Thursday, February 6, 2014
The Ohio Supreme Court has imposed an interim suspension of an attorney as a result of a felony conviction.
The offense was described in this ICE release
Jason C. Grossman, 31, of Westerville, Ohio, pleaded guilty in U.S. District Court to one count of receipt of child pornography, a crime punishable by at least five years and up to 20 years in prison.
According to the investigation, in December 2012, Grossman met a man online who claimed to be the father of prepubescent children. Grossman discussed the possibility of engaging in sexual activity with the man's daughter. Grossman was actually communicating with an undercover task force officer patrolling the Internet.
Grossman scheduled an in-person meeting for the planned sexual activity. When Grossman arrived for the meeting Jan. 9, task force officers arrested him. Officers then executed a search warrant at Grossman's home and seized computers and media storage devices. Forensic examinations revealed Grossman had downloaded approximately 49 images of child pornography from the Internet.
Grossman remains on house arrest until sentencing.
The District of Columbia Court of Appeals has affirmed the divorce decree, initial custody and visitation orders in a domestic dispute that involved the twin sister of Jill Kelley, noted for her role in the General Petraeus downfall.
The litigation had been the subject of numerous media reports because of the Petraeus connection.
The court remanded for further proceedings a motion to modify the custody award to the father and dismissed an appeal to the attorney's fees award "for lack of a final order."
The National Organization for Women Foundation filed an amicus brief on behalf of the mother.
Judge McLeese wrote the division's opinion. (Mike Frisch)
From yesterday's Santa Barbara Independent:
Darryl Genis, Santa Barbara’s most famously and flamboyantly combative defense attorney, had his right to practice law suspended for a 90-day period by the State Bar of California, had his professional license placed on probation for two years, and was ordered to attend anger management counseling from a licensed professional twice a month for the duration. Richard Honn, judge of the State Bar Court, ruled that Genis had engaged in “multiple acts of wrongdoing, bad faith, significant harm to the administration of justice, indifference toward rectification or atonement for the consequences of his misconduct and contemptuous attitude” toward a panel of appellate judges. In rendering his punishment, Honn said Genis’s “lack of insight raises concerns as to whether his misconduct may recur and is particularly troubling to this court.”
Genis, a specialist in DUI defenses, has emerged as one of the county’s best-known attorneys, having won several high-stakes, high-profile cases in recent years in which he’s attacked the personal credibility, integrity, and competence of law enforcement officers, prosecuting attorneys, and at times, the judges themselves. Honn described Genis’s style as “very aggressive,” noting the zealousness with which he pursued his clients’ interests. But in at least two cases, Honn found that Genis went too far, crossing the line of ethical conduct. Honn found Genis guilty of “willful disobedience” for repeatedly ignoring a San Luis Obispo judge’s order to show up in court in 2011 to represent a client charged with driving under the influence. Frustrated by multiple delays in the case, the judge ordered Genis to appear rather than send an associate, as he had at least twice, who was either not prepared or authorized to move the matter forward. Genis knowingly ignored the judge in one instance, Honn said, so he could attend a legal education seminar in New Orleans.
In Santa Barbara, Honn found that Genis ignored Judge Brian Hill’s repeated admonitions during a 2012 case to not ask two Santa Barbara police officers — Aaron Tudor and Kasi Beutel — any questions in front of the jury regarding allegations of perjury. Such questions, Hill had insisted at the time, would serve to improperly prejudice the jurors against the two officers. Genis asked anyway, prompting Hill to impose a $2,000 sanction. “Respondent [Genis] harmed the administration of justice,” Honn wrote. “His failure to obey court orders required the courts to repeatedly admonish him. Honn added that Genis’s insistence that he did not understand the admonitions were “unbelievable and disingenuous.”
But Honn rejected two of the four allegations against Genis filed by State Bar prosecutors. In those instances, Honn found that Genis acted in a good faith — if erroneous — belief that a county prosecutor had committed a misdemeanor. In that case, Genis had threatened to file a misconduct complaint against a prosecutor who’d turned over otherwise confidential legal notes to an attorney taking over a case before the transfer had been authorized by a judge. Prosecutors fumed that Genis acted with malice by filing the complaint, which they saw as an over-the-top intimidation tactic. The judge disagreed.
Genis said he will “almost certainly appeal” the decision, adding, “In the end, I believe I will be fully exonerated.” If not, he said, he would take comfort in having “worked tirelessly as an advocate for my clients.” If he loses his appeal, he said the suspension would allow him to spend time with “my beautiful two children and my beloved wife.” In conclusion, Genis noted that even Judge Hill had described him as “probably the best DUI lawyer on the Central Coast,” and because of his prowess the District Attorney had “gone to extraordinary lengths to try to muzzle me.”
Honn’s verdict must be upheld by a three-judge state bar panel to which Genis can appeal. After that, the California Supreme Court must uphold it as well. Every year, about 250 California attorneys are either suspended or disbarred in disciplinary actions.
Thanks to Patrick O'Donnell for sending this our way. (Mike Frisch)
Wednesday, February 5, 2014
In a 4-3 decision, the Missouri Supreme Court extended an attorney's probation with additional conditions.
The dissenting judges would revoke probation and impose the stayed suspension order.
From the court's summary
Because of concerns with prior excessive alcohol use, Nathan Forck was admitted to practice law in Missouri in April 2006 pursuant to a monitoring agreement requiring him to abstain from alcohol and verify that he regularly was attending a support or therapy group. He began working for an attorney with a large elder law and estate planning practice. Following a May 2007 alcohol-related altercation at a bar, Forck was arrested for assault, though the charges later were dropped. Because of his alcohol use, failure to verify his attendance at support group meetings and failure to notify the chief disciplinary counsel of his arrest, the chief disciplinary counsel charged Forck with violating rules of professional conduct. In a joint stipulation, the chief disciplinary counsel recommended that this Court suspend Forck’s license to practice law with no leave to apply for reinstatement for at least six months, stay the suspension and place Forck on probation for two years. This Court accepted the recommendation in December 2007. Forck left the elder law practice and, for about 18 months, worked in a general practice with another attorney. In early 2009, the elder law attorney contacted Forck about taking over his practice. Forck agreed to do so and agreed to retain the attorney’s support staff. Although Forck did not have personal expertise in elder law or Medicaid litigation at the time, relying instead on knowledge he gained from the attorney and the support staff, Forck promoted himself and the firm as experienced in elder law. In 2010, Forck twice asked this Court to release him from probation. Each time, the Court overruled his motion after being advised that the chief disciplinary counsel was investigating complaints against Forck. The parties stipulate that Forck committed five violations in his representation of three clients. Forck and the chief disciplinary counsel jointly ask this Court to extend Forck’s probation for one year and to impose additional terms and conditions beyond those ordered in 2007.
Court en banc holds:
Forck’s conduct, which can be remedied by education and is unlikely to reoccur, warrants an extended term of probation. Forck admits he violated Rule 4-1.1 (competence) and Rule 4-1.5 (fees) in representing certain clients. In the joint stipulation, the parties suggest that application of the applicable standards of the American Bar Association (ABA) and this Court’s rules justify continuing Forck’s probation because the circumstances and factors connected with his earlier issues have changed. The record contains evidence of both aggravating and mitigating circumstances.
Forck’s misconduct arose out of negligence instead of intent to violate the rules and take advantage of his clients. While he knowingly promoted himself and his firm as having expertise in elder law, estate planning and Medicaid litigation, he did so on the misguided, unprofessional practices of the attorney whose practice he took over and the support staff he retained. Forck admits he naively relied on these persons due to their extensive experience in the elder law field. When he learned of the complaints against him, he discharged the support staff and now completes all the legal work himself. Further, all three requirements of Rule 5.225(a)(2)(A-C) to make an attorney eligible for probation have been demonstrated here. He has not committed any misconduct warranting disbarment. It is unlikely he will harm the public during his extended probationary period, as he has maintained his sobriety since 2007 and has undertaken steps to improve his practice. His new relationship with a mentor who is a well-respected elder law attorney and who has agreed to monitor and supervise Forck personally and professionally, his attendance at professional education classes, and reporting requirements will remedy the prior misconduct and permit Forck to perform legal services and practice law in the future without causing the courts or profession to fall into disrepute.
This Court applies progressive discipline when sanctioning attorneys who commit misconduct. While Forck already has received the benefit of an extended probationary period, and the Court could impose the stayed suspension, the chief disciplinary counsel’s recommendation to extend the terms of probation, adding conditions, does impose additional sanctions on Forck and is permitted by the guidelines to the ABA standards and Rule 5.225(f)(2). Moreover, allowing Forck to remain on probation provides him an opportunity to receive additional education, monitoring and support that will improve his law practice and better serve and protect his clients in the future and enables him to make full restitution payments to his harmed clients.
Dissenting opinion by Judge Fischer:
In light of the significant nature of the new violations, the author would revoke Forck’s probation and impose the previously ordered suspension. At no time since his admission six years ago has Forck practiced law without being subject to supervision, and he has demonstrated that allowing him the privilege of continuing to practice law is not worth the risk to the public or the reputation of the legal profession. After he filed his first motion for release from probation, he was advised he was under investigation for additional violations of professional conduct, and yet he failed to comply with the investigation and then filed a second motion for an order of successful completion of probation. At the conclusion of the investigation, he stipulated he committed five new, separate rule violations that caused harm to his clients. Each of these new ethical violations to which Forck admits is a violation of his probation, which required him to abide by the rules of professional conduct. Forck stipulated that his conduct while on probation harmed his clients to the extent that he agreed to pay $22,000 in restitution. Forck’s actions demonstrate he is no longer eligible for the probation imposed for his 2007 conduct. Accordingly, this Court should revoke probation and impose the originally ordered discipline.
The North Dakota Supreme Court has suspended an attorney as a result of criminal charges
The Application asserts that Howe was charged with criminal conspiracy to commit murder in violation of N.D.C.C. § 12.1-06-04 and § 12.1-16-0(1)(a) (a Class AA felony). Documents in support of the Application assert that sufficient information exists that Howe poses a substantial threat of irreparable harm to the public because of the facts attested in the affidavit evidence a criminal conspiracy to obstruct justice by murdering a witness.
WDAZ 8 had this report
The North Dakota Supreme Court, in an emergency action Friday afternoon, suspended the law license of Henry Howe because of the murder conspiracy charge he is facing in Walsh County.
Howe, who has had a law license in North Dakota for 40 years and lived and practiced in Grand Forks since 1980 as a criminal defense attorney, was arrested Thursday morning in Grafton, N.D., as he arrived to represent a client in a felony drug case in state district court.
Howe was charged Thursday with conspiring with two convicted drug felons, and a fourth man working as an undercover informant for law enforcement, to kill a female undercover informant who is a key witness in a drug case against Paul Lysengen, who is Howe’s client.
The charge is a Class AA felony with a top sentence of life in prison without parole. Howe bailed out of jail Thursday in Grafton after paying, through his son, $10,000 cash on a $100,000 bond amount.
The Maine Supreme Judicial Court has imposed a six month suspension of an attorney who had
...on five separate occasions, served subpoenas - four on U.S. Cellular and one on a local credit union - without providing the required notice to Ms. A's attorney or Ms. A., who are parties to the action. On three separate occasions, [the attorney] obtained access to text messages, which he knew or should have known could have contained confidential attirney/client communications protected by [rules of evidence] and confidential health care professional/patient communications... [His] access to and disclosure of Ms. A.'s text messages also accomplished a goal for his client by causing Ms. A. to agree to a resolution of the divorce more favorable to Mr. B. then she would have liked because she desired to end the tension, harrassment, and embarrassment in the community that [the attorney's] and Mr. B.'s access to her text messages had caused.
The attorney has practiced for twenty years without prior discipline. His client was also his cousin.
He was ordered to assemble and turn over to Bar Counsel all copies of the texts and contact federal ans state prosecutors to advise them of the practices of U.S. Cellular. (Mike Frisch)
The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to dismiss a legal malpractice claim that posed the following issue
The remarkable defense proffered in this professional malpractice action is that an attorney who neglects a matter so that the statute of limitations runs against his client cannot be held legally accountable if the attorney happens to expire before the applicable limitations period.
The client had retained the now-deceased attorney, who associated with another attorney (now disbarred) who is also a defendant in this litigation. The estate moved to dismiss the malpractice claim but
Other than a death certificate, there is no evidence concerning [deceased attorney] Tanzman's treatment or the course of his illness or when he was hospitalized. Nor is there any information about the nature of his law practice, beyond a letterhead that identifies three other attorneys as "of counsel." While it is clear from the letter dated September 30, 2010 that Tanzman was aware of the impending expiration of the statute of limitations against his client, it is unknown whether he took any steps to prepare a complaint for filing or whether he attempted to enlist the assistance of any other attorney including the attorneys of counsel in his firm....
Plaintiff is entitled to the inference that Tanzman died as a result of a chronic, terminal illness that he knew, or should have known, presented the immediate risk that his ability to represent his clients' interests might be impaired (see Yuko Ito v Suzuki, 57 AD3d 205, 207 [1st Dept 2008]). Here, defendants offered no evidence to elaborate on the cause or circumstances surrounding Tanzman's death. The submitted certificate of death for Tanzman merely states that Tanzman passed away on October 24, 2010 at Memorial Sloan-Kettering Cancer Center. The record suggests that plaintiff had cancer, and that his death may have been foreseeable, but the nature and duration of his illness cannot be determined from the death certificate and defendants' other submissions. Further, the record reflects that Tanzman was well aware that Collazo could not be relied upon to assist with plaintiff's representation. According to Tanzman's own statement, Collazo had done nothing on the matter in over a year, and Tanzman's retainer agreement assigned Collazo only a limited role in the case. In any event, as of September 2010, when Tanzman expressed his concern over the running of the statute of limitations in a letter to Surrogate's Court, Collazo had been convicted on a federal criminal offense and was facing sentencing and disbarment. Plaintiff is entitled to the factual inference that, at this late juncture and mindful of his ill health, Tanzman was aware of the need to prepare and file a complaint or to arrange for one to be filed as soon as the necessary letters of administration were received. The letters of administration was issued on October 6, 2010. Tanzman neither filed a complaint nor engaged another attorney to file one in his stead despite the availability of three attorneys associated with the firm as of counsel.
The case lives on. (Mike Frisch)
This tale of traffic and Fort Lee (actually parking and Jersey City) does not involve the Governor of the Garden State.
Rather, the former Chief Judge of the Jersey City Municipal Court (with a law office in Fort Lee) was suspended by the New Jersey Supreme Court for six months.
The Disciplinary Review Board found that the judge
...abused her authority by adjudicating nine parking tickets that had been issued to her "significant other." Respondent either dismissed those tickets outright or wrote "Emergency" on them and then dismissed them, even though she was aware that no emergency had existed. Respondent dismissed the tickets so that her significant other would avoid having to pay the resulting fines.
The judge pleaded guilty to tampering with public records and falsifying records.
The Office of Attorney Ethics sought a two-to-three year suspension. (Mike Frisch)
Tuesday, February 4, 2014
The Michigan Attorney Disciplinary Board agreed with a panel and affirmed an order of disbarment in a reciprocal discipline case from Maryland.
The attorney had knowingly and willingly misappropriated fnds while acting as of counsel to a Maryland law firm. He had deceived both his law firm and clients.
The panel rejected the attorney's argument that "the ABA Standards [for Imposing Lawyer Sanctions] somehow render disbarment inappropriate in Michigan."
The board found no basis to impose any lesser sanction as reciprocal discipline. (Mike Frisch)
Monday, February 3, 2014
The Illinois Adminstrator has filed an amended complaint alleging that a State's Attorney appealed to racial prejudice in a first degree murder trial
During Respondent’s opening statement, he made the following statements:
"And you will see, ladies and gentlemen, that there are some, not all-there are many good people in the black community, but basically you will see that there are a few in the black community who refuse to cooperate with the police even when a murder happens right under their nose, and those people have a habit of intimidating, harassing, sometimes threatening anybody who they think is cooperating with the police. That’s what makes this case so difficult, ladies and gentlemen."
Respondent’s argument quoted...above, was improper because it served no purpose other than to appeal to racial prejudice.
During the closing arguments, Respondent made the following statements:
"But I think what is most crucial in deciding this case, in deciding the credibility of Jodie Lacy and Crystal Blye, and in deciding most of the other issues in this case, is to understand the culture of the black community here in Marion.
"Please, you have to keep in the back of your mind how many people in that community feel about law enforcement. You have to understand and keep in mind how they react to the police and to the prosecutors. Sometimes for people like us, that’s hard to understand. People were brought up to believe that the police were their friends; that when something happens, when we are in trouble, that the police are our friends. And that’s where we go to get help from is the police when bad things happen.
"But in the black community here in Marion, it’s just the opposite. Most-for whatever reasons, most of these people were raised to believe that the police and prosecutors are the enemy; that for some reason, we are always out to get them. In their mindset, the biggest sin that you could-that you can commit is to be a snitch in the community. The biggest sin that you could commit is to ever cooperate with the police on anything. It’s a sin to even cooperate when one of your own people gets brutally gunned down and is left to bleed to death.
"And I am not saying that the whole black community is like that, ladies and gentlemen. There are some very good law[-]abiding citizens in that community here in Marion. But the evidence has shown that again, for whatever reasons, there is an intense dislike and even hatred for the police. And this group of people who feel that way make it extremely hard on the people who are law-abiding and want to do what is right and who are willing to come forward and give information that they have when a crime has been committed . . .
"Now, in our white world, ladies and gentlemen, our automatic reaction in that type of situation, if somebody gives a statement to the police and then later on changes their story, the automatic response would be that that person is not trustful and that there is a problem with their credibility.
"But again, please look at their testimony and what they did and what they didn’t do through the eyes of the people who are raised, again, to feel that the police are always against them and that they cannot trust the police."
Respondent’s statements quoted...above, were improper because they served no purpose other than to appeal to racial prejudice.
Respondent’s statements quoted... above, were improper because Respondent argued facts about the "black community" and "our white world" that were not in evidence, and that were based on Respondent’s personal opinion.
The attorney's answer is linked here. He admits that the "white world" comment was not a reference to matters in evidence. (Mike Frisch)
Stayed Suspension For Improper Communication With Judge: Attorney Peeked Through Window At Judge's Wife
A recent order of discipline is reported in the February 2014 edition of the California Bar Journal
[An attorney] was suspended for one year, stayed, placed on two years’ probation with an actual 90-day suspension and ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. The order took effect Dec. 13, 2013.
The State Bar Court found [the attorney] culpable of improper communication with a judge. [His] misconduct quickly escalated after he represented the plaintiff in a civil matter in San Diego County Superior Court. Judge Timothy B. Taylor presided over the matter and had rendered a decision in favor of the defendant. In March 2011, the plaintiff moved to appeal the judgment. Although [the attorney] was no longer involved in the matter, he sent a letter to Taylor the following month, which Taylor quickly handed over to his staff after concluding it amounted to improper communication.
A member of Taylor’s staff sent a letter to [the attorney] informing him that the letter constituted an improper communication. Undeterred, the attorney looked up the judge’s home address and sent him another letter there. He later went to the judge’s home and peeked in the window at his wife.
An attorney who has been admitted to practice for five years was suspended for two months by the Maine Supreme Judicial Court.
The court found "serious and troubling" violations in several client matters
Attorney...has practiced law for five years and it appears that he expanded his practice at a speed and breadth that he could not accommodate. As a result, clients were neglected and legal matters were not properly attendfed to.
He will be subject to monitoring on reinstatement. (Mike Frisch)
An Circuit Court admontion without terms has been imposed on the Commonwealth's Attorney for the City of Williamsburg and James City County.
A campaign supporter and contributor was arrested and charged with DUI, carrying a weapon while intoxicated and related offenses. He disqualified himself from the prosecution, which resulted in a conviction of open container and refusal to take a breath test.
The defendant noted an appeal.
The attorney was aware of the notice but failed to advise the special prosecutor who had tried the case. Rather, he arranged a proceeding with defense counsel that led to a deferred disposition of the charges.
The matter unravelled when the special prosecutor found the dispositions on the court's web site.
The admonition cites the violation as a concurrent conflict of interest. (Mike Frisch)
An experienced criminal defense attorney who "made material misrepresentations that misled [a client] and his family about the services he would and could provide" was suspended for three months by the New Jersey Supreme Court.
The client was charged with federal offses relating to the internet sales of pharmaceuticals.
The attorney claimed to have "powerful contacts" and dropped the name of Michael Chertoff. He promised but failed to go to Washington, D.C. upon payment of his retainer and "continued to make misreprentations up until the eve of trial." He also failed to pursue a deal with authorities as he had promised.
The attorney had a record of prior discipline. (Mike Frisch)
Saturday, February 1, 2014
SUFFOLK UNIVERSITY LAW SCHOOL in Boston invites applications for a one-year full-time position as a Visiting Professor for the 2014-2015 academic year. We seek candidates with a demonstrated commitment to excellence in teaching. Our search will focus on candidates with teaching experience in the following fields: evidence, criminal procedure and professional responsibility. Candidates must be willing to teach large sections in both the day and evening. Suffolk University is an equal opportunity employer. We encourage applications from women, persons of color, sexual orientation minorities and others who will contribute to the diversity of the faculty. Applications will be considered through February 21, 2014. Interested candidates should contact Professors Jessica Silbey and Robert Smith, Co-Chairs, Faculty Appointments Committee, at firstname.lastname@example.org and email@example.com, with a copy to firstname.lastname@example.org, or mail their materials to Co-Chairs of the Appointments Committee, c/o Babs Mello, at Suffolk University Law School, 120 Tremont Street, Boston, MA 02108-4677.
Friday, January 31, 2014
A New Jersey attorney who has never been admitted to practice in Delaware has nonetheless been suspended for one year by the Delaware Supreme Court.
The court found that the attorney engaged in unauthorized practice of law by setting up an entity to refer cases to Delaware lawyers. Four personal injury matters were handled in that manner.
The court rejected the proposed sanction of its Board of Professional Responsibility of public reprimand and agreed with the suspension recommendation of the Office of Disciplinary Counsel. (Mike Frisch)
The Indiana Supreme Court has concluded that a suspended attorney engaged in the practice of law in a guardianship matter.
The representation had begun before the attorney was suspended. The problem was that he did not withdraw as counsel for his two clients, but purported to represent them on a "pro se, pro bono" basis after the suspension.
The court declined to find that he was in contempt of the suspension order and imposed a fine. (Mike Frisch)
Thursday, January 30, 2014
The Massachusetts Supreme Judicial Court has imposed a six-month suspension of a New England School of Law 2010 graduate for false statements by omission in connection with his admission to the Bar.
The attorney falsely stated that he had never been charged with a felony offense. He also failed to disclose drunk driving charges that took place while his application for admission was pending.
He was convicted of DUI after he was admitted and failed to report the conviction as required by governing rules.
The attorney then applied for admission in Illinois. He falsely denied that he had defaulted on student loans (he was behind in payments at the time) and whether he had been charged with offenses against the law. He did disclose the DUI.
He passed the Illinois Bar on the third try but has not yet been admitted there. He reported his disclosure lapses to Massachusetts at the urging of Illinois Bar authorities. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department has reinstated an attorney disbarred in 2007 for a felony conviction.
The court described the offense in its disbarment order
The respondent admitted that in or about February 6, 2005, acting in concert with other defendants in furtherance of a bookmaking operation in Queens County and elsewhere, he advanced and profited from said bookmaking operation in that he "participated in the acceptance of five bets for more than $5,000.00." On May 22, 2006, the respondent was sentenced to a conditional discharge, a crime victims assessment fee in the sum of $20, and a mandatory surcharge in the sum of $250.
An attorney who was convicted of failure to file his federal income taxes for 2006 and 2007 was indefinitely suspended by the Maryland Court of Appeals.
The failures involved approximately $70,000 in unpaid taxes.
The attorney may seek reinstatement after six months, as the court rejected autmatic reinstatement in light of concerns about the state of restitution
We...disagree with [the attorney] as to the imposition of a finite, nunc pro tunc suspension for six months rather than an indefinite suspension with the right to apply for reinstatement after a period of six months. Our resolution emanates primarily from the fact that at oral argument, [he] could not specify what, if any, money he has paid to the Internal Revenue Service to satisfy his arrears, which apparently stems from the fact that his original agreement to pay the Internal Revenue Service was in default.