Tuesday, April 4, 2017

New York Declines To Consider Merits Of Facebook Appeal

The New York Court of Appeals (per Judge Stein) has issued a decision declining a merits review of Facebook's failed motions in response to a criminal investigation

In this matter, we are asked to determine the appealability of two Supreme Court orders. The first order denied Facebook, Inc.'s motion to quash certain warrants, issued pursuant to the federal Stored Communications Act, that sought the account information and communications of various Facebook subscribers in connection with a criminal investigation. The second order denied Facebook's motion to compel disclosure of the affidavit supporting the warrant application. 

This case undoubtedly implicates novel and important substantive issues regarding the constitutional rights of privacy and freedom from unreasonable search and seizure, and the parameters of a federal statute establishing methods by which the government may obtain certain types of information. Nevertheless, while it may be tempting for this Court to address those issues, we must -- in this case as in every other case -- first ascertain whether we possess the necessary jurisdiction to do so under our own constitution and statutes. This presents equally important issues regarding the separation of powers among our three branches of government. With these principles in mind, because the orders resolving Facebook's motions relate to warrants issued in a criminal proceeding, and the Criminal Procedure Law does not authorize an appeal from either order, we are constrained by law to affirm the Appellate Division order dismissing Facebook's appeals to that Court.

Judge Rivera concurred

I concur with the majority that the order denying Facebook's motion to quash the warrant is not appealable, but on the narrower basis that Facebook did not assert the grounds provided for under 18 USC § 2703 (d), and, thus, pursuant to section 2703 (a), the order is subject to our state rules and unreviewable. However, I fully agree with and adopt my dissenting colleague's comprehensive and well-reasoned analysis that the Stored Communications Act permits Facebook to appeal the denial of a motion to quash or modify the SCA warrants (dissenting op at §§ I[a], III[a]).

Judge Wilson dissented

The Fourth Amendment to the U.S. Constitution, urged on the nation by the New York ratifying convention in 1788 (William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602- 1791, 695 [1st ed 2009]), secures us against unreasonable searches and seizures by our government. It reflects the American consensus that the general warrants and writs of assistance popular among British officials in colonial government -- orders that licensed their possessors to scour homes and businesses for anything of potential interest to the Crown, and that were a significant provocation to the revolutionary sentiment then taking hold in New England -- had no place in a nascent republic that so deeply abhorred arbitrary power...

Constitutional and Congressional words of promise were given to our ear, and I would not break them to our hope. I respectfully dissent, and would remand this case to the Appellate Division to resolve the motion to quash or modify the warrants, as well as the pendant matters involving the permissibility of an indefinite gag order and the disclosure of the underlying affidavit. As one of the delegates to the 1938 convention urged his fellow representatives, "let us decide this thing on the merits" (Revised Record at 462).

(Mike Frisch)

April 4, 2017 in Current Affairs | Permalink | Comments (0)

A Dollar Is Enough For 18 Months Of Representation

An unpublished decision of the North Carolina Court of Appeals

The Law Firm of Michael A. DeMayo (“Plaintiff”) appeals from the trial court’s 7 April 2016 order awarding it one dollar in attorneys’ fees from Schwaba Law Firm (“Defendant”) as a result of Plaintiff’s legal services rendered on behalf of a client of Defendant’s. On appeal, Plaintiff argues that the trial court erred in determining that the value of Plaintiff’s services was only one dollar. After careful review, we affirm.

The client retained plaintiff to represent him in a personal injury case on a 1/3 contingency basis. The retainer further provided:

The fee agreement further provided that in the event Beaver terminated his contract with Plaintiff after an insurance carrier had made an offer of settlement, Beaver “would be responsible for 95% of Plaintiff’s award had a settlement been reached.”

Notably (practice pointer here), the plaintiff did not keep track of hours devoted to the case

[Client] Beaver’s case was assigned to Wendy Davis, a paralegal working for Plaintiff, and her work was supervised by Michael A. DeMayo, an attorney. Plaintiff’s employees worked on Beaver’s case from December 2011 to June 2013. Although Plaintiff did not keep a record of the amount of time each attorney or paralegal spoke to or contacted the client, Beaver’s file “had 232 ‘touches’ [representing] the number of times the file was handled for any purpose.”

The client rejected a settlement offer of $85,000 and terminated plaintiff's services. 

He retained defendant and accepted $100,000 in settlement.

Plaintiff demanded 95% pursuant to the retainer agreement. Defendant refused to pay anything. 

Litigation ensued

In the present case, Plaintiff argues that the trial court erred in awarding Plaintiff only one dollar...

Plaintiff’s sole argument is that the trial court erred in calculating the amount of fees to which it was entitled based on the theory of quantum meruit. However, Plaintiff does not argue that the trial court failed to properly articulate the factors set out in Guess. Nor does it contend that any specific finding of fact made by the trial court was unsupported by competent evidence. Instead, Plaintiff makes a blanket assertion that the trial court “ignored competent evidence of record upon which it could have assigned a value to Plaintiff’s services based upon a percentage allocation of the contingency fee.”...

Of particular significance is Plaintiff’s failure to specifically challenge Finding of Fact No. 38. In that finding — as quoted above — the trial court determined that Plaintiff had “offered this Court no means to determine an amount of award pursuant to quantum meruit.”

Thus, in light of the fact that the trial court used the appropriate factors in evaluating Plaintiff’s quantum meruit claim and that Plaintiff has failed to specifically challenge any of the court’s findings of fact, we cannot say that the trial court abused its discretion in awarding Plaintiff the sum of one dollar.

(Mike Frisch)

April 4, 2017 in Billable Hours | Permalink | Comments (0)

Golden Parachute

A recent disciplinary disposition is summarized on the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Billie D. Burchfield (attorney registration number 19325) from the practice of law for ninety days, all stayed upon the successful completion of a one-year period of probation with conditions. The probation took effect February 23, 2017.

Burchfield, a sole practitioner in Parachute, Colorado, represented a certain client in various legal matters beginning in 1990, including matters pending in 2012. Burchfield made a series of loans to the client between December 2011 and July 2012. There were no promissory notes or other loan documents for any of these loans. Three of the loans were made during the course of Burchfield’s attorney-client relationship with the client. Burchfield did not give the client any written conflict disclosures for the 2011-2012 loans. Nor did she obtain informed, written consent from the client concerning the loans.

Also in 2012, Burchfield drafted or prepared a deed granting a life estate in four acres of property she owned in Parachute to the same client in exchange for payment of $16,000.00. This deed was never recorded. Burchfield neither gave her client written conflict disclosures with respect to this sale nor obtained his informed, written consent to the sale.

Through this conduct, Burchfield violated Colo. RPC 1.8(a) (a lawyer shall not enter into a business transaction with a client unless the transaction and terms are both fair and fully disclosed to the client in writing, the client is advised in writing to seek independent legal counsel about the transaction, and the client gives written informed consent to the transaction).

(Mike Frisch)

April 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, April 3, 2017

Probation For Domestic Battery

A recent sanction reported on the April 2017 California Bar Journal

MICHAEL STEPHEN STEINER [#262189], 36, of San Diego, was placed on one year of probation and faces a one-year suspension if he fails to comply with the terms of his disciplinary probation. He was also ordered to take the MPRE. The order took effect Jan. 6, 2017.

In October 2014, Steiner pleaded guilty to domestic battery, a misdemeanor. The charge stemmed from an Aug. 9, 2014 fight that occurred between Steiner and his girlfriend at their home. The two got into an argument during which Steiner pushed the woman against the wall. She was breastfeeding the couple’s baby at the time and Steiner’s two older children were also present.

Steiner left the house with the two older children but returned a few minutes later and the argument resumed. He grabbed her by the arm, grabbed her throat and pushed her into a wall. She had scrapes on her right arm, neck and knees.

Steiner had no prior record of discipline, entered into a pretrial stipulation with the State Bar, provided eight character witnesses from a variety of backgrounds who attested to his good character, rehabilitation efforts and understanding of his misconduct. He has done community service and voluntarily enrolled and completed anger management and parenting classes.

(Mike Frisch)

April 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Conduct Unbecoming

A Tribunal Hearing Division of the Law Society of Upper Canada sanctioned an attorney who had procured heroin for a friend. The friend died from a self-injected overdose.

David A. Wright (for the panel):– Sarah Jackson, the Lawyer, admits through an agreed statement of facts that she committed professional misconduct when she did not report various criminal charges to the Law Society in 2012 and 2013. She also admits that she engaged in conduct unbecoming a lawyer in January 2013 when she facilitated the acquisition and use of heroin by EC, who died of an overdose on the night she assisted him in getting drugs.

Ms. Jackson, who is in her late 30s and was called to the bar in 2003, has not had an active licence to practise law since January of 2013. From January to August 2013, her status was retired or not working. She was administratively suspended in August 2013. On February 5, 2014, she signed an undertaking not to practise law until these discipline proceedings were completed.

The parties made a joint submission for a penalty of a suspension of eight months, retroactively commencing on May 27, 2016. The proposed order also contained terms that Ms. Jackson not return to practice until a medical practitioner chosen by the Law Society confirmed her ability to meet her obligations as a lawyer and that she pay costs of $1,000. We accepted the joint submission as reasonable and made the requested order, with reasons to follow. These are our reasons.

The story

Ms. Jackson initially met EC when she was 13 or 14 and they were going to school in Oshawa. They later became closer friends when Ms. Jackson was studying law. They lost touch around 2003 but became reacquainted in early January 2013.

Both Ms. Jackson and EC had experience with non-prescription drugs. Ms. Jackson had previously used heroin on a regular basis but had stopped for over a year. EC had never taken heroin but was eager to try it. According to Ms. Jackson, EC asked her several times over a couple of weeks if she knew how to get heroin. She first refused but later agreed to help him get the drug.

On January 19, 2013, Ms. Jackson helped arrange for EC to buy heroin. He received half a gram and then she brought him to her home. EC had all the necessary equipment to prepare and inject the heroin: a needle, tie and spoon.

Ms. Jackson believed that 1/6 of a gram of heroin would be a safe amount for anyone. When she was using heroin, with her tolerance, she could inject up to two grams per day. When he asked her how much heroin he should inject, she suggested “…something small since he had not done it before” and divided the half-gram into three doses.

EC tried to prepare the first dose but did not do it right and the dose was unusable. He asked Ms. Jackson to prepare the second dose, which she did and injected it into his arm. After the injection, he tidied her kitchen and fed her plants. They later sat and talked and listened to music. There was no indication anything was wrong.

Later, EC asked Ms. Jackson if she thought he was ready for another dose. She said that “…if that’s what he thought, that he thought he was ready, he didn’t look bad or anything...” EC injected the heroin himself. Sometime after midnight, he became drowsy. Ms. Jackson put on a movie and EC went to sleep. She stayed with him for about half an hour and then did other things.

The next morning, Ms. Jackson discovered that EC had died. She called 911. She was charged with manslaughter on May 8, 2013. She was incarcerated from the date of her arrest until she was acquitted on May 30, 2014.

Ms. Jackson was acquitted of manslaughter. The trial judge found that Ms. Jackson’s actions in arranging for EC to buy the heroin, dividing it into three doses and injecting him with the second dose constituted the offence of trafficking (she was not charged with this offence). He found that none of these actions caused his death. He decided that EC’s self-injection of the third dose severed “any causal link between the accused’s unlawful act of trafficking and the unfortunate death of the deceased.” Therefore, she was not guilty of manslaughter.

The trial judge also found that Ms. Jackson was not guilty of criminal negligence causing death. It had not been shown that she showed a wanton disregard for EC’s safety, since he did not seem to be in distress or suffering from an overdose, and she checked on him several times after the injection. The judge emphasized that it was EC who was “…persistent in his quest to inject heroin…” and wore Ms. Jackson down until she got it for him.

 Conclusion

Given the length of her undertaking not to practise, it is not unreasonable for a portion of the suspension to be retroactive: see, by analogy, Law Society of Upper Canada v. Atkinson, File No. LCN37/13 (June 17, 2013, unreported), summarized in Law Society of Upper Canada v. Drabinsky, 2014 ONLSTH 139 (CanLII) at para. 59.

Because of the nature of the events and Ms. Jackson’s admissions of drug use, it is appropriate to require a medical examination before she returns to active practice, to ensure that she is able to serve the public.

For these reasons, we agreed with the parties that the joint submission was reasonable, promoting specific and general deterrence, rehabilitation and ensuring the protection of the public. The costs proposed, in the amount of $1,000, are also reasonable given the circumstances, notably Ms. Jackson’s obviously limited income.

(Mike Frisch)

April 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Confidentiality Breach Draws Proposed Suspension, Probation

Also up for argument this week before the Ohio Supreme Court

Cleveland Metropolitan Bar Association v. Edward J. Heben Jr., Case no. 2016-1495
Cuyahoga County

The Board of Professional Conduct recommends to the Ohio Supreme Court that Cleveland attorney Edward J. Heben Jr. be suspended from practicing law for one year, with six months stayed, because he disclosed information in an affidavit about his representation of a client without the client’s consent.

The board dismissed several additional charges of attorney misconduct submitted in November 2015 by the Cleveland Metropolitan Bar Association after concluding that the evidence didn’t support those allegations.

Client Disputes Bill in Divorce Matter
Heben was hired in April 2008 to represent Jennifer Cecchini in her divorce. The matter, which involved three children and substantial assets, stalled in a Stark County court for seven years. Cecchini stopped using Heben’s services in 2008 and was represented by five different lawyers over the years.

Cecchini hired Heben for a second time in September 2013 to handle a real estate issue in the divorce. As part of an arbitration agreement, one of the divorcing couple’s properties was sold at auction. Cecchini disputed how that auction was handled and refused to transfer the real estate title. Heben began work on the matter in preparation for a hearing.

Cecchini never signed Heben’s fee agreement, fired him after 16 days, and disputed the bill for his work. While the bar association concluded that Heben did all the work documented in his billing statement, it charged that Heben’s fee was excessive because Cecchini said Heben exceeded the scope of what she authorized. The panel assigned to review the case for the board dismissed the charge, however, after determining that Heben’s work was much more substantial than the bar association and Cecchini indicated.

Lawyer Discloses Alleged Illegal Activity in Court Filing
After Cecchini fired Heben, he filed a motion to withdraw as her lawyer. He attached an affidavit to the request in which he disclosed confidential information Cecchini had told him and stated that Cecchini fired him as retaliation for his advice about actions she had taken that he considered illegal.

The panel determined that Heben’s affidavit violated an ethics rule that prohibits lawyers from revealing information related to their representation of a client without the client’s consent. The panel took issue with Heben’s approach – using an affidavit to share Cecchini’s alleged illegal conduct with the court – and noted that none of the ethical duties lawyers have to report certain activities by clients applied in the circumstances of this case.

Charges Dismissed in Foreclosure Case
The panel dismissed several other rule violations charged by the bar association involving Heben’s representation in another client’s foreclosure case. Based on the evidence, Heben didn’t charge an excessive fee for his work, he didn’t misrepresent what he could accomplish in the case, and he kept the client informed about the matter during the few days he handled the case, the panel concluded.

Lawyer Believes Suggested Sanction Is Too Harsh
Heben objects to the board’s recommended sanction of a six-month actual suspension. He states in his brief that he believed he was required by local court rules to provide “a complete and detailed explanation of his reasons for withdrawing from [Cecchini’s] case.” He notes that he obtained research from the Cleveland Law Library Association for guidance on his ethical obligation related to Cecchini’s alleged fraudulent actions and, based on that information, thought his affidavit was proper.

As the board determined, he acknowledges that he should have disclosed the possibly fraudulent conduct only with enough detail to offset the possible damage to Cecchini’s spouse in the divorce and should have made that disclosure to the court in a way that didn’t make the information public, as happened when he filed the affidavit. (The court removed the affidavit from the record at Cecchini’s request after determining that the contents weren’t relevant or appropriate.) He contends that the evidence doesn’t show he was being vengeful, but instead indicates that he “made a good faith effort to comply with the local rule and his ethical obligations.”

The board’s recommended sanction is based on a 2004 disciplinary case in which the attorney didn’t keep client confidences but also was found to have committed substantial additional misconduct. But Heben notes he has been found to have committed only one rule violation. Pointing to his 41 years of practice with no prior discipline, he argues the suggested six-month actual suspension is too severe for this single rule violation and asks the Court for a sanction with no actual suspension time.

Cleveland Association Argues Suspension Is Warranted
The bar association counters that Heben is only now acknowledging his misconduct when filing the affidavit and adds that he continues to blame the law library for the breach of confidentiality he owed to Cecchini as her lawyer. The simplest inquiry into the rule pertaining to client confidences – which is easily accessed on the Supreme Court’s web site – would’ve made it clear to Heben that his affidavit as submitted was unethical, the bar association asserts. The document he filed contained information that harmed Cecchini in her ongoing divorce litigation, the association stresses, adding that Heben continues to inappropriately disparage his former client in his objections.

The bar association also rejects Heben’s position that he acted in good faith when crafting the affidavit. A veteran attorney’s failure to review attorney conduct rules doesn’t demonstrate good faith, the bar association argues. Heben’s supposed ignorance of his ethical responsibilities doesn’t excuse his misconduct, and he knew disclosing such client information in a public document would be harmful, the bar association maintains. The association agrees with the board that Heben had a vengeful purpose.

Contending that the board cited the 2004 disciplinary case because of that attorney’s similar selfish motivation, the bar association believes the recommended one-year suspension with six months stayed is appropriate.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

(Mike Frisch)

April 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

From Lemons

The Ohio Supreme Court web page has a summary of a bar case scheduked to be argured tomorrow

Wood County Bar Association v. Robert E. Searfoss III, Case no. 2016-1489
Wood County

In April 2012 James Bodenbender hired attorney Robert E. Searfoss III of Bowling Green to pursue a lemon law claim against a car dealership. The two entered an oral arrangement in which Bodenbender paid a $5,000 retainer and was to be billed $250 per hour. Searfoss didn’t present Bodenbender with a written fee agreement and told him he didn’t anticipate billing him anything more for the representation than the $5,000 because he would be able to recover attorney fees from the opposing party.

Searfoss placed the funds in a required client trust account and withdrew $4,700 from it in May 2012, and the rest in July. Contrary to what he stated in the oral arrangement, he billed Bodenbender for an additional $1,400. Searfoss told Bodenbender he had to conduct substantial research on the issue before filing a lawsuit. In July 2012, Searfoss filed a complaint with the Ohio Attorney General’s Office, which determined the dispute didn’t warrant any action by the office, and the office notified Searfoss of that in January 2013.

Client Seeks to Replace Searfoss
As the attorney general’s investigation was taking place, Bodenbender hired attorney Stephen Snavely to assist him in getting his $5,000 back from Searfoss because he was unhappy with the representation. Snavely told Searfoss that Bodenbender was ending his representation, and asked for an accounting for the legal services provided. Searfoss responded, saying he did 25.6 hours of work on the case, but didn’t have specifics because he was switching from paper to digital records at that time and the details of his work were lost. He also noted that Bodenbender instructed him not to take any action on the case until further notice.

Snavely notified Bodenbender, and his son, Michael Bodenbender, who had power of attorney for his aging father, about Searfoss’s response. Michael Bodenbender, who is also the Henry County sheriff, filed a complaint against Searfoss with the Office of the Disciplinary Counsel in July 2013. The disciplinary counsel declined to investigate, informed Bodenbender that it didn’t have jurisdiction over fee disputes, and directed him to the Wood County Bar Association. The disciplinary counsel informed Michael Bodenbender that the county bar association would handle a fee dispute or send it to a larger nearby county that could take on the matter. The case was referred to the Toledo Bar Association, and the disciplinary counsel noted its case was closed in letters to Bodenbender and Searfoss.

Searfoss refused to participate in fee arbitration, and the Wood County Bar Association reopened its investigation of the Bodenbender complaint. Through further investigation, the bar association discovered it was more than a fee dispute, and concluded Searfoss violated several professional conduct rules when representing Bodenbender. The bar association complained to the Board of Professional Conduct that Searfoss failed to maintain records of the funds he was holding for a client, charged an excessive fee, and violated other rules.

Another Client Complains
The bar association notes it was prompted to reinvestigate Bodenbender’s claims against Searfoss after it received a complaint from Elizabeth Turner, who asked Searfoss to handle two stepparent adoption petitions for her. Based on Turner’s complaint, the bar association suspected a pattern of abuse. Searfoss told Turner he was inexperienced in adoption matters and claimed he offered to refer her to another lawyer, but ultimately agreed to handle the case for a $2,500 flat fee and $1,000 for filing fees. Turner also didn’t receive a written fee agreement, and he deposited $2,500 into his personal checking account rather than a client trust account and put $1,000 in cash in an office safe.

Searfoss testified that he earned the fee the day he accepted Turner’s payment because he already had done hours of research on the case. The payment was made in January 2014, but Searfoss took no action on the case until May 2014. Turner attempted to contact Searfoss several times between February and May inquiring about the status of her case and received an email from him in May saying he was finally getting the adoption going.

Searfoss filed a petition for one of the two children in Wood County probate court. The judge responded to the filing by stating the court needed additional information from Searfoss, which was not immediately provided. The court informed Searfoss and Turner that if it didn’t have the required information by June 13, it would dismiss the case. Turner contacted Searfoss three days before the deadline reminding him to provide more information, and told him if he didn’t follow through by June 12, she would fire him and ask for a $3,500 refund.

Searfoss responded the next day informing Turner she needed to file her case in neighboring Lucas County because she and her children had moved to Toledo. Turner noted that she had moved six months earlier and informed Searfoss of that. Searfoss had the Wood County case dismissed and sent Turner a $1,700 check, while Turner hired another attorney who completed both adoptions for $2,300.

Turner was dissatisfied with the refund amount and filed a grievance with the county bar association. Searfoss told Wood County’s investigator that this also was a fee dispute, and Searfoss attempted to resolve the matter by offering Turner another $600. Eventually he agreed to refund the entire amount.

The bar association charged Searfoss with violating several rules including failing to provide competent representation, failing to keep a client informed, and making a misrepresentation to Turner.

Searfoss Fails to Attend Hearing
A three-member panel of the professional conduct board met in July 2016 to consider the complaints against Searfoss, but neither he nor his attorney attended the hearing. The panel’s chair called Searfoss’s attorney prior to the hearing to see if the parties would stipulate to some of the facts of the dispute and to remind him of the hearing. Searfoss’s attorney never responded. The panel went ahead with the hearing without Searfoss or his lawyer, and his lawyer called the panel just as it was concluding to say he had the wrong date noted. He asked for an emergency ruling to delay the hearing, which was overruled after the panel chair indicated Searfoss and his lawyer were notified by mail and email of the date.

The panel concluded that Searfoss committed 10 rule violations and recommended to the board that Searfoss be suspended from the practice of law for two years, with one year stayed on conditions.

Searfoss Disputes Findings
Searfoss suggests that his actions at most warrant two years of monitored probation and that he was being severely punished for an inadvertent mistake that led to him not appearing for the panel hearing on the matter.

Searfoss challenges the board’s right to charge him with violations based on his representation of Bodenbender, indicating that while his timesheets were destroyed, he provided the board with the cases, laws, and regulations he researched before taking the first appropriate step in a lemon law case, which is to file a complaint with the attorney general. He notes that both the disciplinary counsel and the Wood County Bar Association dismissed their investigations of Bodenbender’s complaint by concluding it was a fee dispute and not an incident in which Searfoss committed ethics rule violations.

Searfoss argues that court rules allow an individual to file a grievance with either the disciplinary counsel or a county bar association, but not both. When the disciplinary counsel dismissed his case and sent the matter to fee arbitration, the case was closed and the county wasn’t empowered to instigate a new investigation of him, he concludes. Because the county bar association had no right to investigate the complaint, the board shouldn’t have considered the association’s complaint and the charges against him should be dropped, he asserts.

In response to Turner’s complaint, Searfoss indicates it wasn’t clear to him that Turner relocated to Toledo and that none of the email or documentation exchanges between the two proved she informed him she had moved. He notes that the check she paid him with had a Wood County address.

He also describes his attorney’s failure to appear at the hearing as an inadvertent error caused when the Wood County investigators asked to change the original hearing date. Searfoss and his attorney agreed to a different date, but the attorney’s calendar wasn’t updated to reflect the change. Searfoss asserts that all subsequent references to the hearing from his lawyer had the original date. He notes that he and his attorney weren’t avoiding the hearing, citing several points leading up to the hearing where the parties were exchanging information and Searfoss was responding to motions.

Bar Association Seeks Suspension
The Wood County Bar Association supports the findings of the board and advocates for Searfoss’s suspension. The bar association indicates that on six occasions, Searfoss or his attorney failed to comply with a deadline in the case and that missing the hearing was “inexcusable neglect,” not a one-time scheduling error.

The bar association argues that it had the authority to re-open its case against Searfoss after the disciplinary counsel alerted Searfoss that it was dismissing the case. The bar association notes the reason for the dismissal was a lack of jurisdiction, not that it didn’t believe the charges had merit. It states that the word “dismissed” isn’t a “magical incantation that automatically renders a grievance conclusively decided.”

The bar association also maintains that it sought greater sanctions against Searfoss than after its initial investigation because Turner filed her grievance before the Bodenbender matter concluded. Her charges raised a question of whether Searfoss engaged in a pattern of ethical violations, the bar association suggests, and further investigation led to the additional charges.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

(Mike Frisch)

April 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Self-Suspension Affects Sanction

The Oklahoma Supreme Court has publicly censured an attorney who had self-suspended and sought treatment after two arrests

According to the information that the District Attorney of Cherokee County filed on October 2, 2015, McMillen was stopped on September 25, 2015, for driving under the influence of alcohol, transporting an open container of beer, and driving with a suspended license. On February 22, 2016, McMillen was arrested in Wagoner County for driving under the influence after causing an automobile accident in which the other driver was seriously injured. The Wagoner County charges were filed on May 19, 2016.

The respondent pled no contest to both charges and entered plea agreements in both counties in November of 2016. It appears that the charges were reduced to misdemeanors in both counties and that the respondent received deferred sentences of approximately eighteen months to run concurrently. On December 12, 2016, the Court, pursuant to Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings, entered an immediate interim suspension of the respondent.

The Court also gave McMillen an opportunity to show why the interim suspension should be set aside and allowed the Bar to respond. On December 20, 2016, the respondent filed an Affidavit of Compliance with the Court stating that, pursuant to the Court's interim suspension and to Rule 9.1 of the Rules Governing Disciplinary Proceeding,4 she advised her clients to seek new legal representation.  Essentially, McMillen affirmed that she was "taking proactive steps to formally withdraw from all cases pending with any tribunal." She enclosed a list of the clients who were notified and in which counties their cases were filed.

On January 6, 2017, and February 2, 2017, the respondent requested that her interim suspension be set aside. The Bar responded on January 17, 2017. Additionally, some of the exhibits/documents which were filed, were filed under seal because they contain medical and other health care records. On February 2, 2017, McMillen notified the Court that she expressly waived her right to a hearing before the Professional Responsibility Tribunal.

No final discipline has been imposed and the respondent has been suspended by the Court since December 12, 2016. Respondent now requests that the Court set aside her interim suspension, and impose no further discipline. The reason? McMillen "self suspended" for six months about a year ago, sought treatment, and continues to seek treatment for her addiction issues since then as well. In support of her argument, she includes evidence of her self-suspension which the Bar acknowledges did actually occur.

The respondent, after being turned down for inpatient residential substance abuse treatment through the Oklahoma Department of Mental Health and Abuse System (ODMHSAS) in March of 2016, began outpatient treatment which continues to this day. McMillen has been consistent in participation and treatment and her counselor does not assess that the respondent would be a danger to her clients or unable to provide effective service to them. Her treatment has included considering the welfare of clients at the forefront of her mind, monitoring stress levels and improving self-care, and assessing the amount of work needed for a client's case and asking for help when needed.

Respondent has regularly attended Alcoholics Anonymous. Since July of 2016, respondent has assisted a Tulsa attorney, Patrick Adams. Since her December 2016 suspension she has assisted him with cases, but has not advised or represented clients. In addition to this, she did not work at all from February of 2016 until July of 2016, while seeking treatment. The respondent is very forthcoming in admitting her problems and has actively sought treatment. There is no indication of client neglect, misconduct regarding clients, or an unfitness to practice law.

On January 17, 2017, the Bar filed a response to McMillen's request to set aside the interim suspension. The Bar states that it has interviewed all of the supporting witnesses and verified all of the respondent's documentation and is in full support of lifting the Order of Interim Suspension because of the respondent's exemplary behavior in self-suspending and seeking treatment. On February 21, 2017, the Bar recommended that the Court issue a final order of discipline with a public censure and with publication limited to the Oklahoma Bar Journal. The Bar also requests that the respondent provide quarterly compliance reports through 2017 which confirm regular attendance and participation in Lawyers Helping Lawyers and/or Alcoholics Anonymous as well as complete her treatment plan with her counselor.

The court

Respondent's pleas of guilty to the criminal charges serve as a basis for this summary disciplinary proceeding.  Nevertheless, not every criminal conviction facially demonstrates the lawyer's unfitness to practice law.  A lawyer is professionally answerable for offenses that indicate lack of characteristics relevant to the practice of law which involve violence, dishonesty, breach of trust, or serious interference with the administration of justice. A felony conviction for driving under the influence does not facially demonstrate unfitness to practice law.

The respondent self-suspended herself from the practice of law from February of 2016 to July of 2016, she accepted full responsibility of her alcoholism, and she has taken steps to ensure such behavior will not be repeated. She continues counseling and the attendance of AA. Persuaded by our decision in Shahan, we lift the interim suspension, and publicly censure the respondent.

(Mike Frisch)

April 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, April 2, 2017

3,000,000 Page Views

Over the weekend this blog registered Three Million hits! That is some milestone, especially as blogs come and go -- or, more often, become a post-every-once-in-a-while thing. This one is decidedly not that, thanks to Michael Frisch, whose research ability and prolificality are astonishing to me. He is the Stephen King of blawging. Mike is obviously responsible for the lion's share, by far, of the 3,000,000. I know I speak for founding editor Jeff Lipshaw and contributing editor Nancy Rapoport when I say: Congrats, Mike! (Alan Childress)

April 2, 2017 in Blogging, Frisch, Web/Tech, Weblogs | Permalink | Comments (1)

Friday, March 31, 2017

First Time A Disbarment

An Illinois Hearing Board proposes the disbarment of an attorney who had defaulted on serious charges

According to the admitted allegations, Respondent prepared a testamentary instrument for an elderly client, Elizabeth S. Hewitt, which gave Respondent a prohibited substantial gift. Specifically, Respondent amended Hewitt's revocable trust to make herself the beneficiary of two-thirds of the approximately $1,000,000 residuary of the trust's assets. Respondent did not advise Hewitt that the Rules of Professional Conduct prohibited Respondent from doing so.

In aggravation, this Panel considered the testimony of the Administrator's witnesses, John W. Quinn and Cheryl Bauer, as well as the Administrator's Exhibits 1 through 18. We also considered Respondent's failure to participate in this disciplinary matter, which demonstrated a lack of regard for the legal profession and the disciplinary process. Respondent has no prior discipline, but we gave this factor little weight in mitigation in light of the serious misconduct.

(Mike Frisch)

March 31, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Conviction For "Horrendous" Beating Draws Public Censure Four Years Later In New Jersey

The New Jersey Supreme Court has censured an attorney convicted of assault arising from an act of domestic violence.

The Disciplinary Review Board report summarized the crime

On November 17, 2011, respondent entered a guilty plea to a downgraded offense of simple assault, a disorderly persons offense. Specifically, respondent admitted assaulting his former girlfriend, B.W., who, at respondent’s sentencing, stated that respondent had bitten her and hit her with a piece of metal, resulting in bruises all over her back and chin.

Respondent, who was represented by counsel, admitted that, by virtue of the guilty plea, he waived his right to trial and understood that the penalties were at the discretion of the court...

Counsel characterized the incident as a "boyfriend/girlfriend situation that got a little bit out of hand." Respondent "lost his cool" when B.W. told him that she wanted to see other people. He was "truly sorry that it happened."

The Honorable Thomas F. X. Foley, J.M.C., requested any photographs that had been taken of the victim, which he believed were necessary for sentencing. Respondent’s attorney was given the opportunity to object to the submission of the photographs, but specifically declined to do so.

Color photocopies of the pictures of the bruises of various angles of B.W.’s back, wrist, arm, and legs were a part of the record before us. Although not of the best quality, the pictures show red marks on B.W.’s upper back on both shoulders, scrapes on the front of each ankle and on the left foot, red marks on both calves and what appears to be the lower left arm, red marks near both knees, a significant bruise on the right shin, and distinct teeth marks on B.W.’s wrist.

In imposing sentence, the judge remarked that he had "looked at the obviously horrendous situation as it relates to the beating, essentially, that . . . the victim took."

The board's view on sanction

approximately four years passed between the time of respondent’s guilty plea and the filing of the motion. Given that respondent has no additional acts of domestic violence incidents on his record and that he has engaged in, and, apparently, successfully completed anger management treatment we determine that a departure from the presumptive three-month suspension is warranted here. Thus, we determine to impose a censure.

Three board members would have imposed a three-month suspension. (Mike Frisch)

March 31, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, March 30, 2017

Hagar Slacks

The North Dakota Supreme Court suspended a judge for lack of diligence in a domestic case

Richard L. Hagar, judge of the district court for the North Central Judicial District, filed exceptions to the Judicial Conduct Commission's recommended findings that he violated provisions of the Code of Judicial Conduct by failing to diligently and promptly decide judicial matters assigned to him and by failing to work with the presiding judge. He also objects to the Commission's recommended sanction. We conclude there is clear and convincing evidence Judge Hagar violated N.D. Code Jud. Conduct Rules 2.5 and 2.7. We order that Judge Hagar be suspended from his position as district court judge for three months without pay and that he be assessed $10,118.67 for the costs and expenses of the disciplinary proceedings.

He had previously been suspended for one month without pay for similar lapses.

On January 26, 2012, eight days after our issuance of the Hagar decision, Judge Hagar began presiding over a two-day divorce trial in the case of Block v. Block, Civil Case No. 51-10-C-02045. Because the parties had agreed to the divorce and to the division of marital property, the central remaining disputed issue in the case was the primary residential responsibility for the parties' two children. During the ensuing months, the plaintiff's attorney contacted district court personnel on several occasions to check the status of the decision. After three months had passed, the attorney sent correspondence to the court again asking about the status of the decision. Judge Hagar's court reporter responded that the judge anticipated the decision would be completed by May 23, 2012. After another four months passed without receiving a decision, the attorney on September 22, 2012, sent a letter to Judge Hagar inquiring about the status of the case and the need for a determination of the primary residential responsibility for the children and the necessity of placing the property settlement on the record. After receiving no response from Judge Hagar, the attorney on November 8, 2012, sent a letter to the presiding judge of the district informing him about the problems obtaining a decision in the Block case. Judge Hagar thereafter issued a decision, and a divorce judgment was entered on November 16, 2012, almost ten months after the trial.

Sanction

Judge Hagar has been a district court judge for seven years and has been censured for similar conduct in the past. Although this proceeding involves an unreasonable delay in only one case as compared to the 12 delays involved in the prior disciplinary proceeding, it occurred in close proximity to Judge Hagar's censure. The record supports the Commission's finding that "there was detriment to the plaintiff [in Block] from the delay with regard to housing of the children and receipt of property." Judge Hagar's conduct has tarnished the integrity of and respect for the judiciary as evidenced by the refusal of the plaintiff in Block to consider appealing the decision because, according to her attorney, "by that point she was so absolutely, totally disgusted with the system." Judge Hagar offered no excuse for his failure to act diligently on the Block case.

Judge Hagar has shown remorse and a willingness to modify his conduct. However, contrary to Judge Hagar's written plan for meeting docket currency standards adopted in the prior disciplinary proceeding, the record indicates he did not adequately use Odyssey reports or his court staff to remedy the situation. Judge Hagar objects to imposition of a suspension as a sanction because of the "burden" it would impose on his colleagues and the citizens of the state. He offers no alternative recommendation. Judge Hagar cannot escape discipline merely because of its effect on the judicial system and his fellow judges.

This Court's disciplinary orders are not intended to be "'empty noise.'" Disciplinary Board v. Lucas, 2010 ND 187, ¶ 18, 789 N.W.2d 73 (quoting Disciplinary Board v. Larson, 512 N.W.2d 454, 455 (N.D. 1994)). The censure issued in the previous disciplinary proceeding did not deter Judge Hagar from repeating his improper conduct.

(Mike Frisch)

March 30, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Profane And The Suspended

An attorney has been suspended for three years and until further court order by the New York Appellate Division for the Fourth Judicial Department

Respondent admits that, from November 2015 through June 2016, he sent to an adversary in litigation certain emails containing vulgar and profane insults directed to the adversary. In addition, he failed to register as an attorney for the 2015- 2016 biennial registration period. Finally, respondent admits that, from February through June 2016, he failed to respond to inquiries from the Grievance Committee regarding the aforementioned matters and, in July 2016, he failed to comply with a subpoena issued by this Court...

We have considered, in determining an appropriate sanction, the nature of the misconduct and that respondent has failed to participate in the instant proceeding, thereby evidencing a disregard for his fate as an attorney (see Matter of Tate, 147 AD3d 35, 37). Accordingly, we conclude that respondent should be suspended from the practice of law for a period of three years and until further order of this Court. In addition, in the event that respondent applies to this Court for reinstatement to the practice of law, he must in the application sufficiently explain the circumstances of his default herein.

(Mike Frisch)

March 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Records Of Officer In Eric Garner Case Shielded From Disclosure

The New York Appellate Division for the First Judicial Department reversed  an order giving access to records of the officer who caused the death of Eric Garner.

The issues before us stem from the extensively publicized arrest and death of Eric Garner on July 17, 2014. Intervenor Police Officer Daniel Pantaleo was depicted in a bystander video applying a choke hold to Mr. Garner during the incident. An investigation followed, and on December 2, 2014, a grand jury declined to indict Officer Pantaleo in connection with Mr. Garner's death.

Petitioner submitted a Freedom of Information Law (FOIL) letter request to respondent Records Access Officer, Civilian Complaint Review Board (CCRB), dated December 18, 2014, seeking eight categories of records concerning Officer Pantaleo, dating from 2004 to the date of Mr. Garner's death. Petitioner sought: (1) the number of complaints filed against Officer Pantaleo; (2) the number of allegations contained within each complaint; (3) the outcome of CCRB's investigation of each allegation; (4) any prosecution by CCRB in response to such finding; (5) the outcome of any prosecution by CCRB; (6) any charges and specifications filed by the New York City Police Department's (NYPD) Department Advocate Office; (7) the outcome of any Department Advocate Office proceedings; and (8) any other agency actions in response to the above requests.

On December 24, 2014, CCRB denied the request, citing the statutory exemption from disclosure provided for police personnel records contained in Public Officers Law § 87(2)(a) and Civil Rights Law § 50-a. In addition to the statutory exemptions, CCRB noted that the request for records relating to unsubstantiated matters would constitute "an unreasonable invasion of privacy." Finally, CCRB noted that it was not possible to redact any responsive records "in a way that will disassociate allegations against [Officer Pantaleo] given the nature of" petitioner's request. Petitioner appealed to the CCRB on December 29, 2014, but received no response.

This article 78 proceeding was commenced on February 17, 2015, and sought an order directing the CCRB to produce "a summary of the number of allegations, complaints and outcomes brought against" Officer Pantaleo. Much of petitioner's broader initial request was thus abandoned. During the proceedings, petitioner further narrowed its FOIL request, seeking only information as to "whether the CCRB substantiated complaints against Officer Pantaleo and, if so, whether there were any related administrative proceedings, and those outcomes, if any." Officer Pantaleo applied for and was granted intervenor status as a party respondent. His opposition papers alleged, among other things, that even the requested summary of the CCRB records was exempt from disclosure because it would endanger his life and the lives of his family members. In support, he referenced online, unsubstantiated reports of alleged misconduct on his part that resulted in the arrest of a Michigan man in February 2015 for posting Facebook death threats against him. Officer Pantaleo also stated that the NYPD's Threat Assessment Unit had assigned police officers to watch over him and his family 24 hours a day, 7 days a week, and implemented other security measures as well. He also agreed with the CCRB that the requested documents constituted "personnel records" within the meaning of Civil Rights Law § 50-a(1) and were therefore exempt from disclosure.

Disposition

Here, in light of the widespread notoriety of Mr. Garner's death and Officer Pantaleo's role therein, and the fact that hostility and threats against Officer Pantaleo have been significant enough to cause NYPD's Threat Assessment Unit to order around-the-clock police protection for him and his family, and notwithstanding the uncertainty of further harassment, we find that the gravity of the threats to Officer Pantaleo's safety nonetheless demonstrate that disclosure carries a "substantial and realistic potential" for harm, particularly in the form of "harassment and reprisals," and that nondisclosure of the requested records under Civil Rights Law § 50-a is warranted (see Daily Gazette, 93 NY2d at 157, 159).

The points raised in the various amici briefs can be summarized, in the main, as raising various public policy concerns. However, with all due respect to the seriousness of those concerns, we take no position on whether the statute should be amended to address those concerns. We are bound to apply the law as it exists, and as interpreted by controlling Court of Appeals precedents (Matter of New York Civil Liberties Union v New York City Police Dept., __ AD3d __ [1st Dept 2017]). Such policy and public interest arguments have been found to be inconsistent with the legislative history of Civil Rights Law § 50-a (see Daily Gazette, 93 NY2d at 154-155). Petitioner's remedies, under our tripartite system of government, rest with the Legislature as the policy making branch of government, not the courts, which are tasked with interpretation of the laws.

 ...the order and judgment (one paper), of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 27, 2015, directing respondent to produce to petitioner, pursuant to the Freedom of Information Law (FOIL), a summary of CCRB's records indicating (a) the number of substantiated complaints brought against intervenor before the July 17, 2014 death of Eric Garner and (b) any CCRB recommendations made to the Police Department based on such complaints, should be reversed, on the law, without costs, the judgment vacated, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

(Mike Frisch)

March 30, 2017 in Current Affairs | Permalink | Comments (0)

Judge May Judge Miss America Prelims

Did not see this one coming from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2017-08
 Date of Issue: March 15, 2017

ISSUES

1. May a judge serve as a “judge” for preliminary Miss America pageant competitions?

ANSWER: Yes.

2. As a corollary inquiry, the inquiring judge seeks a determination whether the Canons prohibit participation at a pageant competition by showcasing a talent, such as singing.

ANSWER: The Canons do not prohibit the inquiring judge from participation at a pageant competition by showcasing a talent, such as singing, subject to the Code’s requirement that the judge act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

FACTS

 

The inquiring judge seeks guidance as to whether the Code of Judicial Conduct would permit the inquiring judge to serve as a “judge” at preliminary Miss America pageant competitions. Miss America pageant competitions provide opportunities for young women to promote their voices in culture, politics, and the community. Miss America contestants working towards college or postgraduate degrees can earn scholarship awards to help further their education.

Miss America pageant competitions are sponsored by the Miss America Organization. According to its website, the Miss America Organization is the nation’s leading provider of scholarships for young women, awarding millions annually in cash awards and in-kind tuition waivers. The Miss America Organization is an IRC 501(c)4 non-profit organization. The Miss America Organization is comprised of fifty-two licensed organizations, including all fifty states, Washington, D.C., and Puerto Rico. The inquiring judge would potentially serve as a “judge” in connection with state and local preliminary competitions by one or more of these licensed organizations. The adjudged winner of a pageant competition is awarded a scholarship and moves on to other pageant competitions.

The Miss America Foundation, Inc. is a registered IRC 501(c)(3) organization, which is a separate stand-alone foundation that supports the educational mission of the Miss America Organization of providing scholarship assistance to women, regardless of their background circumstances.

The participation of the inquiring as a “judge” in the pageant competition will not be advertised in advance of the competition, although a biography of the inquiring judge will be included in the competition program. The biography will note that the inquiring judge is a member of the judiciary. It is anticipated the program would include photograph of the judge appearing in a family photograph.

The activities of the inquiring judge would be limited to being an actual judge at the pageant, and no fundraising activities or membership solicitation would be involved in connection with service as a “judge” of pageant competitions. An admission fee will be charged to those who attend the pageant competition, which is used to offset the costs of the venue where the pageant competition is held.

Note

 A member of the Committee dissents from the advice provided herein.

(Mike Frisch)

March 30, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 29, 2017

The Burdens Of Law Firm Leadership

The Louisiana Attorney Disciplinary Board recommends a one-year suspension of an attorney who engaged in billing falsehoods over a three-year period.

As a member of a law firm, the Respondent generally billed on an hourly basis but on rare occasions had the opportunity to work on some cases on a contingency basis. The firm policy was to set hourly billing targets for attorneys with the firm at 1800 billable hours annually. Meeting or exceeding the annual billing targets established by the firm were factors taken into consideration for annual salary increases, bonuses, and/or promotion within the firm. 

From in or around 2012 through November 7, 2015, the Respondent internally recorded time entries and created receivables that were in part false and/or inflated. The Respondent self-reported his misconduct to the Office of Disciplinary Counsel by correspondence dated November 25, 2015. The Respondent’s law firm also reported Respondent’s conduct to ODC pursuant to the provisions of Rule 8.3(a).

The law firm reported to the Office of Disciplinary Counsel that its internal investigation was able to conclusively demonstrate that the Respondent submitted 428 entries which were classified as “certainly false” and an additional 220 entries that were “ reasonably certain to be false or inflated”. The Respondent’s conduct reflects violations of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit and misrepresentation), and Rule 8.4(a) (violating or attempting to violate the Rules of Professional Conduct).

The attorney joined his firm in 1998 and rose to a leadership position.

The hearing committee was somewhat sympathetic

Finding Respondent’s testimony to be credible, it determined that Respondent engaged in misconduct due to his concerns that his accurate billable hour numbers were not commensurate with his leadership position within the firm, rather than any desire for direct financial gain. He submitted false and inflated billing for the purpose of making himself look good to enhance his opportunities for leadership positions and to ultimately become managing partner of the firm. As a member of the Board of Directors, the Respondent saw first-hand and on a monthly basis the extraordinary billable time and business dollars generated by key leaders of the firm. When his practice began to decline, Respondent gave in to his own internal pressures. He began to submit time on a dismissed contingency fee matter, and eventually on six other matters, in an effort to make himself look better “on paper” each month.

The Respondent received a discretionary bonus from the firm’s compensation committee for 2012, 2013, and 2014. While the testimony established that the legitimate hours billed by Respondent met and exceeded his billing targets in each of these years, he nonetheless fabricated billing entries.  The parties stipulated that due to his many contributions at the firm during that time period, the firm hypothesized that it was highly likely that Respondent would have received all or some of those merit bonuses even without the false inflation of his billable hours.  Still, the Committee recognized that testimony from firm members also supported the conclusion that the full amounts of the merit bonuses may not have been paid to the Respondent had his hours been accurately recorded.

He receives credit for time served on an interim suspension.

Pamela Carter concurred with reservations

One year suspension is inadequate in this matter where lawyer dishonesty is clear and unequivocal. There was continual intent on the part of Mr. Wallace for a period of three years. The firm’s investigation and conclusions that Mr. Wallace’s false entries were “reasonably certain” to be of a false nature is very telling. It is my opinion that the Board’s recommendation should also require that Mr. Wallace apply for reinstatement. There is no question that Mr. Wallace’s dishonesty was purposeful, calculated, done knowingly and intentional. Mr. Wallace deliberately inflated the amount of time recorded for the purpose of presenting to clients bills which reflected undisclosed premiums. Not discussed is the information in the record regarding Mr. Wallace’s violation of his supervisory duties, as a member of the firm (partner), and as a billing partner, even though the factual record is replete with evidence that he violated these rules. Mr. Wallace served as the firm's hiring partner, and was the head of recruiting.

Linda Bizzarro dissented

I don't believe a suspension of one year is sufficient to address the admitted, multiple instances of misconduct in this matter. Considering the number of false or inflated billing entries (428 confirmed, 200 "reasonably certain" to be false), the length of time Respondent repeated the intentional misconduct (3 years), and the amount of money involved in the scheme ($91,544 in false billing, $85,000 of bonus money voluntarily renounced), a one year suspension is inadequate. In my opinion the Board should adopt the Hearing Committee's sanction recommendation of one year and one day, which would require the Respondent to apply for reinstatement.

(Mike Frisch)

March 29, 2017 in Bar Discipline & Process, Billable Hours, Law Firms | Permalink | Comments (0)

Faster Not Better When Illegal

A public reprimand has been imposed by the Indiana Supreme Court of an attorney who counseled and assisted his client's immigration fraud.

In 2012, Respondent was hired by a United States citizen living in New Jersey to assist his wife, a citizen and resident of South Korea, in immigrating to the United States to live here permanently. Respondent advised his client that the lawful method to gain permanent residency involved a process known as consular processing to obtain an immigrant visa, but that this process could take upward of ten months. Respondent alternatively proposed a quicker process – for the client’s wife to enter the United States on a non-immigrant visa or visa waiver and then seek a permanent residency status once she was physically present in the country. Respondent’s client chose this method over consular processing.

Federal regulations create a presumption that spouses of United States citizens enter the country with the intent to remain permanently. Respondent knew that to obtain the nonimmigrant visa or visa waiver, his client’s wife would have to state falsely on her application that she intended to leave at the expiration of her non-immigrant visa period, fail to reveal her marital status to a United States citizen, or make other false or misleading statements. Making such a false statement of intent is a federal criminal offense. Respondent also knew his client’s wife likely would need to buy a round-trip ticket as evidence of her intent to return to South Korea.

When the client’s wife arrived in the United States, she was denied entry based on false statements to customs officials and forced to take the next return flight to South Korea. Because of these false statements, it will be significantly more difficult in the future for the client’s wife to enter or become a permanent resident of the United States.

Sanction

The harm caused by Respondent’s misconduct was significant, and as an experienced lawyer Respondent either knew or should have known the risks involved for his client and his wife. On the other hand, Respondent has no prior discipline, he was cooperative with the Commission, and his misconduct was not due to selfish motives but rather a desire to expedite the immigration process for his client’s wife. The balance of considerations persuades us that a public reprimand is an appropriate sanction.

(Mike Frisch)

March 29, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Driving Mr. Paralegal

A Tribunal Hearing Division of the Law Society of Upper Canada declined to suspend a paralegal charged with a Uber crime

The responding party is a Paralegal who was licensed in 2015. He was employed by his older son, a lawyer, who acted as his counsel on the motion. The Paralegal was primarily engaged in process serving, and on occasion he spoke to adjournments in traffic court. He had not provided legal services for some time prior to the events set out below.

The motion arose out of an allegation that while acting as an Uber driver on September 23, the Paralegal took the hand of his female passenger (the passenger) and initiated sexual contact with her.

The passenger made a complaint to Uber on Friday, September 23. Uber e-mailed the Paralegal the same day that “We were notified of a situation that may have occurred on a recent trip” and his Uber account was put on hold pending investigation. The following Tuesday, Uber contacted the Paralegal and interviewed him by telephone. Two days later, Uber reactivated the Paralegal’s account, but reminded him:

...Uber maintains a zero-tolerance policy regarding all forms of harassment, and under no circumstances should physical contact occur on the trip between the rider and the driver. Future feedback of this nature will force us to revoke your access to the application.

On October 9, the Paralegal was charged with one count of sexual assault. The only evidence before our panel of the specific allegation against him appears in the transcript of the bail hearing on October 11, which we reviewed. As of the release of these reasons, that transcript remains subject to a publication ban ordered by the Ontario Court of Justice pursuant to s. 517(1) of the Criminal Code. The order expires when the Paralegal is discharged or his trial is completed.

I trust that this will serve as a learning experience and won’t be an issue in the future…

Mr. Siziba responded [reproduced in unedited form]:

“Thank you for your investigations into reported incident. I wish to reassert that I take this issue very seriously as a learning point and means to strengthen my future engagements with customers. As I mentioned that, it has always been my motto to adhere to strong code of moral conduct and professionalism in all my business within and outside Uber, I shall endeavor to keep up with the highest service I have maintained throughout my career.

Thank you,for your letter and the strong words therein expressed.

We were informed that the Paralegal resumed driving for Uber, but resolved not to pick up intoxicated passengers. His Uber driving ended a week later. The passenger made a complaint to the police and, upon being notified, the Paralegal surrendered on October 8.

Disposition

In the present case, the conduct has not been proven at this point. While the alleged conduct is undoubtedly serious, it is not of the same magnitude as the proven conduct in Schulz. Moreover, the Paralegal is bound by undertakings and bail conditions that significantly reduce risk to the public or to the administration of justice. Together, these restrictions led us to conclude that the suspension sought by the Law Society would not further reduce the risks, even if we had believed those risks were significant.  

(Mike Frisch)

March 29, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, March 28, 2017

The English Teacher

The Oklahoma Supreme Court has  disbarred an attorney

Caroline Drummond was employed as counsel for Michael Ross Kettles in connection with Tulsa County District Court Case No. CF-2013-4788. Kettles was incarcerated in the David L. Moss Criminal Justice Center. The pair had an existing relationship, which originated in 1997, when Drummond was Kettles' English teacher at Skiatook High School. In early 2015, the two reconnected on social media and their relationship became more personal.

According to Drummond, Kettles began requesting access to a cell phone. After multiple requests from Kettles, Drummond finally relented. After obtaining a phone from her carrier, Drummond scheduled a meeting with Kettles at the Tulsa County jail facility. As an attorney, she was permitted to have direct contact visits with clients. During their conference Drummond, covertly supplied Kettles with the cell phone and charger. The phone was placed in Drummond's legal file and transferred to Kettles by handing him the folder. Drummond also provided Kettles with cigarettes. The illicit items were subsequently discovered by detention officer Jessica Harris on May 15, 2015. During her confiscation of the contraband, Kettles assaulted Officer Harris to prevent her from confiscating the items.

Tulsa County Sheriff employee Corporal Bradley Philpott initiated an investigation to determine the source of the smuggled objects located in Kettles' cell. Corporal Philpott subpoenaed records from AT&T and had a forensic expert examine the contents of the phone. He also requested an interview with Drummond. After delaying for several weeks, Drummond finally met with Corporal Philpott on June 8, 2015. She confessed to providing Kettles with all of the contraband.

On July 30, 2015, a criminal matter was filed against Drummond in State of Oklahoma v. L. Caroline Drummond, Tulsa County District Court Case No. CF-2015-3921. The district attorney charged her with one felony count of bringing contraband into a penal institution in violation of 57 O.S.Supp. 2012 § 21. On February 23, 2016, Drummond pled guilty to the felony. An order deferring sentencing for two years was filed the following day. Review of the matter is scheduled for February 12, 2018.

The attorney continued to practice law in violation of the interim suspension imposed as a result of the conviction and

while the Rule 7 case was pending in this Court, the OBA filed a second proceeding against Drummond. The new case was brought pursuant to Rule 6 and asserted multiple violations of the Oklahoma Rules of Professional Conduct, including, but not limited to: failing to act with reasonable diligence and promptness; failing to properly communicate with her client; commingling client funds with her operating account; misappropriating client funds for her own personal use; failing to maintain a client trust account; acting with dishonesty, deceit and misrepresentation; failing to sufficiently cooperate and respond to the OBA grievances; and engaging in the unauthorized practice of law. The allegations of misconduct in the Rule 6 Complaint occurred prior to Drummond's guilty plea and deferred sentence.

The court

Drummond's handling of client funds in this case was deplorable...

We also conclude the record contains clear and convincing evidence Drummond engaged in the unauthorized practice of law following her March 2016 interim suspension. Testimony from TPD Officer Brad Blackwell established that on May 5, 2016, Drummond appeared at the scene of a drug arrest. She presented an OBA card to Officer Blackwell and his partner and informed the pair that she represented one of the detained suspects. She also inquired about the officers' probable cause for an arrest. When cross examined about the incident, Drummond's answers were evasive and unbelievable.  We find the testimony of Officer Blackwell more trustworthy than Drummond's self-serving denial. Although she admitted displaying her OBA card, she testified that it was not her intent to hold herself out as an attorney. This explanation is entirely implausible. The evidence was clear and convincing that Drummond's actions violated ORPC Rule 5.5(b)...

The record before this Court is more than sufficient to establish violations of Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. We conclude the appropriate discipline for Respondent Drummond is disbarment.

(Mike Frisch)

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Undergraduate

The Oklahoma Supreme Court reversed the decision of its Board of Bar Examiners and allowed a California attorney who does not have an undergraduate degree to sit for the Oklahoma bar exam

The story

Mr. Harlin graduated from homeschool high school in Muskogee in July of 2003. After working for approximately a year, he applied for admission to the Juris Doctor program at Oak Brook College of Law and Public Policy in California. Oak Brook is a four-year program recognized by the State Bar of California, but is not accredited by the American Bar Association. In California, students who attend non-accredited ABA institutions are required, after their first year of study, to sit for and pass a bar exam called the First Year Law Students' Exam. The exam is a seven-hour test that consists of four essay questions and 100 multiple choice questions styled after the Multi-State Bar Examination. Mr. Harlin took California's First Year Law Students' Exam in October of 2006 and passed on his first attempt.

In December of 2009, he graduated cum laude from Oak Brook with a Juris Doctor degree. In February of 2010, Mr. Harlin sat for the California bar exam and passed on his first attempt. In June of 2010, he was sworn into the State Bar of California where he remains in good standing. Upon admission to the State Bar of California, Mr. Harlin began doing contract work with two different firms in the San Francisco area while living in Muskogee. His practice included assisting with several jury trials, arbitrations, mediations, appeals, and depositions primarily in the areas of personal injury and employment law. Mr. Harlin is also admitted to practice before the Ninth Circuit Court of Appeals, the U.S. District Courts for the Northern and Central Districts of California, and the U.S. District Courts for the Western and Eastern Districts of Oklahoma.

After practicing for a year in California, Mr. Harlin contacted the Oklahoma Board of Bar Examiners (Board) and inquired about admission to practice law in Oklahoma. Mr. Harlin spoke with the Administrative Director of the Board, who informed him that under the RGAP he could not be admitted to practice in Oklahoma unless he obtained a law degree from an ABA accredited law school.  During this conversation, there was no discussion regarding Mr. Harlin's lack of an undergraduate degree and whether such would be an impediment to seeking admission to the practice of law in Oklahoma. Pursuant to his discussion with the Administrative Director, and his understanding of the RGAP, Mr. Harlin applied to and was accepted to Oklahoma City University School of Law and began attending classes in the fall of 2012.

Oklahoma City University School of Law was aware that Mr. Harlin did not have an undergraduate degree. However, Oklahoma City University School of Law admitted Mr. Harlin pursuant to Standard 502(b) of the ABA Standards for Approval of Law Schools, which allows a law school to admit an applicant who does not have a "bachelor's degree, or successful completion of three-fourths of the work acceptable for a bachelor's degree" in "an extraordinary case."

During his time at Oklahoma City University School of Law, Mr. Harlin sought to perform licensed legal intern work under the supervision of an Oklahoma attorney. Thus, on October 15, 2013, he registered with the Board as a law student to become a Licensed Legal Intern.  On November 19, 2013, the Administrative Director contacted Mr. Harlin by e-mail and advised him that "[o]ne of the requirements to register as a law student and for taking a bar exam is that an applicant has a certificate of graduation with a Bachelor's degree from a college whose credit hours are transferable to an Oklahoma law school." On November 20, 2013, Mr. Harlin replied to the Administrative Director and confirmed he did not have an undergraduate degree and that his degree was from the Oak Brook College of Law and Public Policy. The Administrative Director replied to Mr. Harlin that same day and notified him that she had not yet processed his application but that he could submit a statement to the Board explaining how he met the admission requirements of Rule 4.

 On March 5, 2014, Mr. Harlin submitted a statement to the Administrative Director via e-mail wherein he set forth why he believed he satisfied the requirements of Rule 4 of the RGAP. On April 9, 2014, Mr. Harlin received a letter from the Board, notifying him that the "Board has determined that you do not meet the necessary filing requirements for a Law Student Registration application." The letter also advised Mr. Harlin that if he wished to apply and take the bar exam, he could "submit an Exam Application by Attorney prior to February 1, 2015."

On December 2, 2014, Mr. Harlin submitted an Exam Application by Attorney along with the $1,000.00 application fee. Unlike Mr. Harlin's law student registration application, the Board processed the Exam Application by Attorney and accepted the fee. On March 31, 2015, Mr. Harlin received a letter from Patrick Kernan, general counsel for the Board, notifying him of the Board's denial of his Exam Application by Attorney and his right to appeal such decision under Rule 11 of the RGAP. On April 15, 2015, Mr. Harlin timely requested a hearing under Rule 11 of the RGAP.

The Rule 11 hearing was held before the Board on November 4, 2015. At the hearing, Mr. Harlin argued that the Board had erred in denying his Exam Application by Attorney because under Rule 4, § 1 he was not required to satisfy the law student registration requirements of Rule 4, § 2, specifically the requirement that he obtain an undergraduate degree. On November 19, 2015, Mr. Harlin received a letter from the Board notifying him that the Board had again denied his application. The letter advised him that the Board had found that even as an attorney applying under § 1 of Rule 4, Mr. Harlin had to comply with all of the requirements of law student registration found in § 2, including obtaining an undergraduate degree.

Mr. Harlin timely appealed the decision of the Board to this Court on December 18, 2015. Briefing was completed on April 25, 2016, and the cause was assigned to this office on April 26, 2016. We note that during the pendency of the proceedings before the Board, Mr. Harlin graduated summa cum laude from Oklahoma City University School of Law in May of 2015 where he served on the Oklahoma City University Law Review and was voted by the faculty as the Most Outstanding Graduate of the Class of 2015.

The court

We conclude that Mr. Harlin, as an attorney licensed to practice law in a non-reciprocal jurisdiction, has met the requirements of Rule 4 for admission to the practice of law in Oklahoma by examination and no outstanding requirements remain. The decision of the Board is reversed, and Mr. Harlin shall be allowed to take the Oklahoma bar exam.

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)