Monday, July 13, 2015
An Illinois Hearing Board has recommended disbarment of an attorney who had defaulted on allegations of misconduct
We have considered the Administrator's two-count Complaint, a copy of which is attached as Exhibit 1. We have also considered the Order entered on April 29, 2015 deeming the allegations of the Complaint admitted, a copy of which is attached as Exhibit 2.
We also considered the evidence the Administrator presented in aggravation, specifically the testimony of Schuyler Geller, Jack Kelly and James Burton and Administrator's Exhibits 1 - 3. In particular, Geller described behavior by Respondent, including making baseless claims against opposing counsel and filing baseless criminal charges against opposing counsel and police officers, which clearly exceeded any reasonable boundaries. In addition, in registering with the ARDC for 2015, Respondent provided address information which was false, as evident from the testimony of the Administrator's investigators. This shows a level of intent which provides further support for the sanction requested by the Administrator.
The Panel also considered in aggravation Respondent's lack of cooperation and failure to participate in the disciplinary proceedings. In mitigation, counsel for the Administrator stated on the record Respondent has not been previously disciplined. We did not afford this factor significant weight, given Respondent's serious misconduct and the significant aggravation.
The ABA Journal had reported on criminal charges relating to his creating a disturbance in a courthouse.
The charges were later dropped.
The Chicago Tribune had this story about the arrest and noted
According to his online biography, Fainman attended the University of Wisconsin and John Marshall Law School in Chicago. He cites experience as a pharmaceutical representative, a television producer and jazz drummer.
He apparently has a "jazz, funk and acid jazz" quartet. (Mike Frisch)
An attorney disbarred and reinstated has been recommended for a second disbarment by the California State Bar Court Review Department.
The offense was practicing after the first disbarment
Joseph Giovanazzi was admitted to practice in 1969, disbarred in 1990 after two prior disciplines, reinstated in 2003, and charged in 2012 with the unauthorized practice of law (UPL) and intentional deceit to a superior court that he was entitled to practice law when he knew that he was not. A State Bar Court hearing judge found Giovanazzi culpable of the charges and recommended disbarment, concluding that his prior discipline was an extremely aggravating circumstance not overcome by the minimal weight of mitigating circumstances.
...we affirm the hearing judge’s findings and uphold his recommendation.
The misconduct tool place after a 2011 suspension for non-payment of bar dues
In 2011, Giovanazzi represented a defendant, James Deck, in a multi-count felony jury trial in Riverside County Superior Court. The most serious charge against Deck — attempted murder of a peace officer — resulted in a mistrial and was set for a new trial setting on August 5, 2011. A hearing was also set for August 5, 2011 for Deck’s sentencing on the remaining counts of which the jury had found him guilty.
Between July 1 and August 10, 2011, Giovanazzi was suspended from the practice of law in California for failing to pay his State Bar member fees.
Despite the suspension, he appeared on August 5. The trial judge knew of his suspension.
Giovanazzi testified below that he came to the August 5 hearing not to appear as Deck’s attorney of record, but to be “personally satisfied with an abundance of caution” that Deck’s rights were protected and that there would be a smooth transition to successor counsel. Giovanazzi claimed that he came to court with a motion in case the judge ordered Deck’s retrial to proceed and a continuance motion were needed, but denied that he lodged it with the Clerk or gave a copy of it to Garrett. He also denied indicating to the Court that he was entitled to practice law and he assumed from the nature of the sidebar conference that Judge Freer knew that he was suspended. Giovanazzi sought to explain to Judge Freer the circumstances of the suspension but testified that the judge cut him off.
The review department did not buy the explanation
We hold that Giovanazzi breached his duties as an attorney and committed an act of moral turpitude by engaging intentionally in the unauthorized practice of law, both by holding himself out on August 5, 2011, as entitled to practice, and appearing for his client, Deck. Giovanazzi testified below that he was a mere spectator in the courtroom, there to distantly observe the hearing. But the evidence showed that he was actively engaged first with opposing counsel Garrett and then with Garrett and Judge Freer at the sidebar conference about his status as attorney for Deck, never revealing to them that he was suspended when he knew that he was.
The review department rejected other attacks on the findings of fact below. (Mike Frisch)
A new opinion from the Legal Ethics Committee of the District of Columbia Bar
A lawyer may remit a percentage of fees earned on a matter referred to her by the inquiring "lawyer referral service" only if such fees (1) are derived from litigation matters, as set out in Rule 5.4(a)(5) of the D.C. Rules of Professional Conduct, or (2) are "usual fees" of such a service within the meaning of comment  to Rule 7.1.
The committee has been asked whether the D.C. Rules of Professional Conduct ("D.C. Rules" or "Rules") permit certain payments to a lawyer referral service ("Service"). The Service would direct prospective low-income clients to a network of lawyers willing to work for such clients at modest rates. For each client referred to a network lawyer by the Service, the lawyer would remit to the Service a flat "referral" payment ("Flat Payment") of approximately $200. Should the representation proceed beyond the initial consultation, the network lawyer would further remit to the Service fifteen percent of any fees earned through the representation ("Percentage Payment"). The arrangement would apply to all types of legal representation and would not be limited to litigation matters. The Service is or will be qualified as exempt from federal income taxation under section 501(c)(3) of the Internal Revenue Code.
The opinion noted that a number of revisions over the years impacted its analysis
The question, then, is whether the adoption of Rule 5.4(a)(5) was intended to repeal, sub silentio, the exception for the "usual fees" of a "lawyer referral service" that are recognized by comment  of Rule 7.1 and by Opinions 201, 286, and 307. We think not.
There was no provision like subparagraph (a)(5) in the D.C. Rules before 2007 and no counterpart in the D.C. Code of Professional Responsibility, which was in force prior to January 1, 1991. Importantly, the discussions in the Wortham Report of proposed subparagraph (a)(5) and of Rule 7.1 do not suggest that adoption of the former would repeal or even narrow the latter’s existing approval of the payment of "usual fees" to lawyer referral programs. See Wortham Report at 174-77, 190-95.
Although Rule 5.4(a)(5) is narrower than comment  to Rule 7.1 in the sense that it is limited to fees derived from litigation matters, it is broader in that it applies not only to lawyer referral programs but to any non-profit organization. Moreover, Rule 5.4(a)(5) covers not only payments to the referring organization from outside lawyers but also from lawyers who are employed or retained directly by the organization. By contrast, comment  to Rule 7.1 contemplates only payments by lawyers to whom matters are referred by a lawyer referral service, and then only the "usual fees" of such a service...
We conclude that the Service will constitute a "lawyer referral service" within the meaning of comment  to D.C. Rule 7.1 if the Service—
- is generally open to D.C. Bar members who agree to its reduced-fee prerequisite, see ABA Model Rule 7.2, cmt. ;
- takes reasonable steps to ensure that lawyers to whom matters are referred are competent to handle such matters, see D.C. Rule 1.1;
- does not interfere with the lawyers’ professional independence of judgment;
- requires only reasonable referral fees (a criterion that is met by its current fifteen percent requirement), see D.C. Rule 1.5(a);
- requires that all lawyers in its network have reasonably adequate malpractice insurance see ABA Model Rule 7.2, cmt. ;
- has a neutral dispute resolution mechanism, see id.; and
- does not refer matters to lawyers who own, operate, manage, or are employed by the Service, see id.
The committee finds that the charges are a "usual fee" for the service. (Mike Frisch)
Sunday, July 12, 2015
The California State Bar Court Review Department rejected mitigation found by a hearing judge and recommended disbarment of an attorney who had failed to comply with notice obligations of an earlier suspension.
This case illustrates the perils faced by an attorney who disregards the most basic of his discipline responsibilities. In this proceeding, Victor Marcel Comstock faces discipline for the third time for failing to file a compliance affidavit as required by California Rules of Court, rule 9.20(c). For this violation, the hearing judge recommended Comstock receive a two-year actual suspension, conditioned upon satisfactory proof of his rehabilitation. The Office of the Chief Trial Counsel of the State Bar (OCTC) appeals and urges that disbarment is the appropriate discipline. Comstock does not appeal. He concedes culpability and supports the hearing judge’s recommended discipline.
...we give less weight in mitigation for Comstock’s recovery from his emotional difficulties and substance abuse, which span almost 30 years and were a significant factor in his misconduct. His four months of sobriety at the time of trial is an insufficient period to show the requisite rehabilitation.
A suspended attorney must file an affidavit demonstrating compliance with the order of suspension.
Here, the attorney failed to do so in a timely manner but eventually complied.
He described how OCTC’s petition for disbarment shocked him into action; he retained counsel and he enrolled in the State Bar’s Lawyer Assistance Program (LAP), seeking treatment to assist him in recovery. On October 2, 2013, the hearing judge found “good cause” to grant Comstock’s motion, lifted the default, and ordered that his verified answer be filed.
Since then, Comstock participated fully in these proceedings and has been wholly cooperative. Weeks before trial, he entered into a Stipulation as to Facts and Admission of Documents (Stipulation). OCTC tendered the Stipulation as its only evidence at the hearing below, and the hearing judge immediately made a culpability finding. This allowed the trial to proceed directly to the discipline phase, which consisted solely of Comstock’s testimony in mitigation.
Disbarment is appropriate, according to the review department
Where professional misconduct is attributed to chemical dependency, “a heavy burden remains on [the respondent] to demonstrate the kind of totally effective rehabilitation that would justify relief from or substantial reduction of discipline.” Here, we do not have adequate assurances that Comstock’s addiction no longer poses a risk to the public, the courts, and the profession. As such, we are unable to justify a departure from disbarment as provided by standard 1.8(b). (citations omitted)
I respectfully disagree.
The hearing judge's analysis of the "wake up call" evidence gives me enough confidence to give weight to the attorney's recovery efforts.
Based on my experience, I suspect that the untimely affidavit compliance puts him in the top percentile of suspended lawyers.
Unless there is some evidence of practice in violation of the suspension order, the misconduct found here is not disbarment-worthy. (Mike Frisch)
Saturday, July 11, 2015
In a published decision, the California State Bar Court Review Department imposed a public reproval and ethics school for an attorney who made false statements in his judicial campaign against a sitting judge.
we agree with the hearing judge that Parish’s statement accusing his opponent of involvement in bribery and corporate fraud was a factual misrepresentation made with reckless disregard for the truth...
We disagree with the hearing judge, however, that this matter should be resolved with an order of admonition, which is not discipline. Instead, we find Parish’s reckless statement implicating a judge with bribery requires public discipline to maintain the integrity of the legal profession and to preserve public confidence in the impartiality of the judiciary.
As a Yolo County deputy district attorney and a political neophyte, Parish mounted a campaign to unseat Judge Daniel Maguire in Yolo County Superior Court during the June 2012 election cycle. Parish spent the majority of his campaign going door-to-door and appearing at events to meet people and ask for their votes and their money. For campaign strategy and messaging, Parish relied heavily on his trusted advisor, Kirby Wells, who had extensive campaign experience. Parish also enlisted the aid of two paid political consultants — first Frank Ford and then Aaron Park. When Ford left the campaign in March 2012, Parish began working with Park, who was highly recommended by Wells. Park and Wells agreed that Ford had not been “aggressive” enough in the campaign.
Aggressive meant a campaign to tie his opponent to Governor Schwarzenegger, who was unpopular in Yolo County. The judge was referred to in a mailer as "Arnold's bagman"
Dan Maguire was quoted defending the Protocol Foundation — used to hide $1.7 million in Arnold’s Travel Expenses.
As part of Arnold’s inner circle, Dan Maguire was part of Arnold’s legal team that made decisions including commuting the sentence of convicted murderer Esteban Nunez. Fabian Nunez (Estaban’s [sic] father) is the former Speaker of the Assembly and current business partner of Arnold.
Dan Maguire was involved in a sordid case of corporate fraud that involved payment of bribes in Russia.
Dan Maguire received a political appointment (never elected) and took the bench only three weeks before Arnold’s last-day Commutation of Esteban Nunez’ sentence!
California suffered through 7 years of Arnold — you can stop it in Yolo County!
In the bar proceeding
Parish concedes the statement implicating Judge Maguire in bribery and corporate fraud was “actually false.”
He sent out two sets of mailers - one for the Democrats; another for the Republicans.
The mailer was sent on May 15, 2012. It was controversial, and the fallout was immediate. Judge Maguire asked his colleague, another Yolo County Superior Court judge, to prepare a robocall for voters condemning the mailer, which he did. In addition, local newspapers printed several articles, portraying the mailer in a negative light. Within days of the mailer’s delivery, Parish’s key followers withdrew their support, including the Yolo County sheriff and the district attorney, the Winters Police Officers Association, and the Yolo County Republican Party. Parish quickly and formally acknowledged the inaccuracy of the statement about Judge Maguire’s involvement in bribery and corporate fraud. He said he regretted including it in the mailer. Parish fired Park and stopped actively fundraising and campaigning. The election took place on June 5; Parish was resoundingly defeated, receiving only 23% of the vote.
The court rejected procedural challenges to imposition of discipline. (Mike Frisch)
Friday, July 10, 2015
The Michigan Attorney Discipline Board affirmed the dismissal by a hearing panel of ethics charges involving allegedly false deposition testimony
Respondent was initially charged in a formal complaint with: (1) violating the criminal law, specifically, the Michigan Campaign Finance Act, MCL 169.254 (prohibiting corporate contributions to campaigns and providing that an agent's actions in violation of this provision shall constitute a felony), contrary to MCR 9.104(5) and MRPC 8.4(b); and, (2) alleging that answers given by respondent while testifying as a witness during a deposition in a civil action were "intentionally and knowingly false and misleading," contrary to MRPC 8.4(b). Respondent successfully challenged the criminal conduct charge prior to hearing...
Respondent came to be deposed in a civil action for malicious prosecution as a result of his representation of Meijer, Inc., which sought to open a store in Acme Township, Michigan. The Township Board granted a special use permit, then, after the Board's composition changed as a result of this action, it took actions to slow or halt the development of "big box" stores in the township. Citizen's groups were formed, litigation, a referendum, and a recall election ensued.
The dismissal order was not clearly erroneous
We are not persuaded that the panel's findings were clearly erroneous, for at least two reasons. First, to prove the falsity of an answer disclaiming knowledge as to "how big a role" Meijer played in an election, it would have to be established that the person answering had complete knowledge of Meijer' s activities and "the role" those activities played in the election. We agree with the hearing panel that the proofs were inadequate to the task.
Also, we agree with Mr. Stoepker that the task would be almost impossible to accomplish. The question asks for an opinion or a judgment, not really a verifiable response. The questioner asked whether Mr. Stoepker could tell the questioner "how big a role" Meijer played. The questioner did not ask "what do you know about Meijer's involvement in the referendum?" or even "what do you know about the role Meijer played?" These are not nitpicking distinctions. The question actually asked matters greatly when it is alleged that the answer is false.
An attorney's drug conviction led to a suspension of no less than three years without automatic reinstatement by the Indiana Supreme Court.
Respondent was indicted in federal court on three counts involving the manufacture of methamphetamine. On October 4, 2013, Respondent pled guilty to one count of unlawful distribution of pseudoephedrine and the other two counts were dismissed. In her factual basis, Respondent admitted purchasing pseudoephedrine four times at different drug stores and then providing the pseudoephedrine to two other individuals, allowing those individuals to evade the identification statutes governing the purchase of pseudoephedrine. Respondent was sentenced to twenty-one months of imprisonment and two years of subsequent probation.
She cooperated with disciplinary authorities and has successfully completed a rehabilitation program.
dissents, and would reject the Conditional Agreement, believing that the Respondent, by engaging in conduct resulting in her conviction of a serious felony, has demonstrated unfitness to responsibly represent, advise, and serve future clients.
The attorney has been suspended since August 2014.
Pharos-Tribune Logansport had the story of the arrest
Two Fulton County residents and a fugitive from South Bend were arrested Wednesday night on drug charges.
After a call about a domestic situation at J.J. Richard Dairy Farm in Fulton County, according to police reports, officers obtained a search warrant and found methamphetamine, marijuana and a fugitive hiding in the home. Charla Richard, 37, and John Wise, 45, of rural Rochester, were both arrested along with Tenneil Selner, 32, of South Bend.
Police were called to the dairy farm in the 2000 block of West 500 North in Fulton County after Richard’s husband reported she had cut the tires and broke the windows of a pickup truck and fired a pellet gun.
While searching the home, police said they found methamphetamine, marijuana and Selner inside the home, according to a press release.
After obtaining a second search warrant, the release also states, police found a methamphetamine lab, chemical precursors for manufacturing methamphetamine, hypodermic needles and two pellet guns. Two children were also in the residence and they were later turned over to relatives.
Richard and Wise, who also lived at the residence, were arrested on felony charges of possession of methamphetamine, maintaining a common nuisance, manufacturing methamphetamine, possession of drug precursors, and possession of a police scanner during the commission of a felony.
Selner was arrested on two federal arrest warrants and faces local felony charges for possession of methamphetamine and possession of hypodermic needles.
Thursday, July 9, 2015
The New York Appellate Division for the First Judicial Department has granted a disability suspension request of an attorney who had been disbarred for misappropriation in the United States District Court for the Southern District of New York.
The federal court disbarment was affirmed by the Second Circuit.
The background facts
In 2004, Abrahim Raphael retained respondent to represent him in connection with a federal criminal investigation and subsequent indictment concerning his role in the embezzlement of funds from his employer, International Gemological Institute (IGI). On September 13, 2005, Raphael pled guilty in the United States District Court for the Southern District of New York to conspiracy to commit money laundering and conspiracy to commit wire fraud (18 USC §§ 371, 1349, 1956[h]). His sentencing was adjourned for him to, inter alia, make restitution to IGI.
In July 2007, Raphael wired $250,000 to respondent's operating account for the payment of restitution to IGI. In September 2007, respondent advised Raphael that he was not holding the restitution funds in an escrow account and that to avoid any "tax problems" he needed Raphael to sign a letter stating that the $250,000 was a loan to respondent, which Raphael did.
In January 2008, respondent told Raphael that he had spent $50,000 of the restitution funds and requested that Raphael provide additional funds for the restitution. Raphael then borrowed an additional $50,000 which he remitted to respondent. Respondent ulitmately only paid $120,000 to IGI for restitution. From March 2008 through September 2009, respondent requested that Raphael's sentencing be adjourned approximately 15 times for various reasons which included the representation that Raphael was trying to raise the funds necessary to pay restitution as per the plea agreement.
In 2009, Raphael disclosed to James O. Druker, Esq., his counsel in a separate tax matter, that respondent had spent some of the $250,000 which was supposed to have been paid to IGI. In August 2009, Druker substituted respondent as Raphael's counsel and in September 2009, disclosed respondent's conduct to Judge Kimba Wood, who was presiding over respondent's case.
On January 21, 2010, Judge Wood sentenced Raphael to three years probation. In order to meet his restitution obligation, Raphael borrowed an additional $30,000 from his brother and assigned to IGI his claims against respondent and his right to $100,000, which Druker had requested from the Lawyers' Fund for Client Protection. That same month, after Raphael was sentenced, Judge Wood referred respondent to the Southern District's Committee on Grievances (Grievance Committee).
In September 2009, Druker also filed a complaint on Raphael's behalf with the First Department Disciplinary Committee (DDC), which initiated an investigation of respondent's conduct. During 2010, in connection with the DDC investigation, respondent answered the complaint and was deposed.
In March 2011, the Grievance Committee directed respondent to show cause why it should not impose discipline, based on a statement of six allegations charging respondent with misappropriation, conversion, commingling and improperly entering into a business transaction with a client without required disclosures.
In July 2011, respondent was again deposed by the DDC.
In December 2011, after learning that IGI intended to commence a civil action against him, respondent executed an Affidavit of Confession of Judgment in which he swore that Raphael had given him $250,000 to hold in trust for the benefit of IGI for the purpose of restitution which was to be paid over to IGI prior to Raphael's sentencing. Respondent spent approximately $180,000 of the funds he received from Raphael on personal and business expenses unrelated to Raphael's case. To date, respondent has not repaid any of these funds.
The court considered the impact of charges based on the same facts brought by Departmental Disciplinary Committee ("DDC")
...the DDC brought four charges against respondent, one of which (Charge 3) was based on Raphael's complaint, alleging that respondent violated Code of Professional Responsibility DR 5-104(a)(22 NYCRR 1200.23[a]) (improper loan transactions with a client). Significantly, the DDC did not charge respondent with misappropriation or conversion of Raphael's restitution funds. By subsequent stipulation, the DDC inter alia amended the language of Charge 3, referring to the $224,000 as "Rafael's funds" to read that "respondent had already used, at a minimum, $224,000 of the proceeds of the loan from Raphael for his own personal and/or business purposes" (emphasis added). Respondent admitted to Charge 3 as amended by the stipulation, as well as two other charges.
On March 15, 2012, a hearing on sanctions was held before a Referee. The DDC did not call any witnesses but relied solely on respondent's admissions to the charges in the pre hearing stipulation as well as other documentary evidence. Respondent testified on his own behalf in mitigation and called character witnesses. In post hearing memoranda, the DDC argued for a nine-month suspension and respondent urged a public censure.
By report dated October 25, 2012, the Referee sustained the three charges against respondent and recommended that he be suspended for six months.
The instant proceeding presents what appears to be an unprecedented situation in that the Committee seeks to disbar respondent based on a finding in a federal disciplinary proceeding that he, inter alia, intentionally converted client funds, notwithstanding that, in its own proceeding, the DDC stipulated, and a Referee concluded, that respondent had not done so. Thus, respondent may have an arguable defense under 22 NYCRR 603.3(c)(3).
Disability not disbarment
Respondent has submitted sufficient documentation from his various medical providers as to his current medical condition and how that, due to such condition, he is presently unable to adequately assist his counsel in preparing a defense.
The attorney was profiled in the New York Times.
He was admitted to practice in 1968. (Mike Frisch)
The Texas Board of Disciplinary Appeals has ordered an interlocutory suspension of a former Air Force officer convicted at a court martial 0f serious crimes.
Air Force Times had the story of the conviction
A military judge has convicted a Tyndall Air Force Base, Fla., lieutenant colonel of indecent acts with a child younger than 16, possession of child pornography and violating no-contact orders.
James W. Richards, who chose to be tried by a judge rather than a jury during a three-day court-martial that ended Feb. 21, was sentenced to 17 years in a military prison, forfeiture of all pay and allowances and dismissal from the Air Force, a base news release said. Dismissal is the officer equivalent of a dishonorable discharge.
The Bay County, Fla., sheriff's office arrested Richards, 40, in November 2011 for traveling to meet a minor for sex. The Air Force Office of Special Investigations had contacted the sheriff's office after receiving a complaint that Richards had molested a 10-year-old boy about a decade earlier in Texas, according to the sheriff's news release. OSI began surveillance of Richards and found he was picking up a 17-year-old boy in Bay County and taking him to his home for several hours at a time, it said.
OSI contacted the sheriff's office for help with the case. The boy told authorities he met Richards in an online gaming chat room and that they had begun a sexual relationship nine months earlier, when he was 16.
Richards was found guilty on all the charges he faced, which included five specifications of an indecent act with a child and four specifications of violating a no-contact order.
Richards was a judge advocate general assigned to the Air Force Legal Operations Agency in the utilities litigation team stationed at Tyndall, 2nd Lt. Andrea Valencia said in an email.
The Legal Intelligencer had noted a civil suit filed against the attorney and the Big Brothers organization in a separate matter.
The national Big Brothers Big Sisters organization could not escape a Pennsylvania lawsuit from an alleged victim who claimed one of its affiliate's mentors molested him.
The plaintiff, listed as J.P., claimed he was sexually assaulted by former Big Brother James W. Richards. In addition to Richards and Big Brothers' national body, J.P. sued the Big Brothers Big Sisters of Burlington, Camden and Gloucester Counties in New Jersey. The Legal does not name alleged or confirmed victims of sexual abuse...
[Judge] Massiah-Jackson wrote in her opinion that Richards claimed the Philadelphia court system had no jurisdiction in the case because the sex acts did not occur in Pennsylvania.
However, Massiah-Jackson said the process of what a plaintiffs expert called "seducing the child" occurred during activities such as taking J.P. to Phillies games, the Philadelphia Auto Show, and trips to the city's Chinatown.
"In this instance, the series of visits to Pennsylvania were undertaken to bring about the physical sexual acts," Massiah-Jackson said. "The harm, the tortious injury, and the cause of action of battery, did take place in Pennsylvania because all of the activities were part of the defendant Richards' tortious behavior," Massiah-Jackson said.
Massiah-Jackson also said the national Big Brothers organization was responsible for its affiliates and has demonstrated it through its mechanisms to screen potential abusers and a previous acknowledgement that the organization attracts child predators.
The Florida Supreme Court has declined to adopt a proposed dues increase designed to fund access to justice
Pursuant to Rule 1-12.1 of the Rules Regulating the Florida Bar (Bar Rules),1 522 members in good standing with The Florida Bar (Petitioners) have filed a petition asking the Court to amend Bar Rule 1-7.3(a) (Membership Fees; Membership Fees Requirement) to authorize the Florida Bar Board of Governors to increase annual Bar membership dues in order to provide additional funding to The Legal Aid to the Poor Program of The Florida Bar Foundation for consideration—as Petitioners point out, the State of Florida is facing a significant decrease in funding for legal aid and there is an urgent need for new solutions to ensure that every person has equal access to our judicial system. However, because we believe this issue requires further study and a more comprehensive approach, we decline to adopt Petitioners’ proposed amendment at this time. We wish to commend Petitioners for bringing this important issue before the Court.
In other words. thanks but no thanks.
The court recognizes the problem
In their petition in this case, Petitioners assert that Florida’s delivery of legal services to the poor is in crisis. They allege that, in recent years, the number of people in Florida living below the poverty line has increased. Legal aid organizations across the state presently handle basic civil legal needs for many of these low income and disadvantaged Floridians. However, Petitioners point out some studies suggest that as much as 80 percent of the legal needs of the poor and disadvantaged are not being met. At the same time, funding and resources for legal aid have dropped dramatically.
Although we decline to adopt their proposal at this time, we wish to thank Petitioners for bringing this important issue before the Court for consideration, and we commend their altruism in recommending an increase in Bar dues to support legal aid organizations. The petition in this case brought to the forefront a significant and critical issue affecting access to justice in our state. We believe a continuing discussion as to the best methods to fund legal aid programs, together with the work of the Florida Commission on Access to Civil Justice, will serve to strengthen equal access to our judicial system.
A dissent from Justice Lewis
It is truly an unfortunate day for Florida as a majority of this Court professes to be protecting the legal needs of many Floridians while it is actually rejecting the very simple availability of a limited tool to provide possible relief and a safety net to at least some most in need. I fully agree that the lawyers of this State cannot and should not be required to be the group of individuals solely and exclusively responsible for the monetary needs or programs necessary to provide access to justice for all Florida citizens. The petition we consider today does not seek such a result and was never designed or intended to reach that result. A number of outstanding members of The Florida Bar have simply requested that The Florida Bar be authorized (not mandated) to generate additional funds (not mandatory) as a tool for attempting to enhance access to justice for at least some Floridians in need...
I cannot subscribe to a theory that we authorize nothing unless we can resolve all. This reminds me of the story of the lawyer who traveled to the nursing home with the absolute best intentions of assisting the disabled and infirm. Upon his return home, inquiry was made as to how he had assisted the infirm that day. The lawyer responded that so many of those in the nursing home needed soft shoes and a comfortable chair that he did not have the resources to provide soft shoes and comfortable chairs for all, so he simply provided none. His family replied with great disappointment that the solution to many large problems may begin in the purchase of a single pair of soft shoes and a single comfortable chair.
I am part of the disappointed Court family who believes that one positive step at a time and one authorization at a time is far better than waiting until committees and commissions make recommendations that may or may not be fulfilled.
While I do not believe that lawyers should be solely responsible for providing the monetary assistance to help the poor and the middle class have access to our courts, I do believe that it is a part of our responsibility as lawyers to assist in this endeavor. I recognize that lawyers have for years contributed so that others have access to our legal system through both the giving of money and the giving of their time and talent. However, in this time of crisis, we would not be remiss in giving The Florida Bar the authority to require lawyers to dig just a little bit deeper to ensure that our courts remain open and accessible to all in need...I would authorize The Florida Bar to require lawyers to pay up to $100 a year with their Florida Bar renewal.
The North Carolina State Bar has filed a new complaint against the death penalty defense attorney previously charged with keeping a water bottle without the permission of suspect's sister to test for exculpatory DNA.
The attorney is now alleged to have given an uncertified transcript of an innocence hearing to a reporter for The News and Observer.
A staff member of The North Carolina Center on Actual Innocence conducted an informal inquiry into how the reporter had published an article that relied on the uncertified transcript.
The gravamen of the complaint is that the attorney provided false and misleading responses to the staff member.
A stayed six-month suspension was ordered by the Indiana Supreme Court on these facts
Respondent employed L.G. from 2002 until 2013 as a paralegal, secretary, and office manager for his private practice. Respondent delegated to L.G. authority for establishing attorney-client relationships. On several occasions, L.G. collected client filing fees and converted those fees for her own personal use, and on at least two occasions L.G. provided clients with fabricated notices of automatic stay in order to conceal her conversion of bankruptcy filing fees. L.G. also stole client funds from Respondent’s trust account. In sum, L.G. misappropriated about $103,000 from Respondent’s clients. L.G.’s improper actions were caused, in part, by Respondent’s failure to appropriately supervise her and by Respondent’s improper delegation of authority to her.
Respondent has made restitution payments of about $67,000 directly to some affected clients and has made payments of about $36,000 to other attorneys so that other affected clients could secure successor counsel to have their bankruptcy matters completed.
The stayed suspension requires two years of probation.
Details here from Kokomoperspective. com.
I'm not certain why the court order refers to the paralegal by her initials. I see no reason to protect her identity.
She is identified as Lacee Garber in the press report. (Mike Frisch)
The Wisconsin Supreme Court has imposed a reciprocal public reprimand as a result of a sanction ordered by the Minnesota Supreme Court.
The court denied a motion to consider revocation of the attorney's conditional admission in Wisconsin
After reviewing these matters, and in light of Attorney Gall's failure to respond to our order to show cause, we conclude that Attorney Gall should be publicly reprimanded in this state for the misconduct that has already resulted in a public reprimand in Minnesota. We further conclude, however, in light of the manner in which the Supreme Court of Minnesota addressed Attorney Gall's disciplinary case, that there is no need to issue an order to show cause to Attorney Gall regarding his conditional admission in this state. We therefore deny the BBE's motion requesting such an order. We also deny the BBE's motion to seal all filings regarding the conditional admission, determining that the interweaving of the disciplinary matter and the conditional admission matter require public disclosure of the fact of Attorney Gall's conditional admission to the practice of law in this state.
The facts underlying Attorney Gall's public reprimand involved his failure to comply with the Consent Agreement for Conditional Admission to the practice of law in Minnesota (the Minnesota Agreement) and his false statements to the Minnesota lawyer regulatory authorities.
Specifically, the Minnesota Agreement, which Attorney Gall executed with the Minnesota Board of Law Examiners (MBLE) in March 2011, contained a requirement that Attorney Gall comply with the conditions of probation imposed in November 2010 as a result of a conviction for Fourth Degree Driving While Intoxicated. One of those conditions was a requirement that for a period of two years Attorney Gall would have no driver's license violations. The Minnesota Agreement also required Attorney Gall to submit quarterly reports detailing his compliance with all of the terms and conditions of that agreement, as well as to submit narrative statements detailing the steps he was taking to support his decision to abstain from alcohol. The Minnesota Complaint provided that it would be in effect for a period of two years (until March 2013). The agreement also stated, however, that if a complaint was filed with the Minnesota Office of Lawyers Professional Responsibility during the term of the agreement, then the period of conditional admission would be extended until the disposition of that complaint. Once Attorney Gall signed the Minnesota Agreement, he was admitted to the practice of law in that state...
Contrary to Attorney Gall's probation and his conditional admission agreements in both states, he was cited for 11 traffic violations in the period from June 2011 to September 2012.
No need to inquire into his Wisconsin conditional admission
we conclude that the matter of Attorney Gall's misconduct was sufficiently addressed by the Minnesota public reprimand and disciplinary probation, which is being imposed in this state via the reciprocal discipline procedure.
The attorney is on probation for two years in Minnesota. The court here did not impose a term of probation. (Mike Frisch)
Disbarment has been imposed by the South Carolina Supreme Court for multiple instances of misuse of entrusted funds.
On March 29, 2007, respondent took possession of $1,400,000 for Complainant A from the sale of property in Horry County. Respondent agreed to hold the proceeds from the transaction in trust on behalf of Bogey Exchange Company, Inc., which was created by respondent to act as a Qualified Intermediary.
He issued a series of checks without sufficient funds
Respondent admitted to Complainant A that he could not account for the missing funds that he was holding in trust.
In another matter
In May 2005, respondent took possession of monies belonging to Complainant B and agreed to hold the monies in trust. Respondent placed the monies into a trust account styled as "Complainant B Trust." The Complainant B Trust held $1,300,000 at the time respondent created the trust.
On November 28, 2007, respondent closed the account. Respondent failed to return several calls from Complainant B seeking information relating to the monies, as well as copies of bank statements and other financial information relating to the Trust. Respondent admits he cannot account for the missing funds placed in Complainant B's Trust.
The third matter involved missing estate funds.
We accept the Agreement for Discipline by Consent and disbar respondent from the practice of law in this state. The disbarment shall not be made retroactive to the date of respondent's interim suspension. Within thirty (30) days of the date of this order, respondent shall enter into a restitution plan with the Commission to pay restitution to the following persons and entity: Complainant A - $1,400,000; Complainant B - $1,300,000; and the Estate of Jane Doe - $13,002. Payments may be offset by any amount paid by respondent's malpractice carrier and the Lawyers' Fund for Client Protection (Lawyers' Fund) and any amounts previously paid by respondent. Respondent shall fully reimburse the Lawyers' Fund for all claims paid on his behalf.
The United States Court of Appeals for the Fourth Circuit affirmed the denial of habeas corpus relief to a defendant who had relied on his attorney's advice to plead guilty in West Virginia state court to armed robbery and malicious assault.
Under the circumstances, we have no trouble concluding that the Supreme Court of Appeals of West Virginia could have reasonably found that Christian had little hope of prevailing at trial on the charges and was “lucky to receive the deal that he did.[..]”
Here, abundant evidence exists to support a factual finding that Christian’s guilty plea was driven not by his sentencing exposure at all, which everyone agrees was onerous, but rather by his recognition from the outset that he had little hope of defeating either the federal or state charges against him, or of living long enough to get out of prison at all, and by his desire to spend as much of his remaining life as possible in federal prison. Christian may well have developed “buyer’s remorse."
Circuit Judge Gregory wrote a powerful dissent
The majority goes to great lengths to disguise the simple truths of this case: Counsel gave bad advice to a client, and the client relied on the advice in deciding to plead guilty and forgo his constitutional right to a trial. I respectfully dissent...
Despite the thin veneer of ‘hypotheticals’, [defense counsel] Henderson’s testimony clearly establishes that (1) Christian told him of the two prior felony convictions; (2) Henderson did no further investigation to determine the date or nature of the prior felonies; (3) on the basis of Christian’s disclosure, Henderson advised him that he faced a possible mandatory minimum life sentence if convicted of any of the new charges; and (4) the advice Henderson gave was incorrect because under no circumstances did Christian face such a sentence if convicted...
Here, Henderson failed to investigate his client’s criminal record – either by asking more questions or pulling a file – when accurate information was critical to the client’s ability to make an informed, intelligent choice about whether to accept a plea deal. Indeed, Christian made clear during plea negotiations that his desire to avoid a recidivism enhancement was a significant motivating factor for accepting a deal – as revealed by the letter Henderson wrote to the government expressing Christian’s demand that “THERE WILL BE NO RECIDIVIST FILED”. J.A. 597. Doing a minimally sufficient investigation into Christian’s record would have involved very little effort, requiring a simple examination of the dates of the two prior felony convictions. And the reward would have been significant, fundamentally changing Christian’s calculus in deciding whether to forgo his Sixth Amendment right to a trial...
Of course, as the majority points out, it is possible that Christian would have received a lengthy sentence if he had chosen to go to trial. But the Sixth Amendment right to a public trial does not exist solely when a trial would be in a defendant’s best interests. The record here compels a conclusion that it is reasonably probable Christian would have exercised this constitutional right if he received accurate advice.
Wednesday, July 8, 2015
The Minnesota Supreme Court suspended an attorney who could not be found in the State.
This story in GreenBayPressgate.com describes her disciplinary issues in Wisconsin
A lawyer and corporate manager for a controversial religious sect based near Shawano has been barred from practicing law in Wisconsin for a year, in part for publicly smearing federal court officers as "a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church."
Naomi Isaacson was a lawyer and CEO of the Dr. R.C. Samanta Roy Institute of Science and Technology. The religious sect known as "SIST," based in Wescott, made news in 2008 for having allegedly compiled a list of 60 Shawano area residents that were "potential victims of an implied threat," according to Shawano police.
The institute, which also has been identified as The Disciples of the Lord Jesus, has operated since the 1970s in the Shawano area, where it owned motels, gas stations and a go-cart track. The FBI in 2009 investigated the "implied threat" list, but no charges were brought.
Isaacson had her law license suspended this week for conduct that "displayed an utter disregard and disrespect for the integrity of the courts and their judges in a brazen and outrageous fashion," according to the Wisconsin Supreme Court's Office of Lawyer Regulation.
In some of the court actions in which she was involved, Isaacson called Shawano a "Neo-Nazi territory" and accused Mayor Lorna Marquardt of having undue influence on the local and federal court systems, court records say. Marquardt was reportedly one of the 60 people on the 2008 "implied threat" list.
Isaacson made the comments during bankruptcy actions that SIST affiliates were involved in after its go-cart track defaulted on loans, court records say.
Isaacson was a managing officer in several of the affiliates, including U.S. Acquisitions & Oil and a number of limited liability corporations that operated under the name Midwest Oil.
During court proceedings, she referred to judges, variously, as a "black-robed bigot," a "Jesuit judge," and a "Catholic Knight Witch Hunter." She derided bankruptcy trustees, variously, as a "dirty Catholic inquisitor," a "Jesuitess," and a "priest's boy," court records say.
Isaacson's license had been suspended since May 2011 for noncooperation with the Office of Lawyer Regulation's investigation, nonpayment of her state bar dues and a variety of other offenses. The latest one-year suspension is based on a March 2014 complaint the Office of Lawyer Regulation filed against her for violating rules of professional conduct in Wisconsin and Minnesota over the past few years.
The behavior was not in her capacity as a lawyer but for her behavior during litigation proceedings while she was in her role as officer for SIST's subsidiary businesses.
She has one year to respond to allegations before the charges are deemed admitted and final discipline is imposed. (Mike Frisch)
The Illinois Review Board has found substantial mitigation and recommended a two-year suspension with all but 60 days stayed in matter involving misuse of entrusted funds
Respondent conceded that did not handle his client trust account properly during this time period. In three cases, while he paid his clients the money they were due in settlement, he failed to pay the lienholders. In a fourth case, he took earnest money that was required to be escrowed in a real estate transaction. In sum, Respondent routinely took cash withdrawals from the account when he needed money without consideration as to distributions required to be paid to others or, in the case of the real estate transaction, without regard to his escrow obligations. While he attributed his mishandling of funds, at least in part, to his opening of a solo practice after the death of his law partner in 2006, he did not dispute that he knowingly took the funds in the following four instances.
...while Respondent's misconduct is serious, he presented overwhelming evidence mitigating his misconduct. The mitigating evidence greatly exceeds the mitigating evidence discussed in the cases relied upon by the Administrator. The Hearing Board found that Respondent presented impressive character testimony. One of Respondent's character witnesses, attorney Lester Barclay, testified that he was willing to act as a mentor to Respondent and work with him on his recordkeeping skills. Two of the clients whose matters were involved in this proceeding testified in support of Respondent and remain willing to hire Respondent in the future. Moreover, Respondent expressed sincere remorse for his misconduct and testified that he has taken steps to correct his bookkeeping problems, including watching online seminars offered by the ARDC.
Also in mitigation, Respondent presented extraordinary testimony regarding his efforts to provide pro bono representation to individuals in his neighborhood who are unable to pay his fees, stating that he believed about forty percent of his practice is pro bono. In addition, we have considered the testimony sealed by the Hearing Board, testimony that demonstrates Respondent's upstanding reputation and commitment to the citizens of Chicago. Accordingly, while Respondent's dishonest use of others' money would ordinarily warrant a substantial suspension, we believe that such a harsh sanction would remove Respondent from the community to whom he has dedicated his career. We therefore decline to impose a two year suspension without probation, the sanction recommended by the Administrator. We believe that a suspension of two years, stayed after sixty days by probation, adequately meets the purposes of discipline.
The Pennsylvania Supreme Court has reinstated an attorney who had been suspended for 30 months as a result of an identity theft.
The victim was a law firm client whose confidential information was used to obtain three credit cards.
The Disciplinary Board found that the petitioner had addressed his gambling addiction
Petitioner was suspended for his criminal conviction of three counts of identity theft. This misconduct occurred while Petitioner was an active gambling addict. Petitioner is extremely remorseful for his misconduct and has fully acknowledged his wrongdoing as evidenced by his cooperation with the Office of Disciplinary Counsel during the disciplinary phase of this proceeding and his consensual acceptance of discipline. Petitioner has taken measures to seek and receive appropriate treatment for his gambling addiction. These measures date back to November 2009 and include evaluation and counseling with Dr. Sharon Richter, as well as active participation in Gamblers Anonymous and Lawyers Concerned for Lawyers. Dr. Richter's letter and the testimony of Charles Mirarchi, a licensed gambling counselor, indicate that Petitioner has made significant progress in his rehabilitation and recovery, and has suffered no relapses. Both of these professionals have concluded that Petitioner is fit to resume the practice of law.
Petitioner's persuasive testimony demonstrated his readiness to resume the practice of law. He credibly described the clear changes in his life since entering recovery from gambling. Petitioner has been unwavering in his efforts to rehabilitate himself. Not only has he actively worked his own recovery, he has transitioned to a place where he is able to assist other gamblers in recovery, both in GA and LCL. Petitioner called LCL and GA "blessings." Petitioner explained that he never felt accountable for his actions when he was gambling but now the opposite is true. He testified that he feels accountable to his family and employer and relies on that strong sense of responsibility to help him maintain his recovery. According to Petitioner, recovery is his first priority. He fully understands the dire consequences of losing his job and his family if he relapses.
he has worked with a law firm that intends to employ him as an associate attorney. (Mike Frisch)
The North Dakota Supreme Court has reinstated an attorney who had been suspended for six months and a day.
He has been the subject of a series of disciplinary sanctions
After a hearing, the hearing panel concluded Howe has the requisite fitness and competence to practice law. However, Howe had not complied with the terms and conditions of all applicable disciplinary orders and rules. Although Howe had not completely complied with the orders of this Court in Howe, 2014 ND 44, 843 N.W.2d 325, the hearing panel concluded Howe should be conditionally reinstated to allow him time to comply in light of the extraordinary events unfolding at that time. See Howe, 2014 ND 17, 842 N.W.2d 646, and Howe, 2014 ND 109, 847 N.W.2d 126. The hearing panel concluded Howe had not engaged or attempted to engage in the unauthorized practice of law during the period of suspension or disbarment. The hearing panel considered other factors under in N.D.R. Lawyer Discipl. 4.5(F), which were not determinative of the matter.
There was concern expressed about his conduct after earlier suspensions
The hearing panel also considered whether Howe should be disciplined regarding his conduct during his suspensions in Howe, 2014 ND 44, 843 N.W.2d 325, and Howe, 2014 ND 17, 842 N.W.2d 64. Howe posted a notice on his office door stating and included in letters to clients that he was interim suspended by the Supreme Court and charged with a crime as a result of a "witch hunt" by the Drug Task Force, State's Attorney and district court judge. The hearing panel concluded there was clear and convincing evidence Howe violated N.D.R. Prof. Conduct 8.2(a), Judicial and Legal Officials, which provides that a lawyer shall not knowingly, or with reckless disregard as to its truth or falsity, make a false statement concerning the qualifications or integrity of a judge. The hearing panel concluded a reprimand was the appropriate sanction for Howe's misconduct.
The reinstatement is subject to a number of conditions. (Mike Frisch)
Tuesday, July 7, 2015
The District of Columbia Court of Appeals has ordered the interim suspension of a former Dorsey & Whitney partner who was suspended for seven years by the United States District Court for the Southern District of New York,
The Second Circuit affirmed the sanction.
The New York First Department had suspended her for five years as reciprocal discipline
Respondent's misconduct arose out of a federal lawsuit commenced in 2007 by the law firm of Dorsey & Whitney on behalf of Wolters Kluwer Financial Services, Inc. (Wolters). Respondent, then a partner at Dorsey & Whitney, was lead counsel in the matter. Wolters alleged that three of its former employees had taken certain proprietary information and divulged it to their new employer. The district court granted a temporary restraining order and ordered expedited discovery. The parties exchanged discovery documents, and the individual defendants were deposed. While discovery was ongoing, the district court entered a Confidentiality Order providing in part that certain material — including all discovery material at issue here — "shall not be used in any other litigation proceeding," and that the district court's jurisdiction to enforce those restrictions would survive the lawsuit.
The defendants moved to dismiss on the ground, inter alia, that the district court lacked personal jurisdiction over the defendants, all of them located in Massachusetts. The Dorsey attorneys then began to consider voluntary dismissal in New York and re-filing in the District of Massachusetts. Wolters gave respondent permission to dismiss the suit. During a subsequent conference call with the court and opposing counsel, however, respondent did not mention the pending dismissal. Either during or shortly after the conference call, respondent (the partner in charge) instructed the junior partner on the case to file the dismissal; the junior partner sent notice of the dismissal by regular mail — though not electronically.
In the federal discipline matter
the Magistrate found that respondent acted with a culpable state of mind when she committed the misconduct with which she was charged, namely: respondent's direction to an associate to alter or amend documents for the purpose of preventing their discoverability and the attempt to mislead the court as to these events; and respondent's copying of transcripts and ordering of additional copies of transcripts in intentional disregard of the court's orders, and subsequent use of the transcripts in the Massachusetts action in violation of the confidentiality order...
"[Respondent's] most serious failing involves the corruption of a young and inexperienced lawyer, over whom she had power and authority, and whom she ordered to commit conduct that could have ended with his own disciplinary hearing....[Respondent] exhibits no remorse for her inappropriate conduct; rather, she arrogantly persists in trying to salvage her reputation at the expense of the unfortunate [associate] - branding him and others at the Dorsey firm as liars when it is she who has consistently lied, both about what she did and about why she did it." "Equally problematic is Respondent's habit of twisting the truth. At the hearing, [respondent] continually tried to shift blame to virtually every other person who came within arm's length of the Wolters Kluwer case....Respondent's flagrant mischaracterization of the record, and her meritless objections to [the Magistrate's] carefully crafted and amply supported findings, indicate that she has yet to accept any responsibility for what the Committee views as serious professional wrongdoing."
D.C. will determine reciprocal discipline based on these findings.
The term of disbarment in D.C. is five years. In an original matter, a seven year period of suspension could not be imposed.
I remember a case when I was at Bar Counsel when Judge Steadman asked me at oral argument whether there was a "substantial difference" between a five and a seven year suspension.
The division answered the question with a seven-year reciprocal suspension on the facts
A seven-year suspension at this time with retroactive application of almost two years is in practice close to a five-year suspension imposed with prospective effect only, which we could plainly do under our own disciplinary scheme...Thus, on the facts of this case, the entry of an order suspending respondent nunc pro tunc for seven years will apply here a sanction functionally equivalent to that which would be both possible and warranted under the sanction scheme provided for by our Rules for disciplinary cases first initiated in the District. Adopting in this manner the "identical discipline" as that imposed by the foreign jurisdiction does not in practice result in a "substantially different" sanction here.
Looking back on this 1986 argument, I am struck by the composition of the court's division - Judges Pryor, Steadman and Pair. What an honor to appear before them.
There were giants in those days.
Fortunately, two of these giants are still with us. (Mike Frisch)