Tuesday, February 3, 2015

Judge Banned From Bench

The Indiana Supreme Court has permanently removed a Muncie judge from office.

While most of the misconduct involved abusing the rights of litigants, there was this issue with the biological father of the judge's twins

On August 2, 2013, Respondent visited J.W.'s Facebook page and saw a picture of J.W. with his girlfriend, A.S., from a trip in April 2013.

On August 2, 2013, Respondent posted the following comment to the picture displayed on J.W.'s Facebook page: "Must be nice to be able to take such an expensive trip but not pay your bills. Just sayin' ."

Respondent's comment was visible to and seen by other Facebook users who had access to J.W.'s page. Several other Facebook users posted comments in reaction to Respondent's statements.

Respondent's posted remarks were visible for at least an hour before the comments were deleted by Respondent.

Respondent acknowledges that by making an injudicious comment on the Facebook page of J.W. on August 2, 2013, she violated Rule 1.2 of the Code of Judicial Conduct.

And this incident when J.W. came to pick up the twins from day care

 Respondent arrived at the daycare shortly after J.W. and the other sheriffs deputy arrived.

For approximately fifteen (15) to twenty (20) minutes, Respondent yelled at J.W. in the daycare and in the daycare parking lot, making various derogatory comments about J.W. At that time, Respondent believed, per her understanding of the paternity order, J.W. should have picked the children up at her house rather than the daycare.

Respondent's conduct was disruptive and was observed by daycare employees and other parents who had come to pick up their children from the daycare.

The judge also used a racial slur in an interaction with J.W.'s girlfriend.

Details here from WISHTV.com. (Mike Frisch)

February 3, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

No Fee Shift For "Unnecesary Attorney Hours"

The New York Appellate Division for the First Judicial Department affirmed dismissal of a claim brought against O'Melveny & Myers

Plaintiffs alleged that defendant attorneys (OM & M), who represented their preparatory school in an earlier federal action alleging the school's negligent supervision and retention of a football coach, made intentional misrepresentations in the federal action that proximately caused plaintiffs' attorneys to spend unnecessary attorney hours to establish an equitable estoppel argument opposing the school's motion to dismiss on statute of limitations grounds. The parties to the federal action ultimately entered into a confidential settlement, and plaintiffs voluntarily discontinued their claims, with prejudice, as against all the named defendants therein. Plaintiffs' counsel in the federal action had a contingency fee arrangement with the plaintiffs, and was evidently compensated accordingly.

Even assuming any unwarranted attorney hours were, in fact, expended by plaintiffs' counsel on account of OM & M's challenged representations made to the court, any burden in rendering such additional attorney hours, and corresponding injury, was shouldered by plaintiffs' counsel, who worked pursuant to a contingency fee. Plaintiffs, upon settlement of their federal action, paid the same attorney fees to their counsel regardless of the hours their counsel had expended on the matter. Thus, plaintiffs have not alleged facts as would show OM & M's alleged misrepresentations proximately caused them any injury (see  Strumwasser v Zeiderman, 102 AD3d 630 [1st Dept 2013]). Indeed, regardless of the alleged deceit by OM & M in federal court, the burden always remained with plaintiffs in such court to establish, in the first instance, a basis for their equitable estoppel argument, which warranted the pre-dismissal motion early discovery they conducted. To the extent plaintiffs' discovery was inhibited at all due to alleged lost notes prepared by one of the school's initial investigators, the attorney hours expended on such issue were not attributable to the alleged OM & M misrepresentations. Moreover, plaintiffs' spoliation motion was pending in the federal court, and a final determination of such motion was interrupted by plaintiffs' settlement of the action.

Plaintiffs' second cause of action, alleging OM & M was unjustly enriched by its receipt of attorney fees from its client, and that such fees should be disgorged in light of the alleged unwarranted attorney hours OM & M caused plaintiffs' counsel to expend in the federal action, fails to state a claim, as plaintiffs have not shown how OM & M's alleged fraud enriched OM & M at plaintiffs' expense (see Edelman v Starwood Capital Group, LLC, 70 AD3d 246, 250-251 [1st Dept 2009], lv denied 14 NY3d 706 [2010]).

Law360 reported on the trial court disposition. (Mike Frisch)

February 3, 2015 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

Loans From The Dead

An attorney who had practiced for over fifty years without prior discipline was suspended for a year and a day by the Pennsylvania Supreme Court.

The attorney represented the Fern Knoll Cemetery Association, a non-profit corporation that "owns and operates a cemetery in Dallas, Pennsylvania."

The attorney took "regular, substantial" loans from the cemetery association over a nine year period without obtaining written consent for the transactions.

He did not advise the client to consult counsel, document the transactions, agree to pay interest or make arrangements for repayment.

The Disciplinary Board found him unremorseful. He claimed the violations were "unintentional mistakes" and that his client was "cash rich."

The attorney explained that the loans were a desperate act "arising in connection with his wife's multiple sclerosis and stroke, the complications of which led to her death in 2001."

The misconduct involved violations of Rule 1.8(a) and 8.4(c), not misappropriation.  (Mike Frisch)

February 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, February 2, 2015

Harms Way

Another disbarment reported by the California Bar Journal

Harms was disbarred after his default was entered for failing to respond to a notice of disciplinary charges against him. Because he did not seek to have the default set aside within 180 days as required under rule 5.85 of the State Bar’s Rules of Procedure, he was disbarred and the charges against him were deemed admitted.

Harms committed an act of moral turpitude by falsely reporting to the State Bar that he had fulfilled his MCLE requirements.

He had one prior record of discipline, a 2006 private reproval for signing his client’s name under penalty of perjury on two declarations and filing the declarations with bankruptcy court.

(Mike Frisch)

February 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Disbarred; Claim Of Malicious Prosecution Rejected

A sanction reported in the February 2015 California Bar Journal

JON M. ALEXANDER [#129207], 66, of Crescent City, was disbarred Nov. 21, 2014 and ordered to comply with rule 9.20 of the California Rules of Court.

A hearing judge recommended Alexander’s disbarment finding that while serving as the district attorney of Del Norte County he engaged in an ex parte meeting with a defendant who was represented by counsel in a pending criminal matter. Alexander appealed to the Review Department, claiming among other things that he was the victim of malicious prosecution by the Office of Chief Trial Counsel and that the judge was biased.

In upholding the hearing judge’s recommendation, a three-judge review panel wrote that Alexander did not prove judicial bias and that “the high standard of conduct expected of prosecutors, who act as the gatekeepers to the fair administration of justice, was lacking in this case.”

In addition to finding that Alexander engaged in an ex parte meeting with the defendant without the permission of the defendant’s attorney, the hearing judge concluded that Alexander committed acts of moral turpitude because he didn’t tell anyone about the meeting and denied it occurred when a prosecutor asked him about it. When presented with a surreptitious recording made of his communication with the defendant, he then claimed to have forgotten about the conversation.

In mitigation, Alexander submitted extensive evidence of his good character and involvement in community service.

Alexander had three prior records of discipline. In 1996, he received a private reproval for failing to comply with the terms of an Agreement in Lieu of Discipline that followed misdemeanor convictions for driving without a driver’s license and driving with a suspended license. In 2003, in default matters in two cases, Alexander was found to have practiced law while not entitled, committed an act of moral turpitude and failed to return unearned fees, cooperate with the bar’s investigation or maintain a current address with the bar.

In 2011, he was suspended for misconduct in three matters, including failures to perform legal services competently, respond to reasonable client status inquiries, return a client file, refund unearned fees or to inform a client of significant developments in his case. He also improperly communicated with a judge and engaged in the unauthorized practice of law.

(Mike Frisch)

February 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Another Convicted Former Prosecutor Suspended

The Pennsylvania Supreme Court has ordered an interim suspension of an attorney as a result of his criminal conviction.

Reuters had details on the criminal case

A Pennsylvania woman sentenced to jail for mistreating her adopted children will be allowed to go home six days a week to care for her biological children when she starts her sentence this month.

Kristen and Douglas Barbour adopted two children from Ethiopia and within six months were arrested in 2012 for allegedly harming them. The 5-year-old boy was malnourished and the 13-month-old girl had multiple broken bones, prosecutors said.

The couple, who lived in Franklin Park, Pennsylvania, pleaded no contest to endangering the welfare of the children in exchange for other criminal charges, including assault, being dismissed. Douglas Barbour was a deputy state attorney general at the time of his arrest.

Kristen Barbour was sentenced to up to a year in jail but last week Allegheny County Judge Jeffrey Manning modified the sentence to allow her to leave jail for eight hours, six days a week to care for the couple's children. They are aged 4 and 6, according to local media.

Prosecutors, in court papers obtained on Tuesday, objected to the home furlough and had sought a stiffer sentence.

A light sentence "would send a message to the community that endangerment that led to observable suffering and permanent damage is not something that the criminal justice system takes seriously," prosecutors wrote in the court papers.

"We believed that she was responsible for the majority of the abuse," Allegheny County District Attorney spokesman Mike Manko said.

Douglas Barbour, who resigned as deputy state attorney general last year, served no jail time. He was placed on probation and works at a family business.

In court documents, he said he could take care of the children should their mother be sent to jail, adding to the prosecutors' objections.

Kristen Barbour's sentence begins on Oct. 20.

The children from Ethiopia have since been adopted by another family.

(Mike Frisch)

February 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Liar Liar

An attorney who made "copious knowing and intentional representations to courts, parties and witnesses" has been disbarred by the Maryland Court of Appeals.

Mixter’s pattern and practice has been to intentionally and knowingly mislead courts, witnesses and parties, and his interactions have brought disrepute to the legal profession. Mixter has made hundreds of repeated misrepresentations, to include: falsely asserting in the twenty-four motions listed in Appendix 3 that the oppositions were properly served with subpoenas outside of Maryland; falsely certifying in the fifty-three certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving discovery disputes; willfully omitting material information in connection with the twelve motions listed in Appendix 7 [court details specific instances of false statements in litigation]...

The court rejected the attorney's contention that disbarment is reserved only for misappropriation cases. (Mike Frisch)


February 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor To Prosecuted To Disbarred

A former drug prosecutor whose personal problems with drugs led to criminal conduct has been disbarred by the Georgia Supreme Court.

He entered no contest pleas to drug possession and weapons charges.

The court had rejected his petition for voluntary discipline of suspension last October.

In his petition, Csehy states that he was personally affected by the 2005 Brian Nichols courtroom shooting and, as a result, turned to alcohol and drugs. He went through rehabilitation in 2009, but in 2011 he was brutally attacked by a former client and suffered severe injuries, after which his addictions reasserted themselves. Csehy always had carried at least one firearm on his person or in his vehicle. In 2012 he made arrangements to bring illegal drugs to a woman he believed he knew, but it was part of a sting operation and Csehy was arrested and charged with several drug and firearm violations. Csehy underwent treatment with a psychiatrist, joined Alcoholics Anonymous, and sought treatment from the State Bar's Lawyer Assistance Program. As conditions of his probation, Csehy is subject to random drug and alcohol testing. 

The proposed one to two year suspension was deemed insufficient by the court

Despite Csehy's recitation of these mitigating factors, recent events that have occurred since the filing of Csehy's petition indicate that he is apparently still representing clients and that his rehabilitation might not have been successful. This Court has received a report indicating that, on September 15, 2014, Csehy appeared in the Superior Court of Cobb County as counsel for a defendant in a jury trial. The trial court noticed that Csehy had bloodshot eyes, was perspiring profusely, and was unable to stand without leaning on something. As a result, the trial court ordered Csehy to submit to immediate drug testing which showed that he had cocaine and amphetamines in his system. Based on the test results, the trial court held Csehy in contempt and had him incarcerated for five days. 

(Mike Frisch)

February 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, January 31, 2015

No Fees On Alleged Implied-In-Fact Services Agreement

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of a law firm's suit for fees.

In August 2010, Stephen R. Berry of Berry Law advised Kraft that it might have an antitrust claim worth tens of millions of dollars against News Corporation, News America Marketing FSI LLC, and News America Marketing In-Store LLC (collectively “News Corp.” or “News”). (All referenced facts come from the complaint.) The claim related to possible monopolization and tying in the “sale of in-store promotion services and free-standing-insert coupons placed in newspapers.” Kraft’s chief litigation counsel, Douglas Cherry, asked Berry for further legal analysis of the possible claim.

Berry Law then prepared a 42-page evaluation memorandum for Kraft’s top management analyzing liability and damages issues. Berry alleges that he completed that memo by November 10, 2010. At about the same time, Cherry noted that the matter was “moving pretty fast” and that he wished to brief Kraft’s general counsel about the matter. The complaint says that “upon information and belief, [the evaluation memorandum] was forwarded at the very least to Kraft’s General Counsel in early 2011.” It was presumably Cherry who did the forwarding.

In response to an email from the law firm seeking a fee agreement, Kraft's counsel stated in part

we have never paid for that work as far as I know for any outside counsel.

The firm later claimed fees due in an amount over $191,000 on a theory of implied-in-fact contract,

The court

To state a claim for breach of an implied-in-fact contract, Berry Law must plausibly allege that it rendered Kraft valuable services; that Kraft accepted, used, and enjoyed those services; and that the circumstances “reasonably notified” Kraft that Berry “expected to be paid” by Kraft...

Kraft told Berry that it would not compensate him for work completed prior to management approval. No compensation is due where the “plaintiff did not contemplate a personal fee, or the defendant could not reasonably have supposed that he did.” Bloomgarden, 479 F.2d at 212. Rather, in view of Kraft’s unequivocally expressed position on preliminary work, Berry cannot reasonably have contemplated a fee for work completed before Kraft moved forward, nor could Kraft reasonably have known Berry contemplated any such payment. Instead, Berry completed the memorandum and other legal work in the hope that Kraft would retain him as counsel in the event that Kraft “moved forward.” Because Berry Law’s “services were rendered simply in order to gain a business advantage,” its quasicontract claim fails. Id. at 211.

(Mike Frisch)

January 31, 2015 in Billable Hours, Clients | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2015

More Than A Legal Assistant

An attorney who facilitated the unauthorized practice of a disbarred lawyer was suspended for two years by the New York Appellate Division for the Second Judicial Department.

The "legal assistant" was disbarred as a result of a felony criminal conviction.

Notwithstanding the respondent's claim that [Craig] Heller merely performed work as a "legal assistant," the Special Referee found, and we agree, that Heller was continuing to practice law, and that, by permitting Heller to do so, the respondent assisted a non-lawyer in the unauthorized practice of law. The respondent testified at the hearing that he hired Heller because Heller knew everything about the respondent's law practice, given his prior legal experience with real estate matters, and as a bankruptcy lawyer. Indeed, the respondent relied upon Heller's legal knowledge and expertise to allow Heller great autonomy in the performance of his work, and to delegate to him responsibility to act as the principal contact with clients with little or no supervision. Further, the respondent authorized Heller to use the assumed name, "Craig Miller," when communicating with the firm's clients and others, in part, to conceal Heller's status as a disbarred attorney. The credible evidence adduced at the hearing establishes that Heller misled the respondent's clients to believe that he was an attorney named "Craig Miller." The record also reflects that the respondent authorized Heller to improperly solicit clients on behalf of the respondent's firm in violation of 22 NYCRR 691.10(a). In view of the respondent's admissions, and the evidence adduced, we conclude that the Special Referee properly sustained all charges. Accordingly, the Grievance Committee's motion to confirm the Special Referee's report is granted.

The attorney had a record of prior discipline. (Mike Frisch)

January 30, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Disbarment For Lying To One Client

The Maryland Court of Appeals has imposed an indefinite suspension of an attorney for misconduct in representing a client in a medical malpractice claim.

The attorney blew the statute of limitations, failed to advise and made misrepresentations to the client and settled her claim of legal malpractice without giving the required written notice of the desirability of consulting with independent counsel.

The court majority noted its precedents on sanctions for dishonest conduct

We now turn to the difficult and serious task of determining the appropriate sanction. Where, as here, MLRPC 8.4(c) is the flagship of a flotilla of violations, our cases of arguably similar ilk are strewn over the sanctions landscape. Petitioner recommends that Respondent be disbarred. Respondent argues that a less severe sanction is more appropriate...

Respondent’s conduct involved several distinct violations of the MLRPC. He failed to communicate with [client] Wisniewski regarding his difficulty in obtaining an expert, the dismissal of her case, and the expired statute of limitations. He failed to withdraw from the case when he realized that she may have had a cause of action against him. He lied to her about the existence of a fictitious settlement.

The court majority weighed aggravating and mitigating factors in declining to order disbarment.

Judge Battaglia, joined by Judge Watts, dissented

Although Shapiro’s violations do not involve multiple clients and cases, his misconduct spans a multiple-year period. He actively misrepresented the status of the case to Wisniewski for five years and failed to inform her of the difficulties he had in finding a doctor to execute a Certificate of Merit. Not only did Respondent lie to Wisniewski about the status of her case, his lies spiraled: he told her that the case had settled when no such settlement had occurred, but ultimately he did not have the money available to fund the “settlement.” Respondent only told Wisniewski the truth about her case—that it had been dismissed, that the statute of limitations had passed, and that no settlement occurred—after she filed a complaint with the Attorney Grievance Commission. Respondent violated additional MLRPC by settling a potential legal malpractice claim with Wisniewski without advising her in writing of the desirability of seeking the advice of independent counsel or obtaining her informed consent, confirmed in writing, to the essential terms of the transaction.

Accordingly, I would order Respondent’s disbarment.

The attorney had been reprimanded in 2012 for tax violations. (Mike Frisch)

January 30, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Out Of Whack

A suspension without possibility of reinstatement for 30 days was imposed by the Iowa Supreme Court for an attorney's trust accounting deficiencies.

The problems came to light during an audit but were not cured.

Then, there were bounced checks that led to a follow-up audit.

The investigation

The auditor examined the documents and found the funds in [the attorney's] trust account were nearly $8000 short. In several instances, [her] records showed clients were credited for funds received, but no corresponding deposits were made to the trust account. Exacerbating the problem, [she] failed to maintain records mandated by court rules and neglected her obligation to perform monthly trust account reconciliations. Further, the auditor determined [she] had commingled personal funds—derived from an operating loan from her father—with client funds in the trust account. [She] explained that she considered the clients’ funds she didn’t deposit in the trust account "as funds being removed from" that operating loan. However, she completely depleted the loaned funds and withdrew client funds before earning them. In April 2013, [she] deposited funds to bring the trust account into balance.

 The court considered mitigating factors but determined that a period of suspension was appropriate

[The attorney's] trust account was, in her words, "out of whack" for months. Her trust account deficiencies were not an isolated incident, and therefore, her conduct is more in line with cases in which we have imposed a suspension.

A prior reprimand was treated as an aggravating factor. (Mike Frisch)

January 30, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Misuse Of Confidential information Draws Suspension

From the web page of the Ohio Supreme Court

A Cincinnati attorney used secrets gleaned  from a long-time client of his law firm to assist the client’s relative in an  estate dispute and also improperly mingled funds of another client with his  personal investment account.

The  Ohio Supreme Court unanimously ruled that Richard G. Ward be suspended from  practicing law for one year.  The court  agreed with most of the findings of the Supreme Court’s Board of Commissioners  on Grievances and Discipline, which considered the matter in December 2013, and  recommended the one-year suspension. (The board was renamed the Board of  Professional Conduct in January 2015.)

The  board found Ward had violated attorney standards by accepting employment in  which his professional judgment was affected by his own business interests, dishonestly  engaging in his dealing with his client, using a client’s confidences and  secrets to that client’s disadvantage, and failing to hold client property  separate from his own.

Representation  of Koons       The  infractions stem from Ward’s participation in the legal matters of the deceased  John F. “Bud” Koons, principal owner of Central Investment Corporation (CIC), which  Koons grew into the nation’s seventh largest bottler for Pepsi-Cola. Richard  (Dick) H. Ward, Richard G. Ward’s father, had a close personal relationship  with Koons since childhood, and Dick Ward served on the board of directors of  CIC and represented Koons in many legal matters.

Dick Ward and other lawyers formed the Drew  & Ward law firm. The firm handled several matters for Koons. Dick Ward  served as a trustee for at least 11 of 12 trusts Koons established and funded  the trusts with CIC stock. When one of the Drew & Ward partners left the  firm in 2004, Ward joined his father’s firm. There he assisted in some of  Koons’ personal and businesses matters, including litigation that threatened the Pepsi bottling business.

Within  a year of Ward joining the firm, CIC sold its business for approximately $400  million to a Pepsi affiliate and formed a limited liability company (LLC) to  hold the proceeds of the sale. Koons asked Dick Ward to disentangle himself  from the CIC business, and Dick Ward became a consultant to the LLC and had a  separate agreement to provide legal services. Shortly after the arrangement  Koons died.

As  part of the business separation Dick Ward resigned as a co-trustee to a major  trust created by Koons’ parents. Allegations central to the misconduct charges  brought against the younger Ward were generated by dealings with this trust.

Issues Related  to the Trust       The  trust, created in 1976, was divided into two separate shares, one for Koons’  family and the other for the family of his sister, Betty Lou Cundall. The  parents made Koons the trustee for the entire trust, and it was primarily  funded with CIC stock. In 1984, Koons sold the CIC stock that funded the  Cundall family share, and invested the proceeds in various stocks, bonds, and  cash. He did not sell the CIC shares of the trust benefitting his family.

In  1992, the trust was divided into two separate trusts, and the assets designated  for the Koons family, CIC stocks, went into a trust for the Koonses. The assets  for the Cundall family went into a separate trust for them. Koons remained  trustee for the Cundall family trust, until his death, but resigned as the  trustee for his family trust. He was replaced by three successor trustees,  including Dick Ward.

After  Koons died, Dick Ward asked his son to review the Cundall family trust to  determine how it was distributed. Ward worked with files in possession of the  Drew & Ward law firm, and with the accountant for Koons who also assisted  with the CIC operations. Ward questioned the disparities in values of the trust  and Koons’ responsibilities as the trustee.

He  also expressed concern about his father’s liability exposure for serving as a  co-trustee in the event of litigation arising from the disparities. Dick Ward  relayed these concerns to the other trustees informing them that his son had  participated in the review and Dick Ward resigned as a trustee.

Ward  was a personal friend and attorney to Michael Cundall, Betty Lou Cundall’s son,  and a trust beneficiary. Ward approached Cundall and his sister about the trust  and suggested the possibility of a lawsuit arising out of Koons’ handling of  it. He sent Michael Cundall a proposed fee agreement to represent him that  varied from a contingent fee of 10 percent to 25 percent depending on the  extent of the litigation. Cundall agreed and the fee changed over the course of  the representation increasing to a 50 percent contingency.

Potential  Conflict?       Ward contacted a local bar association ethics  hotline to discuss whether his business interests and his father’s prior  involvement created an issue, and based on the call Ward concluded that he did  not need to disqualify himself. Ward discussed the potential conflict with Drew  & Ward shareholders and directors. At their direction, Ward prepared a memo  discussing any potential conflicts.

The memo centered on an analysis of his  situation in the context of the Ohio Supreme Court’s  1998 Kala  v. Aluminum Smelting & Refining Co, Inc. decision. He concluded neither he nor the firm needed to disqualify themselves in  a lawsuit against Koons’ estate for its handling of the Cundall estate. The  firm authorized Ward to file the lawsuit.

In the Courts       Koons’ defense  moved to disqualify the Drew & Ward law firm, but the trial court did not  act on the motion. Instead it dismissed the case against Koons. Appeals brought  the case to the Supreme Court, which ultimately determined all the Cundall’s  claims were barred by the statute of  limitations.

Representatives of Koons’ estate sued Drew  & Ward, as well as Dick and Richard Ward for malpractice. The Wards agreed  to indemnify the law firm against any malpractice claims, and they left the  firm in 2009, establishing their own firm. The malpractice suit was settled for  $5 million.

Supreme Court’s  Ruling       In its per curiam decision, the Supreme Court cited the Kala ruling expressing that “a fundamental principle in the attorney-client  relationship is that the attorney shall maintain the confidentiality of any  information learned during the attorney-client relationship.” Further, an  attorney who leaves a firm to represent the opposing party is presumed to take  any confidences gained with the former relationship and share the confidences  with the new firm.

The court wrote that the Kala decision set up a test for matters when an attorney leaves a  client and joins another law firm that wants to represent the opposing parties  in matters involving the former client. In this case, Ward did not leave Drew  & Ward, but instead was seeking to have him and the firm represent Cundall  because Koons had terminated its relationship with Drew & Ward and then  died.

Because Drew & Ward represented Koons  personally and his trust and business interests, Ward was presumed to have  shared in the confidences and secrets gained by the firm. The court found Drew  & Ward had no institutional screening method that would prevent the confidential  information Koons provided to the firm from flowing to Ward. And while Ward  argued that he did not represent Koons, the court decided the professional  conduct board correctly determined that Ward was in possession of Koons’  confidential information even as he sought to represent Cundall against Koons.

“Here the evidence shows that Ward knowingly  used confidential information that Drew & Ward obtained during its  representation of Koons’ various interests to solicit and secure Cundall as a  client and to formulate his legal strategy in resulting litigation without  Koons’ consent,” the court wrote.

The court noted that Ward received more than  $237,000 in fees for representing Cundall, and stood to receive millions more  had the lawsuit seeking $300 million in damages succeeded. For this the court  deemed Ward violated three disciplinary rule: the prohibition of a lawyer from  knowingly revealing a confidence or secret of his client; the prohibition of a  lawyer from knowingly using the confidence or secret of a client to the clients  disadvantage, and; the prohibition of a lawyer from knowingly using a  confidence or secret of a client for the lawyer’s own advantage unless the  client consents.

In addition, the board charged Ward with  violating disciplinary rules that require the consent of the client if a  lawyer’s professional judgment might be affected by his own financial or  personal interests, and barring a lawyer from engaging in conduct that aversely  reflects on the lawyer’s fitness to practice law.

The board investigation found that Ward was  motivated to “settle the score” with Koons for removing his father from Koons’  business affairs and that led him to disregard the evident conflict of interest  in using the confidences gained by his father and the law firm. The court  agreed that he violated the two disciplinary rules.

The court also found Ward acted improperly in  a real estate transaction involving Michael Cundall’s wife, Ann, as she was  selling a house. Ward attended a real estate closing and testified he was  directed to put the $113,000 in net sales proceeds into his client account  until Ann found another parcel of real estate to purchase. Ward put $10,000  into an account held by Michael, purportedly at Ann’s request, and transferred  the rest to his own securities account as a loan.

Ann disputed the transaction and denied  giving Ward any instructions to invest the proceeds of the sale. He paid the  money back plus interest to the Cundalls. The board found Ward’s account not to  be credible and was contradicted by the Cundalls account of the transaction.  The board found and the court agreed that Ward violated the rules requiring a  lawyer to hold property of clients separate from the lawyer’s own property.

“Having  considered Ward’s misconduct, the aggravating and mitigating factors present in  this case, and sanctions we have imposed for comparable misconduct, we believe  that the board’s recommended sanction will adequately protect the public from  future misconduct,” the court concluded.

2013-1979. Disciplinary Counsel v. Ward, Slip  Opinion No. 2015-Ohio-237

The above summary was prepared by Dan Trevas.

The Cincinnati Business Courier had this story on the underlying family dispute.  The article notes

Known to his friends as "Bud" Koons, the Cincinnati native was a high-profile business leader who ran Burger's Midland Advertising agency in the 1960s, when the brewery's sponsorship of Cincinnati Reds games made Burger a household name. His son, Jeff, is now a county commissioner in Palm Beach, Fla. His daughter, Deborah, is the widow of Grateful Dead founder Jerry Garcia.

What a long strange trip its been. (Mike Frisch)

January 30, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prescription For Disbarment

The Pennsylvania Supreme Court has disbarred an attorney who took fees, abandoned clients and failed to participate in the ensuing bar process.

The Disciplinary Board

Respondent charged fees to represent clients and subsequently failed to perform services. He failed to act with diligence and promptness and failed to communicate with his clients. He failed to protect his clients' rights when he failed to return unearned fees on multiple occasions. Respondent was convicted of three counts of contempt of court for failing to appear, and failed to report his conviction to Office of Disciplinary Counsel within 20 days. Respondent's contempt convictions occurred while he was on disciplinary probation in a prior, separate matter.

Throughout his representation of his clients, Respondent engaged in repeated misrepresentations, omissions and deceit. His behavior demonstrates a longstanding pattern of neglect, deception and theft, and it appears that after converting unearned fees from numerous clients, Respondent essentially abandoned those clients and ceased all communication. His failure to respond in any way to the charges of misconduct, and his failure to appear at the disciplinary hearing, are acts which demonstrate a continuation of his abandonment of his responsibilities and obligations to his clients and the legal profession.

The Supreme Court does not tolerate attorneys who engage in conversion of entrusted funds and related misconduct, and has subjected such attorneys to lengthy suspension or disbarment.

He has been suspended on an interim basis since 2012. (Mike Frisch)

January 30, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2015

Certification Lapse Leads To Public Reprimand

The Louisiana Supreme Court has accepted a consent disposition and publicly reprimanded an attorney

 Respondent and the Office of Disciplinary Counsel ("ODC") submitted a joint petition for consent discipline in which respondent acknowledges that he published advertisements claiming to be a board certified bankruptcy specialist when, in fact, his certification had lapsed and been revoked.

(Mike Frisch)

January 29, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bank Robbing Attorney Consents To Disbarment

An attorney convicted of a series of bank robberies has agreed to disbarment by consent in Illinois:

On July 7, 2014, Respondent entered into a  guilty-plea agreement wherein he pled guilty to the offenses described above. In  the plea agreement, Respondent admitted that in each robbery, he entered the  bank wearing sunglasses, a scarf over his face, and gloves, and he brandished a  revolver. He demanded money from the tellers and obtained $7,290 from one bank,  $5,602 from the second bank, and $43,677 from the third bank. An officer of the  Missouri State Highway Patrol stopped Respondent’s vehicle following the third  robbery. When the trooper stepped out of his car, Respondent stepped out of his  car and fired four shots at the trooper. At least one shot struck the trooper in  the center of his chest. Fortunately, the trooper was wearing a protective vest  which prevented Respondent’s bullet from penetrating his body. He returned fire  and struck Respondent in the leg, causing Respondent to fall and lose possession  of his gun. Respondent was then arrested.

He is serving a prison sentence of over 24 years. (Mike Frisch)

January 29, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Man And Lis Pendens

As Paul Virgo of California once observed, there are few things in life that hold one's interest as compellingly as the topic of liens.

The District of Columbia Court of Appeals decided a case today that deals with the equally fascinating topic of lis pendens.

In a case of first impression, the court held that the filing of lis pendens notices as part of litigation brought in good faith was immune from later claims of tortious interference with contract.

The story

this case is essentially about a bitter dispute between two companies over the right to purchase certain real properties for investment purposes, stemming, in large part, from the personal rivalry between the companies‘ owners over the attention of one man. Vicky Lynn Karen operated a business venture with her former romantic partner LaMar Carlson (―Carlson‖), entitled VLK, LLC (―VLK‖), to purchase distressed properties in the District of Columbia for resale to developers. At some point, Carlson started dating Joan A. Alderman (―Alderman‖), who also owned a company, Havilah Real Property Services, LLC (―Havilah‖), which was engaged in essentially the same type of business as VLK. Karen believed that Carlson was conspiring with Alderman to buy property that Karen was interested in having VLK purchase, thereby, in Karen‘s view, hurting VLK‘s business interests to the benefit of Havilah and Alderman.

The holding

We hold that, in the District of Columbia, the act of engaging in litigation is conditionally privileged against a claim of tortious interference with contract and/or prospective advantage, meaning that it is a complete defense to such a claim if the defendant can establish that the prior litigation asserted a legally protected interest in good faith. If the prior litigation was pursued in good faith and therefore privileged, then the filing of a lis pendens ancillary to that litigation is also privileged. The converse is also true; if the litigation was not pursued in good faith, then the lis pendens is likewise not privileged. In other words, even if the jury is persuaded that an individual lis pendens may have been filed, in whole or in part, based on improper motives independent from the litigation, there can be no liability if the underlying lawsuit itself was asserted in good faith. In this case, whether VLK filed the Maryland lawsuit in good faith was a factual question for the jury to decide, and the jury was entitled to conclude that the Maryland lawsuit was not pursued in good faith and therefore not a privileged act, and thus that VLK was liable for damages proximately caused by the prior litigation, including damages occasioned by the filing of the thirty-one lis pendens related to that litigation.

The court affirmed the grant of summary judgment to VLK on a claim of malicious prosecution. (Mike Frisch) 

January 29, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 28, 2015

No Hot Tub But Hot Water

I have blogged recently on the subject of online public access to information about bar disciplinary hearings.

The Ohio Supreme Court has a nice feature - in its online listing of scheduled hearings, the reader can link to the disciplinary charges.

This recent charge caught my eye.

The client was arrested on charges of operating a vehicle while intoxicated. The attorney entered his appearance as counsel in the criminal case.

 The Cleveland Metropolitan Bar Association alleges that the attorney met with the client and her boyfriend. At the meeting, he called the client his "beautiful Irish girl" and told her he would resolve the case with a fine and no jail time.

The bar further alleges that he then called the client to ask if she was serious about the boyfriend and called her  "my sexy Irish girl."

He also allegedly repeatedly asked her to get into a hot tub with him.

The attorney had the case continued five times. The client became concerned that he was delaying things on purpose.

After an AA counselor accused the client of mixing Vicodin with alcohol, she called the attorney. He allegedly responded to the situation by again asking her to dine with him.

Her response

I don't want to go to f***ing dinner. I want you to take care of this. I paid you the f***ing money and I want you to take care of it.

The sexual solicitation ended after this incident.

The client entered a guilty plea ("against her better judgment") and appeared for sentencing. The attorney failed to show up for the sentencing.

When the court asked the client if she expected him to appear, she replied:

No. I've got a problem with him. He's been doing nothing but trying to get in my pants. I paid him $1,000 and he's doing nothing but messing with me, so--

The judge vacated the plea, appointed a public defender and told the client to report her concerns to the bar. Although she was initially reluctant, she eventually filed the bar complaint. (Mike Frisch)

January 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

"It Is What It Is"

The Oklahoma Supreme Court has suspended an attorney as a result of a guilty plea

[the attorney] entered a plea of no contest to one count of Publishing, Distributing or Participating in Obscene Material, and one count of Possession of a Controlled Dangerous Substance,

The Daily Mail had this story about the attorney in February 2013

An Oklahoma lawyer has been charged Tuesday with offering to reduce a female client's legal fees in exchange for having sex with the woman and her two teenage daughters. 

According to police, attorney Jeremy Oliver, of Wynnewood, sent his client text messages proposing to give her a $1,000 discount for sexual favors and/or nude pictures of the older girl, and $500 off for the 13-year-old.

When officers went to arrest Oliver Monday, a search of his home on South Johnson Lane turned up marijuana and several hundred naked photos depicting women, suggesting that there may be other victims out there, according to Garvin County Sheriff Larry Rhodes.

 The 33-year-old attorney has been under investigation for weeks, NewsOKreported. On Sunday, law enforcement officials were with his client when Oliver allegedly sent her a text message asking for sex with the girls and their lewd pictures.

 According to authorities, the attorney also sent his client a photo of his genitals.

 Police said that following his arrest, Oliver never denied the text messages or the drugs in his apartment, instead summing his predicament with the words, 'It is what it is.' 

Native American Times reported on the plea and sentencing 

A former attorney general for two western Oklahoma tribes was put on probation Wednesday after prosecutors dropped a felony charge stemming from accusations of reducing a client’s legal fees in exchange for sex with her underage daughter.

Chickasaw Nation citizen Jeremy Oliver, a resident of Wynnewood, Okla., received two years’ probation after pleading no contest to distributing obscene material and possession of marijuana.

According to the initial arrest report, Oliver offered via text message in February 2013 to reduce a client’s fees in exchange for nude photographs or sexual favors from the client’s 13- and 17-year-old daughters, as well as sexual favors from the client. Oliver also sent an obscene photograph of himself to the client while making the request. A search of his home at the time of the arrest uncovered several pounds of marijuana and several hundred nude photographs.
Despite having text messages that showed Oliver asking his client for a threesome with her daughter, prosecutors dropped a felony charge of soliciting sexual conduct with a minor via technology as part of a plea bargain. Garvin County District Attorney Greg Mashburn told the Daily Oklahoman Wednesday that the evidence “didn’t shake out” the way his office had intended.

Oliver was the attorney general for former Cheyenne and Arapaho claimant governor Leslie Wandrie-Harjo’s administration for more than two years. Prior to his appointment, he was the general counsel for the constitutionally-bound tribes’ legislature.
According to his LinkedIn account, Oliver is also the former attorney general for the Caddo Nation, headquartered in Binger, Okla.

Now that Oliver has a criminal conviction, his license to practice law in Oklahoma could be suspended by the state’s Supreme Court. He has been practicing law in Oklahoma since 2008.

Oliver could not be reached for comment Thursday morning.

The suspension is effective until final discipline is imposed. (Mike Frisch)

January 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suing Current Client Is Non-Waivable Conflict

An indefinite suspension with the right to apply for reinstatement after six months was imposed by the Maryland Court of Appeals.

The attorney was retained by a couple to pursue a claim arising from a motor vehicle accident and ended uo suing one client on behalf of the other

On September 21, 2012, Respondent filed in the Circuit Court for Harford County a civil action against Mrs. Ware on behalf of Mr. Ware. Then, on September 24, 2012, Respondent filed a separate action in the Circuit Court for Harford County on behalf of both Mr. and Mrs. Ware against BH Motors. On February 23, 2013, the Circuit Court consolidated the two civil cases pursuant to a joint motion filed by the respective defendants. Ultimately, both cases were dismissed.

Respondent admitted that his representation of Mr. Ware against Mrs. Ware created a conflict of interest. Although Respondent maintained that he discussed the conflict of interest with the Wares, the hearing judge found otherwise based on the credible testimony of Mrs. Ware, who testified that Respondent never discussed the question of a conflict with her. Respondent acknowledged that he should have instructed Mr. Ware to retain a different attorney, or referred the case to another attorney, in the lawsuit against Mrs. Ware. In any event, the hearing judge found that Respondent “plainly knew, or should have known of this obvious conflict and ignored it.”

The court found this involved a non-waivable conflict.

The attorney engaged in fee-related misconduct and failed to respond to a second complaint. (Mike Frisch)

January 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)