Friday, June 20, 2014
The New Jersey Supreme Court has imposed a three year suspension of an attorney convicted of conspiracy to defraud the United States.
The crimes involved income derived from a business that involve the repair and resell of amusement and gaming-machine components.
The crimes were committed in concert with two admitted attorneys, Bagdis and Klein. Bagdis employed Klein, who also was suspended for three years.
The criminal activity began before the attorney entered law school and continued into his legal career.
The Disciplinary Review Board noted
In respondent’s case, the sentencing judge found significant aggravating factors that led him to impose a harsher custodial sentence on respondent. Specifically, respondent had not assisted the federal authorities in their investigation of Bagdis. Moreover, respondent waited until two weeks before his trial to "come clean." Respondent also engaged in repeated criminal acts with every paycheck that he received, for years on end, while attending law school, during an internship in the Camden County Prosecutor’s office, when serving a judicial clerkship, and, finally, as a newly licensed, practicing attorney...
While both respondent and Klein engaged in criminal activity for more than eight years, we find respondent's actions to be more egregious, because his plan to deceive the government had already taken root and became an integral part of his life as he honed his attorney skills in law school, the internship with a prosecutor's office, and a judicial clerkship.
If an attorney is engaged in criminal activity throughout his entire career, I would think that would logically result in disbarment.
The Pennsylvania Supreme Court ordered a five-year suspension for the misconduct.
The court here agreed with the DRB that the attorney should not get credit for time served since his Pennsylvania suspension.
So far as I can tell, the disciplinary case was predicated solely on the conviction. I would think there must also have been concealment of the unfavorable character information in the admissions process. (Mike Frisch)
Thursday, June 19, 2014
The Wisconsin Supreme Court has revoked the license of an attorney with a record of prior discipline.
The court noted the referee's evaluation of the attorney's credibility
The referee vigorously rejected Attorney Grogan's defenses to the OLR's allegations. The referee variously described Attorney Grogan's defenses as "entirely incredible," "riddled with inconsistency," "baseless," and "advanced without a shred of supporting documentary evidence . . . , and in the face of a mountain of contemporaneous written evidence to the contrary." The referee wrote that one of Attorney Grogan's arguments during the six-day disciplinary hearing "literally destroyed any remaining credibility he possessed." The referee also commented that Attorney Grogan's noncooperation with the disciplinary process rose "to a level never before seen by this referee. [Attorney Grogan] has made engaging in basic communication with him a monumental struggle. The jobs of OLR investigators, Court clerks, and even this referee were needlessly magnified by his avoidance behavior."
As mentioned above, the referee ultimately recommended the revocation of Attorney Grogan's law license. The referee wrote that "[w]hile it is almost unfathomable to think that an attorney would risk censure over such trifling amounts as [Attorney Grogan] took in this case, it is the blatant nature of the violations, combined with a long pattern of unremorseful behavior, which tips the scale."
The attorney has been suspended since 2011. (Mike Frisch)
The Maryland Court of Appeals has reprimanded two lawyers in connection with the robo-signing of a large number of foreclosure-related documents.
One lawyer failed to properly supervise the other as managing partner of the law firm
Here, clear and convincing evidence supports the hearing judge’s conclusion that Burson had violated MLRPC 5.1(a). Prior to Burson’s discovery of McDowell’s and Savage’s conduct, two other lawyers at the Shapiro Firm signed each other’s names on foreclosure-related documents and were the subjects of show cause orders in various circuit courts as a result of the practice. As the Shapiro Firm’s managing partner, Burson was aware that circuit courts issued show cause orders regarding the two lawyers’ signing of documents. The hearing judge found that, despite being aware of the "prior incident," before learning that McDowell had signed trustee’s deeds and affidavits on Savage’s behalf, Burson made no efforts to ensure that the Shapiro Firm had in effect measures giving reasonable assurance that lawyers did not robo-sign documents. McDowell signed Savage’s name in approximately 900 cases. The existence of the show cause orders involving allegedly improper signing of documents, coupled with the number of cases in which McDowell signed Savage’s name, leads to the conclusion that clear and convincing evidence supports the hearing judge’s determination that Burson made no efforts to ensure that the Shapiro Firm had in effect measures giving reasonable assurance that lawyers did not robo-sign documents.
As to the junior lawyer
Although McDowell signed trustee’s deeds and affidavits on Savage’s behalf, McDowell had a relatively blameless mental state in doing so, as McDowell did so at Savage’s direction and believed that doing so was not improper. Although McDowell’s misconduct is aggravated by a pattern of misconduct and multiple violations of the MLRPC, McDowell’s misconduct is mitigated by the absence of prior attorney discipline, the absence of a dishonest or selfish motive, a cooperative attitude toward this attorney discipline proceeding, and sincere remorse.
And a note of warning to Maryland supervising attorneys
To be clear, we caution partners—and lawyers who "possess comparable managerial authority[,]" MLRPC 5.1(a); MLRPC 5.3(a)—that our decision to reprimand Burson is based on this attorney discipline proceeding’s unique circumstances. Under other circumstances, this Court would suspend a lawyer who violates MLRPC 5.1(a)...
The New York Appellate Division for the Second Judicial Department reversed a trial court order and dismissed a legal malpractice case on these facts
The defendants represented the plaintiff, a physician, in a disciplinary proceeding commenced against him by the State Board for Professional Medical Conduct. Although the plaintiff faced potential revocation of his license, the defendants negotiated a settlement offer, whereby the plaintiff would be placed on probation for a period of three years with certain restrictions on his practice. Upon consultation with the defendants, the plaintiff accepted the settlement offer and entered into a consent agreement. The consent agreement was entered into with the informal understanding that the plaintiff could apply to have certain restrictions removed after one year. After complying with the consent agreement for approximately one year, the plaintiff retained new counsel and successfully obtained removal of certain restrictions in the consent agreement. The plaintiff subsequently commenced this action against the defendants, alleging legal malpractice, breach of contract, and breach of fiduciary duty...
Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in their representation of the plaintiff, and, in any event, that any alleged breach was not the proximate cause of the plaintiff's damages.
A District of Columbia Hearing Committee has recommended that two attorneys be suspended with proof of fitness for misconduct in a medical malpractice case. The committee proposes an 18-month suspension for one of the attorneys and a two-year suspension for the other.
The committe's analysis of the evidence and violations is generally solid. They find some charges proven by clear and convincing evidence and reject other alleged rule violations.
I do part company with them on their sanctions analysis.
The attorneys undertook the case in an area where they had no expertise and performed in an incompetent manner.
After they were discharged by the clients, they made numerous and extensive false representations to the clients and the court in an attempt to collect an unreasonable fee.
They refused to acknowledge any misconduct.
The hearing committee found that the Rule 3.3 and 8.4(c) violations involved seriously dishonest conduct.
Bar Counsel sought disbarment, a sanction the hearing committee found unwarranted
Bar Counsel has recommended disbarment. The Hearing Committee finds, however, that disbarment in this case would be out of line with the sanctions imposed in prior cases. Despite the seriousness of Respondents’ dishonest conduct, the Hearing Committee does not find that their conduct rises to the level of “flagrant” dishonesty.
Here's the rub.
One of the two attorneys has already been disbarred once (in 1984) and had secured reinstatement in 1994. Since his reinstatement, he was publicly censured by the Court of Appeals and placed on probation for post-reinstatement ethical violations.
Apparently, the hearing committee did not consider the fact that the attorney has already been disbarred as a significantly aggravating factor. To put it mildly, I think that fact is highly relevant to the disposition of this matter.
If you've been disbarred once and engage in serious dishonest conduct after being reinstated, you get disbarred again. And reinstatement should only be granted after careful and mature deliberation.
There is another interesting aspect to the case.
Bar Counsel charged that the formerly-disbarred attorney violated probation by failing to tell clients that he was on disciplinary probation. The hearing committee rejected those charges, finding that the probation order did not clearly require him to do so.
Here's the provision
Respondent shall promptly inform his clients that he has been placed on probation for failing to deposit client funds in an escrow account.
The clients retained the attorney after that condition was imposed. The hearing committee interprets the provision as requiring that he tell his present clients of the probation as of the date of the court's order but not future clients like the ones here.
I don't expect that interpretation to be upheld.
The case is In re Bettis (the once-disbarred) and McClure and can be accessed at this link. (Mike Frisch)
Wednesday, June 18, 2014
A public defender who accepted fees for representing non- qualified clients was suspended for 18 months by the South Carolina Supreme Court.
Respondent was employed as a full-time attorney with the Tenth Circuit Public Defender's Office. During her employment, respondent represented clients who were not financially qualified to receive a public defender. In addition, she accepted funds from some of the non-qualified clients whom she represented.
Respondent was arrested and charged with Misconduct in Office by a public official. She resigned from the Tenth Circuit Public Defender's Office on August 22, 2011. The Court placed respondent on interim suspension on August 24, 2011. Id.
On January 16, 2014, respondent pled guilty to Misconduct in Office by a public official. She was ordered to pay a $100.00 fine and various court costs. On the same day, respondent paid in full the fine and all court costs.
The sanction is effective as of the date of the interim suspension. (Mike Frisch)
The Ohio Supreme Court has imposed a stayed two year suspension of an attorney primarily for defects in his contingent fee agreements with multiple clients.
The agreements mentioned that an attorney named Freeman would participate in the matter but
The contingent-fee contracts failed to disclose that Freeman was not a member of Schiff’s firm and did not disclose Schiff’s intent to refer the case to an attorney (Freeman) outside of Schiff’s law firm. The contracts also did not disclose that the fees would be divided between Schiff and Freeman, nor did they identify how the fees would be divided. Accordingly, in each instance the client was not afforded an opportunity to give written consent to the division of fees between Schiff and Freeman or to the manner in which the fees would be divided.
The attorney had reported Freeman to the FBI and to disciplinary authorities.
Freeman was ultimately and permantly disbarred for other misconduct. The court found over 50 ethical violations after he defaulted on the charges. (Mike Frisch)
The Pennsylvania Supreme Court imposed a one-year suspension on consent of a magistratial district judge who dimissed three of her own parking tickets.
The tickets were issued for illegal parking in front of her own residence. The tickets were dismissed by the judge going into the computer system.
The conduct led to a misdemeanor conviction for tampering with public records.
Tuesday, June 17, 2014
An attorney who did not practice law by rather served as an investment advisor was disbarred by the New York Appellate Division for the First Judicial Department
Respondent does not practice law, but operates a tax preparation and consulting business in Florida. Buono, a retired government employee, and her husband sought financial advice from respondent, whom they had used as a tax preparer and financial adviser for the previous five years. Respondent advised Buono to invest in a hedge fund he had formed and managed, Green Oak Hedge Fund, Ltd. (Green Oak), assuring her that it was conservative and safe, and employed a trading strategy that was guaranteed not to lose money. However, according to Green Oak's offering materials and its limited liability partnership agreement, which were never provided to Buono, the fund utilized an options trading strategy and involved a high degree of risk, including the possibility that investors could lose part or all of their investment.
The attorney made numerous misrepresentations and Buono lost her investment
Although respondent has no prior disciplinary history, his misconduct was intentional and involved repeated, material misrepresentations to Buono and she lost most of her savings. There also is significant evidence of aggravation, namely that respondent testified falsely at his deposition before the Committee, that he engaged in similar misconduct with respect to other Florida investors and has not satisfied the two judgments they obtained against him, and he improperly transferred the funds of a deceased tax client into a joint brokerage account.
But no order of restitution
As to the Hearing's Panel additional recommendation that respondent's reinstatement be conditioned upon his making full restitution to Buono with interest, this Court cannot issue an order directing restitution pursuant to Judiciary Law § 90(6-a)(a). Respondent's fraudulent solicitation of investment funds from Buono occurred in his role as a financial adviser, not in connection with the practice of law as contemplated by the statute.
The Rhode Island Supreme Court has held that a former state Bar Association President who resigned while under disciplinary investigation must take and passthe MPRE as a condition of reinstatement
Dan Rodriguez, Northwestern University Law School dean and current president of the AALS, has some typically thoughtful commentary at PrawfsBlawg on the news that President Obama is not recommending law school as the grad school of choice, suggesting instead that we need more STEM professionals than lawyers.
If I may characterize Dan's comment, he's not taking issue with the President's comment as much as suggesting the real name of the game is in interdisciplinarity, and lawyers and law degrees have something to contribute on that score.
I commented on his post over at Prawfs, but thought I'd reprint it here as well.
The business world is at least twenty (and probably more, given the structural and institutional problems with interdisciplinary work in academia) years ahead of universities in this. It's not to say that disciplinary and functional silos don't exist out there; they still do. But the fundamental insight of lean enterprise and continuous improvement was that research, engineering, manufacturing, and marketing all had to talk to each other from the outset, or you ended up with designs nobody could build, or products nobody wanted.
So who teaches interdisciplinarity? Louis Menand's "The Marketplace of Ideas" and Michele Lamont's "How Professors Think" are about as good as it gets in nailing what my casual empiricism tells me: there's a tension between dilettantism and disciplinary rigor every time you venture out into the space between disciplines (which by the way are something WE create and don't necessarily or even contingently cut fields of knowledge at the joints). The paradox, of course, is that once you establish peer review or other disciplinary standards in the new space you've replicated the original disciplinary problem.
So in academia, what you have to do is forge ahead notwithstanding the cautious naysayers (i.e. risk being called a dilettante, which ain't easy if you are pre-tenure) but at the same time do the best you can in finding like minded souls from the other discipline to afford you some check on rigor, mix it all together and hope for the best.
Finally, the particular hallmark of disciplinary rigor among both academic and practicing lawyers is attribution of blame as the focus of cause-and-effect in the world (from Honore & Hart to Moore to "all you say is 'no'"). That's usually one of the first things that effective business lawyers manage to shed, oftentimes to the dismay of lawyers' lawyers.
Monday, June 16, 2014
The Pennsylvania Court of Judicial Discipline rejected the proposed sanction of removal from office of a magisterial district judge and ordered a suspension without pay and probation for misconduct relating to dismissed parking tickets.
The judge presided over a busy court and suffers from Crohn's Disease, which caused urgent bathroom needs.
She received a number of parking citations, three of which she had dismissed.
The court found mitigation
The offending conduct here was an isolated incident which we believe would never have happened save for the coming together of a number of events and circumstances, as
- Respondent’s affliction with Crohn’s disease,
- the onset of an urgent need to use a restroom,
- the inadequacy of the restroom in the court office,
- the need to use the restroom at her home,
- the non-existence of a legal parking space near her home at the time,
- the issuance of the tickets while she used the restroom at home,
- the onset of a painful medical condition requiring treatment including hospitalization and surgery during the critical 15-day period when she would, ordinarily, have paid the tickets.
The misconduct was deemed to be an isolated incident by an outstanding magisterial district judge who presides over a busy court in an exemplary manner.
Further, the judge had self-reported. (Mike Frisch)
The Oklahoma Supreme Court has ordered the interim suspension of an attorney who is facing criminal charges.
KOKH Fox 25 reported on the criminal allegations
An Oklahoma City attorney is facing prison time after being arrested inside the Oklahoma County jail. The Sheriff's office says the investigation began a week ago when a female inmate told deputies the man she thought was her attorney was engaging in sexual acts during visitations.
Deputies arrested Frank Kirk, 70, on Monday after setting up a sting that caught him on audio tape with the inmate. Investigators say the inmate originally contacted Kirk in January about representing her, but it turns out he never filed to be her attorney of record.
"Kirk told the victim that since she didn't have the cash to pay for his services she could make it up to him by performing sexual acts instead," said Sheriff John Whetsel.
Sheriff Whetsel said the investigation revealed the Kirk only pretended to represent the woman who was in jail on drug charges. She discovered the ruse when the public defender's office contacted her about her case. That's when the woman talked to deputies and agreed to assist in the investigation.
Investigators say the woman met with Kirk inside the jail and he is heard on audio tape making advances towards her. The sheriff's office says the woman was told to use the phrase "my pants are too tight" to signal deputies to enter the room. "During his visit, Kirk furnished her with lubricating jelly and a sex toy and as this began our investigators opened the door and arrested Frank Kirk immediately."
According to court documents the female inmate told investigators that Kirk coerced her into performing sexual acts while he watched at least four times.
Deputies found a cell phone with Kirk after his arrest. Bringing a cell phone into the jail is a felony. Kirk is now facing charges of possession of contraband and multiple counts of offering to engage in an act of lewdness.
"The sex toys and lubricant and stuff like that I can't imagine in a million years any lawyer would do anything like that and hopefully there's been a misunderstanding but it doesn't seem that way to me," said defense attorney Scott Adams.
The court concluded that there was a sufficient basis to suspend the attorney in light of witness intimidation allegations
Complainant alleges Respondent has filed a formal entry of appearance in several client cases pending in Logan, Oklahoma, and Tulsa Counties, primarily in criminal and family law matters. Because it is alleged that Respondent used his law license to gain privileged access to an inmate by representing to be her lawyer to commit lewd acts, and that he again used his law license to gain privileged access to another inmate in order to confront and intimidate J.M. from giving testimony against him, this Court finds Respondent's continued practice poses an immediate threat of substantial and irreparable public harm based on the facts presented.
The Georgia Supreme Court accepted a petition for voluntary discipline of a convicted attorney.
The court previously had rejected a voluntary discipline petition and described the offense
Richbourg recites the facts leading to his conviction, which involved an early morning confrontation in the alleyway separating his residence from his neighbor's, after Richbourg had been drinking alcohol. A truck that appeared suspicious to Richbourg pulled into the alley and as two men (one being Richbourg's neighbor) got out of the truck, Richbourg pointed a gun at them and ordered them to the ground. The neighbor tried to tell Richbourg who he was but Richbourg would not listen. Eventually the other man got up and said Richbourg would just have to shoot him because he was going inside the house, and Richbourg withdrew to his property.
The attorney is indefinitely suspended for three years or until he completes obligations under the criminal sentence, whichever is longer. (Mike Frisch)
The Georgia Supreme Court has imposed a six-month suspension of an attorney on these facts
Tucker admits that in 2012 and 2013 he represented 26 clients in separate bankruptcy cases in the U.S. Bankruptcy Court for the Northern District of Georgia, and that in each of those cases, he worked with Samuel Brantley, a former lawyer who had been disbarred as a result of a conviction to commit wire fraud. Tucker knew that Brantley had been disbarred but nevertheless allowed him to have contact with clients in person, by telephone and in writing; allowed him to meet with clients in Tucker’s office; allowed him to discuss and advise clients about the procedural and substantive aspects of their cases; did not tell the clients that Brantley had been disbarred and told clients Brantley was a lawyer; and allowed Brantley to prepare pleadings (although Tucker signed them and appeared in court). In July 2013 the U. S. Bankruptcy Court entered an order sanctioning Tucker in a case for allowing Brantley to effectively represent the client except for making court appearances, and it suspended him from practice in that court for six months.
Justice Nahmias concurred but would not treat the bankruptcy sanction as a mitigating factor. To the contrary
...the fact that another court felt so strongly about the misconduct that a Georgia attorney committed in its proceedings that it imposed its own sanction, rather than merely referring the attorney to the disciplinary authorities, should signal that the misconduct at issue is particularly serious and worthy of professional discipline – that is, it should be viewed, if anything, as an aggravating factor.
Friday, June 13, 2014
The Iowa Supreme Court has held that a defendant who pleaded guilty to criminal transmission of the HIV virus received ineffective assistance of counsel because there was an insufficient factual basis to support the plea.
...we find the guilty plea record did not contain a factual basis to support the plea. We also find the court in this case cannot use the rule of judicial notice to establish the factual basis in the guilty plea record. Based on the state of medicine both now and at the time of the plea in 2009, we are unable to take judicial notice that an infected individual can transmit HIV, regardless of an infected individual’s viral load, when that individual engages in protected anal or unprotected oral sex with an uninfected person. Accordingly, we vacate the decision of the court of appeals and reverse the judgment of the district court. We also remand the case with directions.
Justice Zager dissented and would apply the strong presumption in favor of effective assistance
There is no way to reconcile the majority’s conclusion. The strong presumption in favor of an attorney’s effective assistance of counsel and the need to suppress hindsight’s temptation in favor of an analysis that takes account of the law and the facts as they were at the time of the conduct under review are the hallmark of ineffective-assistance-of-counsel analysis. In 2008, when counsel examined the record to determine whether the facts met the elements of the criminal-transmission statute, he could have reasonably concluded the guilty plea was factually supported according to the law as it was then. All the necessary facts are in the record, notwithstanding the record’s limitations...
In the months leading up to the criminal offense, and in the subsequent months prior to Rhoades’s decision to plead guilty, we cannot forget it is Rhoades who had all of the relevant facts. Rhoades had all of the medical information regarding his HIV status and his viral load. Rhoades knew whether he should engage in intimate contact, whether this intimate contact needed to be protected or unprotected, the reasons he believed the intimate contact did or did not need to be protected, and whether there was a possibility that the HIV could be transmitted. Nevertheless, Rhoades listed his HIV status on his online dating profile as negative and told A.P. he was "clean" before the two engaged in the intimate contact. After these initial denials, Rhoades finally admitted to A.P. two weeks later in a recorded phone call that he was HIV positive.
Today’s decision must leave counsel with the distinct feeling of having a rug yanked out from under him.
The Tennessee Supreme Court has disbarred an attorney who
accepted appointments to represent indigent defendants for several years in which he failed to keep contemporaneous time records; billed for out of court time as if it were in court time; and billed for the full amount of time he was in court for each case even when appearing on multiple cases during one hearing rather than prorating his time.
The attorney failed to answer the charges and did not appear for the disciplinary hearing. (Mike Frisch)
Thursday, June 12, 2014
An attorney who sexted a law student clerk has been suspended for a partially-stayed one year term by the Ohio Supreme Court.
The inappropriate text messages were sent to a third year University of Akron student who had interviewed for a student law clerk position with his firm.
The student accepted the position and shortly thereafter received an invitation to travel to Washington, D.C. with him. When she declined, he e-mailed her that it was strike one and three strikes you are out.
The student resigned the clerkship and reported the conduct to the professor who had posted the position. The professor reported the matter to the bar.
Wednesday, June 11, 2014
The New Jersey Supreme Court has disbarred an attorney for knowing misappropriation of entrusted funds.
The Disciplinary Review Board rejected a variety of contentions
Respondent admitted that he used the trust account funds for personal expenses, during this time, because his business was doing poorly. Unquestionably, thus, he knowingly misappropriated trust funds.
Respondent’s claim that he was concerned with the bank’s solvency at the time is undercut by the fact that he mentioned this for the first time at the ethics hearing and that he admitted not knowing what the FDIC rules and regulations were with respect to the insured limits on bank accounts. If respondent were truly concerned about the safety of the monies in the trust account, he would have removed the funds, in one lump sum, and placed them in a trust account at another bank, instead of taking them out, in "dribs and drabs.,... to live on," as he so readily admitted.
Moreover, respondent’s argument that, despite his depletion of the trust account, the monies were still in escrow because he had personal accounts that contained enough funds to "cover" the shortages is meritless. First, he was required to maintain those funds in an attorney trust account, pursuant to R__~. 1:21- 6(a)(1). Second, the accounts that respondent had jointly with his wife were not under his complete control and, therefore, were not exempt from depletion. The same is true for the IRA account, which was subject to fluctuations, based on market conditions. Third, his personal accounts, on occasion, did not, in fact, have enough monies to "cover" the total amount of funds that should have been held in the trust account.
That the funds could be replenished with personal monies, as respondent claimed, is of no moment. Restitution or availability of other funds, even if available, is not a defense to knowing misappropriation.
Tuesday, June 10, 2014
The New York Court of Appeals held that the Commission on Judicial Conduct is authorized to obtain sealed records in aid of an ongoing investigation into alleged judicial misconduct.
The appeal was brought by an attorney who was criminally prosecuted for campaign violations along with a judge. The charges were either dismissed or led to a jury acquittal.
The commission sought the records after the criminal charges were resolved. (Mike Frisch)