Thursday, May 5, 2016

Failure To Object To Improper Argument Was Ineffective Assistance Of Counsel

The South Carolina Supreme Court granted a new trial to a defendant based on the failure of her trial counsel to object to the improper closing arguments of the prosecutor (called a Solicitor) in a criminal sexual conduct case that depended entirely on credibility.

The victim's story

According to Victim, on that August night, he went to Tappeiner's house with his sister and a neighbor to watch movies with Tappeiner, her husband, and their two daughters while his parents were out of town. Tappeiner and her husband were drinking alcohol during the movies, although neither was noticeably intoxicated. By the end of the last movie, all of the children except Victim had fallen asleep in front of the television, and Tappeiner's husband had gone upstairs to bed. Tappeiner briefly left the room where the children lay sleeping, then reentered and began fondling Victim's penis. When he resisted, Tappeiner pulled Victim upstairs into her daughter's bedroom, where she forced him to perform oral sex on her, as well as engage in vaginal intercourse. Although Victim stated he screamed for help, apparently no one heard him or woke up. Eventually, Victim was able to escape and return home.

The court

Here, we find trial counsel's closing argument did not invite the solicitor to repeatedly assert that the State's witnesses all believed Victim's version of events after their "face to face, eye to eye" interviews with him. Rather, trial counsel's presentation pointed out inconsistencies in the stories, which could do no more than invite the solicitor to point out the contradictory aspects of Victim's story and the other witnesses' testimony.

Moreover, some of the solicitor's statements regarding Victim's credibility were not only damaging to Tappeiner, but misrepresented the evidence adduced at trial, such as the solicitor's statement that the rape crisis counselor personally interviewed Victim, and that she is someone "who can detect when someone is making something up or if there is nothing there." The rape crisis counselor never testified in front of the jury that she interviewed Victim herself...

Further, the solicitor's remarks regarding whether the jurors would want Tappeiner babysitting their children or relatives improperly appealed to the jurors' emotions, rather than the evidence in the record...


Here, as the parties freely admitted during trial, the case was entirely dependent on a credibility determination between the prosecution's witnesses and the defense's witness. Given the dearth of evidence beyond Victim's assertions, we cannot say evidence of Tappeiner's guilt was overwhelming. Therefore, we find that but-for the improper vouching for Victim's credibility, there is a reasonable likelihood the outcome of the trial would have been different, and Tappeiner was thus prejudiced by trial counsel's failure to object.

(Mike Frisch) 

May 5, 2016 | Permalink | Comments (0)

Wake Up Little Susie

A criminal defendant was entitled to trial by jury on a charge of unlawful entry at the Library of Congress, according to a decision of the District of Columbia Court of Appeals.

In pertinent part, the evidence at trial was as follows. At about 6:30 a.m. on June 24, 2014, Ms. Frey was found asleep at an employee's desk in a restricted area of the Library of Congress's Adams Building. The Adams Building is generally open to the public from 8:30 a.m. to 4:30 p.m. To get to the desk where she was sleeping, Ms. Frey had to pass through areas that are not at any time open to the public.

Ms. Frey testified that she entered the Adams Building at about 3:30 p.m. on June 23, 2014. She went to the reading room and read for a couple of hours, but then she fell asleep. When she woke up, the building was closed and the lights were out. Ms. Frey started walking around the building, at one point walking through an underground tunnel to another Library of Congress building, the Jefferson Building. Eventually, Ms. Frey made her way to the office in which she was later arrested. 

The trial judge found Ms. Frey guilty. Specifically, the trial judge found that Ms. Frey was in an area of the Library of Congress that was not open to the public at any time and that Ms. Frey knew that her presence there was against the will of the Library of Congress. The trial judge did not credit Ms. Frey‟s denial of an intent to remain in the building.

The defendant gets a new trial by jury.

The opinion is authored by Associate Judge McLeese.

I miss Phil Everly. (Mike Frisch)

May 5, 2016 | Permalink | Comments (0)

Misappropriation Draws Six-Month Suspension

An attorney who had misappropriated entrusted funds was suspended for six months by order of the New York Appellate Division for the Second Judicial Department.

The respondent deposited the settlement funds into his operating account, when he knew that such funds should have been deposited into his escrow account, and then proceeded to use the funds for his personal use, paying for income taxes, rent, and other business expenses. When the respondent had depleted the funds and the balance in his operating account went below zero in September 2012, he replenished his operating account, but he did not transfer any funds into his escrow account for safekeeping. With regard to the availability of personal funds, as proof of lack of financial motive, while the Special Referee did not admit the respondent's personal bank account statements, he did permit the respondent to testify that he had access to personal funds at the time. As for admission into evidence of the respondent's testimony at the investigative hearing, such testimony is routinely admitted and we find no error here in its admission.

In determining the appropriate measure of discipline to impose, this Court finds that the respondent engaged in serious misconduct by misappropriating client funds and delaying payment to an elderly client the funds that such client was entitled to receive. In mitigation, this Court has considered the respondent's expression of sincere remorse, the unlikelihood of his engaging in similar misconduct, his unblemished record, his full cooperation with the Grievance Committee in its investigation, the substantial evidence presented in support of his good character, his pro bono efforts as an active volunteer in foreclosure clinics administered by the Nassau County Bar Association, and the various charitable activities he participated in through his synagogue. Of note, the misappropriation was of an isolated nature.

There are plenty of jurisdictions that would impose far more substantial discipline for this type of misconduct. (Mike Frisch)

May 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Unauthorized Practice Leads Ohio To Deny Bar Admission

Dan Trevas reports on the web page of the Ohio State Bar

The Ohio Supreme Court ruled today that a Cincinnati attorney who had been previously admitted in three other states engaged in the unauthorized practice of law when he began providing legal services while his application for admission to the Ohio bar was pending.

The Supreme Court voted 4-3 to deny Matthew A. Swendiman admission to the bar without passing the bar exam. The Cincinnati Bar Association had recommended his application be approved, but an independent investigation by the Board of Commissioners on Character and Fitness found that while Swendiman was offering investment advice to his clients, he also provided legal services while his admission application was pending. The court majority voted to allow Swendiman to reapply for admission without examination, while two justices would have required he take the exam to be admitted and one would have permanently denied admission.

Swendiman Focused Time on Investment Business
Swendiman had been admitted to practice law in Indiana in 2001, in Connecticut in 2003, and the District of Columbia in 2005. He has primarily engaged in the financial-investment business as a lawyer and financial advisor. He served as in-house counsel at a large bank and then left to be a corporate officer at another corporation. He left the post to start his own investment company, then joined the Cincinnati law firm Graydon, Head & Ritchey though a part-time “of counsel” relationship while continuing to operate his investment company.

About six months after joining the firm, Swendiman applied for admission to the Ohio bar without examination, and by late 2014 he closed his business and began working for Graydon fulltime. Swendiman admitted he had been practicing law at the firm and took the position with the firm because his clients were asking him to provide not only financial advice, but also legal services.

In a per curiam opinion, the Court explained that the unauthorized practice of law in Ohio is defined as rendering legal services for another by any person not admitted to practice in Ohio. A person not admitted in Ohio may render legal services in compliance with the requirements of the multijurisdictional practice of law, and Swendiman argued he is complying with the rules governing multijurisdictional practice.

Swendiman admitted he established an office in Ohio and practiced law in the state, but that his practice was authorized by the rule because he was admitted in another state, was in good standing in that state, and providing services “that the lawyer is authorized to provide by federal or Ohio law.” The Court stated Swendiman was arguing that because he was advising clients regarding federal law only and because he is licensed in the District of Columbia, where filings before the Securities Exchange Commission and other federal agencies are made, he was authorized to render service in Ohio.

A board panel hearing Swendiman’s case noted he did not cite any legal authority to support his “seemingly novel” argument and it found no other cases that addressed the issue.

“Moreover, the panel found that cases in which a lawyer’s practice of law has been deemed authorized by federal law occurred when the lawyer’s practice had been specifically authorized by a separate federal admissions authority,” the opinion stated.

The Court cited a 2013 case (Disciplinary Counsel v. Harris) where the attorney was not found to be in the unauthorized practice of law when representing a client in U.S. Bankruptcy Court in Ohio while not being a member of the Ohio bar. He had been admitted to the bankruptcy court, which has the power to regulate the practice of law in the cases before it. A federal appeals court extended that power further when it allowed an attorney licensed in Texas not only to appear in bankruptcy court in Michigan but also to advise clients on bankruptcy actions and proceedings because the bankruptcy court in Michigan authorized him to participate in cases.

Swendiman’s admission to practice in the District of Columbia is not the same as admission to a particular court, the Court concluded. It found Swendiman does not possess the character and fitness to practice law in Ohio. The Court ordered Swendiman to cease all practice of law in Ohio until he is licensed and stated he can reapply for admission without examination.

Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French joined the opinion.

Justices Judith Ann Lanzinger and William M. O’Neill dissented without a written opinion and would permanently deny Swendiman admission without examination. Chief Justice Maureen O’Connor dissented without a written opinion and would permanently deny admission.

2015-0540. In re Application of Swendiman, Slip Opinion No. 2016-Ohio-2813.

(Mike Frisch)

May 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sex Drugs And Disbarment

A disciplinary summary from the Florida Bar web page

Linda Dawn Hadad, P.O. Box 366, Daytona Beach, disbarred effective immediately, following a March 10 court order. (Admitted to practice: 2002) Hadad engaged in a pattern of misconduct that included illegal drug use and sexual relationships with clients. She had inappropriate intimate relationships with inmates at the Volusia County jail while she represented them, and engaged in inappropriate phone calls, which were routinely recorded by the jail. Hadad also failed to timely appear for court hearings, neglected the criminal cases of several clients, closed her office without informing her clients and failed to respond to Bar inquiries regarding these matters. (Case No. SC15-1241).

A story from the Daytona Beach News-Journal.

Hadad was arrested in August after she fled from Daytona Beach Police when they tried to stop her for an expired tag, a report said. The Sheriff's Office helicopter was called in to help find her and police used stop sticks to stop her. 

Hadad pleaded no contest to driving with a suspended/revoked license and to fleeing/attempting to elude with lights/sirens active. Circuit Judge J. David Walsh adjudicated her guilty on both counts and placed her on drug offender probation for five years.  She was also ordered to successfully complete a program at Palm Beach Behavioral Health in Palm Beach County, where she must remain for 90 days.

(Mike Frisch)

May 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 4, 2016

It's Not Defamatory To Call A Lawyer A Liar

The Virgin Islands Supreme Court has held that calling an attorney a liar on a website was not defamatory

On appeal from a Superior Court order holding a defamation defendant in contempt for failing to comply with an earlier order finding him liable and ordering him to disable and remove several websites containing allegedly defamatory statements made against the plaintiff attorney and his law firm, the statements are held to be not defamatory as a matter of law. Only statements that are provable as false are actionable. Where a statement is so imprecise or subjective that it is not capable of being proved true or false, it is not actionable in defamation. Hyperbole and expressions of opinion not provable as false fail to meet this actionability element of a defamation claim, and are also constitutionally protected. Plaintiffs had the burden of proving that the statements were false as part of their case-in-chief at trial. While calling a private individual a liar could, in some very limited circumstances, permit recovery for defamation, such statements must still be provable as false in order to constitute actionable defamation. In this case, as a matter of law all of the defendant’s allegedly defamatory statements are personal opinions representing subjective viewpoints and beliefs about the plaintiffs that cannot be proved as false. These statements both fail to satisfy the requirements of defamation under Virgin Islands law, and are entitled to First Amendment protection. Therefore, the Superior Court’s order finding the defendant liable for making defamatory statements against the plaintiffs is reversed, the resulting contempt sanctions are vacated, and the matter is remanded to with directions to dismiss the complaint with prejudice.

The facts

A dispute between Simpson and the Board of Directors of Sapphire Bay Condominiums West arose in 2003, when Simpson, who owned a unit at Sapphire Bay, sought to make several alterations to his unit. The Board, however, unanimously denied his request, finding that Simpson provided them with insufficient notice of the change. At the time, Andrew L. Capdeville, Esq., a licensed Virgin Islands attorney, was retained to provide legal counsel to the Board. After the Board denied his request, Simpson mailed a letter to every member of the Board challenging the Board’s actions and contending that the Board failed to comply with the condominium’s bylaws, particularly with regard to the notice provisions. Simpson’s letter also stated that the Board’s lawyer—presumably Capdeville—was “dishonest,” that Simpson was “concerned that the Board and the Board’s lawyer have so little respect for the By-Laws,” that “[i]t is a terrible thing to do, and a waste of owner money, for the Board to hire that lawyer and to allow him to write . . . dishonest letters,” and that “[t]he owners should never use that dishonest lawyer again.”

The next month, Simpson filed a grievance against Capdeville with the Board on Professional Responsibility. Around the same time, Simpson purportedly published a website, first located at and later relocated to, which reprinted the grievance in its entirety. These websites also included numerous other references to Capdeville, including a headline stating “Lawyer Lies”; a sentence stating that Capdeville “had proven himself to be dishonest”; a claim that Capdeville’s communications “contained lies and many other statements” that violate ethical rules; a claim that “Capdeville’s conduct . . . was so terrible” that “Simpson filed a [g]rievance”; a statement that Capdeville “is a danger to the [Sapphire Bay Condominiums West] owners . . . who have paid for (his) advice” and that his advice resulted in it “breaking the law”; and a claim that Capdeville is a “disgrace” to the legal profession and that law schools should use his conduct as a case study of “[w]hat lawyers should not do.”

Capdeville sued and prevailed in the trial court and received a dollar in damages. Simpson was held in contempt for failure to take down the web page.

The court here found no defamation

While calling a private individual a liar could, in some very limited circumstances, permit recovery for defamation, such statements must still be provable as false in order to constitute defamation under Virgin Islands law and to survive First Amendment scrutiny... a headline stating “Lawyer Lies” and an article claiming that Capdeville is a “liar” who has “proven himself to be dishonest,” also fail to amount to actionable statements that can be proved as false because “the term ‘lying’ applies to a spectrum of untruths including ‘white lies,’ ‘partial truths,’ ‘misinterpretation,’ and ‘deception.’” Underwager v. Channel 9 Australia, 69 F.3d 361, 367 (9th Cir. 1995). “As a result, the statement is no more than nonactionable rhetorical hyperbole, a vigorous epithet used by those who considered [the plaintiff’s] position extremely unreasonable.” Id. (citation omitted); see also Sullivan v. Conway, 157 F.3d 1092, 1097 (7th Cir. 1998) (“[T]o say that he is a very poor lawyer is to express an opinion that is so difficult to verify or refute that it cannot feasibly be made a subject of inquiry by a jury.” (citations omitted)); Gardner, 563 F.3d at 989 (“lying” statements were not sufficiently factual to imply a false factual assertion in the context of “loose, hyperbolic statements . . . which were an obvious exaggeration”); James v. San Jose Mercury News, Inc., 20 Cal. Rptr. 2d 890, 896–98 (Cal. Ct. App. 1993) (article describing lawyer as engaging in “sleazy, illegal, and unethical practice” fell into protected zone of “imaginative expression” or “rhetorical hyperbole”); accord Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 284–86 (1974) (use of the word “traitor” could not form the basis of a defamation action since it was used “in a loose, figurative sense” and was “merely rhetorical hyperbole, a lusty and imaginative expression of . . . contempt”); Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (the word “blackmail” is no more than “rhetorical hyperbole”); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir. 1994) (“‘Unfair’ is a term requiring a subjective determination and is therefore incapable of factual proof.”).

As there was no defamation, the complaint was dismissed and the contempt vacated. (Mike Frisch)

May 4, 2016 | Permalink | Comments (1)

Third Time No Charm

The California State Bar Court Review Department has recommended disbarment of an attorney for unauthorized practice while suspended.

 This is Michael R. Carver’s third disciplinary matter since his 1999 admission to the State Bar of California. He received a public reproval with conditions in 2011, based on his misdemeanor convictions for driving without a valid license and resisting arrest (Carver I). In 2015, he was suspended from the practice of law for 90 days for failing to comply with the conditions of his reproval (Carver II).

In the present case, a hearing judge found Carver culpable of acting with moral turpitude by knowingly, or with gross negligence, engaging in the unauthorized practice of law (UPL) while on suspension. In recommending discipline, including a 90-day actual suspension, the judge considered Carver I in aggravation, but declined to consider Carver II because it was pending on review and not yet final.

The Office of the Chief Trial Counsel of the State Bar (OCTC) appeals. It argues that Carver knowingly committed UPL and that the hearing judge erred by not considering Carver II as an aggravating factor. OCTC contends that Carver’s two prior discipline records render disbarment appropriate under our disciplinary standards. Carver did not seek review or file a responsive brief in this appeal.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we agree with the hearing judge that Carver committed UPL amounting to moral turpitude, but clarify that he did so with willful blindness to his ineligible status, equivalent to knowledge, and not through gross negligence. We also find that the judge erred by not considering Carver II, as required by the State Bar Rules of Procedure directing that prior disciplinary records are admissible, whether final or not.

After reviewing both of Carver’s prior disciplines, we conclude that he should be disbarred. His misconduct over several years demonstrates that he is unable or unwilling to follow ethical rules. Further, he failed to prove compelling mitigation. We cannot discern from the record any reason to depart from the guiding disciplinary standards indicating that disbarment is the appropriate discipline.

On sanction

 The State Bar and this court have been required to intervene three times to ensure that Carver adheres to the professional standards required of those who are licensed to practice law in California. Probation and suspension would be inadequate to prevent him from committing future misconduct that would endanger the public and the profession. (See Barnum v. State Bar, supra, 52 Cal.3d at pp. 112-113 [disbarment imposed where attorney’s probation violations left court no reason to believe he would comply with lesser discipline].) Standard 1.8(b) and the decisional law support our conclusion that the public and the profession are best protected if Carver is disbarred.

(Mike Frisch)

May 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 3, 2016

Oklahoma Accepts Resignation Of Attorney Who Sexually Abused His Daughter

The Oklahoma Supreme Court accepted the resignation of a Tulsa attorney who admitted that he had sexually abused his daughter.

In the affidavit, Lewis acknowledges that the OBA has opened grievance DC 16-054 against him and that the grievance alleges that he committed criminal acts involving sexual abuse of his minor daughter and such acts reflect adversely on his honesty, trustworthiness or fitness as a lawyer. He states that he is aware, if proven, the acts constitute violations of Rule 8.4(b) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, app. 3-A, and Rule 1.3 of the RGDP.

Resignation is "tantamount to disbarment."

Tulsa World had the daughter's story 

Her progression from scared child to confident advocate gave Lewis the resolve recently to open it for the world to see. The revelation that she was sexually assaulted from age 11 to 16 by her father, a well-known and respected Tulsa attorney, has stunned the legal community and motivated legislators to consider changing the law.

Lewis, 45, testified in February before the House Criminal Justice and Corrections Committee and put confessional-like letters from her father on a website,, which contains her story and the reasons she is seeking the expansion and eventual elimination of the statute of limitations on child molestation.

“It’s too late for me,” Lewis said. “But I can do something so no other victim will hit the same roadblocks I have. That when survivors get to a place of healing, they won’t be told, ‘Sorry, you are too late. Your time is up.’ ”

To explain her new-found advocacy requires telling her personal story, which has some twists and a mystery...

Her father, George Michael Lewis, became a senior partner at Doerner Saunders Daniel and Anderson. He was a donor and supporter of children’s causes and recipient of the James C. Lang Mentoring Award from the Tulsa County Bar Association in 2013. He is listed as aplaintiff’s attorney in a 2008 federal class-action lawsuit brought by foster children against the Oklahoma Department of Human Services alleging abuses in care, which led to the Pinnacle Plan reform.

After Lewis testified and launched her website, her father notified his firm, which placed him on “indefinite leave immediately,” according to a statement from the firm’s managing partner, Tom Q. Ferguson.

“First and foremost, we would like to express our heartfelt prayers and empathy to Ms. Lewis and commend her courage in telling her story and helping others who have dealt with sexual abuse,” the statement read.

“Upon learning more information, it was the decision of the firm to ask Mr. Lewis for his letter of resignation. He is no longer an employee of the firm. This news has come as a shock to our employees. We have been meeting with our employees collectively and individually and have made confidential counseling available to them through our Employee Assistance Program.”

After a letter was sent to the home address of George Michael Lewis seeking comment, the Tulsa World received a typed statement bearing his signature.

“No one can undo the past actions for which they are responsible,” the letter states. “I deeply regret the pain I have caused my daughter Ginger and my family. I support fully my daughter’s advocacy for a change in the law to provide more time for those who have violated the law to be adjudicated and held accountable, as I was many years ago.”

In response to the statement, Ginger Lewis said: “The notion that he was held accountable is insulting. His life continued as normal while I burdened myself with the shame he should have felt. The perpetrators of these crimes, as illustrated by my father’s statement, are shockingly devoid of any recognition of the damage they cause. Their lack of a moral compass sends their victims’ lives into a dizzying destructive spin that I hope my advocacy can help people overcome.”

(Mike Frisch)

May 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Within The Range Of Reasonable Alternatives

The Washington State Court of Appeals Division II has held that a trial court properly granted summary judgment to defendants

Roff and Bobbi Arden appeal the trial court’s summary judgment order dismissing their claims against Forsberg & Umlauf, PS, and attorneys John Hayes and William “Chris” Gibson (collectively Forsberg) for breach of fiduciary duties and legal malpractice. Property and Casualty Insurance Company of Hartford (Hartford), the Ardens’ homeowners’ insurance company, retained Forsberg to defend a lawsuit filed against the Ardens. Hartford provided the defense under a reservation of its rights to deny coverage for any judgment entered against the Ardens.

First, the Ardens argue that Forsberg breached its fiduciary duty of loyalty to them by defending them in a reservation of rights context while also representing Hartford in other cases. We hold as a matter of law that Forsberg’s representation of the Ardens while it also represented Hartford did not create a conflict of interest and that Forsberg had no obligation to notify the Ardens that they represented Hartford in other cases. We also hold that there is no evidence that Forsberg breached its duty of disclosure regarding the potential conflicts of interest between Hartford and the Ardens.

Second, the Ardens argue that Forsberg breached its fiduciary duty of loyalty to them during settlement negotiations. We hold that (1) as a matter of law, Forsberg had no duty to the Ardens to persuade Hartford to accept the claimants’ initial settlement offer; (2) there is no evidence that Forsberg breached a fiduciary duty regarding the Ardens’ interest in a swift resolution of the lawsuit; (3) a question of fact exists as to whether Forsberg breached its duty to consult with the Ardens before rejecting settlement demands, but there is no evidence that any breach injured the Ardens; and (4) even if Forsberg had a duty to consult with the Ardens before making settlement offers, there is no evidence that Forsberg breached any such duty regarding its first settlement offer and that the breach of any duty for the second settlement offer injured the Ardens.

Third, the Ardens argue that Forsberg was negligent in requesting an extension of the start of settlement negotiations when they had an interest in a prompt settlement. We hold that there is no evidence that Forsberg was negligent regarding its judgment decision to extend the start of settlement negotiations.

The case

The Ardens and Wade and Anne Duffy were neighbors in Shelton. In December 2011, Roff Arden shot and killed the Duffys’ puppy. He claimed that the shooting occurred after the puppy and another dog chased him and Bobbi down their driveway. The Mason County Sheriff’s Office investigated, and referred the investigation to the prosecutor’s office to pursue animal cruelty charges...

The Duffys filed suit against the Ardens in May 2012 after settlement negotiations broke down. The lawsuit apparently alleged that the Ardens were liable for (1) willful conversion of the dog, (2) malicious injury, (3) intentional or reckless infliction of emotional distress, and (4) gross negligence and willful or reckless property damage. The Ardens requested insurance coverage for the lawsuit from Hartford under the liability portion of their homeowners’ insurance policy. Hartford initially refused to defend the lawsuit based on an intentional act exclusion in its policy.


We assume, without deciding, that an attorney representing an insured in a reservation of rights case has an obligation to consider the insured’s “personal” interests, even though they may not directly affect the merits of the case. Under Tank, only the insured is the defense attorney’s client, and a defense attorney arguably cannot disregard his or her client’s interests. However, a client may have many, sometimes competing, interests that the attorney must consider in the exercise of his or her professional judgment in defending the case. Under the attorney judgment rule, the question is whether an attorney’s particular judgment decision is within the range of reasonable alternatives or whether the attorney was negligent during the decision-making process. Clark County Fire, 180 Wn. App. at 704.

Here, the Ardens had an interest in the prompt settlement of the case. However, they were not willing to settle unless Hartford funded the settlement. Therefore, the Ardens’ predominant interest was having Hartford fund any settlement. When the Duffys made a settlement demand before providing their discovery responses, the Ardens’ two interests conflicted. Without discovery responses, Hartford did not have enough information to evaluate the settlement demand. Therefore, without an extension of time there was no possibility that Hartford would agree to fund the $55,000 settlement demand.

The evidence shows that Forsberg made a judgment decision about the best way to obtain a settlement of the Duffy lawsuit with Hartford funding that settlement. Forsberg determined that the best strategy was to obtain an extension of time for responding to the Duffys’ settlement demand until after Hartford had enough information to determine the settlement value of the claim. The Ardens presented no evidence that this decision was outside the range of reasonable alternatives from the perspective of a reasonable, careful, and prudent attorney in Washington or that Forsberg somehow failed to exercise reasonable care in making that judgment decision. Accordingly, we hold that there is no evidence that Forsberg was negligent in delaying the beginning of settlement negotiations.

(Mike Frisch)

May 3, 2016 in Clients | Permalink | Comments (0)

Dressed Down

A disbarment reported in the May 2016 California Bar Journal

CHARLES GREG LESTER [#160084], 62, of Covina, was disbarred Jan. 15, 2016 and ordered to comply with rule 9.20 of the California Rules of Court and make restitution.

The State Bar Court found Lester culpable of six counts of misconduct in two client matters including committing acts of moral turpitude by misappropriation and failing to maintain respect due to the courts, report judicial sanctions to the State Bar, deposit client funds in a client trust account, maintain client funds in a client trust account or pay client funds promptly.

In 2013, Lester showed up for his client’s criminal trial more than five hours late. When questioned by the judge, he gave a number of excuses including that his father had threatened his life the night before and he had overslept and could not dress himself when he woke that day due to having had surgery a couple months before. Finding his excuses implausible, the court imposed $1,000 in sanctions, which Lester did not pay and did not report to the State Bar.

In a second matter, Lester requested a client pay him $1,000 to cover the cost of two depositions, then cashed the check and used it for his own purposes. After he settled the client’s case for $15,000, he misappropriated the client’s money. He did not repay any portion of the $11,071.60 settlement or the $1,000 in costs.

He was ordered to pay $12,071.60 plus interest in restitution.

He had two prior records of discipline. In 1998, he was suspended for misconduct that included misappropriation, issuing checks against insufficient funds, and failing to perform with competence, maintain complete records of all funds, securities, and other properties of a client coming into his possession or deposit client funds in his trust account. In 2001, he was suspended for convictions stemming from three separate criminal cases.

(Mike Frisch)

May 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Secret Agent

A reciprocal three-year suspension was imposed in Massachusetts based on a sanction of disbarment imposed in Connecticut

On August 5, 2014, the Superior Court for the Judicial District of Hartford issued an order disbarring the respondent from the practice of law in Connecticut. The Connecticut court’s order was based on findings that the respondent falsely informed his clients that an expert hired by the clients on the respondent’s recommendation was affiliated with national intelligence agencies and had used part of the fees paid by the client to bribe a federal postal inspector; falsely informed a Connecticut Superior Court and the Statewide Grievance Committee that the expert was a covert federal operative; and attempted to cause the expert to testify in a manner contrary to the truth. The Court found that the respondent violated the Connecticut equivalents of Mass. R. Prof. C. 3.3(a)(1) and (3), 3.4(b) and 8.4(c) and (d).

The Connecticut order described the misconduct

On or about June 17, 2011 a meeting took place between Oliver and [client] Zaczynski at a McDonald's restaurant. The meeting place was chosen by Oliver. Zaczynski thought the meeting place odd and brought a recording device in order to record the conversation between them. While the recording is of poor quality, it is clear that Zaczynski was complaining about amount of the bills which both Oliver and  [purported expert] Michaud had been submitting.

During this meeting, Oliver apparently produced a copy of a book written by the popular author Robert Ludlum and he asked Zaczynski to review a particular chapter or section in which he claimed he was mentioned. At or around the same time during this meeting, Michaud called Oliver on his cellphone and spoke directly to Zaczynski. After her call, in a curiously surreptitious tone, Oliver explained to Zaczynski that Michaud was affiliated with several national intelligence agencies. He suggested that Michaud had been able to convince the federal authorities to " stand down" and ultimately indicated that there was a postal inspector named " Vega" who demanded a bribe in order to cease an investigation into Zaczynski, Tyler, and New England Pellets. Oliver told Zaczynski that part of the money which he had paid as legal fees had been used to pay off Vega. He suggested that Michaud's influence was being used to Zaczynski's advantage and further that she had prevented the pending investigation from spreading into activities of the company in New Jersey. Oliver emphasized the need to keep Michaud as a consultant and the importance of resolving the fee dispute with her.

From the Hartford Courant is this report

A Hartford attorney and an accountant who allegedly claimed to be a doctor are accused of scheming to defraud clients the lawyer represented in a federal lawsuit.

Attorney James Oliver and Cynthia Michaud were arrested by Simsbury police in late June. Oliver is charged with third-degree larceny and accessory to third-degree larceny. Michaud is charged with third-degree larceny, second-degree false statement and unauthorized use of the title doctor.

They were arraigned Thursday in Superior Court in Enfield, although they did not appear publicly before the judge. Their cases were continued to Aug. 7. Both are free after posting $10,000 bail.

According to warrants for Oliver and Michaud's arrest, Michaud falsely claimed in a variety of documents to be a doctor, a certified internal auditor and a certified forensic examiner. Oliver encouraged his clients to hire her, even though he knew she was lying about her qualifications, the warrant states.

Michaud said the allegations against her are untrue. Oliver and his attorney declined to comment on the case.

Stephen Zacynski and Jason Tynan, owners of New England Pellet LLC, told police that Oliver and Michaud misrepresented Michaud's education and qualifications to bill them for services that were not performed.

Although Zacynski and Tynan claimed that they were defrauded of more than $340,000, police charged Michaud only for misrepresenting herself as a doctor and billing $2,550 for "medical damages analysis." No other details about the medical services are explained in the warrant.

Michaud admitted to a Simsbury detective that she was not a doctor and had never been to medical school, the warrant states. She said claiming she was a certified auditor and forensic examiner would lend more credibility to her business, CJM Associates, and would make the forensic investigative side of the business more plausible, the warrant states.

Zaczynski told police that Michaud's credentials came into question during the civil case. She was called to provide a deposition attesting to her education and expertise, but Oliver kept him from attending the deposition, he told police.

Zaczynski said he learned from a transcript of the deposition that Michaud was not a doctor and did not have the certifications in accounting that she claimed to have, the warrant states.

Oliver was aware that Michaud's credentials were false because he represented her in April 2009 when she was terminated from an accounting firm for lying about her credentials in a job application, the warrant states.

New England Pellet was sued in federal court by its supplier, New England Wood Pellet of New Hampshire. The lawsuit claims New England Wood Pellet was not paid for nearly $400,000 in wood pellets it delivered to New England Pellet.

The same lawsuit also accuses New England Pellet of pre-selling a substantial amount of pellets to customers but failing to deliver. The case is has not been resolved.

New England Pellet also got into trouble with state Attorney General Richard Blumenthal and the state consumer protection commissioner after people who had paid New England Pellet in advance said they did not get the pellets they ordered. That case was settled in 2010 when New England Pellet agreed to pay at least $55,000 in restitution to 250 customers.

(Mike Frisch)

May 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Multiple Requirements Imposed

A single justice of the Maine Supreme Judicial Court has imposed a laundry list of requirements on an attorney based on complaints in two matters.

[Client] Artkop alleged that Attorney Lavi was disorganized, failed to return phone calls, brought the wrong file to a discussion meeting, and was repetitive at the few meetings he did attend. Artkop also asserted that Attorney Lavi had been unreachable by phone and failed to return their file. The Artkops had paid Attorney Lavi $1,335, inclusive of a filing fee, to handle their bankruptcy matter.

He failed to initially respond to the Artkop complaint.

The sanctions

Attorney Dale L. Lavi is suspended from practicing law in Maine for two years, commencing May 2, 2016. All but thirty days of that suspension is suspended, subject to the following conditions:

  1. Before May 31, 2016, Attorney Lavi shall:
    1. Watch or listen to the recording of the December 7, 2012 "Sole Practitioner CLE" of the Board of Overseers of the Bar and Maine State Bar Association, and shall so certify to monitor MacLean (see Section 4 below) that he has done so, provided that the recording is made available to him by the Board of Overseers of the Bar or the Maine State Bar Association.
    2. Meet or exceed the roster requirements of the Maine Commission on Indigent Legal Service (MCILS), regardless of whether he may elect to become re-rostered with MCILS;
    3. Execute a contract with the Maine Assistance Program (MAP), focused on office practice management issues and any other issues as may be directed by MAP, and shall execute appropriate releases allowing MAP's Director to confirm to Bar Counsel that Attorney Lavi is in fact complying with that MAP contract; and
    4. Have included as an additional requirement in that MAP contract that he shall participate in dialectical behavioral training (DBT) and/or cognitive behavioral training (CBT).
  2. On or before June 1, 2016, Attorney Lavi shall join the American Bar Association (ABA) list serve of "solosez;"
  3. On or before June 1, 2016, Attorney Lavi shall execute a release(s) allowing Bar Counsel to confirm his attendance and receipt of any counseling services he receives during that two-year suspension period;
  4. During that period of his suspended suspension, Attorney Lavi's practice will be overseen and supervised by a monitor, specifically Attorney Christopher K. MacLean of Camden, Maine, subject to the conditions of a Monitoring Order, as approved and incorporated into this Order. In that monitoring process, Attorney MacLean will also incorporate and use assistance from Attorney Jeremy Pratt, also of Camden, as deemed necessary and appropriate;
  5. When he is allowed and authorized to practice law, Attorney Lavi shall engage in a "limited practice" comprising only child protection, criminal, and family matters. And, even within those categories, he shall undertake no financially complicated cases. Upon appropriate motion and resulting order of the Court, Attorney Lavi may expand his practice beyond those three categories, only as may be so ordered on a case-by-case basis.
  6. Attorney Lavi shall have monitor Attorney MacLean screen and review each family matter that Attorney Lavi initiates or accepts to undertake, or already has pending as of June 1, 2016;
  7. On or before August 1, 2016, Attorney Lavi shall participate in at least six hours of live CLE credit hours concerning office practice management;
  8. Attorney Lavi shall attend a live iteration of any similar sole practitioner or related practice management CLE that is presented by the Board of Overseers and/or MSBA through May 2, 2018; and
  9. At least every four weeks, commencing during the week of June 6, 2016, Attorney Lavi shall contact Bar Counsel Davis directly by telephone to confirm the status of any or all of the above requirements and to answer any other related questions concerning his practice management and related Issues, as directed by Bar Counsel.

Query: Is compelled participation in the ABA listserv a form of cruel and unusual punishment? (Mike Frisch)

May 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Up In Smoke

An Arizona attorney has agreed to a one-year suspension'in an agreement accepted by the Presiding Disciplinary Judge

In consolidated Counts One–Three, Ms. Ward represented multiple clients related to matters involving the medical marijuana industry. Natural Earth Providers, Inc., won a lottery to become the medical marijuana dispensary license holder for the Cordes Junction Community Health Analysis Area. Clients Jennifer Sanchez, John Romero, and Hector Martinez claimed ownership to N.E.P. Holding, who claimed it owned half of Natural Earth Providers, Inc., and Timothy Theiss claimed he owned the other half of Natural Earth Providers, Inc. Thereafter, “QPAC LLC” agreed to invest monies. Ms. Ward’s son, Michael Colburn was a member of QPAC, LLC, however, it is unknown who or what “QPAC, LLC” represents and it is disputed what the monies were for.

Ms. Ward conditionally admits she entered into a written fee agreement on July 2, 2013, with the above mentioned clients which included a Conflict of Interest Consent and Waiver, which she later attempted to retract to benefit herself. The fee agreement specifically precluded Respondent from representing any of the individuals (“Represented Parties”) against one another. It stated, “For the avoidance of doubt, our Firm would withdraw its representation of either Represented Party with respect to any such litigation, arbitration, or similar dispute.” She also avowed her firm, if litigation occurs, would “continue to protect confidential information learned during our Firm’s representation of each Represented Party and will not share this information with any other Represented Party.”

In spite of that clear language, Ms. Ward took the representation of Represented Parties in litigation against other Represented Parties when disputes arose between the parties. Ms. Ward filed multiple civil suits and engaged in extensive litigation against those clients. She engaged in conflicts of interest and revealed confidential information to the disadvantage of the clients, without the clients’ consent.

In Count Four, Ms. Ward’s son established Compassionate Care Dispensary (CCD), Inc., to become a medical marijuana dispensary in Winslow, AZ. Ms. Ward’s daughter-in-law Erica Brown, incorporated CCD and CCD applied to the Arizona Department of Health Services for a registration certificate. CCD needed to secure a location that met state requirements. John Gally owned the Winslow Water Building. CCD contacted Mr. Gally, who agreed to allow CCD to use the building for a dispensary and CCD applied for a conditional permit through its principal officers and directors, which included Ms. Ward’s son, Michael Colburn and her husband, Steven Smigay. Ms. Ward represented CCD in obtaining the required permit, which Mr. Gally supported. The conditional permit was obtained on May 17, 2011. Mr. Gally then asked Ms. Ward to represent him in some lease issues regarding other properties he owned. Ms. Ward represented Mr. Gally from July 2011-April 2014, without written communication of the scope of representation or basis for fees. Since 2007, Mr. Gally rented the Winslow Water Building to a water conditioning business. Ms. Ward thereafter, conditionally admits she engaged in conflicts of interest regarding CCD, and her client, Mr. Gally, while promoting her personal interests in promoting her son’s and husband’s interests in CCD. She further admits she did not provide competent representation to Mr. Gally and failed to communicate the scope of the representation and basis or rate of fee and expenses.

In Count Five, Tempe police executed a search warrant at the Medical Education Resource Center in March 2013. Ms. Ward arrived during the search and informed Tempe police she was the Medical Education Resource Center’s lawyer. In September 2013, a forfeiture action was filed by the Maricopa County Attorney’s Office regarding $7,900.00 seized during the search. Ms. Ward filed a claim on behalf of her firm for $7,185.00 as monies paid by law firm clients to be held in the IOLTA trust fund account for legal services under the clients’ retainer agreements with the law firm. Ms. Ward asserted the monies were seized from the premises of the law firm and identified clients as Jane and John Does. The court issued a forfeiture order, which Ms. Ward moved to set aside based on improper service.

Ms. Ward asserted to the court that the door to her law office was marked as “Suite C” and “Law Office” and she used that office as an auxiliary location when working on client matters. Tempe police reports reflected that no identifying markings were contained on the office doors when executing the search. The court ultimately set aside the forfeiture order and ruled entitlement to the monies was to be determined in civil court. Thereafter, the State sought to identify Ms. Ward’s clients to notify them of the forfeiture action involving their monies. Ms. Ward declined to provide that information. Ms. Ward also failed to provide her trust account records to the State Bar for the period January-May, 2013, as requested and stated her clients were not able to pay a retainer at the start of representation and by the time clients paid, she had earned the fees and therefore, the trust account rules were not implicated. Ms. Ward’s lack of disclosure is troubling for many reasons including an appearance of fraudulently benefiting herself through the crimes of another, as Ms. Ward’s position contradicted her position in the forfeiture action. She conditionally admits she could have been clearer in her court filings and submits any misrepresentations and or inconsistencies in those filings were attributed to a serious injury she experienced on August 23, 2013, and that she has been heavily medicated for pain since that time.

On many contested facts, Ms. Ward conditionally admits her misconduct violated Rule 42, ERs 1.1 (competence), 1.5 (fees), 1.6 (confidentiality of information), 1.7 (conflict of interest; current clients), 1.8 (conflict of interest; current clients; specific rules), 1.9 (duties to former clients), 1.15 (safekeeping property), 3.1 (meritorious claims and contentions), 8.1 (bar admission and disciplinary matters), 8.4(d), and Rules 43(a) and (b) (trust account), and Rule 54(d) (failure to comply with the State Bar’s request for information).

The approved sanction was not satisfying to the complainants

Here, the complainants appear to misapprehend the purpose of attorney discipline. It is not the function of attorney discipline to resolve the multiple civil claims which may be existent against Ms. Ward for her unethical actions. In this proceeding, she has acknowledged violating multiple ethical rules and agreed “there were actual injuries” to them, the legal profession, the legal system and the public. She acknowledges a selfish motive, a pattern of misconduct, multiple offenses, her refusal to acknowledge the wrongful nature of her conduct, the vulnerability of the victims, and her substantial experience in the practice of law.

While multiple facts may be disputed, the fact Ms. Ward acted unethically and caused injury is not. A hearing may well result in a lengthier suspension. It is not the forum however for resolving civil damages which complainants may be entitled to. Ms. Ward has acknowledged her unethical actions and the one (1) year suspension is a reasonable agreement.

The Phoenix New Times had reported on the charges. (Mike Frisch)

May 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, May 2, 2016

Bin Laden

Anorther disciplinary summary from the California Bar Journal

PATRICK THOMAS SANTOS [#265982], 33, of North Hollywood, was placed on two years’ probation and faces a one-year suspension if he fails to comply with the terms of his probation. The order was effective Oct. 16, 2015.

He stipulated that he drove to the residence of the girlfriend of a planned defendant in a lawsuit Santos had not yet filed and served. Santos rummaged through and removed various documents from the recycling bin in the girlfriend’s driveway, without her permission. A neighbor photographed the incident. The Los Angeles city attorney’s office charged Santos with misdemeanor tampering with refuse and trespass; he was found guilty. Santos told a hearing officer he did not know he was prohibited from going through the recycling bin and asked that the city attorney’s office tell the girlfriend that he would drop the civil suit against the planned defendant if she dropped the criminal charges. The matter did not involve moral turpitude but did involve misconduct warranting discipline.

In aggravation, Santos had been disciplined for failure to perform legal services and other misdeeds in a collections case which ended with a default judgment against his client. That resulted in harm to the client. Santos also displayed indifference in his interactions with the hearing officer that showed a lack of insight into his wrongful conduct.

In mitigation, he provided letters from nine character witnesses, though some of them were unaware of Santos’ prior discipline. He also signed a pretrial stipulation.

(Mike Frisch)

May 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Rules Of The Road

A disbarment reported by the California Bar Journal

DUANE D’ROY DADE [#140379], 58, of Riverside, was disbarred Jan. 28, 2016 and ordered to comply with rule 9.20 of the California Rules of Court. 

The State Bar Court found Dade culpable of seven counts of misconduct. In March 2014, Dade was deposed by the State Bar regarding the purchase of several motorcycles, a Porsche Cayenne and a RV. During a deposition, Dade testified that he paid $20,000 for the Porsche. Despite that, claimed to have purchased the Porsche for only $12,500 in a vehicle title/registration application he signed under penalty of perjury. At trial, Dade attributed the difference to a mistake even though he had the opportunity to review the document before testifying.

In addition, in May 2010, he obtained $8,000 from the sale of a Harley Davidson, $5,000 of which he used to purchase an Electra Glide and $3,000 of which he used to refurbish it. In his application for title he stated he had only paid $2,500 for it.

Dade made other misrepresentations as well. In a 2010 bankruptcy petition, he did not disclose the sale of the Porsche, the Harley Davidson or that he had sold the Electra Glide for $13,500 and had possession of the RV during the relevant time period. In May 2012, he submitted a job application in which he failed to disclose he had graduated from law school and practiced law.

In addition, on May 9, 2013, he testified under oath during a State Bar deposition that he had not owned a motorcycle between 2009 and October 2012. He also declared under penalty of perjury on five quarterly reports to probation that he had been truthful when he knew he hadn’t.

Dade had four prior records of discipline. On Aug. 5, 1999, he was suspended after stipulating that in two instances he failed to properly maintain his client trust account. In May 2010, he was suspended after being found culpable of 12 acts of misconduct, including six counts of moral turpitude, in two client matters. In October 2010, he was suspended for misconduct in two separate matters including misappropriation, improperly disbursing funds to his client without the knowledge or consent of another party claiming the funds and failing to maintain client funds in his trust account or promptly pay client funds.

In August 2011, he was suspended again for the unauthorized practice of law and failing to take steps to avoid prejudice to his client.

(Mike Frisch)

May 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

More On California Bar Operations

From the May 2016 California Bar Journal

Board panel hears pros and cons of dividing State Bar roles

By Laura Ernde
Staff Writer

Discussions about the future of the State Bar ramped up last month, with a bar task force receiving input from dozens of witnesses, including a proposal to separate the bar into two organizations – one to handle regulatory matters and one to house “trade association” functions.

Meanwhile, members of the Assembly Judiciary Committee indicated they want to see significant reforms of the agency this year as part of their oversight of the State Bar.

However, Chief Justice Tani Cantil-Sakauye cautioned against any hurried decisions for the organization, which is an arm of the California Supreme Court.

“A move to de-unify the State Bar, without the benefit of a deliberative process and without input from the California Supreme Court, would be an extraordinary move for the largest state bar in the world,” Cantil-Sakauye said. “Given the critical work the State Bar does in the area of access, fairness, and diversity, it would not be fair or just to the people of the state if the State Bar’s governance issues were unreasonably rushed.”

At two public hearings April 4 and 25, the Board of Trustees’ Governance in the Public Interest Task Force heard a variety of opinions on deunification, the bar’s governance structure and the implications of a recent U.S. Supreme Court decision. The group is tasked with making recommendations that will help the bar meet its primary mission of public protection. Additional meetings are planned for May 26 in San Francisco and June 14 in Los Angeles.

The task force plans to submit a report to the Board of Trustees by July. The report will then go to the Supreme Court, the Legislature and the governor.

At the April 4 meeting, Trustees Dennis Mangers and Joanna Mendoza advocated restructuring the State Bar so its regulatory functions – including attorney admissions and discipline – would be overseen by a 13-member board made up of seven non-lawyers and six lawyers. A private nonprofit would take on unspecified “trade association” functions. The proposal called for the State Bar to work out the details for implementation by January 2019.

“I want to stimulate a conversation that needs to happen. I believe that what we are proposing will inure to your benefit and that of the public,” Mangers told the task force.

Mangers also presented the proposal to the legislative committee, accompanied by a letter signed by him, Mendoza, Trustee Glenda Corcoran and former Vice President Heather Rosing. The committee approved the bar’s annual fee bill, but lawmakers said they plan to add reform language during the legislative process.

Some members of the bar’s 16 voluntary Sections have also expressed support for the idea of deunification, citing the challenges of implementing open meetings and public records rules this year. At the same time, the self-funded groups are struggling to bear the burden of increased overhead charges.

“The real question is whether the Sections can survive if things remain as they are,” Donna Parkinson, a member of the Business Law Section, told the task force. “We are losing people and we’ll lose more. There are other places where this work can be done.” 

She and other business law section members have created the California Lawyers Guild to house a new statewide, voluntary organization.

However, a letter from the Council of State Bar Sections indicated that five other sections have voted against deunification. Another five sections have not voted but have expressed “grave reservations” about their viability without the bar’s infrastructure and buying power.

Former State Bar Executive Director Judy Johnson also questioned the viability of an independent statewide organization. She predicted the largest local bars in San Francisco and Los Angeles would dominate the discussion.

“United we stand, de-unified we may dissipate and lose our national standing,” Alameda County Bar Association CEO Tiela Chalmers said, clarifying she was not speaking on behalf of the association.

Other speakers expressed concern about preserving the State Bar’s efforts to increase access to justice. Some said those efforts would be diminished in a voluntary organization reliant on membership dues.

When the Nebraska State Bar Association was deunified in 2013, the organization was forced to focus on lawyer service programs to build back membership revenue, Executive Director Liz Neeley said.

“To survive, a voluntary bar must focus inward, not at the courts,” she said. “The courts and the legal system will bear the brunt of the cuts.”

Second District Court of Appeal Justice Laurie Zelon, who clarified she was not speaking for the court, said access to justice should be considered part of the bar’s public protection mission. Zelon founded the California Commission on Access to Justice, which is staffed by the State Bar.  

Los Angeles City Attorney Mike Feuer argued that access to justice can’t be separated from the bar because it is “deeply embedded” in what the profession stands for.

Ted Schneyer, professor emeritus at the University of Arizona James E. Rogers College of Law, who has studied bar governance issues, said the unified bar structure has long been problematic because it creates confusion about how to regard the bar as an institution.

He described a history of tension between public board members, who view the unified bar as a regulatory agency, and lawyer board members, who see its purpose as promoting the profession.

There has been increased attention to the issue nationwide since the U.S. Supreme Court’s decision last year in North Carolina Dental Board v. Federal Trade Commission, 135 S.Ct. 1101 (2015).

The decision raises antitrust questions for regulatory organizations composed of a majority of “market participants.” The bar’s current Board of Trustees is comprised of 13 lawyer seats and six non-lawyer seats.

Robert Fellmeth, the executive director of the Center for Public Interest Law at the University of San Diego School of Law, called the bar a “walking antitrust violation.” He advocated court review of bar activities that restrain trade, including setting the pass rate for the bar exam.

At the task force’s first public hearing in February, the group heard the pros and cons of how other State Bars and regulatory agencies are organized and governed.

In California, radical changes have been proposed numerous times since the unified State Bar was created in 1927.

According to historical documents, just eight years into its existence the legislature conducted a plebiscite of attorneys on the question, “Do you favor repeal of the State Bar Act?” Attorneys voted 5,457 to 1,899 against abolishing the bar.

In the 1980s, the bar’s then volunteer system for handling attorney complaints came under intense criticism. Independent discipline monitor Fellmeth came up with a blueprint for revamping the system that led California to establish the State Bar Court. To this day, the court remains the only full-time court in the country to adjudicate lawyer disciplinary matters.

Another effort to abolish the bar came in 1996, when Sen. Quentin Kopp authored legislation calling for a vote of attorneys to abolish the unified bar. The proposal was defeated by a 2 to 1 vote.

(Mike Frisch)

May 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Case Nonsuited When Counsel Fails To Appear To Be Deposed

The Connecticut Appellate Court affirmed the nonsuit in a legal malpractice case

This is a legal malpractice and breach of contract action. In a previous action, the defendant, Adele R. Jacobs, rendered legal services to the plaintiff, Warren Null, which allegedly failed to meet the applicable standard of care. The plaintiff then retained a new attorney both to replace the defendant in the underlying action and to pursue the claims in the present case. During a protracted discovery period in the present case where many discovery related motions were filed, the trial court ordered the plaintiff’s counsel to be deposed because his testimony was necessary to explore the plaintiff’s malpractice claim. When counsel failed to appear for a deposition, the court found that the plaintiff had violated this order and, pursuant to a motion, rendered a judgment of nonsuit as a discovery sanction. On appeal, the plaintiff claims that the court improperly (1) rendered a judgment of nonsuit as a discovery sanction because, contrary to the court’s findings, his counsel exercised due diligence to comply with the court’s order and the sanction was not proportional to the violation; and (2) denied his postjudgment motion to reargue. We affirm the judgment of the court.


We conclude that the court did not abuse its discretion in concluding that the sanction of nonsuit was proportional to the plaintiff’s violation. The record establishes that the plaintiff was on notice as early as March 20, 2014, that the defendant might seek to take [new counsel] Kolesnik’s deposition. Notwithstanding the court’s explicit finding that Kolesnik’s testimony was central to the plaintiff’s claims against the defendant, and the court’s accompanying order that he be deposed by July 21, 2014, Kolesnik never appeared.

(Mike Frisch)


May 2, 2016 | Permalink | Comments (0)

Associate Who Used Confidential Information Faces Discipline

Also on tap this week at the Ohio Supreme Court

Cincinnati Bar Association v. Christopher D. Wiest, Case no. 2016-0263
Hamilton County

The Board of Professional Conduct has recommended that Kentucky attorney Christopher D. Wiest be suspended for two years, with 18 months stayed under certain conditions. The board found Wiest, who is admitted to practice law in Ohio and Kentucky, used confidential information he received from a company his law firm represented to make stock trades that benefitted him financially and also disclosed the confidential details to federal investigators.

Client Requests Research on Potential Acquisitions
As an associate attorney for Thompson Hine, Wiest provided “environmental due diligence” research for a client, The Stanley Works. The company went through a merger in late 2009 and became Stanley Black & Decker, and Wiest continued doing similar work for the new company.

On Oct. 21, 2010, the firm contacted Wiest to explore whether Stanley should acquire a company called InfoLogix. The confidential analysis was code-named “Project Icon.” According to the professional conduct board’s report, the firm agreed to do the project on Oct. 7.

Also on Oct. 21, InfoLogix publicly disclosed that the stock exchange Nasdaq had decided to remove, or de-list, the company from its service because of non-compliance with a minimum requirement. InfoLogix stock was suspended from trading when the exchange opened that morning. A separate company offered to quote InfoLogix stock through its service beginning the same day.

Lawyer Purchases InfoLogix Stock
Wiest, who had three personal accounts for buying and selling stocks, made several trades of InfoLogix stock between Oct. 28 and Dec. 16, 2010, in his 401(k) account through the law firm. Wiest bought 10,000 shares of InfoLogix stock on Oct. 28. He had acquired 35,000 shares by Nov. 16. Two days later, he sold 13,510 shares of the stock at a loss of about $17,700.

On Dec. 15, 2010, Stanley Black & Decker announced publicly it had acquired InfoLogix. The next day, Wiest contacted an attorney and, based on the attorney’s advice, sold his remaining InfoLogix stock for a profit of $56,291.97 before taxes.

Board Finds Two Rule Violations
The Cincinnati Bar Association investigated and filed a disciplinary complaint against Wiest, alleging four professional conduct rule violations.

The professional conduct board dismissed two of the allegations, but found Wiest violated two other rules. The board’s report stated Wiest acknowledged he provided confidential information to the Securities and Exchange Commission (SEC) and testified to the SEC about that information in response to a subpoena. However, the subpoena in this case didn’t lift Wiest’s duty of confidentiality to his client, the board explained.

The board determined Wiest took confidential information from the client gained through his employment and provided that information to the SEC without his employer’s consent and for the purpose of trying to limit his exposure in an insider-trading investigation. This was an illegal act, violating R.C. 1333.81, that reflected adversely on his honesty and trustworthiness, the board concluded in describing Wiest’s first rule violation.

Wiest told the board his InfoLogix stock purchases weren’t made because of confidential information, but instead because of the stock’s de-listing and volatility. He also maintained he had reason to think the Stanley acquisition of InfoLogix wasn’t going forward.

However, the board reasoned that Wiest bought the stock based on the confidential information he had received and that he knew or should’ve known the deal’s uncertainty prohibited him from purchasing the stock. Wiest’s dishonest and deceitful actions for his own financial benefit amount to professional misconduct, the board concluded.

Noting concern for the public’s trust in the legal profession and that “a fully stayed suspension would send the wrong message” to the legal profession and the public, the board recommended a two-year suspension with the final 18 months stayed if Wiest doesn’t commit any more misconduct.

Briefs Filed Under Seal
Wiest has objected to the board’s findings and recommended sanctions, and the Cincinnati Bar Association has responded. However, at the request of the parties, the Court sealed the briefs.

- Kathleen Maloney

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

Representing the Cincinnati Bar Association: Ann Lugbill, 513.784.1280

Representing Christopher D. Wiest: George Jonson, 513.241.4722. reported on the allegations.

The legal troubles continue to mount for Kenton County attorney Chris Wiest, the former mayor of Fort Mitchell accused of insider trading by the Securities and Exchange Commission.

He settled the case with the SEC in May 2014 but now faces possible disciplinary action by the Ohio Supreme Court.

The Cincinnati Bar Association has asked the state's highest court to discipline him for "misconduct (which) has brought disrepute to the legal profession."

The case will be argued on May 4. (Mike Frisch)

May 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Writing Strictly As A Friend And A Christian Who Wants To Help"

The web page of the Ohio Supreme Court previews a bar discipline matter scheduled for argument this week:

The Board of Professional Conduct has recommended to the Ohio Supreme Court that Milford attorney John Hauck be indefinitely suspended from the practice of law for his part in helping a man to write and send a letter to his mother and stepfather in violation of a civil protection order (CPO).

Attorney Sends Letter to Friend’s Family
Richard Ellison was convicted in 2005 for aggravated burglary, kidnapping, and abduction following an incident involving his mother and stepfather, Jeanne and Edmund Lee. When Ellison was about to be released from prison in 2010, the Lees obtained a five-year CPO, which prevented Ellison from contacting the Lees in any way, including through another party.

In March 2014, Hauck, who had befriended Ellison, sent a letter to the Lees on behalf of Ellison. The letter, signed by Hauck and printed on letterhead bearing his name and “attorney at law,” specifically requested that the Lees cancel the CPO. (Ellison and Hauck didn’t know at the time that Edmund Lee had died in late 2010.)

Hauck claims in his brief to the Court that the letter was “largely composed by … Mr. Ellison, but it was signed and fully adopted, as his own writing ….” The attorney also explains he and Ellison collaborated for several months to prepare the letter, which was intended to “encourage the Lee family to reconcile with their son ….”

Immunity Granted to Attorney
When she received the letter, Mrs. Lee contacted the police, and a criminal complaint was filed against Ellison alleging he had violated the protection order. Ellison was subsequently arrested and jailed on the charge. The prosecutor in the case said Hauck also could’ve been charged criminally for violating the protection order, but he was granted immunity if he testified against Ellison at trial. Ellison ultimately entered a plea before trial, so Hauck never had to testify.

Hauck Denies Four of Five Allegations
The Cincinnati Bar Association (CBA) filed a complaint against Hauck alleging multiple violations of the attorney Rules of Professional Conduct.

The board found that Hauck gave Ellison his time and advice, edited the letter, and then adopted it as his own by signing it. These actions established an attorney-client relationship, the board states in its report. But Hauck didn’t act competently as Ellison’s attorney when he encouraged his client to send the letter instead of seeking to review the CPO and then discouraging Ellison from violating it. The board also concluded that Hauck committed an illegal act by helping his client to violate the CPO, that he tried to deceive the Lees by sending the letter under his signature and on attorney letterhead, and that he harmed the justice system when he disregarded the Hamilton County court’s order.

Of the five violations found by the board, Hauck denies all but one – practicing law while not in good standing with the Ohio Supreme Court. He admits his license was suspended at the time the events took place. However, he argues the reason for the suspension was because the Court didn’t notify him that his biennial registration was due.

Attorney’s Objections, Bar Association’s Responses
In his objections to the board’s report and recommended sanction, Hauck maintains Ellison was his friend and not his client. Hauck points to the disclaimer he included in the letter that stated he was “… writing strictly as a friend and a Christian who wants to help,” as evidence he was not acting as Ellison’s legal representative.

However, the CBA argues that Hauck’s behavior suggests otherwise, including when he:

  • Used his personal letterhead for the letter sent to the Lees
  • Used his attorney identification card to enter the jail to visit Ellison
  • Wrote three letters to the Terrace Hill Police Department addressing Ellison’s case.

Additionally, Ellison had asserted attorney-client privilege existed between himself and Hauck when he learned Hauck was ordered to testify in the criminal case against him.

While Hauck states that he doesn’t dispute he helped Ellison in writing the letter, he also claims the board sets forth no law to support its ruling that he aided and abetted Ellison in an illegal act.

As far as the CPO itself, Hauck claims R.C. 3113.31, Ohio’s civil protection statute, is unconstitutional. He reasons he can’t be found to have violated the professional conduct rules if the violations are predicated on his disregard of an unconstitutional court order.

Because Hauck didn’t assert the claim in the trial court that issued the protection order, the CBA counters the right to raise it now is waived. And, the CBA also maintains Ohio courts have repeatedly held that the civil protection statute is neither vague nor does it violate any constitutional guarantees.

- Rachael S. Ingram

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

Representing the Cincinnati Bar Association: Richard Goldberg, 513.321.2662

John W. Hauck, pro se,513.621.0805

May 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Boston Bombing Fraud Proof Sufficient To Prevent Sentence Stay

The full Massachusetts Supreme Judicial Court affirmed a single justice who had denied a stay of sentence to a defendant who used the Boston Marathon bombing as a vehicle to defraud

The charges stemmed from an attempt by the defendant and his half-brother to defraud One Fund Boston, Inc. (One Fund), of approximately $2 million by claiming that a long-deceased aunt had been injured in the 2013 bombing at the finish line of the Boston Marathon. The judge imposed a State prison sentence of from three years to three years and one day on the conspiracy charge and concurrent sentences of three years' probation for the attempted larceny and identity fraud charges, to run from and after the committed sentence.

The defendant appealed from his convictions and filed in the trial court a motion for stay of the execution of his sentence pending appeal. The judge denied the motion. After his appeal was docketed in the Appeals Court, the defendant filed a motion for stay of the execution of the sentence in that court. We granted the defendant's application for direct appellate review of his appeal, and thereafter, the defendant filed a motion for stay in this court. The matter was referred to the single justice, who denied the motion.

The defendant failed to make a sufficient showing on the merits

To prevail on this aspect of his appeal from the single justice's order, the defendant must demonstrate a reasonable possibility of success on his challenge to the conspiracy conviction, the crime for which the judge imposed the committed portion of the sentence...the defendant's burden is to demonstrate as well a reasonable possibility of success on his appeal from the identity fraud conviction and that reversal of the identity fraud conviction vitiates the conspiracy conviction. We are not persuaded that he has done so.

(Mike Frisch)


May 2, 2016 | Permalink | Comments (0)