sign over to Hummel the weapons seized upon Harville‘s arrest to avoid facing further charges related to the weapons.

John Spencer was the last of the would-be public defense clients at issue in this case. Spencer met with Hummel after completing his application for court-appointed counsel. Hummel asked Spencer for collateral in return for Hummel‘s services. And Spencer agreed—at Hummel‘s urging—to sign over multiple firearms to Hummel as collateral. As with Callies, a minute entry suggested that Hummel had in fact been appointed to represent Spencer.

He admitted that he had destroyed applications for appointed counsel.

The ill-gotten gains

Hummel acquired the following property as a result of this scheme: at least $2,500 cash, $15,000 worth of written or oral promises, and eight firearms.

On appeal he raised issues with respect to jury unanimity and prosecutorial misconduct

Mr. Hummel raises important, unresolved questions of state constitutional law in this appeal. But he has failed to identify a basis for reversal of his convictions. We affirm.

(Mike Frisch)

April 6, 2017 | Permalink | Comments (0)

The Dangers Of Benevolent Despotism

The New Jersey Supreme Court has censured an attorney for dishonest conduct of four matters.

From the report of the Disciplinary Review Board

Respondent testified at the DEC hearing about mitigating factors that affected him at the time of his misconduct. Shortly after passing the bar in 1975, respondent joined a small law firm known at the time as "Mandelbaum Salzburg." He became a partner in 1979. Over the years, the law firm grew, became known as MSLD, and had more than sixty attorneys when respondent left, in 2009.

During respondent’s entire thirty-four-year career at MSLD, he reported to Barry Mandelbaum, the managing attorney, and twelve years his senior. Respondent described Mandelbaum as a "benevolent despot" and a "mentor." Respondent was never "encouraged" to generate business for the firm. Rather, he tended to work on legal matters that Mandelbaum generated.

Respondent described his relationship with Mandelbaum as a stressful one. Mandelbaum would berate respondent publicly, place notes on respondent’s door about perceived failings, and subject him to "105 decibel," public "dress downs," all of which were extremely embarrassing.

As the law firm grew larger, younger attorneys became partners. By the mid-2000s, some of those partners had come to expect respondent to complete work on projects that they had generated, placing additional pressure on respondent to perform.

Several years before respondent engaged in the within misconduct, MSLD established an executive committee to manage the law firm. Respondent perceived that the new arrangement rewarded some of the younger, income-generating attorneys, at his expense. Feeling exposed, he became "terrified" about losing his job. At that juncture, he grew even more reliant on Mandelbaum for protection...

Worried about being "kicked out" of MSLD, respondent felt tremendous pressure to complete tasks on time, according to schedules that other attorneys prepared for him. Also pressing was the fear that, because he was over sixty years old and had never been in another legal setting, he could not strike out on his own.

The misconduct

The record before us is not clear about the exact timing of respondent’s fraudulent acts, but he testified that everything came to a head in 2009. It appears, however, that respondent provided the falsified documents to his clients in these matters sometime between 2007 and early 2009

Mitigation 

There is also significant mitigation for our consideration. Respondent was open and sincere at the DEC hearing about feeling "pushed around" over the course of his legal career, and about the extreme pressure he felt before engaging in the aberrant behavior present in these matters. After thirty-four years with MSLD -- his entire career -- respondent finally "cracked" under the enormous pressure of multiple task masters and engaged in behavior that, when viewed in the context of his otherwise unblemished forty-year legal career, was aberrant.

April 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Back From Suspension

An attorney who was suspended for three years has been reinstated to practice by the New York Appellate Division for the second Judicial Department.

From the suspension order

In or about 2000 and 2001, the respondent was associate general counsel to NBTY, Inc. (hereinafter NBTY), a nutritional supplement company that was publicly traded on NASDAQ. On or about March 2, 2006, the respondent was named as a defendant in Securities and Exchange Commission v Drucker, in the United States District Court for the Southern District of New York, under Docket No. 06 Civ. 1644.

The complaint in the foregoing matter alleged, in sum and substance, that, in or about October 2001, the respondent and his father, Ronald Drucker, engaged in unlawful insider trading by selling their shares of NBTY stock one day before NBTY made public a negative earnings announcement. It was alleged that, in his capacity as associate general counsel to NBTY, the respondent "routinely received sensitive and confidential information about NBTY. [The respondent] owed a duty to keep confidential, and not use for personal gain, any material, non-public information concerning NBTY." At the time of these sales, the respondent was alleged to have been "aware of material, non-public information" concerning NBTY's fourth-quarter earnings.

At the close of the stock market on October 19, 2001, NBTY publicly announced that its fourth-quarter earnings would be lower than expected. On the next trading day, the value of NBTY's shares fell approximately 27%. On October 18, 2001, one day prior to NBTY's public announcement, the respondent placed orders to sell his entire holdings of NBTY stock, consisting of 25,700 shares. At the same time, the respondent contacted his father, Ronald Drucker, and "tipped him." "Within minutes," Ronald Drucker sold his entire holdings of NBTY stock. Also at the same time, the respondent "directed the sale" of the entire NBTY holdings of his friend William V. Minerva. By trading in advance of the negative earnings announcement, the respondent, Ronald Drucker, and William V. Minerva avoided losses of approximately $200,000.

The March 2, 2006, complaint charged the respondent with violating section 17(a) of the Securities Act of 1933 (15 USC § 77q[a]), section 10(b) of the Securities Exchange Act of 1934 (15 USC § 78j[b]), and Securities and Exchange Commission (hereinafter SEC) Rule 10b-5 (17 CFR 240.10b-5). A jury trial commenced in the United States District Court for the Southern District of New York on November 26, 2007. On December 3, 2007, the jury returned a verdict finding that (1) the respondent violated section 17(a) of the Securities Act of 1933 (15 USC § 77q[a]), section 10(b) of the Securities Exchange Act of 1934 (15 USC § 78j[b]), and SEC Rule 10b-5 (17 CFR 240.10b-5), when he sold 25,700 shares of NBTY stock on October 18, 2001, and October 19, 2001; (2) the respondent violated section 17(a) of the Securities Act of 1933 (15 USC § 77q[a]), section 10(b) of the Securities Exchange Act of 1934 (15 USC § 78j[b]), and SEC Rule 10b-5 (17 CFR 240.10b-5), when he sold 1,575 shares of NBTY stock for William V. Minerva on October 18, 2001; and (3) the respondent violated section 17(a) of the Securities Act of 1933 (15 USC § 77q[a]), section 10(b) of the Securities Exchange Act of 1934 (15 USC § 78j[b]), and SEC Rule 10b-5 (17 CFR 240.10b-5), as a "tipper."

The District Court (McMahon, J.) thereafter issued a Decision on Relief (528 F Supp 2d 450 [SD NY]). In that decision, the District Court made several rulings as to the respondent's conduct. With respect to the amount to be disgorged by the respondent, the District Court held that "the jury necessarily found that [the respondent] had obtained inside information about the earnings of NBTY before he began selling his and Minerva's stock on October 18, and before he telephoned his father and directed [him] to sell NBTY stock, also on October 18" (528 F Supp 2d at 452). With respect to the respondent's liability, the District Court ruled that the respondent "is solely liable for disgorging his entire ill-gotten gain [and] is jointly and severally liable for the amounts to be disgorged" by Ronald Drucker and William V. Minerva (id. at 453). The District Court directed the respondent to disgorge the amount of $197,243 plus prejudgment interest, and imposed civil penalties in an amount equal to twice the disgorgement amount, to wit, $394,486 (see id.).

The ruling on the respondent's liability for civil penalties was based, inter alia, on the [*3]District Court's finding that the respondent "is a lawyer who betrayed the trust of his client (who also happened to be his employer) for his own benefit and for the benefit of his father and his best friend" (id. at 452-453). "In addition to betraying the trust of his client/employer," the District Court found that the respondent "failed to cooperate with the NASD investigation . . . thereby misleading his employer" and that he "committed perjury on the witness stand at the trial of this action" (id. at 453). The District Court issued a permanent injunction against the respondent's "further violation of the securities laws," as well as his being "an officer and director" (id.). The permanent injunction was based, among other things, on the District Court's finding that the respondent "demonstrated utter indifference to both the law and to his client" (id. at 454).

On or about December 21, 2007, the District Court issued a "Final Judgment Against Defendant Mitchell S. Drucker." The District Court reviewed the history of the litigation, permanently restrained and enjoined the respondent from violating, directly or indirectly, section 17(a) of the Securities Act of 1933 (15 USC § 77q[a]), section 10(b) of the Securities Exchange Act of 1934 (15 USC § 78j[b]), and SEC Rule 10b-5 (17 CFR 240.10b-5), prohibited the respondent from acting as an officer or director of any issuer that has a class of securities registered pursuant to section 12 of the Securities Exchange Act of 1934 (15 USC § 781) or that is required to file reports pursuant to Section 15(d) of the Securities Exchange Act of 1934 (15 USC § 78o[d]). The District Court ordered the respondent to disgorge the amount of $201,146.34, which included prejudgment interest, found that the respondent was jointly and severally liable with William V. Minerva, and ordered the respondent to disgorge the amount of $11,577.11, which included prejudgment interest. In addition, the District Court found that the respondent was jointly and severally liable with Ronald Drucker, and ordered the respondent to disgorge the amount of $74,411.76, which included prejudgment interest. Finally, the District Court ordered the respondent to pay a civil penalty in the amount of $394,486. The respondent satisfied the final judgment entered against him, as reflected in a "Satisfaction of Judgments" dated February 6, 2008.

The United States Court of Appeals for the Second Circuit, in Drucker v Securities and Exchange Commission (346 Fed Appx 663 [2d Cir]), affirmed the judgment entered by the District Court in Securities and Exchange Commission v Drucker. In its decision, dated September 21, 2009, the Second Circuit found that "although there was conflicting evidence . . . the jury was entitled to credit the testimony supporting the SEC's position" (id. at 665). As a result, the Second Circuit ruled that the District Court did not err in denying the defendants' motion for judgment as a matter of law with respect to the sufficiency of the evidence (see id.). Moreover, the Second Circuit ruled that the District Court did not abuse its discretion in its disgorgement order (see id. at 666). Additionally, the Second Circuit ruled that the District Court's imposition of a civil penalty, which was twice the total disgorgement amount, was "within the statutory limitations and reasonable based on the record" (id.). The Second Circuit also ruled that the District Court did not commit error in directing injunctive relief against the respondent (see id.).

(Mike Frisch)

April 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Plea To Lesser Offense Gets One Year Suspension

A one-year suspension has been imposed by the New York Appellate Division for the Second Judicial Department

Charge one alleges that the respondent engaged in illegal conduct that adversely reflects on his honesty, trustworthiness, or fitness as a lawyer based on his conviction of a serious crime, in violation of rule 8.4(b) of the Rules of Professional Conduct (22 NYCRR 1200.0). On June 17, 2015, in the Supreme Court, Queens County, the respondent pleaded guilty to obstructing governmental administration in the second degree, in violation of Penal Law § 195.05, a class A misdemeanor. On June 22, 2015, he was sentenced to a one-year conditional discharge and directed to pay restitution in the sum of $20,000 and a DNA fee of $50.

Based on the uncontroverted evidence, and the respondent's admissions, the Special Referee properly sustained the charge. Accordingly, the Grievance Committee's motion to confirm the Special Referee's report is granted.

In mitigation, the respondent asks that the Court consider the fact that, although charged with other more serious offenses, he pleaded guilty to obstructing governmental administration in the second degree, which was an added offense after the government, on the eve of trial, decided not to proceed, and instead, offered him an opportunity to plead to the lesser offense. At his plea allocution, the respondent merely stated, "I obstructed and interfered with an investigation of this matter." The respondent was directed to make restitution in the amount of $20,000, which he paid immediately. The respondent's character witness testified that the respondent had an "impeccable character" and that his reputation for truth and honesty in the legal community was "impeccable" as well.

As for the Special Referee's remark that the respondent showed no remorse whatsoever, the hearing transcript reveals that the respondent did say he was sorry, but it appeared that he was more sorry for himself and the humiliation that he has had to endure than sorry for any particular wrongdoing.

Under the totality of circumstances, we find that a suspension from the practice of law for one year is warranted, with credit for the time elapsed under the immediate suspension order.

Kaietuer News reported on the charges.

Queens District Attorney Richard A. Brown, joined by New York State Department of Financial Services, Superintendent Benjamin M. Lawsky, on Friday announced that three individuals, including a Richmond Hill attorney and his sister, have been charged with conspiring to commit mortgage fraud and larceny from Wells Fargo Bank.
They are accused of fraudulently obtaining mortgage funds in excess of $3.3 million pertaining to the purchase of six properties – including four in Queens –during a six-month period in 2008.

 (Mike Frisch)

April 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 5, 2017

Beyond Legal Reasoning: The Video

I was fortunate to be able to talk about Beyond Legal Reasoning: A Critique of Pure Lawyering at the Harvard Law School's Center on the Legal Profession.  By the magic of YouTube...

 



 

April 5, 2017 | Permalink | Comments (0)

Overcompensation

A motion to disqualify a Judge of Compensation Claims was improperly denied, according to a recent decision of the Florida First District Court of Appeal

The motion to disqualify was based on a comment allegedly made by the JCC after a lengthy video teleconference (VTC) hearing that was inadvertently picked up by the VTC equipment and overheard by Petitioners’ attorney. Specifically, the motion alleged that "[f]ollowing the dismissal of counsel and the party, the [JCC] turned in his chair, and spoke to an off camera staff member, saying ‘was I nice and sweet and patient to let the attorney talk on and on and on ad nauseam’?" The JCC summarily denied the motion as legally insufficient.

We agree with the JCC that the motion was legally insufficient. The comment attributed to the JCC did not specifically single out Petitioners’ attorney as the loquacious one, and even if it had, that would not establish an objectively reasonable basis for Petitioners to fear that the JCC was biased against them. See Letterese v. Brody, 985 So. 2d 597, 599 (Fla. 4th DCA 2008) (finding motion to disqualify based on judge’s comment that he had heard the parties’ arguments "ad nauseum" to be legally insufficient and explaining that although "[a] judge must not be unduly biased against a party or prejudge a matter [], after hearing the evidence and arguments, a judge must be permitted to ‘judge’").

Notwithstanding the legally insufficiency of the motion, we are compelled to grant the petition because the response voluntarily filed on behalf of the JCC by the Office of Judge of Compensation Claims (OJCC) attempted to refute the alleged partiality of the JCC by asserting—without any record support—that JCC "did not interrupt or raise his voice to counsel" and that he "allowed both sides to fully make their arguments, resulting in what would normally be a 5 to 10 minute hearing lasting over an hour." This was improper because it effectively placed the JCC in an adversarial posture with Petitioners by impermissibly suggesting that the allegations in the motion to disqualify were an incomplete account of the factual circumstances bearing on the JCC’s impartiality.

Hat tip to sunEthics. (Mike Frisch) 

April 5, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Tuesday, April 4, 2017

Smoked Out Into Reprimand

A public reprimand has been imposed on an attorney by an Illinois Hearing Board for the following

From approximately June 2012 to December 2013, Respondent and his then-girlfriend, Samantha Lumley ("Lumley"), maintained a rented home at 3590 138th Street in Hamilton, Allegan County, Michigan (the "Hamilton residence"). Between June 2012 and April 2013, Respondent traveled between Hamilton, Michigan and Bolingbrook, Illinois, where he also maintained a residence (the "Bolingbrook residence").

In or around June 2012, Respondent and Lumley obtained medical marijuana cards under the Michigan Medical Marihuana Act (the "Act"), which allowed Respondent and Lumley to each legally possess 2.5 ounces of usable marijuana and grow up to 12 marijuana plants for medicinal purposes. Lumley was Respondent's primary caregiver, which allowed Lumley to legally possess 2.5 ounces of usable marijuana and grow up to 12 marijuana plants on behalf of Respondent.

In April 2013, Respondent moved out of the Hamilton residence after his relationship with Lumley deteriorated. Between April 2013 and December 2013, Lumley grew more than 100 marijuana plants and began manufacturing marijuana products in the garage of the Hamilton residence.

On December 4, 2013, Lumley mailed a package from Michigan containing marijuana oil to Respondent's Bolingbrook residence. The West Michigan Enforcement Team ("WEMET"), a multi-jurisdictional drug enforcement task force, intercepted the package and traced it back to Lumley.

On December 5, 2013, Respondent went to see Lumley at the Hamilton residence. That afternoon, WEMET arrived at the Hamilton residence and found Respondent and Lumley in Respondent's vehicle in the driveway. Respondent consented to WEMET's search of the Hamilton residence, but no arrests were made that day.

As a result

Respondent pled guilty to Count one of [an] information, which alleged a felony charge of conspiracy to manufacture and deliver marijuana, and Counts two through four were dismissed. At the time of his plea, Respondent and the Allegan County prosecutor agreed that the court would place Respondent on an 11-month Delayed Sentence Probation, after which time, if successfully completed, the charge of conspiracy to manufacture marijuana would be dismissed and Respondent would thereafter be charged and convicted of the misdemeanor offense of maintaining a drug house.

Mitigation

Respondent has not been previously disciplined and has no prior criminal history. Respondent has also been cooperative throughout the disciplinary proceedings. If this case had proceeded to a contested hearing, numerous witnesses would testify on the Respondent's behalf in mitigation as to his honesty, trustworthiness, and well-respected legal skills.

The hearing board cites two prior marijuana reprimand matters as comparable cases. (Mike Frisch)

April 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)