Sunday, July 3, 2016

Don't Fence Me In

An interesting Illinois Hearing Board report has a majority in favor of a suspension of a year and until further order

Respondent, an attorney admitted to practice law in Illinois and not admitted in any other state jurisdiction, was removed from the Illinois master roll in 2014 for failing to register. While not on the Illinois master roll, Respondent represented two clients with respect to their bankruptcy matters in the United States District Court for the Eastern District of Michigan (USDC-EDM). He failed to inform the Chief Judge of the USDC-EDM of the change in his Illinois registration status and misrepresented his registration status to the USDC-EDM. In addition, he neglected the two client matters and failed to properly communicate with the clients. His misconduct was aggravated by his lack of participation in his disciplinary proceedings. We recommend Respondent be suspended for one year and until further order of the Court...

Respondent's conduct is aggravated by his failure to participate in this disciplinary matter. Respondent evaded being personally served with the Complaint in this matter and then after having been served with the Complaint pursuant to Commission Rule 214(b), he failed to file an answer. He also did not appear at the disciplinary hearing. The Court has recognized that an attorney's failure to cooperate in his own disciplinary proceedings is indicative of indifference toward and even contempt for disciplinary procedures and demonstrates a complete want of professional responsibility. In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498 (1976). In mitigation, Respondent has not been previously disciplined. Yet, since he had only been admitted to practice law in Illinois for less than five years before engaging in some of the misconduct outlined in the Complaint, we give this factor little weight.

The Administrator recommends Respondent be suspended from the practice of law for one year and until further order of the Court. In support of this recommendation the Administrator cites the following cases. See In re Levinson, 71 Ill. 2d 486, 376 N.E.2d 998 (1978) (imposing a six-month suspension and until further order of court); In re Casbarian, 07 CH 56, M.R. 22534 (Sept. 17, 2008) (imposing a one-year suspension and until further order of court); In re Lucas, 00 CH 38, M.R. 18545 (Mar. 19, 2003) (imposing a three-month suspension); In re Bonner, 93 CH 442, M.R. 10536 (Nov. 30, 1994) (imposing a one-year suspension and until further order of court).

These cases involve similar misconduct to that which is present here. Similar to Respondent, the attorneys in Levinson, Bonner, and Casbarian neglected one or multiple client matter(s) and made misrepresentations. These attorneys also failed to fully cooperate in their disciplinary proceedings. Specifically, the attorneys in Levinson and Bonner did not appear at their hearings thereby warranting the imposition of a suspension to until further order of the Court. Also, very similar to the present matter, the attorney in Lucas engaged in the unauthorized practice of law in federal court and made misrepresentations to the court regarding whether she was authorized to practice there. However, the attorney in Lucas participated in her disciplinary proceedings and presented mitigating evidence, which is distinguishable from this matter and necessitates the imposition of a more significant sanction here.

The interesting part is the dissent of Champ W. Davis, Jr.

In this action the Administrator wants to suspend a non-resident attorney for one year and until further order of the Court notwithstanding that the attorney is not authorized to practice law in Illinois and was not authorized to practice in Illinois at the time of the misconduct. Moreover, the misconduct occurred entirely within the state of Michigan.

I dissent on the ground that I do not believe this matter is properly before the Illinois disciplinary authorities. The misconduct should be dealt with by the Michigan disciplinary authorities -- not the Illinois ARDC. Michigan Rule of Professional Conduct 8.5(a) provides in relevant part that "A lawyer not admitted in this jurisdiction (i.e., Michigan) is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction."

The misconduct alleged in this case arose solely from services which Respondent provided in Michigan. Respondent was disbarred from practice before the Federal District Court for the Eastern District of Michigan for that misconduct. I respectfully suggest that the present case be dismissed for lack of jurisdiction and that any further discipline of Respondent be left to the Michigan disciplinary authorities.

 The majority on the jurisdictional issue

Respondent was admitted to the Illinois Bar and licensed to practice law in Illinois on November 5, 2009. Accordingly, the ARDC, through the power granted to it by the Illinois Supreme Court, has jurisdiction to conduct disciplinary proceedings against Respondent for conduct, even if the conduct occurred exclusively in Michigan.

I actually litigated this issue - can an attorney be sanctioned for conduct before a foreign tribunal that has not imposed discipline - in a pre-Rules (i.e. Rule 8.5) case. 

The attorney W.E. Thompson had failed to appear in a Virginia case.  No discipline was imposed in Virginia. He was charged with the misconduct in a multi-count bar case and made the jurisdictional argument of the dissent with respect to the Virginia failure to appear.

The D.C. Court of Appeals rejected the argument, applying the principle that is now found in Rule 8.5(a).

Wherever you may roam, be it far or be it home, the license goes with you. (Mike Frisch)

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

Torture Victim Who Became Attorney Reinstated In Wisconsin

A rather unusual set of circumstances persuaded a unanimous Wisconsin Supreme Court to reinstate an attorney who had accepted a medical disability suspension while facing numerous disciplinary charges.

He had been admitted in 1997 and suspended a decade later

Attorney Muwonge's early life experiences are highly relevant to his chosen area of legal practice and also provide context for his medical incapacity. As a young man in Uganda, Muwonge was arrested, interrogated, and tortured due to his perceived involvement in a resistance group. He sought and eventually received asylum in the United States. Shortly after arriving in Wisconsin, he matriculated at Marquette University, earning an undergraduate degree in journalism in 1994 and a law degree in 1997. Given his own experiences, he chose to practice immigration law. He married and has children. Personally, however, he struggled with post traumatic stress disorder (PTSD), alcoholism, and chemical addictions which adversely affected his ability to practice law, leading to the 2007 OLR complaint.

The suspension was imposed in 2008

In the following years, Muwonge sought and obtained treatment for his mental health and substance abuse issues.


The record includes favorable opinions from Muwonge's medical and mental health treatment providers. The referee observed that those who have been involved in Muwonge's treatment view him as "totally committed to maintaining his recovery status." His treating psychiatrist is unequivocal in stating that Muwonge is fit to return to the practice of law, but recommends that he be supervised by another attorney and limit his work to 40 hours per week. Another therapist concurs, stating that Muwonge has regained control of his life and effectively manages his psychological issues through psychotherapy and medication.

The OLR did not oppose

The referee, the OLR, and Attorney Muwonge himself have all proposed various conditions that could be imposed on Attorney Muwonge's law practice. While the level of detail and the wording of these various proposals differ, fundamentally, there is consensus. All concur that continued WisLAP monitoring is critical, and we agree. All concur that Attorney Muwonge's practice of law should be monitored by an experienced Wisconsin attorney, and we agree. Attorney Muwonge has identified a suitable attorney willing to monitor his law practice. Attorney Harold Block, who has known Muwonge for over 30 years and represented Muwonge when he sought immigration status after coming to Wisconsin from Uganda, testified that he was willing to monitor Muwonge if he is reinstated and the referee supports his appointment.

Petitioner must comply with the conditions and pay the costs of the proceeding.

As to the investigation put on hold by the disability suspension

Our rules require that, upon reinstatement, “the court shall direct the referee to proceed with the misconduct action.” Id. The court will, consistent with the rules, issue a separate order directing the referee to proceed with the abated misconduct action. Nearly a decade has elapsed since the OLR filed the disciplinary complaint and Attorney Muwonge has been suspended for over eight of those years so we trust that the parties will work to resolve the underlying matter expeditiously.

This aspect of the opinion drew a concurrence from Justice Abrahamson

I join the per curiam, but I have reservations about [the above-quoted paragraph]

On April 21, 2016, the court adopted Rule Petition 14- 06 to grant more discretion to the OLR in disciplinary matters. I wonder why the OLR cannot exercise its discretion with regard to sending the old outstanding disciplinary matter to the referee? Have we not given the OLR sufficient discretion?

The new language on OLR discretion adopted by the court

The office has discretion whether to investigate and to prosecute de minimus violations. Discretion permits the office to prioritize resources on matters where there is harm and to complete them more promptly.

I missed the rule change. I agree wholeheartedly with the grant of such discretion, so long as it is exercised in a responsible manner.

In order to trust self-regulation, the disciplinary function must be performed by prompt and fair investigation and prosecution of all matters that involve potential public harm.

For that to happen, a jurisdiction's disciplinary counsel must be a first-rate lawyer who acts independently of the Bar.

It must be a person worthy of the trust needed to exercise discretion, particularly in areas such as consent dispositions, to get the job done.

To me, the perfect (well, no one is truly perfect) model for the Disciplinary Counsel is Len Becker.

Len came to the District of Columbia Office of Bar Counsel in 1992 from a career that took him from Gardiner, Maine to Harvard Law, clerkships for Judge Edward Weinfeld and Justice Potter Stewart and a partnership at Arnold & Porter.

He had no significant connection to the D.C. Bar "insiders" and no interest except the opportunity to perform an important  public service. He came in and learned the job by investigating, prosecuting and arguing cases before the Court of Appeals.

He carefully supervised the rest of us, reading and editing everything from dismissal letters to briefs to the Court.  As a result, Bar Counsel was able to articulate a single, unified position on the important issues of the day.

He figured out who on the staff were and were not doing their jobs. When he did not care for something I submitted, it was "not ready for prime time." 

He made the lawyers who cared to learn better lawyers themselves. He dramatically improved the quality of my own writing, a hard task since I thought I already knew it all. 

Of utmost importance, he was willing and able to take on the Board on Professional Responsibility when the need arose.

And he left (this is my opinion) because of the intractable problems that bar politics injected (and continues to inject) into the D.C. system. 

His seven years represent the high point of the Office of Bar Counsel in terms of the quality of the work done and the professionalism of the office.

What the District of Columbia Bar desperately needs is another person like him to clean up the unholy mess made since his departure. (Mike Frisch)

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

Saturday, July 2, 2016

Attorney Represented Partner, Not Partnership

The Idaho Supreme Court affirmed the grant of summary judgment to the defendants in a legal malpractice case, concluding that the plaintiff had failed to establish the existence of an attorney-client relationship with the defendants.

In August of 2011, Hughes and Andrew Diges entered into a 50-50 partnership, under the name H-D Transport, to haul hydraulic fracturing fluid. Hughes contributed money to the partnership and Diges contributed his experience. The partners did not create a written partnership agreement. Sometime prior to October 21, 2011, disagreements arose between the partners concerning the operation and finances of the partnership. On October 21, 2011, Diges hired Michael D. Pogue, an attorney with Lawson, Laski, Clark & Pogue, PLLC, to draft a formal partnership agreement. Diges told Hughes that he had hired an attorney to prepare a partnership agreement, and on November 21, 2011, Pogue, Hughes and Diane Barker, the partnership bookkeeper, participated in a conference call regarding the partnership.

Hughes contended that the partnership had retained attorney Pogue

The district court concluded that Hughes failed to establish that an attorney-client relationship existed between himself and Pogue. The district court explained that there was neither evidence nor any claim in the record that there was any express agreement between Hughes and Pogue. Thus, the district court reasoned that any attorney-client relationship would have to have been based upon an implied-in-fact contract. Based on the rule pronounced in Berry, the district court considered: “(1) Subjectively, did Hughes have a good faith belief that Diges hired Pogue and Pogue agreed to represent not only Diges’ interest but also the interests of Hughes and the Partnership?; (2) Objectively, was the belief of Hughes reasonable in light of the facts and record presented?”

Answering these questions, the district court explained that the evidence in the record showed that the “relationship between Diges and Hughes was very strained and that there was a great deal of distrust between the two of them.” Further, the district court reasoned that while Pogue had participated in a telephone conference with Hughes and the partnership’s bookkeeper, there was no evidence in the record as to the contents of that conversation or why that would lead Hughes to reasonably believe that Pogue was representing his interests or the interests of H-D Transport. Finally, the district court noted that Hughes himself admitted that on November 21, 2011, the same day as the telephone conference, Hughes “became aware that Pogue only represented the interests of Diges . . . .” The district court concluded that it was not “subjectively or objectively reasonable for Hughes to believe that Pogue was his attorney or representing his interest under the circumstances . . . .” On appeal, Hughes argues that the district court erred in the standard it applied and that a genuine issue of material fact exists as to the existence of an attorney-client relationship...

Hughes’ testimony is unambiguous; no later than November 21, 2011, Hughes was aware that Pogue represented Diges, not him or the partnership. We find no error in the district court’s conclusion that it was not reasonable for Hughes to believe that he had an attorney-client relationship with Pogue.

Hughes must pay the law firm's appeals costs. (Mike Frisch)

July 2, 2016 in Clients | Permalink | Comments (0)

Friday, July 1, 2016

Joking About Domestic Violence Gets Judge Suspended

A Louisiana judge was suspended for a year without pay for misconduct that included on-the-bench comments that displayed a joking attitude to domestic violence victims

While presiding over Mr. Williams’s criminal case, Respondent made an inappropriate comment and displayed a joking, jovial attitude toward women who had been abused by men. After being told that Mr. Williams was charged with domestic abuse by strangulation, Respondent and Assistant District Attorney Ken Fabre took part in the following exchange:

The Court: That’s what it was? All right. Domestic abuse battery by strangulation. Is she alive? Yes indeed. Now the victims know exactly what to say. [Assistant District Attorney]: Exactly. The Court: It’s amazing. But, anyway, I digress.... (Emphasis added.)

In his post-hearing brief, Respondent states that he was “simply asking a question in order to better understand the law and to determine whether the charge was a felony and was also pointing out an anomaly, or internal inconsistencies, in the law of domestic battery...” In his judicial misconduct hearing, Respondent testified that he was genuinely confused about the meaning of strangulation in the context of domestic abuse.

In another case

While presiding over Mr. Braxton’s criminal case, Respondent made inappropriate comments and displayed a joking, jovial attitude toward women who had been abused by men.

There were similar comments in a second domestic violence case


 While presiding over Ms. Williams’ criminal case, Respondent made insensitive, discourteous, and injudicious comments, leading to outbursts of laughter. Ms. Williams was charged with, among other offenses, theft of goods from a Wal-Mart store. After Respondent was informed that Ms. Williams had confessed to taking Aveeno lotion, he asked her: “What’s wrong, you was ... What, your skin was ashy? [Laughter] You were ashy trying to get your skin right with some Aveeno?” The comments caused audible laughter in the courtroom. Respondent continued: “Come on ... What was it? ... What did you need that lotion for?

There were a number of similar incidents.

In his brief to the Commission and at his appearance before the Commission, Respondent apologized if his use of slang and facetious language and otherwise unnecessary comments “has either personally offended anyone or offended the dignity of the proceedings in his courtroom.” He explained it was never his intention to be disrespectful of women who are abused. In his brief to this court, Respondent offers his clear, unequivocal, unconditional, and heartfelt apology for his language and his use of slang. He states it was never his intent to offer a conditional apology and, if there has been any confusion in this regard by the use of the word “if,” blame should be placed on his counsel. 

The court noted the judge's prior discipline

After considering the Chaisson factors, some of which may be regarded as aggravating and some as mitigating, the Commission recommended Respondent be suspended without pay for one year. We, too, have considered those factors, and after reviewing the record agree that a one-year suspension without pay is appropriate in this case. We also accept the Commission’s recommendation that Respondent be ordered to reimburse and pay to the Commission $11,098.68 in hard costs.

Justice Weimer

consistency in sanctioning suggests that the one-year suspension imposed by the majority is overly punitive in nature and that a lesser sanction is warranted under the facts of this case, particularly since the charges in this case do not involve misconduct that occurred following the sanction imposed in the prior case of In re Free, 14-1828 (La. 12/9/14), 158 So.3d 771.5

Justice Clark also would impose a lesser sanction. (Mike Frisch) 

July 1, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judging The Choir

The Louisiana Supreme Court suspended a judge without pay for 15 days for his early termination of the probation of a member of his church.

This matter concerns Judge Best’s handling of a motion to terminate the probation of Antonio Garcia. In June 2009, based on having exchanged a series of lewd and lascivious texts and emails with a sixteen-year-old student at the school where Mr. Garcia taught, Mr. Garcia plead guilty to indecent behavior with a juvenile and was sentenced to five years of active supervised probation. Mr. Garcia’s prosecution was handled by the Attorney General’s office because the District Attorney’s office recused itself.

On May 17, 2011, a little less than two years into his five-year probation, Mr. Garcia, without the assistance of an attorney, filed a motion to terminate probation. The Attorney General’s office did not receive a copy of the motion. The motion to terminate probation did not include an order or rule to show cause by which the matter could be set for hearing.

At some point after Mr. Garcia’s sentencing, Judge Best had become personally acquainted with Mr. Garcia through their mutual involvement with the church they both attend, as well as through Judge Best’s work as the director of the church choir and Mr. Garcia’s membership in the choir. When Mr. Garcia filed his motion to terminate probation, Judge Best told him, outside of court and through their social  connection, that he had received the motion and that it could not be set for hearing without an order to that effect. Judge Best told Mr. Garcia that he should seek legal advice and then provided him with the names of several attorneys who could possibly assist him, including the name of David Marquette, an attorney with whom Judge Best shared a close social relationship.

After receiving the motion filed by Mr. Garcia, Judge Best engaged in ex parte communications with Mr. Garcia’s probation officer concerning the merits of the motion that were designed to influence his judicial action. Judge Best asked the probation officer to contact the victim’s family to find out the family’s position regarding the proposed early termination of Mr. Garcia’s probation. When the probation officer informed Judge Best of the opposition expressed by the victim’s father, Judge Best asked the probation officer to locate the victim, who was now an adult. Judge Best also discussed the merits of Mr. Garcia’s motion with the District Attorney and with the Livonia Chief of Police.

On December 15, 2011, Mr. Marquette enrolled as Mr. Garcia’s counsel and moved to have the matter set for a hearing. Judge Best signed the order and set the hearing for January 6, 2012. Judge Best also ordered the clerk of court to subpoena the probation officer to appear at the hearing. On January 6, 2012, after Judge Best finished his drug court docket, Mr. Garcia’s case was called for hearing. At that time, the District Attorney’s office informed Judge Best that it had recused itself from prosecuting the case and that the Attorney General’s office had not been served with the motions filed by Mr. Garcia or his counsel, nor had it been notified of the hearing date.

The judge told the prosecutor to just be a court-watcher for the hearing.

During the hearing, Judge Best: (1) questioned the probation officer regarding the opinions of others concerning the early termination of Mr. Garcia’s probation; (2) stated that the father of the victim was “indifferent” towards the proceedings even though the probation officer’s unrebutted testimony was that the victim’s father opposed the early termination of Mr. Garcia’s probation; and (3) made statements concerning his own personal observations of Mr. Garcia’s character gained through his interaction with Mr. Garcia at church and further indicated that those personal and out-of-court observations provided some basis for terminating Mr. Garcia’s probation early. At the conclusion of the January 6, 2012 hearing, Judge Best issued an order terminating Mr. Garcia’s probation.

When the order was reported in the media, the judge reinstated the probation.

Chief Justice Johnson

I am deeply troubled by the favoritism shown to Mr. Garcia by Judge Best. Not only did Judge Best engage in misconduct by using the power of his office to terminate a criminal defendant’s probation without giving the prosecuting agency notice or an opportunity to participate in clear violation of La. C. Cr. P. art. 822,1 I find his actions in doing so were motivated by his personal feelings towards Mr. Garcia and his family. In my view, Judge Best’s actions demonstrate actual bias towards Mr. Garcia, such that recusal was likely warranted.

The Chief Justice would suspend for 30 days.

WAFB 9 reported on the crime and the judge's actions. (Mike Frisch)

July 1, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Ipad Theft From Louisiana Lobbyist Draws Proposed Disbarment

A Louisiana Hearing Committee has concluded that disbarment is the appropriate sanction for an attorney who had defaulted on allegations that he engaged in criminal behavior that violated ethics rules.

The underlying crime? 

He was "arrested and charged with illegal possession of stolen things and obstruction of justice." 

The stolen thing was an ipad computer that the attorney had taken from a lobbyist in the State Capital building. 

The obstruction of justice came when the police were able to trace the ipad and obtain a search warrant for the attorney's home. He sought to destroy evidence by throwing the stolen ipad into a swimming pool or pond behind his home.

He was given pretrial diversion and not convicted of any charges.

From the Times Picayune

Fahrenholtz, 65, was booked with illegal possession of stolen property and obstruction of justice in Orleans Parish, and with felony theft in East Baton Rouge Parish, according to Sgt. Nick Manale, spokesman for the Louisiana State Police. According to court documents, State Police and a source familiar with the case, the tablet was reported stolen from inside the state Capitol building by lobbyist James Nickel and was traced to Fahrenholtz's home in the 2800 block of South Ursulines Avenue on the night of April 22.

Investigators said they executed a search warrant on the home after Fahrenholtz initially denied knowledge of the theft. According to the source, Fahrenholtz was booked with obstruction after detectives determined he had tossed the tablet into a swimming pool in an attempt to hide and destroy the device, which had been electronically tracked to the home.

(Mike Frisch)

July 1, 2016 | Permalink | Comments (0)

In-House Privilege In The First Department

A significant opinion on in-house attorney-client privilege from the New York Appellate Division for the First Judicial Department.

The primary issue on this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice. We hold that such communications are not subject to disclosure to the client under the fiduciary exception to the attorney-client privilege (recognized in Hoopes v Carota, 142 AD2d 906 [3d Dept 1988], affd 74 NY2d 716 [1989]) because, for purposes of the in-firm consultation on the ethical issue, the attorneys seeking the general counsel's advice, as well as the firm itself, were the general counsel's " real clients'" (United States v Jicarilla Apache Nation, 564 US 162, 172 [2011] [Apache Nation], quoting Riggs Natl. Bank of Washington, D.C. v Zimmer, 355 A2d 709, 711-712 [Del Ch 1976]). Further, we decline to adopt the "current client exception," under which a number of courts of other jurisdictions (see e.g. Bank Brussels Lambert v Credit Lyonnais [Suisse] S.A., 220 F Supp 2d 283 [SD NY 2002]) have held a former client entitled to disclosure by a law firm of any in-firm communications relating to the client that took place while the firm was representing that client. Because we also find unavailing the former client's remaining arguments for compelling the law firm and one of its attorneys to disclose the in-firm attorney-client communications in question, we reverse the order appealed from and deny the motion to compel.

The story

In 2008, the defendant law firm, Schnader Harrison Segal & Lewis LLP (SHS & L), through the managing partner of its New York City office, defendant M. Christine Carty, Esq., represented plaintiff Keith Stock in the negotiation of his separation agreement from his former employer, MasterCard International. Unbeknownst to plaintiff during the negotiation of the separation agreement, his termination by MasterCard triggered the acceleration of the ending dates of the exercise periods of certain stock options granted to him under MasterCard's Long-Term Incentive Plan (LTIP). Specifically, the termination of plaintiff's employment caused the exercise periods of his vested stock options under the LTIP to shrink from 10 years to between 90 and 120 days. Although SHS & L negotiated a delay of the date of plaintiff's termination for the purpose of allowing additional stock options to vest, the firm did not negotiate an extension of the truncated exercise periods of the vested options.

In January 2009, plaintiff learned from Morgan Stanley Smith Barney (MSSB), the administrator of the MasterCard LTIP, that all of his vested stock options, which allegedly had been worth more than $5 million in aggregate, had already expired under the terms of the LTIP as a result of the termination of his employment. Plaintiff thereupon consulted with SHS & L concerning possible remedies for this loss. Plaintiff, represented by SHS & L, subsequently commenced a lawsuit in federal court against MasterCard and an arbitration proceeding before the Financial Industry Regulatory Authority (FINRA) against MSSB. The SHS & L attorneys who represented plaintiff in these litigations were Theodore Hecht, Esq., and Cynthia Murray, Esq.

On January 8, 2011, 11 days before the hearing of plaintiff's arbitral proceeding against MSSB was scheduled to begin, MSSB's counsel gave notice that it intended to call Carty to testify as a fact witness at the arbitration. This development prompted Carty, Hecht and Murray to seek legal advice from SHS & L's in-house general counsel, Wilbur Kipnes, Esq. The subject on which Carty, Hecht and Murray sought Kipnes's advice was their and the firm's ethical obligations, in light of MSSB's demand for Carty's testimony, under the lawyer-as-witness rule (see Rules of Professional Conduct [22 NYCRR 1200.0] [RPC] rule 3.7). Kipnes never worked on any matter for plaintiff, and plaintiff was not billed for any of the time he devoted to the consultations with Carty and Hecht.

The FINRA arbitral hearing opened on January 19, 2011. Carty, who had been prepared by Murray for her appearance, testified on April 4, 2011. On April 5, 2011, the parties delivered their closing arguments to the arbitrators. Later that month, the arbitral tribunal issued an award denying all of plaintiff's claims against MSSB. Around the same time, most of plaintiff's claims in the federal court action against MasterCard were dismissed, and the case subsequently settled.

In April 2013, plaintiff commenced this action against SHS & L and Carty in Supreme Court, New York County. Plaintiff alleges that SHS & L and Carty committed malpractice when they counseled him in connection with the termination of his employment by MasterCard in that they failed to advise him that his termination would accelerate the expiration of his vested stock options under the LTIP. Plaintiff also asserts claims against SHS & L and Carty for breach of fiduciary duty and violation of Judiciary Law § 487 by allegedly "attempt[ing] to cover up" the alleged malpractice and "[b]y trying to blame MasterCard and MSSB for their own mistakes." The merits of plaintiffs' claims against SHS & L and Carty are not at issue on this appeal.

The court

The parties advise us that no prior reported decision of any New York state court has considered the application of the fiduciary exception in a case where the fiduciaries invoking the attorney-client privilege are lawyers who, during their representation of a client, sought legal advice (whether from their firm's in-house counsel or outside counsel) concerning issues of professional ethics or potential malpractice liabilities arising from the firm's representation of that client. In recent years, however, the courts of a number of other states — including the highest courts of Georgia (St. Simons Waterfront, LLC v Hunter, Maclean, Exley & Dunn, P.C., 293 Ga 419, 427-429, 746 SE2d 98, 107-108 [2013]) and Massachusetts (RFF Family Partnership, LP v Burns & Levinson, LLP (465 Mass 702, 713-716, 991 NE2d 1066, 1074-1076 [2013]) — have held that the fiduciary exception to the attorney-client privilege, assuming that the jurisdiction recognizes it, does not apply to communications between lawyers and their firm's in-house counsel addressing such concerns arising from the ongoing representation of a firm client (see also Garvy v Seyfarth Shaw LLP, 359 Ill Dec 202, 215, 966 NE2d 523, 536 [Ill App Ct 2012] [declining to adopt the fiduciary exception but noting that it would not apply in the case at bar if Illinois recognized it]). These courts have concluded that, when lawyers seek the advice of their firm's in-house counsel concerning possible conflicts, ethical obligations and potential liabilities arising from the representation of a current firm client, the in-house counsel's "real clients" are the lawyers and the firm itself — not the firm client from whose representation the issues arise — and, therefore, evidence of communications seeking or rendering such advice may be withheld from the firm client as privileged....

The relevant facts of this case — which are not in material dispute — establish that the fiduciary exception does not apply to the January 2011 emails because SHS & L and its attorneys were the "real clients" for purposes of these attorneys' consultation with Kipnes, the firm's in-house general counsel, whose time spent on the consultation was not billed to plaintiff and who never worked on any matter for plaintiff. The three SHS & L attorneys who sought Kipnes's legal advice — Carty, whom plaintiff's adversary in the FINRA arbitration intended to call to testify about her past representation of plaintiff in the negotiation of his separation agreement, and Hecht and Murray, the litigators who were representing plaintiff in the arbitration — had their own reasons, apart from any duty owed to plaintiff, for seeking the legal guidance. MSSB's announced intention to call Carty to testify against plaintiff raised an obvious issue under RPC rule 3.7, the lawyer-as-witness rule. The attorneys, not plaintiff, would be subject to disqualification or professional discipline for any violation of the RPC in their handling of the arbitration. In addition, SHS & L itself had an obligation "to ensure that all lawyers in the firm conform[ed]" to the RPC (RPC rule 5.1[a]) and thus to have Carty, Hecht and Murray receive appropriate legal counsel about their ethical duties.

The interests of SHS & L and its attorneys in adhering to their ethical obligations did not necessarily coincide with plaintiff's interest in successfully and efficiently prosecuting the arbitration against MSSB. For example, an opinion by SHS & L's in-house counsel that the firm should withdraw from representing plaintiff would have protected the professional interests of the firm and its attorneys but would not have directly advanced plaintiff's claims in the arbitration or the federal court action. Indeed, the firm's withdrawal from the representation likely would have significantly delayed the resolution of plaintiff's claims and increased the expense of the arbitration. Any benefit to plaintiff from his attorneys' adherence to their ethical [*9]obligations as a result of the consultation with the in-house counsel would have been indirect and incidental (cf. Riggs, 355 A2d at 713 [ordering disclosure of the trustee's attorney-client communications to the trust beneficiaries, who were "not simply incidental beneficiaries who chance to gain from the professional services rendered"])Thus, because the purpose of the consultation with Kipnes — for whose time, to reiterate, plaintiff was not billed — was to ensure that the attorneys and the firm understood and adhered to their ethical obligations as legal professionals, the attorneys and the firm, not plaintiff, were the "real clients" in this consultation...

In sum, we find that the fiduciary exception simply has no application to the January 2011 emails. Those communications were part of a consultation between three SHS & L attorneys and the firm's in-house counsel to obtain advice about the ethical obligations of the firm and the attorneys, in representing plaintiff in his arbitration against MSSB, in light of the demand by plaintiff's adversary for the testimony of Carty, a member of the firm. The in-house counsel had never worked on any matter for plaintiff, and plaintiff was not charged for the time the in-house counsel devoted to the consultation. While plaintiff, as the firm's client, might well have benefited incidentally from this consultation, SHS & L and the attorneys concerned, not plaintiff, were the in-house counsel's "real client" in rendering his advice...

The foregoing analysis of NYSBA Opinion 789 persuades us that no conflict arose solely by virtue of the fact that defendant Carty and the SHS & L attorneys representing plaintiff in the arbitration consulted with the firm's in-house counsel as to their ethical obligations under the attorney-as-witness rule when informed that opposing counsel in the arbitration intended to call Carty as a witness. Since the existence of a conflict between the law firm and its outside client with respect to the subject matter on which the in-house counsel was consulted is the lynchpin of the applicability of the current client exception, that exception, even if we were to adopt it, would not apply to a consultation with the in-house counsel on that purely ethical matter. Still, insofar as the consultation at issue in this case might have extended to whether SHS & L was potentially liable to plaintiff for malpractice, or how the firm should prepare to defend itself against such a claim, the consultation concerned a matter as to which plaintiff's interests and those of the firm unquestionably conflicted. Under that scenario, the current client exception, if we were to adopt it, apparently would apply to the January 2011 emails generated by the consultation. But we find compelling the arguments against the adoption of that rather draconian exception to the attorney-client privilege

Finally, the court had specific views about an amicus brief

In its brief urging us to affirm the order directing SHS & L to disclose the January 2011 emails to plaintiff, amicus curiae the Association of Corporate Counsel (ACC) takes a position even more hostile to a law firm's assertion of attorney-client privilege against a client than that of the decisions adopting the current client exception. The ACC argues that "when an attorney engages in confidential communications regarding a current client's representation with another attorney, the client' for purposes of privilege law is the current client — not his or her lawyer. Thus, the privilege is the right of the client, not his or her lawyer, to assert." The ACC makes clear that it believes that this principle should apply "whether [the lawyer being consulted is] employed by the [inquiring] lawyer's law firm or an outside law firm." Thus, the ACC would have us essentially eliminate the applicability of the attorney-client privilege, as against a lawyer's client, to any consultation by the lawyer relating to his or her work for that client while the representation was ongoing, even if the consultation was with outside counsel, and even if the intended purpose of the consultation was to benefit the lawyer, not the client, as in consideration of whether a malpractice claim might exist. The ACC argues that any other rule "would fly in the face of [a lawyer's] duty to act with undivided loyalty" to a client.

Having rejected the current client exception, we also decline to adopt the even stricter rule urged upon us by the ACC, which apparently has not, to date, been endorsed by any American court. Beyond question, "[l]oyalty and independent judgment are essential aspects of a lawyer's relationship with a client," and "[t]he professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties" (RPC rule 1.7 Comment [1]). The issue here, however, is how lawyers should deal with the dilemma that arises when they realize, in the course of an ongoing representation, that they and the client may have conflicting interests in the matter. In this regard, the ACC overlooks that a law firm's duty of loyalty to its client, as strong as it is, "does not prevent the firm from attempting to defend against client claims" (Chambliss, 80 Notre Dame L Rev at 1748), and that the firm's right to defend itself includes the right to reveal client confidences to the extent reasonably believed necessary "to secure legal advice about compliance with [the RPC] or other law" (RPC rule 1.6[b][4]) or "to defend [the firm] . . . against an accusation of wrongful conduct" (RPC rule 1.6[b][5][i]). Accordingly, the end result of adopting the ACC's position would be to "encourag[e] the firm to withdraw at the first hint of a problem," thereby "limit[ing] the firm's opportunity . . . to mitigate harm to the client" (Chambliss, 80 [*18]Notre Dame L Rev at 1747 [footnote omitted]; see also RFF Family Partnership, 465 Mass at 712-713, 991 NE2d at 1074 [noting that denial of the privilege to in-house consultations may prompt a firm to "withdraw without adequately protecting the client's interests"]). As previously discussed, we think it preferable, for both law firms and clients, to afford consultations with a firm's in-house counsel the protection of the attorney-client privilege, even as against the client, so as to "encourage firm members to seek early advice about their duties to clients and to correct mistakes or lapses, if possible, to alleviate harm" (Chambliss, 80 Notre Dame L Rev at 1724).

(Mike Frisch)

July 1, 2016 | Permalink | Comments (0)

Bankruptcy Attorney Disbarred On Consent

The New Jersey Supreme Court accepted the consent disbarment of an attorney whose conviction was reported by Law360. 

A New York state judge has ordered an 80-year-old bankruptcy attorney to spend 30 days in jail after authorities accused him of stealing more than $950,000 from his former law firm, his lawyer confirmed to Law360 on Thursday.

In a Tuesday sentencing, a Manhattan judge hit Barton Nachamie — formerly of now-defunct law firm Nachamie Spizz Cohen & Serchuk PC — with two 30-day sentences to be served concurrently, according to Nachamie’s lawyer, Paul Bergman of Paul B. Bergman PC. He was also ordered to five years’ probation.

Nachamie of Nassau, New York, was told to pay roughly $430,000 in restitution after facing second-degree felony counts of grand larceny and first-degree felony counts of falsifying business records. Bergman told Law360 on Thursday that his client had already paid $239,000 in restitution and that the $950,000 figure alleged by authorities was inaccurate.

An attorney for Nachamie’s former firm didn’t immediately respond to a request for comment late Thursday.

Nachamie was indicted for stealing hundreds of thousands of dollars from his former firm’s interest on lawyer accounts and operating accounts, Manhattan District Attorney Cyrus R. Vance Jr. said in late September statement.

“Unfortunately, the defendant is the not the first attorney to be prosecuted for this type of illegal conduct,” Vance said.

According to the September statement, Nachamie began stealing money from his former firm in 2006. He allegedly wrote checks in his own name, his wife’s name, the name of his wife’s business, and the name of his personal bank.

(Mike Frisch)

July 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"The Film's In The Can"

The Nebraska Supreme Court has affirmed a conviction for the third time. 

The state investigator in the case had been found to have planted evidence in another case. The court rejected the assertion that he had done so here.

Although there were at least three prosecutors involved in Edwards’ trial, Edwards chose to present the testimony of only one at the evidentiary hearing, who testified that he did not suspect Kofoed of fabricating evidence in Edwards’ case and was not aware at the time of Edwards’ trial that Kofoed was suspected of fabricating evidence in the Stock case. Edwards did not offer any evidence to rebut the prosecutor’s testimony. The district court found that Edwards did not establish that the State knowingly used false evidence to secure Edwards’ convictions.

KEVT 7 Omaha reported on the allegations of evidence planting. 

An interesting issue dealt with the relationship between trial defense counsel and the dirty cop. It was alleged that they were friends and that the relationship created a conflict of interest.

From an earlier opinion

In fact, this record supports Edwards’ contention that  [his attorney] Lefler had a personal relationship with Kofoed. Before trial, Edwards moved to exclude Kofoed’s testimony because of his televised demonstration of blood splatters. In arguing for the motion, Lefler referred to his friendship with Kofoed:

“I’m going to ask the Court to prevent Dave Kofoed, who’s a friend of mine and I like him a ton . . . I’m going to ask you to prevent him from testifying in this particular case as a consequence of the TV demonstration that he gave. . . . . . . . “. . . [W]hat we are worried about for . . . Edwards is that there’s going to be some juror who halfway through the trial is going to remember seeing this TV clip. “And Dave Kofoed’s a great—a nice man, smart guy. And so I’m just worried that halfway through the trial it clicks in some juror’s mind.”

Other evidence in support of Edwards’ contention included statements made by Lefler to Kofoed in a deposition which took place in October 2006, prior to Edwards’ trial, including:

Dave, I always feel awkward interviewing you, crossexamining you, because we’ve become friends. I’ve used you, I’m a special prosecutor, but we both have a job to do and I’m sure you understand that. . . . . . . . And I’m embarrassed to ask this question because we are friends, but this is a murder investigation: Have you before been reprimanded by either the [Omaha Police Department] or the sheriff’s department while you’ve been in their employ?”

Remarkably, when his friend Dave was under investigation himself, he turned to defense counsel Lefler

Lefler testified that before he agreed to represent Kofoed, he considered whether that representation would cause a conflict of interest. Lefler testified that he researched the issue and even reached out to the Nebraska State Bar Association. A member of the Counsel for Discipline advised him that “‘the film’s in the can,’” meaning that Lefler’s representation of Kofoed would not affect Edwards’ case, even though there were still briefs to be written for Edwards on direct appeal. Lefler also explained that it was mainly his cocounsel who wrote the briefs and that she was the one who argued before this court.

After the evidentiary hearing, the district court determined that Edwards’ trial counsel did not operate under a conflict of interest and, therefore, rejected his ineffective assistance of counsel claim.

Cold comfort, I'd say. (Mike Frisch)

July 1, 2016 | Permalink | Comments (0)

Ripe For Reinstatement

The Ohio Supreme Court has imposed a two-year suspension of an attorney convicted of federal tax offenses.

In the complaint, relator alleged that after a two-week criminal trial in the United States District Court for the Eastern District of Kentucky, a jury found that Lawrence had knowingly underreported income from various businesses that he owned in whole or in part for the 2004, 2005, and 2006 tax years. Some of the unreported income came from businesses that were tangentially related to his practice of law—including rental income that he received from other attorneys. Lawrence was convicted in July 2012 of three counts of filing false tax returns in violation of 26 U.S.C. 7206(1) and sentenced to 27 months of incarceration on each count to be served concurrently, followed by a one-year term of supervised release.

The attorney did not contest the charges.

A majority of the court concluded that the sanction be imposed with credit for time served since the attorney's November 2012 interim suspension. Presumably, that conclusion means he can immediately seek reinstatement.

Three justices were not persuaded

O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., dissent and would remand the cause to the Board of Professional Conduct to reconsider the grant of credit for time served under interim suspension.

(Mike Frisch)

July 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Two-Person Partnership Breakup Litigation That Began In 1992 Not Over Yet

The breakup of a two-person law firm well before the turn of the century is still working its way through the District of Columbia courts.

And its not over yet as reflected by a remand ordered yesterday by the Court of Appeals.

After the second trial held in this matter, a jury sided with appellant Sarah Landise and against appellee Thomas Mauro, finding that the two had entered into a partnership to practice law in the District of Columbia, that Ms. Landise was entitled to fifty percent of the partnership’s profits and losses, and that Mr. Mauro breached his fiduciary duties by converting partnership funds. Because the trial court decided that the case was sufficiently complex to merit bifurcation, the court limited the jury to the question of liability and ordered an accounting to determine the damages. Even though the court appointed a special master to conduct a final accounting of the partnership funds in June 2003, that accounting never happened. A string of conflicts and misunderstandings between the parties got in the way of the accounting, and each party blames the other for this failure. The case languished for over a decade before the trial court granted Mr. Mauro’s Motion To Dismiss for Failure To Prosecute in August 2013.

Ms. Landise prevailed here.

The story

This case began in 1992, when Sarah Landise brought suit against Thomas Mauro, alleging breach of an oral partnership agreement, conversion of partnership funds, and breach of fiduciary duty. The complaint alleged that Ms. Landise and Mr. Mauro had formed a law partnership in the District of Columbia, and the complaint requested an accounting of the partnership’s assets. A jury trial was held, at which Mr. Mauro argued that there was no such partnership, and that there could be no partnership because Ms. Landise was not licensed to practice law in the District. See Landise v. Mauro (Landise I), 725 A.2d 445, 445–47 (D.C. 1998). The jury at the first trial sided with Mr. Mauro, finding that Ms. Landise and Mr. Mauro had not entered into an oral partnership agreement, and that Ms. Landise had engaged in the unauthorized practice of law in the District of Columbia. Id. at 446.

A division of this court reversed and remanded for a new trial. Id. at 446– 47. The Landise I court clarified that Ms. Landise’s lack of a license to practice law in the District (Ms. Landise was licensed only in Virginia) did not preclude her claim for breach of partnership against Mr. Mauro, and the court held that— because the evidence of partnership was “overwhelming”—the jury’s confusion about the legal consequences of Ms. Landise’s unauthorized practice might have infected the jury’s verdict...

At trial two

A second jury trial was held, before Judge William M. Jackson, in July 2000. This time it was Mr. Mauro who requested an accounting, while Ms. Landise took the position that the amount of damages was not overly complicated and could be determined by the jury. While Ms. Landise identified eight payments totaling $444,190.33 by Mauro & Landise clients that, she claimed, Mr. Mauro deposited into his personal bank account, Mr. Mauro argued that the alleged partnership actually had more than eighty open cases, and so any calculation of damages would be sufficiently complex to require an accounting.

The matter languished for many years but dismissal was not appropriate

We are mindful, of course, that the partnership in this case dissolved many years ago, and that the difficulty of rendering an accurate accounting in light of this fact informed the trial judge’s decision to “bite the bullet” and dismiss the case. But any questions concerning the feasibility of an accurate accounting—including whether the surviving partnership documents provide the necessary information—are properly left to the special master in the course of performing her duties on remand.

Details of the partnership and its breakup can be found in the court's 1998 decision. (Mike Frisch)

July 1, 2016 in Billable Hours, Law Firms | Permalink | Comments (0)

Kidney Punch

The Pennsylvania Supreme Court imposed a five-year suspension for misconduct in a matter in which he had (relentlessly and incompetently) represented his spouse in a civil case

It is evident that Respondent lacked the requisite knowledge and competence to conduct litigation generally, and filed numerous pleadings, motions and interlocutory appeals both improperly and on baseless grounds, in violation of RPG 1 .1. The most blatant example is Respondent's failure to file post-trial motions after the Breach of Contract trial. His many frivolous filings and bad faith efforts violated RPG 3.1, 3.2 and 3.4(c) by relentlessly abusing the judicial system during and following the Breach of Contract Action. His actions demonstrated his penchant for re-litigating issues that had already been determined during the prior litigations. Respondent's failure to comply with the Civil and Appellate Rules of Procedure and his inability to appreciate legal precedent have caused needless hours and expenses for lawyers, adverse parties and judges. All of the actions initiated by Respondent have been rejected by the Pennsylvania courts, including the Pennsylvania Supreme Court.

Respondent needlessly and baselessly impugned the integrity of two judges during the course of the multiple proceedings, in violation of RPC 8.2(a). He questioned President Judge Kenney's competency in the law: "somebody needs to wake up Judge Kenney!" Respondent also made allusions that Judge Durham was removed prior to the Breach of Contract Action because of improper conduct. In addition to suggesting that these judges were not competent, Respondent sued the Court Administrator of Delaware County in the wrong forum, for merely doing his job...

In examining the record before us, we find multiple aggravating factors. Respondent's actions were not isolated nor relegated to a short period of time. Rather, his misconduct has spanned years. Respondent has continued to display an unrepentant attitude even though no court has yet to agree with his interpretation of the law and facts. The record is devoid of evidence that Respondent has advised his client to accept the court's appellate decisions. His unwavering belief that his version of events is correct has propelled the baseless lawsuits, motions, pleadings and other claims over what Respondent has admitted is his quest to recover his client's $1 ,414.00 expenditure for carpeting. Our analysis of Respondent's behavior leads us to conclude that his ultimate interest is to frustrate the Seller's ability to be granted appropriate relief through the legal system. The record contains no assurance that Respondent intends to cease his relentless, overzealous prosecution of his claims.

During the course of the disciplinary proceedings, Respondent referenced his kidney condition in general terms. He did not present any evidence or factual testimony concerning the effect, if any, his kidney problems and medications had on him. Respondent has not shown that he is entitled to mitigation for his kidney issues. Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989). We do, however, find mitigation in Respondent's lack of previous discipline and his community service.

(Mike Frisch)

July 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 30, 2016

Living Arrangements

The Indiana Supreme Court has ordered a two-year suspension of an attorney convicted at trial of a number of offenses, some of which were affirmed on appeal.

In the current case, Respondent and the Commission propose that Respondent receive a suspension from the practice of law for a period of at least two years, without automatic reinstatement. Viewed by itself, this would be at the low end of the discipline we have imposed in similar cases. We note, however, that Respondent already has been under interim suspension in this matter for over four years, and in conjunction with the parties’ proposed final discipline Respondent will have served over six years of suspension before he becomes eligible to petition for reinstatement. Moreover, a petition for reinstatement would be granted only if he is able to prove by clear and convincing evidence his fitness to resume the practice of law, a burden that likely will be particularly steep given the seriousness of Respondent’s misconduct. See Gutman, 599 N.E.2d at 608. With these considerations in mind, the Court approves and orders the agreed discipline.

The criminal case was decided by the state Court of Appeals.

Four months after Charles “Charlie” P. White was elected Indiana Secretary of State, a Hamilton County grand jury indicted him on seven felonies, including theft, perjury, and voter fraud. The charges arose from White’s conduct while he was a member of the Fishers Town Council and a candidate for Secretary of State; specifically, he purchased a townhome outside his district but kept his town-council position; submitted a form to the Hamilton County Board of Voter Registration that changed his address from his apartment to his ex-wife’s house, which was located inside his district; voted in the May 2010 primary election using his ex-wife’s address; and applied for a marriage license using his ex-wife’s address. Former Marion County Prosecutor Carl Brizzi defended White at trial. A jury convicted White of six of the seven counts, and the trial court sentenced him to one year of electronic home monitoring. His sentence was stayed pending appeal.

White utilized the Davis-Hatton procedure to temporarily suspend his direct appeal and seek post-conviction relief in the trial court. The trial court denied White’s request for post-conviction relief, which alleged, among other things, that Attorney Brizzi was ineffective. White’s reinstated direct appeal and the appeal of the denial of post-conviction relief are now before us.

We divide White’s claims into direct-appeal and post-conviction issues, and we ultimately conclude that three of White’s convictions must be vacated. As the State concedes, two of the convictions violate double-jeopardy principles. As for the third conviction, the perjury charge against White should have been dismissed because it was based on White’s street address, which was not material to his marriage-license application—only the county of residency is material. As for White’s post-conviction claims, we conclude that Attorney Brizzi was not ineffective. We affirm in part, reverse in part, and remand with instructions.

IndyStar reported on the criminal case

White was convicted in February 2012 of six Class D felony charges, including voter fraud, perjury and theft. The charges stemmed from his residency while he served on the Fishers Town Council. Prosecutors said he voted and took pay as a council member of a district in which he no longer resided. White claimed he was living with his ex-wife, which was within the council district. But evidence presented during his trial in Hamilton Superior Court indicated that he had been living with his then-fiancee in a new townhome outside the district.

(Mike Frisch)

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

Wednesday, June 29, 2016

A Badly-Chosen Godfather

The South Carolina Supreme Court has disbarred a misappropriating attorney

Respondent mismanaged and misappropriated $171,392 from three trust accounts for which he served as trustee, using the stolen funds to operate his law firm and to support a lifestyle that he could not otherwise afford. We note Respondent is the uncle and godfather of the beneficiaries of the trusts from which he stole money.

There were a number of other violations such as

Respondent prepared a will for a client, and after the client's passing, $18,000 cash was found in the client's home and delivered to Respondent to hold in trust. Respondent converted those funds, and none of the funds remained in trust at the time of Respondent's interim suspension.

Restitution of nearly a quarter of a million dollars was order.

Respondent has admitted theft that has resulted in significant harm to his clients and failed to participate in the disciplinary investigation. At oral argument before this Court, Respondent requested that his "license be taken."Because of the prevalent nature of Respondent's theft and wrongdoing, we find Respondent committed misconduct in the respects identified by the Panel...

In light of Respondent's pervasive misconduct, Respondent is hereby disbarred, retroactive to the date of his interim suspension. Within sixty days of the date of this opinion, Respondent shall enter into a monthly payment plan with the Commission on Lawyer Conduct to pay restitution in the amount of $244,722.22.

(Mike Frisch)

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


An attorney's  taste for child pornography led to his conviction and resulting disbarment by the New York Appellate Division for the Second Judicial Department

On December 29, 2004, the respondent registered with Yahoo! Groups under a fictitious name. Between December 2004 and August 2007, the respondent maintained two email addresses from which he accessed Yahoo! Groups. From on or about August 11, 2005, through March 2007, the respondent posted, among other things, photos, and "jpg files" containing child pornography and child erotica on a Yahoo! Group. He admitted that for purposes of this stipulation, child pornography includes depictions of pre-pubescent children engaging in sexual acts including genital penetration. Between March and July 2007, the respondent actively communicated with others regarding images of child pornography, posting, transmitting, and exchanging images.

In July 2007, the Los Angeles Regional Internet Crimes Against Children Task Force (hereinafter the LA Task Force) obtained the billing information related to the respondent's IP address. Subsequently, activity-monitoring software conclusively identified the respondent as an LA Task Force suspect. On August 2, 2007, officers of the Los Angeles Police Department (hereinafter LAPD) Juvenile Division obtained and executed a search warrant at the respondent's home. When the respondent was made aware that the LAPD believed that some member of his household was viewing, downloading, uploading, and exchanging child pornography, he responded, "It's me and nobody else." The respondent directed the search to the computer in the home office, and indicated that there would likely be evidence of child pornography on the other computers in the house. The respondent also admitted that he collected printed material or DVDs which he kept in an unlocked briefcase in the trunk of his car. The detectives discovered a black nylon briefcase in the trunk of the respondent's car, which contained 215 printed images, many of which depicted images that constitute child pornography. A second black briefcase was discovered behind the driver's seat, which contained an additional 92 printed images of child erotica and/or child pornography.

On August 2, 2007, the respondent was placed under arrest, and his home computer and an attached hard drive were retained by a Special Master. The LA Task Force also conducted a forensic examination of the desktop computer on the respondent's desk at the law offices at which he was employed, and the hard drive was retained by the Special Master. A post-arrest review of the property recovered from the respondent's residence and work address determined that it contained, among other things, 307 color and black/white photos of child pornography and 255 videos of child pornography.

On October 14, 2008, a criminal complaint was filed against the respondent in the Superior Court of California, County of Los Angeles, in an action entitled People v Robert Fishman , Case No. BA335615, charging him with seven felony counts. On December 19, 2008, the respondent entered a plea of nolo contendere to two counts of possession of child pornography in violation of California Penal Code § 311.11(a). That same day, the Court accepted the respondent's plea and he was convicted. The respondent failed to report his conviction to the California State Bar.

The foregoing stipulation was approved by the California State Bar Court and the respondent was transferred to involuntary inactive status by order dated October 20, 2010. By order filed on February 18, 2011, the Supreme Court of California disbarred the respondent in that state, and struck his name from the roll of attorneys.

The court here imposed reciprocal discipline. (Mike Frisch)

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

How The West Was Lost

An attorney who never barred in Colorado but nonetheless disbarred there for unauthorized practice both in Colorado and Wyoming suffered the same reciprocal fate at the hands of the Oklahoma Supreme Court.

He was also a CPA 

Respondent became licensed to practice law in Oklahoma in 1991. He also holds a CPA license in Oklahoma, Colorado, and Wyoming. Respondent was never licensed to practice law in Colorado. In 2010, he and Loni Woodley, also a CPA, entered into a partnership, Auer & Woodley CPA's, to acquire CPA firms in other states. They first purchased two accounting firms in Colorado Springs. Most of the clients in the firms already had legal counsel who had set up their businesses or prepared their estate planning documents. They later asked CPA's from whom they had bought the accounting firms to recommend local counsel who could meet with them and their clients regarding their tax and estate planning issues. Auer testified that he met with clients and worked with outside counsel to provide legal work for their clients in the summer and early fall of 2010.

He had formed a partnership with a Colorado attorney  named Doherty.

Doherty testified at the [Colorado] PRT hearing. He stated that at the time they formed Auer & Doherty LLP, he was told that Auer would become licensed to practice law in Colorado "imminently." He inquired about the status of Auer's application in Colorado "multiple times" and was told it was imminent. We note that, at the same hearing, Auer testified that he did not apply for reciprocity with the state of Colorado until after he and Doherty ended their partnership.

Doherty testified their intended arrangement would be to create a law firm to work in proximity to the accounting firm "and bring synergy that way." He said business clients often need both accounting and legal advice, creating an overlap. However, he said until Auer was licensed, all clients needing legal work had to go through him, and "as the bottom line, any document that went out the door from the law firm had to have my blessing." After several months, he drafted a memo to Auer (Complainant's Exhibit 12) regarding his concerns about Auer's promises and the possible unauthorized practice of law. He said Auer's Colorado law license was never issued, and Auer was marketing their services "to anybody with a pulse." He was never in the office and was no help at all. Doherty testified he asked the bookkeeper to see the billing statements and discovered Auer was billing for legal services through the accounting firm instead of the law firm, depriving Doherty of funds that were to be split by Auer & Doherty. He said the entries of billable hours were "mostly" for legal work, such as "prepared estate plan," and "drafted contracts." He testified that after this discovery he terminated his relationship with Auer and "walked out the door." Auer and Doherty reached an agreed settlement upon ending their business relationship.

And in the Cowboy state

In Wyoming, in which Auer held a CPA license, there is evidence of his unauthorized practice of law in Cheyenne, where he acquired an accounting firm. He testified he received a cease and desist letter, dated April 5, 2013, from the Unauthorized Practice of Law Committee of the Wyoming State Bar, advising him to cease further activity relating to the unauthorized practice of law. The letter related to a flyer used to advertise a seminar he was doing at his accounting firm, Auer, Woodley & Ostlund, in Cheyenne. The cease and desist letter contained a cover letter to Ms. Erin Sokol, legal counsel for Loni Woodley, advising her the letter had been sent to Auer, apparently as a follow-up to a complaint filed. The flyer in question advertising the seminar listed Auer as an attorney, although it did not denote the state in which he was licensed. The flyer contained the language, "Here's your golden ticket for a free consultation with David Auer, Attorney." The cease and desist letter referenced the "maintenance of an office in Wyoming as well as various activities conducted by you, within the State of Wyoming" and stated that "it was the unanimous consensus of the committee that in fact you have engaged in unauthorized practice of law within the State of Wyoming by giving legal advice and holding yourself out as licensed to practice in this state. You are not licensed to do so."

After that letter was admitted as evidence, Auer then stated he had not held himself out as a Wyoming lawyer. However, he then admitted he had testified previously that Auer & Brown's billing statements for legal services showed a Cheyenne, Wyoming, address. Moreover, he admitted he did engage in the practice of law in Colorado by drawing up legal documents and giving clients legal advice "to the extent that it involved the tax issues that - you know, that I - that the client was asking me to advise him in, that's correct."

In Oklahoma, he actually did have a law license. No longer.

We find there was overwhelming evidence before the Colorado disciplinary tribunal to find that Mr. Auer committed the unauthorized practice of law in Colorado and in Wyoming, in violation of ORPC Rule 5.5(a). The disciplinary authority of this state over its attorneys does not cease when the attorney goes to another jurisdiction. Although Mr. Auer tried to explain his conduct as merely an overlap between his CPA license and the practice of law, it is clear to this Court that he engaged in the practice of law in Colorado and in Wyoming without a license. He used other lawyers and CPA's to acquire the clients for his practice. He was not honest with the lawyers with whom he associated. Clients and firms were damaged by his actions.

(Mike Frisch)

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

Discipline For Thefts From Mother

The Oklahoma Supreme Court accepted the resignation of a convicted attorney

The Record submitted by the Oklahoma Bar Association reveals that The District Attorney for Tulsa County charged the respondent with the crime of Financial Exploitation of an Elderly Person, a felony. Count 1 alleged that between June 2013, and January 2014, the respondent financially exploited her mother, born April 3, 1938, by writing checks from her mother's bank accounts and using her mother's credit cards without permission. An affidavit from a Tulsa Police Department detective alleged that the amount taken by the respondent was $63,985.44. The allegation would constitute violations of Rule 1.3, RGDP, 5 O.S.2011, ch. 1, app. 1-A, Discipline for Acts Contrary to Prescribed Standards of Conduct; and Rules 8.4(b) and 8.4(c) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011 ch. 1, app. 3-A, (Amended by order of the Supreme Court, 2007 OK 22; effective January 1, 2008) Misconduct, which includes committing a criminal act that reflects adversely on the lawyer's honesty, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

The respondent acknowledges that she is aware that a Notice of Felony Plea of Guilty and Deferment is currently pending before this Court in State ex rel. Oklahoma Bar Ass'n v. Kathryn Kimberlee Dickson, OBAD 2091, SCBD 6375, and that these proceedings were filed pursuant to Rule 7 of the RGDP. The respondent entered a plea of guilty to the charge on March 14, 2016. On that date, she received a six years and six months deferred sentence, was placed on supervised probation for two years, and ordered to make restitution of $15,700.00. The trial court also ordered her to pay court costs, victim's compensation assessment, and any applicable fines.

Aa attorney who resigns can seek reinstatement after five years.  (Mike Frisch)

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

Tuesday, June 28, 2016

Facebook Campaigning May Draw Disciplinary Sanction; Attorney Also Charged With Hateful Comments

The West Virginia Record has a story on an ongoing bar discipline case

The state Lawyer Disciplinary Board has asked the West Virginia Supreme Court of Appeals to disbar a Morgantown attorney it claims violated the Rules of Professional Conduct.

Edward R. Kohout faces four counts with several charges of rule violations under each of them, according to the amended formal statement of charges filed Dec. 11 with the state Supreme Court.

 The West Virginia Judicial Investigation Commission received a complaint on Sept. 10, against Kohout. The complaint was predicated on several Facebook postings on Kohout’s campaign for Judge of the 17th Judicial Circuit account, in which he personally solicited campaign donations.

On Nov. 20, the JIC determined that Kohout was engaging in serious violations of the Code of Judicial Conduct, according to the statement of charges.

The JIC concluded that Kohout engaged in a pattern of egregious and notorious verbal abuse that is likely to cause irreparable harm to others and on the judicial system.

“Of critical importance, because the effect of his wrongful activity is unlikely to cease during the pendency of the 2016 judicial campaign, the only procedural method available to stop him is injunctive relief from the Supreme Court of Appeals of West Virginia,” the statement of charges reads.

The JIC unanimously determined that probable cause existed to formally charge Kohout with violations of the West Virginia Code of Judicial Conduct and the West Virginia Rules of Professional Conduct.

Kohout, who has been practicing law in West Virginia since 1987, filed pre-candidacy papers in June 2015 for Monongalia circuit court judge. In July 2015, a Facebook page was made for the campaign and the majority of the posts on the site referred to his judicial campaign.

On Sept. 2, counsel for the JIC informally inquired about an undated Facebook solicitation and Kohout responded that the solicitation was accidentally posted to his personal page and had been corrected and that no one had sent funds. After he was questioned about the inappropriate solicitation, Kohout removed it and assured JIC counsel that he would refrain from personally soliciting campaign contributions in the future.

After the ethics complaint was filed, revealed two more solicitations from July and August, Kohout responded that he had no role in the two posts soliciting funds and that there was no functional difference in his committee putting a posting on the Facebook page asking for donations than what other candidates were doing.

While Kohout denied many any personal solicitations, he never said who made the posts and JIC’s counsel made the point to the Commision that the person who has a Facebook page is normally the only one who can access it and make posts unless that person gives someone else privileges by either providing them with the e-mail account and password or assigning them administrative rights.

In the posts, Kohout speaks in the first person and one of the posts was made after he became the sole administrator of the campaign Facebook page.

“It is for these reasons that the JIC has concluded that Edward R. Kohout has not been truthful in his representation to our counsel,” the statement of charges reads.

The second charge against Kohout involves his campaign bank account. The account was created on June 24, 2015, for “Ed Kohout for Judge” at the Morgantown branch for BB&T. Kohout gave $20 to open the account and the balance has remained at $20 with no deposits or withdrawals from its inception through Oct. 30.

A judicial candidate cannot be on the signature card, according to JIC Advisory Opinion 2/15/95. Kohout also declined to address the makeup of his campaign bank account in his Nov. 2 response to the ethics complaint, despite specifically being requested to do so by JIC counsel.

The third charge against Kohout involves maintaining dignity appropriate to judicial office. Between July and November, Kohout made derogatory and hateful comments, including describing government receptionists as “dumbass coloured women” and stating that “too many women taking men’s jobs trying to be men when they oughta be home taking care fo [sic] the kids.”

He also described people of middle eastern descent as “Ahab,” “Arab,” “camel bangers” and “ragheads.”

“In yet another supercilious post he said that ‘many black men beat their women’ and ‘so many run off’ leaving ‘single while women and their white parents to raise the babies.’ He also said that ‘white women who date black men are trash and ruined.’”

On Jan. 15, Kohout and the Judicial Disciplinary Counsel entered into a written agreement in which Kohout agreed to never again seek judicial office by election or appointment in West Virginia, according to a Feb. 5 stipulation and recommended discipline document.

In a March 15 order from the Judicial Hearing Board, the board recommended that Kohout receive a public censure for his violations; that in lieu of a fine, he be ordered to pay the ultimate costs of the investigation and prosecution in the amounts of $3,307.95 as of Jan. 28 and at a rate of $200 per month beginning 30 days after the conclusion of proceedings; and that Kohout be barred from ever seeking any judicial office again.

W.Va. Supreme Court of Appeals case number: 15-1190

The attorney had been suspended by the West Virginia Supreme Court of Appeals for two years in 1995.

The misconduct involved, in part, his failure to disclose to the University of Pittsburgh Law School that he had been suspended from the Cumberland School of Law of Samford University as a result of an accusation of selling stolen law books. He also had failed to disclose the suspension in his bar admission application. (Mike Frisch)


June 28, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

The Firm that Wasn't

A disciplinary decision issued today by the Ohio Supreme Court is summarized (with links) by Dan Trevas

The Ohio Supreme Court today indefinitely suspended a Cincinnati attorney based on complaints from several clients, improperly sharing fees with an unauthorized legal referral service, and falsely representing that he was a partner in a law firm after the firm dissolved.

In a 4-3 per curiam decision, the Supreme Court indefinitely suspended Robert H. Hoskins and set three conditions he must meet before the Court would consider reinstatement. Prior to his indefinite suspension, the Court had placed Hoskins on a 60-day suspension in April 2015 after he was suspended from the practice of law in Kentucky.  Although Hoskins claimed that he was later reinstated in Kentucky, he did not apply for reinstatement in Ohio. Therefore, his suspension remained in effect.

In February 2014, the Cincinnati Bar Association filed a complaint against Hoskins with the Board of Professional Conduct alleging multiple violations of the rules governing Ohio attorneys. The bar association alleged he neglected client matters, failed to reasonably respond to clients, did not provide competent representation, engaged in dishonest conduct, and committed other infractions.

Shared Fees for Social Security Disability Referrals
Hoskins contracted to accept Social Security disability cases from Citizens Disability, a Massachusetts company that describes itself as a national disability advocates group. Hoskins testified he paid the organization half of the 25 percent contingency fee he received from the cases referred to him and had a written agreement to pay the firm up to $3,000 per case for advertising, screening, and other case assistance.

Ohio rules allow a lawyer to share legal fees with a nonlawyer in limited circumstances, including with a nonprofit organization that recommends employment of a lawyer. The nonprofit must meet certain standards to qualify for fee sharing, and Citizens Disability had not complied with Ohio regulations for a lawyer-referral service.

Hoskins argued that his arrangement was permissible because Citizens Disability is operated by an attorney and his actions were not directed by nonattorneys. However, the board found Citizens Disability did not qualify under any rules that would allow the fee-sharing, and that Hoskins violated the rule for paying to be recommended by an unauthorized referral service.

False Registration Implied Partnership in Firm
The board also found Hoskins violated  rules  prohibiting lawyers from making false or misleading claims about their services or implying they practice in a partnership or other organization when it is not true. Hoskins practiced for a time in the firm of Hoskins & Muzzo LLP, but the firm was dissolved in 2011. Hoskins did not update his attorney registration to reflect the change, and admitted to the violation.

Infractions for Improper Handling of Client Matters
The bar association’s complaint also alleged violations for five client matters including his misrepresentation of a client attempting to file Chapter 11 and Chapter 13 bankruptcy.

The bankruptcy court found his filings contained multiple deficiencies, and when it rejected the Chapter 13 filing Hoskins moved to reopen the case. He then attempted to withdraw the request without informing the client. Hoskins failed to appear at two hearings the court scheduled, and it subsequently ordered him to pay a $500 sanction before June 2013. He did not actually pay until February 2015, several months after disciplinary hearings against him had started.

The board found the client made clear his objective for filing bankruptcy was to avoid foreclosures on his properties and he had no knowledge of Hoskins’s move to not reopen his case after the initial filings were rejected. When Hoskins failed to appear at the hearings, the client filed handwritten motions in court asking it to consider his bankruptcy and stop the foreclosures sales.

Two other clients filed complaints against Hoskins for his handling of their marriage dissolutions. In one case, he agreed to draft orders to divide the martial retirement assets, but he failed to do so and disregarded numerous requests by the client to complete them.

In another matter, a client paid him $1,275 to dissolve a marriage, but before Hoskins completed the necessary documents, the client discharged him and requested a billing statement and refund of any unearned fees. Hoskins did not provide either, and failed to respond to a later request for a full refund. At his disciplinary hearing in July 2014, he delivered a $1,500 refund check to the client that was not drawn from his required client trust account. He admitted he did not have a client trust account at the time he accepted the client’s money.

Misrepresentations to Clients and Court
Hoskins also failed to attend a hearing in Adams County Common Pleas Court on behalf of a client, alleging he had a scheduling conflict with a hearing in Indiana. His office arranged to send another attorney to the Adams County hearing where the judge continued the case and requested documentation of Hoskins’s scheduling conflict. Hoskins had learned the morning of the hearing that the Indiana hearing was postponed, and he did not inform the Adams County judge of that when providing the requested information.

When contacted by disciplinary investigators, Hoskins implied the attorney attending the hearing met with the client, but the claim was contradicted by the judge and the other attorney who had not met the client or had information about his case prior to appearing in court.

Hoskins was also found to have made misleading statements during disciplinary proceedings regarding a case in which he represented a client in a personal-injury case arising from an automobile accident.

At the sole meeting the client had with Hoskins, she gave him photographs of her car and correspondence from the other driver’s insurance company. In August 2013, the insurance company sent the client a letter hoping to resolve the matter in 45 days, but Hoskins did not contact the company until after 45 days, and then failed to respond to the client’s messages regarding the proposed settlement until January 2014. The client terminated Hoskins’s representation and asked for her file, which included the accident photographs.

She did not receive the file and the client’s new attorney contacted Hoskins for the file, but Hoskins never sent the file or photographs. He did not take action until the bar association relayed that the client filed a grievance against him. Hoskins told the bar association that he had sent the new attorney the information in August 2014, but did not actually send the information until December 2014.

Board Recommends Indefinite Suspension
When considering the appropriate sanctions, the board found there were no mitigating factors that would lead it to reduce any punishment it considered. It did find several aggravating factors, including that Hoskins had a prior disciplinary record, engaged in multiple counts of misconduct, refused to acknowledge the wrongful nature of his actions, submitted false statements during disciplinary proceedings, and failed to cooperate in the disciplinary process.

In response to the board’s recommendation of an indefinite suspension, Hoskins acknowledged he made some mistakes, but stated his conduct was not indicative of his usual practice and that a fully stayed 12-month suspension was the appropriate sanction.

Court Finds Hoskins Disobedient and Dishonest
The Court stated it found that “Hoskins does not appreciate the magnitude of his own misconduct,” and that his misdeeds touch virtually every aspect of his law practice from how he attracts clients to how he conducts himself with the courts handling his client’s legal matters and how he conducts himself with the courts handling his own legal issues.

“His misconduct demonstrates a disturbing pattern of neglect and an ongoing failure to comply with established rules and procedures — not to mention a flagrant disobedience of court orders and a troubling propensity to engage in dishonesty when his actions are questioned,” the opinion stated.

The Court also noted that while this case was pending, the Court also found Hoskins in contempt of his April 2015 suspension, having received evidence that he continued to practice law in several matters while under suspension. In one instance, he created and used an email account in the name of a former colleague and impersonated the colleague to participate in legal matters.

The Court required that Hoskins’s potential reinstatement be conditioned on his completion of a continuing-legal-education course focused on law-office management, obtaining a passing score on the Multistate Professional Responsibility Examination, and payment of the costs of the disciplinary proceeding. 

Justices Paul E. Pfeifer, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined the opinion.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, and Judith Ann Lanzinger dissented, stating they would disbar Hoskins.

2015-1003. Cincinnati Bar Assn. v. Hoskins, Slip Opinion No. 2016-Ohio-4576.

Video camera icon View oral argument video of this case.

(Mike Frisch)

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

Monday, June 27, 2016

Attorney On Parole Reinstated In New Jersey

The New Jersey Supreme Court has reinstated an attorney suspended as a result of a series of drug-related offenses.

The Office of Attorney Ethics had opposed reinstatement because the petitioner remains on criminal parole supervision. had reported on the criminal matters

Rowek pleaded guilty to defrauding a drug test; possession of Percocet; possession of gamma-hydroxybutyrate, or GHB, a strength enhancer and aphrodisiac; possession of Vicodin; and driving under the influence of drugs, after his arrests in four incidents from 2010 to 2013. Other charges, including heroin and methedrine possession, were dismissed under a plea agreement.

 He must submit to random drug tests.

The order here instructs the OAE Director to present to the Disciplinary Review Board "any conditions limiting reinstatement of suspended attorneys based on probation and parole status" at the time of the suspension recommendation. (Mike Frisch)

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