Wednesday, December 17, 2014
The Ohio Supreme Court has imposed a stayed two-year suspension of an attorney who had filed the identical brief in 31 of 35 criminal appeals:
Since being admitted to the bar in 2001, respondent has been a solo practitioner. In recent years, his practice has consisted of court-appointed work, primarily in juvenile court. But from 2006 to 2010, the Ashland County Court of Common Pleas appointed Milhoan to handle 35 criminal appeals. Of those 35 cases, 31 involved appeals from guilty pleas. In each of those cases, Milhoan filed appellate briefs that were identical except for certain “case-specific modifications such as names, dates, crimes, sentences, and potential mitigation,” according to the stipulations.
The parties stipulated and the board found that each brief (1) was ten pages long, (2) repeated the same grammatical errors, (3) raised the same assignment of error—“The imposition of a prison sentence in this case imposes an unnecessary burden on state’s resources”—(4) failed to cite any case law in support of the assigned error, and (5) failed to include any information regarding the cost of incarceration or why the appellant’s sentence would burden the state’s resources. The briefs cited only one case (for the definition of clear and convincing evidence) and four sections of the Revised Code—three related to sentencing and one regarding appeal as a matter of right. And although these 31 briefs were virtually identical, in 29 of these cases, Milhoan requested at least three extensions of time to file his appellate briefs.
The court considered evidence of alcohol abuse and required the attorney to comply with the bar's assistance program. (Mike Frisch)
Tuesday, December 16, 2014
Somehow I missed an order of the District of Columbia Court of Appeals amending to Rule XI, section I to extend disciplinary jurisdiction over
all new and visiting clinical professors providing services pursuant to Rule 48(e) (4).
The change is effective as of October 2.
Here's hoping there are no cases involving alleged ethics violations by this class of lawyers. (Mike Frisch)
The Oklahoma Supreme Court has adopted a new rule governing immunity in bar admissions matters
(a) The Board of Bar Examiners and its members, employees and agents are immune from all civil liability for damages for conduct and communications occurring in the performance of and within the scope of their official duties relating to the examination, character and fitness qualification, and licensing of persons seeking to be admitted to the practice of law or seeking to be registered as a law student.
(b) Records, statements of opinion and other information regarding an applicant for admission to the bar or for registration as a law student communicated by any entity, including any person, firm or institution, without malice, to the Board of Bar Examiners, or its members, employees or agents, are privileged and civil suits for damages predicated thereon may not be instituted.
The court also adopted a rule to permit practice by military spouses. (Mike Frisch)
The District of Columbia Office of Bar Counsel has informally admonished an Assistant United States Attorney in the Southern District of Florida for conduct described in the letter of informal admonition
We find that you violated Florida Rule 4-8.4( c) which prohibits engaging in conduct involving "dishonesty, fraud, deceit, or misrepresentation." This violation occurred when you falsely told a U.S. Magistrate Judge's secretary that you had obtained prior supervisory review and approval of a tracker warrant application that you were filing with the court, when you had not obtained such review or approval.
In deciding to issue this letter of Informal Admonition rather than institute formal disciplinary charges against you, we have taken into consideration that you took this matter seriously, that you cooperated with our investigation, that you admitted the misconduct soon after it occurred, that you have no prior discipline, and that you have accepted responsibility for your misconduct including by accepting this Informal Admonition.
The full letter may be found at this link by inserting the name of the attorney, Brent S. Tantillo. (Mike Frisch)
Monday, December 15, 2014
Disbarment should be imposed on an attorney who violated several ethics rules, according to a recent report and recommendation of the Illinois Review Board
The [disciplinary] cases were consolidated for purposes of oral argument. In 2010PR00153, the Hearing Board found that Respondent engaged in misconduct involving several clients, including 1) improperly taking money from a charitable fund set up to benefit his clients and lying about his use of the money, 2) engaging in a conflict of interest by representing multiple clients in a criminal case, 3) failing to refund an unearned fee and creating false billing records and lying about his services in an effort to justify the fee, 4) engaging in a conflict of interest by representing a wife in a divorce case while representing the husband in criminal charges and civil litigation, 5) misappropriating funds belonging to a client. The Hearing Board recommended disbarment.
In 2012PR00123, the Hearing Board found that Respondent in a foreclosure matter, rented the property of his clients without their knowledge, improperly kept the rental income, and lied to his clients and others. The Hearing Board also found that Respondent failed to return an unearned retainer in a second matter and in a third matter, failed to deposit a retainer into his client fund account and then used the retainer for his personal purposes and failed to return the unearned portion of the fee. The Hearing Board recommended that Respondent be suspended for three years and until further order of the Court.
The attorney filed exceptions to the hearing board reports but failed to appear for oral argument. (Mike Frisch)
The Alaska Supreme Court has disbarred an attorney who misappropriated the funds of a deceased client's estate and concealed the thefts through lies over a three-year period.
An attorney misappropriated a deceased client’s funds — rightfully belonging to the decedent’s estate — and hid this misappropriation through deception while providing legal services to the estate’s personal representative. Throughout more than three years of disciplinary proceedings, the attorney maintained that the funds had been gifted to her and that she was following the decedent’s wishes in deceiving the estate. The Alaska Bar Association’s Disciplinary Board found that no gift had been intended or accomplished and that, among other violations, the attorney committed the criminal act of theft, misappropriation, or wrongful conversion. The Board recommends that we disbar the attorney. After independently reviewing the record, we agree with the Board and impose the recommended sanction.
The attorney, who was admitted in 1989, had claimed that the funds at issue had been gifted to her by the now-deceased client.
The client and attorney met when he built her a fence as a handyman.
The client had died unexpectedly without a will and with his mother as his sole heir.
The attorney claimed that the client had given her a business account with approximately $20.000 on deposit.
The court affirmed findings below that there was no gift. (Mike Frisch)
Friday, December 12, 2014
The Louisiana Supreme Court has found that an attorney violated ethics rules by engaging in a sexual relationship with a current client.
The court ordered a six-month suspension with three months stayed.
The Office of Disciplinary Counsel had charged the attorney with misconduct by having consensual sex with five other women who at one time or another had either retained his services or consulted with him.
The attorney's practice was almost exclusively devoted to family law matters.
The court rejected the ODC's contention that the "no sex" rule applies to relations with former clients and prospective clients who choose not to retain an attorney:
We find no support for this position in the Rules of Professional Conduct.
Justice Knoll concurred but "strongly disagreed" with the holding that the attorney did not violate ethics rules in having sex with former clients while their domestic matter remains pending.
She concludes that the attorney's
sexual involvement with numerous female clients evidences a pattern of conduct by means of his practice which degrades his obligations to the clients and demeans a time-honored profession.
Justice Weimer agreed with Justice Knoll and would find the conduct prejudicial to the administration of justice. (Mike Frisch)
The Nebraska Supreme Court has suspended an attorney for 30 days followed by a year of supervised probation for an attorney's mishandling of a guardianship and probate matter.
There were record-keeping violations as well.
The attorney contended that the referee erred in declining to consider post traumatic stress disorder resulting from his status as a combat-wounded Vietnam veteran in mitigation.
The court agreed that the misconduct was not caused by PTSD, citing a letter from the attorney's own psychiatrist that declined to find a causal link between the condition and the ethical violations.
The court did consider his long years of unblemished practice in rejecting the referee's proposed 90 day suspension.
One thing that the casual reader might overlook stood out to me.
The charges were filed in November 2013. The referee heard the case in February and March of this year. The court has now decided it by the end of the year.
That promptness reflects well on the Nebraska bar discipline system.
There are plenty of jurisdictions (hello, D.C.) where the idea of moving a bar discipline matter from initial report to final resolution in a single calendar year is unfathomable.
Believe it or not, in the District of Columbia, it takes about a year for charges filed by Bar Counsel to be reviewed and approved for a formal hearing. It can then take as long as six months to schedule a hearing.
What's worse, no one in a position of authority seems to care. (Mike Frisch)
A three-year suspension has been imposed by the Wisconsin Supreme Court for an attorney 's misconduct in converting entrusted funds and falsely telling the client that the funds were invested.
In fact, a generous share had used by himself and on behalf of a third party.
There are many aggravating factors. Attorney Carter's conduct involved much more than simple negligence. His conduct was reckless and highly unprofessional. In answer to N.N.'s repeated requests for her funds——over $70,000 of which he had converted——Attorney Carter wove elaborate stories of investment instruments in which he had supposedly placed her money. These supposed investments were pure fiction. Not long after N.N. objected to Attorney Carter's supposed investment scheme, Attorney Carter took action to create leverage over N.N.: he sent her a $43,400 legal bill. He refused to release the remainder of N.N's funds in trust until they reached an agreement on his fees. He accused N.N. of trying to take advantage of him by not insisting that he prepare a written fee agreement listing his hourly rate. These forms of deception and subterfuge are highly damaging to the public's confidence in the integrity and trustworthiness of the bar.
There are mitigating factors as well. Attorney Carter has had no previous disciplinary troubles over the course of his long legal career. He has earned a solid reputation among his peers and in the community. It appears he repaid most, and perhaps all, of the money he misappropriated from N.N. (The record is unclear as to whether he ever accounted for the $5,000 fee payment he withdrew from his trust account without N.N.'s knowledge.) He has admitted his wrongdoing, pled no contest to all 11 counts of misconduct, and expressed shame and remorse.
The mitigating factors were deemed sufficient to avoid license revocation.
Nor did the court accept this contention
We pause to remark briefly on Attorney Carter's claim that at his age (he was born in 1943), a three-year suspension——which will require him to petition this court for reinstatement under SCR 22.28(3)——might effectively end his career. Attorney Carter generally maintains that it is sad for an otherwise untarnished career to potentially end this way. We agree with this sentiment: this is an unfortunate case involving anomalous behavior from an otherwise ethical lawyer, and we do not relish deciding it. But we decline to transform this sentiment into anything more than what it is——a sentiment, not a principle of law. This court cannot countenance a rule that would soft-pedal the discipline owed to attorneys who lie to and misappropriate funds from their clients so long as they do so in the twilight of their careers.
Thursday, December 11, 2014
We posted a report the other day about an attorney who was convicted of robbing three banks.
The Pennsylvania Supreme Court has suspended a member of its bar as a result of a conviction for robbing a gas station.
Steve Marroni reports
An attorney who pleaded guilty to robbing a Lebanon County gas station will be temporarily suspended from practicing law in Pennsylvania.
The temporary suspension from the Disciplinary Board of the Supreme Court of Pennsylvania for Kathy L. Yeatter, 51, whose office is located in Rexmont, was issued Wednesday, several months after she was convicted in Lebanon County Court of one count of robbery.
Yeatter was charged in the Nov. 12, 2013 robbery of the Sunoco A-Plus Market on Route 72 in West Cornwall Township. Police said Yeatter stole an undetermined amount of cash from the gas station.
An officer responding to the Sunoco passed Yeatter's Volvo on Route 419 and arrested her without incident, police said.
Court records indicate Yeatter pleaded guilty to one third-degree felony count of robbery on March 27. She was sentenced May 21 to 23 months in the Lebanon County Intermediate Punishment Program, which includes 26 days of credit for time served and credit for inpatient treatment. The rest of her sentence will be served on probation with continued treatment and random drug and alcohol testing, according to court records.
Yeatter's suspension is effective Jan. 9. According to the disciplinary board, a petition for discipline will likely be filed against her, as well, which could result in further suspension or disbarment.
The New Jersey Supreme Court has agreed with its Disciplinary Review Board that a six-month suspension is appropriate for conduct that amounted to witness tampering.
The attorney had been previously reprimanded. The misconduct here involved a failed attempt to induce a witness to give false evidence to undo the reprimand.
The DEC found that respondent’s conduct in this matter "was borne out of a self-serving interest, because Respondent rejected the prior finding that misconduct." Specifically, instead of filing a petition for review of our decision, as provided in R~ 1:20--16(b), respondent sought to have Hartzell, his former client and friend, sign the April 2011 letter and affidavit that respondent prepared and that contradicted Hartzell’s testimony and documentary evidence that we and the Court found reliable, in reprimanding respondent.
The DRB considered this submission
Exhibit R-30 is a veterinary bill for the 2012 euthanization of "Dusty," respondent’s cat, a few days before the DEC hearing below. Although its evidentiary value is limited, we saw no harm in permitting its inclusion in the record to demonstrate that respondent was mourning the loss of his cat, at the time of the DEC hearing.
The District Ethics Committee had proposed a censure. (Mike Frisch)
A decision issued today by the Mississippi Supreme Court
Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard. As she attempted to flee, she fell and broke her arm. Olier sued Bailey in the County Court of Jackson County under a theory of premises liability and, alternatively, under the dangerous propensity rule. The trial court granted summary judgment because it found that Olier was a licensee on Bailey’s property and that Bailey did not breach her duty of care toward Olier. It also denied relief under the dangerous-propensity rule because there was no evidence that the particular goose that bit Olier ever had exhibited dangerous propensities prior to the incident. Olier appealed to the Jackson County Circuit Court, which affirmed. Olier then filed the instant appeal. We hold that, while Olier cannot, as a matter of law, pursue her claim under her theory of general premises liability as a matter of law, she can proceed under the dangerous-propensity theory. Accordingly, we affirm the trial court judgment in part, reverse it in part, and remand for further proceedings.
Plaintiff and Defendant met through a gardening website. Defendant had a "Beware- Attack Geese" sign in the yard.
Plaintiff visited defendant at her home to view a blooming banana plant and "ventured beyond the buckets" that contained drinking water for the yard geese.
Although armed with a bamboo pole to fight off geese attacks, plaintiff became frightened by one squawking and hissing goose. She threw the pole to the ground but the goose was able to nip her in the crotch area. She turned to flee, tripped over a bucket and broke her arm.
Damage claim: $200,000. (Mike Frisch)
A two-year suspension has been recommended by an Illinois Hearing Board for two attorneys based on misconduct found in connection with a debt relief business.
The Administrator alleged Respondents formed a debt settlement law firm, Legal Helpers Debt Resolution, LLC (LHDR) and contracted with nonattorney debt settlement companies to enroll LHDR clients and perform much of the work on client matters. The Administrator charged Respondents with failing to consult with clients about the means by which the objectives of the representation are to be pursued, failing to explain matters to the extent reasonably necessary to allow clients to make informed decisions about the representation, collecting unreasonable fees, failing to supervise the nonattorney employees of the debt settlement companies and assisting nonattorneys in the unauthorized practice of law.
The Hearing Board found Respondents engaged in most of the charged misconduct and recommended that both Respondents be suspended for two years. The recommendation took into consideration the scope of the misconduct, the substantial harm to vulnerable and unsophisticated clients, Respondents' significant financial gain and their failure to appreciate the actual harm they caused.
The attorneys let the non-lawyers do the work
Respondents do not dispute that very little or no direct communication between an LHDR attorney and LHDR clients occurred, either about the means by which the objectives of the representation were to be pursued or to explain the scope of the representation to the extent necessary for clients to make informed decisions. Instead, Respondents rely on the scripted presentations nonattorneys made to LHDR clients, the written materials provided to clients and the advice Respondents received from ethics experts to refute the charges they violated Rules 1.2(a) and 1.4(a)(2) and (b).
We find the Administrator proved by clear and convincing evidence Respondents failed to consult with clients about the means by which the objectives of the representation were to be accomplished. The language of Rules 1.2(a) and 1.4(a)(2) pertaining to consultation is specifically directed to "a lawyer." We interpret "consult" to require two-way communication between lawyer and client and find no support in the language of the Rules or the case law that allows a lawyer to delegate all or virtually all client communications to a nonattorney. There are times when a nonattorney may relay information from a lawyer to a client or vice versa but we cannot envision a scenario in which it would be acceptable for a nonattorney to take over the lawyer's duties of communication with a client. This is especially true in this case, when the nonattorneys responsible for communicating with clients were not Respondents' employees and were not under Respondents' direct control.
We...find clear and convincing evidence that Respondents violated Rule 5.3(a). As equity partners of LHDR, Respondents had managerial authority that required them to make reasonable efforts to ensure LHDR had measures in place giving reasonable assurance that the conduct of the nonattorneys associated with LHDR was compatible with Respondents' professional obligations. For the following reasons, LHDR's measures for monitoring the nonattorneys did not provide the necessary reasonable assurance that they were acting consistently with Respondents' professional obligations. Nor were Respondents' efforts in this regard reasonable.
Respondents delegated the task of supervising the strategic alliance partners to Jason Searns. Searns did not directly supervise the nonattorney case managers and negotiators who handled LHDR client files. Rather, they reported to nonattorney supervisors within the strategic alliance partners. Searns' supervisory efforts consisted of providing the nonattorneys with scripts, policies, and procedures and conducting quarterly compliance reviews.
The nonattorneys were responsible for virtually all communications with clients, yet neither Searns nor any LHDR attorney had direct knowledge of the nonattorneys' communications or other important aspects of the nonattorneys' daily activities. Scripts and lists of policies and procedures provide some helpful information to nonattorneys but they are not a substitution for an attorney's actual observation and communication. LHDR attorneys had very minimal if not zero knowledge whether the nonattorneys adhered to LHDR's scripts and procedures. Nor did they have the ability to enforce adherence given the vast numbers of clients.
As to sanction
Having found misconduct, we must determine the appropriate sanction to recommend. There are significant aggravating factors that impact our recommendation. Respondents' misconduct affected 2,200 clients in Illinois and thousands more in other states. Respondents exposed clients to unreasonable risks of harm and caused actual harm to many clients. See In re Lewis, 118 Ill. 2d 357, 515 N.E.2d 96 (1987). Clients came to LHDR because they were under financial pressures. In many instances, their involvement with LHDR caused them to experience even greater financial problems as well as emotional distress. After ending their relationships with LHDR, many clients had to file for bankruptcy and incur additional attorney fees. Respondents' misconduct is further aggravated by the fact it was focused on clients who were vulnerable and, in many instances, unsophisticated. See Lewis, 118 Ill. 2d 357.
Respondents placed more importance on their own success and financial gain than they did on their clients' interests. The Panel heard no expressions of remorse for the harm their clients suffered. Additionally, in the opinion of this Panel, Respondents did not sufficiently contemplate the ethical problems that LHDR's model and operations caused and ultimately did not acknowledge the gravity of these problems.
In mitigation, we consider Respondents' cooperation in these proceedings and lack of prior discipline. We also consider the evidence of Respondents' good character, including good reputations for truth and veracity and involvement in charitable activities. However, the mitigating evidence pales in comparison to the scope of the misconduct. LHDR made restitution to Illinois clients, but that occurred primarily as a result of the Attorney General's action against LHDR. Moreover, some clients, such as Jennifer Green and Charles E. Powell, did not receive restitution of the full amount they paid to LHDR.
The Delaware Supreme Court has reinstated an attorney on the conditions that he may not engage in solo practice, act as a managing partner responsible for firm books and records and notify any employer of the conditions.
He also must be monitored by the bar's lawyer assistance program and cooperate with disciplinary counsel's efforts to make sure he is in compliance with the conditions.
The ODC may file a petition directly with the court if the attorney is alleged to be in cviolation of the conditions. (Mike Frisch)
Wednesday, December 10, 2014
A five-year suspension was imposed on an attorney who misappropriated funds entrusted by his next-door-neighbor client by the New York Appellate Division for the Second Judicial Department.
In or about March 2003, the respondent referred Kathryn Cerullo to an attorney, John P. Garvey, with whom the respondent had an existing business relationship, to assist Kathryn Cerullo with, among other things, estate planning and the creation of a trust.
On or about March 28, 2003, Kathryn Cerullo executed an irrevocable trust (hereinafter the trust) prepared by Mr. Garvey. Pursuant to Article 4 of the trust, the primary beneficiary was the Church of the Sacred Hearts of Jesus and Mary in Southampton (hereinafter the Sacred Hearts Church). Pursuant to Article 5 of the trust, the alternate beneficiaries, in the event that the Sacred Hearts Church no longer existed at the time of Kathryn Cerullo's death, were Kathryn Cerullo's nieces and nephews, including, among others, Mary Linda Goleski, Michael Cerullo, and Judith Ann Cerullo Kossow. The respondent was appointed trustee of the trust, subject to removal as provided by Article 7, Section 2, of the trust. The respondent executed the trust, as trustee, on or about March 28, 2003.
the respondent took advantage of his longtime relationship of trust with Kathryn Cerullo to unjustly enrich himself from the funds she entrusted to him, as a fiduciary, without her knowledge or consent. As Kathryn Cerullo's attorney, attorney-in-fact, and the trustee of a trust established for her benefit, the respondent established a putative "trust account" in his own name, which he manipulated to garner over 75% of Kathryn Cerullo's funds for his own use and benefit. As the Special Referee correctly found, the respondent disbursed to himself amounts that were as "facially outrageous" as the activities for which they purportedly were paid. Under the totality of the circumstances, we find that the respondent engaged in willful misappropriation, and that charge one was properly sustained.
As to sanction
In determining an appropriate measure of discipline to impose, we note the testimony of the respondent's witnesses as to the respondent's good reputation in the community, his participation in "numerous charitable undertakings for the poor in the community," and his work as a Deacon in the Roman Catholic Church of Saints Philip and James. The Court also has considered, as requested by the respondent's counsel, the following: the respondent has been a member of the Bar since 1977, having first been admitted in the State of Florida and then, in April 1978, pro hac vice in the Second Department, before being admitted to the New York Bar on November 28, 1978. Moreover, he is admitted to practice in the United States District Court for the Eastern and Southern Districts of New York, as well as the United States Court of Appeals for the Second Circuit. He has served as an arbitrator in the Eastern District, and was appointed by the Honorable Jack B. Weinstein to the Discovery Committee of the Eastern District, for the purpose of reconciling the inconsistencies between the rules of the Eastern and Southern Districts. However, we note that the respondent himself failed to offer proof of any mitigation at the hearing. Rather, he testified solely and consistently that his defense was that he did nothing wrong. To that end, the Special Referee found, and we agree, that "the respondent was evasive and not forthcoming in any way." The Special Referee's finding relative to the respondent's credibility is entitled to great weight.
The Colorado Presiding Disciplinary Judge has accepted a proposed disposition of a suspension of a year and a day with all but three months stayed for misconduct in three matters.
One of the matters is somewhat noteworty
In a third matter, Escamilla requested discovery from the Jefferson County District Attorney’s Office in a criminal matter. Escamilla agreed to pay $1,568.00 for the materials. Escamilla picked up the discovery materials and tendered a check written from his COLTAF account for the full amount. Escamilla’s check was returned for insufficient funds. Although a member of the district attorney’s office wrote three letters and made multiple calls to Escamilla requesting payment, he did not respond. Escamilla paid for the discovery materials only after the Office of Attorney Regulation Counsel began its investigation.
The wrong payee to bounce a check off of is the District Attorney's Office. Mike Frisch)
The Pennsylvania Supreme Court has accepted the consent to disbarment of Jane Orie as a result of her criminal conviction.
WTAE News 4 reported on the downfall of the former state senator and her two sisters, one who had served on the same court that imposed disbarment
Orie's conviction marked the beginning of the end of the conservative Republican family's influence in western Pennsylvania.
Orie was acquitted of charges that she also made her staff to work on the 2003 and 2009 Supreme Court campaigns of her sister, Joan Orie Melvin, who was then a Superior Court judge. But Melvin, 58, was later charged, tried and convicted separately of conspiring with Orie to have the Senate staffers work on Melvin's judicial campaigns.
Melvin was also convicted last year of misusing her Superior Court staff during the same campaigns. A third sister, Janine Orie, who worked as Melvin's court aide, was also convicted.
Melvin has been removed from the Supreme Court seat she won in 2009. Her conviction and most of her sentence, including three years' house arrest and $55,000 in fines, was upheld by the Superior Court last month.
And from Huffington Post on the criminal case
A former Pennsylvania state senator has been sentenced to prison on charges that she illegally used her legislative staff to do campaign work and then forged documents to cover it up.
Republican Jane Orie was ordered to serve her 2 1/2- to 10-year state prison sentence immediately Monday and was taken from the courtroom.
The 50-year-old suburban Pittsburgh attorney was convicted of five felony counts involving theft of service and conflict of interest for using her state-funded staff to perform political fundraising and campaign work, and nine related misdemeanors. She resigned from the Senate in May.
Tuesday, December 9, 2014
The Michigan Attorney Discipline Board has denied a petition to resign of an attorney convicted of stealing $2.7 million from clients over a seven-year period.
The board interpreted the rule that provides that a "resignation may not be accepted while a request for investigation or a complaint is pending, except pursuant to an order of disbarment."
Recently, the Board has had cause to examine the meaning, effect, and application of this rule. For example, in order to process the instant filing certain questions must be answered. Is this matter to be assigned to a hearing panel? If so, what procedures should the panel follow? What prerequisites must be fulfilled prior to the entry of an order allowing resignation and imposing disbarment?
After reviewing the history of uneven application of the rule, the board concluded that it "does not create an independent mechanism for entry of an order of disbarment" and denied the petition to resign without prejudice to a disciplinary proceeding against the attorney. (Mike Frisch)
The Ohio Supreme Court is considering an appeal from a report and recommendation to deny bar admission to a convicted felon.
The Board of Commissioners on Character and Fitness filed its report on September 5, 2014.
Libretti is 51 years old. He is second in his class at Cleveland-Marshall College of Law and is well liked by his fellow students and professors. He is scheduled to graduate in December 2014. There is no doubt that he is talented, intelligent, and hard-working.' The question to be answered by the Board is whether Libretti currently has the requisite character, fitness, and moral qualifications to become a member of the bar.
Applicant's criminal activity began when he was in college at the University of Denver and spanned the years of 1983 through 1990. Libretti was a drug dealer - initially selling marijuana and then moving on to dealing in cocaine. His activities were not that of some misdirected hippie: When he was indicted in January 1992, one of the charges was brought under the "Kingpin" statute - meaning he was an organizer, manager, or supervisor of a criminal enterprise. Conviction under the Kingpin Statute carried a minimum sentence of twenty years with a maximum sentence of life imprisonment.
He was released from prison after 16 years and thereafter engaged in the sale of spice.
He was indicted and acquitted of selling methamphetamine after his release.
Amici curiae respectfully request the Court consider all the issues raised above in its evaluation of applicants with a felony conviction, and that it approve those applicants unconditionally in the absence of any present conduct rationally related to the practice of law that would prevent them from effectively practicing as a licensed attorney subsequent to passing the bar examination.
In light of the information presented, the Institute would also urge that applicants with felony records who will not be unconditionally approved to sit for the bar examination be given a deferral of between six months and two years whenever possible, during which they would be expected to continue to demonstrate behavior consistent with the fitness standards established by Gov. Bar R. I and, if deemed appropriate by the Court, to cure any concerns raised during the character and fitness process, rather than being forever precluded from sitting for the examination.
Oral aergument is scheduled for February 25, 2015. The pleadings index is linked here. (Mike Frisch)
Monday, December 8, 2014
An attorney who had self-reported a Rule 4.3 violation was suspended for six months by the Kansas Supreme Court.
The attorney represented the biological father in an adoption proceeding. His client opposed the adoption.
After he had deposed her, he sent this message via Facebook to the 18-year-old biological mother.
'I wish to offer you some reasons why you should stand up and fight for your daughter. As you know, I am the attorney for [the biological father]. We held your deposition in my office. I wanted to give you the chance to make things right. This may be your last opportunity to be a mom for [the baby]. As I told you after your deposition in my office, it is not too late. You still have a wonderful opportunity to have a real relationship with your daughter if you so choose. I have attached a document for you to consider signing and bringing to court or to my office. It is a revocation of your consent to adopt. If you sign this document there is a very good chance that you will be able to call [the baby] your own and [the baby] will call you her mom. I can't begin to explain how beautiful and wonderful parenthood is. I have a little girl myself and she is my world just like you are your dad's world. [The baby] deserves to know her parents. She deserves to know that you love her and care for her as well. Do not let this opportunity pass you by because you will live with this decision the rest of your life and [the baby] will know someday what happened. [The adoptive parents] do not legally have to ever let you see her again after court (although they are probably trying to convince you otherwise with the idea of an 'open adoption'). The reason why you don't know about the trial was because they don't want you there because that doesn't help [the adoptive parents] case. This is your time to get rid of the guilt and standup and do what is right and what [the baby] deserves. She deserves to have her parents love and care for her. She deserves to know her grandparents and extended family. If she's adopted, she won't have that chance. [The biological father] wants to be her dad and to love her. She deserves that. I urge you to print, sign, and notarize this document and bring it to my office before court. Trial is June 27, 2013, at 9:00 a.m. at the Johnson County Courthouse, Division 15. I hope to see you and your father there.'
As indicated, he also sent the biological mother a consent form to sign.
we agree with the Disciplinary Administrator's argument that the egregious nature of the respondent's conduct warrants a longer period of suspension than that recommended by the hearing panel. As the hearing panel noted, respondent "attempted to manipulate the biological mother and, as a result, interfered with justice." Respondent's conduct "amounted to emotional blackmail" of an unrepresented 18-year-old who was dealing with a process that was already "'emotionally exhausting.'" His "electronic message was designed to embarrass, burden, and create guilt in the mind of the biological mother." These "bullying tactics directly reflect on [respondent's] fitness to practice law as an attorney." Consequently, we hold that the respondent should be suspended for a period of 6 months. A minority of the court would impose a longer period of suspension. We unanimously order a reinstatement hearing under Rule 219.
The attorney must prove that reinstatement is appropriate. (Mike Frisch)