Thursday, April 26, 2018

Public Defender Bait-And-Switch Draws Short Suspension

The New Jersey Supreme Court has imposed a three-month suspension of a former public defender who pled guilty to charges related to his official duties

From the report of the Disciplinary Review Board

Each of these charges related to respondent’s offer of "better representation" to indigent clients for cash payments of additional fees.

On September 12, 2016, respondent appeared before the Honorable Richard F. Wells, J.S.C., Superior Court of New Jersey, Camden County. In return for the dismissal of the superseding indictment, he entered a guilty plea to the disorderly persons offense of obstructing the administration of law or other governmental function...

During respondent’s allocution, he admitted that, at the relevant time, he served as the Pennsauken Township Public Defender and obtained clients who were both "public defender clients" and private clients. He admitted knowing that it was responsibility, as the public defender, to ensure that individuals "understood their right to a public defender, and in lieu of that, obtaining private counsel." He also admitted using another person, his co-defendant, to converse with "individuals and to obtain their representation." Even though respondent knew it was his responsibility to explain to the clients their rights, he failed to do so in order to represent the individuals as clients."

 The Office of Attorney Ethics proposed a range of sanctions from public censure to a three-month suspension

The OAE stressed that respondent’s conduct, which involved more than a single act, was "reprehensible and sustained" - a "continuing course of dishonesty," and that he abused his status as a public officer. As to mitigation, the OAE noted respondent’s lack of a disciplinary record and his agreement to forfeit his employment with the Township of Pennsauken and any future employment with the State.

The DRB recommendation was not unanimous

Member Gallipoli voted to recommend disbarment, finding despicable, the preying on such vulnerable clients. Member Zmirich voted to impose a one-year suspension. Member Rivera voted to impose a six-month suspension.

In an unrelated matter, the court followed the DRB recommendation to reduce a reciprocal sanction from Pennsylvania from a year and a day to three months. 

In New Jersey, leniency rules the day. (Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

As Maine Goes

The Maine Supreme Judicial Court is seeking comments on a proposal to revise Rule 1.10 to allow for screening as a solution to imputed conflicts of interest

The Advisory Committee recommends amending Rule 1.10(a) to conform  to subsection (a) as currently written in the ABA Model Rules. The purpose of  the change is to adopt the screening protocols that apply to potential conflicts within a firm due to a lawyer’s former association with another firm. No other  changes are recommended, and the Committee specifically recommends  retaining for clarity the sentence currently found in Maine Rule of Professional  Conduct 1.10(d) but not found in subsection (d) of the Model Rules—"For
purposes of Rule 1.10 only, ‘firm’ does not include government agencies”—and  retaining subsection(e), not currently found in the ABA Model Rules.

Subsection (e)

If a lawyer or law student affiliated both with a law school legal  clinic and with one or more lawyers outside the clinic is required to  decline representation of any client solely by virtue of this Rule 1.10,  this rule imposes no disqualification on any other lawyer or law  student who would otherwise be disqualified solely by reason of an  affiliation with that individual, provided that the originally  disqualified individual is screened from all participation in the matter  at and outside the clinic.

(Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Brother 's Complaint Leads To A Reciprocal Suspension

A reciprocal sanction of a six-month suspension without automatic reinstatement has been imposed by the New York Appellate Division for the First Judicial Department

Respondent was administratively suspended in Massachusetts in 2000 for failure to pay required registration fees and again in 2009 for failure to cooperate with a disciplinary investigation of an unrelated matter. Neither administrative suspension has been lifted and respondent remains suspended in Massachusetts.

In March 2010, respondent was publicly reprimanded by the Connecticut Superior Court arising from the 2009 disciplinary proceeding in Massachusetts and based upon his using client funds for his own personal purposes, as well as accepting a loan from a client without proper documentation and conflict waiver. By order dated May 29, 2012, this Court, pursuant to former Rule 603.3, imposed reciprocal discipline and publicly censured respondent (97 AD3d 117 [1st Dept 2012]).

By order entered March 28, 2017, the Supreme Judicial Court of the Commonwealth of Massachusetts for Suffolk County suspended respondent for six months for professional misconduct committed during the course of a probate proceeding.

The probate case

Respondent's discipline in Massachusetts arises from misconduct he committed in connection with a probate proceeding related to the settlement of his late father's estate. In or about 2007, the Probate Court for Suffolk County appointed respondent executor of his father's estate. Respondent and his brother were the only beneficiaries of the estate. As executor, respondent was required to file both an inventory and an accounting of the estate, which he failed to do, despite repeated demands from his brother.

In September 2008, several months after the accounting was due, the court ordered respondent to file the inventory and accounting by November 28, 2008 but respondent failed to do so. In or about February 2009, respondent's brother moved to have him held in contempt. Respondent failed to appear at the March 12, 2009 contempt hearing and he was found in contempt for failing to comply with the court's order directing him to submit an inventory and accounting for the estate. He did not appeal this finding. Respondent was directed to pay $500 in attorney's fees and fined $50 per day until the inventory and accounting were filed. The contempt hearing was continued on May 7, 2009 but respondent again failed to appear on that date and the court issued a capias and a further judgment of contempt by which respondent was ordered to pay $2,500 forthwith. The $50 per day fine remained in effect. The contempt hearing was continued on July 9, 2009 and again, respondent failed to appear. He was again found in contempt and ordered to pay attorney's fees of $1,000 and $5,500 in sanctions to his brother and a second capias was issued for his arrest.

In or about December 2009, respondent prepared an inventory, a proposed accounting which he demanded his brother's attorney assent to within seven days, absent which he would file them with the court, and paid $500 in partial payment of the attorney's fees awarded under the contempt judgments. Counsel required more time to review both and raised questions about certain items in the proposed accounting. Respondent did not respond to this inquiry and on December 29, 2009, he filed the inventory but not the proposed accounting, which, according to the Hearing Officer was improper in form, inaccurate and incomplete.

In September 2013, after learning that his brother filed a request for investigation with the Massachusetts Bar Counsel, respondent filed what he styled as a "revised first and final account" for his father's estate and a petition for an order of complete settlement, in response to which his brother filed objections. In April 2014, respondent resigned as executor of his father's estate. At the time of the disciplinary proceedings, no successor had been appointed, the estate had not been fully settled, respondent had not made any further payments toward the attorney's fees or sanctions imposed by the probate court, and the contempt findings against him had not been purged.

(Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

More Than Avoidance

The Indiana Supreme Court suspended an attorney without automatic reinstatement

We find that Respondent, Joseph Patrick Hudspeth, engaged in attorney misconduct by neglecting clients’ cases, making dishonest statements to current and prospective clients, and failing to timely respond to the Commission’s demand for information. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement.

There were two client complaints, failure to respond and

Two websites maintained by Respondent falsely represented his experience, specialization, and other aspects of his legal practice. More specifically, Respondent falsely claimed that “he had 35 years of experience in the [social security] industry,” falsely used the plural “attorneys” to describe the members of his firm even though Respondent was a solo practitioner, and falsely claimed to be a specialist in areas of the law in which he held no certification of specialty (and, in most instances, had little or no experience).

Sanction

we cannot subscribe to Respondent’s reductive characterization of his misconduct as “avoidance.” (Pet. for Review of Sanctions at 10). This argument simply fails to account for Respondent’s affirmative, willful, and repeated acts of dishonesty to his clients and to the public.

The parties’ respective positions on sanction differ largely on the question of whether Respondent should be suspended with or without automatic reinstatement. Respondent’s pattern of dishonesty, which Respondent employed largely to mask his own professional shortcomings, compels us to conclude that a significant period of suspension is warranted and that Respondent must be required to undergo the reinstatement process before resuming the practice of law.

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Fee Advance Misappropriation Gets Attorney Disbarred

The District of Columbia Court of Appeals has disbarred an attorney

In this case, the Board on Professional Responsibility concurred with the Ad Hoc Hearing Committee’s findings and recommended discipline. In its report, the Board acknowledged that the Ad Hoc Hearing Committee found that respondent Cynthia Malyszek had committed numerous violations in the course of her representation of three clients; however, in accepting the recommendation of disbarment the Board relied on the factual findings that respondent engaged in at least reckless misappropriation of client funds in the Mills matter.  Specifically, respondent failed to deposit the retainer she received from her client Ortez Mills into a trust account and instead commingled the unearned fees with her own funds in her operating account. Further, although respondent had only earned part of the retainer, the operating account fell far below the amount owed to Mr. Mills and was overdrawn on a day when, as respondent acknowledged, she owed Mr. Mills $990 in unearned fees. Finally, respondent failed to return the unearned fees to Mr. Mills upon his request, resulting in his contacting Disciplinary Counsel.

Sanction

While respondent did file exceptions, she failed to file her brief as directed, and most of her exceptions focus on the two matters that were not relied on by the Board to support its recommended sanction. As to the Mills matter, respondent merely asserted that the recommended discipline of disbarment was too harsh; her exceptions do not address her actions in the Mills case and fail to provide a basis for this court to depart from the Board’s recommendation.

(Mike Frisch)

April 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 25, 2018

An Alleged Theft Leads To Resignation

A New York Town Court Justice who is also an attorney has resigned in the face of an indictment as stipulated to by the Justice and the Commission on Judicial Conduct.

NYup.com reported

Authorities say a suburban Albany town justice and a lawyer have been charged with stealing more than $4 million from the family trusts of three sisters.

New York Attorney General Eric Schneiderman says 57-year-old Richard Sherwood and 59-year-old Thomas Lagan were arrested Friday on charges including grand larceny and scheme to defraud.

Authorities say the men were business associates who devised a scheme to steal from trusts set up by local philanthropists Warren and Pauline Bruggeman. Schneiderman says the thefts also targeted trusts for Pauline Bruggeman's two sisters.

Sherwood is a former Guilderland town attorney who has served as town justice since 2013. Lagan is a lawyer and financial adviser.

Sherwood pleaded not guilty and was released. His lawyer isn't commenting on the charges. A message left with Lagan's lawyer wasn't returned.

(Mike Frisch)

April 25, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

57 Years Without Discipline

A note of sadness for me in an order of the Pennsylvania Supreme Court suspending an attorney for a year and a day based on his default in responding to a single client complaint.

Disciplinary Counsel had been unable to personally serve the complaint.

The defaulted allegation involve the representation of a client in a slip-and-fall. The attorney failed to have a written fee agreement, received funds in settlement of the claim and failed to forward the settlement proceeds to the client.

The attorney was born in 1936, admitted in 1961, and had no prior discipline. (Mike Frisch)

April 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Fictitious Settlement

The Indiana Supreme Court has imposed a suspension of not less than 180 days

Client” hired Respondent to represent him regarding disputes he had with Liberty Hall, a correctional re-entry program facility where Client was on work release. Respondent sent a tort claim notice to Liberty Hall, the Department of Correction, and the Attorney General. Later, Respondent sent Client’s claims to Liberty Hall’s insurer, which denied any liability.

Respondent told Client she would file suit against Liberty Hall on his behalf, but Respondent never did so. Thereafter, Respondent led Client to believe a suit was pending and
that Liberty Hall was willing to negotiate a settlement, both of which were untrue. Respondent communicated to Client a fictitious settlement offer of $20,000, which Client declined. Respondent then communicated to Client a fictitious settlement offer of $40,000 plus attorney fees, which Client accepted. Client discovered the ruse when no settlement funds were forthcoming and Respondent confessed the truth to Client.

(Mike Frisch))

April 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, April 24, 2018

Excluded For Exceeding Limited License

The Virginia State Bar Disciplinary Board excluded a limited license holder from practice

The Respondent graduated from law school in 2004. He then took the Virginia Bar Exam in 2004, which he failed. In 2005, the Respondent took the West Virginia Bar Exam and failed that as well. He subsequently took the Tennessee Bar Exam in 2005 and passed. He was then licensed to practice law in Tennessee. In 2006, he submitted an application and was granted the privilege to serve as corporate counsel in the Commonwealth pursuant to the Rules of Virginia Supreme Court, Part One A, Foreign Attorneys, Rule 1A:5, with the limited ability to provide legal services for a company known as 21st Century Computers (hereinafter “21st Century”) and only for 21st Century. 21st Century was a business that the Respondent’s father-in-law started out of his home in the 1980s and was later incorporated in Virginia.

At no point was the Respondent admitted before the Supreme Court of Virginia granting him the ability to practice law generally. Furthermore, the Respondent admitted to Investigator Baker that he (the Respondent) researched the license restrictions of corporate counsel before applying with the Commonwealth and acknowledged that he could only work for the corporation and the corporation only, but stated he was allowed to do pro bono work. He further stated that he believed he could give legal representation where “the poor person don’t have to pay me nothin’.” He wrongfully believed that he could be compensated through an entity, such as the Commonwealth for doing legal work for indigent persons.

You see the issue

Knowing full well that he was not authorized to practice law that was not associated with 21st Century, the Respondent rented an office with a sign that alerted the public that the office was The Billips Law Firm LLC. He also advertised to the public that he was an attorney by establishing a website and Facebook page for his firm and by making pens to hand out to the public.

Order

it is ORDERED that the privilege to practice law as corporate counsel in the Commonwealth of Virginia that was granted to the Respondent, B. Walter Billips, is revoked effective March 23, 2018 pursuant to Part VI, Section 4, Paragraph 13(1) of the Rules of Virginia Supreme Court and that B. Walter Billips shall be excluded from admission to the Virginia State Bar and shall be excluded from the exercise of any privilege to practice of law in any capacity within the Commonwealth.

(Mike Frisch)

April 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Notice Sufficient, Default Not Vacated

An immediate suspension has been ordered by the New York Appellate Division for the First Judicial Department

The Attorney Grievance Committee (Committee) has charged respondent with three violations of the New York Rules of Professional Conduct (22 NYCRR 1200.0) in connection with respondent's appearance at trial in Davler Media Group, LLC v Astro Gallery of Gems, when the judge in that matter denied respondent's demand that she recuse herself from the case. Specifically, the charges allege that respondent engaged in undignified and discourteous conduct and conduct that is prejudicial to the administration of justice when he stated, in support of his request for recusal, that Judge Debra Rose Samuels had made false statements against him and was personally biased against him (rules 3.3[f][2] and 8.4[2]); engaged in undignified and discourteous conduct by threatening, in open court, to file a complaint against Judge Samuels with the Commission on Judicial Conduct (rule 3.3[f][2]); and engaged in conduct that adversely reflects on his fitness as a lawyer, as it relates to the foregoing conduct (rule 8.4[h]). Respondent defaulted on the petition.

He moved to vacate the default claiming lack of service

We find that respondent has failed to rebut the Committee's evidence of proper service. Jurisdiction was properly attained over respondent where the petition of charges was delivered to "Connie" at respondent's actual place of business and then mailed the next day to respondent's office, and any defects in the affidavit of service or the failure to timely file said affidavits with this Court are irregularities that can be properly cured by deeming it filed nunc pro tunc (Bell v Bell, Kalnick, Klee & Green, 246 AD2d at 443; see also Air Conditioning Training Corp v Pirrote, 270 App Div 391, 393 [1st Dept 1946][there is a difference between service and proof of service with the fact of proper service, which confers jurisdiction]).

In addition to proper personal service, respondent was given notice of the petition of charges via the Committee's emails to him (pursuant to his instructions), even if he could not open the attachments by using his cell phone, where the subject line and text of the email advised him of the nature of the petition, its return date, and that he would be receiving hard copies via personal service at his office and by mail.

With regard to respondent's request for an extension of time to answer the petition because, despite his request for documents and records that are in the control of the Committee, the Committee has refused and neglected to turn them over to him, the record does not bear this out.

In addition to finding respondent in default and deeming the charges admitted, he should be immediately suspended from the practice of law since his default in responding to the petition constitutes conduct that immediately threatens the public interest under 1240.9(a)(1).

(Mike Frisch)

April 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Moonlight In Wisconsin

The Wisconsin Supreme Court has imposed a one-year suspension of an attorney

Attorney Trupke was admitted to the practice of law in Wisconsin in 2002. She resides in Oregon, Wisconsin. Attorney Trupke has not previously been the subject of professional discipline. At the times of the events giving rise to this proceeding, Attorney Trupke was a partner in a Madison law firm.

The misconduct

The facts set forth in the complaint are as follows: In 2013, Attorney Trupke began serving as an independent reviewer for the Center for Copyright Information (CCI). CCI is a service offered through the American Arbitration Association (AAA) in which an independent reviewer is appointed to consider whether an individual may be violating copyright law or has a valid defense. Once a CCI reviewer or AAA arbitrator completes a matter, the parties pay a fee to AAA, which in turn pays the reviewer or arbitrator.

Between January 2013 and June 2016, AAA paid Attorney Trupke $73,025 for her work as a CCI reviewer. Attorney Trupke did not report the $73,025 in CCI fees to her firm or to her partners. 

She stipulated to the violations. 

In 2013, Attorney Trupke opened a file at the firm for an AAA matter. After working 28.10 hours on the matter, she directed the firm's accounting department to write the time off. She subsequently sent a personal invoice to AAA, requesting that AAA send payment to her home. In March 2016, Attorney Trupke gave misleading information to the firm's managing partner about her work and income from CCI and AAA.

Attorney Trupke resigned from the firm in May 2016. In June 2016, Attorney Trupke and the firm entered into a reimbursement agreement in which Attorney Trupke waived certain post resignation benefits to offset payments she owed to the firm.

(Mike Frisch)

April 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, April 23, 2018

Third Strike

A summary of a disbarment from the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and disbarred April Renee Morrissette (attorney registration number 35247), effective April 10, 2018.

On December 11, 2015, Morrissette pleaded guilty in Arapahoe County District Court to computer crime, a class-four felony, and to theft, a class-one misdemeanor. She received a three-year deferred judgment and sentence on the felony charge and three years’ probation on the misdemeanor charge.

These convictions arose out of Morrissette’s collection of unemployment insurance benefits. She began collecting those benefits in January 2011, after her employment at a law firm was terminated. Before doing so, she accessed a website maintained by the Colorado Department of Labor and Employment and signed a form warning against making false statements and willful misrepresentation to obtain benefits. From March to November 2011, Morrissette worked at another law firm. She intentionally continued to collect unemployment benefits even though she knew she was no longer entitled to them. She was employed during 32 of the 54 weeks that she filed for and received unemployment insurance benefits. During this period, she earned at least $52,423.72, but she misrepresented her earnings as $0.00. Morrissette fraudulently collected a total of $15,648.00 in unemployment insurance benefits to which she was not entitled.

Through this conduct, Morrissette violated Colo. RPC 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) and Colo. RPC 8.4(c) (barring conduct involving dishonesty, fraud, deceit, or misrepresentation).

A prior suspension in 2013

On February 4, 2013, Morrissette pled guilty to felony menacing, a class‐five felony (C.R.S. § 18‐3‐206(1)(a)‐(b)), as well as to the related crime of misdemeanor child abuse (C.R.S. § 18‐6‐401(1), (7)(b)(ii)). Morrissette aimed a gun at a group of people, including a three‐year‐old child, in a threatening manner while yelling obscenities, and then shot into the ground. Morrissette received a two‐year deferred judgment and sentence with conditions for the menacing charge, and she was placed on a two‐year period of probation with conditions for the child abuse charge, which runs concurrent to the two‐year deferred sentence.

There was also a sanction imposed in 2014. (Mike Frisch)

April 23, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sex And Suspension: Ohio Has An Outbreak

The Ohio Board of Professional Conduct has filed a report (linked here)  proposing a consent two-year suspension of an attorney.

He was convicted on an Alford plea to soliciting. 

In an unrelated matter he had sexual relations with a domestic relations client. The stipulation provides that the relationship was "legal and consensual" and did not impact negatively on the underlying case.

Another report involves a proposed fully-stayed six-month suspension. 

The attorney represented the husband and wife in a bankruptcy proceeding and had sex with the wife. He also failed to escrow the fee and mishandled the matter.

They had "sexted" with each other and had law office intercourse.

The husband found out and both the affair and the representation promptly terminated.

Still another report recommends a two-year suspension with only six-months stayed and conditions for reinstatement  for sex and neglect( Mike Frisch)

April 23, 2018 in Bar Discipline & Process | Permalink | Comments (2)

Access Denied

The Delaware Court of Chancery denied access to a reporter seeking access to discovery relating to civil litigation in the Theranos affair

Theranos, Inc. is a life sciences company that claimed to revolutionize the laboratory testing industry with innovative methods for drawing and testing blood and interpreting patient data. In October 2015, the Wall Street Journal and other media outlets began publishing details about Theranos’s technology and operations that cast doubt on Theranos’s claims of innovation. In spring 2016, multiple government agencies began investigating claims that Theranos misled investors about the state of its technology and operations.

 The civil case settled but

Non-party Alex Gibney is a journalist and documentary film maker. By letter filed on February 22, 2018, he asked the court to grant him access to the depositions taken in the two cases. Because he is a film maker, he is particularly interested in the video. As the basis for his request, Gibney invokes the right of public access to judicial records.

Nope

The materials that Gibney seeks were never filed with the court and never became part of the presumptively public record. Because a threshold requirement for the public right of access has not been met, Gibney’s request for these materials is denied. Although this decision could stop there with the bright-line rule, one category of materials presents an interesting twist. Gibney has requested video corresponding to approximately 200 pages of excerpts from deposition transcripts that were filed with the court and which the court ruled would be available for public access.22 Gibney has argued that the testimony became part of the presumptively public record, albeit in the form of transcripts. He believes that he therefore should be able to access the same testimony in the alternative form of video, which the parties have readily available. Gibney has offered to cover the expenses of a professional third-party service to edit the video and make the necessary redactions so that he only receives the portions that have been filed with the court.

In my view, Gibney cannot access the video. Court of Chancery Rule 32(e) states: “Except as otherwise directed by the Court, a party offering deposition testimony pursuant
to this rule may offer it in stenographic or nonstenographic form, but, if in nonstenographic form the party shall also provide the Court with a transcript of the portions so offered.”

The rule requires the filing of a transcript. A party can choose whether or not to file video. Because the rule contemplates that filing video is optional, I do not believe that the filing of a transcript brings any unfiled video within the ambit of the public’s right of access. The transcript version of the testimony and the video version of the testimony are
conceptually distinct. If a party submits video, as in Poindexter and Trump Old Post Office, then the video becomes part of the public record and subject to the public’s right of access. If a party chooses only to submit the transcript, then only the transcript becomes part of the presumptively public record. Unless a party also files the video, the video corresponding to the filed portion of the transcript does not become part of the presumptively public record.

Here, the parties only filed excerpts from the deposition transcripts. They did not file the corresponding video. Gibney therefore does not have a right to access the unfiled video corresponding to the 200 pages of deposition transcripts. Those materials did not become part of the presumptively public record.

Gibney’s request for access to unfiled discovery material is DENIED.

(Mike Frisch)

April 23, 2018 | Permalink | Comments (0)

Stuck In Traffic

A Nigerian attorney who had emigrated to Canada and was licensed there has been suspended on an interlocutory basis for dishonest counseling of a client by the Tribunal Hearing Division of the Upper Canada Law Society

Client A alleged that the Lawyer had instructed her not to attend at her scheduled refugee hearing, but to wait on another floor of the building, so that the Lawyer could determine whether the member hearing the matter would likely be favourable. Client A indicated that the Lawyer had instructed her to leave the building and telephone the tribunal office to say she was stuck in traffic, if the Lawyer found the member was not likely to be favourable.

In relation to this allegation, in February 2017, Client A’s new counsel provided the Society with an audio recording of the conversation with the Lawyer, in which the Lawyer had counselled Client A to be dishonest.

On May 5, 2017, the Lawyer provided the Society with her representations in response to Client A’s complaint, acknowledging that she had counselled Client A to be dishonest.

There are false billing issues based on a complaint from Legal Aid Ontario

In the complaint from LAO received September 21, 2017, LAO enclosed the Decision, in which it was found that the Lawyer had engaged in false billings with respect to the duration of refugee hearings, had billed LAO for refugee hearings that had not taken place, and had engaged in double billings.

The Lawyer admitted that she claimed more hours for refugee hearings than actually took place and that she had billed LAO for some hearings that had not taken place.

The Lawyer also admitted that she billed a standard four hours of hearing for each half-day of hearing scheduled even if the hours she attended were less than four, or even if the hearing did not take place at all, because this is how interpreters at refugee hearings are paid and she thought this was fair.

The final report from LAO’s audit and compliance unit indicated that an amount of approximately $80,000 potentially had been overbilled, resulting from overbilling, double-billing and in some cases triple-billing.

The LAO Decision indicated that the Lawyer’s representations regarding the overbilling allegations were problematic: “highly improbable” and not credible.

As to immediate suspension

 In the present case, the misconduct has been admitted, and through her counsel the Lawyer has acknowledged the risk of harm to the public and to public confidence in the administration of justice and in the legal profession. The evidence substantiating this risk is strong. The concerns are based on serious and multiple allegations of dishonesty – dishonesty in connection with the LAO billings and dishonesty in the Client A matter. The allegations, if proven, could warrant a lengthy suspension or the revocation of the Lawyer’s licence to practise law.

(Mike Frisch)

April 23, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, April 21, 2018

Facebook Posts Lead To Arrest And Suspension

The Tennessee Supreme Court has imposed a two year suspension with a 30-days of active suspension followed by probation  of an attorney who was granted judicial diversion on charges of patronizing a prostitute.

The summary of the Board of Professional Responsibility also notes that he made inappropriate remarks to a client's wife.

The Cookeville Herald-Citizen   reported on the arrest

A Facebook conversation has led to the citation of a Cookeville attorney for reportedly patronizing prostitution from a local woman.

Attorney Jaramiah Hruska was issued the citation yesterday, and local woman Melissa McClanahan was issued a citation for prostitution in the incident as well.

According to reports from the Cookeville Police Department, investigators were alerted to the possibility based on incriminating Facebook conversations between the two.

“The messages contained language that indicated they were attempting to find a location ... so they could engage in the sex act,” said Det. Sgt. Bobby Anderson, who investigated the incident and issued the citations to the two.

The incident allegedly happened earlier this month, on July 6, in Hruska’s law office, located here in Cookeville at 320 E. Broad St.

According to information obtained in the Cookeville Police Department’s investigation, McClanahan had become acquainted with Hruska because the two were once neighbors.

Also according to the report, “Hruska knew that she was in need of financial help, and he approached her offering money for sex.”

Hruska reportedly told investigators that he had known McClanahan for a long time and that he had loaned her money on past occasions, but he initially denied paying her to perform sexual acts.

He reportedly did admit to having sexual intercourse with her one time, however.

The attorney reportedly later admitted to authorities that he and the woman had “an understanding” regarding the transaction of sex for money, and that the incident happened in early July, as the record of the Facebook conversations originally discovered by investigators indicate.

Hruska and McClanahan are both scheduled to appear in Putnam County General Sessions for their respective citations on Aug. 24.

The charges are class A misdemeanors.

(Mike Frisch)

April 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Bad Cop, Good Paralegal

A former police officer has the necessary character to be licensed as a paralegal notwithstanding issues in that former position, according to a decision of the Tribunal Hearing Division of the Upper Canada Law Society

The applicant was a police officer for more than 20 years.  He ended his police career as a Sergeant with the Ottawa Police Service, after beginning his career as a police officer with the Nepean Police Service.

In June 2012, the applicant was charged with six counts of alleged misconduct under the PSA.  He was convicted on all charges in September 2014 by the Hearing Officer.  The charges and convictions were as follows:

•           INSUBORDINATION – accessing Records Management System (“RMS”) records between February 2011 and May 2012;

•           INSUBORDINATION – accessing Canadian Police Information Centre (“CPIC”) records between April 2011 and February 2012;

•           INSUBORDINATION – disobeying an order between February 2011 and May 2012;

•           CORRUPT PRACTICE – accessing privatized reports between August 2011 and March 2012;

•           CORRUPT PRACTICE – accessing phone subscriber information between May 2011 and May 2012; and

•           DECEIT – licence plate query remarks made on CPIC between July 2011 and February 2012.

The applicant was found to have communicated with people in the sex trade and in the escort business under the auspices of helping and advocating for vulnerable women by enhancing safety and collecting information about criminal activity.

He characterized his activities as outreach, although not within any established police or other outreach programme.  In his testimony at the PSA hearing, the applicant described how he would meet with sex workers in full uniform, occasionally bringing along a more junior member of his platoon.  He explained that his purpose was to provide information to the sex workers with respect to safety measures and to encourage members of this vulnerable community to communicate with police about threats to their security. The applicant encouraged the sex trade workers to phone the police if they encountered a “bad date” and he gave them practical advice about collecting evidence.  He gave the workers his business card, which contained his personal phone number.

On numerous occasions, the applicant accessed confidential internal police records and databases, without authority and in violation of police policies and procedures.  It appears this was for the purpose of identifying whether certain individuals might pose a threat to the safety of a sex trade worker. He was found to have conducted 37 unauthorized CPIC queries and 400 unauthorized RMS queries relating to 83 different people.  He admitted having done so.

He was found to have committed corrupt practice when, for his own personal advantage, he accessed privatized police reports without proper authority and accessed phone subscriber information on 17 occasions, none of which involved any lawful police investigation.  Police reports are privatized to restrict access to unauthorized persons.

The applicant was found to have engaged in deceit when he entered misleading “remarks” in CPIC to explain why he queried the licence plates.  He testified in the PSA hearing that the queries were made for various personal reasons, not for legitimate police business.  The Hearing Officer found that the “remarks” entered by the applicant were deliberately misleading.

The applicant used his position as a police officer to access information for other than the lawful execution of his duties.  The Hearing Officer found that this is contrary to the oath of secrecy and the duties of a police officer.

Present character

We are satisfied from the evidence of the applicant, and that of Mr. McKay, that the applicant now has his life back together and that after a stellar career as a police officer, the actions he undertook were driven by the circumstances of his life at the time.  We accept, based on the evidence before us, including the documents related to the applicant’s PSA hearing and his application for a licence, the evidence of Mr. McKay, and the applicant’s credible testimony, that he wanted to help a vulnerable sector of society and, in doing that, he lost his way.  He suffered the most severe consequences as a result of his misconduct – the loss of a long and distinguished professional career. 

 It was important to hear directly from the applicant.  We are satisfied he has fully accepted the results of the PSA hearing.  He accepts responsibility completely for the consequences of his choices and his actions.  He is deeply remorseful and it was clear that he has learned from his mistakes.  We were very much persuaded by the applicant’s testimony.  He impressed us as a credible, thoughtful and remorseful person.

(Mike Frisch)

April 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 20, 2018

Attorney's Appeal Gets Six More Months Suspension

An appeal of a single justice's suspension backfired on an attorney, per the full Massachusetts Supreme Judicial Court

The respondent, Robert C. Moran, appeals from an order of a single justice of this court, acting on an information filed by the Board of Bar Overseers (board), suspending him from the practice of law for nine months. We vacate the order and remand the case for the entry of an order suspending the respondent from the practice of law for fifteen months.

The misconduct involved the estates of two elderly now deceased clients.

Bar counsel filed an amended five-count petition for discipline with the board alleging multiple acts of misconduct in connection with the respondent's handling of the affairs of two elderly clients, both of whom are now deceased. Two counts alleged that the respondent charged excessive fees; that he failed to inform his clients of fees for services rendered and fee withdrawals; that he held the clients' funds in nontrust accounts; and that he drafted testamentary instruments for both clients that included substantial testamentary gifts to himself. Two other counts concerned the respondent's conduct as executor for the same clients' estates. They alleged that the respondent failed to render diligent and competent services; that he charged and collected excessive fees; that he failed to hold estate funds in segregated interest-bearing accounts; that he negotiated and withdrew estate funds before his appointment as executor; and that he intentionally misrepresented, under oath, the amount of estate assets in a probate court filing for one estate.  The fifth count charged misconduct in connection with trust accounts and trust funds.  The respondent answered and asserted certain facts in mitigation.

The court rejected a number of evidentiary and due process claims.

A final observation: even if the board's characterization of some of the particular services rendered by the respondent as legal or nonlegal may be debatable, much of it is not. There can be no denying, for example, that services such as snow shoveling, moving and house cleaning, shopping, and making funeral arrangements are not legal services.

Sanction

 The respondent here knowingly misrepresented estate assets on an inventory he filed, under oath, in the probate court, the effect of which was to obscure from the probate court's consideration payments the respondent had made or intended to make to himself and others. An intentional misrepresentation to a court typically warrants a suspension of at least one year...

 In addition, the respondent engaged in other serious misconduct. He charged and collected   from two clients and, after their deaths, from their estates. He did so both as a lawyer and an attorney-in-fact acting under a durable power of attorney during the lifetimes of his clients, and as an attorney and executor after their deaths. Considered individually, any one of those actions would warrant a public reprimand.

The bad news 

The court system depends on the integrity of attorneys who appear before it. Considering the substantial misconduct in this case, including intentional misrepresentation to the probate court, charging and collecting clearly excessive fees, lack of diligence in the probate of two estates, as well as the other substantial violations of the rules of professional conduct, together with the aggravating factors discussed above, we conclude that a term suspension of fifteen months is appropriate.

(Mike Frisch)

 

April 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)

"Disbarment Will Inevitably Follow..."

The Maryland Court of Appeals issued its opinion disbarring an attorney after entering an order on March 16

This attorney discipline proceeding involves a lawyer who, chief among various forms of serious misconduct, misappropriated funds, fabricated documents, and made misrepresentations to courts, clients, and opposing counsel.

In this case, Stephen Howard Sacks, Respondent, a member of the Bar of Maryland, represented seven clients, and himself, in separate matters that resulted in the institution of an attorney disciplinary proceeding and numerous findings of misconduct. Specifically, Sacks was retained to represent Jermaine D. Harris in a criminal case, to assist Joy Whyte with a meeting with an Assistant United States Attorney, to assist Erick E. Chen in attempting to have the Federal Bureau of Investigation return certain personal property to him, to represent Daniel W. Anderson in criminal cases and an immigration case, to represent Rondall Range in a criminal case, to represent Anita Range in a child support case, and to represent William D. Smith in a domestic matter. In these matters, Sacks engaged in assorted forms of misconduct, including misappropriation of funds that he had been paid to represent Whyte, Chen, Anderson, Rondall Range, and Smith. While representing himself, Sacks initiated eight frivolous actions or appeals against multiple parties, including his landlord, Tindeco Wharf, LLC ("Tindeco"), and its counsel, Adam M. Spence. Harris, Whyte, Chen, Anderson, Craig Kadish (Mr. Range’s new counsel), Smith, and Spence filed complaints against Sacks with Bar Counsel.

 Sanction

The appropriate sanction for Sacks’s misconduct is disbarment. Sacks engaged in copious instances of misconduct while representing seven clients, as well as himself. Sacks violated MLRPC 8.4(c) by, among other things, misappropriating funds, fabricating documents, and making misrepresentations to courts, clients, and opposing counsel. "Absent compelling extenuating circumstances justifying a lesser sanction, intentional dishonest conduct by a lawyer will result in disbarment." Attorney Grievance Comm’n v. Thomas, 445 Md. 379, 402, 127 A.3d 562, 576 (2015) (cleaned up). Additionally, "disbarment will inevitably follow any unmitigated misappropriation of . . . funds." Attorney Grievance Comm’n v. Kobin, 432 Md. 565, 585, 69 A.3d 1053, 1065 (2013) (cleaned up). Here, the only mitigating factor—the absence of prior attorney discipline—comes nowhere close to constituting a compelling extenuating circumstance. Additionally, there are several aggravating factors, including illegal conduct, a pattern of misconduct, and likelihood of repetition of the misconduct. Simply put, given the numerous instances and wide range of the misconduct, and the injury to multiple clients, disbarment was necessary to protect the public.

(Mike Frisch)

April 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Reconsidered

A stipulated public reprimand  imposed by the Wisconsin Supreme Court

Attorney Fulkerson has been the subject of professional discipline on one prior occasion. In 2015 she consented to the imposition of a private reprimand for failing to act with reasonable diligence, failing to protect a client's interests, failing to keep a client reasonably informed, making a frivolous discovery request or failing to make reasonably diligent efforts to comply with a discovery request, and knowingly disobeying an obligation under the rules of a tribunal. Private Reprimand No. 2015-28 (electronic copy available at https://compendium.wicourts.gov/app/raw/ 002845.html).

This matter was initially submitted to a referee as a proposed consensual public reprimand under SCR 22.09. At that time the OLR was alleging seven counts of professional misconduct, which Attorney Fulkerson conceded. After reviewing the submission, the referee declined to approve the consensual reprimand. He pointed to the presence of seven counts of misconduct and the existence of the previous private reprimand. He stated that he was particularly concerned with the fact that Attorney Fulkerson had agreed to represent the clients even though she did not have prior experience handling medical malpractice matters and that she appeared not to have adequately sought guidance from other experienced attorneys or educated herself.

Following the refusal of the consensual reprimand, Attorney Fulkerson sent a lengthy letter to the OLR providing additional, highly personal mitigating information. In its memorandum in support of the current SCR 22.12 stipulation, the OLR asserts that Attorney Fulkerson has been "forthright and cooperative" throughout the OLR's investigation and that her letter did not attempt to avoid responsibility for or minimize her conduct. To the contrary, the OLR states that her letter demonstrated that she had understood her misconduct and was making changes in her life that will result in her being a better, more diligent lawyer. The OLR then submitted the matter to the Preliminary Review Committee, which found cause to proceed on six of the seven original counts. The OLR then reconsidered the sanction question, but ultimately determined that, especially in light of the mitigating information provided by Attorney Fulkerson and the totality of the information in the OLR's file, a public reprimand was still the most appropriate level of discipline to seek. The OLR then concluded that rather than submit a second consensual reprimand to a referee under SCR 22.09, it would pursue a SCR 22.12 stipulation with Attorney Fulkerson that would be submitted to this court for a decision.

In the resulting stipulation, Attorney Fulkerson represents that she understands the misconduct allegations against her and her right to contest them, that she admits them, and that she agrees with the OLR's recommended level of discipline. Attorney Fulkerson further states that she understands her right to consult with another attorney regarding these matters, that she understands the ramifications of the stipulated level of discipline, and that she is entering into the stipulation knowingly and voluntarily. The stipulation also states that it was not the product of plea-bargaining.

 The court

After carefully reviewing this matter, we accept the stipulation and impose the requested public reprimand. For the reasons given by the OLR, we do not impose any restitution obligation on Attorney Fulkerson. Finally, although a referee did review and refuse a prior proposed consensual reprimand, this disciplinary proceeding has been resolved at its outset through a stipulation without the need for the appointment of a referee or the incurring of legal fees by the OLR. Accordingly, we do not impose costs on Attorney Fulkerson.

(Mike Frisch)

April 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)