Wednesday, September 16, 2015

Reprimand Rather Than Suspension

The Wisconsin Supreme Court affirmed findings of misconduct based on the attorney 's default but rejected the suspension proposed by the referee and the Office of Lawyer Regulation in favor of a public reprimand.

Under the particular circumstances of this case, we disagree with the OLR and the referee that a suspension is required and conclude that a public reprimand is sufficient to accomplish these goals. As an initial matter, we are basing our decision upon the five counts of misconduct arising out of the Racine County matter rather than the ten counts the OLR and the referee were considering. While reducing the number of counts by one-half does not automatically mean that there should be a lower level of discipline, we determine that the misconduct in the only remaining matter here warrants a public reprimand.

While we accept the referee's findings of fact, including that Attorney Boyle engaged in the practice of law in this state while he was not authorized to do so and made some statements that were not true, those actions must be considered in their proper context to fashion a proper response. Here, the OLR acknowledged before the referee that there was no evidence of a dishonest or selfish motive. In the Racine County matter, the only one relevant to the issue of a sanction, Attorney Boyle was acting on a pro bono basis to assist a person with limited English skills, who had been unable to find another attorney willing to take on her case after her husband had been killed. While some of the time pressure he was under may have been of his own making, Attorney Boyle was attempting to investigate and file a claim for this widow before the statute of limitations expired. His goal of helping a person facing difficult obstacles does not excuse his misconduct, but it should be a factor in fashioning the proper response to the misconduct. We are not dealing here with a lawyer who is acting improperly for his own benefit, but rather with someone who acted overzealously and improperly while trying to help a disadvantaged person without compensation.

In addition, it is important to note that Attorney Boyle did make multiple attempts to contact the relevant agencies, both over the telephone and even in person, to determine how he could properly represent L.S. and get her case filed before the expiration of the statute of limitations despite his administrative suspension. While he ultimately chose the wrong path of filing a complaint and an amended complaint before obtaining any order authorizing him to engage once more in the practice of law in this state and before even petitioning for such an order, his attempts to seek guidance from the regulatory agencies demonstrate that he was not acting with complete disregard for the law and the ethical rules.

Suspension is not required

it is worth noting that this is the first time in the approximately three decades since his admission to the practice of law in Wisconsin that Attorney Boyle has been the subject of professional discipline in this state. While the OLR may contend that as an experienced attorney Attorney Boyle should have known better, the length of his admission to practice in this state without prior discipline also means that he has not created a reason thus far to believe that the public must be protected from the risk of his misconduct. On the other hand, Attorney Boyle should understand that his experience as a lawyer should not be used as an excuse to ignore the particularities of the ethical rules and the local court rules that govern his conduct or to stretch the truth in an effort to pursue what he believes is a just outcome.

Attorney Boyle should also not construe this opinion as a vindication of his conduct. He violated the ethical rules governing his conduct, and deserves to be disciplined for that misconduct. We simply conclude that while Attorney Boyle violated his ethical obligations as an attorney, a public reprimand will be sufficient to impress upon him the seriousness of his misconduct and to deter him from similar future ethical violations. 

Justice Bradley dissented on sanction, concluding that the majority had minimized the misrepresentations made by the attorney

Because I consider making false statements to a court a grievous matter and given his prior discipline imposed by the Illinois Supreme Court, I conclude that a public reprimand imposed by the per curiam is inadequate discipline for Attorney Boyle’s conduct. Additionally, because the OLR and referee's recommendations were based, in part, on the five Northern District Court counts, I believe more than a cursory reference to those counts is necessary to understand their recommendations.

Justice Abrahamson joined the dissent. (Mike Frisch)

September 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thefts From Big Box Stores Leads To Conviction, Suspension

The Ohio Supreme Court declined to give a convicted attorney credit for time served on an interim suspension and imposed a prospective two-year suspension with sixmonths stayed on conditions.

The crimes

A 41-count indictment issued in August 2011 alleged that Haynes, her husband, and ten other people had engaged in a pattern of stealing merchandise from big-box retailers in Summit County, returning the stolen merchandise to obtain cash refunds in the form of merchandise cards, using a cell phone registered to Haynes to check balances on the merchandise cards, and using an eBay account registered to Haynes to sell the merchandise cards. Haynes reported her indictment to relator. She admits that she returned merchandise that she knew or should have known had been stolen by one or more of the other parties charged in the indictment to retailers and that in exchange for the returned merchandise she received merchandise cards. She pleaded guilty to a single felony count of receiving stolen property in April 2013, for which she was sentenced to 24 months of community control and ordered to pay $1,500 in restitution. Shortly after entering her guilty plea, she was terminated from her employment.

While the conduct was dishonest

The parties agreed that the relevant mitigating factors include the absence of a prior disciplinary record (other than the registration violation), Haynes’s timely good faith effort to make restitution or rectify the consequences of her misconduct, her full and free disclosure and cooperative attitude toward the disciplinary proceedings, the imposition of criminal penalties for her conduct, and her participation in an interim rehabilitation program administered by the Ohio Lawyers Assistance Program (“OLAP”) since March 2012.

Two justices dissented and would grant credit for the time served.

Newsnet5 Cleveland reported on the criminal case. (Mike Frisch)

September 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

No Attorney-Client Relationship But Attorney Suspended For Failure To Cooperate

From the web page of the Ohio Supreme Court

The Ohio Supreme Court has disciplined Edward R. Bunstine of Chillicothe twice since 2012 for engaging in professional misconduct, and his law license has been suspended since August 2013. The latest charge against Bunstine before the court is that he mishandled a client’s criminal defense and was uncooperative in the disciplinary investigation. The Board of Professional Conduct recommended to the court that Bunstine’s law license be suspended indefinitely with credit for time served under the 2013 suspension. In today’s per curiam decision, the court is suspending the license for six months.

Bunstine was contacted by the daughter of a former divorce case client after the man was arrested in December 2011. Bunstine met with Gary Freeland in jail several times and the daughter gave him $10,000 to represent her father in the criminal case. Bunstine claims he never represented Freeland, and admitted only to being the daughter’s attorney when pressed by the trial judge about taking the money. Despite conflicting testimony from the daughter about whether Bunstine was hired as her father’s lawyer, the board found the jailed father had a reasonable expectation that an attorney-client relationship existed by implication. With that relationship established, the board found Bunstine failed to provide competent representation and knowingly made false statements to the judge during Freeland’s trial.

In the 5-2 decision, the court decided there were enough contradictions in the daughter’s testimony to cast doubt on the attorney-client relationship. The court also noted, “Nor are we convinced that Bunstine’s statements to the judge about his involvement in the Freeland matter were knowingly false.” Because of those reasons, the court dismissed count one of the complaint that Bunstine failed to provide competent representation to a client and that he engaged in fraud. However, the court agreed with the board on the second count that Bunstine didn’t cooperate with the disciplinary investigation, including ignoring several letters of inquiry. With his prior disciplinary offenses, his failure to cooperate, and “his refusal to acknowledge the wrongful nature of his conduct,” the court imposed a six-month suspension with no credit for the time he’s served under the 2013 suspension.

The court’s majority was Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French. Justice Judith Ann Lanzinger dissented and would have imposed an indefinite suspension. Justice William M. O’Neill also dissented but would have imposed a public reprimand.

2014-1392Disciplinary Counsel v. BunstineSlip Opinion No. 2015-Ohio-3729.

(Mike Frisch)

September 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Son Tried To Take Rap For Attorney Mother

The Ohio Supreme Court has ordered the interim suspension of an attorney as a result of a felony conviction. 

The Advertiser Tribune had a story on the charges

A former Bettsville Local Schools treasurer has been issued a summons on a three-count indictment. According to court documents, Roger Luhring was indicted on one count of theft in office, one count of having an unlawful interest in a public contract and one count of having an unlawful interest in a public contract, all fourth-degree felonies.

Also, a former executive director of Seneca County Agency Transportation has been indicted on a charge of theft. Susan J. Phillips, 63, of Tiffin, was indicted by a Seneca County grand jury on the fifth-degree felony charge.

Phillips allegedly stole more than $1,000 from SCAT from Dec. 11 until Jan. 3, according to her indictment.

The Courier reported on a mistrial

Michael E. Woodman, 22, of Tiffin, has admitted stealing from Seneca County Area Transportation and pleaded guilty to theft, a fifth-degree felony, during an appearance in Seneca County Common Pleas Court, Tiffin.

He appeared before visiting Judge Charles Wittenberg, the (Tiffin) Advertiser-Tribune reported.

During his court appearance, Woodman said he transferred money from an agency account into another account and then withdrew the money, the newspaper said.

Woodman’s mother, Susan J. Phillips, initially was charged after $6,500 allegedly was transferred from the agency’s account into her account. In March, Phillips stood trial on a fifth-degree felony theft charge, but the jury was unable to reach a verdict.

During his mother’s trial, Woodman took responsibility for the theft.

The attorney was recently convicted of complicity of theft, a fifth degree felony. (Mike Frisch)

September 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 15, 2015

Second Income

An Illinois Hearing Board has recommended a one-year suspension of an attorney who ran a law practice while collecting disability benefits.

Respondent was admitted to the Illinois bar in May 2004. Shortly thereafter, he opened his own law practice in Palatine, Illinois called Bless & Associates. At that time, Respondent had also been employed as a sheriff's police officer with the Cook County Sheriff's Office (CCSO) since 1997. Respondent remained in his job with CCSO after he was admitted to the bar and operated his law practice on a part-time basis. 

Cook County sheriff's police are part of an independent police department whose officers are trained to patrol the streets and answer calls in unincorporated areas of Cook County. The job is physically demanding and involves much more rigorous activity than the ability to drive a patrol car. 

Cook County sheriff's police officers are permitted to work additional jobs, provided they follow certain procedures and obtain approval. Those procedures are set forth in general orders issued by the sheriff governing "secondary employment." During all times relevant to this matter, secondary employment was governed by General Order 07-2, which was issued on December 4, 2007.

The board found that the attorney failed to follow the secondary employment procedures after an injury occurred as a police officer.

He dishonestly collected benefits that would have otherwise been offset. 

After suffering an injury while working as a police officer with the Cook County Sheriff's office, Respondent remained off work and collected temporary total disability benefits for more than two years. During this time, Respondent also worked as an attorney and assumed a paid position as an elected member of the McHenry County Board. Respondent did not obtain approval to work these secondary jobs as required by workplace rules, which might have reduced the amount of disability benefits he received. The Administrator proved Respondent engaged in dishonest conduct by intentionally failing to obtain approval for his secondary employment while on disability in order to continue to collect full disability benefits and earn income from his other job.

Notably, there was serious prior discipline

On March 12, 2015, Respondent was suspended for three years and until further order of Court for multiple violations of the Rules of Professional Conduct. In re Bless, 2010PR00133, M.R. 27134 (Mar. 12, 2015). Respondent's prior misconduct occurred from 2006 through 2009 and arose out his relationship with client Kathleen Scott. Respondent engaged in an impermissible conflict of interest by engaging in a sexual relationship with Ms. Scott while he was representing her in a wrongful death lawsuit arising out of the death of her husband. Respondent also entered into multiple improper business transactions with Ms. Scott by obtaining a series of personal and business loans from her and enticing her to invest substantial sums in a building project owned by Respondent and his father. Ms. Scott was a widow with  young children, and Respondent was having financial difficulties at the time.

Additionally, Respondent counseled Ms. Scott to lie about their personal relationship during her deposition in the wrongful death case and lied to the ARDC regarding the nature of his personal and professional relationship with Ms. Scott. Respondent was found to have violated Rules 1.7(b), 1.8(a), 3.4(a)(2), 8.1(a)(1) and 8.4(a)(5) of the 1990 Rules.

The Administrator sought disbarment. Not an unreasonable position given the severity of the earlier misconduct. (Mike Frisch)

September 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Court Rules Former Nun May Sue Deceased Attorney; Unclean Hands Defense Rejected

An Ohio district court court decision is summarized on the state Supreme Court web page

An ex-nun whose husband’s business went bankrupt did not collude with a lawyer to hide money from creditors. An Ohio appeals court ruled that now the woman can pursue her malpractice case against the lawyer who depleted more than $300,000 from her account around the time he began suffering from dementia.

The Eighth District Court of Appeals last week reversed a ruling from a Cuyahoga County Common Court accusing 79-year-old Catherine Downie-Gombach of “unclean hands” and barring her from suing the now-deceased attorney for malpractice and breach of fiduciary duty.

Gombach served as a nun for 32 years before leaving the order and working as a teacher and associate pastor. She married Anton Downie-Gombach in 1996. He was the sole owner of Champion Welding Products, and he managed all of the couple’s finances.

In March 2006, he died suddenly, and Gombach recalled noticing that in the months leading up to his death, he was receiving certified mail notices and her credit card purchases were being declined. At the time of his death, creditors were actively pursuing Champion Welding and the Gombachs. She received $504,900 in life insurance checks from Anton’s death. At a meeting with lawyers representing his estate and Champion Welding, she was told to get separate counsel and was introduced to Charles R. Laurie.

Gombach met with Laurie to discuss if there was a way to protect the life insurance proceeds while the creditors were pursuing payment. Laurie suggested depositing the checks into his Interest on Lawyers’ Trust Account (IOLTA), and to direct all creditors to him.

Creditors foreclosed on Gombach’s home and rental properties and repossessed her automobiles. She moved in with her sister and brother-in-law and she lived on proceeds from her husband’s Social Security and regular payments Laurie sent to her brothers-in-law who cashed the checks from the IOLTA accounts and gave Gombach cash.

She received regular accounting of the fund until December 2008, which showed there was $485,000 in it. Although she didn’t get regular updates on the account after that, she received $58,000 for living expenses through the checks sent to her brothers-in-law. When she tried to contact Laurie in 2012, his business phone was disconnected. She was able to locate an attorney representing Laurie who told her Laurie had been suffering from dementia, had relinquished his law license, and was placed under legal guardianship for incompetence. He confirmed all the money in Laurie’s IOLTA account was gone. Laurie died in February 2015.

Gombach sued Laurie and American General Insurance, his malpractice insurer, in 2012 but the trial was delayed by Laurie’s bankruptcy case until 2013. Gombach was the sole witness in the trial and testified that she assumed Laurie was protecting the funds and paying the creditors. She told the court she was relying on Laurie’s professional advice and not attempting to violate the law or collude with him in hiding funds from creditors. She admitted to allowing her husband to sign her name on loan documents and signing an affidavit prepared by Laurie for a creditor that failed to indicate the insurance proceeds were in his IOLTA account.

The trial court found that Gombach proved the necessary points to conclude Laurie committed malpractice. However, the judge found Gombach and Laurie had “unclean hands” and were equally at fault in trying to hide money from the creditors, and did not award Gombach any money. She appealed to the Eighth District.

Writing for the court, Judge Anita Laster Mays wrote that the theory of unclean hands applies when the person suing tried to deceive or defraud the person being sued. She also noted that the equal fault doctrine only applies if both are equally at fault, and does not have to be applied if two parties are working together but one is clearly more at fault than the other.

Judge Laster Mays found Laurie was engaged in illegal and unethical acts for depleting Gombach’s funds while keeping them in his account and that he may have used the money to his benefit while Gombach lost everything.

“Laurie was not damaged by the misappropriation of Gombach’s funds. Gombach was,” she wrote.

For Gombach to be barred by the unclean hands theory, Judge Laster Mays indicated the court must have found that she participated in an illegal act. But the evidence only indicates that Gombach had no intent to do anything illegal and just relied on Laurie’s advice. She also found that as an attorney, Laurie had an increased obligation to follow the law and nothing Gombach did was equally as illegal as Laurie, meaning the theory cannot be used to prevent her from suing for malpractice.

“The illegal act we will not facilitate is the theft of client funds in this case,” Judge Laster Mays wrote.

The case was remanded to the trial court to determine the amount of misappropriated funds that needs to be returned to Gombach.

Judges Larry A. Jones Sr. and Kathleen Ann Keough concurred in the decision.

The opinion is linked here. (Mike Frisch)

September 15, 2015 | Permalink | Comments (0)

Arsenic And Old Records

The Connecticut Supreme Court held that a state agency's mental health records may not be disclosed in a matter involving treatment records of a notorious serial killer

The present case arises from the ruling of the named defendant, the Freedom of Information Commission (commission), that the defendant Ron Robillard was entitled to the disclosure of documents in the possession of the plaintiffs, the Department of Mental Health and Addiction Services...We conclude that the plaintiffs had standing to appeal the decision of the commission, and further agree with the plaintiffs that the documents at issue are exempt from disclosure under § 52-146e. Accordingly, we reverse the judgment of the trial court and remand the case to that court with direction to sustain the plaintiffs’ appeal.

Background story

The plaintiffs received a request under the act from Robillard for any records concerning a person named Amy Archer Gilligan for the period of time from 1924 through 1962. Gilligan was a patient at a facility now known as Connecticut Valley Hospital (hospital) following her conviction for second degree murder for the arsenic poisoning of a resident of her nursing home. Gilligan’s life is widely considered to be the basis for the play and movie entitled ‘‘Arsenic and Old Lace.’’ The plaintiffs provided Robillard with copies of those records pertaining to Gilligan that it deemed were disclosable under the act. Robillard was notified by the plaintiffs that other records, deemed exempt from disclosure under the act, were withheld.

At issue

In the present case, the crux of the disagreement between the commission and the plaintiffs is whether medical and dental records contained within Gilligan’s file are exempt from disclosure under § 52-146e. The commission asserts, and the trial court agreed, that these documents were not exempt from disclosure because they were not ‘‘oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist . . . .’’ General Statutes § 52- 146d (2). We agree that the medical and dental records are not communications directly between Gilligan and a psychiatrist or between a member of Gilligan’s family and a psychiatrist...

...our understanding of the broad veil of secrecy created by the psychiatrist-patient privilege also supports our conclusion that medical and dental records that are created by an inpatient mental health facility during the treatment of a patient are exempt from disclosure under § 52-146e. On the basis of the relevant statutory language, related statutory provisions and prior interpretations of the act, we conclude that the trial court improperly affirmed the commission’s determination that Gilligan’s medical and dental records were not exempt from disclosure under § 52-146e.

There is a concurring opinion

The majority’s resolution of this case yields the detritus of a needless collision between two competing statutory mandates. On the one hand, the legislature has adopted an evidentiary privilege to foster and protect the free flow of confidential information between a patient and her psychiatrist in a therapeutic setting. On the other hand, the legislature has endorsed a broad presumption that all records in the possession of a governmental agency are public records, unless delimited by an applicable, specific, and narrow exception. Rather than charting a path that balances and accommodates both of these statutory priorities, the majority construes one to vanquish the other and, in the process, deviates significantly from critical principles at the core of open government. In my opinion, it is unnecessary to do so.

The records at issue in this appeal and cross appeal concern Amy Archer Gilligan, a notorious serial killer who was perhaps America’s deadliest murderess. M. Phelps, The Devil’s Rooming House: The True Story of America’s Deadliest Female Serial Killer(2010). Historians and others have been focused on her case for decades. Her crimes have inspired several books, articles, plays, and even a major motion picture. Authors remain drawn to the facts and circumstances of her crimes to this day. The complainant in the present case, author Ron Robillard, seeks records from the plaintiff Department of Mental Health and Addiction Services (department) relating to Gilligan’s thirty-eight year involuntary commitment at the Connecticut State Hospital, now Connecticut Valley Hospital (hospital) following her conviction for murder in the second degree. Robillard seeks the information to shed light on how this state historically has handled its mentally ill convicts.

The concurrence has a lengthy discussion of the psychiatrist- patient privilege.

Connecticut has details on the crimes. (Mike Frisch)

September 15, 2015 in Comparative Professions | Permalink | Comments (0)

False Statement In Bankruptcy Draws Disbarment

The Louisiana Supreme Court accepted an attorney's resignation and imposed permanent disbarment for his conviction  of a false statement under oath in a bankruptcy proceeding.

From the Department of Justice comes this description of the offense

According to information presented in court, Davis is a lawyer and former member of the Shreveport law firm Jones, Odom, Davis & Politz.  He also operated and controlled Tower Hill Energy Company, LLC, which purported to be in the business of acquiring oil, gas, and mineral leases, interests, and royalties in north Louisiana.  In February 2009, Tower Hill entered into an agreement with a Texas company known as Furie Petroleum.  By way of the agreement, Tower Hill was obligated to acquire mineral rights on Furie’s behalf.  Furie agreed to deposit $1 million to be used by Tower Hill “solely for the acquisition of Mineral Leases or purchase contracts/options to acquire Mineral Leases.”  A client trust account for Davis’s law firm was used for escrow.  After Furie made the deposit, Davis transferred the $1 million out of the firm’s trust account into a Tower Hill escrow account and then used the funds to address personal and business expenditures.  In June 2010,Davis and his wife filed for Chapter 7 bankruptcy in the Western District of Louisiana.  They subsequently sought to convert the bankruptcy case from Chapter 7 to Chapter 11.  A hearing was held on that motion in August 2010.  During the proceeding, Davis falsely stated under oath that Furie was aware of the disposition of the $1million deposit after he removed the funds from the client trust account.  In truth, at no time prior to litigation, did Davis advise Furie or its representatives that he had transferred the money out of the Tower Hill escrow account and used the funds for personal and unrelated business purposes.

He was sentenced to a five year prison term. (Mike Frisch)

September 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 14, 2015

Criminal Driving Leads To Recommended Suspension

A suspension of two years and until further court order should be imposed on an attorney for ethics violations found by the Illinois Review Board.

This matter arises out of the Administrator's  five-count Complaint, filed on November 18, 2014. It was alleged that Respondent  committed the misdemeanor criminal acts of driving while his license was  suspended on three occasions and driving under the influence of alcohol on one  occasion; failed to report his convictions to the Administrator; and failed to  cooperate in his disciplinary investigation.

The Hearing Board found that all of the charges of  misconduct were proved and that Respondent committed criminal acts that  reflected adversely on his fitness as a lawyer; failed to notify the  Administrator of his convictions; and knowingly failed to respond to lawful  demands for information from the Administrator.

On sanction

We conclude that a suspension of more than one year  is warranted based upon the aggravation. The aggravation in the case before us  is far more serious than in the above cases in which a one-year suspension was  imposed. Respondent was previously disciplined. He did not adequately cooperate  in his prior disciplinary proceeding and, likewise, did not adequately cooperate  in his current disciplinary proceeding. He was given the opportunity to avoid a suspension, by being placed on probation in his  previous matter. However, he violated the conditions of probation set by the  Supreme Court. He was made aware of his alcohol dependence and his need for  treatment in 2005. Yet, he has failed to acknowledge that he has a problem with  alcohol, has failed to obtain recommended treatment, and has even continued to  consume alcohol after the charges in this matter were filed.

We further conclude that a suspension until further  order of the Court is necessary in this case to protect the public and the legal  profession, as in the cases cited above. Respondent must be required to prove he  is fit to be an attorney, and is willing and able to obey the law and the rules  of ethics. As Dr. Conroe opined, Respondent must show that he has abstained from  alcohol for at least one to two years to show recovery from his Alcohol Use  Disorder.

(Mike Frisch)

September 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Suspended For Failure To Appear To Be Reprimanded

An attorney was suspended for her failure to appear to receive a public reprimand from the Georgia Supreme Court

Although Goodnight was notified on three separate occasions in accordance with Bar Rule 4-203.1 to appear for the reprimand, she failed to appear at the dates and times specified for the reprimand without submitting a written request to be excused from appearing. Therefore, the Court hereby suspends Goodnight from the practice of law from the date of this opinion until such time as the reprimand is administered. Bar Rule 4-109. Once Goodnight appears for and is administered the reprimand and the State Bar confirms that Goodnight received her reprimand, the State Bar is directed to file a motion in this Court to lift the suspension.

(Mike Frisch)

September 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Lack Of Candor Dooms Bar Admission

The Georgia Supreme Court has denied admission to an applicant who had demonstrated lack of candor in his law school applications and elsewhere

the Special Master found that Huddleston had falsely answered questions on his application for admission to Barry University School of Law; that he falsely answered questions on his application for transfer admission to John Marshall Law School; and that he falsely answered questions and failed to fully disclose requested information on his original application for certification of fitness; all of which led the Special Master to conclude that “[Huddleston’s] failure to adequately and fully disclose his previous arrests, charges, and convictions evidences a pattern of lack of candor and honesty.” The Special Master recommended to the Board that it delay making any ruling on Huddleston’s application for six months in order to give Huddleston an opportunity to provide any evidence of “positive action showing rehabilitation.” However, while the Board accepted the Special Master’s findings of fact and conclusions of law, it did not delay its ruling on Huddleston’s application and voted to issue an Order of Denial to Huddleston, which prevented him from sitting to take the Bar Exam. Huddleston appeals from the Board’s decision, and, for the reasons that follow, we affirm.

The court

Here, evidence supports the Board’s conclusion that Huddleston has not carried his burden of establishing that he has the requisite character and moral fitness to practice law. Indeed, in both of his initial law school applications and in his original application for certification of fitness, Huddleston consistently chose to conceal, rather than disclose, his relevant criminal background and academic history. He repeatedly gave false answers to direct questions about his criminal and academic background, and, even when directly confronted about his lack of candor on numerous occasions, he still chose to omit relevant portions of his record that should have been revealed from the beginning. Rather than showing that Huddleston has the requisite character and moral fitness to practice law, the record reveals that Huddleston

has an inclination for misleading and evasive behavior regarding inquiries into his criminal past and his [academic background] which, at best, shows a complete lack of diligence and judgment, which goes to his fitness, and, at worst, a lack of candor, which goes to his character. His . . . lack of complete candor during the law school application process and the bar application process evidence a lack of judgment and a failure of integrity, character, professionalism, and the requisite moral fitness required of prospective members of the Bar.

In re Payne, 289 Ga. 746, 749 (1) (715 SE2d 139) (2011).

(Mike Frisch)

September 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Multiple, Systematic Trust Violations

The Iowa Supreme Court accepted findings of misconduct but rejected the Attorney Disciplinary Board's proposed public reprimand in favor of a 30-day suspension.

The attorney is a sole practitioner admitted in 2010.

He had used a fee in a drunk driving case before it was earned and 

Lubinus handles collections cases on a contingent-fee basis, usually receiving between twenty and twenty-five percent of the amount collected. In this area of practice, Lubinus’s law firm uses a computerized accounting system that processes payments for clients and calculates the contingent fees he is entitled to withdraw from the trust account. In June 2013, Lubinus deposited $20,379.47 total into his trust account. In July, his deposits totaled $30,879.42. During June and July, Lubinus made transfers totaling $6600 from his trust account to either his office operating account or his personal bank account. Lubinus acknowledges these funds had not yet been earned, at least in part because Lubinus had not yet completed the work for his clients by providing them with their respective shares of the collection payment.

These transfers were made electronically, and Lubinus did not initially let his support staff know about them, nor did he provide contemporaneous notice to his clients. These transfers caused accounting errors, problems with monthly reconciliations, and other issues with Lubin us’s trust account. Lubinus restored $6100 to the trust account in late July and subsequently placed another $500 in escrow when he realized he had not restored the full $6600.

Lubinus reported his own actions to the Board. In an affidavit, Lubinus explained that when the premature withdrawals of $6600 occurred, “I was at a financial low point in my career. I felt desperate and did not see any way out of my short term money problems.”

Lubinus has ceased making electronic transfers out of the trust account, so all transactions from the trust account are now handled by check only. Lubinus has also taken on a law partner. The parties agree that no client lost funds as a result of Lubinus’s actions and that Lubinus has repaid all funds to his trust account that were improperly transferred.

The court

when an attorney has committed multiple or more systematic trust account violations, we have imposed suspensions, often of thirty days.

There was mitigation but 

The Board has not alleged, and we do not find, that Lubinus has misappropriated client funds such that revocation is warranted. The parties’ factual stipulation is not particularly detailed. Nevertheless, it appears that as debt collection funds came into the trust account, Lubinus withdrew some of those funds, but not in excess of what would have been his share of those funds after proper calculations and disbursements had been performed. The OWI incident is somewhat more troubling. There, Lubinus withdrew $400 from the trust account “to cover this client’s bond.” Later, he received other funds from the client and no longer needed additional money for the bond—yet he did not restore the $400 to the trust account. Still, we cannot find that Lubinus intentionally misappropriated funds; at most, he failed to pay them back when it turned out the client didn’t need them, and the record is not even clear whether the retention of the $400 was intentional or an inadvertent error.

Nor was there a good faith belief that the used funds had been earned. Thus, suspension. (Mike Frisch)

September 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Interim Suspension For Convicted Former Prosecutor

A former assistant district attorney had been suspended by the Massachusetts Supreme Judicial Court.

Boston,com reported on criminal charges against the attorney in January 2015

A former Middlesex Assistant District Attorney was indicted Thursday on charges he accepted bribes and illegally slipped confidential information from his office to a drug dealer in exchange for painkillers.

Stephen Gilpatric, 35, of Somerville allegedly leaked sensitive records—including a Board of Probation record, police report, photograph and other identifying information—about another man in exchange for oxycodone.

Authorities said Gilpatric also provided confidential law enforcement information—a criminal record and an organizational chart of a drug ring—to the same supplier with hopes of receiving more pills.

Gilpatric also allegedly accepted a $1,500 bribe to help a woman get her son’s commercial driver’s license back. He now faces charges of unlawful gratuity, unlawfully communicating criminal offender record information and receiving unlawful compensation.

There was no evidence Gilpatric leaked information related to criminal cases he was personally investigating or prosecuting, Middlesex District Attorney Marian Ryan wrote in a statement.

The alleged incidents occurred before 2011. Prosecutors said Gilpatric was spending hundreds of dollars a week to maintain his habit.

“Our employees hold important positions of public trust and we take immediate action when that trust may have been violated,” she said. “There is no evidence that any cases previously handled by Gilpatric were compromised or that he was involved in the distribution of narcotics.”

Gilpatric worked for the Middlesex District Attorney from 2007 to 2014, when an investigation into the allegations began last October. He was suspended without pay and later terminated on November 11.

He was most recently employed in the office’s Public Protection, Anti-Terrorism, Corruption and Technology unit, handling prosecutions of public corruption, white collar crime and major narcotics cases.

CBS Boston reported that he entered a guilty plea shortly after the criminal charges were filed. (Mike Frisch)

The suspension is temporary pending further proceedings. (Mike Frisch)

September 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, September 13, 2015

Prosecutor's Broken Promise Leads To Vacated Count

The New Mexico Supreme Court vacated a tampering with evidence conviction in order to hold the prosecutor to a promise made to the defendant

this Court has previously held that a plea-bargained sentence must be fulfilled by the prosecution, and if not, will be enforced by the courts...

In this first-degree murder appeal, we apply that principle of law to a prosecutorial promise to dismiss a tampering-with-evidence charge if the accused would locate and produce the murder weapon. Here, Defendant Donovan King produced the weapon, but the prosecutor did not drop the charge as promised and Defendant was convicted of tampering with evidence. Accordingly, we reverse the tampering conviction. Affirming all remaining convictions, including first-degree murder, we remand for resentencing.

The court

this appeal presents a kind of hybrid of custodial statements made to a police officer and a plea agreement negotiated with a prosecutor. Defendant only talked with Detective Martinez. However, the level of participation by the prosecutor is significant and cannot be overlooked. In the initial discussion with Defendant, Detective Martinez was very careful not to promise dismissal because he had no authority to make such an offer (“Look, I can’t make that promise, but . . . .”). But the prosecutor did have the authority, which appears to be exactly why the detective then conferred with the one person who could “make that promise”: “the district attorney that is actually charging you.”

After talking directly with the prosecutor, Detective Martinez, acting as a kind 10 of proxy, relayed the prosecutor’s offer—not the detective’s offer—that the prosecutor would dismiss the tampering charge if Defendant showed the police where the tampered-with evidence—the hidden murder weapon—was located. Importantly, there is no claim here that the detective misunderstood or misrepresented the prosecutor’s offer. At the suppression hearing, the same prosecutor who made the offer played the audio interview between Detective Martinez and Defendant without any contradiction, objection, or claim of inaccuracy.

The fundamental problem is not the officer’s willingness to participate in the discussion Defendant initiated, but the prosecutor’s failure to follow through on his offer. Had the prosecutor dismissed the tampering charge, Defendant would be in no position to complain about having given the statement or produced the murder weapon; he would have received the benefit of his bargain. Thus, it is the level of participation by the prosecutor that places this case into the realm of a plea agreement...

A literal, finely-parsed reading of the exchange might suggest that the prosecutor promised only to “talk dismissal” of the tampering charge, but not necessarily to dismiss the charge. The State makes such a claim on appeal. A fair reading of this exchange, however, leads ineluctably to a different conclusion. If Defendant showed the branch to Detective Martinez, then the tampering charge really would be dismissed; they would not just “talk” about it. Clearly, that is what Defendant believed and reasonably so. Why else would he locate the branch for Detective Martinez if not in reliance on such an agreement? Defendant performed on his promise; the prosecutor did not. Accordingly, we must consider the appropriate remedy for the prosecutor’s unfulfilled promise.

The "appropriate remedy" was specific performance of the promise. The court affirmed the remaining counts and remanded for resentencing. (Mike Frisch)

September 13, 2015 | Permalink | Comments (0)

Marijuana Advice Blessed In Massachusetts

The Massachusetts Board of Bar Overseers has adopted a policy regarding lawyers advising on medical marijuana

The Massachusetts Board of Bar Overseers and Office of the Bar Counsel will not prosecute a member of the Massachusetts bar solely for advising a client regarding the validity, scope, and meaning of Massachusetts statutes regarding medical marijuana or for assisting a client in conduct that the lawyer reasonably believes is permitted by Massachusetts statutes, regulations, orders, and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.

This policy appears to be consistent with Rule 1.2(d) of the Massachusetts Rules of Professional Conduct

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.

(Mike Frisch)

September 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 12, 2015

Conditional Admission In Louisiana

An applicant has been conditionally admitted to practice in Louisiana

Petitioner successfully passed the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds, citing his failure to update his law school application to disclose two criminal offenses with which he was charged while he was a law student.

On petitioner’s application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. The commissioner held a character and fitness hearing pursuant to Supreme Court Rule XVII, § 9(D)(6). A representative of the law school testified at the hearing and explained that when petitioner submitted his application in 2011, there was no requirement to notify the law school of criminal charges that arose after enrollment.

Following the proceedings, the commissioner filed his report with this court, finding that petitioner should not be denied admission for failing to update his law application to disclose criminal charges that occurred in 2012 and 2013, after he was enrolled in law school, as the law school’s application form did not require such a disclosure. Nevertheless, the commissioner found that petitioner did not act consistently with the high standards of conduct expected of lawyers. Accordingly, the commissioner recommended that petitioner be conditionally admitted to the practice of law. Neither party objected to this recommendation.

The conditions are in place for a year and until further court order.

A second applicant also was conditionally admitted subject to monitoring by the Lawyers' Assistance Program.

Justice Crichton dissented in part and would not impose the conditions

I concur with the result in the per curiam opinion, but only insofar as petitioner is granted admission. In my view, despite petitioner’s consent to the recovery agreement proposed by LAP, the appropriate result would be to grant petitioner admission without any conditions. Upon close examination of the record, including the unique circumstances presented, I believe that conditional admission is unduly harsh and the five-year probationary period, with its attendant burdensome testing requirements for the individual, is unwarranted. While we accord appropriate discretion to LAP recommendations, we are not necessarily bound to these recommendations, even if petitioner has indicated his or her consent. In all cases, the court should carefully scrutinize the severity of the punishment proposed in relation to the facts in the record before us. On these particular facts, I would grant petitioner’s admission without any conditions.

Even though the identity of the applicants is not disclosed, it would be helpful to both aspiring lawyers and the public if the court explained in greater detail its reasoning in these conditional admission cases. (Mike Frisch)

September 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Discipline Of Doctor May Be Enjoined

The Nevada Supreme Court reversed and remanded a district court's denial of injunctive relief to a medical doctor sanctioned for allegedly showing up for surgery in a state of intoxication.

His blood alcohol tested at .06

Respondent Nevada State Board of Medical Examiners found that Dr. Tate had violated NAC 630.230(1)(c) by rendering services to a patient while under the influence of alcohol and in an impaired condition. The Board suspended Dr. Tate's license for six months, issued a public reprimand, ordered him to complete an alcohol diversion program and pay $35,564.44 in investigation and prosecution costs and a $5,000 fine, and to complete continuing medical education on the subject of alcohol.

The court

NRS 630.356(1) grants physicians the right to judicial review of Nevada State Board of Medical Examiners final decisions, while NRS 630.356(2) simultaneously prohibits district courts from entering a stay of the Board's decision pending judicial review. As a matter of first impression, we are asked to determine whether this prohibition violates the Nevada Constitution's separation of powers doctrine. Because we conclude that it does, we reverse the district court's order denying appellant injunctive relief and remand this matter for proceedings consistent with this opinion...

To bar a district court's ability to grant injunctive relief while judicial review is pending effectively "render[s] the appeal a meaningless and merely ritualistic process," Smothers, 672 S.W.2d at 65, as the sanctions imposed will likely have been implemented or completed before the court could judicially review the case. Such sanctions may, among other things, irreparably penalize a physician through loss of patients, income, job opportunities, and/or damage the physician's professional reputation and standing if the court were to later overrule the Board's decision and the sanctions imposed.


Here, Dr. Tate has been sanctioned with, among other things, fees and fines, a public reprimand, and suspension of his license for a six month period. If the district court were prohibited from staying the sanctions imposed until it can determine whether the Board's decision was in error, Dr. Tate may be irreparably penalized thus negating the purpose of his right to judicial review. Moreover, under federal law, these sanctions must be reported to the National Practitioner Data Bank within 30 days of their implementation, 45 C.F.R. §§ 60.5 and 60.8, resulting in the Board's decision and sanctions against Dr. Tate being recorded in a national database before the district court can review the Board's decision. Thus, the statutory prohibition against stays would effectively "eradicate[ ] any practical reason for taking the appeal." Smothers, 672 S.W.2d at 65.

Furthermore, we are inclined to agree with Dr. Tate that public interest militates in favor of injunctive relief when the district court deems it necessary...

(Mike Frisch)

September 12, 2015 in Comparative Professions | Permalink | Comments (0)

Friday, September 11, 2015

Not Too Late To Sue For Legal Malpractice

Defendants in a legal malpractice claim were not entitled to judgment on statute of limitations grounds, according to a recent opinion of the South Carolina Supreme Court.

The court overruled prior precedent that started the running of the statute 

In this legal malpractice case, Stokes-Craven Holding Corporation d/b/a Stokes-Craven Ford ("Stokes-Craven") appeals the circuit court's order granting summary judgment in favor of Scott L. Robinson and his law firm, Johnson, McKenzie & Robinson, L.L.C., (collectively "Respondents") based on the expiration of the three-year statute of limitations. Stokes-Craven contends the court erred in applying this Court's decision in Epstein v. Brown, 363 S.C. 372, 610 S.E.2d 816 (2005), and holding that Stokes-Craven knew or should have known that it had a legal malpractice claim against its trial counsel and his law firm on the date of the adverse jury verdict rather than after this Court affirmed the verdict and issued the remittitur in Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 691 S.E.2d 135 (2010). We overrule Epstein, reverse the circuit court's order, and remand the matter to the circuit court for further proceedings consistent with this opinion...

We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations. Because the circuit court relied upon Epstein to hold that the statute of limitations began to run on the day of the jury's verdict, we reverse the court's grant of summary judgment without prejudice to either party's right to move for this relief under our newly announced statute of limitations standard for legal malpractice suits. Additionally, we find the circuit court abused its discretion in denying Stokes-Craven's motion to compel the production of communications between Respondents and their malpractice carrier because there was no evidence to support the court's ruling.

Chief Justice Toal dissented

In determining when the statute of limitations period commences for legal malpractice actions, the majority adopts a subjective standard that is dependent on whether "the client has [] become aware of the injury prior to the decision on appeal." Because the General Assembly explicitly provided for an objective standard, rather than the majority's new subjective standard, I write separately.

The Chief Justice was joined by Justice Kittredge. (Mike Frisch)

September 11, 2015 in Clients | Permalink | Comments (0)

Corporation Needs Attorney

A non-attorney may not represent his company in litigation, according to an opinion issued today by the Vermont Supreme Court

Plaintiffs Michael Bandler and MB&Co, Ltd. (“corporation”) bring an interlocutory appeal from the trial court’s ruling that Bandler, a nonattorney, may not represent corporation in this case. He argues that the trial court violated his due-process rights by ruling on the basis of the parties’ respective written submissions on the issue of representation without giving him prior notice of its concerns about his representation so that he could respond “by way of papers [or] argument” before the trial court issued its ruling. We disagree and affirm.

The facts

In December 2012, on behalf of Michael Bandler & Co., Inc., Bandler signed a
retainer agreement pursuant to which defendant Cohen Rosenthal & Kramer LLP (CRK) agreed to “assume representation of Michael Bandler & Company, Inc.” in connection with the classaction arbitration. Whether CRK also assumed any duty to Bandler individually appears to be a point of dispute between the parties. This agreement, and the subsequent course of CRK’s representation, gave rise to the present lawsuit in which Bandler and corporation have sued CRK, alleging fraud in the inducement, breach of contract, legal malpractice, and violation of Vermont’s consumer-protection law.

Before answering plaintiffs’ complaint, CRK filed a motion to dismiss, arguing
that Bandler does not meet the criteria for allowing a nonattorney to represent a corporation
under Vermont law. In particular, CRK detailed Bandler’s pro se litigation history and pointed
to an instance in which a court sanctioned Bandler for a frivolous lawsuit. CRK also referenced
this Court’s conclusion that an affidavit submitted by Bandler in an unrelated lawsuit was “too incredible to be believed by reasonable minds.”

...CRK argued that because of this past history, and because a self-represented litigant is not bound by the ethical rules of attorneys, allowing Bandler to represent corporation would be unduly burdensome to CRK and to the court.

The court concluded that the denial of pro se corporate representation did not violate due process. (Mike Frisch)

September 11, 2015 in Current Affairs | Permalink | Comments (0)

Family Fued

The Iowa Supreme Court has imposed a public reprimand on an attorney

for the attorney having a witness sign a will outside the presence of the testatrix and the other witness and then giving the will to the executrix to probate without disclosing this fact.

The misconduct was in the context of a messy situation in the attorney's family

Haskovec is part of a large family, which began feuding decades ago. Family members put Haskovec in the middle of this feud when they asked him to draft a new will for one of his aunts, Edith Benson. Benson had previously executed a will and power of attorney documents in 2005, naming her nephew, Kenneth M. Bronner, as the executor of her estate and his son, Kenneth R. Bronner, as her power of attorney.

On July 6, 2010, Haskovec, Benson, and Benson’s sister, Elsie Pint, met for two hours at Benson’s home to discuss the provisions of a new will, a new power of attorney, and a new durable power of attorney for health care decisions. Haskovec and Benson discussed removing certain family members from Benson’s will and naming new individuals as her power of attorney and durable power of attorney for health care decisions. Haskovec, Benson, and Pint also discussed how to change the beneficiaries on Benson’s Ameriprise Financial account. Haskovec did not change the beneficiaries on this account. Rather, he advised Benson to speak with the financial agent on the account to determine the proper way to make that change.

On July 8, Haskovec returned to Benson’s home to execute the new documents. She designated new beneficiaries and a new executrix. Haskovec and Pint were with Benson when she executed the will, and Haskovec signed the will as a witness. For some unknown reason, Pint did not sign the will as a witness. The will was not a self-proving will because Haskovec did not use self-proving wills in his practice.

In early August, Benson’s health began to fail and she entered the Cresco hospital. It was at that time other family members discovered the changes Haskovec had made to Benson’s will and power of attorney documents. The hospital where Benson was admitted notified Benson’s great-nephew, Kenneth R., and his wife, Terri Bronner, that other family members were trying to move Benson out of her local hospital. After learning from family member Susan Randall that Benson had named Randall as her new power of attorney and executrix under the 2010 documents, Kenneth R. went to Haskovec’s office to question him about the changes to the will.

When questioned by Kenneth R., Haskovec confirmed he had written the new will and other documents executed by Benson. After this discussion Haskovec reviewed the will and discovered that Pint, who had been present at the execution of the will, did not sign the will as a witness. Soon after discovering Pint had not signed the will, Haskovec consulted the Iowa Code and noted that for a will to be valid, two witnesses must sign it in the presence of the testator and each other. See Iowa Code § 633.279(1) (2011). Though Haskovec recognized Benson’s will did not meet this requirement, he thought there might be some legal argument a probate attorney could make to save the will.

Prior to Benson’s death, he sent the will to Arizona for Pint to sign the will as a witness. Pint then signed the will pursuant to Haskovec’s instructions and returned it to his office.

On August 26, Benson passed away. In mid-September, Haskovec gave the 2010 will to Randall so she could probate it. Haskovec did not disclose to Randall the fact that Pint signed the will outside the presence of himself and the testatrix. Randall took the will to another attorney, Michael Dunbar, so he could open an estate.

After receiving the will, Dunbar sent Haskovec an Affidavit of the Subscribing Witness. After receiving the affidavit, Haskovec contacted Dunbar. Haskovec readily admitted he had sent the will to Pint for her signature, as she had not signed it on the same day as he and Benson had. He informed Dunbar he would not sign the affidavit because the statements in it were not accurate. Dunbar then informed Randall the will was invalid and he could not probate it. Another attorney, Brian McPhail, ultimately probated the 2005 will.

The court could not identify a comparable case with similar facts. (Mike Frisch)

September 11, 2015 in Bar Discipline & Process | Permalink | Comments (0)