Monday, October 26, 2015

Catch 2

An attorney who employed a disbarred lawyer was suspended by the New York Appellate Division for the Second Judicial Department

Notwithstanding the respondent's claim that [former attorney] Heller merely performed work as a "legal assistant," the Special Referee found that Heller continued to practice law while in the respondent's employ and that, by permitting Heller to do so, the respondent assisted a nonlawyer in the unauthorized practice of law. Although the respondent's counsel urges this Court to give no weight to the findings of the Special Referee with respect to credibility, since he did not preside over the hearings, we note that, after this matter was reassigned to that Special Referee, the respondent chose not to present further evidence and argument when given the opportunity to do so. Nevertheless, upon review, we conclude that the evidence supported the Special Referee's findings. The respondent testified at the hearing that he hired Heller because Heller knew everything about the respondent's law practice, given his prior legal experience with real estate matters, and as a bankruptcy lawyer. Indeed, the respondent relied upon Heller's legal knowledge and expertise to allow Heller great autonomy in the performance of his work on clients' legal matters, and to delegate to him responsibility to act as the principal contact with clients with little or no supervision. Further, evidence of the respondent's complicity in Heller's deceptive conduct is found in his endorsement of Heller's use of a false identity, "Craig Miller," when communicating with the firm's clients and others. We find that the respondent authorized Heller to use an assumed name, in part, to conceal and deceive others concerning Heller's status as a disbarred attorney, and that Heller misled the respondent's clients to believe that he was an attorney named "Craig Miller." The record also reflects that the respondent authorized Heller to improperly solicit clients on behalf of the respondent's firm...

The court imposed a two-year suspension. (Mike Frisch)

October 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, October 24, 2015

Scorned But Compensated

An opinion authored by Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit

“Hell hath no fury like a lawyer scorned.” Tom Gordon, Hell Hath No Fury Like a Lawyer Scorned, WALL ST. J., (Jan. 28, 2015), The problem with scorning a lawyer is that lawyers tend to sue. So it is here. A law firm based in the District of Columbia, Bode & Grenier, LLP, provided legal services to three Michigan-based companies owned and managed by Carroll Knight (“appellants”). More than ten years into the relationship, appellants stopped paying the bill. The predictable result? Litigation. The law firm prevailed in the district court, winning a judgment for $70,000 in overdue legal fees—plus $269,585.19 in legal fees for having to litigate over $70,000 in legal fees. We affirm the district court.

The law firm represented the client from 1994 to 2008

advising on taxation, gasoline contracts, petroleum futures and various regulatory enforcement and litigation matters. Throughout most of the relationship, no written agreement governed the terms of legal representation or manner of payment. Appellants paid the law firm monthly based on oral agreements...

On November 25, 2005, catastrophe struck. Approximately 100,000 gallons of petroleum spilled out of holding tanks owned by appellants in Toledo, Ohio. Appellants stopped the leak, but were powerless to stop the flood of regulatory actions that followed in its wake. A month after the spill, Knight called Bode & Grenier’s  managing partner, William Bode, to request the firm’s services. The firm soon tackled regulatory enforcement proceedings in Ohio, a lawsuit in federal court in Ohio, and counseled the company on other regulatory issues. As before, the firm billed appellants monthly.

The suit came when the fees went unpaid.

The court applied D.C. law

Here, the factors weigh in favor of applying D.C. law, not Michigan law. The first two factors—the place of contracting and place of negotiation—are inconclusive. Mr. Knight negotiated from Michigan, and Bode & Grenier from D.C. Likewise, the fifth factor—domicil—weighs evenly on both ends. In a dispute over a service contract, no factor matters more than the place of performance.

Nearly all of the legal services at issue were performed in D.C. by attorneys licensed to practice in D.C. See Appellee Br. 28–30. While the representation required occasional travel outside D.C. (mainly to Ohio), we find no evidence suggesting the firm’s attorneys routinely practiced in Michigan. The firm managed the representation from its sole office, located in D.C. The fourth factor—the location of the subject matter of the contract— supports applying D.C. law for the same reasons. This contract called for legal services managed and performed in D.C.

As a result, the law firm was able to recover fees for representing itself in this litigation. (Mike Frisch)

October 24, 2015 in Billable Hours, Clients | Permalink | Comments (0)

Friday, October 23, 2015

Attorney Suspended After Multiple Alcohol-Related Incidents

The Louisiana Supreme Court has imposed a year and a day suspension of an attorney for a series of alcohol-related incidents.

He enrolled in treatment through the Bar program after the ODC opened an investigation of three DUIs  but the cure did not take. 

the Palmetto staff determined that respondent suffered from alcohol abuse and avoidant, dependent, and narcissistic personality features, and recommended that he participate in an intensive outpatient substance abuse treatment program (“IOP”). By letter to respondent dated June 29, 2011, LAP provided respondent with the names of two approved IOP facilities in the New Orleans metro area; however, respondent declined to enroll in either IOP. Instead, respondent relocated to Texas, where he likewise declined to enroll in an IOP.

He returned to Louisiana but

At approximately 6:00 p.m. on August 2, 2012, police officers working a security detail at the Louis Armstrong New Orleans International Airport were summoned to the American Airlines concourse with complaints that an intoxicated passenger was causing a disturbance at the departure gate. According to the police report, when the officers arrived at the gate, an airline employee pointed out respondent. The employee indicated that respondent had been denied boarding on his flight leaving at 6:30 p.m. because of his highly intoxicated state, which caused him to be unable to walk or stand without assistance. As the police officers spoke to respondent, they noticed a very strong odor of an alcoholic beverage emitting from his breath. In addition, his speech was slurred and his eyelids appeared heavy. The officers informed respondent that he would be permitted to make travel arrangements for the following morning, but that he would have to leave the gate area in the meantime. Respondent refused to comply with the officers’ instructions, and instead became argumentative and frequently used profane language in a loud voice. After about ten minutes, he stood up and walked twenty feet toward the concourse exit, but then sat down again, refused to move, and resumed his use of profanities toward the officers. The officers then arrested respondent for disturbing the peace – public intoxication. Once respondent was placed into a holding cell at the airport, he urinated through the steel meshing of the cell onto the opposite wall. He also told officers that he is an attorney and his mother is a retired judge, and that he and his family would file a lawsuit against the officers for his arrest.

Charges of disturbing the peace were later dismissed but he falsely denied he was intocicated in the disciplinary proceedings.

He has failed in further efforts to control his drinking. After another "successful" treatment he picked up another DUI in June 2014.

The court noted his treatment lapses in imposing sanction. (Mike Frisch)

October 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Court Lacks Confidence: Oral Argument Did Not Help

The Kansas Supreme Court has ordered a one-year suspension of an attorney for misconduct in the sale of a trucking business he had founded with a childhood friend.

The disciplinary case was based on a civil judgment finding a breach of fiduciary duty to the buyers. 

The court on sanction

At the hearing before this court, respondent's counsel argued that his client was guilty of sloppy recordkeeping after the trucking company sale and that the filing of the amended journal entry after disciplinary proceedings were under way was the work of lawyers representing his client in the civil litigation, rather than based on any desire or action of his client. Given the record compiled in the lawsuit, the record of the panel hearing, and the respondent's decision not to file exceptions to the panel's findings and conclusions, counsel's efforts to minimize respondent's culpability for dishonesty were unpersuasive.

When respondent spoke for himself at the hearing before this court, he asserted that he had not thought of himself as a fiduciary in the trucking company transaction, that he had been a passive investor who thought of himself as a mere seller, and that he had left the details of receivables and their correct distribution to his fellow seller. These arguments do not fill us with confidence that, even today, respondent has a firm grasp on the nature and wrongfulness of his ethical lapses, and we are particularly troubled because of his substantial training and experience not only as a tax lawyer but also as a certified public accountant.

I have now seen a number of Kansas cases where the respondent attorney directly addresses the court. The video of the oral argument is linked here.

Are there other places where an attorney represented by counsel argues their own case? (Mike Frisch)

October 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

A Boyfriend Named Evilsizer

The Iowa Supreme Court has held that a criminal defendant's threats against  a Dubuque County Attorney did not require that entire office's disqualification from the prosecution.

In this case of first impression, we are asked to decide whether under the facts presented here, the district court was correct in granting the motion for recusal or disqualification of the individual prosecuting attorney and the entire Dubuque County Attorney’s Office in its prosecution of the defendant. For the reasons set forth below, we conclude that the district court’s decision to disqualify the individual prosecuting attorney constituted an abuse of discretion. Consequently, it was likewise unnecessary to disqualify the entire Dubuque County Attorney’s Office. The writ of certiorari is sustained, and the case is remanded to the district court for further proceedings.

The defendant's threats came after a hearing on her boyfriend's criminal case. Although they were not co-defendants, they shared the same prosecutor.

On May 30, Erickson attended the bond review hearing for her boyfriend, James Evilsizer. Barnes also represented the State in the case against Evilsizer. After the hearing, the district court denied his requested relief, and Evilsizer was returned to the Dubuque County jail. Later that day, Erickson visited Evilsizer at the jail. The conversation between the two was video recorded. During the recorded conversation, Erickson made multiple disparaging remarks about Barnes. Erickson called Barnes a “c*nt,” a “biased c*nt,” and “literally Satan.”

Erickson also made remarks that could be taken as threats against Barnes. After Evilsizer told Erickson that her horoscope for the day said she was going to have a romantic evening, Erickson responded, “Yeah, with a sniper rifle for the State.” Later in the conversation, Erickson told Evilsizer, “I’m on the verge of going and buying a sniper rifle and just shooting this chick in her face.” When the two were discussing Erickson seeing Barnes after Evilsizer’s bond hearing, Erickson said she had thought, “Really, b*tch? You’re lucky we’re in court right now and I’m pregnant.”

Erickson also told Evilsizer that she was going to “get [Barnes] disbarred” by reporting her to the “judicial disciplinary committee” and that the committee would “rip her apart.” In addition to the remarks about the assistant county attorney, Erickson told Evilsizer that she was “about to snap the f*ck out,” that the State was “pushing [her] over the edge,” and that she was “borderline suicidal.”

These recorded remarks led to the revocation of Erickson's bond.

The court

Here, the district court did not adequately explain its reasoning for concluding that Barnes had an actual conflict of interest or a serious potential for a conflict of interest. The district court provided no authority to support its decision to disqualify Barnes. The district court order also did not clarify under which standard Barnes was disqualified—actual conflict or serious potential for conflict...

We agree with the reasoning of other courts that have addressed the issue that threats alone are not sufficient to support a conflict of interest for a prosecutor which would require disqualification or recusal.

And there would be no imputed disqualification to the  county attorney's office.

THOnline reported on the oral argument and the underlying case. (Mike Frisch)

October 23, 2015 in Professional Responsibility | Permalink | Comments (0)

Footsteps In Snow Lead To Tattoo Parlor, Arrest, Conviction, Disbarment

An attorney convicted of robbing a financial institution was disbarred by the New York Appellate Division for the First Judicial Department.

The Wayne Independent reported on the investigation of the Citizens Bank robbery

Witnesses outside the bank said upon exiting the bank the suspect ran southbound on Willow Ave., crossed the road and ran onto Old Willow Ave. Surveillance video was viewed at Rent-E-Quip, a business located at 416 Old Willow Ave. Footage shows the suspect running southbound on Old Willow Ave at approximately 1:52 pm. Responding Pennsylvania State Police officers assisted with the investigation and a PSP officer located a single set of shoeprints off the left side of the roadway near 461 Old Willow Ave., approximately 200 yards south of Rent-E-Quip. Said shoeprints were in the snow and they led upward into a wooded area. Said prints were followed through the wooded area. The prints led to a side door of a business on Grandview Ave. that being a tattoo parlor at 164 Grandview Ave. The shoeprints were later photographed and measured and appear consistent with a 9-1/2 size.

Pennsylvania State Police officers entered the tattoo parlor business, which was open at the time, and made contact with a Steven R. FRENCH. A photo of him was taken and the investigation continued. Shortly thereafter FRENCH went to Cordaro's Restaurant 186 Grandview Avenue and then obtained a Maple City Taxi Cab and was taken to Dover, New Jersey. FRENCH paid $160.00 cash for the cab fare and a $20.00 tip.

The attorney was picked out of a photo array. A witness at the tattoo parlor said he had arrived there "sweaty and breathless." (Mike Frisch)

October 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Use Of Collateral Estoppel In Bar Discipline Upheld

An attorney's frivolous positions and related misconduct merit a five-year suspension imposed by the New York Appellate Division for the First Judicial Departmrnt.

The upheld the application of  collateral estoppel to find some of the misconduct

With respect to the charges that were sustained pursuant to the doctrine of collateral estoppel, the Hearing Panel properly found that there was an identity of issues with respect to the underlying orders and that respondent had a full and fair opportunity to litigate those issues (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985]). In each case, respondent was given notice of the possible imposition of sanctions and an opportunity to be heard, and either unsuccessfully appealed, attempted to appeal, or took no appellate action.

Respondent's claim that the Committee admitted, by silence, that her arguments as to collateral estoppel were correct, is nonsensical. Since bringing the collateral estoppel motion, the Committee has consistently maintained the doctrine's applicability to the underlying sanction orders.

As to the remaining charges, respondent's claim that certain documents relieve her of responsibility is unpersuasive. For example, in her letter to opposing counsel in the first case in the Southern District of New York (SDNY), respondent admitted her failure to contemporaneously serve the defendant a copy of her letter to the unassigned judge, making it an ex parte communication. Moreover, contrary to respondent's suggestion, a letter from her client's new counsel in the second SDNY case does not indicate that the client continued to consider respondent to be her counsel; rather, it accused respondent of legal malpractice.

Challenges to the Hearing Panel also were rejected,

The charged conduct is serious and involves the disregard of numerous court orders and the advancement of frivolous claims, resulting in the dismissal of three matters. Moreover, by failing to timely file papers, failing to appear before the Panel, presenting factually and legally unsupportable arguments, accusing the Panel of bad faith, and suggesting that the Committee hacked her email, respondent is displaying the same kind of disregard for the law, the courts, and her adversaries as she displayed in the underlying cases . Her actions reflect a lack of understanding of the basic principles guiding professional conduct. She has failed to demonstrate remorse or acknowledge her wrongdoing, and has not presented any character witnesses or evidence of mitigating factors.

(Mike Frisch)

October 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Sexual Predator Disbarred

An attorney who engaged in truly horrific sexual assault on a number of clients has been disbarred by the Pennsylvania Supreme Court. 

I will not attempt to summarize the findings of the Disciplinary Board, attached to the court's order. The reader is forewarned that the conduct is spelled out in some detail and is sickening.

The Disciplinary Board

The four witnesses who testified were Respondent's personal injury clients. None of the women had prior consensual sexual relations with Respondent or even knew Respondent before the commencement of the attorney-client relationship. None of the women knew each other. Each of the clients testified in detail about Respondent's nonconsensual physical contact subsequent to their retaining Respondent's legal services. The testimony of each witness was credible and left no doubt as to the repetitive, reprehensible nature of Respondent's conduct.

Respondent's attorney-client relationship with each of the witnesses required him to act in the best interests of his clients. He abrogated his duty of loyalty to his clients by having a concurrent personal interest in having sexual relations with his clients, as evidenced by his text messages, emails, telephone calls and physical contacts. Respondent's sexual contacts violated RPC 1.7(a)(2), which prohibits a concurrent conflict of interest...

Respondent's criminal acts consisted of assault on all four of his clients, unlawful restraint of two clients, and patronizing prostitution in the matter of one client. Respondent took advantage of his clients, resorting to criminal behavior and abusing his clients' trust in him. There is no question that such activity reflects adversely on his fitness to practice law.

Law 360 reported on the bar charges. (Mike Frisch)

October 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 22, 2015

Practice Pointer For Prosecutors: Don't Try To Facebook Friend Your Defendant

Public censure was imposed by the Colorado Presiding Judge for misconduct in two matters. 

The first matter was not particularly unusual or notable. It involved failure to safeguard an advanced fee.

The second was at bit less prosaic

When he became a city attorney, Steele prosecuted a juvenile misdemeanor shoplifting case. He met with the minor and her father and negotiated with them a deferred sentence. Soon after, the minor received a Facebook friend request from Steele. During the following week, the initial friend request was withdrawn, only to be followed by two new such requests. The minor did not accept or decline any of them, and Steele eventually canceled the requests. Steele was placed on administrative leave and was subject to an internal investigation for this behavior, which yielded no other evidence that he attempted to contact minors or other defendants. Steele was later terminated. By attempting to engage in a social relationship with a criminal defendant while employed as a prosecutor, Steele violated Colo. RPC 1.7 (restricting the circumstances in which a lawyer may represent a client if the representation involves a concurrent conflict of interest). He also violated Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice) by improperly contacting a juvenile criminal defendant.

The matters were resolved by conditional admission of misconduct. (Mike Frisch)

October 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

The Dead Cannot Settle

The Illinois Administrator has filed a complaint alleging that an attorney in a products liability action failed to disclose the death of his client.

In November 2008 the attorney filed a complaint for a client "on a contingency basis in matters related to injuries caused by a malfunction of Robison’s prosthetic leg."

The client died in January 2013. The attorney was aware of the passing.but nonetheless settled the case for six figures without disclosing the death.

The complaint alleges

 In September 2013, Respondent and James Smith ("Smith"), an attorney with the Greensfelder firm, entered into settlement negotiations via email and, on September 19, 2013, Smith emailed a final offer to Respondent offering to settle the case by paying Robison the amount of $110,000. At the time of the offer, Smith was unaware that Robison was deceased.

At no time prior to or during settlement negotiations did Respondent inform opposing counsel the fact that Robison had died on January 20, 2013.

Respondent withheld the fact of Robison’s death because he knew that Robison’s death would reduce the value of any claims for damages.

On September 24, 2013, Respondent sent an email to Smith stating that "my client has instructed me to accept $110,000 in full and final settlement of this matter. Please provide an appropriate release and I will present it to my client for review and approval."

Respondent’s statement regarding his "client" instructed him to accept the settlement offer...was false and/or misleading, in that by failing to tell Smith that Robison had died, Respondent gave Smith the impression that Robison was alive and had agreed to the settlement.

Respondent knew that the statement regarding his client’s instruction...was false.

The problem came to light when he attempted to substitute the son of the deceased client as plaintiff and enforce the settlement.

the Appellate Court issued an opinion vacating the circuit court’s order and remanding the case for further proceedings. 2015 IL. App. (5th) 140079. The Appellate Court found Respondent’s arguments for concealing the death of his client to be "specious and incredible," adding that "in failing to disclose the fact of the plaintiff’s death, Mr. Gilbreth intentionally concealed a material fact that would have reduced the overall value of the claim for damages."

(Mike Frisch)

October 22, 2015 in Bar Discipline & Process | Permalink | Comments (2)

The Hazards Of State Bar Employment

The West Virginia Supreme Court of Appeals has held that an employee of the State Bar failed to prove that her work caused her condition

Ms. Gresham, an MCLE coordinator, alleges that she developed carpal tunnel syndrome in the course of her employment. Treatment notes by Marietta Babayev, M.D., from January of 2013 indicate that Ms. Gresham reported bilateral hand numbness. An EMG revealed severe bilateral carpal tunnel syndrome, worse on the right; mild left cubital tunnel syndrome; ulnar nerve entrapment at the elbow; and chronic bilateral cervical radiculopathy. Dr. Babayev later opined that the carpal tunnel syndrome was an occupational disease caused by repetitive use of the hands while doing data entry for twenty-six years. Ms. Gresham was referred to Robert Crow, M.D., who found that she had long standing complaints consistent with carpal tunnel syndrome. He also determined that she had neck pain but no radiculopathy, high blood pressure, and osteoarthritis. He recommended surgery on the right hand. Ms. Gresham completed an injured worker questionnaire for carpal tunnel syndrome in which she reported that she has a cervical disc disorder, cervical spondylosis or arthritis, stiff neck/neck pain, high blood pressure, and obesity. An employee questionnaire was also completed for the West Virginia State Bar by Sarah Jones. She stated that Ms. Gresham had been an employee since 1986. Her duties include data entry and emailing using a computer. Her normal work speed was listed as fair out of a possible answer of very slow, slow, fair, fast, and very fast.

The court affirmed conclusions on behalf of the State Bar

On appeal, Ms. Gresham argues that she performed intensive typing at a fast pace for twenty-six years. She further asserts that the Office of Judges’ Order was supported by the evidentiary record, and the Board of Review was wrong to reverse the decision. The West Virginia State Bar argues that Dr. Mukkamala’s report shows that Ms. Gresham did not develop carpal tunnel syndrome as a result of her normal clerical duties. It also asserts that her work was not found to involve the force necessary to develop the condition.

After review, we agree with the reasoning and conclusions of the Board of Review. Ms. Gresham’s job is clerical in nature. West Virginia Code of State Rules § 85-20-41.5 states that normal clerical work does not cause carpal tunnel syndrome. Even though her work load may be large, her duties are still clerical in nature. Additionally, she has an increased body mass, a nonoccupational risk factor for the development of carpal tunnel syndrome.

For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

October 22, 2015 | Permalink | Comments (0)

No Spice Lawyer for Ohio

The Ohio Supreme Court has permanently barred an applicant from sitting for the Bar examination.

the Board of Commissioners on Character and Fitness, having held a hearing at which Libretti testified and having considered Libretti’s supplemental responses to his character and fitness questionnaire, recommends that Libretti’s registration application be disapproved and that he be  practice of law in Ohio. In support of that recommendation, the board cites Libretti’s 1992 federal conviction under the “kingpin” statute for his role in organizing, managing, or supervising a criminal drug enterprise, his involvement in the sale of “spice”—a mix of shredded plant material and man-made chemicals that has been touted as a legal alternative to marijuana—following his release from prison, and his failure to fully disclose certain aspects of his postrelease conduct as required by the terms of his supervised release and by the application to register as a candidate for admission to the practice of law in Ohio.

Libretti was convicted in 1992 and on supervised release after serving 16 years.

His next stop

Shortly after his release from prison and while he was on supervised release in Wyoming, Libretti began engaging in morally (if not legally) questionable conduct involving spice, the man-made marijuana alternative. At first, he used his credit card to finance the spice business of his roommate—a convicted drug dealer whom he had met in a halfway house after his release from prison—and ran the proceeds of that business through his bank account to avoid having them garnished to satisfy his roommate’s child-support obligations. Libretti later stepped in to manage the business on a temporary basis when his roommate went to prison for a probation violation. But shortly after his roommate’s release, authorities searched the home that the two men shared and seized quantities of spice, chemicals to manufacture spice, and $7,200 in cash. The following month, his roommate committed suicide, and Libretti continued his business—selling spice and its components to buyers in Wyoming even after he moved to Ohio in August 2010 to attend law school. He also recruited a known methamphetamine dealer to assist him in the endeavor.

He was arrested on drug charges in 2011 and acquitted but

The board was...struck by what it described as Libretti’s “amoral viewpoint” regarding his criminal activities and his subsequent spice operation. One of his admissions-committee interviewers testified that while Libretti described his conduct as stupid and foolish and recognized the negative impact it had had on his own life and the lives of his family members, he expressed no real concern about the harm that his conduct had visited upon the countless others who were affected by his past criminal activities or his sale of spice.

He also was not truthful in his admission application.

 Rather than fully disclosing the mistakes that he has made since his release from prison, Libretti has intentionally concealed and misrepresented them during every step of the admissions process.

A dissent agrees with the result but would not forever bar a future application. (Mike Frisch)

October 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Unauthorized Practice Enjoined

The Ohio Supreme Court enjoined unauthorized practice by a Pennsylvania limited liability company

Wishgard began operations in 2010 and, at that time, its business was aimed at assisting landowners to organize into groups and negotiate terms of oil and gas leases with third-party lessees. During this process, Wishgard and landowners would enter into Agreements to Market Oil and Gas Rights. The Agreement to Market Oil and Gas Rights attached to OSBA’s Complaint as Exhibit A is a true and accurate copy of a blank/sample Agreement. Pursuant to those Agreements, Wishgard negotiated oil and gas leases with third-parties on behalf of its landowner-clients. Wishgard received compensation for their services under the terms of those Agreements.

During 2010, Wishgard also held group meetings with landowners to educate them about the oil and gas leasing process and to offer their services. At certain times during those meetings, Edward Tygard, as a representative of Wishgard, held in-person meetings with landowners about potential oil and gas leases and answered specific questions about the terms of potential leases and the landowners’ potential legal rights and duties under the terms of the proposed leases.

When an investigation commenced, Wishgard oromptly stopped giving legal advice and responded to the inquiry.

The court embraced a broad definition of practicing law

The unauthorized practice of law is the rendering of legal services for another by any person not admitted to practice law in Ohio. Gov.Bar R. VII(2)(A).

 The practice of law is not limited to the conduct of cases in court, but embraces advice to clients regarding their legal rights and responsibilities. Ohio State Bar Assn. v. Leingard, Inc., 126 Ohio St.3d 400, 934 N.E.2d 337 (2010); Cincinnati Bar Assn. v. Foreclosure Solutions, LLC, 123 Ohio St.3d 107, 914 N.E.2d 386 (2009); Disciplinary Counsel v. Brown, 121 Ohio St.3d 423, 905 N.E.2d 163 (2009).

 The unauthorized practice of law also occurs when a nonattorney acts as an intermediary to advise, counsel, or negotiate on behalf of an individual to resolve legal claims and interests with third parties. See, Ohio State Bar Assn. v. Kolodner, 103 Ohio St.3d 504, 817 N.E.2d 25 (2004).

The matter was resolved by consent decree. (Mike Frisch)

October 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Close Enough To Disbar

The New York Appellate Division for the First Judicial Department disbarred an attorney convicted in federal court

Respondent's conviction stems from his participation in a scheme by which he and others defrauded an investor by representing that they collaborated with hedge funds and wealthy investors who were willing to "lease" funds and set up bank accounts in client names, which contained the leased funds in exchange for a substantial fee. Based on this and other similar misrepresentations, the victim was induced to invest $5 million in order to "lease" a credit line of $100 million, which supposedly would generate millions in future profits. In furtherance of the scheme, respondent and his codefendants falsely represented that the funds would be held in his attorney escrow account pending the opening of a bank account with the leased funds, and they sent the victim fabricated documentation of the alleged $100 million bank account. In actuality, respondent and his codefendants distributed the investor's $5 million among themselves for their own personal use. In addition, while under oath, before a federal grand jury, respondent knowingly and intentionally made false material declarations regarding his disbursement of escrow funds in connection with the scheme.

The perjury offense was "sufficiently similar" to a state felony to warrant automatic disbarment

.A conviction of a federal felony does not trigger automatic disbarment unless the federal felony at issue would constitute a felony under New York Penal Law (Judiciary Law § 90[4][e]; Matter of Rosenthal, 64 AD3d 16, 18 [1st Dept 2009]). The federal felony does not have to be a "mirror image" of a New York felony, but must be "essentially similar" (Matter of Margiotta, 60 NY2d 147, 150 [1983]). Essential similarity can be established by comparing the language of the applicable federal and state felony statutes, as well as by examining its own precedent. If this analysis is inconclusive, essential similarity can be determined by plea admissions or evidence adduced at trial, read in conjunction with the indictment or information (Matter of Adams, 114 AD3d 1, 2-3 [1st Dept 2013]; Matter of Deutsch, 286 AD2d 91 [1st Dept 2001]). Here, essential similarity is demonstrated by a comparison of the two statutes.

In the District of Columbia, an attorney is disbarred without a hearing for conviction of a felony involving moral turpitude. Moral turpitude per se is evaluated by reference to the elements of the offense rather than the facts of the conviction. If the elements do not amount to moral turpitude, the attorney gets a hearing.

D.C.  will only look at the indictment in conspiracy cases to see if the object of the conspiracy involces moral turpitude.

This D.C. Board on Professional Responsibility Report lays out the process with citations.  (Mike Frisch)

October 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 21, 2015

Beyond Incivility

The Minnesota Supreme Court accepted findings of misconduct but rejected a proposed censure in favor of a 60-day  suspension of an attorney who

made false statements, disobeyed a court order, acted belligerently toward a judge and court staff, engaged in conduct prejudicial to the administration of justice, and used a retainer agreement that required a client to pay a nonrefundable flat fee.

The court recounts the incidents of turbulent behavior and notes that the attorney has no prior discipline

The bulk of the referee’s findings of misconduct follow a central theme: Torgerson lacked professionalism in dealing with judges, court staff, and other attorneys. She also repeatedly made knowingly false statements in several matters. Contrary to Torgerson’s view of her own conduct, her actions went far beyond a lack of civility. The “bounds of proper professional behavior,” we have said, require that, at minimum, attorneys “comply with court rules and orders, develop a courteous and civil rapport with opposing counsel, and maintain respect for the bench.” In re Jensen, 468 N.W.2d 541, 545 (Minn. 1991). Moreover, “making misrepresentations demonstrates a lack of honesty and integrity, and warrants severe discipline.” In re Lundeen, 811 N.W.2d 602, 608 (Minn. 2012)...

Torgerson’s misconduct wasted judicial resources and potentially harmed her clients. Her refusal to return to court in the K.B. matter required a jury to reconvene unnecessarily for another day of court, and her outbursts and unsubstantiated filings consumed the valuable time and energy of judges and court staff. As we have recognized, “[a]n attorney does not advance the client’s cause . . . by making unfounded allegations about the judge’s decision-making process. Here, [Torgerson’s] verbal and written attacks on the judiciary and its personnel only could have harmed [her] client.” Jensen, 468 N.W.2d at 546. Moreover, Torgerson’s unprofessional actions and demeanor “reflect adversely on the bar, and are destructive of public confidence in the legal profession.” In re Shaughnessy, 467 N.W.2d 620, 621 (Minn. 1991).

Thus suspension. (Mike Frisch)

October 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Prosecutors Reprimanded For Misleading Stipulation and Argument

Two former prosecutors have been censured by the Oklahoma Supreme Court for misconduct in a murder trial.

The defendant was charged with causing a death by stabbing. The misconduct involved a witness to the crime.

At issue was where the stabbing  had occurred. The location was relevant to a potential Stand Your Ground defense.

On March 5th, the two respondents interviewed Padilla at the nursing home. During the meeting, Padilla gave statements that were inconsistent with his earlier statements in the police report, and he recounted events that were chronologically out of order. The notes taken by both respondents record that Padilla stated the victims were stabbed either in a driveway or at the end of a driveway. However, none of those notes indicate that Padilla ever described the stabbing as having occurred specifically in Defendant's driveway, nor did they indicate that the stabbing occurred in the street away from Defendant's house. Respondent Kimbrough's notes did reflect that Padilla recalled the victim and others "left and went toward 41st toward home."

The notes taken by the respondents were not intended to be complete recitations of Padilla's statements, but after realizing Padilla's story was full of inconsistencies, both Kimbrough and Miller stopped taking notes. He had contradicted himself during the interview multiple times. His memory of the events was vague and unreliable, and he referred back generally to whatever he told the police as being more accurate.

After they stopped taking notes, the respondents tried to clarify Padilla's statements by showing him crime scene photographs taken at Defendant's house and along Stiles Street. Eventually, Padilla affirmed the facts he told the police detectives immediately after the stabbing, which facts were consistent with the State's case.

Following the interview with Padilla, Respondent Kimbrough stated to Respondent Miller, "Well, we're not calling him as a witness." Kimbrough did not think that Padilla would be a witness that the jury would "pay attention to" because of his demeanor, his inability to communicate and his chronologically challenged version of events. They did not discuss whether Padilla had made inconsistent statements that could be considered Brady material. Then Kimbrough went home.

After the interview Respondent Miller returned to the district attorney's office and spoke to assistant district attorney Merydith Easter Lusk. Miller was frustrated and stated that the interview did not go well. She stated that Padilla was confused from too much drug or alcohol use ("perma-fried") and was inconsistent. She continued that Padilla thought the murder happened in the driveway. She added that he would not be called as a witness. She also told Lusk that she would provide Padilla's location to defense counsel, but if counsel wanted to know what Padilla would say, counsel would have to go see him.

The attorneys later agreed to a stipulation that inaccurately recounted Padilla's terstimony. He was not called as a witness.

Lusk heard the closing arument and blew the whistle

 Lusk reported the matter to District Attorney David Prater, who then contacted Oklahoma County Public Defender, Bob Ravitz concerning the possible Bradyviolation. The DA initiated an investigation. The investigator contacted Respondent Kimbrough in Lawton at a hospital where her father was admitted for heart problems. On the phone she told him, "the only thing that was a little different then is he [Padilla] said I don't know if it happened in the street or in the driveway and but then that's when I said well if you told the officers in the street was that night, would that be, he said that's more accurate." After the investigation concluded, the DA terminated both respondents from their jobs with the DA's office.

After the DA and Public Defender informed Judge Deason about the investigation and their conclusions, the judge granted Defendant a new trial and vacated the conviction based on the respondents' failure to disclose exculpatory information to the defense. In the second trial, Padilla appeared and testified in court. However, he did not testify that the stabbing occurred in Defendant's driveway. Defendant was convicted of the lesser crime of First-Degree Manslaughter, for which he received a sentence of twenty years in prison.

The court

the evidence reveals that the respondents knew Padilla had contradicted his earlier statement, they knew the defense believed that if the stabbing occurred in the driveway they would have some support for their self-defense argument. They knew Padilla told the respondents that the stabbing occurred in the driveway, even though he did not specify which driveway. The trial panel believed Respondent Miller thought Padilla was talking about Defendant's driveway, while the panel believed Respondent Kimbrough thought Padilla was referring to a driveway down the street. Being on notice, both should have timely presented this to the defense. The problem was enhanced by the closing argument indicating that Padilla's testimony was consistent with the prosecution's theory of the facts, when in fact they both knew Padilla had contradicted himself. As senior attorney, Respondent Kimbrough should have instructed Respondent Miller that the inconsistency must be revealed.


The Bar Association recommended that both respondents be publicly censured for their acts. The trial panel concluded that Respondent Miller intentionally misled the defense because she believed the witness was referring to Defendant's driveway when the respondents interviewed him. We agree. The trial panel concluded that Respondent Kimbrough did not believe the witness specifically referred to Defendant's driveway. We agree. Nevertheless, she knew that Padillo's interview with the respondents contained contradictions to the recorded interview Defendant's attorney reviewed. Respondent Kimbrough should have informed the defense of that fact when negotiating the wording of the stipulation. Neither respondent should have allowed or participated in a closing argument that claimed the witness would not contradict the prosecutor's argument concerning the location of the stabbing. This conduct violated Rule 8.4(c) of the Oklahoma Rules of Professional Conduct, which prohibits a lawyer from engaging in conduct involving dishonesty, or misrepresentation. We conclude that the respondents should be and are hereby publicly reprimanded.

The attorneys were dismissed from the prosecutor's office.  (Mike Frisch)

October 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Overcharging For Marriages

The New York Commission on Judicial Conduct accepted the resignation of a Yonkers City Court judge who had been served with a complaint alleging misconduct.

The stipulation recites that he was charged with contacting third parties and using his judicial title in connection with his daughter's divorce.

He also charged double the prescribed rate for officiating at marriages. (Mike Frisch)

October 21, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Daddy Issues No Defense

The Ohio Supreme Court has remanded for consideration of restitution a matter involving misconduct by two attorneys in handling the estate of a former Cleveland Mayor and State Supreme Court Justice and the affairs of the widow.

The attorneys who engaged in misconduct are brother and sister. They were both associates in their father's law firm.

He resigned from the firm and  the Bar.

In June 2004, Eleanor Locher retained GM&M to represent her in the administration of the estate of her late husband, Ralph S. Locher, a former mayor of Cleveland and a former justice of the Supreme Court of Ohio. At the time of his death, Ralph Locher had less than $200,000 in probate assets but more than $1 million in nonprobate assets. After her husband died, Mrs. Locher moved Judson Manor retirement facility, but she moved back home after about a week  because she hated being there. By November 2004, Mrs. Locher increasingly was relying on the law firm’s attorneys to help her handle her affairs and invest her assets.

Most relevant to the misconduct of the two respondents in this case, Zoller set up an account titled “Gurney, Miller & Malone, Special Account Locher” (“the special account”) on behalf of Mrs. Locher, as the primary vehicle for managing her money. This “partnership type” account did not bear interest, was not identified as an IOLTA account or a client trust account, and was not designated as a fiduciary account. Mrs. Locher and the two respondents were the only signatories on the account.

The misconduct came to light after the widow died.

Mrs. Locher died at age 95 on December 20, 2010, with only modest assets remaining, including approximately $289 in the special account and the house that she had lived in until her death, which was the subject of a reverse mortgage. In charging her the stipulated amount of almost $330,000 in attorney fees for its performance, the law firm employing the three lawyers who handled her affairs had received an average of approximately $55,000 in attorney fees from her in each year of the representation; when only the first two years of the representation are considered, Mrs. Locher paid the firm an average of well over $125,000 a year in attorney fees...

For not much. 

the panel found that Zoller and Edward Mamone had engaged in conduct that violated a number of Rules of Professional Conduct, as stipulated by the parties. Specifically, Zoller was found to have violated Prof.Cond.R. 1.5(a) (prohibiting a lawyer from making an agreement for, charging, or collecting a clearly excessive fee), 1.15(a) (requiring a lawyer to hold a client’s funds in an interest-bearing account with a clearly identifiable fiduciary title), 1.15(a)(2) (requiring a lawyer to maintain a complete record of an account held by the lawyer containing a client’s funds), and 1.15(a)(5) (requiring a lawyer to perform and retain a monthly reconciliation of an account held by the lawyer containing a client’s funds). Edward Mamone was found to have violated Prof.Cond.R. 1.15(a), 1.15(a)(2), and 1.15(a)(5). These were the same violations that his sister had committed except that he was not found to have collected excessive fees.

It was father's fault did not work as a defense

There was much made by the parties at the hearing of the asserted fact that respondents’ father, Joseph Mamone, was the mastermind behind the ongoing, improper charging of excessive fees and that respondents were but minor players who were restrained from acting in the best interests of their client, at least in part, because of the familial relationship that existed between them and Joseph Mamone. However, there is no basis in the law to support this position. Neither case law nor the Rules of Professional Conduct provide for any kind of exception when one is complicit in permitting a relative to charge a client extraordinarily excessive legal fees, and we will not create such an exception here.

 The court

Respondents were acting as licensed attorneys in the state of Ohio and, as such, were responsible for protecting the interests of their client. Those responsibilities included preventing their father, who was never a signatory on the special account, from writing and signing inappropriate checks drawn on that account. While Joseph Mamone may have been primarily responsible for the charging of excessive fees, his plot would have failed but for the role played by respondents in this scheme. The collective silence of Zoller and Edward Mamone occasioned by their failure to oversee the special account was vital to their father’s success in overcharging Mrs. Locher. Even though many of the excessive fees were paid through checks signed by Mrs. Locher on other accounts that respondents were not responsible for, excessive fees were also paid from the special account, and had respondents properly monitored the special account on which their father was not a signatory, they would have discovered obvious improprieties that would have alerted them that their father was taking advantage of Mrs. Locher.

The Board of Commissioners on Grievances and Discipline has recommended a stayed suspension for both.

The Board's findings are linked here.  (Mike Frisch)

October 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, October 20, 2015

Fees In Marijuana

A  lawyer who was paid a retainer in marijuana should be suspended for a year and a day with the suspension fully deferred, according to a recent report and recommendation of a Louisiana Hearing Committee.

The attorney had previously entered into such a fee arrangment with a confidential informant who set him up for a surveilled transaction in a Target parking lot.

The fee agreement was not reduced to writing. Rather, the attorney told the informant that the fee arrangement  was "same old, same old."

The informant told the attorney he had a "crap load of smoke" and a "backpack full of marijuana."

The attorney admitted the misconduct but denied any intent to distribute.

After the arrest, the attorney got into treatment and is participating in the Bar's Lawyers Assistance Program. His remorse and progress in treatment  led to the recommendation of a stayed suspension.

The Times-Picayune reported the arrest and that a half a pound of "high grade" marijuana was seized. (Mike Frisch)

October 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Home Improvements

The Maryland Court of Appeals has disbarred an attorney for misconduct that at first was unrelated to the practice of law.

Rather, it was the unlicensed practice of home improvements

The hearing judge found...that Respondent, who had “vast experience in home improvement,” knowingly worked as an unlicensed home improvement contractor and earned a substantial amount of money as a result.

The substantial amount was over $150,000.

The real problem - and the disbarrable offenses -  involved false statements in the ensuing investigations.

The hearing judge concluded that Respondent violated MLRPC 8.4(b) by knowingly and repeatedly acting as a home improvement contractor without a valid license, constituting numerous violations of Section 8-601 of the Business Regulation Article (“BR”), and calling into question Respondent’s fitness as a lawyer. The hearing judge concluded that each violation of MLRPC 8.4(b) also constituted a violation of MLRPC 8.4(c), as did Respondent’s misrepresentations to Mr. Niebuhr and Bar Counsel and his institution of frivolous lawsuits against the McCartys and the Woodses. 


Respondent engaged in intentional dishonest conduct when he knowingly held himself out as a home improvement contractor without first obtaining the required license, which is a crime in Maryland. See BR § 8-601. He also exhibited dishonest behavior in his many interactions with Bar Counsel and [the Maryland Home Improvement Commission]  by intentionally misrepresenting both that he possessed a proper home improvement license in his own name and that he was working under his brother’s license with his brother’s permission. The threats to Mr. McCarty and the frivolous lawsuits filed against both complainants, moreover, harm the public’s confidence in the integrity of the legal profession...Because the hearing judge did not find any mitigating circumstances and, in fact, found the presence of six aggravating factors by clear and convincing evidence, we will not depart from our practice of disbarring an attorney whose misconduct is characterized by intentional dishonesty.

The video of the oral argument is linked here. (Mike Frisch)

October 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)