Tuesday, May 10, 2016

All Aboard For A Lenient And Late-Blooming Sanction

A District of Columbia Hearing Committee has recommended that an attorney be informally admonished

The charge is that Jenkins included in files to be produced to her employer’s Office of Inspector General (OIG), three engagement letters that had been backdated by outside counsel at her request, without disclosing to the OIG that the letters, and the date of her signature on each letter, were backdated...The fact of this backdating is not in dispute. Respondent argues that the backdating was immaterial.

The attorney has practiced for 39 years without prior discipline. She had moved from the Manatt Phelps law firm to serve as associate general counsel for litigation to Amtrak.

She had submitted backdated engagement letters between the law firm and Amtrak to Amtrak's OIG.

The engagement letters were not a ministerial matter to the OIG, as Jenkins believed. See Tr. 48 (“I believe that [obtaining the engagement letters] was a ministerial action that I was taking to make sure that the files were in good order, in accordance with what I believe the OIG wanted”); see also 40, 42, 88, 105, 109. The Legal Department either had the controls in place that the OIG wanted or it did not. As the OIG noted in its referral to Disciplinary Counsel, “[t]he backdating made it appear that the retainer letters were prepared and obtained when each engagement started, when in fact they were prepared later in response to the Amtrak OIG investigation.” Ex. 24, p.3.

The record clearly demonstrates that Jenkins intended to conceal from the OIG the fact that the engagement letters were not written at the time that she engaged Manatt on these matters. She knew that the Legal Department had recorded the date the letters were received. If the backdating  would cause confusion, the date stamped transmittal letter would show that. The best inference to be drawn from the record is that Jenkins intended to conceal the backdating from the OIG. Her efforts to avoid having the backdated letters date-stamped reinforces the inference that she intended that the record reflect what the OIG wanted. We find that the record contains clear and convincing evidence that Jenkins intended to mislead the OIG to conclude that she had obtained individual engagement letters for each of her matters at the beginning of the engagement. She knew the OIG wanted the Legal Department to obtain separate letters in each matter. She knew that such letters did not exist for each of her matters. Her belief that the backdating was a ministerial matter, Tr. 109, was a fundamental error. The backdated letters created a false picture of how the Legal Department and Respondent were managing outside counsel—precisely what the OIG inquiry was intended to assess. Her professed inexperience with public sector Inspectors General, Tr. 49, 97 (Jenkins), does not excuse the backdating.

 On sanction

Considering these factors, we find that the record includes a basis for mitigation of the sanction. First, this appears to be the only disciplinary proceeding in Jenkins’s 39-year legal career. This incident seems to be the only instance of backdating in that career. Second, California, the jurisdiction where Jenkins practices, chose to take no action against her. Third, Jenkins cooperated fully with Disciplinary Counsel in the presentation of this matter, including stipulating to all the essential facts. Fourth, the backdating involved no potential for financial gain for Jenkins. Fifth, no critical consequences resulted from Respondent’s backdating the documents, and her client, Amtrak, was not harmed materially by her single rule violation. Although Jenkins has not conceded that the backdating was wrong, she acknowledged that in retrospect the dates could have been handled in another way.

 The case is In re Marilyn Jenkins, Bar Docket No. 2010- D382. The report can be found at this link.

The docket number means that the case - where the facts were apparently not in dispute - has already been in the disciplinary system for six years.

The case was prosecuted by Hamilton P. Fox III, which (I assume) means that he inherited the case and that someone else at the Office of Disciplinary Counsel is responsible for the delay.

Zoe Tillman reported that the attorney had previously rejected an informal admonition. (Mike Frisch)

May 10, 2016 in Bar Discipline & Process | Permalink | Comments (2)

Monday, May 9, 2016

Redd Handed

The resignation of a law firm's managing member was accepted by the Oklahoma Supreme Court

Respondent's affidavit also acknowledges the ongoing investigation of grievance DC 16-39 by the Oklahoma Bar Association. Specifically, John R. Beasley, Respondent's colleague, filed a grievance alleging that Respondent, in his capacity as a managing member of Beasley, Shipley & Redd, PLLC in Arkansas, embezzled a substantial amount of money "likely in excess of $100,000.00" from the firm. At the time Respondent's affidavit was executed, the Bar Association had not completed its investigation and Respondent's time to respond to the allegation had not expired. Respondent, however, expressly waived his right to respond.

He had previously been disciplined in Arkansas as reported by KFSM News

The Arkansas Supreme Court's Committee on Professional Conduct has accepted the voluntary surrender of a Fort Smith attorney's law license after he admitted taking $100,000 from his firm for personal use.

The Supreme Court's order issued Thursday agrees to the surrender to allow former attorney Michael Redd to "avoid the expense, stress, and publicity of further addressing his misconduct." Redd wrote in a motion to the court that he joined the firm Robertson, Beasley, Shipley & Redd in 2014, and that he became responsible for the firm's finances.

Redd said in the filing that he had made restitution to the firm, but he believed the attorney discipline committee was likely to seek disbarment.

(Mike Frisch)

May 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Guns In The Garden

The Georgia Supreme Court has affirmed and reversed in part an order entered in litigation brought against the Atlanta Botanical Garden

The facts are not in dispute. The Garden is a non-profit corporation that operates a botanical garden complex on property leased from the City of Atlanta. Evans, who holds a Georgia weapons carry license, visited the Garden twice in October 2014 and wore a handgun in a waistband holster each time. After gaining admission to the Garden on his second visit, Evans was stopped by an employee of the Garden and advised that he could not carry the weapon at the Garden; a security officer detained Evans, and Evans was eventually escorted from the Garden by an officer with the Atlanta Police Department.

 Holding

we disagree with the trial court that the declaratory relief requested here, if granted, would somehow require action by the Garden or some other third party... While the wording of the petition requests a declaration that the Garden “may not ban” licensed individuals from carrying weapons at the facility, the practical effect of the request – and the relief sought – is simply a declaration that Evans, and similarly licensed individuals, may carry their respective weapons on the Garden’s premises. That relief, if granted, is simply a declaration of rights and requires no action on the part of the Garden or anyone else...

The trial court erred by dismissing Appellants’ request for declaratory judgment on the basis that it impermissibly asked the trial court to interpret a criminal statute and that it improperly compelled action by the Garden. Accordingly, the trial court’s order is reversed in this respect and this action remanded for further proceedings.

(Mike Frisch)

May 9, 2016 | Permalink | Comments (0)

OWI And Bar Discipline

The Indiana Supreme Court has ordered a 90-day suspension without automatic reinstatement of an attorney convicted of a felony drunk driving offense.

On or about July 10, 2015, Respondent was convicted on a guilty plea to Operating a Motor Vehicle While Intoxicated (“OWI”), with a Prior Conviction within Five Years, a level 6 felony.

Respondent has prior discipline in Case No. 49S00-1310-DI-682 resulting from her prior OWI conviction. As a result of her 2015 felony conviction, Respondent’s disciplinary probation was revoked and her stayed suspension was ordered served without automatic reinstatement in DI-682, and an interim suspension also was ordered in the instant case. 

The sanction for such offenses varies widely from jurisdiction to jurisdiction. (Mike Frisch)

May 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, May 8, 2016

Law Student Helps Disbar Lawyer

An Illinois Hearing Board has recommended the disbarment of an attorney who had misused entrusted funds.

We have considered the Administrator's one-count Complaint, a copy of which is attached as Exhibit 1. We have also considered the Order entered on February 24, 2016, deeming the allegations of the Complaint admitted, a copy of which is attached as Exhibit 2.

Based on the admitted allegations of the Complaint, over nearly two years, in matters in which he acted as an attorney and a title agent, Respondent transferred over $460,000 in real estate escrow money to the operating account of a company Respondent owned. These transfers were unrelated to the purposes of the escrow and exceeded any amounts legitimately due to Respondent or his company. While some funds were transferred back, over $180,000 was not returned.

This case warrants disbarment. In reaching that conclusion, the Panel has considered the seriousness of Respondent's misconduct, the significant aggravating factors and the case law cited by the Administrator. As demonstrated by the evidence presented at hearing, Respondent's misconduct has caused serious harm. Respondent's minimal participation in these proceedings also represents a significant aggravating factor. While Respondent has no prior discipline, that factor does not carry significant weight in mitigation in this case, given the seriousness of Respondent's misconduct and the aggravating factors present.

This result is rather unremarkable except for footnote one, which identifies counsel for the Administrator

Ms. [Laura L.] Smith, a third year law student, appeared pursuant to Supreme Court Rule 711, under the supervision of Mr. [Scott] Renfroe.

I suspect there are not many people who can say that they have disbarred an attorney before being barred themselves. Kudos. (Mike Frisch)

May 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, May 7, 2016

BMW Chaser Gets Disbarred

The Massachusetts Supreme Judicial Court disbarred an attorney for misconduct that is hard to believe

In late 2008, the respondent was a participant in a group drive of BMW enthusiasts during which the driver immediately ahead of him struck and killed a pedestrian. Within minutes of the accident, the respondent undertook to represent the driver on any ensuing criminal charges. The respondent had limited criminal experience and had never tried a motor vehicle homicide case. Moreover, he was a crucial witness for the driver — his client — and had exposure of his own due to his participation in the drive. The respondent never told the client that his own potential liability might affect his representation, never asked the client to choose between his roles as witness and counsel, and never obtained the client’s informed consent to the conflicts.

After the accident, the respondent left the area while the client was still at the scene and failed to advise the client to remain silent, instead encouraging the client to talk to the police. Unaccompanied by counsel, the client gave the police a videotaped statement under oath during which he made damaging admissions. The respondent subsequently gave his own statement in which he represented, among other things, that the client had been traveling at or near the posted speed limit of 40 miles per hour at the time of the accident.

Although he told the client that his services were pro bono, he accepted and misused advanced expenses.

Then

In early 2009, the client was arraigned on charges including motor vehicle homicide. The arraignment judge rejected the respondent’s appearance for the client on grounds that he was a potential witness for the Commonwealth or the defense. The respondent then arranged for another lawyer to act as the client’s counsel of record while the respondent continued to direct the defense in the background. The other lawyer also had no experience with motor vehicle homicide cases. The respondent intentionally misrepresented to the client that the other lawyer’s fee would be $25,000 for the representation. The client liquidated a retirement account and used the proceeds to pay another $16,700 to the respondent intended for the other lawyer’s supposed fee. The respondent paid a total of $6,750 to the other lawyer and intentionally misused the balance of the client’s funds with the intent to deprive the client of those funds.

At the trial

The client’s trial took place in February 2010. The defense expert was not informed of the trial date and was still working on his analysis. The respondent knew that the client needed a continuance for that reason but had failed to assure the timely filing of a continuance motion. At the start of the trial, the other defense lawyer moved orally for a continuance. The prosecutor was ready with witnesses and objected, and the motion was denied. Without consulting the client, the other lawyer then entered into damaging stipulations, including stipulations that the client had been speeding and that that his actions were the proximate cause of the pedestrian’s death. The other lawyer also asked for and received a sequestration order.

The respondent had decided step in as trial counsel if, as happened, the prosecutor declined to call him as a witness. He was not, however, wearing a jacket and tie. The court allowed a request for his appearance as co-counsel, but only if he were appropriately attired. The client’s father left to get a suit for the respondent. In the meantime the prosecutor put on witnesses including a bystander, who estimated the drivers’ speed at 70 m.p.h., and the police reconstructionist, who testified to a speed of about 62 m.p.h. at impact. After obtaining and donning the suit, the respondent took over the defense during the Commonwealth’s case.

In the lunch break, the respondent called the defense expert on the phone. Although the expert had initially calculated a higher speed, he told the respondent that further analysis had yielded a significantly lower speed of around 40-45 m.p.h. Backed by the respondent’s own speed observations, the expert’s testimony about these calculations would have strongly contradicted the prosecution’s narrative of speeding and reckless racing. Further, the expert would later provide a report opining that the client had been prevented by sun blindness from avoiding the pedestrian. At that point, however, the expert had not finished the analysis and was not available to testify.

During the trial, the respondent phoned two of the other drivers and arranged for them to come to court, but he had failed to assure their compliance with the sequestration order, and they were barred from testifying. At that point the respondent called the client as the only defense witness. The client had not been prepared, and his trial testimony differed significantly from his police statement. After a further request by the respondent for a continuance to bring in the expert, the defense rested. After resting the respondent tried unsuccessfully to admit an autopsy report that might have been useful to the defense. The court found the client guilty. The next day the client was sentenced to a jail term and taken into custody, where he remained for the next thirteen months.

Notwithstanding a potential ineffective assistance claim, the attorney took on and was paid for the appeal. 

In April 2010, the respondent moved for a new trial on behalf of the client with no mention of ineffective assistance. By then the respondent and the other drivers had been sued by the personal representative of the pedestrian’s estate. The motion was denied after hearing, and the respondent entered the client’s appeal in the Appeals Court in June 2010. Between July 2010 and January 2011, the respondent obtained four briefing extensions while the client remained incarcerated. He never filed or wrote an appellate brief. The respondent’s $10,000 appellate fees were clearly excessive. Because he should not have represented the client after the conviction, those fees were also illegal.

In the meantime, the client had learned in the fall of 2010 that the expert had been paid only $1,500 and that the other lawyer had neither sought nor received $25,000 as had been represented by the respondent. In addition, the respondent refused a request by the client to return the car for use by his girlfriend. The client asked the respondent for an accounting of his fees and car repair payments. In reply, the respondent intentionally misrepresented the fee arrangements and the terms of the car transactions, presented a false and inflated invoice, demanded another $5,000 payment, and threatened legal action if the client accused him of unprofessional conduct. He subsequently furnished a breakdown with fabricated time charges.

The car?

Through his wife, the respondent had arranged a $3,000 loan to the client before the trial. After the guilty verdict, the respondent offered to repair and lease or rent the client’s car for $300 per month with the monthly payments credited against the loan and repair costs. The respondent had the client sign an assignment of title and a bill of sale purporting to transfer the car to the respondent’s wife for $1.00. The client had not intended a permanent transfer and signed the papers at the respondent’s direction. The true terms of these transactions were never reduced to writing. The transactions, which effectively granted the respondent and his wife a security interest in the car, were not fair and reasonable to the client.

In the bar proceeding

The committee found no matters in mitigation but several factors in aggravation including the respondent’s inability to comprehend and acknowledge his professional obligations, his presentation of knowingly false testimony at the hearings, his numerous rule violations, his personal and financial interests, his failure to make restitution to the client, and his taking advantage of a distressed, trusting and vulnerable client. The committee recommended disbarment with a restitution order.

The Sentinel & Enterprise had the story of the accident and trial.

It may be a bit late in the semester to use this scenario as an exam question but it is a doozy. (Mike Frisch)

May 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 6, 2016

Felony Stalking Draws Disbarment

A conviction for stalking and related offenses has led to the disbarment of an attorney by the Council of the North Carolina State Bar

Based on the aftidavit, the Council finds that, on November 3, 2014, Karla W. Simon pled guilty to and was convicted on the felony charge of Stalking in Cambridge District Court, Cambridge, Massachusetts. On December 18,2014, based upon Karla W. Simon's admission to suflkient facts, Simon was found guilty on 29 counts of misdemeanor Violation of Harassment Prevention Order and nine counts felony Intimidate Witness/Juror/Police/Court OtIicial in Cambridge District Court, Cambridge Massachusetts. This conduct constitutes grounds for discipline in that Simon was convicted of a criminal offense showing professional unfitness as defined by Rule .0103(17) of the State Bar Discipline and Disability Rules and N.C. Gen. Stat. § 84-28 (b). An Order oflnterim Suspension was entered by the Chair of the Disciplinary Hearing Commission on January 8, 2016 based on these convictions.

The attorney has been suspended on an interim basis since November 2015 and had consented to the sanction.  (Mike Frisch)

May 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Mitigation Not "Extremely Unusual"

An attorney's proffered mitigation was not sufficient to allow a sanction less than disbarment for conversion of client funds and other misconduct, according to an opinion of the New York Appellate Division for the First Judicial Department.

The Referee observed that respondent "offer[ed]" no pertinent explanation and no justification whatsoever" for altering the money orders and converting her clients' funds for own use. Although respondent stated that she was in shock and in a daze upon learning that she had missed the petition deadline for a number of clients, she could not recall whether she altered the money orders before or after the mistake came to light.

In mitigation, at the hearing, respondent compellingly demonstrated the aberrational nature of her behavior, her extreme remorse and that she has an otherwise unblemished disciplinary history. Respondent also stated that it was her intent to restore the converted funds to her clients and she actually did so, in part. Respondent's claim of extremely unusual mitigating circumstances rests in large part on her history of providing pro bono legal services to undocumented immigrants and general service to the community. A chaplain of the New York City Fire Department, who has known respondent since 1997, confirmed respondent's benevolence, noting that she has volunteered her time at the parish of St. Francis of Assisi where she, among other things, helped found a library and provided pro bono legal services to "hundreds of immigrants" through its immigration clinic. Respondent has also taken remedial measures to prevent future misconduct, including closing her solo practice and working for the past six years under the supervision of an experienced attorney practicing law in the area of disability civil rights. The supervising attorney, who has known respondent since they both attended law school, vouched for respondent's overall honesty and trustworthiness.

In determining whether mitigation is "extremely unusual" this Court does not recognize remorse, the absence of a prior disciplinary record or cooperation with the DDC as a sufficient basis to avoid disbarment...

(Mike Frisch)

May 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Applicant's Failure To Participate In Character Review Dooms Admission For Now

The Ohio Supreme Court denied an application for bar admission on character and fitness grounds

Myers initially applied to take the February 2013 bar examination but failed to receive final approval of his character and fitness in time to take that test. He subsequently reapplied to take the July 2013 exam. The admissions committee of the Cincinnati Bar Association reviewed Myers’s application and interviewed him. Despite some concerns about his debts and his admission that he lied to a former employer about completing an assignment, the admissions committee found that he possessed the character, fitness, and moral qualifications required for admission to the practice law and recommended that his character and fitness be approved.

The board reviewed Myers’s application and determined, however, that his work history with the employer to whom he lied and his neglect of financial responsibility warranted further review of his character and fitness.

A panel was appointed to review the application but

The panel chair attempted to contact Myers several times by e-mail in an attempt to schedule a prehearing telephone conference but received no response. The chair eventually reached Myers and scheduled the conference for September 20, 2013. During the conference, the panel chair granted Myers’s request to continue the hearing so that he could have additional time to address certain issues relevant to his character and fitness. Another prehearing telephone conference was held on April 14, 2014, at which Myers again requested and was granted additional time. After a few months, in an attempt to schedule the hearing, the panel chair sent Myers two e-mails and a certified letter, which was signed for. Though the letter advised Myers that failure to respond could result in a recommendation from the panel that his character and fitness be disapproved, he did not respond. The director of bar admissions also attempted to contact Myers by telephone several times but was unsuccessful.

The applicant may reapply for admission on conditions set by the court. (Mike Frisch)

May 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Insufficient Evidence Of Malpractice

A trial court's dismissal of a legal malpractice claim was affirmed by the New York Appellate Division for the Second Judicial Department.

The plaintiff commenced an action for a divorce and ancillary relief against her former husband and retained the defendants to represent her in that action. The action ended in a judgment that resolved issues including child support and visitation that the plaintiff and her former husband were unable to stipulate to before trial. Approximately three years later, the plaintiff commenced this action to recover damages for legal malpractice. The plaintiff alleged that the defendant failed to ascertain the full extent of her former husband's income, and failed to make an adequate record before the matrimonial court regarding her former husband's level of adherence to the tenets of Orthodox Judaism and the needs of their children not to have visitation with the former husband on the Jewish Sabbath and holidays. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion.

The court

...here, in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the affirmation submitted by the plaintiff, herself an attorney, was insufficient to raise a triable issue of fact as to whether the defendants were negligent in their representation of her in the underlying matrimonial action (see Scartozzi v Potruch, 72 AD3d at 788-789). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint and dismissed the complaint.

(Mike Frisch)

May 6, 2016 | Permalink | Comments (0)

Thursday, May 5, 2016

Failure To Object To Improper Argument Was Ineffective Assistance Of Counsel

The South Carolina Supreme Court granted a new trial to a defendant based on the failure of her trial counsel to object to the improper closing arguments of the prosecutor (called a Solicitor) in a criminal sexual conduct case that depended entirely on credibility.

The victim's story

According to Victim, on that August night, he went to Tappeiner's house with his sister and a neighbor to watch movies with Tappeiner, her husband, and their two daughters while his parents were out of town. Tappeiner and her husband were drinking alcohol during the movies, although neither was noticeably intoxicated. By the end of the last movie, all of the children except Victim had fallen asleep in front of the television, and Tappeiner's husband had gone upstairs to bed. Tappeiner briefly left the room where the children lay sleeping, then reentered and began fondling Victim's penis. When he resisted, Tappeiner pulled Victim upstairs into her daughter's bedroom, where she forced him to perform oral sex on her, as well as engage in vaginal intercourse. Although Victim stated he screamed for help, apparently no one heard him or woke up. Eventually, Victim was able to escape and return home.

The court

Here, we find trial counsel's closing argument did not invite the solicitor to repeatedly assert that the State's witnesses all believed Victim's version of events after their "face to face, eye to eye" interviews with him. Rather, trial counsel's presentation pointed out inconsistencies in the stories, which could do no more than invite the solicitor to point out the contradictory aspects of Victim's story and the other witnesses' testimony.

Moreover, some of the solicitor's statements regarding Victim's credibility were not only damaging to Tappeiner, but misrepresented the evidence adduced at trial, such as the solicitor's statement that the rape crisis counselor personally interviewed Victim, and that she is someone "who can detect when someone is making something up or if there is nothing there." The rape crisis counselor never testified in front of the jury that she interviewed Victim herself...

Further, the solicitor's remarks regarding whether the jurors would want Tappeiner babysitting their children or relatives improperly appealed to the jurors' emotions, rather than the evidence in the record...

 

Here, as the parties freely admitted during trial, the case was entirely dependent on a credibility determination between the prosecution's witnesses and the defense's witness. Given the dearth of evidence beyond Victim's assertions, we cannot say evidence of Tappeiner's guilt was overwhelming. Therefore, we find that but-for the improper vouching for Victim's credibility, there is a reasonable likelihood the outcome of the trial would have been different, and Tappeiner was thus prejudiced by trial counsel's failure to object.

(Mike Frisch) 

May 5, 2016 | Permalink | Comments (0)

Wake Up Little Susie

A criminal defendant was entitled to trial by jury on a charge of unlawful entry at the Library of Congress, according to a decision of the District of Columbia Court of Appeals.

In pertinent part, the evidence at trial was as follows. At about 6:30 a.m. on June 24, 2014, Ms. Frey was found asleep at an employee's desk in a restricted area of the Library of Congress's Adams Building. The Adams Building is generally open to the public from 8:30 a.m. to 4:30 p.m. To get to the desk where she was sleeping, Ms. Frey had to pass through areas that are not at any time open to the public.

Ms. Frey testified that she entered the Adams Building at about 3:30 p.m. on June 23, 2014. She went to the reading room and read for a couple of hours, but then she fell asleep. When she woke up, the building was closed and the lights were out. Ms. Frey started walking around the building, at one point walking through an underground tunnel to another Library of Congress building, the Jefferson Building. Eventually, Ms. Frey made her way to the office in which she was later arrested. 

The trial judge found Ms. Frey guilty. Specifically, the trial judge found that Ms. Frey was in an area of the Library of Congress that was not open to the public at any time and that Ms. Frey knew that her presence there was against the will of the Library of Congress. The trial judge did not credit Ms. Frey‟s denial of an intent to remain in the building.

The defendant gets a new trial by jury.

The opinion is authored by Associate Judge McLeese.

I miss Phil Everly. (Mike Frisch)

May 5, 2016 | Permalink | Comments (0)

Misappropriation Draws Six-Month Suspension

An attorney who had misappropriated entrusted funds was suspended for six months by order of the New York Appellate Division for the Second Judicial Department.

The respondent deposited the settlement funds into his operating account, when he knew that such funds should have been deposited into his escrow account, and then proceeded to use the funds for his personal use, paying for income taxes, rent, and other business expenses. When the respondent had depleted the funds and the balance in his operating account went below zero in September 2012, he replenished his operating account, but he did not transfer any funds into his escrow account for safekeeping. With regard to the availability of personal funds, as proof of lack of financial motive, while the Special Referee did not admit the respondent's personal bank account statements, he did permit the respondent to testify that he had access to personal funds at the time. As for admission into evidence of the respondent's testimony at the investigative hearing, such testimony is routinely admitted and we find no error here in its admission.

In determining the appropriate measure of discipline to impose, this Court finds that the respondent engaged in serious misconduct by misappropriating client funds and delaying payment to an elderly client the funds that such client was entitled to receive. In mitigation, this Court has considered the respondent's expression of sincere remorse, the unlikelihood of his engaging in similar misconduct, his unblemished record, his full cooperation with the Grievance Committee in its investigation, the substantial evidence presented in support of his good character, his pro bono efforts as an active volunteer in foreclosure clinics administered by the Nassau County Bar Association, and the various charitable activities he participated in through his synagogue. Of note, the misappropriation was of an isolated nature.

There are plenty of jurisdictions that would impose far more substantial discipline for this type of misconduct. (Mike Frisch)

May 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Unauthorized Practice Leads Ohio To Deny Bar Admission

Dan Trevas reports on the web page of the Ohio State Bar

The Ohio Supreme Court ruled today that a Cincinnati attorney who had been previously admitted in three other states engaged in the unauthorized practice of law when he began providing legal services while his application for admission to the Ohio bar was pending.

The Supreme Court voted 4-3 to deny Matthew A. Swendiman admission to the bar without passing the bar exam. The Cincinnati Bar Association had recommended his application be approved, but an independent investigation by the Board of Commissioners on Character and Fitness found that while Swendiman was offering investment advice to his clients, he also provided legal services while his admission application was pending. The court majority voted to allow Swendiman to reapply for admission without examination, while two justices would have required he take the exam to be admitted and one would have permanently denied admission.

Swendiman Focused Time on Investment Business
Swendiman had been admitted to practice law in Indiana in 2001, in Connecticut in 2003, and the District of Columbia in 2005. He has primarily engaged in the financial-investment business as a lawyer and financial advisor. He served as in-house counsel at a large bank and then left to be a corporate officer at another corporation. He left the post to start his own investment company, then joined the Cincinnati law firm Graydon, Head & Ritchey though a part-time “of counsel” relationship while continuing to operate his investment company.

About six months after joining the firm, Swendiman applied for admission to the Ohio bar without examination, and by late 2014 he closed his business and began working for Graydon fulltime. Swendiman admitted he had been practicing law at the firm and took the position with the firm because his clients were asking him to provide not only financial advice, but also legal services.

In a per curiam opinion, the Court explained that the unauthorized practice of law in Ohio is defined as rendering legal services for another by any person not admitted to practice in Ohio. A person not admitted in Ohio may render legal services in compliance with the requirements of the multijurisdictional practice of law, and Swendiman argued he is complying with the rules governing multijurisdictional practice.

Swendiman admitted he established an office in Ohio and practiced law in the state, but that his practice was authorized by the rule because he was admitted in another state, was in good standing in that state, and providing services “that the lawyer is authorized to provide by federal or Ohio law.” The Court stated Swendiman was arguing that because he was advising clients regarding federal law only and because he is licensed in the District of Columbia, where filings before the Securities Exchange Commission and other federal agencies are made, he was authorized to render service in Ohio.

A board panel hearing Swendiman’s case noted he did not cite any legal authority to support his “seemingly novel” argument and it found no other cases that addressed the issue.

“Moreover, the panel found that cases in which a lawyer’s practice of law has been deemed authorized by federal law occurred when the lawyer’s practice had been specifically authorized by a separate federal admissions authority,” the opinion stated.

The Court cited a 2013 case (Disciplinary Counsel v. Harris) where the attorney was not found to be in the unauthorized practice of law when representing a client in U.S. Bankruptcy Court in Ohio while not being a member of the Ohio bar. He had been admitted to the bankruptcy court, which has the power to regulate the practice of law in the cases before it. A federal appeals court extended that power further when it allowed an attorney licensed in Texas not only to appear in bankruptcy court in Michigan but also to advise clients on bankruptcy actions and proceedings because the bankruptcy court in Michigan authorized him to participate in cases.

Swendiman’s admission to practice in the District of Columbia is not the same as admission to a particular court, the Court concluded. It found Swendiman does not possess the character and fitness to practice law in Ohio. The Court ordered Swendiman to cease all practice of law in Ohio until he is licensed and stated he can reapply for admission without examination.

Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French joined the opinion.

Justices Judith Ann Lanzinger and William M. O’Neill dissented without a written opinion and would permanently deny Swendiman admission without examination. Chief Justice Maureen O’Connor dissented without a written opinion and would permanently deny admission.

2015-0540. In re Application of Swendiman, Slip Opinion No. 2016-Ohio-2813.

(Mike Frisch)

May 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sex Drugs And Disbarment

A disciplinary summary from the Florida Bar web page

Linda Dawn Hadad, P.O. Box 366, Daytona Beach, disbarred effective immediately, following a March 10 court order. (Admitted to practice: 2002) Hadad engaged in a pattern of misconduct that included illegal drug use and sexual relationships with clients. She had inappropriate intimate relationships with inmates at the Volusia County jail while she represented them, and engaged in inappropriate phone calls, which were routinely recorded by the jail. Hadad also failed to timely appear for court hearings, neglected the criminal cases of several clients, closed her office without informing her clients and failed to respond to Bar inquiries regarding these matters. (Case No. SC15-1241).

A story from the Daytona Beach News-Journal.

Hadad was arrested in August after she fled from Daytona Beach Police when they tried to stop her for an expired tag, a report said. The Sheriff's Office helicopter was called in to help find her and police used stop sticks to stop her. 

Hadad pleaded no contest to driving with a suspended/revoked license and to fleeing/attempting to elude with lights/sirens active. Circuit Judge J. David Walsh adjudicated her guilty on both counts and placed her on drug offender probation for five years.  She was also ordered to successfully complete a program at Palm Beach Behavioral Health in Palm Beach County, where she must remain for 90 days.

(Mike Frisch)

May 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 4, 2016

It's Not Defamatory To Call A Lawyer A Liar

The Virgin Islands Supreme Court has held that calling an attorney a liar on a website was not defamatory

On appeal from a Superior Court order holding a defamation defendant in contempt for failing to comply with an earlier order finding him liable and ordering him to disable and remove several websites containing allegedly defamatory statements made against the plaintiff attorney and his law firm, the statements are held to be not defamatory as a matter of law. Only statements that are provable as false are actionable. Where a statement is so imprecise or subjective that it is not capable of being proved true or false, it is not actionable in defamation. Hyperbole and expressions of opinion not provable as false fail to meet this actionability element of a defamation claim, and are also constitutionally protected. Plaintiffs had the burden of proving that the statements were false as part of their case-in-chief at trial. While calling a private individual a liar could, in some very limited circumstances, permit recovery for defamation, such statements must still be provable as false in order to constitute actionable defamation. In this case, as a matter of law all of the defendant’s allegedly defamatory statements are personal opinions representing subjective viewpoints and beliefs about the plaintiffs that cannot be proved as false. These statements both fail to satisfy the requirements of defamation under Virgin Islands law, and are entitled to First Amendment protection. Therefore, the Superior Court’s order finding the defendant liable for making defamatory statements against the plaintiffs is reversed, the resulting contempt sanctions are vacated, and the matter is remanded to with directions to dismiss the complaint with prejudice.

The facts

A dispute between Simpson and the Board of Directors of Sapphire Bay Condominiums West arose in 2003, when Simpson, who owned a unit at Sapphire Bay, sought to make several alterations to his unit. The Board, however, unanimously denied his request, finding that Simpson provided them with insufficient notice of the change. At the time, Andrew L. Capdeville, Esq., a licensed Virgin Islands attorney, was retained to provide legal counsel to the Board. After the Board denied his request, Simpson mailed a letter to every member of the Board challenging the Board’s actions and contending that the Board failed to comply with the condominium’s bylaws, particularly with regard to the notice provisions. Simpson’s letter also stated that the Board’s lawyer—presumably Capdeville—was “dishonest,” that Simpson was “concerned that the Board and the Board’s lawyer have so little respect for the By-Laws,” that “[i]t is a terrible thing to do, and a waste of owner money, for the Board to hire that lawyer and to allow him to write . . . dishonest letters,” and that “[t]he owners should never use that dishonest lawyer again.”

The next month, Simpson filed a grievance against Capdeville with the Board on Professional Responsibility. Around the same time, Simpson purportedly published a website, first located at www.sapphirebaycondos.com and later relocated to www.usvicondos.com, which reprinted the grievance in its entirety. These websites also included numerous other references to Capdeville, including a headline stating “Lawyer Lies”; a sentence stating that Capdeville “had proven himself to be dishonest”; a claim that Capdeville’s communications “contained lies and many other statements” that violate ethical rules; a claim that “Capdeville’s conduct . . . was so terrible” that “Simpson filed a [g]rievance”; a statement that Capdeville “is a danger to the [Sapphire Bay Condominiums West] owners . . . who have paid for (his) advice” and that his advice resulted in it “breaking the law”; and a claim that Capdeville is a “disgrace” to the legal profession and that law schools should use his conduct as a case study of “[w]hat lawyers should not do.”

Capdeville sued and prevailed in the trial court and received a dollar in damages. Simpson was held in contempt for failure to take down the web page.

The court here found no defamation

While calling a private individual a liar could, in some very limited circumstances, permit recovery for defamation, such statements must still be provable as false in order to constitute defamation under Virgin Islands law and to survive First Amendment scrutiny... a headline stating “Lawyer Lies” and an article claiming that Capdeville is a “liar” who has “proven himself to be dishonest,” also fail to amount to actionable statements that can be proved as false because “the term ‘lying’ applies to a spectrum of untruths including ‘white lies,’ ‘partial truths,’ ‘misinterpretation,’ and ‘deception.’” Underwager v. Channel 9 Australia, 69 F.3d 361, 367 (9th Cir. 1995). “As a result, the statement is no more than nonactionable rhetorical hyperbole, a vigorous epithet used by those who considered [the plaintiff’s] position extremely unreasonable.” Id. (citation omitted); see also Sullivan v. Conway, 157 F.3d 1092, 1097 (7th Cir. 1998) (“[T]o say that he is a very poor lawyer is to express an opinion that is so difficult to verify or refute that it cannot feasibly be made a subject of inquiry by a jury.” (citations omitted)); Gardner, 563 F.3d at 989 (“lying” statements were not sufficiently factual to imply a false factual assertion in the context of “loose, hyperbolic statements . . . which were an obvious exaggeration”); James v. San Jose Mercury News, Inc., 20 Cal. Rptr. 2d 890, 896–98 (Cal. Ct. App. 1993) (article describing lawyer as engaging in “sleazy, illegal, and unethical practice” fell into protected zone of “imaginative expression” or “rhetorical hyperbole”); accord Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284–86 (1974) (use of the word “traitor” could not form the basis of a defamation action since it was used “in a loose, figurative sense” and was “merely rhetorical hyperbole, a lusty and imaginative expression of . . . contempt”); Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (the word “blackmail” is no more than “rhetorical hyperbole”); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir. 1994) (“‘Unfair’ is a term requiring a subjective determination and is therefore incapable of factual proof.”).

As there was no defamation, the complaint was dismissed and the contempt vacated. (Mike Frisch)

May 4, 2016 | Permalink | Comments (1)

Third Time No Charm

The California State Bar Court Review Department has recommended disbarment of an attorney for unauthorized practice while suspended.

 This is Michael R. Carver’s third disciplinary matter since his 1999 admission to the State Bar of California. He received a public reproval with conditions in 2011, based on his misdemeanor convictions for driving without a valid license and resisting arrest (Carver I). In 2015, he was suspended from the practice of law for 90 days for failing to comply with the conditions of his reproval (Carver II).

In the present case, a hearing judge found Carver culpable of acting with moral turpitude by knowingly, or with gross negligence, engaging in the unauthorized practice of law (UPL) while on suspension. In recommending discipline, including a 90-day actual suspension, the judge considered Carver I in aggravation, but declined to consider Carver II because it was pending on review and not yet final.

The Office of the Chief Trial Counsel of the State Bar (OCTC) appeals. It argues that Carver knowingly committed UPL and that the hearing judge erred by not considering Carver II as an aggravating factor. OCTC contends that Carver’s two prior discipline records render disbarment appropriate under our disciplinary standards. Carver did not seek review or file a responsive brief in this appeal.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we agree with the hearing judge that Carver committed UPL amounting to moral turpitude, but clarify that he did so with willful blindness to his ineligible status, equivalent to knowledge, and not through gross negligence. We also find that the judge erred by not considering Carver II, as required by the State Bar Rules of Procedure directing that prior disciplinary records are admissible, whether final or not.

After reviewing both of Carver’s prior disciplines, we conclude that he should be disbarred. His misconduct over several years demonstrates that he is unable or unwilling to follow ethical rules. Further, he failed to prove compelling mitigation. We cannot discern from the record any reason to depart from the guiding disciplinary standards indicating that disbarment is the appropriate discipline.

On sanction

 The State Bar and this court have been required to intervene three times to ensure that Carver adheres to the professional standards required of those who are licensed to practice law in California. Probation and suspension would be inadequate to prevent him from committing future misconduct that would endanger the public and the profession. (See Barnum v. State Bar, supra, 52 Cal.3d at pp. 112-113 [disbarment imposed where attorney’s probation violations left court no reason to believe he would comply with lesser discipline].) Standard 1.8(b) and the decisional law support our conclusion that the public and the profession are best protected if Carver is disbarred.

(Mike Frisch)

May 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 3, 2016

Oklahoma Accepts Resignation Of Attorney Who Sexually Abused His Daughter

The Oklahoma Supreme Court accepted the resignation of a Tulsa attorney who admitted that he had sexually abused his daughter.

In the affidavit, Lewis acknowledges that the OBA has opened grievance DC 16-054 against him and that the grievance alleges that he committed criminal acts involving sexual abuse of his minor daughter and such acts reflect adversely on his honesty, trustworthiness or fitness as a lawyer. He states that he is aware, if proven, the acts constitute violations of Rule 8.4(b) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, app. 3-A, and Rule 1.3 of the RGDP.

Resignation is "tantamount to disbarment."

Tulsa World had the daughter's story 

Her progression from scared child to confident advocate gave Lewis the resolve recently to open it for the world to see. The revelation that she was sexually assaulted from age 11 to 16 by her father, a well-known and respected Tulsa attorney, has stunned the legal community and motivated legislators to consider changing the law.

Lewis, 45, testified in February before the House Criminal Justice and Corrections Committee and put confessional-like letters from her father on a website, toprevail.org, which contains her story and the reasons she is seeking the expansion and eventual elimination of the statute of limitations on child molestation.

“It’s too late for me,” Lewis said. “But I can do something so no other victim will hit the same roadblocks I have. That when survivors get to a place of healing, they won’t be told, ‘Sorry, you are too late. Your time is up.’ ”

To explain her new-found advocacy requires telling her personal story, which has some twists and a mystery...

Her father, George Michael Lewis, became a senior partner at Doerner Saunders Daniel and Anderson. He was a donor and supporter of children’s causes and recipient of the James C. Lang Mentoring Award from the Tulsa County Bar Association in 2013. He is listed as aplaintiff’s attorney in a 2008 federal class-action lawsuit brought by foster children against the Oklahoma Department of Human Services alleging abuses in care, which led to the Pinnacle Plan reform.

After Lewis testified and launched her website, her father notified his firm, which placed him on “indefinite leave immediately,” according to a statement from the firm’s managing partner, Tom Q. Ferguson.

“First and foremost, we would like to express our heartfelt prayers and empathy to Ms. Lewis and commend her courage in telling her story and helping others who have dealt with sexual abuse,” the statement read.

“Upon learning more information, it was the decision of the firm to ask Mr. Lewis for his letter of resignation. He is no longer an employee of the firm. This news has come as a shock to our employees. We have been meeting with our employees collectively and individually and have made confidential counseling available to them through our Employee Assistance Program.”

After a letter was sent to the home address of George Michael Lewis seeking comment, the Tulsa World received a typed statement bearing his signature.

“No one can undo the past actions for which they are responsible,” the letter states. “I deeply regret the pain I have caused my daughter Ginger and my family. I support fully my daughter’s advocacy for a change in the law to provide more time for those who have violated the law to be adjudicated and held accountable, as I was many years ago.”

In response to the statement, Ginger Lewis said: “The notion that he was held accountable is insulting. His life continued as normal while I burdened myself with the shame he should have felt. The perpetrators of these crimes, as illustrated by my father’s statement, are shockingly devoid of any recognition of the damage they cause. Their lack of a moral compass sends their victims’ lives into a dizzying destructive spin that I hope my advocacy can help people overcome.”

(Mike Frisch)

May 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Within The Range Of Reasonable Alternatives

The Washington State Court of Appeals Division II has held that a trial court properly granted summary judgment to defendants

Roff and Bobbi Arden appeal the trial court’s summary judgment order dismissing their claims against Forsberg & Umlauf, PS, and attorneys John Hayes and William “Chris” Gibson (collectively Forsberg) for breach of fiduciary duties and legal malpractice. Property and Casualty Insurance Company of Hartford (Hartford), the Ardens’ homeowners’ insurance company, retained Forsberg to defend a lawsuit filed against the Ardens. Hartford provided the defense under a reservation of its rights to deny coverage for any judgment entered against the Ardens.

First, the Ardens argue that Forsberg breached its fiduciary duty of loyalty to them by defending them in a reservation of rights context while also representing Hartford in other cases. We hold as a matter of law that Forsberg’s representation of the Ardens while it also represented Hartford did not create a conflict of interest and that Forsberg had no obligation to notify the Ardens that they represented Hartford in other cases. We also hold that there is no evidence that Forsberg breached its duty of disclosure regarding the potential conflicts of interest between Hartford and the Ardens.

Second, the Ardens argue that Forsberg breached its fiduciary duty of loyalty to them during settlement negotiations. We hold that (1) as a matter of law, Forsberg had no duty to the Ardens to persuade Hartford to accept the claimants’ initial settlement offer; (2) there is no evidence that Forsberg breached a fiduciary duty regarding the Ardens’ interest in a swift resolution of the lawsuit; (3) a question of fact exists as to whether Forsberg breached its duty to consult with the Ardens before rejecting settlement demands, but there is no evidence that any breach injured the Ardens; and (4) even if Forsberg had a duty to consult with the Ardens before making settlement offers, there is no evidence that Forsberg breached any such duty regarding its first settlement offer and that the breach of any duty for the second settlement offer injured the Ardens.

Third, the Ardens argue that Forsberg was negligent in requesting an extension of the start of settlement negotiations when they had an interest in a prompt settlement. We hold that there is no evidence that Forsberg was negligent regarding its judgment decision to extend the start of settlement negotiations.

The case

The Ardens and Wade and Anne Duffy were neighbors in Shelton. In December 2011, Roff Arden shot and killed the Duffys’ puppy. He claimed that the shooting occurred after the puppy and another dog chased him and Bobbi down their driveway. The Mason County Sheriff’s Office investigated, and referred the investigation to the prosecutor’s office to pursue animal cruelty charges...

The Duffys filed suit against the Ardens in May 2012 after settlement negotiations broke down. The lawsuit apparently alleged that the Ardens were liable for (1) willful conversion of the dog, (2) malicious injury, (3) intentional or reckless infliction of emotional distress, and (4) gross negligence and willful or reckless property damage. The Ardens requested insurance coverage for the lawsuit from Hartford under the liability portion of their homeowners’ insurance policy. Hartford initially refused to defend the lawsuit based on an intentional act exclusion in its policy.

Holding

We assume, without deciding, that an attorney representing an insured in a reservation of rights case has an obligation to consider the insured’s “personal” interests, even though they may not directly affect the merits of the case. Under Tank, only the insured is the defense attorney’s client, and a defense attorney arguably cannot disregard his or her client’s interests. However, a client may have many, sometimes competing, interests that the attorney must consider in the exercise of his or her professional judgment in defending the case. Under the attorney judgment rule, the question is whether an attorney’s particular judgment decision is within the range of reasonable alternatives or whether the attorney was negligent during the decision-making process. Clark County Fire, 180 Wn. App. at 704.

Here, the Ardens had an interest in the prompt settlement of the case. However, they were not willing to settle unless Hartford funded the settlement. Therefore, the Ardens’ predominant interest was having Hartford fund any settlement. When the Duffys made a settlement demand before providing their discovery responses, the Ardens’ two interests conflicted. Without discovery responses, Hartford did not have enough information to evaluate the settlement demand. Therefore, without an extension of time there was no possibility that Hartford would agree to fund the $55,000 settlement demand.

The evidence shows that Forsberg made a judgment decision about the best way to obtain a settlement of the Duffy lawsuit with Hartford funding that settlement. Forsberg determined that the best strategy was to obtain an extension of time for responding to the Duffys’ settlement demand until after Hartford had enough information to determine the settlement value of the claim. The Ardens presented no evidence that this decision was outside the range of reasonable alternatives from the perspective of a reasonable, careful, and prudent attorney in Washington or that Forsberg somehow failed to exercise reasonable care in making that judgment decision. Accordingly, we hold that there is no evidence that Forsberg was negligent in delaying the beginning of settlement negotiations.

(Mike Frisch)

May 3, 2016 in Clients | Permalink | Comments (0)

Dressed Down

A disbarment reported in the May 2016 California Bar Journal

CHARLES GREG LESTER [#160084], 62, of Covina, was disbarred Jan. 15, 2016 and ordered to comply with rule 9.20 of the California Rules of Court and make restitution.

The State Bar Court found Lester culpable of six counts of misconduct in two client matters including committing acts of moral turpitude by misappropriation and failing to maintain respect due to the courts, report judicial sanctions to the State Bar, deposit client funds in a client trust account, maintain client funds in a client trust account or pay client funds promptly.

In 2013, Lester showed up for his client’s criminal trial more than five hours late. When questioned by the judge, he gave a number of excuses including that his father had threatened his life the night before and he had overslept and could not dress himself when he woke that day due to having had surgery a couple months before. Finding his excuses implausible, the court imposed $1,000 in sanctions, which Lester did not pay and did not report to the State Bar.

In a second matter, Lester requested a client pay him $1,000 to cover the cost of two depositions, then cashed the check and used it for his own purposes. After he settled the client’s case for $15,000, he misappropriated the client’s money. He did not repay any portion of the $11,071.60 settlement or the $1,000 in costs.

He was ordered to pay $12,071.60 plus interest in restitution.

He had two prior records of discipline. In 1998, he was suspended for misconduct that included misappropriation, issuing checks against insufficient funds, and failing to perform with competence, maintain complete records of all funds, securities, and other properties of a client coming into his possession or deposit client funds in his trust account. In 2001, he was suspended for convictions stemming from three separate criminal cases.

(Mike Frisch)

May 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)