Tuesday, September 22, 2015

IOLTA Account Violations Leads To Suspension

An attorney who used his IOLTA account for personal expenses over an extended period of time consented to a three-year suspension by the Pennsylvania Supreme Court

From the report of the Disciplinary Board

Respondent, while knowing it was wrong to do, paid for hundreds of personal expenses out of his IOLTA, using it as a personal account for approximately one year and nine months. Respondent made an untimely distribution of settlement funds to a client. He caused many overdrafts in his IOLTA, and deposited his own money into his IOLTA to make his clients, including a minor, whole. Respondent did not have permission to use his client's funds. By doing this he commingled his own funds with client funds and misappropriated client funds, even if the misappropriation was in small amounts and only for a short time. Respondent has no prior history of discipline; expressed remorse; and admitted his wrongdoing, as evidenced by his agreement to enter into a joint petition for discipline on consent.

(Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Not A Scintilla

An attorney admitted to practice in 2007 has been disbarred by the Pennsylvania Supreme Court.

The report of the Disciplinary Board notes that the initial misconduct was relatively minor and involved his failure to appear to receive an informal admonition.

However, he failed to participate in the ensuing proceedings and thus displayed his indifference t o his responsibilities.

Had he shown a "scintilla of interest" in retaining his license by responding to the charges, disbarment would likely not have been proposed and imposed. (Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 21, 2015

Bad Son And Brother

A recent Hearing Board report and recommendation from Illinois

Respondent acted as trustee of a trust his mother  established, to provide for her care during her lifetime and for distribution of  any remaining trust assets equally between Respondent and his siblings after her  death. Over a five-year period, which began while his mother was alive and  continued after she died, Respondent took more than $360,000 from the trust,  without authority. Respondent had not repaid any of this money, even though two  of his siblings filed a lawsuit, to which Respondent initially did not respond,  and obtained a judgment against Respondent.

In the other matter, Respondent allegedly failed to  properly communicate with a client he represented in a civil lawsuit and pursue  that case after trial. In his response to the ARDC's initial inquiry into that  matter and in his sworn statement to the ARDC, Respondent made false statements.

The Hearing Board found Respondent acted  dishonestly in taking the funds from the trust, conduct which warranted  professional discipline. In relation to the lawsuit against Respondent, the  Hearing Board found the Administrator did not prove misconduct, as the evidence  did not show Respondent's behavior actually prejudiced the administration of  justice and Respondent was acting solely as a party to the lawsuit.

The client Respondent represented in the civil  lawsuit did not testify. Consequently, the Hearing Board did not find sufficient  evidence to support any findings of misconduct as to that matter. The Hearing  Board found, however, that Respondent's statements to the ARDC about that case  were false and Respondent knew they were false.

The Hearing Board recommended that Respondent be  suspended for two years and until he satisfied the judgment against him in the  civil case brought by his siblings.

The board rejected a sanction imposed of suspension until further court order

From our perspective, the evidence presented as to  Respondent's mental health condition did not warrant a suspension until further  order. The personal losses Respondent experienced, while significant, occurred  in 2010 to 2011. No mental health symptoms were reported before fall 2010. By  that time, Respondent had been misappropriating funds from the Moran trust for  well over three years. The evidence did not indicate any genuine causal  relationship between Respondent's mental health condition and his misconduct;  the evidence of any link at all was inconclusive, at best. Further, the evidence did  not provide real grounds on which to believe Respondent's mental functioning was  currently impaired. From Dr. Henry's observations, Respondent's memory and  abstract reasoning were intact. Respondent reported he had returned to normal  functioning by 2012 or 2013, after receiving treatment.

We recommend Respondent's suspension also continue  until he makes restitution.

(Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Admonition For Supreme Threat

A recent admonition from Massachusetts



Knowingly Advancing Frivolous Claim or Defense [Mass. R. Prof. C. 3.1]

Improper Threat or Presentation of Criminal or Disciplinary Charges [Mass. R. Prof.

C. 3.4(h)]


On September 16, 2013, a New Jersey lawyer filed a civil suit in New Jersey Superior Court on behalf of her corporate client (Company A). The lawsuit alleged that the defendants, a corporate entity and an individual doing business as Company B, had failed to pay Company A for services rendered. The respondent represented the interests of an investor and managing member of Company B as its outside general counsel.

In October 2013, the respondent contacted the lawyer for Company A in an attempt to resolve the civil dispute. The parties were unable to resolve the matter. On or about January 27, 2014, the New Jersey court entered a default judgment against the defendants in the civil lawsuit. The defendants did not contest the entry of the default judgment or move to vacate the default judgment or reopen the matter.

On September 2, 2014, the respondent sent an email to the plaintiff’s lawyer, in which he threatened to file a motion with the Supreme Court of the United States of America seeking her disbarment unless she removed the default judgment. The respondent stated that if he was forced to file any motions in the case, he would seek her disbarment and significant attorneys’ fees and costs. After the lawyer responded to the respondent’s initial email, he sent her a second email on September 2, 2014, again threatening to petition the Supreme Court of the United States of America for her disbarment unless she dismissed the civil action and removed the judgment secured in that case. The respondent set a deadline of 6:00 p.m. on the following Friday for her to remove the judgment, or he would seek her disbarment. Therespondent further stated, “Should you have any questions, please retain the service of a competent Supreme Court of the United States of America practitioner.” Mass. R. Prof. C. 3.4(h) prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter. To the extent that the defendants had a valid defense to the New Jersey civil action, the appropriate remedy would have been for the defendants to move to vacate or remove the default judgment and seek to present their defense. In addition, the respondent had no non-frivolous basis for filing a petition seeking the disbarment of the New Jersey lawyer with the Supreme Court of the United States. In these circumstances, the respondent’s conduct violated Mass. R. Prof. C. 3.1 (prohibiting lawyers from asserting frivolous claims) and 3.4(h) (threatening to file disciplinary charges solely to gain an advantage in a private civil matter).

The respondent, who was admitted to practice in 1989 and had no prior discipline, received an admonition for his conduct on the condition that he attend a continuing legal education class identified by bar counsel.

(Mike Frisch) 

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Lien Times In Florida

From sunEthics (the premier Florida ethics blog)

In 2012 the Supreme Court rejected a proposal from the Bar that would have allowed a personal injury lawyer handling a case that required “extraordinary subrogation or lien resolution services” to refer that matter to someone outside the lawyer's law firm for these services, with that person or entity charging the client a separate fee (with the referring lawyer not sharing in that fee).  The Court made it clear that it disagreed with the underlying premise.  “After considering the concerns raised in the comment and the discussion at oral argument, we decline to adopt new subdivision (f)(4)(E).  Indeed, we take this opportunity to clarify that lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.”  In re: Amendments to the Rules Regulating The Florida Bar (Biannual Report), 101 So.3d 807 (Fla. 2012).

          The Bar reworked the lien resolution services proposal and submitted the revised version to the Court in in October 2014.  After oral argument in May 2015, the Bar petitioned the Court for a stay to allow the Bar to submit a third proposal on the subject.

          On September 17, 2015, the Court granted the Bar’s motion for stay, stating that the Bar “is directed to file a new petition with its alternative proposal on or before January 15, 2016.”   In re: Amendments to Rule Regulating The Florida Bar 4-1.5 – Fees and Costs for Legal Services, __ So.3d __ (Fla., No. SC14-2112, 9/17/2015).

(Mike Frisch)

September 21, 2015 | Permalink | Comments (0)

Convicted in Illinois And Reinstated In Wisconsin

The Wisconsin Supreme Court has reinstated an attorney who consented to license revocation in the wake of a federal wire fraud aiding and abetting conviction

Attorney Hurtgen's petition for consensual license revocation stated that he could not successfully defend against pending charges of professional misconduct relating to a conviction, entered following a guilty plea entered in the Federal District Court for the Northern District of Illinois, to one count of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 1343, 1346, and 2, in connection with a long-running federal investigation of corruption in the administration of former Illinois Governor Rod Blagojevich.

The favorable evidence

 The referee noted that letters supporting Attorney Hurtgen's petition were filed by numerous persons, including former Wisconsin Governor James E. Doyle, that each writer spoke very highly of Attorney Hurtgen, and that several mentioned their belief that Attorney Hurtgen never acted inappropriately. The referee noted that Attorney Hurtgen currently serves as a managing partner of a private investment company and as an operating director of a Chicago-based investment and merchant bank. At this time, he does not intend to use his law license, if reinstated, to practice as an attorney but instead will use the license in his own business affairs.

Huffpost Chicago reported on the guilty plea. (Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred After 59 Years; Reinstatement Denied

The Maryland Court of Appeals denied reinstatement to an attorney disbarred in 2007

Common sense also demonstrates the impropriety of Respondent's action.   In the process of crafting a clever argument to prove that no conflict existed because the confidential information lost its confidential value, Respondent loses sight of a fundamental test by which these questions ought to be resolved.   The Comment to MRPC 1.9 reads, in relevant part:  “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.”   We are of the opinion that when Respondent filed a suit sounding in contract against a former client, an entity he created, over a business transaction he helped construct by creating the relevant documents now central to the contract suit, he effectively changed sides. 

The fact that Respondent joined the side of his former client's former business partner (who he also represented in the disputed transaction) bodes worse, not better, for Respondent.   Were we to accept Respondent's position on this question, we would be approving precisely the type of betrayal of confidence and fiduciary duty the Maryland Rules of Professional Conduct are designed to protect.   See Hughes v. McDaniel, 202 Md. 626, 633, 98 A.2d 1, 4 (1953) (“[T]he confidential and fiduciary relationship enables an attorney to exercise a very strong influence over his client and often affords him opportunities to obtain undue advantage by availing himself of the client's necessities, credulity and liberality.”).   It does not take too vivid an imagination to perceive a situation where an attorney represents two parties who become embroiled in a controversy over a business transaction with one another.   Under Respondent's view of what constitutes a conflict of interest, the attorney would be permitted to choose to represent the party he or she, in his or her professional judgment, stood the best chance of prevailing.   This type of fair-weather loyalty and former client poaching is forbidden;  an attorney may not abandon the duty not to harm a former client when circumstances make it expedient and/or self-serving to do so.   As the Comment to MRPC 1.9 says, in pertinent part:  “Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client.”

The court agreed that the conflict had not been waived and that the petitioner had acted dishonestly

The hearing judge found no mitigating circumstances.   With 59 years experience as a member of the Maryland Bar, Respondent should have appreciated the extent

(Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 18, 2015

Hair Unapparent

The Louisiana Supreme Court has disbarred an attorney for misconduct in several matters.

One notable episode of client counseling

Attorney Jonathan Johnson represented the father in a child custody matter in which respondent represented the mother of the minor child. On April 12, 2012, Mr. Johnson notified respondent that he would be filing an emergency custody petition on behalf of his client based on allegations that respondent’s client was abusing illegal drugs. That afternoon, respondent went to a health store and purchased a product called Ultra Clean, a shampoo advertised as purifying buildup of medication from the hair and commonly used in attempts to avoid a positive hair follicle drug test. After purchasing the shampoo, respondent visited his client at her home.

The following day, Mr. Johnson presented the emergency custody petition, and the presiding judge conducted a pre-trial conference in chambers. During the pre-trial conference, respondent adamantly denied that his client was taking illegal drugs. The judge ordered respondent’s client to submit to drug screening, including cuticle and hair follicle testing. The hair follicle test was negative, but the cuticle test was presumed positive for marijuana, amphetamines, and methamphetamines.


On March 11, 2013, respondent pleaded guilty to one count of theft of utility service and one count of theft. He was fined $500 and sentenced to serve one hundred eighty days in jail on each count. The court suspended the sentences and placed respondent on supervised probation for one year.

The court

By his knowing and intentional misconduct, respondent has demonstrated a lack of concern for the welfare of his clients, third persons, the administration of justice, and the viability of his law license. After further considering the aggravating factors present in this case – in particular respondent’s selfish motive and his indifference to making restitution to his clients – the sanction of disbarment is fully supported.

(Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Virginia Suspends Non-Virginia Attorney

A New York attorney not admitted to practice in Virginia has been sanctioned for misconduct relation to her immigration law practice by the Virginia State Bar Disciplinary Board

Respondent practiced immigration law in the Commonwealth of Virginia. Specifically, Respondent practiced in or was associated with law offices located in Fredericksburg and Arlington County, Virginia. In October of 2011, Respondent opened her own law office in Falls Church, Virginia. From October of 2011 to March of 2012, Respondent represented a client in an immigration matter in Virginia.

She had failed to comply with the terms of a reprimand and did not respond in the bar case predicated on the non-compliance

The Chair opened the hearing by calling the case in the hearing room and causing the Assistant Clerk to call Respondent’s name three times in the adjacent hall. The Respondent did not answer or appear.

Result: six month suspension in a jurisdiction where the attorney never was admitted. (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (2)

Former City Attorney Suspended

The Vermont Supreme Court has ordered the interim suspension of an attorney convicted of felony hit-and-run.

Details from the Rutland Herald

Former city attorney Christopher Sullivan will serve at least four years behind bars in the hit-and-run death of Mary Jane Outslay.

Sullivan, 55, of Rutland, was sentenced this afternoon in Rutland criminal court. A jury convicted Sullivan in March of driving under the influence with death resulting and leaving the scene of an accident with death resulting.

Judge Theresa DiMauro sentenced Sullivan to four to 10 years in prison on each charge, with the sentences to be served concurrently.

And from Vermont Today  in July 2013

New filings in the hit-and-run case against former Rutland City official Christopher Sullivan show that prosecutors conducted secret inquest hearings before charges were brought.

Three weeks passed between the April 10 crash that killed 71-year-old Jane Outslay and the arrest of the attorney who pleaded innocent to felony counts of leaving the scene of a fatal crash and driving under the influence with death resulting.

Investigators and prosecutors with the Vermont attorney general’s office have been mostly close-mouthed about the reason for the delay in charging Sullivan, 53, who came to the city police department the day after the fatal crash to identify himself as the driver. 

The lengthy investigation outraged some in the community who believed Sullivan was receiving special treatment. But investigators said the delays were due to a thorough investigation that included numerous interviews and the analysis of autopsy and crash reconstruction evidence.

In a motion filed in Rutland criminal court this month, an attorney representing an insurance company providing coverage to Sullivan indicated that prosecutors also conducted inquest hearings: closed-door court proceedings in which a witness answers a prosecutor’s questions under oath and in the presence of a judge.

“The state proceeded with a criminal inquest,” Springfield attorney Brendan Donahue wrote in a motion filed with the court June 7, adding that Sullivan’s wife was compelled to testify along with other witnesses. “The state subsequently filed charges against Mr. Sullivan.”

The content of the inquest proceedings is unknown. Assistant Attorney General Cindy Maguire, who is handling the case, declined to comment this week, as did Donahue.

The revelation that inquests were conducted was contained in a motion from Donahue who is trying to block a subpoena from prosecutors trying to obtain an insurance claim filed by the Sullivans.

Donahue, who represents GEICO auto insurance, wrote that Sullivan’s wife reported an incident to the insurance company April 11 but no recorded statement was obtained.

The motion doesn’t indicate whether the damage to Sullivan’s 2004 Lexus sedan was reported before or after he told police he was the driver in the crash. The subpoena ordered by the attorney general’s office indicates that prosecutors don’t know the answer to that question, either, as the request seeks “the time the claim was reported, who reported the claim and any statements made by the policy holders.”

After the initial claim was filed, Donahue said GEICO was directed to conduct all further communications regarding the claim through Rutland attorney William O’Rourke.

O’Rourke couldn’t immediately be reached for comment Wednesday.

In his motion to quash the state’s subpoena, Donahue argues that the company shouldn’t be compelled to turn the claim over to prosecutors because the file is protected by a number of exemptions, including attorney-client privilege and insurer-insured privileges. He also asked that if the documents must be turned over that they be examined in a private hearing.

Donahue also argued that prosecutors didn’t need the insurance records because of the inquest hearing.

“The state cannot make any showing that it is in substantial need of the information it seeks or that it is unable to obtain the equivalent information without undue hardship,” Donahue wrote. “The state has the benefit of the police investigation as well as the inquest testimony it gathered from various witnesses, including Mrs. Sullivan.”

The attorney general’s office has not filed a response to the motion and no hearing date has been set to consider the request.

Prosecutors say Sullivan was impaired by alcohol when he struck and killed Outslay, of Mendon, who was crossing Strongs Avenue at about 5:10 p.m.

Investigators said the impact did considerable damage to the hood and windshield of Sullivan’s car — including a significant hole in the passenger side of the windshield — but Sullivan did not stop at the scene.

Instead, police say he drove to a parking lot in Rutland Town where he called his legal partner for advice before going home.

The court has set a trial ready date in Sullivan’s case for January 15.

Sullivan served in City Hall as the city attorney and assistant city attorney for 19 years until 2007.

The suspension will remain in effect while the circumstances are investigated. (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Informal Admonition For Commingling: Attorney Left Earned Fee In Escrow Account For Six Weeks

The District of Columbia Office of Bar Counsel informally admonished an attorney who commingled funds by failing to remove an earned fee from her escrow account

Because you failed to promptly remove your earned fees from your IOLTA account, you commingled your funds with entrusted funds from two client matters for a six-week period of time. Such commingling violated the Rule, in that you failed to segregate your funds from those held in trust for clients and/or third persons.

We have determined that an informal admonition, rather than a more substantial sanction, is warranted under the circumstances of this case. Specifically, during the pertinent period of time, you properly placed client funds in trust rather than in your operating or personal account, which would have placed your clients' funds at risk. Here, there was no apparent risk to the clients and you made prompt disbursement to the clients and third party providers from the settlements. We also take into consideration that you do not regularly handle entrusted funds in the course of your practice and that you no longer manage the IOLT A account, but rather, have delegated that duty to the managing partner of your firm.

In deciding to issue this Informal Admonition rather than institute formal disciplinary charges against you, we have taken into consideration that you cooperated with our investigation, you have accepted responsibility for your actions, and you have no prior discipline although you have been practicing in this jurisdiction for 34 years. You also have agreed to take six hours of Continuing Legal Education (CLE) classes, pre-approved by this office, and on the subject of trust accounts. You agree to forward proof of attendance of the CLE classes within six months of the date of this Informal Admonition and you agree that if this proof of attendance is not submitted to Bar Counsel within six months of this Informal Admonition, then this Informal Admonition will be considered null and void and we will re-open this matter.

Access the informal admonition at this link by entering the name Patricia Barnes . (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (1)

"Strong" Censure Not Enough

The New Jersey Supreme Court approved a recommendation by its Disciplinary Review Board for a three-month suspension of an attorney.

From the board report

This matter was before us on a recommendation for a (strong) censure filed by the District VB Ethics Committee (DEC).... The Office of Attorney Ethics (OAE) urged the imposition of a one-year suspension. Respondent’s counsel, in turn, took the position that either a reprimand or a censure is appropriate. For the reasons expressed below, we determine to impose a three-month suspension.

The misconduct involved ethical violations in three real estate closings.

In one

Respondent stipulated that she had not properly collected or disbursed the closing funds, despite having certified that the HUD-I contained an accurate accounting of her disbursements for the transaction. For example, even though the HUD-I showed $212,874 in total proc,eeds to the sellers, respondent disbursed only $15,000 to the Grahams. Also, she wired $93,074.46 directly to Jorge Abbud, even though he was not listed on the HUD-I.

 Her counsel argued

In his summation, respondent’s counsel characterized respondent as not a venal person, but an "unwitting dupe," who trusted Abbud and the parties to the transactions. She thought that Abbud had the lenders’ authorization to direct her to act as she did.


Respondent agreed to represent three buyers in real estate transactions arranged by loan officer Jorge Abbud. In all three matters, which closed between April 2007 and March 2008, respondent served as the settlement agent and drafted the HUD-Is. Respondent gave the parties the use and occupancy agreements and other customary closing documents for their signature, including sellers’ and buyers’ affidavits of title. She prepared some of those documents, while others were prepared by the lender. Nevertheless, respondent witnessed the signing of various false affidavits and certifications for the closings. She also disbursed funds in a manner inconsistent with the HUD-Is in all of the transactions. Throughout the proceedings below, she admitted that to the extent that she disbursed to Abbud funds that did not appear at all on the HUD-Is and disbursed to the buyers and the seller’s funds in amounts that were at odds with the HUD-Is, she was guilty of conduct involving dishonesty, fraud, deceit, or misrepresentation, violations of RPC 8.4(c).

Respondent also admitted that RPC 1.5(b) required her to provide her buyer clients, whom she did not regularly represent, with a writing setting forth the rate or basis of her fee and that, by failing to do so, she violated that RPC. She denied, however, that she had violated that rule with regard to the sellers...

In furnishing affidavits of title or owner occupancy agreements to the buyers for their signatures and having them sign those documents with the above representations, respondent facilitated what is commonly known as occupancy fraud. That type of fraud takes place when, in order to obtain more favorable loan terms, the borrower (the buyer) misrepresents to the lender that the property will be owner-occupied. Lenders typically offer lower mortgage rates and higher loans for owner-occupied homes, because investment properties historically present a higher delinquency risk.

The board rejected conflicts allegations

That respondent represented both buyers and sellers in some aspects of these transactions is undisputed, however. But we cannot find a violation of RPC 1.7(a). Respondent testified that she had explained the conflict to all of the clients in the three transactions and had obtained written conflict waivers from them. Those waivers are both comprehensive and fully informative. There is no evidence to contradict respondent’s version of the events in this regard. Because the clients gave informed consent, confirmed in writing, after full disclosure, we determine to dismiss the RPC 1.7(a) charges in all three matters.

A strong censure was deemed an insufficient sanction. (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Hygienic Procedure Leads To Approval Of Class Action Settlement

The Delaware Chancery Court approved a class action settlement and discussed the role of class counsel

As a bench judge in a court of equity, much of what I do involves problems of, in a general sense, agency: insuring that those acting for the benefit of others perform with fidelity, rather than doing what comes naturally to men and women— pursuing their own interests, sometimes in ways that conflict with the interests of their principals. In this task, I am generally aided by advocates in an adversarial system, each representing the interest of his client. Of course, these counsel are themselves agents, but their actions are generally aligned with that of their principals in a way that does not require Court involvement. The area of class litigation involving the actions of fiduciaries stands apart from this general rule, however, especially in litigation like the instant case, involving the termination of ownership rights of corporate stockholders via merger. Such cases are particularly fraught with questions of agency: among others, the basic questions regarding the behavior of the fiduciaries that are the subject of the litigation; questions of metaagency involving the adequacy of the actions of the class representative—the plaintiff—on behalf of the class; and what might be termed meta-meta-agency questions involving the motivations of counsel for the class representative in prosecuting the litigation. At each remove, there may be interests of the agent that diverge from that of the principals. This matter, involving the deceptively straightforward review of a proposed settlement, bears a full load of such freight.

The case involves the proposed settlement of claims involving Riverbed Technology.

The court certified the class action 

The only remaining question regarding certification of the Class representatives involves whether the representatives and their counsel had adequate incentives to pursue faithfully the interests of the Class, which is subsumed in the analysis of the Settlement.

And with respect to a law professor who purchased stock and objected

The Plaintiffs opine that if objectors in Mr. Griffith‘s position are permitted to be heard, "professional" objectors with nefarious strike-suit motives will pop up like mushrooms after a two-day rain. This Court has tools, however, including application of the doctrine of unclean hands, to deal with that problem, should it occur. At any rate, given that Mr. Griffith is a member of the Class and thus interested in the Settlement, I find that he is entitled to oppose the Settlement.


Settlements in class actions present a well-known agency problem: A plaintiff‘s attorney may favor a quick settlement where the additional effort required to fully develop valuable claims on behalf of the class may not generate an additional fee as lucrative to the plaintiff‘s attorney as accepting a quick and moderate fee, then pursuing other interests. The interest of the principal—the individual plaintiff/stockholder—is often so small that it serves as scant check on the perverse incentive described above, notwithstanding that the aggregate interest of the class in pursuing litigation may be great—the very problem that makes class litigation appropriate in the first instance. This agency problem is, in part, ameliorated—but not entirely eliminated— by requiring counsel for both sides to refrain from negotiating fees until a settlement of the underlying matter is reached. I am assured that this hygienic procedure was followed scrupulously here. Nonetheless, the agency problem remains, as both sides are necessarily aware that the common benefit doctrine will permit the plaintiffs to seek an award of fees. Nothing in this discussion should be read as a criticism of plaintiffs‘ counsel in class actions, either collectively or with reference to the individuals here. In fact, the proper functioning of our system of common-law review of corporate actions could not occur absent an active plaintiffs‘ bar, and much conduct by corporate fiduciaries inimical to the interests of the stockholders—the core agency problem—would never see the light of day if not for the efforts of counsel and the risks they take in the prosecution of cases for a contingency fee, on behalf of the stockholders. It has also been my experience that counsel appearing on behalf of a class take their professional responsibilities to that class seriously. Nonetheless, in reviewing settlements, the incentives that operate on the representatives and their counsel bear examination.

That examination led to approval of both the settlement and the attorneys fees. (Mike Frisch)

September 18, 2015 | Permalink | Comments (0)

Improper Argument Dooms Murder Conviction

A prosecutor's improper closing argument requires the Commonwealth to accept either a reduced verdict or a new trial, according to a recent opinion of the Massachusetts Supreme Judicial Court

It is improper for a prosecutor to characterize a criminal trial as a dispute between a deceased victim on the one hand, and the defendant on the other, and to exhort the jury to dispense justice evenly between them. The deceased is not a party to the case. A criminal trial places the interests of the Commonwealth and the defendant against one another. An argument that asks the jury to give justice to the victim is an improper appeal to sympathy for the victim. The prosecutor's improper call to justice for the victim was aggravated by his inclusion of the paramedics and the civilian witnesses to the victim's last moments in his appeal to sympathy. Similarly, the prosecutor's argument that the victim's life mattered, and that the victim had a constitutional right to live, were improper appeals to sympathy.

These improprieties were not just fleeting comments or minor aspects of his closing argument, nor were they the type of afterthought that we have said does not require reversal. The improper comments at the end of the closing comprised a structural segment, indeed, the denouement of the prosecutor's closing.

The court's denoument

The Commonwealth shall have the option of either retrying the defendant on the murder indictment or accepting a reduction of the verdict to manslaughter, which was the verdict urged by the defendant at his first trial, and which is the verdict he could best hope to obtain after a request for an instruction on reasonable provocation. See Commonwealth v. Howard, 469 Mass. 721, 750 (2014). The Commonwealth shall inform this court within fourteen days of the date this opinion issues whether it will retry the defendant for murder in the first degree or move to have the defendant sentenced for manslaughter. After the Commonwealth so informs us, we will issue an appropriate rescript to the Superior Court.

(Mike Frisch)

September 18, 2015 | Permalink | Comments (0)

No Disbarment Proposed For "Very Strange" Behavior

An Illinois Hearing Board recently recommended a two-year and until further order suspension of an attorney for misconduct

which included the failure to safeguard a legatee's property, dishonesty, commingling by depositing his own funds into his client trust account, and failing to comply with requests from the Administrator, [and] is extremely serious.

The board notes

We find the Respondent's behavior over the past five years to be very strange, in light of his previous 30 years of practice without being disciplined. We have no evidence as to the possible motivation or causes of the Respondent's strange behavior, but we are concerned that his misconduct, his failure to participate in these procceedings [sic], and his other recent behavior may be causally related to some mental health issue, addiction problem or other impairment. In light of what is before us, we are not convinced that disbarment is the appropriate sanction in this case. We believe that a suspension until further order of the Court would adequately protect the public and the legal profession. With such a suspension, Respondent would not be permitted to practice law until he proves, by clear and convincing evidence, to the Supreme Court, following his filing of a Petition for Reinstatement and a hearing before a Hearing Panel, that he is fit to practice. Thus, if Respondent's misconduct was related to some impairment, he would have the opportunity to address that issue in a Petition for Reinstatment [sic] without the stigma of disbarment and being required to wait five years to do so.

(Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 17, 2015

Worst Report Remanded

The District of Columbia Court of Appeals has remanded the case involving The Worst Hearing Committee Report in D.C. Bar history.

The court sustained the Board of Professional Responsibility's rejection of dishonesty charges and remanded for further consideration of conflict of interest charges.

There are several aspects of this action that I find unfortunate in a case that was so poisoned by counter-factual fact findings.

First, the court accepts the hearing committee's findings that the elderly victim of the gross misconduct was legally competent.

We take as a given for these purposes the Board’s conclusions that Ms. Ackerman had the legal capacity to make the decisions at issue; wanted to transfer her assets to Dr. Ackerman’s control; wanted to provide for Dr. Ackerman, even to her financial detriment; did not want the trust to continue; did not want Mr. Abbott to continue as trustee; was willing to pursue litigation to achieve these objectives; and was aware of the risks and costs of litigation. Nevertheless, there was evidence (largely if not entirely undisputed) of numerous other circumstances indicating a risk of conflicting interests requiring informed consent to joint representation.

My review of the record inescapably leads to a contrary conclusion to the findings of a obviously rogue hearing committee.

Second, the court should never remand matters to the BPR when it clearly is on record that it believes no misconduct occurred.

Well, as a judge of the court once said, I have a vote and you (loyal blogger) do not.

The remand requires an exploration of informed consent

In the circumstances of this case, we conclude that the Szymkowiczes could not properly represent both Ms. Ackerman and Dr. Ackerman without obtaining informed consent to the joint representation. Because it concluded that informed consent was not required, the Board did not decide whether informed consent was obtained. The Hearing Committee did conclude that Mr. J.T. Szymkowicz obtained Ms. Ackerman’s informed consent. Nevertheless, “[r]ather than deciding [that] issue without the benefit of the Board’s judgment, we leave [the issue] for the Board to consider on remand . . . .” In re Hopkins, 677 A.2d 55, 63 n.17 (D.C. 1996).  We do, however, note several issues that may merit the Board’s consideration: (1) whether, as Bar Counsel contends, respondents bear the burden of establishing that they obtained informed consent or whether instead Bar Counsel bears the burden in disciplinary proceedings of establishing the absence of informed consent; (2) whether, as the Hearing Committee appears to have assumed, the determination whether Ms. Ackerman gave informed consent should be made under the standard applicable to the determination whether a party had capacity to engage in a transaction; (3) whether Rule 1.7 (b)(2) is violated whenever the requisite informed consent is not in fact obtained, or whether instead it is a defense under the Rule that the attorney reasonably but mistakenly believed that informed consent had been obtained; (4) the implications of Rule 1.14, which addresses the obligations of a lawyer representing a client with diminished capacity, a topic we discuss infra with respect to the conflict-of-interest charges against Ms. Silverman and Mr. King; and (5) the date on which the Szymkowiczes ended their representation of Ms. Ackerman.

The court concludes that "Ms. Ackerman’s mental capacity was indisputably diminished to a degree" and asks that the implications of Rule 1.14 be addressed on remand.

I view this result as somewhat better than a Get Out of Jail Free Card but have little hope that the board will treat the matter with the seriousness it richly deserves. (Mike Frisch)

September 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Censure For Driving Under Influence Of Cocaine

An attorney convicted of driving while under the influence of cocaine has been publicly censured for the offense by the New York Appellate Division for the Second Judicial Department.

On October 3, 2013, before the Honorable Derrick Robinson, District Court, County of Suffolk, First District, the respondent pleaded guilty to the charge of driving while ability impaired by drugs, under Vehicle and Traffic Law § 1192(4), an unclassified misdemeanor. In his plea allocution, the respondent admitted that he operated a motor vehicle in an impaired condition, after ingesting cocaine. The respondent was sentenced on February 19, 2014, to three years of probation, a $500 fine, a $395 surcharge, and revocation of his driver license for six months. Based upon the foregoing, charge two of the petition alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct.

 No suspension because

In determining an appropriate measure of discipline to impose, this Court has considered the following factors in mitigation: the isolated nature of the misconduct, the respondent's voluntary efforts at rehabilitation, his sincere statements of remorse, the testimony of the character witnesses as to the respondent's integrity and reputation for excellence, and his unblemished disciplinary record.

What is notable here is the profound difference in disciplinary consequence between a felony and misdemeanor conviction in New York.

Lawyers are regularly disbarred for felony DUI but a misdemeanor gives the court discretion to impose a mild sanction, as here. (Mike Frisch)

September 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Lawmaker, Lawbreaker

The New York appellate Division for the Second Judicial Department imposed automatic disbarment on a former legislator convicted of mail fraud.

Newsday reported on the crimes

Former Nassau Legis. David Denenberg is going to prison for 90 days for bilking a law firm client out of $2.3 million -- a sentence the firm criticized as too lenient.

Denenberg, 52, had faced more than 4 years in prison under a plea deal in which he pleaded guilty to eight felony counts of mail fraud.

"While he was a lawmaker, he was a lawbreaker," U.S. District Court Judge Joanna Seybert said during the sentencing Friday in Central Islip.

Looking at Denenberg, she added: "That means during your 15 years as a legislator, you spent eight years stealing."

But Seybert said she weighed the crimes against Denenberg's accomplishments, taking about 125 letters of support into account.

The judge lauded the eight-term Merrick Democrat for his commitment and hard work on behalf of Nassau County residents. Acknowledging the leniency of the sentence, Seybert said she didn't believe Denenberg abused his political office.

Denenberg's former law firm in Garden City, which uncovered the fraud, wasn't satisfied with the punishment.

"I think a 3-month jail time is not significant when you consider the impact of the crime," said Larry Hutcher, comanaging partner of Davidoff Hutcher & Citron.

Hutcher said the ripple effect of the crimes on the firm and its employees were "very dramatic and serious."

Last September, the firm sued Denenberg, who, his lawyer and prosecutors said, has made full restitution to the client, Systemax, a Port Washington computer and electronics retailer.

"We've moved on with our lives, and we will live with whatever the court did," Hutcher said.

Systemax officials could not be reached.

Denenberg billed the company for $2.2 million between November 2006 and last June for "legal services never rendered," according to court papers. Authorities said he billed the same client for another $126,000 "for expenses never incurred."

(Mike Frisch)

September 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 16, 2015

Judge Suspended With Pay

A Minnesota judge has been suspended with pay by the state Supreme Court.

The Star Tribune reported on allegations against the judge

A state board’s investigation has found that an Anoka County judge failed to live in his judicial district, a violation of Minnesota’s Constitution.

Last week, the Board on Judicial Standards filed a formal complaint against District Judge Alan Pendleton for living in his wife’s house in Minnetonka, which is in Hennepin County, for eight months starting in December 2013. The board has asked the state Supreme Court to appoint a three-person panel to conduct a public hearing on the matter.

The panel could dismiss the case or recommend that the Supreme Court issue an order for censure, suspension or other sanction.

The case is not without precedent. In 2011, Hennepin County District Judge Patricia Kerr Karasov was censured and suspended without pay for six months for a similar offense. She is no longer an active judge.

In his six-page response to the board, Pendleton strongly denied the allegations. He said he did stay temporarily at his wife’s house during the time stated by the board, but it was so that he could find a new residence in Anoka County and handle personal and school issues involving his son.

Pendleton also attacked the board’s investigation, describing it as perfunctory. He said the board failed to disclose that it was the complainant in his case, didn’t give him proper notice when he was ordered to testify and asked improper questions about his sex life. It is highly unusual for the board to be a complainant in such a case.

Thomas Vasaly, the board’s executive secretary, didn’t return repeated calls for comment Friday. Doug Kelley, Pendleton’s attorney, said his client “always intended to return to and reside in his judicial district.”

He pointed out that when the Supreme Court issued its discipline against Karasov, the justices said an inquiry into residency must be “highly fact-specific” and consider the judge’s physical presence and intent to reside with the judicial district.

“The judge took a number of concrete steps to look for an apartment and did it before he ever knew he was being investigated by the board,” Kelley said.

Ventura appointment

Pendleton, 59, was appointed to the Tenth Judicial District by former Gov. Jesse Ventura in 1999.

He received an outstanding judge award from the state’s District Judges Association in 2012 for his commitment to improving the judicial system and promotion of judicial efficiency.

“I’ve been blessed. Oh, not by this honor, which I was not expecting at all and means a great deal to me,” he said in a Star Tribune article when he received the award.

“I’m tremendously honored to be part of this profession, to be a small part of the legal system. The recognition embarrasses me a little. It’s the system that I love.”

The panel for Pendleton’s public hearing will consist of a judge, an attorney and a civilian not involved in the legal field. The board filed its complaint against him Oct. 31.

The board received information concerning Pendleton in July and met with him a month later.

From July 2012 until November 2013, he owned a condominium in Anoka, it found.

He then sold it and moved into his wife’s house. In August 2014, he started to rent an apartment in Anoka County.

When Pendleton filed his affidavit to run for re-election for his judicial office this year, he wrote down the address of the condominium he no longer owned.

Pendleton’s response to the board said he received assurances from them that his living arrangements complied with ethical requirements respecting judiciary residency.

He added that the board’s investigation was limited to looking up real estate tax information about his wife’s home and trying to view pictures of it on Google Maps.

Family issues

He sold his condominium to save money and move closer to his children’s high school and moved his personal possessions to a storage unit and temporarily stayed with his wife while he searched for a new apartment, he said.

He argued that that doesn’t constitute moving from the district as defined by law and interpreted by the Supreme Court in the Karasov case.

In January 2014, one of Pendleton’s children had some personal problems, which caused the judge and his ex-wife to discuss moving the child to another school. Because it was a major decision, Pendleton stayed with his current wife in Minnetonka as the family considered options, he said.

Once the issue was resolved, he promptly located an apartment near his children’s high school, he said.

His apartment unit was under renovation, which delayed his occupancy for two months.

Pendleton added that he mistakenly listed his condominium address on his candidacy affidavit and that it’s optional for judges to list it.

The suspension is effective until the court decides appropriate discipline. (Mike Frisch)

September 16, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Reprimand Rather Than Suspension

The Wisconsin Supreme Court affirmed findings of misconduct based on the attorney 's default but rejected the suspension proposed by the referee and the Office of Lawyer Regulation in favor of a public reprimand.

Under the particular circumstances of this case, we disagree with the OLR and the referee that a suspension is required and conclude that a public reprimand is sufficient to accomplish these goals. As an initial matter, we are basing our decision upon the five counts of misconduct arising out of the Racine County matter rather than the ten counts the OLR and the referee were considering. While reducing the number of counts by one-half does not automatically mean that there should be a lower level of discipline, we determine that the misconduct in the only remaining matter here warrants a public reprimand.

While we accept the referee's findings of fact, including that Attorney Boyle engaged in the practice of law in this state while he was not authorized to do so and made some statements that were not true, those actions must be considered in their proper context to fashion a proper response. Here, the OLR acknowledged before the referee that there was no evidence of a dishonest or selfish motive. In the Racine County matter, the only one relevant to the issue of a sanction, Attorney Boyle was acting on a pro bono basis to assist a person with limited English skills, who had been unable to find another attorney willing to take on her case after her husband had been killed. While some of the time pressure he was under may have been of his own making, Attorney Boyle was attempting to investigate and file a claim for this widow before the statute of limitations expired. His goal of helping a person facing difficult obstacles does not excuse his misconduct, but it should be a factor in fashioning the proper response to the misconduct. We are not dealing here with a lawyer who is acting improperly for his own benefit, but rather with someone who acted overzealously and improperly while trying to help a disadvantaged person without compensation.

In addition, it is important to note that Attorney Boyle did make multiple attempts to contact the relevant agencies, both over the telephone and even in person, to determine how he could properly represent L.S. and get her case filed before the expiration of the statute of limitations despite his administrative suspension. While he ultimately chose the wrong path of filing a complaint and an amended complaint before obtaining any order authorizing him to engage once more in the practice of law in this state and before even petitioning for such an order, his attempts to seek guidance from the regulatory agencies demonstrate that he was not acting with complete disregard for the law and the ethical rules.

Suspension is not required

it is worth noting that this is the first time in the approximately three decades since his admission to the practice of law in Wisconsin that Attorney Boyle has been the subject of professional discipline in this state. While the OLR may contend that as an experienced attorney Attorney Boyle should have known better, the length of his admission to practice in this state without prior discipline also means that he has not created a reason thus far to believe that the public must be protected from the risk of his misconduct. On the other hand, Attorney Boyle should understand that his experience as a lawyer should not be used as an excuse to ignore the particularities of the ethical rules and the local court rules that govern his conduct or to stretch the truth in an effort to pursue what he believes is a just outcome.

Attorney Boyle should also not construe this opinion as a vindication of his conduct. He violated the ethical rules governing his conduct, and deserves to be disciplined for that misconduct. We simply conclude that while Attorney Boyle violated his ethical obligations as an attorney, a public reprimand will be sufficient to impress upon him the seriousness of his misconduct and to deter him from similar future ethical violations. 

Justice Bradley dissented on sanction, concluding that the majority had minimized the misrepresentations made by the attorney

Because I consider making false statements to a court a grievous matter and given his prior discipline imposed by the Illinois Supreme Court, I conclude that a public reprimand imposed by the per curiam is inadequate discipline for Attorney Boyle’s conduct. Additionally, because the OLR and referee's recommendations were based, in part, on the five Northern District Court counts, I believe more than a cursory reference to those counts is necessary to understand their recommendations.

Justice Abrahamson joined the dissent. (Mike Frisch)

September 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)