Friday, September 22, 2017

"Numerous Acts Of Financial Misconduct"

The Massachusetts Supreme Judicial Court disbarred an attorney for misconduct summarized on the web page of the Board of Bar Overseers

The respondent, Andrew M. Porter, resigned from the practice of law pursuant to S.J.C. Rule 4:01, § 15, and was disbarred. In his affidavit of resignation, dated January 30, 2017, the respondent acknowledged that bar counsel could establish by a preponderance of the evidence at a disciplinary hearing that the respondent had committed numerous acts of financial misconduct against his former law firm and clients. The misconduct included the improper billing of the law firm and clients for the respondent's own personal expenses unrelated to the practice of law; the respondent's intentional misuse of client funds from client trust accounts; and his personal receipt and retention of a retainer paid by a client for legal services, which payment belonged to his firm. The respondent acknowledged that the foregoing acts of fraud, deception, and misuse of funds totaled over $400,000 in the aggregate. By his conduct, the respondent violated Mass. R. Prof. C. 1.15(b), 1.15(c), 8.4(c), and 8.4(h).

(Mike Frisch)

September 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 21, 2017

The Lesser Of Two Sanctions

Reciprocal discipline was imposed by the West Virginia Supreme Court of Appeals where the attorney had been sanctioned in both Virginia and the District of Columbia for the same misconduct.

On June 26, 2013, the Virginia State Bar Disciplinary Board issued a public reprimand with probationary terms to the respondent herein, attorney David A. Downes, for his negligent misappropriation of client funds and his failure to properly maintain a client trust account in violation of Virginia Rule of Professional Conduct 1.15. Furthermore, in connection with a lawyer disciplinary case initiated in the District of Columbia (“D.C.”) based upon the same Virginia disciplinary matter, the respondent consented to the annulment of his D.C. law license effective September 25, 2014.

Notably, Virginia (which handled the original bar complaint) was lenient for a matter involving misappropriation

After considering the stipulations and evidence presented, by order entered June 26, 2013, the Virginia State Bar Disciplinary Board issued a “public reprimand with terms” to the respondent. The specified terms were probationary: he was prohibited from engaging in any further professional misconduct for a period of eighteen months; during the eighteen-month period, he was required to submit to a minimum of four and a maximum of eight periodic, random reviews of his trust account records and reconciliations; and he was required to pay all costs of those reviews. 

The District of Columbia disciplinary system took a dimmer view

Based upon the June 26, 2013, order of the Virginia State Bar Disciplinary Board, the D.C. Office of Bar Counsel opened a lawyer disciplinary complaint in that jurisdiction. On September 11, 2013, Joseph C. Perry, Assistant D.C. Bar Counsel, wrote to the respondent asserting that even in cases of negligent misappropriation of client funds, the District of Columbia Court of Appeals has specified that a period of suspension from the practice of law is the appropriate sanction to be imposed. The respondent answered this letter by arguing that application of the D.C. Bar’s rules should result in the imposition of the same sanction as was imposed in Virginia. Subsequently, however, the respondent consented to be disbarred in D.C. instead of continuing to defend the disciplinary case. In an affidavit signed on August 27, 2014, the respondent acknowledged the truth of the material facts upon which the allegations rested; acknowledged that in accordance with D.C. case law, he had recklessly misappropriated funds entrusted to him in Mr. Brown’s case; and admitted he could not successfully defend the allegations in D.C. Accepting the respondent’s affidavit, by order of September 25, 2014, the D.C. Court of Appeals disbarred the respondent from the practice of law in that jurisdiction. 

Faced with wildly varying sactions between the two jurisdictions, the West Virginia court chose the lesser one

In this case, the respondent received public discipline in Virginia and he voluntarily surrendered his law license in D.C. Pursuant to RLDP 3.20,12 each of those events triggers the initiation of reciprocal disciplinary action in our State. However, in its second report, the HPS determined that under the specific facts and circumstances of this case, the appropriate reciprocal discipline to be imposed by this Court should be based upon the Virginia disposition, not the D.C. outcome. We agree. The respondent’s voluntary disbarment in D.C., although a more severe outcome than in Virginia, was pursuant to a charge based entirely upon the conduct committed and penalized in Virginia. Moreover, there is no indication that D.C. authorities would have disbarred the respondent had the matter been litigated to a conclusion; rather, in his September 11, 2013, letter, the D.C. Bar Counsel advised the respondent he was facing a suspension for negligent misappropriation. The record is clear that the respondent voluntarily surrendered his D.C. law license because he saw no utility in undertaking the expense or effort toward maintaining that license. Accordingly, after considering the respondent’s underlying misconduct and the reasons for the surrender of his D.C. law license, we are convinced the respondent’s actions warrant a substantially different disposition than occurred in D.C. See RLDP 3.20(e)(4).

West Virginia had only learned of the two sanctions when told by the D.C. Disciplinary Counsel.

Thus there were consequences to the attorney's failure to report 

To reinforce the importance of the mandatory reporting obligation, we now hold that pursuant to Rule 3.20(b) of the West Virginia Rules of Lawyer Disciplinary Procedure, a member of The West Virginia State Bar, whether on active or inactive status, shall notify the Office of Disciplinary Counsel of any form of public discipline imposed by the authorities of another jurisdiction, or of the voluntary surrender of his or her license to practice law in connection with disciplinary proceedings in another jurisdiction. A member’s failure to comply with this rule shall constitute an aggravating factor in a reciprocal disciplinary proceeding and may result in an increase in the sanction imposed by this Court. In the case sub judice, the respondent’s failure to timely report the Virginia public discipline and the D.C. voluntary disbarment to the West Virginia ODC constitutes an aggravating factor warranting the increase of his sanction to a thirty-day period of suspension from the practice of law in West Virginia, instead of a public reprimand as was issued in Virginia.

 (Mike Frisch)

September 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Attorneys Not Liable For Distributing Settlement Proceeds To Client; Third Party Had No "Just Claim"

Attorneys were not liable for distributing settlement proceeds of a wrongful eviction claim to their client rather than a third party claiming entitlement per a decision of the District of Columbia Court of Appeals

Mr. Banks hired Mr. Zucker and Ms. Daus to represent him in the wrongful eviction case against ESB. Before any suit was filed, Mr. Banks signed a settlement with ESB that gave Mr. Banks $100,000 in exchange for a release of the wrongful eviction and other claims. Mr. Papageorge learned of the settlement two days later, and his lawyer told Mr. Zucker that Mr. Papageorge had a claim to the settlement money. The same day, Mr. Papageorge showed Ms. Daus a copy of his agreement with Mr. Banks and his cotenant along with documentation of $88,740.86 in costs and fees he claimed he was owed. Despite Mr. Papageorge‘s repeated demands, Mr. Zucker and Ms. Daus refused to pay him out of the settlement money, and instead disbursed the money to their client, Mr. Banks. Mr. Papageorge asked the lawyers to stop payment on a check they had already given Mr. Banks, warning that the money would soon be gone because Mr. Banks would spend it, but they rebuffed him.

The attorneys were sued for conversion and negligence in which the plaintiff

contends that an attorney also owes a duty of care to a nonclient third party who presents the attorney with a "just claim" against property in the attorney‘s possession.

He had no "just claim" under Rule 1.15 and the disciplinary rules did not form a basis for civil liability.

The "just claim" concept stems from Rule 1.15 of the District of Columbia Rules of Professional Conduct, which governs the ethical obligations of a lawyer who is in possession of property in which others claim an interest. In particular, the rule requires a lawyer to "promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive." Rule 1.15 (c). Comment 8 on Rule 1.15 states:

Third parties, such as a client‘s creditors, may have just claims against funds or other property in a lawyer‘s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client.

The rule does not create an obligation to the plaintiff enforceable in civil litigation

Mr. Papageorge identifies no source of "applicable law" under which Mr. Zucker and Ms. Daus owed him a duty of care other than Rule 1.15 itself and the case law interpreting that rule. Yet as Mr. Papageorge concedes, the Rules of Professional Conduct do not give rise to a private cause of action for their violation.

Here, Mr. Papageorge signed a contract with Mr. Banks and his cotenant that gave him a right to the proceeds from the tenants‘ wrongful eviction claims, but this right was a contractual right enforceable against Mr. Banks and the cotenant, not a property right enforceable against whomever might be in possession of those proceeds. As Mr. Papageorge‘s only entitlement to the settlement money stemmed from the as-yet-unperformed contract with Mr. Banks and his cotenant, he did not have any property rights in the settlement money when he made his demand, and his conversion claim therefore fails.

Associate Judge Beckwith authored the opinion. (Mike Frisch)

September 21, 2017 in Bar Discipline & Process, Clients | Permalink | Comments (0)

More Than Mere Negligence Gets Attorney Disbarred In D.C.

An attorney did not waive her right to assert that her misappropriation was negligent, but nonetheless lost the point, according to a disbarment imposed today by the District of Columbia Court of Appeals.

Here, the Hearing Committee‘s findings (adopted and incorporated by the Board), based upon clear and convincing evidence, do not support Ms. Abbey‘s argument that her behavior amounted to negligent rather than reckless misappropriation. Nor does our case law suggest that Ms. Abbey‘s conduct was simply negligent. The Hearing Committee found that Ms. Abbey received the insurance settlement check from Liberty Mutual in January 2012; properly deposited the check in her IOLTA account; and properly prepared and signed (along with Mr. Vouffo) a settlement distribution sheet in January 2012, showing the amount withheld for payment to Mr. Vouffo‘s medical providers. Nevertheless, she made a cash withdrawal of $2,000 from her IOLTA account on March 22, 2012, and another cash withdrawal from the same account on November 9, 2012, despite being "aware of her responsibility to pay all of Mr. Vouffo‘s medical providers."

The Hearing Committee also determined that one of Mr. Vouffo‘s medical providers, Medtaris Rehabilitation (through its representative, Mr. Pappas), agreed to reduce Medtaris‘s bill from $5,200 to $2,700 after speaking with Ms. Abbey on January 9, 2012. When Medtaris did not receive the medical fee, Mr. Pappas sent communications to Ms. Abbey, making multiple requests for payment from February 23, 2012, through August 9, 2012. Even when Medtaris‘s representative notified Ms. Abbey in a letter of July 12, 2012, that he would file a Bar complaint if Medtaris was not paid the reduced fee on which they had reached agreement, Ms. Abbey still did not pay the bill. Nor had she paid Medtaris‘s fee by October 3, 2012, the date on which Medtaris filed its Bar complaint; in fact, she did not pay the fee until November 14, 2012. In addition, the record contains no proof that Ms. Abbey has paid all of Mr. Vouffo‘s medical providers, including Doctor‘s Community Hospital, Doctor‘s Emergency Physicians, and Diagnostic Imaging."

In addition, the Board determined that Ms. Abbey "did not reconcile her IOLTA records during the time she held Mr. Vouffo‘s funds in trust and she did not keep a ledger." She also "failed to track settlement proceeds relating to individual clients."

The aforementioned findings of the Hearing Committee and the Board do not reveal a good-faith, genuine, or sincere but erroneous belief that entrusted funds were properly safeguarded and paid, or that Ms. Abbey‘s failure to pay Mr. Vouffo‘s medical bills in a timely manner was inadvertent or due to an honest mistake.

On the key legal issue

When we apply the legal principles embedded in our misappropriation case law to Ms. Abbey‘s conduct, the record before us lacks clear and convincing evidence to support a conclusion of inadvertence or honest mistake, or a good faith belief that the funds entrusted to her were being handled properly. Rather, the record before us contains clear and convincing evidence that Ms. Abbey‘s misappropriation was deliberate and reckless. Ms. Abbey (1) was clearly aware that she owed entrusted funds to Mr. Vouffo‘s medical providers; (2) failed to reconcile her trust account, examine the status of the trust account on a regular basis, or institute an accounting system that enabled her to determine what funds were allocated to what client or what medical provider and the status of those funds; (3) ignored repeated inquiries about and request for the agreed upon reduced medical fee by one of Mr. Vouffo‘s medical providers; (4) made two $2,000 (total $4,000) unexplained cash withdrawals from her trust account prior to paying some of Mr. Vouffo‘s medical providers, leaving insufficient funds, for months, to pay medical providers; and (5) apparently has not yet paid all of the medical providers from the funds entrusted to her care. 

Thus disbarment. (Mike Frisch)

September 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Stingray Search Violated Fourth Amendment

The District of Columbia Court of Appeals reversed a conviction on Fourth Amendment grounds

A jury found appellant Prince Jones guilty of various offenses arising out of two alleged incidents of sexual assault and robbery at knifepoint. Mr. Jones appeals his convictions on the ground that much of the evidence offered against him at trial was the direct or indirect product of a warrantless—and thus, Mr. Jones argues, unlawful—search involving a cell-site simulator or "stingray." Mr. Jones presented this Fourth Amendment claim to the trial court in a pretrial motion to suppress, but the trial court denied it under the inevitable-discovery doctrine and did not reach the question whether the government violated Mr. Jones‘s rights. We agree with Mr. Jones that the government violated the Fourth Amendment when it deployed the cell-site simulator against him without first obtaining a warrant based on probable cause. Further, we reverse the trial court‘s inevitable-discovery ruling and reject the government‘s argument (not resolved by the trial court) that the good-faith doctrine precludes applying the exclusionary rule in this case. Because the admission at trial of the evidence obtained as a result of the unlawful search was not harmless beyond a reasonable doubt, we reverse Mr. Jones‘s convictions.

Associate Judge Beckwith authored the opinion in which Senior Judge Farrell concurred in large part.

Associate Judge Thompson dissented. (Mike Frisch)

September 21, 2017 | Permalink | Comments (0)

Wednesday, September 20, 2017

Breach Of "Shiduch" Lawsuit Sees A New Year

The New York Appellate Division for the Second Judicial Department agreed with the trial court's denial of a motion to dismiss a civil action 

The plaintiff commenced this action to recover damages for breach of contract and fraud, alleging that she made several payments to the defendants totaling $214,000 for the purchase of three torah books, and for the defendants to find her a husband pursuant to the Jewish custom of “shiduch.” The plaintiff alleged that the defendants made false statements to induce her to make the payments, and had not performed pursuant to their agreement. The defendants Rabbi Haim Yosef Sharabi and Michal Hadad (hereinafter together the defendants) moved pursuant to CPLR 3211(a)(2) to dismiss the complaint insofar as asserted against them for lack of subject matter jurisdiction, arguing, inter alia, that courts are prohibited from resolving controversies that require consideration of religious doctrine. The Supreme Court denied the motion, and we affirm.

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” (Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d 282, 286; see Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich, 426 US 696). However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” (Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d at 286;see Hafif v Rabbinical Council of Syrian & Near E. Jewish Communities in Am., 140 AD3d 1017, 1017; Drake v Moulton Mem. Baptist Church of Newburgh, 93 AD3d 685, 686; Merkos L’Inyonei Chinuch, Inc. v Sharf, 59 AD3d 403, 406).

Here, the defendants failed to demonstrate that the plaintiff’s causes of action cannot be determined solely upon the application of neutral principles of law, without reference to religious principles (cf. Hafif v Rabbinical Council of Syrian & Near E. Jewish Communities in Am., 140 AD3d at 1017). Accordingly, the Supreme Court properly denied the defendants’ motion to dismiss the complaint insofar as asserted against them.

The New York Post had a story about the case.

A lonely Brooklyn woman got her heartstrings played by a grifting Jewish mystic, who promised to find her a husband and three lucky magic Torahs for a payment of $214,000, a new lawsuit claims.

Cecilia Lifschitz says she handed over the huge sum to controversial Borough Park mystic Rabbi Chaim Sharabi in a desperate bid to find a life mate — but the hustling holy man never came through with what he promised.

“Plaintiff was an easy target for defendants and defendants were aware of this,” her suit says.

The woman claims that Sharabi and two collaborators — his daughter-in-law, Michal Hadad, and Alon Jacobi — promised they would quickly find her a husband in exchange for the money.

“Defendants had every reason to know Plaintiff would do anything, including paying a large sum of money, to get married,” the suit states.

Sharabi apparently told the woman he’d secure the lucky holy texts for the woman, and that they would be housed in synagogues in Israel and Brooklyn.

“Plaintiffs made these knowingly false statements about her finding a husband and the existence of the Torah books when she paid them $214,000,” the suit says, adding: “Purchasing a Torah book is considered a very significant good deed in the Jewish religion, one which brings a person good luck.”

Lifschitz noted that parties are typically held after someone buys a new handwritten Torah and that the purchaser is invited to attend. But she never got any proof that he bought the books.

Sharabi, however, disputed the woman’s claims — saying he really did set up Lifschitz with a man, named Alon. They even went on a trip to Brazil, he said.

“When things didn’t work out with her and Alon, she got upset,” he told The Post on Tuesday.

Sharabi also claimed he got the Torahs for her. He showed The Post a Torah that he said had her name written in it in Hebrew. He said it cost $42,000 and that the other two were in Israel.

“Sometimes you don’t get what you want and you have to say thank you to God because he knows best,” he told The Post. “I love her, I want to help her, she’s a good person.”

According to published reports, Sharabi has successfully styled himself as a clairvoyant in the Borough Park community, selling everything from promises of wealth and marriage to lucky amulets.

A 2009 story in The Forward reported that Sharabi received clients in the back of a Borough Park optician and occasionally kept people waiting for six hours to bask in his wisdom.

Lifschitz and her attorney declined to comment on the case.

(Mike Frisch)

September 20, 2017 in Current Affairs | Permalink | Comments (0)

Recusal Denied Despite Improper Independent Investigation By Judge

The Tennessee Supreme Court reversed an order granting a judge's recusal in a civil case for an improper ex parte telephone call

This case is on appeal from a trial court judge’s decision not to recuse herself based on a telephone call to a university department director concerning a potential expert witness’ qualifications. Upon the trial court’s denial of the defendant’s motion for recusal of the trial court judge, the defendant filed an accelerated interlocutory appeal in the Court of Appeals pursuant to Tennessee Supreme Court Rule 10B, section 2. The Court of Appeals reversed the trial court’s decision, holding that recusal of the trial judge was necessary. We granted the plaintiff’s accelerated application for permission to appeal to this Court. Having thoroughly reviewed the filings of both parties and the applicable law, we conclude that the trial court’s denial of the motion to recuse was appropriate in this case. Therefore, we reverse the decision of the Court of Appeals.


While perhaps ill-advised because she did not consult with the parties first, the trial judge simply sought general information regarding whether a court-appointed CRC would be a workable option to help the parties resolve their dispute. And importantly, the trial judge ultimately allowed the Defendant’s proposed expert to examine the Plaintiff again, even though the matter had been pending for almost four years. In sum, the trial judge’s conduct throughout these proceedings would not give a person of ordinary prudence reason to question her impartiality.

Justice Page dissented

Regardless of her motive, the trial judge undertook an independent investigation of disputed facts by telephoning the director of the program at the University of Tennessee and inquiring about credentials of CRCs, contrary to the Code of Judicial Conduct. Id. at Canon 2.9(C) (“A judge shall not investigate facts in a matter independently[] and shall consider only the evidence presented and any facts that may properly be judicially noticed.”). The majority acknowledges that the trial judge’s actions constituted ex parte communications and an independent investigation. This is exacerbated by the fact that the conversation was held off the record, and the parties did not know the full content of exactly what was said. As noted by Judge Dinkins’ concurring opinion, by engaging in ex parte communications with the professor “without the knowledge or consent of the parties, the court was not only denied the opportunity to create a record of the purpose fornthe call prior to it being made, but the parties were denied the opportunity to preserve an objection.” Holsclaw, 2016 WL 7364901, at *9 (Dinkins, J., concurring).

While there was no record evidence of actual partiality, appearances matter

While I acknowledge that the question of recusal is close, I have concluded that a line was crossed in this case and that the conduct in question created an appearance of impropriety. I have also concluded that communication of the type in this case wherein a trial judge has an off-the-record ex parte discussion with an individual whose advice could have potential impact on the trial court’s decision-making process would, in most cases, create an appearance of impropriety.

(Mike Frisch)

September 20, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judge Should Have Recused But Error Harmless

The South Dakota Supreme Court affirmed a fourth-degree rape conviction

Approximately one month before [defendant] Shelton’s trial, his attorney moved to withdraw from the case. Shelton’s former cellmate came forward with information that Shelton confessed to him that Shelton had committed the rape. The attorney represented both Shelton and the former cellmate. Due to the conflict, the court allowed the attorney to withdraw and appointed a new attorney to represent Shelton. A week later, the circuit judge overseeing the matter sent a letter to the new attorney disclosing that the judge’s ex-wife is a partner in the new attorney’s law firm and that this was a potential basis for disqualification. The judge stated:

You are now advised that I will disqualify myself from this proceeding, and another judge will be assigned to hear this case, unless you and your client agree in writing that I should not be disqualified, and that I may continue to preside over this action.


A written agreement waiving disqualification was not provided and there was no further mention of the issue in the record. Nevertheless, the same judge continued to preside over the trial.

The court concluded that the judge erred in failing to recuse but

In upholding the conviction in this case, there is little risk of injustice to the parties. Initially, Shelton does not argue that the judge was biased or prejudiced against him in any way. Instead, Shelton erroneously argues that the judge lacked jurisdiction to proceed in the case, and as a result, the judgment of conviction was void. A thorough review of the record does not reveal any evidence of partiality. Further, it is not alleged, and it does not appear from the record, that the judge’s ex-wife had any involvement in the matter. And while Shelton argues that in his experience, “an overwhelming majority of divorce cases have at least some level of animosity[,]” none was shown here...

There is also little risk that denial of relief would produce injustice in other cases. Unlike the situation presented in Liljeberg, where the judge failed to disclose the potential basis for disqualification to the parties, the judge in this case upheld his ethical obligations under the Code of Judicial Conduct and made a full disclosure. The judge sent a letter to Shelton’s counsel informing him of the potential basis for disqualification and filed the letter in the record. Although the judge erred by continuing to preside over the matter absent a waiver, Shelton compounded this error by failing to raise it.

The court held that the error was harmless. (Mike Frisch)

September 20, 2017 in Clients, Judicial Ethics and the Courts | Permalink | Comments (0)

Their Old Kentucky Home

The South Carolina Supreme Court permanently debarred an attorney

The numerous charges against Respondent Heather Mary Boone McKeever in this disciplinary matter include the unauthorized practice of law, improper fee arrangements, false statements before the court, and attempting to intimidate a former client. Because McKeever failed to answer the formal charges against her and failed to appear at her hearing before the Commission on Lawyer Conduct, she is in default and the charges against her are deemed admitted. The only matter before the Court is determining the appropriate sanction for McKeever's misconduct. At the hearing before this Court, McKeever offered no mitigating evidence or explanation for her conduct. Because of her pattern of abusing the judicial process, masking her misconduct, and, perhaps most troubling, attempting to intimidate a former client through meritless lawsuits, we find it appropriate to permanently debar McKeever in this state, order her to pay the costs of the investigation and subsequent proceedings, and other sanctions as will be described herein...

McKeever is a licensed attorney in Kentucky who moved to Charleston with her husband, Shane Haffey, in the midst of the foreclosure of a $1,000,000.00 loan on their Kentucky home. Upon arriving in Charleston, McKeever came into contact with Betty McMichael, who owned two properties––991 Governors Road where she resided, and 986 Governors Road which she rented out. After learning that McMichael faced foreclosure on both of these properties, McKeever offered her legal representation, despite not being licensed to practice law in South Carolina. McMichael initially declined the offer, but she ultimately agreed to the arrangement after repeated phone calls and visits from McKeever. In exchange for McKeever's legal services, McMichael allowed McKeever and her family to live in the 986 Governors Road house rent-free during the course of representation––an improper fee arrangement because McKeever did not advise McMichael on the scope of her legal representation or the basis for her fees. Moreover, McKeever obtained a possessory interest in the property that was the subject of the litigation––a conflict of interest of which McKeever did not make McMichael aware.

Upon obtaining McMichael's consent to represent her in the foreclosure actions, McKeever's subterfuge began. Sometime after McMichael accepted her legal representation, McKeever induced her to issue a quitclaim deed granting title to 986 Governors Road to Bondson Holdings, a fictitious entity owned by McKeever and Haffey. Moreover, after the judge granted permission for McKeever to appear pro hac vice in the 991 Governors Road foreclosure action in July 2011, she took no steps to protect McMichael's interest for the next year while living rent-free in a house owned by McMichael in exchange for her legal representation. Ultimately, a licensed South Carolina attorney was forced to make an appearance on behalf of McMichael in 2012 and the case was eventually dismissed in 2013.

While representing McMichael in connection with the first foreclosure action brought against 986 Governors Road, McKeever again sought pro hac vice admission with a licensed South Carolina attorney serving as local counsel. Without consulting local counsel or McMichael, McKeever filed a document entitled "Answer Class Action Complaint" under local counsel's name. In the document, she asserted thirty-nine affirmative defenses, apparently in an effort to remove the encumbrances on the property and secure clear title, which McKeever and Haffey held after receiving the deed from McMichael.1 Additionally, in an attempt to delay and hinder the foreclosure proceedings, McKeever falsely claimed that McMichael resided at the property, levied allegations against opposing counsel, and filed notices of depositions for numerous named and unnamed individuals. When local counsel discovered McKeever filed the answer under her name and without her knowledge, she moved to be relieved as counsel. Eventually the mortgage holder voluntarily dismissed its action against McMichael, and in November 2011 McKeever filed the quitclaim deed to 986 Governors Road. McKeever took no further legal action on McMichael's behalf; however, she retained the benefit of living at 986 Governors Road rent-free and holding title to the property.

In late 2012, Bank of America acquired the entity which held the note on 986 Governors Road and reinstituted foreclosure proceedings on the property. Prior to filing, Bank of America's attorneys conducted a title search and discovered the quitclaim deed granting title to Bondson Holdings. Bank of America then filed its action naming both McMichael and Bondson Holdings in its summons and complaint. McKeever contacted South Carolina attorney Parker Barnes, Jr. and requested he serve as local counsel for McMichael, falsely representing that she was eligible to appear pro hac vice. McKeever filed no answer, responsive pleadings, or any other motions on behalf of McMichael aside from a motion for an extension of time to file a response and objection to a transfer to the Master in Equity. This Court issued a letter to the Charleston County Clerk of Court advising that McKeever was not licensed to practice law in South Carolina, nor had she filed an application for pro hac vice admission in the matter. Nevertheless, McKeever continued to file pleadings and motions on behalf of Bondson Holdings and Haffey. In these various motions and pleadings, McKeever asserted frivolous or meritless legal positions, made false statements, and threatened civil action and criminal prosecution against Barnes, opposing counsel, the presiding judge, and the clerk of court.

The attorney filed two actions and engaged in other efforts to forestall foreclosure.


In light of McKeever's blatant disregard for this state's regulation of the legal profession, her abuse of the judicial system, threatening and coercive behavior directed at McMichael, and her lack of candor with various courts, we impose the following sanctions and declare McKeever be: (1) permanently debarred, prohibiting her from seeking any form of admission to practice law (including pro hac vice admission) in South Carolina, and prohibiting her from advertising or soliciting legal services in the state; (2) ordered to pay McMichael $1,500.00 for attorney's fees related to the actions filed in Kentucky; and (3) ordered to pay the costs of the disciplinary investigation and formal proceedings. Moreover, pending the outcome of the bankruptcy proceeding in which Haffey has subjected the 986 Governors Road property, we reserve the right to void any deed through which McKeever wrongfully granted title to herself and Haffey in violation of our Rules of Professional Conduct.

September 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sex and Probation Violations

The Maine Supreme Judicial Court imposed a six-month suspension of a previously suspended and reinstated attorney for sex with a client and violations of probation imposed as a consequence of his federal criminal conviction.

The court noted that Maine has not categorically prohibited sex with a client but that the client had fled an abusive boyfriend by residing with the attorney 

Prolman committed professional  misconduct in not advising his vulnerable client and her supporters that the apartment that he was making available to her would result in her living with  him in a circumstance where she would have little or no privacy and be required to use a bathroom right next to his bedroom. Further, regardless of  what information Prolman did or did not give to his client and her supporters  about the living arrangements, he should have known that having such a  vulnerable client with her unfortunate history living with him, particularly in  light of the recent trauma she had suffered, and her history of physical and  emotional abuse and victimization through sex trafficking, is something he  absolutely should not have advised in the circumstances...

Arranging for a vulnerable client, with a history of physical and  sexual abuse by and submissiveness to men she was living with, to move in with  him and not disclosing this living arrangement to the client’s diversion officer  and others supporting her effort to comply with her terms of probation. This  action violated Rule 2.1 requiring any attorney to exercise independent  professional judgment and render candid advice. Creating this living  arrangement, with this client, was a serious error of judgment. Not disclosing to the client or her support team that the offered apartment involved moving  in with him was a failure to render candid advice. Violation of Rule 2.1 was also  a violation of Rule 8.4(a).

Initiating and engaging in a sexual relationship, including  performing sex acts on more than one occasion, with a client he knew to be  vulnerable and submissive. This action violated Rule 1.7(a)(2) by placing  Prolman’s personal interest over the best interests of his client. This action also  violated the obligation imposed by the Attorney’s Oath to act in the best  interests of his client, or, to use the ancient language, to act “with all good  fidelity” toward his client. In initiating the sexual relationship with his client,  Prolman put his interest in obtaining sexual gratification ahead of his client’s interests. As Comment 12 to Rule 1.7 states, when a lawyer-client relationship  is “unequal,” “a sexual relationship between lawyer and client . . . may involve  unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s  basic ethical obligation not to use the trust of the client to the client’s  disadvantage.”

Consuming alcoholic beverages and providing alcoholic beverages  for consumption to his client. While the Court’s March 7, 2016, order  prohibited only “excessive” consumption of alcoholic beverages, that order also  required compliance with the conditions of Prolman’s federal sentence. The  federal probation conditions prohibited any possession or use of alcoholic  beverages. Thus, Prolman’s consumption of alcoholic beverages violated this  Court’s order, and violated Rule 8.4(d) prohibiting conduct “prejudicial to the  administration of justice.” Providing alcoholic beverages to his client caused  the client to violate her conditions of probation, placing her freedom and the  early termination of her probation at risk. This also violated Rule 8.4(d). And  providing alcoholic beverages in those circumstances certainly was not acting toward the client using the best of Prolman’s knowledge and discretion, as  required by the Attorney’s Oath.

(Mike Frisch)

September 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Paralegal Regulation

The Law Society of Upper Canada has regulatory authority over licensed paralegals as well as members of the Bar.

A recent decision of the Hearing Division

Roland Spiegel is a paralegal who assisted clients who had been in motor vehicle accidents with health care benefit claims against insurance companies. The Law Society alleges that he has engaged in misconduct in his interactions with insurance companies on behalf of multiple clients, including by: filing misleading documents, altering standard forms, bombarding companies with lengthy fax transmissions, communicating inappropriately, filing multiple forms and claiming time for services he did not provide. It also says that he failed to co-operate in the investigation of his conduct.

Mr. Spiegel denies the allegations and says he acted properly. He emphasizes how difficult it is, in his view, for individuals to contest insurance company decisions, and the duty of utmost good faith that insurers have to the insured, which he suggests is usually not fulfilled. He takes the position that the matter is not properly before us since he was not acting as a paralegal when he worked with the clients. Rather, he says, he acted as an unregulated health-care provider. He says that in most cases, he was doing what lawyers with whom he worked instructed him to do. He says that the results of various other proceedings mean that this proceeding should be dismissed.

We find that Mr. Spiegel engaged in professional misconduct. He is wrong that he could make claims and legal submissions for clients without regulation by the Law Society by calling himself a health care provider. He was providing legal services. The other proceedings did not decide the key questions at the heart of this case.

The Law Society has proven that Mr. Spiegel was dishonest in his actions toward insurance companies. His “protocol” for representing clients included the use of misleading documents, among other things, by putting signatures and names of health practitioners and clients on statements that were not true. He filed multiple forms in an effort to inflate his own fees. He submitted clearly invalid documents and claimed for payment when he was not eligible to do so. He claimed for work he did not do. He exaggerated and misrepresented the claims of a client. He did not co-operate with the Law Society as required.

 A paralegal or lawyer may be a zealous advocate, make novel arguments and use strategies designed to move the law forward on behalf of a client. Sometimes that involves looking for technical arguments or being dogged with the other side to get attention. While some of the allegations in the Notice of Application appeared to aim at such conduct, they have not led to findings of misconduct. The misconduct we find is based on dishonesty, manipulation of the SABS scheme, submission of invalid documents and failure to respond to the Law Society.

A penalty hearing will be scheduled.

In an unrelated matter, a Hearing Division denied a paralegal  application. (Mike Frisch)

September 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 19, 2017

Too Many Begats

A suspension of six months and a day was ordered by an Arizona Hearing Panel of an attorney who defaulted on charges of incompetence and litigation-related misconduct

In this matter, Ms. Thomas sent litigation preservation notices to any attorney that she ever came into contact with and subsequently filed a frivolous and nonsensical complaint against approximately eighty (80) entities or individuals. [SBA Exhibits 19 & 23]. Ms. Thomas’ litigation preservation notices and her subsequent complaint demonstrate that she does not understand the most fundamental legal doctrines or procedures and, therefore, that the Standard 4.51 applies.

Ms. Thomas also violated her duty to the legal system, which implicates Standard 6.2. Standard 6.22 states: “Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or party, or interference or potential interference with a legal proceeding.”

...On May 8, 2017, Ms. Thomas filed a 256 page Complaint in the United States District Court of Arizona for “antitrust violations, civil rights violations and violations of their international human rights analogues, violations of the United States Constitution analogues and Violations of United States law and treaties.” [Ex. 19.] On May 17, 2017, the District Court issued its Order dismissing the complaint with prejudice and ordering the Clerk of the Court to terminate the action. As with much of her pleadings she states descriptive conclusions without normative analysis.

The Court found, “A cursory read of Plaintiff’s 256-page, 912-paragraph complaint plainly evinces that the claims presented are frivolous.” The Court found “The claims lack any arguable basis in law and the factual allegations of a mass logotherapy conspiracy are ‘fanciful,’ ‘fantastic,’ and ‘delusional.’” (Citations omitted.) [Ex. 23, Bates SBA 000610-611.]

In response to the bar's subpoena

Ms. Thomas also alleged that the subpoena burdens her free exercise of religion and states: “It is a well-known fact that Ms. Thomas, though not a devout Christian, like all of her siblings was raised under the guidance of devout Christian practices; and as such Ms. Thomas applies parentally guided deep-seated Christian philosophies, parables and gospels, which promote having integrity throughout life . . . into her daily living, legal practice and business enterprise.” [Id. at SBA000035.]

Her eventual compliance did not cure her failure to cooperate.

The refusal to respond to lawful demands for information from the State Bar is a violation of ER 8.1 The fact that Thomas eventually responded does not cure the initial delay. See Att’y Grieance Com. V. Weiers, 102 A.3d. 332 (Md. 2014.) See also In re Obert, 282 P.3d. 825 (Or. 2012). There the Court rejected the lawyer’s argument that eventual response constituted compliance.


She asserted, “Respondent is obligated and privileged to refrain from participation in the State Bar unconstitutional sham disciplinary proceedings…” [Objection, page 18, lines 12-13.] Ms. Thomas repeats this theme on Page 19, stating, “this repugnant, unconstitutional sham disciplinary proceeding” at line 8 and similarly at line 17.

The conclusion of Ms. Thomas begins on Page 20, increases the font size throughout, and proceeds with an eighteen (18) line, run on sentence. It is epitomized by her use of the word “begat” eleven times. On Page 21, Ms. Thomas continues with a thirteen (13) line, run on sentence, which uses the word “begat” five additional times. For support of this second lengthy sentence she cites to the United States Supreme Court case of Mapp v. Ohio, (citations omitted). There is nothing that suggests how or why it applies. 

The attorney has appealed the suspension. (Mike Frisch)

September 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)


The Massachusetts Supreme Judicial Court ordered a term suspension of an attorney who traded on a tip from his golf buddy that ensnared several golfers in criminality.

The reported on the crime and sentence

Doug Parigian, a well-known Lowell lawyer and local golf star, avoided jail time at his federal sentencing Monday, instead being sentenced to three years of supervised release and eight months of home confinement.

U.S. District Court Judge Denise Casper cited Parigian's clean criminal record and his role in raising his twin 4-year-old daughters as a reason to keep him out of jail.

The decision came moments after the 56-year-old gave a teary plea for home confinement so he could raise his daughters while his wife works.

"Judge, I've made some terrible mistakes," he said, his voice occasionally cracking. "I have no one to blame but myself."

Parigian pleaded guilty in May to conspiracy and securities fraud after Casper refused to dismiss the case. Prosecutors had requested 24 months in jail, plus three years of supervised release.

"Mr. Parigian is never going to do this again," prosecutor Andrew Lelling said, adding that it appeared to be an instance of "doing something stupid."

The requested sentencing was meant to deter others from committing the crime as well, Lelling said.

"It's such a tempting crime," he said. "It's as easy to commit as a click of the mouse."

Parigian and Eric McPhail, a Waltham resident and golf buddy, were accused of using insider information about AMSC, a Devens-based power-technology company, to make hundreds of thousands of dollars in profits from the trading of its stock.

 Parigian is accused of making a profit of $267,881 and avoiding losses of $10,800 by trading on insider information allegedly provided by McPhail.

McPhail allegedly profited by more than $554,000.

McPhail learned secret information about AMSC, formerly known as American Superconductor Corp., from an executive at the company who belonged to his country club, according to prosecutors. McPhail is accused of tipping off several golfing friends, including Parigian.

Four other golf partners reached civil settlements with the U.S. Securities and Exchange Commission for a total of $145,309.

McPhail has yet to be sentenced.

Parigian made his name in the Lowell area as one of the best golfers around. He has won a record 10 Lowell City Tournament championships, his first coming in 1978. He has played in the tournament more than 30 times.

Parigian will not have to pay a fine, but his attorneys said he is likely to face substantial costs from SEC proceedings.

His attorneys argued about the need to care for his young children, and said he is not "a classic" insider-trader.

Allison Koury, who said she has known Parigian for 30 years, called him a "loving, patient and doting father" and "irreplaceable."

After the sentencing, Parigian hugged many of a group of about 30 family members and colleagues who rented a small bus to attend the hearing in Boston. He ignored a request for comment as he left the courtroom.

His home confinement will include electronic monitoring and a curfew from 7 p.m. to 7 a.m.

As part of the sentencing, Parigian will be required to give up his law license if required to do so by the Massachusetts Board of Bar Overseers. As of Monday afternoon, Parigian was still listed as active with the board, with no disciplinary action.

Read more:

Details are found in this opinion of the United States Court of appeals for the First Circuit. (Mike Frisch)

September 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)


The Massachusetts Supreme Judicial Court ordered an indefinite suspension for misconduct in two matters

In the first matter, On October 29, 2007, the respondent pleaded guilty in the United States District Court for the District of Massachusetts to two counts of false statements to a federal agency in violation of 18 U.S.C. § 1001(a)(2). He was sentenced to two years of probation, with conditions. The respondent did not report this conviction to bar counsel, as required by S.J.C. Rule 4:01, § 12(8).

The conduct to which the respondent pleaded guilty was as follows. In April of 2006 and again in January of 2007, the respondent met with FBI agents and complained that a bank had “misdirected” a wire transfer of $88,000 from an account he maintained at the bank to an unknown recipient. He further reported that the bank refused to refund the money. In support of his various claims, the respondent provided the FBI with copies of a number of documents, including bank statements, correspondence and court documents. In fact, as the respondent knew, his claims were false and the documents he provided were forgeries and fabrications.

The respondent’s criminal conduct violated Mass. R. Prof. C. 8.4(b), (c), (d) and (h). His failure to report the conviction to bar counsel violated S.J.C. Rule 4:01, § 12(8), and Mass.
R. Prof. C. 8.4(d).

In the second matter, in 2014 the respondent and his family lived in a house rented from another lawyer. At some point, the landlord told the respondent that he wanted to sell the
house. In June of 2014, the respondent gave the landlord an agreement pursuant to which the house would be purchased by a trust. The agreement was purportedly signed by a relative of the respondent as trustee of the trust. The landlord signed the agreement. Then, in July the respondent sent to the landlord a copy of a purchase and sale agreement for other property of the trust, the sale of which was a condition of the first agreement. That agreement was purportedly signed by the trustee and a buyer. In fact, the respondent had fabricated both agreements and forged the trustee’s signature on both. The trustee had no knowledge of either transaction.

The respondent’s conduct in the second matter violated Mass. R. Prof. C. 8.4(c) and (h).

In mitigation, the respondent’s misconduct did not occur in connection with the practice of law. The respondent lacked any financial motive and his misconduct did not result in any financial gain; he was motivated by family-related issues. Further in mitigation as to the first matter, at the time of the events in issue the respondent suffered from undiagnosed depression.

(Mike Frisch)

September 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Second Strike Is Disbarment

The North Dakota Supreme Court disbarred an attorney who had previously been suspended and reinstated

Nemec was admitted to practice law in North Dakota on October 3, 2005. Nemec was placed on interim suspension effective December 19, 2007, until further order of the Court. Disciplinary Board v. Nemec, 2007 ND 204, 743 N.W.2d 129. Subsequently, Nemec was placed on suspension for a period of eighteen months, retroactive to December 19, 2007. Disciplinary Board v. Nemec, 2008 ND 216, 758 N.W.2d 660. Thereafter, Nemec was placed on suspension for a period of twenty-four months, retroactive to December 19, 2007, and to run concurrently with the eighteen-month suspension in Disciplinary Board v. Nemec, 2008 ND 216, 758 N.W.2d 660. Disciplinary Board v. Nemec, 2009 ND 58, 764 N.W.2d 190. On January 24, 2011, Nemec was reinstated to the practice of law in North Dakota with conditions. Disciplinary Board v. Nemec, 2011 ND 128, ¶ 13, 799 N.W.2d 370. On January 15, 2015, the conditions of reinstatement were lifted. Disciplinary Board v. Nemec, 2015 ND 15, 858 N.W.2d 326. Nemec did not pay her license fee in 2017, and she has not been licensed since December 31, 2016.

The hearing panel made the following findings and conclusions. Nemec represented a client in a divorce. The client paid Nemec a $4,500 retainer. Nemec was not diligent in proceeding with the case and failed to follow up to ensure the divorce was accomplished in a timely manner. Nemec failed to adequately communicate with the client, who experienced several delays obtaining information from Nemec.

By failing to pay the license fee for 2017, Nemec was not licensed after December 31, 2016. She knowingly allowed her license to expire without concluding the client's matter. She also failed to communicate with the client for approximately one year and did not inform him her license expired. Her actions constituted abandonment of the client.

Nemec failed to perform services for the client. She caused the client potentially serious injury because he was not represented. His interests were not protected in the divorce, and he was not able to obtain a divorce in a timely manner. Nemec failed to return the client's file or refund any portion of the client's retainer or unearned fees.

She defaulted on the allegations.

 The original suspension involved abandoning her practice

The Petition further alleges that Nemec abandoned the practice of law, moving to Montana in the days prior to the Thanksgiving Holiday 2007 but failed to notify, communicate with, or otherwise look after the interests of her clients, including Graner and Zahn.

(Mike Frisch)

September 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Suspended Durham DA Seeks Reinstatement

Former Durham District Attorney Tracey Cline is seeking reinstatement to the North Carolina State Bar, which has noted its opposition to the petition.

The Charlotte News Observer reported on the 2015 suspension

Tracey Cline took a moment Friday with two members of a State Bar panel who had just suspended her law license. She thanked them for giving her an opportunity to defend herself against professional misconduct allegations.

Steven D. Michael, chairman of the panel that presided over the two days of hearings, leaned toward Cline as she shook his hand and offered tender advice. Next time – if there is a next time – he told her, “call someone.”

Cline, who was ousted from the Durham County district attorney’s office in March 2012, found out Friday that her law license would be suspended for five years. But the three-member panel ruled that only two of the years would be an active suspension and that she coIt was unclear Friday whether Cline has practiced law since the court proceeding held by Judge Robert Hobgood in March 2012 that removed her from her elected post. Any time since then that she has not practiced, the State Bar grievance panel ruled, would apply toward the two-year suspension.

 The panel found that Cline violated professional conduct rules related to statements she made against Orlando Hudson, Durham’s chief resident Superior Court judge. She also violated rules in seeking prison records for two inmates, the panel said.

 Cline declined to discuss the rulings after the hearing Friday. But in occasionally emotional testimony, she told the grievance panel of the State Bar – the organization that presides over the licensing of North Carolina lawyers – she regretted some of her 2011 conduct at the core of the suspension decision.

“Sometimes you can do the right thing in the wrong way,” Cline told the panel before the disciplinary ruling.

Cline traced her troubles to a time in 2011 when she thought several Durham defense lawyers and Hudson were conspiring with a reporter at The News & Observer to discredit her.

In September 2011, The N&O published an investigative series titled “Twisted truth: A prosecutor under fire” that focused on complaints against Cline in three cases.

Cline said she was frustrated after trying to find out what was behind those complaints and she thought she was being rebuffed by people she had hoped would help her.

Cline told the panel that Hudson, a man she considered a mentor, wouldn’t help her figure out what to do and had ruled against her in several high-profile cases.

In stridently worded court documents, she criticized him of corruption and bias.

Cline said Friday that she regretted the language she used against Hudson, but she maintained that she was trying to stick up for crime victims and their families who she thought were being harmed by his rulings.

“My intent was to try to seek justice,” she said, adding that she thought it was like being in “a hurricane without any candles.”

(Mike Frisch)

Read more here:
Read more here:


September 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Field Tests For Marijuana Intoxication

The Massachusetts Supreme Judicial Court has opined on the admissibility of field sobriety tests for marijuana

In this case we are asked to consider the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence of marijuana. Police typically administer three FSTs -- the "horizontal gaze nystagmus test," the "walk and turn test" and the "one leg stand test" -- during a motor vehicle stop in order to assess motorists suspected of operating under the influence of alcohol or other drugs. These tests were developed specifically to measure alcohol consumption, and there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

By contrast, in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. We conclude that, to the extent that they are relevant to establish a driver's balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment. The introduction in evidence of the officer's observations of what will be described as "roadside assessments" shall be without any statement as to whether the driver's performance would have been deemed a "pass" or a "fail," or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from   yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.

(Mike Frisch)


September 19, 2017 | Permalink | Comments (0)

Monday, September 18, 2017

Long-Standing Relationship With Insurer Did Not Establish Conflict

The Washington State Supreme Court affirmed the dismissal of a legal malpractice claim

This case involves claims of breaches of fiduciary duty and legal malpractice against lawyers hired to defend insureds in a civil action where the insurance company provided the defense. The insureds claim the lawyers violated their professional responsibilities by failing to disclose a potential conflict based on a long-standing relationship the law firm had with the insurance company in not only accepting cases representing insureds in civil cases, but also at some time representing the insurance company in coverage disputes. The insureds also claim the attorneys violated their professional responsibilities by failing to advise them of settlement negotiations and by taking settlement directions from the insurer.

The Court of Appeals affirmed the trial court's summary judgment dismissal and held that under the facts of this case, the Ardens failed to establish an actionable breach. Arden v. Forsberg & Umlauf, PS, 193 Wn. App. 731, 373 P.3d 320, review granted, 186 Wn.2d 1009, 380 P.3d 484 (2016). While we disagree with portions of the Court of Appeals' analysis, we affirm in result.

The insurance company had agreed to defend at the importuning of privately-retained attorney Cushman. The company selected Forsberg & Umlauf.

The court

The record establishes that as to settlement, Forsberg, Cushman, and the Ardens had agreed in the initial settlement strategy that Hartford fund the entire settlement. Throughout negotiations, Forsberg was advancing the Ardens' directions that Hartford pay any settlement. The record shows that settlement offers authorized by Hartford were understood to be authorized by the Ardens.^ As the Court of Appeals' decision notes—^there is no evidence to suggest that if Forsberg had consulted with the Ardens a different result would have occurred. Arden, 193 Wn. App. at 756. In the end, Hartford ended up funding the settlement. The Ardens have failed to establish damages.

 The litigation arose from Mr. Arden's shooting to death a neighbor's Labrador puppy. (Mike Frisch)

September 18, 2017 | Permalink | Comments (0)

A Contentious Hearing

As is its usual custom, the New Jersey Supreme Court followed the recommendations of the Disciplinary Review Board and imposed censure and reprimand on co-respondent attorneys. 

Notably, the court-appointed Special Master had proposed disbarment for the censured attorney and a one-year suspension for the reprimanded one.

Obviously an unusual case.

A group of former employees of Prudential Life Insurance Company (Prudential) retained Leeds, Morelli and Brown (LMB) to sue Prudential for discriminatory practices (the Prudential litigation). Although the case settled, as part of the settlement Prudential paid an "advance" to the plaintiff’s law firm, LMB, without notice to the plaintiffs. Alleging that Prudential "bought off" their counsel, the plaintiffs then retained respondents to sue both their prior counsel and Prudential. Lederman v. Prudential Insurance Company of America, Inc. (Lederman). In turn, LMB filed a collateral lawsuit against respondents, personally, as well as two lawsuits against respondents’ former and current clients.

The allegations (sustained by the DRB) involve conflict of interest in the resolution of the collateral litigation.

But or more prurient interest was the hearing before the special master, which involved the censured attorney's departure by ambulance and 10-day absence, the denial of repeated attempts by the attorney's counsel to withdraw, a vigorous and contentious motions practice and accusation of bias on the part of the special master.

None of which made the DRB sympathetic to the censured attorney.

On counsel's attempts to withdraw

The presenter had objected to [counsel] Hill’s withdrawal because, in her view, Hill served as a "buffer" for Roper. The record  demonstrated that Roper  failed to act in accordance with the appropriate  courtroom decorum.  When Roper was present,  her conduct repeatedly was disruptive and disrespectful. For example, she shouted that a particular ruling was "bull[@#$%]" and told the special master that "the blood will be on your hands" after he denied her motion for a stay.

And bias

Respondents maintain that the special master was biased and that he was acting as the prosecutor during the hearing. The record simply does not support this conclusion; there was no reasonable basis to conclude that he was unfair or biased. To the contrary, the record demonstrates that respondents and Hill did everything possible to hamper the progress of the case, which included accusing the special master of bias and of acting as a prosecutor. 

The DRB on the censure

Respondent’s conduct during the hearing, however, was egregious. She failed to appear for the majority of hearing dates, despite her clear obligation to do so. When she was present, she was disrespectful and disruptive, and engaged in repeated outbursts. Further, both she and her counsel defied the special master’s order that they appear for the final hearing dates. Although Roper was directed to appear and was even given a second opportunity, she chose not to do so. She made a conscious and ill-considered decision to disobey a court directive. The proper course would have been to attend the hearing, and note her continuing objection. She chose instead to flout the special master’s authority and thus, the authority of the Court. For this significant aggravating factor, we determine to impose a censure.

(Mike Frisch)

September 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"The Eyes, The Smile The Mind" Leads To "Your Wife Called Me"

The North Carolina Office of Counsel publishes a quarterly report that contains a wealth of information such as this case summary

It is alleged that [attorney] Averitt, of Cary, forged a letter purporting to be from the Augusta National Golf Club, falsely represented that his employer had eight tickets to the Masters Golf tournament, and sold the fictitious tickets on Craig’s List. Because Averitt alleged that he is disabled, the disciplinary proceeding was stayed and Averitt was transferred to disability inactive status. The DHC entered a consent order concluding that Averitt is disabled and continuing his disability inactive status. This proceeding will remain stayed until Averitt successfully petitions for transfer back to active status.

Another reported disposition involves a five-year suspension for sex with a client who was engaged in litigation with her ex- boyfriend and that started with text messages

[Attorney] Braswell and J.M. had several text message exchanges before he met with her on 24 November 2015 to include the following exchanges:

a. 11/19 message from Braswell to J .M.: "Thinking of you. Is that ok?"

b. 11/19 message from J.M. to Braswell: "Why do you think you need to ask?"

c. 11/19 message from Braswell to J.M.: "Then you have also figured out that my interest in you goes beyond helping you out of your current situation. But if you want me to stop there then you should tell me now. Not that I would stop but I would know your position."

d. 11/19 messages from J.M. to Braswell: "I would like to get to know you. The worst thing that can happen for either of us is we made a new friend. I feel that if don't leave myself open I will continue to live with regret!" "And you are supposed to be working!"

e. 11/19 message from Braswell to J.M.: "I couldn't agree more. I think we share a lot of mutual interests and a relationship would only enhance our potential. "

f. 11/19 message from J.M. to Braswell: "I would like to know what I did do to capture your attention. I did not get the impression many women distract you like this. I may be completely off base."

g. 11/19 message from Braswell to J.M.: "You are very perceptive. If you must know ... the eyes, the smile the mind"

h. 11/20 message from J.M. to Braswell: "Just got to the hotel. You need to watch out, someone might think you like me!"

i. 11/20 message from Braswell to J.M.: "And the problem would be ... "

j. 11/20 message from Braswell to J.M.: "I think you are exactly my type .. ,[sic] expressive, energetic, confident, sexy and fun"

k. 11/21 message from Braswell to J.M.: "Good morning. Woke up thinking of you. Taking the kids to the kiddy museum later today. When is the first soccer match"

i.  11/22 message from Braswell to J .M.: "I look forward to making you smile and laugh. That is the least 1 can do to thank you for adding value to my life."

m. 11/23 message from Braswell to J.M.: "; .. Remember try not to look as good as you did before otherwise I can't promise that I won't try and kiss you."

Lunch at a Chinese restaurant led to Ddnner and sex followed shortly thereafter.

Communications between J.R.  and the attorney 's wife also figure int the story.

J.M. sent the following text messages to Defendant after she was contacted by his spouse

a. "Hey, your wife called me. I told here [ sic] I had the kids in the car, which I did. Guess you are going to have a shitty night, I am calling her back shortly. She has a lot of questions"

b. "Just to let you know I am filing a complaint with the board. You are unethical!"

The Goldsboro News-Argus reported the suspension. (Mike Frisch)

September 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)