Friday, December 23, 2016

A New Hope

The trend that gives me the most hope for the future of the District of Columbia bar discipline system has been the recent upswing in cases where the Board on Professional Responsibility promptly issues a short summary report adopting the findings and conclusions of a hearing committee.

The BPR did precisely that on December 21 in a case involving intentional misappropriation and disbarment

The Hearing Committee found ample evidence of intentional misappropriation in the case of Jean Marie Sigmou, who was involved in an automobile accident on or about September 8, 2009. Respondent received a total of $7,500 in insurance settlements in Mr. Sigmou’s case. He paid $2,341 to medical providers, and gave Mr. Sigmou a check for $2,659, which left only $2,500 remaining from the insurance checks. However, before Mr. Sigmou cashed his check on March 9, 2010, Respondent withdrew $4,600 from his trust account ($800 on January 13; $2,900 on January 21; $300 on February 22; and, $600 on March 3). As a result, there were insufficient funds in the trust account when Mr. Sigmou cashed his check, resulting in an overdraft. Thus, Respondent misappropriated funds due to Mr. Sigmou...

In a letter to Disciplinary Counsel, Respondent admitted that this overdraft was a result of his “tampering” with the trust account and that he had no excuse for his conduct, and he sought mercy. While his letter does not explain precisely what Respondent means by tampering, read in the context of his failure to offer any justification for the overdraft, it is clear that Respondent was acknowledging that he intentionally took money out of the trust account, knowing that such a withdrawal was not permitted. Thus, Respondent’s misappropriation was intentional.

For these and other reasons set forth in the Hearing Committee’s Report and Recommendation, which is attached hereto and adopted and incorporated by reference, we recommend that Respondent be disbarred, the sanction mandated by Addams.

Timeline: Hearing committee report issued October 26, 2016; BPR report in less than two months. 

This sudden outbreak of efficiency and common sense (which may well be the direct result of a long overdue  change of leadership in the BPR's office) was authored by non-attorney board member David Bernstein.

Mr. Bernstein was an ideal non-attorney hearing committee member who had the guts and intelligence to disagree with the attorney members (and write excellent dissents, as reported here).

His elevation to the BPR is also a hopeful sign of potential progress.

The case is In re Peter Njang.

The Yelverton case - in which Mr. Bernstein dissented - has an interesting history.

The attorney represented an alleged victim who testified at a criminal bench trial that resulted in an acquittal. The attorney frivolously (a little thing called double jeopardy and another little thing called lack of standing) sought reconsideration and then appealed in the District of Columbia Court of Appeals.

The court referred both Yelverton and the criminal defense attorney for a bar investigation

[T]he conduct of counsel for both appellant . . . and cross-appellant . . . raise serious concerns as to the propriety of actions taken and judgment exercised by both and the matter is hereby referred to Bar Counsel for investigation in that regard.

On return, the court found that the course of conduct resulted in Rules 3.1 and 8.4 violations but not  breaches of duties to the client. 

The attorney members of the hearing committee had found no violations with a dissent by Mr. Bernstein. The BPR found misconduct a recommended a 90-day suspension with fitness. The court reduced the suspension to 30 days but agreed with the fitness requirement.

Yelverton did not serve his own cause well by barraging the court with pleadings even after he was ordered sua sponte to stop.

The court also sua sponte ordered respondent to stop submitting motions and pleadings in this case without leave of the court. Subsequent to that order, respondent has filed additional submissions (most seeking leave) to remand this case to the Hearing Committee, to give notice of his reservation of constitutional claims for resolution by the U.S. District Court, to provide citations to supplemental authority, to request that the court take judicial notice of various proceedings in other courts, and to refer a new matter, an order of the U.S. District Court, to the Hearing Committee for an initial determination of the facts he disputes in that order. Respondent‟s motions have been either returned for failing to comply with the December 13, 2013, order or denied.

He also moved to recuse two Bar Counsel attorneys and sued one of them in federal court in an effort to enjoin the disciplinary proceedings. (Mike Frisch)

December 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 22, 2016

Florida Judges May Attend Inauguration

An opinion from the Florida Judicial Ethics Advisory Committee


1. May a judge attend the 2017 Presidential Inauguration?

ANSWER: Yes, as long as no funds are paid to a partisan political organization.

2. May a judge attend the Florida Inaugural Ball being hosted by the Florida State Society?

ANSWER: Yes, as long as no funds are paid to a partisan political organization and attendance is not limited to members of one partisan political party.

The Committee believes that mere attendance at any particular presidential inauguration does not violate Canon 7. Attendance at a presidential inauguration does not amount to a public endorsement or an implicit statement of support for a candidate for public office or a particular political party. Nor does it constitute attendance at a political party function. Rather, a presidential inauguration is open to members of all political persuasions; it is a national celebration for the entire country. See Fla.JEAC Op. 12-03 n.3. Indeed, it is implicit in the intended peaceful transition of power in this country that citizens of all political persuasions accept the election of the prevailing candidate. Celebration of the election of any presidential candidate should not therefore be deemed to be inappropriate political activity, even after a campaign season marked by robust and divisive partisan political activity.

In making arrangements for and attending the inauguration, however, the judge should be careful not to otherwise violate Canon 7 or any other provision of the Code. For example, the judge may not make payments to a political organization in order to obtain premium seating at the inauguration. Simply put, the judge must at all times avoid inappropriate political activity or the appearance of impropriety, and shall uphold the integrity and independence of the judiciary. Fla. Code. Jud. Conduct, Canons 1, 2, and 7.

With respect to attendance at the Florida Inaugural Ball, the same prohibitions apply. The judge states that the Florida Inaugural Ball is being hosted by the Florida State Society. The Committee has no reason to believe that the Florida State Society is a partisan political organization or that the Florida Inaugural Ball is a political party function. Ultimately however, it is the responsibility of the judge to make reasonable and sufficient inquiry to assure that any payment being made, either by the judge or on the judge’s behalf, to attend the Florida Inaugural Ball involves no funds being paid to a partisan political organization, and that attendance at the Ball is not limited to members of one partisan political party.

(Mike Frisch)

December 22, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Mediator Charged With Failure To Disclose Potential Conflict Of Interest

The Michigan Attorney Grievance Commission has filed charges against an attorney admitted in 1982.

The charges are somewhat unusual in that they involve an alleged conflict of interest in the attorney's  role as a court-appointed mediator. 

The attorney has served as Chair of the State Bar Family Law Section and as chair of the Family Mediation Counsel - Michigan.

The charges allege that the attorney was "social friends" and "professional colleagues" with the wife's counsel and that she had a standing invitation to stay at counsel's Florida home.

When opposing counsel inquired

Respondent knew or should have known she was not providing Attorney Zanolli with complete or accurate information regarding her relationship with Attorney Weiner, and specifically had omitted the information that she had a standing invitation to stay at Attorney Weiner's Florida home.

The complaint alleges that the attorney entered a series of orders while planning (and not disclosing) two Florida trips

Respondent did not inform Mr. Hartman or his [new] attorney, Barbara Smith, that Respondent had travel plans to stay at Attorney Weiner's Florida home with Attorney Weiner on February 23, 2011.

She continued to mediate  the interpretation of the settlement agreement reached by the parties but

Respondent did not inform Mr.Hartman or his attorney, Attorney Smith, that Respondent had travel plans to stay at Attorney Weiner's Florida home with Attorney Weiner on February 23, 2011...

During the February 18, 2011 conversation, Respondent informed Attorney Smith that she had travel plans and, in response to Attorney Smith's inquiries, revealed, for the first time, her travel plans to stay at Attorney Weiner's Florida with Attorney Weiner...

On February 23, 201 1 , Respondent and her husband traveled to Attorney Weiner's home, where they were joined by Judge Martha Anderson and her husband.

While staying at Attorney Weiner's Florida home with Attorney Weiner, Respondent was sent letters from Attorney Weiner regarding the Hartman divorce.

The attorney thereafter refused to remove herself from the case

On March 2, 2011 , Mr. Hartman, through counsel, filed a motion to remove Respondent as the arbitrator for the remaining issues, to vacate the arbitration awards, and to set aside the Settlement Agreement.

The judge did not vacate the settlement took took over responsibility for the remaining issues. (Mike Frisch)

December 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)


The Illinois Administrator has charged an attorney with a breach of confidentiality in connection with a former client.

The client

Respondent and John Quincy Adams IV ("Adams"), agreed that Respondent would represent Adams in criminal and traffic matters in Monroe County, Illinois, where Adams was charged with unlawful possession of less than five grams of Methamphetamine, DUI and illegal transportation of alcohol.

The retainer agreement

"Client agrees to make all matters of said representation confidential between client(s), his/her agents, assigns and principals and to refrain from reporting any phase of said representation to any external agency including but not limited, to the Missouri Bar, ARDC etc.";

When the client sought to terminate him, it is alleged

Respondent filed, as a matter of public record, an "Answer" to Adams’ Motion to Dismiss Counsel in cases 2015 CF 52 et. al. Respondent’s "Answer" consisted of a two-page letter, addressed to Adams and also copied to the ARDC. The letter is attached as Exhibit 1.

In the letter, Respondent stated inter alia:

  • that Adams had a "horrible criminal past" and a "violent criminal past";

  • that Adams had been "arrested and/or convicted in Missouri at least fourteen times";

  • that Adams "wanted to bribe the court in some manner";

  • that Adams was a "paranoid ingrate and miserable con man who tries to blame everyone else but yourself for YOUR misdeeds TO WHICH YOU CONFESSED" (emphases in original);

  • that Adams was in "constant breach of the "Non-Disclosure" provisions of your contract with me".

The charges

  1. entering into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before the Illinois Attorney Registration and Disciplinary Commission, by conduct including requiring Adams to sign the retainer agreement described in paragraph 2, above, and by informing Adams that he was in "constant breach" of the agreement described in paragraph 2, above, in violation of Rule 8.4(h) of the Illinois Rules of Professional Conduct (2010); and

  2. improperly revealing information relating to the representation of a client without informed consent, by conduct including disseminating and filing the letter, attached as Exhibit 1, in cases 2015 CF 52 et. al., in violation of Rule 1.6(a) of the Illinois Rules of Professional Conduct (2010).

(Mike Frisch)

December 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Unappealing Case

Disbarment has been imposed by the Washington State Supreme Court of an attorney who wrote himself into an elderly client's will

A hearing officer for the Washington State Bar Association Office of Disciplinary Counsel (ODC) found that attorney Donald Peter Osborne committed five violations of the Rules of Professional Conduct (RPC) because of events surrounding a will he drafted for a sick, elderly woman that made him the residual beneficiary of her $600,000 estate. Following a disciplinary hearing, the hearing officer recommended disbarment. Osborne did not appeal to the Washington State Bar Association Disciplinary Board (Board).

Since Osborne did not appeal, the Board considered whether to order sua sponte review under the Rules for Enforcement of Lawyer Conduct (ELC). Here, the rules provide, "The Board should order sua sponte review only in extraordinary circumstances to prevent substantial injustice or to correct a clear error." ELC 11.3( d). The Board declined sua sponte review. After sua sponte review was declined, Osborne filed a notice of appeal to this court. We issued an en bane order limiting the scope of review in this case to whether the Board was required to order sua sponte review under ELC 11.3( d). Osborne asks us to decide whether the hearing officer's recommendation of disbarment was unjust or clear error. He also makes several other arguments, but they are beyond the scope of review we granted.

Since the hearing officer's recommendation of disbarment was neither unjust nor clear error, we hold that the Board was not required to order sua sponte review. Additionally, after conducting our own independent review of the record, we find no reason to depart from the hearing officer's recommendation. We affirm the hearing officer's recommendation to disbar Osborne from the practice of law.

The client found the attorney after her husband had died and granted him power of attorney

Hancock consulted with Osborne about revising her 2003 will. No one else was present for their conversation. Osborne directed his assistant, Jean Phillips, to prepare the will based on his handwritten notes. The primary difference between the 2003 will and the 2009 will was that charities were no longer the residual beneficiaries of her estate; instead, Osborne was named as the residual beneficiary. The residue included her home, valued at $600,000. Hancock executed the will on October 14, 2009. It bore witness signatures of Phillips and Elaine Kerns-a person that Phillips admits was not actually in the room to witness Hancock's signing. Phillips has never seen or met Elaine Kerns. Hancock died 13 days after executing the revised will. Two days after, Osborne sought to probate the 2009 will and had himself appointed as personal representative of Hancock's estate.

The relationship between Osborne and Hancock was described at Osborne's later attorney discipline hearing. Osborne admitted that he was not related to Hancock either by blood or marriage. However, Osborne testified about their friendship, stating that he checked on her at her home between 2003 and 2009. He said they exchanged recipes and would socialize in her back yard. He admitted that no one else was present for these visits. He did not corroborate his testimony regarding their friendship with any evidence or witnesses. After she became ill, Osborne began taking care of her home and doing her laundry. 

Prior to the 2009 will, the [neighbors and friends] Spencers had never seen Osborne at Hancock's house. Greer also testified that he had never seen Osborne at Hancock's home until after she became ill. Several witnesses testified at the hearing regarding their long friendships with Hancock, but none of them had heard of Osborne. For instance, Toni Grandaw, who had known Hancock for over 50 years, testified that she socialized with Hancock regularly. The two discussed Hancock's friends like the Spencers, her daughter and family, and financial and legal matters. However, Hancock had never mentioned knowing Osborne to Grandaw until she was hospitalized. Hancock told Grandaw that she wished to change her will, but Grandaw was "flabbergasted" that Hancock devised her estate to Osborne since Hancock never previously mentioned him. 

The attorney eventually was removed as personal representative and paid $200,000.

The court here concluded that the Board was not obligated to conduct a sua sponte review when the attorney did not appeal.

Justice Wiggins

concur in the court's unanimous decision to disbar Donald Peter Osborne from the practice of law. I write separately to express my opinion that the court should never have granted review of Osborne's case. If Osborne did not even care enough to appeal to the Washington State Bar Association Disciplinary Board (Board), we should not have granted him the right to appeal to this court...

This court reviews every decision recommending suspension or disbarment and decides whether to grant sua sponte review of any decision recommending suspension or disbarment. Accordingly, instead of reviewing whether the Board appropriately denied sua sponte review, we should be exercising our own discretion to deny sua sponte review by this court.

(Mike Frisch)

December 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Climate Scientist's Defamation Claims Survive In Part

An opinion issued by the District of Columbia Court of Appeals

These appeals present us with legal issues of first impression concerning the special motion to dismiss created by the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) Act, D.C. Code §§ 16-5501 to -5505 (2012 Repl.): whether denial of a special motion to dismiss is immediately appealable and the standard applicable in considering the merits of an Anti-SLAPP special motion to dismiss. Appellee Michael E. Mann is a well-known climate scientist whose research in studying the “paleoclimate,” or ancient climate, has featured prominently in the politically charged debate about climate change. Dr. Mann filed an action for defamation and intentional infliction of emotional distress against Competitive Enterprise Institute (CEI), Rand Simberg, National Review, Inc. (National Review), and Mark Steyn based on articles written by Mr. Simberg, Mr. Steyn, and National Review’s editor Rich Lowry that appeared on the websites of CEI and National Review. Dr. Mann’s complaint claimed that the articles which criticized Dr. Mann’s conclusions about global warming and accused him of deception and academic and scientific misconduct contained false statements that injured his  reputation and standing in the scientific and academic communities of which he is a part. Defendants argued that Dr. Mann’s lawsuit infringes on their First Amendment right of free speech and moved for dismissal under the Anti-SLAPP Act and, alternatively, under Superior Court Rule 12 (b)(6). The trial court ruled that Dr. Mann’s claims were “likely to succeed on the merits” — the standard established in the Anti-SLAPP Act to defeat a motion to dismiss — and denied appellants’ motions to dismiss and their subsequent motions to reconsider. Appellants — CEI, National Review and Mr. Simberg — sought interlocutory review in this court of the trial court’s denial of their motions to dismiss.

As a preliminary matter, we hold that we have jurisdiction under the collateral order doctrine to hear appellants’ interlocutory appeals of the trial court’s denial of their special motions to dismiss filed under the Anti-SLAPP Act. We further hold that the Anti-SLAPP Act’s “likely to succeed” standard for overcoming a properly filed special motion to dismiss requires that the plaintiff present evidence — not simply allegations — and that the evidence must be legally sufficient to permit a jury properly instructed on the applicable constitutional standards to reasonably find in the plaintiff’s favor.

Having conducted an independent review of the evidence to ensure that it surmounts the constitutionally required threshold, we conclude that Dr. Mann has presented evidence sufficient to defeat the special motions to dismiss as to some of his claims. Accordingly, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings. 

Plaintiff is a Penn State professor and played a leading role in the science of climate change.

He is a Distinguished Professor of Meteorology and the Director of the Earth System Science Center at Pennsylvania State University (Penn State).  Dr. Mann is considered an authority on climate change science, and has been recognized with honors and awards for his work identifying global warming and its cause.

He co-authored an article that became a centerpiece of the global warming debate

Because of its shape resembling the long shaft and shorter diagonal blade of a hockey stick, this graph became known as the “hockey stick.”

...The hockey stick graph also became a rallying point, and a target, in the subsequent debate over the existence and cause of global warming and what, if anything, should be done about it.

The controversy

In November 2009, thousands of emails from the Climate Research Unit (CRU) of the University of East Anglia in the United Kingdom — some between Dr. Mann and CRU climate scientists — were somehow obtained and anonymously published on the Internet, shortly before the U.N. Global Climate Change Conference was to begin in Copenhagen in December 2009. In a controversy dubbed “Climategate,” some of these emails were cited as proof that climate scientists, including Dr. Mann, falsified or manipulated their data, in collusion with government officials, to produce the hockey stick result. The emails led to public questioning of the validity of the research leading to the hockey stick graph and to calls for evaluation of the soundness of its statistical analysis and the conduct of the scientists involved in the research, including, specifically, Dr. Mann.

Following disclosure of the emails and the questions raised, Penn State, the University of East Anglia, and five governmental agencies — the U.K. House of Commons Science and Technology Committee, the U.K. Secretary of State for Energy and Climate Change, the Inspector General of the U.S. Department of Commerce, the U.S. Environmental Protection Agency, and the U.S. National Science Foundation — issued reports after conducting inquiries into the validity of the methodology and research underlying the hockey stick graph and investigating the allegations impugning the integrity of Dr. Mann’s and other climate scientists’ conduct. The inquiries that considered the science largely validated the methodology underlying the hockey stick graph. None of the investigations found any evidence of fraud, falsification, manipulation, or misconduct on the part of Dr. Mann.  These reports were published in 2010 and 2011. 

On July 13, 2012, Mr. Simberg authored an article entitled “The Other Scandal in Unhappy Valley,” which was published on, an online blog of CEI. Comparing “Climategate” with the then-front-page news of the Penn State sexual abuse scandal involving Jerry Sandusky that had been revealed in the Freeh Report...

On July 15, 2012, Mr. Steyn authored an article titled “Football and Hockey,” which appeared on National Review’s online blog “The Corner.”

Both articles drew an analogy between the work of Dr. Mann and the tribulations of Coach Joe Paterno.

The [Simberg] article’s focus is on Dr. Mann personally, alleging that he has engaged in “wrongdoing,” “deceptions,” “data manipulation,” and “academic and scientific misconduct.” The article calls Dr. Mann “the Jerry Sandusky of climate science,” comparing Dr. Mann’s “molest[ing] and tortur[ing] data in the service of politicized science” to Sandusky’s “molesting children.” The article also describes Dr. Mann as being, “like Joe Paterno,” a “rock star” at Penn State, who attracted millions of dollars to the University, and, like Bernie Madoff “at the height of his financial career,” “a sacred funding cash cow.”

...Even allowing for the use of hyperbole in the public discussion about global warming, we conclude that the statements in Mr. Simberg’s article that Dr. Mann acted dishonestly, engaged in misconduct, and compared him to notorious persons, are capable of conveying a defamatory meaning with the requisite constitutional certainty and included statements of fact that can be proven to be true or false...

As with Mr. Simberg’s article, Mr. Steyn’s is not about the merits of the science of global warming, but about Dr. Mann’s “deceptions” and “wrongdoing.” Like Mr. Simberg, Mr. Steyn compares Dr. Mann’s alleged wrongdoing — “molesting” and “torturing” data to achieve a deceptive but desired result that will court funding for Penn State — to that of Sandusky, which suggests that their characters are similarly base. (“Whether or not he’s ‘the Jerry Sandusky of climate change,’ he remains the Michael Mann of climate change.”) The accusation is bolstered by referring to the University’s investigation as a “cover-up” of Dr. Mann’s “wrongdoing” in order to protect someone who was a “star name” at Penn State like Sandusky and Paterno.

Rich Lowry can see starbursts in his dismissal from the litigation

Mr. Lowry does not repeat Mr. Steyn’s statements except to say that Mr. Steyn referred to the hockey stick graph as “fraudulent.” The editorial does not disavow Mr. Steyn’s use of the word “fraudulent” but puts a gloss on it, explaining that “[i]n common polemical usage, ‘fraudulent’ doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.” In sum, Mr. Lowry’s editorial does not repeat or endorse the factual assertions that Dr. Mann engaged in deception and misconduct that we have found to be actionable in Mr. Simberg’s and Mr. Steyn’s articles.


Appellants contend that the trial court erred in denying their special motions to dismiss because Dr. Mann did not sufficiently substantiate his defamation claim on the first three elements. As to Mr. Lowry’s editorial, we agree; but as to some of the other statements on which Dr. Mann bases his complaint, we disagree. We conclude that Dr. Mann hurdled the Anti-SLAPP statute’s threshold showing of likelihood of success on the merits because the evidence he has presented is legally sufficient to support findings by the fact-finder that statements in Mr. Simberg’s and Mr. Steyn’s articles were defamatory, were published by appellants to a third party without privilege, and were made with actual malice...

Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming. That the challenged statements were made as part of such debate provides important context and requires careful parsing in light of constitutional standards. But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment simply because they are embedded in a larger policy debate.

We apply these principles to the statements in the articles cited in the complaint, in the order in which they appeared. The articles, as they appeared on CEI and National Review’s websites, are appended to this opinion...

Dr. Mann has supplied sufficient evidence for a reasonable jury to find, by a preponderance of the evidence, that statements in the articles written by Mr. Simberg and Mr. Steyn were false, defamatory, and published by appellants to third parties, and, by clear and convincing evidence, that appellants did so with actual malice. We, therefore, affirm the trial court’s denial of the special motions to dismiss the defamation claims based on those articles and remand the case for additional proceedings in the trial court with respect to these claims. Id. We reverse the trial court’s denial of the special motions to dismiss with respect to Dr. Mann’s defamation claims based on Mr. Lowry’s editorial and the claim for intentional infliction of emotional distress. On remand, the court shall dismiss these claims with prejudice. Id. § 16-5502 (d).

The court 's opinion was authored by Senior Judge Ruiz joined by Associate Judges Beckwith and Easterly.  (Mike Frisch)

December 22, 2016 | Permalink | Comments (0)

Wednesday, December 21, 2016

The Risks Of Vanity Plates

The web page of the Pennsylvania Bar Disciplinary Board notes a reciprocal suspension of a year and a day imposed based on this 2008 order of the Virginia State Bar Disciplinary Board.

The attorney - then known by a different name - pled no contest to felony eluding the police by speed.  She was sentenced to three years incarceration suspended in favor of probation.

On the night in question, the attorney claimed that she was arguing with her boyfriend. She passed a police officer who activated his emergency siren and chased but gave up at a speed of 80 miles per hour.

The attorney hit a stop sign but nonetheless made good her escape.

But the officer noticed that the first four letters of her license plate spelled "DIVA."

The (now ex) boyfriend notified the police who confirmed that the attorney drove a Mach I Mustang with the license plates "DIVA EVA."

The Virginia Board rejected the attorney 's claim that she was speeding and arguing with the boyfriend and had not noticed the pursuing officer. The police officer testified that he was told she had boasted of outrunning him.

And, of course, she had pled no contest to that very charge.

A dissent in the Virginia case favored revocation. (Mike Frisch)

December 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Hot Stove League

The Herald-Tribune (Elizabeth Johnson) reports

Formal complaints are being filed against a former circuit judge and an attorney in Manatee County after The Florida Bar found probable cause of misconduct. The cases will be filed with the state's Supreme Court for additional review and disciplinary proceedings.

John Lakin retired from the bench in March after self-reporting that he had accepted baseball tickets from attorneys appearing in his courtroom. He'd served as a judge for three years and considered that "the highlight of my 26-year legal career," Lakin stated in his retirement letter to Gov. Rick Scott.

 Lakin accepted Tampa Bay Rays tickets from several attorneys, including Melton Little, of the Kallins, Little, Delgado firm in Palmetto.

A day after requesting and getting tickets from Little's firm, Lakin overturned a jury's verdict that had ruled in favor of Walmart and against Little's client in a slip-and-fall case. Lakin later accepted more tickets while Walmart appealed his order for a new trial.

Lakin told Chief Judge Charles Williams in October 2015 that he had accepted the gift. Williams advised Lakin to report that information to the Judicial Qualifications Commission, which launched an ethics probe.

The JQC stopped pursuing the case when Lakin stepped down from office, but said it would revisit the issue if he attempted to return to the bench.

Lakin's attorney, Jack Weiss, previously attributed Lakin's actions to "a serious lapse of judgment."

The Florida Bar continued its review.

A grievance committee found that probable cause of misconduct by Lakin and Little, including violating rules of professional conduct and engaging in actions prejudicial to the administration of justice. In addition, probable cause was found that Little disrupted impartiality and decorum of court proceedings.

 The grievance committee met in September, but letters of notice were sent Tuesday to attorneys representing Lakin and Little.

A letter of advice was sent to Gregory Hagopian, an attorney who also gave Lakin baseball tickets. While the grievance committee stated it does not condone Hagopian's actions, it acknowledged that Hagopian gave Lakin the tickets because of their friendship and not to influence his courtroom decisions. Hagopian completed ethics training and was advised by the grievance committee to avoid acts that may appear to show impropriety.

The Florida Bar previously dismissed a complaint filed against Bradenton attorney Ed Sobel, also relating to baseball tickets. Sobel provided documentation showing that Lakin paid fair market value for the tickets and a parking pass.

Discipline by the Florida Supreme Court can range from a reprimand to revocation of the license needed to practice law in the state.

(Mike Frisch)

December 21, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Second Thoughts

A client's instruction to her attorney not to deliver an executed deed for property to her grandson negated his interest in the property, according to a decision of the North Dakota Supreme Court.

Cory Rice is Joyce Neether's grandson. Joyce Neether and her late husband, Alvin Neether, raised Rice at their farm. Alvin Neether was diagnosed with ALS in 2009. Sometime before July 29, 2009, Joyce Neether contacted attorney Wayne Enget to draft a bill of sale for the purchase of personal property and two warranty deeds conveying real property to Rice, reserving a life estate in that property for the Neethers.

In July 29, 2009, Enget met with the Neethers to sign the warranty deeds. At that time, Alvin Neether was terminally ill and, while he was physically unable to sign his own name, the district court found he was mentally competent to transfer property. Joyce Neether had authority through a Power of Attorney to manage Alvin Neether's real and personal property. After consulting with Enget, Joyce Neether signed the deeds on behalf of herself and Alvin Neether. Rice was not present when Joyce Neether signed the deeds. Enget told the Neethers he would record the deeds the following day, July 30, 2009.

Before Enget recorded the deeds, Joyce Neether called Enget and instructed him not to record the deeds. Joyce Neether told Enget that she would call him when he was authorized to record the deeds and the bill of sale. Joyce Neether never contacted Enget to either record the deeds or deliver them to Rice.

Rice contended that Enget had duties as his attorney but

it is undisputed that Rice knew Enget went to the Neethers' residence on July 29, 2009, but was unaware the purpose was to sign these deeds. The district court found "[a]t all times during this action Attorney Enget was acting as an attorney for the Neethers and was not acting as an attorney for Rice." Rice asked Enget some questions regarding a separate matter. Rice never signed a fee agreement or paid Enget, and Enget never prepared any documents for Rice. Because the district court found there was no attorney-client relationship between Rice and Enget, there could be no agency relationship...

The district court found that while the deeds were not in Joyce Neether's physical possession, she still had dominion or control over them through her attorney. This Court will only overturn the district court's finding "if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made." Kelly, 2002 ND 37, ¶ 15, 640 N.W.2d 38. Evidence in this record supports the district court's findings that Enget was not acting as Rice's attorney and was acting as Neether's attorney. Therefore, the district court's finding is not clearly erroneous...

The district court's findings that the deeds never left Joyce Neether's control and the Neethers lacked intent to deliver the deeds to Rice is supported by the record and, therefore, not clearly erroneous.

(Mike Frisch)

December 21, 2016 in Clients, Ethics | Permalink | Comments (0)

After The Fall

A District of Columbia Ad Hoc Hearing Committee has rejected claims of unfairness and ineffective assistance of counsel (who withdrew from the case in mid-hearing) and recommended disbarment in a case brought against an attorney practicing in California.

After Bar Counsel had rested and her non-attorney brother had testified

After the lunch break on April 30, 2014, Respondent’s counsel advised the Hearing Committee that he was unable to participate further in the hearing because of an injury he sustained from a fall earlier that morning ; Disciplinary Counsel had rested, and Respondent was the only remaining witness to be called in her case. The parties estimated that the case could be completed in one day, and the Hearing Committee postponed the conclusion of the hearing until a later date...

The hearing resumed on July 8, 2014, and Respondent did not appear. Counsel for Respondent represented that the parties had attempted a negotiated discipline and that Respondent therefore had not traveled from California to attend the hearing, but because Respondent had not returned executed documents by the stated deadline, there was no negotiated discipline agreement. The hearing proceeded with Disciplinary Counsel’s rebuttal case, during which Disciplinary Counsel called rebuttal witnesses Angela Thornton and Julia Porter. 

Counsel withdrew and scheduling became difficult but then this

On November 17, 2014, Disciplinary Counsel served on Respondent a new, four-page Specification of Charges, Bar Docket No. 2014-D010, which had been filed with the Board on Professional Responsibility (“Board”) the previous week. This new specification alleged that Respondent violated Rules 1.15(a) (commingling entrusted funds in an operating account and intentionally or recklessly misappropriated entrusted funds); 1.15(b) (depositing entrusted funds into a bank that is not an approved depository); 1.16(d) (failing to take timely steps to refund unearned fees at termination of representation); 5.1 (failing to ensure other firm lawyers conform to Rules); and 5.3 (failure to supervise nonlawyers).

The later case led to the disbarment recommendation after a hearing that Respondent did not attend.

Here, we find clear and convincing evidence that Respondent misappropriated client funds in violation of Rule 1.15(a). The Mills Retainer Agreement expressly provided, and Mr. Mills understood, that fees and costs incurred during the representation would be applied against the $5,000 retainer fee, and that Malyszek & Malyszek would return any unused amount of that retainer to Mills. According to the final accounting that Mills received from Malyszek & Malyszek on August 8, 2013, the unused portion of the $5,000 retainer amounted to approximately $990, which was owed to Mills, and which Respondent ultimately returned to Mr. Mills in March 2014. We conclude that Respondent misappropriated funds owed to Mills as of at least August 8, 2013, when the balance in the firm’s operating account into which the Mills retainer was deposited fell below the $990 owed to Mills. 

The committee found intentional misappropriation and failure to supervise her brother . It rejected a host of due process and other contentions offered by the Respondent

We set forth below why Respondent’s particular contentions and objections are unfounded. But, notably, even if we were to credit any of them (which we do not), it would have no effect on the Hearing Committee’s findings and conclusions regarding the Mills representation. Neither Respondent’s unsworn declaration nor any of her evidentiary objections address allegations in the Second Specification of Charges arising from the Mills Matter. Likewise, Respondent does not and cannot claim prejudice from allegedly inadequate representation in connection with the misappropriation charges arising from the Mills Matter, as the consent withdrawal of her counsel pre-dated the November 2014 Second Specification of Charges. It is in connection with Respondent’s Mills representation that the Hearing Committee has found intentional and, at a minimum, reckless misappropriation, compelling a recommendation of disbarment.

The case is In re Cynthia Malyszek and can be accessed here.  Cites to the record omitted throughout. (Mike Frisch)

December 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Eddie From Ohio

A stayed suspension of one year was imposed on a Massillon judge by the Ohio Supreme Court.

It was not his first rodeo

In October 2012, we found that he violated the Code of Judicial Conduct and the Rules of Professional Conduct for, among other things, unnecessarily injecting himself into an internal police-department investigation, using vulgar and intemperate language toward a probationer in his courtroom, and conducting that individual’s probation review without the presence of his counsel or the prosecutor. Disciplinary Counsel v. Elum, 133 Ohio St.3d 500, 2012-Ohio-4700, 979 N.E.2d 289. We sanctioned Judge Elum with a stayed six-month suspension for this misconduct. 

Charges here were filed in November 2015

On May 11, 2015, Antonio Pettis approached Judge Elum in the Massillon Municipal Court parking lot and requested the judge’s legal assistance regarding a dispute with his landlord, Susan Beatty. Pettis told Judge Elum that although he had money to pay his rent, Beatty would not accept it. Judge Elum recognized Pettis because the day before, the judge’s wife, a former school teacher, had invited Pettis into the judge’s home to assist him with a scholarship application. In the parking lot, Judge Elum agreed to help Pettis and took him into his chambers.

Judge Elum then called Beatty and, according to the judge, identified himself as “Eddie Elum from the Massillon Court.” Judge Elum urged Beatty to accept Pettis’s late rent payment. After Beatty told the judge that Pettis had violated his lease and that she had already given him a three-day notice to vacate, the judge proceeded to discuss with Beatty the amount of Pettis’s security deposit and inquired whether she would give him two additional days to remove his belongings from the property. During the nine-minute phone call, Judge Elum openly, and within Beatty’s hearing, consulted with Pettis. At one point, Beatty told Judge Elum that she may have already changed the locks on the property, and the judge responded that she could not do that without a writ of restitution. The judge also asked that she have her lawyer contact him. 

Pettis moved out of the rental property the following day, and according to Beatty, he left furniture and trash on the lawn, which required her to rent a dumpster. Judge Elum later called Beatty on two occasions—purportedly to inquire whether the matter was resolved and to inform her that he had not heard from her lawyer. Beatty, however, did not return the judge’s phone calls. Beatty was surprised and intimidated by Judge Elum’s initial phone call and felt bullied in light of the fact that he was a judge. She later filed the grievance that initiated this disciplinary action.

Since then, Judge Elum has admitted that calling Beatty was a mistake, that he should not have injected himself into a dispute that was not on his docket, and that he was not an appropriate person to mediate the disagreement between Pettis and Beatty. At his disciplinary hearing, the judge also testified that he understood how Beatty could have perceived his phone call as advocating on behalf of Pettis and against her. The judge stated:

As a lawyer, I have been trained to resolve disputes. As a judge, I know I’ve got to step back and can’t get involved. Unfortunately, I let my heart do my thinking for me. And I went and tried to put two people together to resolve a rental dispute that got way out of hand because there was a lot of facts that I was not privy to. And I got myself in quicksand and I made a terrible mistake. 


Having considered Judge Elum’s ethical infractions, the aggravating and mitigating factors, and the sanctions imposed in comparable cases, we adopt the board’s recommended sanction. Judge Edward Joseph Elum is hereby suspended from the practice of law for one year, with the entire suspension stayed on the condition that he commit no further misconduct. If Judge Elum fails to comply with this condition, the stay will be lifted and he shall serve the entire oneyear suspension. Costs are taxed to Judge Elum.

The earlier disciplinary case - with its colorful language recited in full - is linked here. (Mike Frisch)

December 21, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Far And Away

The Ohio Supreme Court has ordered a six-month suspension of an attorney currently serving an interim suspension for a felony money laundering conviction.

Before his conviction, in an amended four-count complaint filed with the Board of Professional Conduct on March 10, 2016, relator, Cleveland Metropolitan Bar Association, charged King with failing to inform three clients that he did not carry professional liability insurance, failing to provide competent representation to one of those clients, and failing to cooperate in all three ensuing disciplinary investigations. On the day of the formal hearing, however, the chair of the panel appointed to hear the case granted relator’s motion to withdraw the alleged violations in Count 3 concerning competent representation and professional liability insurance.

On sanction

the board found that King had not acted with a dishonest or selfish motive, appeared to have a good character or reputation apart from the charged misconduct, had provided his services to court-appointed clients pro bono, had provided a frank, candid, and contrite acknowledgment of his wrongful conduct, and had attempted, but failed, to comply with the requirements of Prof.Cond.R. 1.4(c) by including a paragraph in his fee agreement stating that he did not carry professional liability insurance. The board also noted that at the time of his misconduct, not only was King’s wife divorcing him, but she had also emptied his home and his bank accounts before moving to Ireland. King lost his home, felt compelled to relocate his law practice, and—just two weeks before the hearing in this matter—lost his father, who had been ill for some time. The board determined that King had self-medicated with alcohol during this period and that he had entered into an OLAP contract to address this problem—though he was not compliant with his contract at the time of the hearing...

Acknowledging the recent turmoil in King’s life, his efforts to overcome his problems, and the need to protect the public from future harm, the board recommended that we suspend King from the practice of law for six months, all stayed on the conditions that he remain in full compliance with his OLAP contract, complete six hours of CLE in law-office-practice management, and work with a mentor to be selected by relator. Although we recognize that King’s license to practice law is currently suspended on an interim basis as a result of his felony conviction, we find that the recommended sanction is commensurate with the sanctions we have imposed for comparable misconduct. We therefore adopt the board’s recommended sanction.

(Mike Frisch)

December 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, December 20, 2016

Suspension For Attorney Charged As Yogurt Store Robbery Getaway Driver

The Maryland Court of Appeals temporarily suspended an attorney featured in this December 2015 story in the Baltimore Sun.

A Baltimore County attorney who was charged with driving the getaway van in an armed robbery pleaded guilty to two drug charges this week.

Diana Beth Denrich, 37, of Owings Mills, pleaded guilty to a prescription fraud charge and possession of morphine, according to the county state's attorney's office. She also pleaded no contest to conspiracy to commit theft of less than $1,000. All the charges are misdemeanors.

Prosecutors dropped multiple other charges against Denrich.

Her lawyer, Robert N. Smith III, declined to comment.

Denrich was charged this year with driving the getaway van in the September 2015 armed robbery of the uSpoon frozen yogurt store in Owings Mills. She was later charged in separate drug cases involving alleged prescription fraud.

Judge Mickey Norman gave Denrich suspended sentences and two years of supervised probation, State's Attorney Scott Shellenberger said.

The Sun had this update on the robbery charges.

Police said a man with a handgun entered the uSpoon store on Sept. 27 while Papanikos and another employee were working.

He pointed a gun at Papanikos and another worker and demanded money, police said. He fled with an unspecified amount of money from the register, as well as the employees' cell phones and the store phone.

A surveillance camera captured his image, police said, and a witness in the parking lot saw the suspect get into a gray minivan. Denrich owns a gray Honda Odyssey, police said.

In October, police said, a neighbor of Denrich's saw Denrich, Papanikos and a man Denrich introduced as "David" in the minivan at the Shell gas station at Franklin Boulevard and Reisterstown Road.

Winder has admitted he robbed the store in September, police said.

They said he told investigators that Denrich and Papanikos planned the robbery and asked him to go into the store.

The suspension order does not recite reasons but notes that Bar Counsel has filed a petition for Disciplinary or Remedial Action.  (Mike Frisch)

December 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Blue Book And Reasonable Segregation

The United States Court of Appeals has revised and reissued an opinion originally filed on July 19

The National Association of Criminal Defense Lawyers submitted a request under the Freedom of Information Act to obtain an internal Department of Justice publication known as the Federal Criminal Discovery Blue Book. The Blue Book is a manual created by the Department to guide federal prosecutors in the practice of discovery in criminal prosecutions. It contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants.

The Department refused to disclose the Blue Book, invoking the Freedom of Information Act’s Exemption 5, which exempts from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. The Department maintained that the Blue Book fell within the attorney work-product privilege, and therefore Exemption 5, because it was prepared by (and for) attorneys in anticipation of litigation. The district court agreed that the Blue Book is privileged attorney work product and thus is exempt from disclosure. We likewise conclude that the Blue Book consists of exempt attorney work product, but we remand to the district court for an assessment of whether the Blue Book also contains non-exempt policy statements amenable to reasonable segregation from the privileged work product.

From today's order

In light of the government’s submission, we think it appropriate to assess whether the Blue Book contains non-exempt statement of policy that are reasonably segregable for the protected attorney work product and therefore should be disclosed. Because the district court did not consider whether the Blue Book contains reasonably segregable statements of the government’s discovery policy, we remand for the court to conduct that analysis in the first instance. Such an analysis, we have explained, does not call for parsing the Blue Book “line-by-line” or segregating material “dispersed throughout the document.” Mead Data, 566 F.2d at 261. Instead, the emphasis is on segregation of non-exempt material found in “logically divisible sections.” Id. at 261 n.54. If the district court concludes that the Blue Book contains non-exempt and reasonably segregable statements of the government’s discovery policy, the court could then consider whether Exemption 7(E) of FOIA would protect any of that material from disclosure. The district court to this point has had no occasion to examine the government’s argument that Exemption 7(E) shields the Blue Book from disclosure.”...

(Mike Frisch)


December 20, 2016 | Permalink | Comments (0)

Tweet Admissibility

The New Jersey Appellate Division affirmed a simple assault conviction of a defendant alleged to have hit her ex-boyfriend's successor girlfriend with a shoe.

[Girlfriend] Edwards and [ex-boyfriend] Blake went to the police station to report the incident and then went to the hospital, where Edwards received nine stitches. After the assault, defendant and Edwards had communications "back and forth" on Twitter. On December 28, 2012, Edwards saw defendant posted a tweet saying "shoe to ya face bitch."

The court affirmed its standards for authenticating tweets

The municipal court and the Law Division each admitted as Exhibit S-4 the following tweet allegedly posted by defendant on December 28, 2012: "No need for me to keep responding to ya stupid unhappy fake mole having ass.. how u cring2 in a corner with a shoe to ya face bitch." The tweet displayed defendant's profile photo and defendant's Twitter handle, "@cirocgirl25."

Edwards testified she recognized the tweet as being written by defendant because it displayed defendant's picture. She also was familiar with defendant's Twitter handle, "@cirocgirl25." Moreover, Edwards testified the tweet was posted "in response to things that [Edwards] was saying" and they were communicating "back and forth." On December 28, 2012, Edwards went onto defendant's Twitter page, saw the posted tweet, and captured it as a screenshot.

Defendant testified the Twitter page displayed a picture of her and her Twitter handle. However, she testified she did not author the tweet.

The court considered the varying approaches to tweet admissibility adopted in Texas and Maryland and came out with a "low burden" threshold 

We need not create a new test for social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under N.J.R.E. 901...

Defendant's Twitter handle, her profile photo, the content of the tweet, its nature as a reply, and the testimony presented at trial was sufficient to meet the low burden imposed by our authentication rules...

 The Law Division, like the municipal court, provided sufficient reasons for finding the tweet authentic, relevant, and admissible. Defendant's remaining arguments regarding authentication lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). Accordingly, we find no abuse of discretion in admitting the tweet.

 (Mike Frisch)

December 20, 2016 in Current Affairs | Permalink | Comments (0)

You Can't Be Sirius: Unhappy Together

The New York Court of Appeals has answered a certified question in litigation  between a famous 1960s rock band and Sirius XM Radio.

The Second Circuit Court of Appeals has certified the following question to this Court: "Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?" Because New York common-law copyright does not recognize a right of public performance for creators of sound recordings, we answer the certified question in the negative.

From rock history

Plaintiff is a corporation owned by two of the original members of The Turtles, a band formed in 1965 and most famous for its No. 1 hit song "Happy Together." Plaintiff controls the master recordings of approximately 100 Turtles songs that were recorded before 1972. Defendant is the nation's largest satellite digital radio service. Defendant acknowledges that it broadcasts pre-1972 sound recordings, including Turtles songs, but does not have licenses with the performers or the sound recording copyright-holders, nor does it pay them for broadcasts. Plaintiff commenced this federal putative class action, on behalf of recording artists of pre-1972 sound recordings -- or the owners of their rights, who are mostly record companies -- alleging common-law copyright infringement and unfair competition. Defendant moved for summary judgment dismissing the complaint.

On the result

... common sense supports the explanation, articulated by the Third Circuit, that the record companies and artists had a symbiotic relationship with radio stations, and wanted them to play their records to encourage name recognition and corresponding album sales (see Bonneville Int'l. Corp., 347 F3d at 487-489). As the dissent acknowledges (see dissenting op at 25), the Federal Copyright Office explicitly recognized the technological advances affecting the interests of the various participants in the music industry as early as 1991 (see Register of Copyrights, Report on Copyright Implications of Digital Audio Transmission Services, at 154-155 [Oct 1991]). Nevertheless, those participants have co-existed for many years and, until now, were apparently "happy together." While changing technology may have rendered it more challenging for the record companies and performing artists to profit from the sale of recordings, these changes, alone, do not now warrant the precipitous creation of a common-law right that has not previously existed.

Simply stated, New York's common-law copyright has never recognized a right of public performance for pre-1972 sound recordings. Because the consequences of doing so could be extensive and far-reaching, and there are many competing interests at stake, which we are not equipped to address, we decline to create such a right for the first time now. Even the District Court here, while finding the existence of a common-law copyright of public performance in sound recordings, acknowledged that such a right was "unprecedented," would upset settled expectations, and would "have significant economic consequences" (62 F Supp 3d at 352). Under these circumstances, the recognition of such a right should be left to the legislature.

 Justice Fahey concurred and Justice Rivera dissented

Contrary to the conclusion of my colleagues, New York's broad and flexible common-law copyright protections for sound recordings encompass a public performance right that extends to the outer boundaries of current federal law, and ceases upon preemption by Congress.

(Mike Frisch)

December 20, 2016 | Permalink | Comments (0)

Monday, December 19, 2016

Former DA Suspended

The Pennsylvania Supreme Court has imposed a 30-month suspension of a former longtime Philadelphia District Attorney Chief of Homicide convicted of misdemeanor criminal mischief.

CBS Philly had reported on the charges

In a story of revenge right out of a soap opera, an assistant district attorney in Philadelphia has been arrested.

Lynn Nichols, most recently the assistant chief of the Philadelphia DA’s homicide unit, turned herself in to Philadelphia’s Southwest Detectives division today.

Based on an investigation by the state attorney general’s office, Nichols has been charged with one count of making false reports to police and one count of obstruction of justice.

The attorney general’s office says Nichols used her influence a year ago to have a stolen vehicle report removed from a police database, to help her boyfriend at the time.

A year later, authorities say, Nichols had broken up with that boyfriend and, as an act of revenge, reported the vehicle stolen once again to police in New Jersey. Authorities say she called 911 from the original car owner’s home phone, with that person present. In a twist, prosecutors say the original car owner reported Nichols to authorities.

A complaint came in to the Philadelphia district attorney’s office from the  where Nichols served for 22 years. They handed the case over to the attorney general, who filed the charges. Nichols was suspended and has since tendered her resignation.

In a statement, DA Seth Williams said, “Lynn Nichols had a long and successful career in this office. While it is with both professional and personal sadness that I am making this announcement today, we must maintain the highest standards of conduct in my office, and the legal process must take its course.”.

When asked if any of Nichols’ work on cases through the years has been compromised because of the investigation, her resignation and arrest, Tasha Jamerson, spokeswoman for the district attorney’s office said, “No, none of her cases or casework have been called into question or review.”

Nichols was released on bail.

The sanction here was imposed nunc pro tunc to her interim suspension, which we had reported here.

The link takes you to the decision. (MIke Frisch)

December 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Dishonesty That Wasn't

The Maryland Court of Appeals overturned a circuit court judge's dishonesty finding and rejected Bar Counsel's call for disbarment in a disciplinary case that began with an $86.48 trust check overdraft.

The court imposed an indefinite suspension. 

Mahone violated MLRPC 1.1 and Rule 16-606.1 when he failed to maintain records for his attorney trust account. He violated Rule 16-607 when he commingled his personal funds with client funds. When Mahone used trust account funds for an unauthorized purpose, withdrew cash from the account, and created negative balances within multiple client accounts, Mahone violated Rule 16-609 and BP § 10-306. Additionally, Mahone’s failure to respond to Bar Counsel’s requests for information completely and in a timely manner constitute a violation of MLRPC 8.1(b). Taken together, these violations result in a breach of MLRPC 8.4(a). Lastly, Mahone’s overall mismanagement of client funds constitutes conduct prejudicial to the administration of justice in violation of MLRPC 8.4(d).

Although Mahone’s conduct clearly violated the provisions described above, he did not violate MLRPC 8.4(c), which prohibits attorneys from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.”

...we conclude that Mahone did not engage in conduct involving fraud or deceit. There is no evidence that Mahone acted with a purpose to deceive in failing to maintain his trust account records or in failing to timely and completely respond to Bar Counsel. Furthermore, Bar Counsel has not presented any evidence suggesting that Mahone intentionally led Bar Counsel or any third party to believe something that was not true. In fact, the hearing judge found that Mahone acted “without malice or personal gain.”

Bar Counsel made arguments that the court found were unsupported by the evidence and sought disbarment on grounds squarely rejected by a majority of the court

Here, it is clear that Mahone did not act with a dishonest or selfish intent and there is no evidence that any of Mahone’s clients lost money due to his mismanagement. Furthermore, there is no evidence that Mahone’s mismanagement of his attorney trust account impacted the quality of his legal representation, and Mahone has taken steps to remedy his admittedly “sloppy recordkeeping.” He has resolved to more closely examine his monthly statements and has contacted an accountant who agreed to monitor his attorney trust account. In addition, even though Mahone failed to comply with Bar Counsel’s requests in a timely manner, and when he did, he did not provide all the requested information, there is no evidence that he intentionally failed to comply with the investigation.

Indeed, Mahone was deposed and attempted to clarify several of the questionable transactions highlighted in Miller’s reports. Mahone could not satisfactorily explain every transaction for the very reason Bar Counsel pursued disciplinary action against him— mismanagement of his accounts and poor record-keeping. As Mahone himself pointed out, he cannot produce documentation that he failed to keep in the first place. Finally, Mahone has expressed remorse and there is no evidence of a dishonest or selfish motive.

A concurring/dissenting opinion  by Judge Watts (Joined by Judge McDonald) would impose disbarment in light of prior discipline

In discussing Mahone’s prior disciplinary record, the Majority theorizes that, at least with regard to his two reprimands, Mahone took responsibility for his actions and cooperated with Bar Counsel by entering a joint petition for reprimand in each case. See Maj. Slip Op. at 24. This is one interpretation. Another explanation for the joint petitions and agreed-upon reprimands is that Mahone, recognizing that he had been the subject of an indefinite suspension in 1997, simply sought to make the best arrangement possible to minimize the sanction imposed in his last two attorney grievance cases. Certainly, that he engaged in further misconduct after his 2007 reprimand, and was again reprimanded in 2012, undermines any conclusion that Mahone has benefited from his earlier indefinite suspension. Overall, the continuum of attorney grievance cases demonstrates that Mahone was not deterred by his prior encounters with Bar Counsel. And, the frequency of his misconduct indicates that he would pose a threat to future clients. Given his track record, and the nature of the misconduct in this case—namely, his mismanagement of his attorney trust account and his failure to comply with Bar Counsel’s investigation, which is essentially the same misconduct that Mahone has previously engaged in—disbarment is the appropriate sanction. 

Bar Counsel had argued that the "out on three strikes" rule justified disbarment.

The oral argument video is linked here.    

It is well worth watching.

The rebuttal on behalf of the respondent attorney is a powerful rebuke of Bar Counsel's approach to the case. (Mike Frisch)

December 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Matter Of No Records

An Ad Hoc District of Columbia Hearing Committee has recommended a suspension of 18 months and fitness of a former SEC attorney who is engaged in private practice.

For the last 20 years, Respondent has practiced law as a sole practitioner, in a practice he described as “securities law.” Respondent writes opinion letters and assists clients with public offerings and reporting financial transactions. Respondent generally charges a flat fee for an opinion letter, receiving the fee first and then providing the requested opinion letter to the client within a day or two. Some clients have compensated Respondent for his services by issuing him stock in their companies.

Respondent also assists clients by permitting them to pass funds associated with their transactions through his attorney trust account, for which they pay Respondent a fee. (record cites omitted)

He does not keep any records of his financial dealings  and uses the "mental" checklist approach to vetting conflicts of interest.

I may be wrong but I'd wager that malpractice insurers do not favor the "mental checklist" approach.

The absence of records defined the case.

He used his attorney escrow account as a "pass-through"

Respondent admitted that he received the funds to disburse to [San Diego law firm] Carrillo Huettel from or on behalf of his client, but could not explain why he deposited the funds in his operating or business account before disbursing them. Tr. 64 (“You’re asking me to explain my crazy business practices. I can’t explain why I did what I did. I know it’s wrong, and I’m not doing it anymore, but I can’t tell you why I did it.”).

That also has a nice ring to it.

He engaged in a pattern and practice of commingling but not a provable misappropriation.

On his personal  taxes

From at least 2004 until the time of the hearing, Respondent has not paid the taxes due on the income he reported to the IRS. In 2008, the IRS filed federal tax liens against Respondent for his failure to pay $24,436.03 in assessments for tax years 2004 and 2005. BX 17 at 2. Between 2008 and 2013, the IRS filed additional federal tax liens against Respondent for tax years 2007-11, for unpaid assessments of more than $93,000. BX 18 (these assessments were in addition to the $24,436.03 Respondent owed for 2004 and 2005). Respondent knew about the tax liens and his outstanding debt to the IRS. Tr. 74.

There was a regular practice of commingling

An exhaustive or complete list of all the dates when Respondent held both entrusted funds and his own funds in the 1409 Trust Account could be compiled only if Respondent kept records of the source of funds going in his trust account and what he did with them. He did not keep or produce such records. See FF 70-80. Pursuant to the Hearing Committee’s order of February 23, 2015, Disciplinary Counsel prepared a list of other instances when Respondent was simultaneously holding personal and/or business funds as well as entrusted funds in the same account, with citations to the record evidence. The list, which was attached to Disciplinary Counsel’s Brief, and is attached hereto and incorporated by reference herein, is not exhaustive because of the gaps in Respondent’s records.

 And dishonesty

On April 15, 2013, when Respondent produced the 314 pages of e-mails in response to Disciplinary Counsel’s request for complete records, he submitted a further response to Disciplinary Counsel. BX 10. In that response, Respondent represented that he had been in “constant contact” with the IRS. BX 10 at 1; Tr. 74. He further represented that he would be making an offer in compromise to the IRS “within a month.” BX 10 at 1; Tr. 77. Even assuming that he did not knowingly make a false statement about the offer in compromise at the time, Respondent knew it was untrue by May 2013, but never sought to correct it. Respondent had an obligation to be truthful to Disciplinary Counsel in this regard, but he was not. In addition, we find that Respondent’s testimony at the hearing regarding his purported negotiations with the IRS regarding a potential offer in compromise was deliberately false. See Tr. 74-80.

And in structuring cash deposits

Respondent, or those acting at his direction, broke down $25,000 into smaller cash deposits in amounts less than $10,000 into his 1409 Trust Account and thus avoided a Currency Transaction Report to the IRS. FF 56. Specifically, the record evidence demonstrates that between February 13 and 15, 2012, the first two deposits of $7,000 and $8,000 were made at the same branch of Bank America (Lincoln-Manchester), on consecutive days, February 13 and 14, 2012. FF 56. On February 15, 2012, an additional $10,000 in cash was deposited into Respondent’s 1409 Trust Account, but in two $5,000 installments, one at the same Lincoln-Manchester branch, and the second at the Marina Del Ray branch less than two miles away and less than 15 minutes after the initial $5,000 deposit. FF 56. Similarly, at least $15,000 of the $16,500 in cash deposited in Respondent's 1409 Trust Account in March 2012 was intentionally broken down into smaller amounts before being deposited. FF 57. On March 13, 2012, the first installment of $1,500 was deposited at the Tatem and Shea branch of Bank of America branch in Phoenix. FF 57. The $15,000 deposited on March 15, 2012, was broken down into three separate $5,000 deposits made on the same day, but at three different bank branches -- one at Marina Del Ray, another at Lincoln-Manchester, and another at Westchester. FF 57. The $5,000 deposits made at the Marina Del Ray and Lincoln-Manchester branches were within 25 minutes of the other and the branches are less than two miles apart. FF 57. There is no legible or visible time stamp for the third $5,000 deposit at the Westchester branch on March 15, 2012, but this branch is only 1.7 miles away from the Lincoln-Manchester branch. FF 57.

Proof of fitness should be required for reinstatement

Disciplinary Counsel has demonstrated by clear and convincing evidence that there is serious doubt concerning Respondent’s fitness to practice law. Respondent intentionally and knowingly commingled entrusted funds that were in his attorney trust account with his and his wife’s personal funds; he failed to keep and maintain sufficient and complete client and financial records for his attorney trust account, and he committed multiple acts of deceit, and dishonesty in order to avoid his tax obligations to the IRS. Lastly, Respondent continued to engage in this misconduct after Disciplinary Counsel advised him of its investigation. The Hearing Committee finds that Respondent testified falsely regarding his handling of funds and negotiations with the IRS. As a result, these factors cast doubt upon Respondent’s present qualifications to practice law. Respondent has not acknowledged his misconduct or expressed remorse.

In re William Haseltine can be found at this link. (Mike Frisch) 

December 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Suspends; Disbars In Three Matters

Bret Crow summarizes three discipline cases decided today by the Ohio Supreme Court

The Ohio Supreme Court today disbarred one attorney and suspended two others for violating multiple professional conduct rules in three separate per curiam opinions.

The Supreme Court disbarred Lisbon attorney Virginia M. Barborak. The Court suspended for two years, with the second year stayed on conditions, Fort Mitchell, Kentucky, attorney Christopher D. Wiest and Canfield attorney Benjamin Joltin.

Barborak Complaint Involves Probate Matters
The Columbiana County Bar Association charged Barborak with rules infractions based on her actions in four probate matters in which she served as a court-appointed fiduciary or counsel for a court-appointed fiduciary.

The bar association’s complaint alleged that Barborak failed to hold funds belonging to the probate estates in an interest-bearing trust account separate from her own property, failed to maintain required records documenting the funds entrusted to her, and falsified bank statements and probate accountings to conceal her misappropriation of client funds. Barborak stipulated that her account balances were often significantly less than the amounts that should have been maintained for her clients. She also admitted at one point that her client trust account balance contained about $12,000 when the account should have held more than $170,000.

The Court adopted the Board of Professional Conduct’s findings of fact and misconduct that found, among other things, that Barborak misappropriated “significant” sums of money, did not maintain adequate records regarding the funds she held and disbursed on behalf of her clients, and filed false statements and records designed to “mislead and misinform” probate courts.

After considering the relevant aggravating and mitigating factors, the Court rejected the board’s recommendation to impose an indefinite suspension based on five similar disciplinary cases that entailed misappropriation and falsification and Barborak’s “six-year pattern of dishonesty.”

“Given Barborak’s lengthy and disturbing pattern of failing to maintain records of client funds entrusted to her, misappropriating client funds, and intentionally submitting false and fraudulent documents to the courts of this state – which are more serious and more pervasive than the cases cited in support of the recommended indefinite suspension – we conclude that permanent disbarment is the only appropriate sanction in this case,” according to the Court’s unanimous opinion.

2016-0853. Columbiana Cty. Bar Assn. v. Barborak, Slip Opinion No. 2016-Ohio-8167.

Wiest Complaint Centers on Stock Buy
The Cincinnati Bar Association alleged in its complaint that Wiest engaged in insider trading by buying 35,000 shares of stock in InfoLogix Inc., a company his client, Stanley Black and Decker, was considering acquiring. But at the hearing, the bar association argued that some of Wiest’s rule violations arose from his disclosure of confidential documents and information about Stanley to the U.S. Securities and Exchange Commission (SEC) during its investigation of his trading activities.

The Board of Professional Conduct hearing panel dismissed one rule violation that the bar association initially alleged to have occurred in the context of Wiest’s trading activities (but later argued was associated with sharing information with the SEC) because the last-minute change in the bar association’s theory in the case did not allow Wiest adequate time to prepare his defense. The Court dismissed another alleged violation for the same reason. The Court also declined to consider a rule violation associated with Wiest’s alleged use of confidential information to buy stock because the hearing panel unanimously dismissed the charge. The Court found, however, that Wiest engaged in dishonest conduct by using confidential client information to buy stock and failed to consult with his client or his employer before doing so.

“To the extent that Wiest and the board focus solely on Wiest’s ‘use’ of confidential client information in deciding to purchase InfoLogix stock, they misapprehend the true nature of his dishonesty and deceit and overlook Wiest’s profound failure to appreciate what is perhaps one of the most fundamental of his professional obligations – his duty to communicate openly with his clients,” the Court’s unanimous opinion stated.

“Not only did he conceal his intention to purchase stock from his client, he remained silent upon learning that his client was moving forward with its acquisition of that company and once again remained silent when the SEC issued a subpoena compelling him to produce his client’s confidential information. Thus, it is Wiest’s repeated concealment of information that he was duty-bound to communicate to his client from which we infer his intent to engage in dishonesty, fraud, deceit, and misrepresentation,” the Court wrote.

After considering the relevant aggravating and mitigating factors and similar cases, the Court imposed a two-year suspension with the second year stayed on conditions for “Wiest’s dishonest conduct, his dishonest and selfish motive, his complete disregard for his client, and his complete abdication of his duty to communicate with this client.”

2016-0263. Cincinnati Bar Assn. v. Wiest, Slip Opinion No. 2016-Ohio-8166.

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Joltin Complaint Concerns Office Management
In the complaint filed by the Office of Disciplinary Counsel against Joltin, the rule violations arose largely from the financial mismanagement of his practice related to three client matters and his trust account records. He represented clients in a complex divorce case, a personal-injury case, and an eviction case. Two of the clients fired him.

The complaint alleged that Joltin commingled personal and client funds, misappropriated client funds, misled a client about the reason he failed to promptly deliver the client’s funds, and failed to maintain any records regarding his client trust account for several years.

After considering the relevant aggravating and mitigating factors and similar cases, the Court imposed a two-year suspension with the second year stayed on conditions. The Court ordered Joltin to serve a one-year period of monitored probation, complete three hours of continuing legal education (CLE) addressing trust-account maintenance in addition to certain other CLE requirements, remain in full compliance with his existing Ohio Lawyers Assistance Program (OLAP) contract, follow all of OLAP’s treatment recommendations, and commit no further misconduct.

Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and William M. O’Neill concurred in the opinion.

Justice Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen O’Connor. Justice Lanzinger would have imposed an indefinite suspension. “A two-year suspension with one year stayed is insufficient when the presumptive sanction is disbarment for misappropriation of client funds,” she wrote.

2016-0261. Disciplinary Counsel v. Joltin, Slip Opinion No. 2016-Ohio-8168.

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(Mike Frisch)

December 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)