Thursday, March 20, 2014

Ethics Journal Publication Hits Streets

The Winter 2014 edition of the Georgetown Journal of Legal Ethics is now in print and available on line.

Justin Hansford of St. Louis University School of Law has a piece on "Cause Judging," Rene Reich-Graefe of Western New England School of Law advises that we "Keep Calm and Carry On" in the crisis in legal education and Phoenix School of Law's Keith Swisher contributed an extensive analysis of "The Practice and Theory of Lawyer Disqualification."

Thanks to Jake Itzkowitz and the staff for their valuable contribution to legal ethics scholarship. (Mike Frisch)

March 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Giving Notice, Getting Paid

A lawyer's attempt to recover unpaid fees failed in a decision affirming dismissal of the claim by the New York Appellate Division for the Second Judicial Department.

Except in limited circumstances, where an attorney institutes an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client's right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate (see 22 NYCRR 137.6). A plaintiff's failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, require dismissal of the complaint (see Herrick v Lyon, 7 AD3d 571). Here, the Supreme Court properly dismissed the complaint upon finding that the plaintiff failed to properly serve the defendant with written notice of his right to arbitrate the fee dispute, and upon the plaintiff's failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration (see 22 NYCRR 137.6; Herrick v Lyon, 7 AD3d 571).

In addition, the Supreme Court properly found that the plaintiff failed to comply with the requirements of 22 NYCRR 1215.1 and failed to establish that he was entitled to recover legal fees in quantum meruit. Except in limited circumstances, an attorney must provide his or her client with a written letter of engagement or enter into a written retainer agreement explaining, inter alia, the scope of the legal services to be provided, the fees to be charged, and the expenses and billing practices (see 22 NYCRR 1215.1). An attorney's noncompliance with 22 NYCRR 1215.1 does not preclude him or her from recovering the value of professional services rendered on a quantum meruit basis (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54). Nonetheless, an attorney who fails to comply with rule 1215.1 bears the burden of proving the terms of the retainer and establishing that the terms of the alleged fee arrangement were fair, fully understood, and agreed to by the client (see id.). Here, the court properly found that the plaintiff failed to comply with 22 NYCRR 1215.1 and failed to establish that the terms of the fee arrangement were fair, fully understood, and agreed to by the defendant.

(Mike Frisch)

March 20, 2014 in Clients, Current Affairs, Economics | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 19, 2014

Reprimand For Dishonest Conduct

 The New Jersey Supreme Court has reprimanded an attorney for dishonest conduct.

Specifically, in 2004, when respondent was hired for a position with the Pennsylvania Health Law Project (PHLP), she had passed both the New Jersey and Pennsylvania bar exams and led the PHLP Director to believe that she was taking the steps necessary to complete the application process to be admitted to the Pennsylvania bar. The PHLP personnel manual required attorneys employed by PHLP to pass the Pennsylvania bar examination within two and a half years, but it did not contain any provisions regarding bar admission requirements. The PHLP Director described respondent’s duties as "less legal work and more like administrative paralegal work."

Respondent was admitted to the New Jersey bar in 2004, but not to the Pennsylvania bar. From 2003 through 2006, she suffered from severe rheumatoid arthritis. The disease seriously impacted her mobility, stamina, and physical and emotional health, and prevented her from completing the steps necessary to gain admission to the Pennsylvania bar.

A benefit of working for PHLP was that it paid the annual Pennsylvania attorney fee for full-time staff attorneys. In two separate years, 2004 and 2008, respondent misled the director that she had paid the annual fee. On one occasion, the director had PHLP reimburse respondent for the $175 fee. Rather than return the check, to which she knew she was not entitled, respondent cashed it and used it for other purposes. She ultimately repaid the $175.

In sum, respondent misrepresented her status as an admitted Pennsylvania attorney, during her five-year tenure at PHLP, and improperly used funds that were earmarked to reimburse her for a fee that she did not pay.

The attorney consented to the sanction. (Mike Frisch)

March 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 18, 2014

"The Seven Year Itch" Argument Falls Flat

The Indiana Supreme Court affirmed a conviction for child exploitation on these facts

On February 27, 2010, [defendant] Delagrange left his home in Fort Wayne and drove approximately one hundred miles to the Castleton Square Mall in Indianapolis. He then wandered around for nearly eight hours trying to take "upskirt" photographs of women and girls as they were shopping. After he selected a particular victim, he would approach her from behind and try to inveigle his foot between her legs. Once in position, he would reach into his pocket and pull on a piece of fishing line attached to the cuff of his pants leg, thereby exposing a video camera attached to his shoe. By means of this procedure, Delagrange collected approximately seven minutes of actual images.

Unsurprisingly, Delagrange’s unusual behavior attracted attention, and a store employee contacted police. After a brief confrontation, an officer arrested Delagrange and discovered his camera system. Detectives later identified four girls from the recorded images: K.V., T.G., and C.B., all aged seventeen, and A.K., aged 15. Those images depicted "the area under the skirt and between the legs" of the victims, but did not depict any "uncovered genitals." Ex. at 5.

This argument did not work

...we note that Delagrange’s trial counsel repeatedly drew a parallel between the images Delagrange captured with his ersatz equipment and a famous photograph of Marilyn Monroe standing over an air vent. This analogy was unpersuasive for a lack of similarity between a photograph of a knowing and consenting adult and a video of an unknowing and unconsenting child. The former is legal; the latter is not. 

(Mike Frisch)

March 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Taken To The Cleaners

Kevin Kidder has this summary of a disciplinary case from the Ohio Supreme Court

The Ohio Supreme Court today announced that it will indefinitely  suspend Cincinnati attorney Robert F. Alsfelder Jr. from the practice of law  for failing to respond to repeated court orders for information as part of an  investigation into his alleged misconduct.

In a 7-0 decision, the Supreme Court adopted the findings of  the Board of Commissioners on Grievances & Discipline. The per curiam (not  authored by a specific justice) opinion concluded that Alsfelder violated professional  conduct rules by not complying with investigators or court orders requesting  documents.

Alsfelder was a customer of Eastern Hills Dry Cleaners when  in 2005 he and his wife, an accountant, agreed to manage the “business aspects”  of the company. The couple charged $225 per hour for legal services, and $65 an  hour for business-related services. Alsfelder cashed the checks he received at  various Cincinnati banks.

Between 2005 and 2008, Eastern Hills Dry Cleaners and its  owner, Joseph Witschger, paid more than $152,000 to Alsfelder.

In 2010, a probable cause panel agreed with a two-count complaint  made by the Cincinnati Bar Association alleging that Alsfelder had failed to  maintain records of client funds and had converted funds to his own personal  use, and had improperly used information he received in his role with the dry  cleaners to the company’s detriment.

Two years later the bar association added two more counts,  alleging that he had failed to report income he received from his business  relationship on his federal and state tax returns, and that Alsfelder had not  cooperated with investigators.

In 2011, the Supreme Court found Alsfelder in contempt for not  appearing for a deposition and failing to produce documents, and then suspended  him later that year. In 2012, Alsfelder was found in contempt a second time.

In today’s ruling, the court found that there was  insufficient evidence to establish the underlying misconduct, but held that  Alsfelder had violated professional conduct rules by not cooperating in the  disciplinary proceedings and ignoring at least five board orders and three Supreme  Court orders to produce documents, including certain tax returns.

In determining the appropriate sanction, the court agreed  with the board’s finding of four aggravating factors, including a previous  one-year suspension for misconduct, failing to cooperate with investigators and  the court, and engaging in deceptive practices. The court found no mitigating  factors.

“Alsfelder’s  misconduct goes far beyond the typical failure to cooperate in a disciplinary  investigation. It encompasses a complete and contumacious disregard of this  court’s orders over a period of years,” the court concluded in its decision. “Alsfelder’s  recalcitrance flies in the face of his oath of office, his duties to this  court, and his duties to the legal profession as a whole.”

The court noted that Alsfelder’s new suspension  will not go into effect until he complies with the court’s contempt orders.

2013-0223. Cincinnati Bar Assn. v. Alsfelder, Slip  Opinion No. 2014-Ohio-870.

(Mike Frisch)

March 18, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Fargo

The North Dakota Supreme Court has ordered the suspension without pay for a month of an elected district court judge for sexually harassing his court reporter.

It statred with this

The Commission found that on May 24, 2010, Judge Corwin injured his hands while at work and his court reporter drove him to a hospital emergency room. Judge Corwin testified that "we came out of [the emergency room incident] with a connection we didn't have before." Because his hands were bandaged from the accident, Judge Corwin would ask the court reporter to come to his office and help him tie his necktie for court appearances. The court reporter did so and found the experiences "[u]ncomfortable but not alarming."

But the situation got worse

On July 15, 2010, Judge Corwin and the court reporter, along with other Cass County Courthouse personnel, went to a Fargo restaurant and bar for an after-work gathering where they consumed alcohol. Judge Corwin invited the court reporter to join him on a bicycle ride that evening. She did so, and after the bicycle ride, Judge Corwin invited her into his home where they each had a glass of wine. While in the home, Judge Corwin engaged the court reporter in a conversation which she reasonably construed as a proposition for a sexual relationship. The court reporter rejected the offer, telling him she had read an article advising "it was a mistake to get involved with your boss." Judge Corwin responded that not all office romances end badly and pointed to his own 20-plus year marriage to his former secretary. As the court reporter was leaving the home, Judge Corwin hugged and kissed her.

On the evening of Sunday, July 18, 2010, Judge Corwin called the court reporter at her home and requested she bring a blind she had taken to wash to the courthouse so he could hang it in a bathroom there. The court reporter told Judge Corwin she would not get involved in a relationship with him. On July 21, 2010, Judge Corwin called the court reporter while traveling to a court appearance in Hillsboro and asked if she would go on a bike ride with him the following evening. The court reporter declined the invitation and reiterated her belief that it was a bad idea for the two of them to become intimate. Judge Corwin became angry. While on an extended lunch break on August 3, 2010, the court reporter received a text message from a coworker telling her Judge Corwin had been in the court reporter's office for 45 minutes with his feet on the desk reading a transcript. This was something Judge Corwin had not done before. He was still there when she returned to her office. The court reporter felt intimidated by the experience.

The court reporter continued to make efforts to rebuff the advances of the judge, who was responsible for conducting her performance review. The review had salary implications.

The court concluded

The evidence establishes that Judge Corwin sought to have an inappropriate relationship with the court reporter after she rebuffed his efforts to do so. Judge Corwin treated the court reporter differently than her coworker on the team. After finally realizing a sexual relationship would not materialize, Judge Corwin suggested the court reporter be switched to another team and told her "'[i]f this were still the law firm, I'd have taken care of the problem a long time ago, but since you work for the state it's going to be a little tougher.'" Judge Corwin then began complaining about the court reporter's work performance to court administrators before and during her biennial performance review. Judge Corwin relies on the testimony of the presiding judge, who recollected that Judge Corwin did not want any disciplinary actions taken against the court reporter. However, the presiding judge did not become involved in this matter until much of Judge Corwin's inappropriate conduct had already occurred.

The judge has announced that he will not seek reelection when his term expires at the end of 2014.

The Forum of Fargo-Moorhead had the story. (Mike Frisch)

March 17, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Subjective Belief No Basis For Malpractice

The West Virginia Supreme Court of Appeals affirmed the grant of summary judgment to the defendants in a legal malpractice claim

 On February 27, 2007, petitioner retained respondent to represent him in a possible claim against Concord University. Petitioner had applied for a plumber’s position at Concord in October of 2006. Concord hired another applicant for the position in January of 2007. Petitioner believed that Concord’s failure to hire him constituted retaliation for his earlier filing of a successful wage claim against one of Concord’s contractors.

Respondent did not file such an action on petitioner’s behalf, nor did respondent timely inform petitioner that its investigation did not support a claim of retaliation, prior to the expiration of the two-year statute of limitations on petitioner’s potential cause of action. In April of 2010, respondent met with petitioner and explained that there was no proof to support his claim. Respondent also advised petitioner that the statute of limitations had run on filing a retaliation claim...

 

This Court notes that respondent failed to file an action on petitioner’s behalf after respondent’s investigation revealed that petitioner possessed no viable cause of action. Petitioner obviously disagrees with his former attorney’s assessment of his claim; however, petitioner’s subjective belief that he had a viable action does not constitute evidence that he did.

(Mike Frisch)

 

 

March 17, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

"Mere Bad Behavior" Not Enough

A significant statement by the Illinois Supreme Court on the charging practices of the Illinois Administrator

M.R.25901 - In re: John P. Edmonds.    (March 14, 2014)

Disciplinary Commission.

The amended petition by the Administrator of the Attorney Registration and Disciplinary Commission for leave to file exceptions to the report and recommendation of the Review Board is denied without prejudice to refile a petition within twenty-eight (28) days; the Administrator is directed to review paragraphs 78 and 79 of the Court's opinion in In re Karavidas, 2013 IL 115767, as those paragraphs relate to the Administrator's decision to amend his petition for leave to file exceptions and not pursue exceptions to the Review Board's findings that respondent did not breach his fiduciary duty in Counts II, III and V; specifically:

"...an attorney's breach of fiduciary duty or conversion does not, standing alone, warrant the imposition of professional discipline. ...discipline for conduct occurring outside the attorney-client relationship should be limited to situations where the attorney's conduct violates the Rules by demonstrating "a lack of professional or personal honesty which render[s] him unworthy of public confidence." [citation omitted].

In sum, we hold that professional discipline may be imposed only upon a showing by clear and convincing evidence that the respondent attorney has violated one or more of the Rules of Professional Conduct. Mere bad behavior that does not violate one of the Rules is insufficient."

Order entered by the Court.

(Mike Frisch)

March 17, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Bajaj Supension imposed

A matter that received extensive media coverage has been concluded by the Illinois Supreme Court

M.R.26518 - In re: Reema Nicki Bajaj.    (March 14, 2014)

Disciplinary Commission.

The petition by the Administrator of the Attorney Registration and Disciplinary Commission to impose discipline on consent pursuant to Supreme Court Rule 762(b) is allowed, and respondent Reema Nicki Bajaj is suspended from the practice of law for three (3) years and until further order of the Court.

Order entered by the Court.

My own view is that this sanction is quite harsh, although it was consented-to by the attorney.  

Our earlier coverage of the complaint is linked here. (Mike Frisch)

March 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Minnesota To Wisconsin

The Wisconsin Supreme Court imposed a 30-day reciprocal suspension as a result of the same sanction in Minnesota.

The attorney had a record of prior Wisconsin discipline based on Minnesota sanctions:

Attorney N.'s professional disciplinary history in Wisconsin consists of a 90-day suspension imposed in 2006, reciprocal to a similar suspension in Minnesota.  Attorney N.'s misconduct in that case involved a consensual sexual relationship with a client; entering into multiple business transactions with a client without written disclosure of the potential conflicts and without providing for fair and reasonable terms for his client; failing to timely appeal a final judgment and subsequently filing motions previously decided by the unappealed judgment; and failing to notify the OLR of the Minnesota suspension.

Here:

...the Supreme Court of Minnesota suspended Attorney N.'s Minnesota law license for 30 days for undertaking representation despite a conflict of interest; engaging in inappropriate conduct toward opposing counsel; and bringing a claim in bad faith and for an improper purpose. 

(Mike Frisch)

March 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Find Me An Honest Pennsylvania Judge

An attorney who had no prior discipline in 27 years of practice has been reprimanded by the New Jersey Supreme Court.

The attorney was found to have falsely accused the entire judiciary of Pennsylvania - some 250 judicial officers - of systemic corruption. The accusations violated Rule 8.2 (which, I am pleased to state, the District of Columbia has not adopted).

The conduct came in the wake of losing an arbitration that involved legal malpractice claims.

 Suffice it to say that the loss was fully litigated in several trial and appellate court proceedings, in none of which the attorney's client prevailed.

The attorney defended the charges on First Amendment and truthfulness grounds. (Mike Frisch)

March 17, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Credit Charge Charges

A law firm associate has been charged with stealing from the firm by the Illinois Administrator:

In August 2012, Respondent began working for the Law Offices of Robert C.  Wilson ("the firm") as a law clerk. When Respondent was admitted to practice in  November 2012, she continued her employment with the firm.

While employed at the firm, which was owned by Robert C. Wilson  ("Wilson"), Respondent had physical access to the following: the firm's credit  card number ("Office Chase VISA"); Wilson's wife's credit card number ("PMW  Capital One"), Wilson's personal credit card number ("RCW ABA credit card"),  Wilson's personal credit card number on an American Express Account ("AMEX"),  the account number for a checking account set up for Wilson's daughter's wedding  ("T Wilson Wedding Acct"), and the account number for Wilson's personal checking  account ("RCW Personal Checking Acct").

At no time did Wilson or his wife give Respondent authority to use funds  from any of these accounts for Respondent's own personal or business purposes.

The total amount alleged is more than $8,000, with most charges to Amazon and Impressions Online. (Mike Frisch)

March 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, March 15, 2014

Dean David Levi Speaking at UNLV

From our friend Nancy Rapoport at UNLV:
 
The UNLV William S. Boyd School of Law 
presents the inaugural 
Judge Lloyd D. George Lecture 

on the Judicial Process

David F. Levi
Dean and Professor of Law, Duke Law School 

The Grand Challenges for the Legal Profession and Judiciary 

April 3, 2014
4:00-5:30 p.m.
Thomas & Mack Moot Court
UNLV William S. Boyd School of Law 
Reception to follow

This event is free and open to the public, but registration is required. 
For more information and to RSVP, go to law.unlv.edu/JudgeGeorgeLecture2014.

David F. Levi became the 14th dean of Duke Law School on July 1, 2007. Prior to his appointment, he was the Chief United States District Judge for the Eastern District of California with chambers in Sacramento. He was appointed United States Attorney by President Ronald Reagan in 1986 and a United States district judge by President George H. W. Bush in 1990.

A native of Chicago, Dean Levi earned his A.B. in history and literature, magna cum laude, from Harvard College. He entered Harvard’s graduate program in history, specializing in English legal history and serving as a teaching fellow in English history and literature. He graduated Order of the Coif in 1980 from Stanford Law School, where he was also president of the Stanford Law Review. Following graduation, he was a law clerk to Judge Ben C. Duniway of the U.S. Court of Appeals for the Ninth Circuit, and then to Justice Lewis F. Powell, Jr., of the U.S. Supreme Court.

About Judge Lloyd D. George 

Judge Lloyd D. George was appointed United States District Judge for the District of Nevada by President Ronald Reagan in May 1984. He served as Chief United States District Judge from 1992 to 1997, and assumed senior status in December 1997. Judge George was a pilot in the United States Air Force. He received his bachelor of science degree in 1955 from Brigham Young University, and his J.D. degree in 1961 from the University of California at Berkeley (Boalt Hall). Upon graduating, he returned to Las Vegas where he built a successful private practice.

 

March 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, March 14, 2014

Reinstated After Crimes Of Violence

The Louisiana Supreme Court has reinstated an attorney convicted of two criminal offenses.

The initial felony charges of simple rape and second degree battery resulted in pleas to charges of simple and second degree battery. The second degree battery plea was in the rape case.

The attorney had been placed on interim suspension after the guilty pleas. He eventually received a two-year suspension by consent.

The victim was an employee of the attorney's law office.

IND Media had this report on the civil case brought by the employee;

The civil suit, brought by the former female employee known only as J.K. in court papers, accuses the law firm of liability in the crime, citing a promiscuous, libidinous culture within the firm. A Lafayette judge dismissed the suit, but the appeals court reversed that judgment and remanded the case to district court for further proceedings.

Eye-opening accusations made in the appeal include testimony from former employees who described an office culture awash in alcohol and bristling with sexual innuendo, and a culture in which female employees considered themselves under siege by [the attorney's] booze-fueled sexual advances...

Justice Clark dissented from the reinstatement. In his view, the "abhorrent conduct" involved two crimes of violence.

Justice Clark believes that such conduct would likely to prevent admission in Louisiana and that reinstatement here is a "lowering of standards demanded of members of the Bar."

Justice Guidry also would not readmit.

No order of the majority explaining the rationale was posted on the court's web page. (Mike Frisch)

March 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Costs Imposed Where Attorney Stipulates to Sanction

An attorney who had practiced while suspended has been suspended for one year as a result of a stipulation approved by the Wisconsin Supreme Court:

In the stipulation, Attorney Maynard agrees that by failing to give timely written notice of the suspension of his license to practice law, and consequent inability to continue as counsel, to each of his clients; by continuing to practice law after the date this court ordered his license suspended; by knowingly making a false statement to a court that his license had already been reinstated; by repeated use of firm letterhead while he was suspended and other false and misleading communications that he was an attorney permitted to practice law in Wisconsin during the term of his suspension; by failing to fully and fairly disclose all facts and circumstances pertaining to his alleged misconduct; and by filing a complaint that violated Wis. Stat. § 802.05(2), as subsequently determined by a court, a one-year suspension of his license to practice law in Wisconsin is an appropriate level of discipline.  There is no request in this matter for a restitution award, nor is there a request for the imposition of costs against Attorney Maynard.

After careful review of the matter, we agree that a one-year suspension of Attorney Maynard's license to practice law in Wisconsin is a proper sanction.  Since the matter is being resolved without the appointment of a referee, we do not impose any costs on Attorney Maynard.

The attorney was the subject of a 90 day disciplinary suspension but had remained suspended for administrative reasons after the 90 days expired. (Mike Frisch)

March 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Pay The Client, Not Dish Network

Noting that it has consistently ordered license revocation in matters involving conversion of settlement proceeds in contingent fee litigation, the Iowa Supreme Court imposed that sanction on an attorney admitted in 2002.

In summary, [client] Street did not receive her portion of the settlement until nine months after [attorney] Thomas received the settlement check. During the nine months, Thomas’s trust account balance dropped below what he owed to Street. Thomas also admitted he withdrew money from the client trust account to pay for Dish Network at his office and for his home mortgage. The lowest balance for the client trust account was in June 2011 at $236.55.

In January 2012, Street received a check from the client trust account for $10,304.24. This check overdrew Thomas’s client trust account. Thomas wrote a check to the client trust account from his personal account to correct the overdraft. Neither Street nor her parents received a written summary showing the settlement distribution.

Thomas closed his client trust account in October 2012 and did not open a new client trust account. Thomas admitted he still had possession of $3350 that either belonged to State Farm or to Street.

On May 6, 2013, Thomas represented himself before a division of the grievance commission. Thomas admitted that at the time he handled Street’s funds he was unfamiliar with client trust account rules. He also admitted he wrote checks for his own benefit that exceeded his colorable claim to funds from Street’s settlement.

These rules regarding entrusted funds are worth being familiar with if one wishes to maintain a law license. (Mike Frisch)

March 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 13, 2014

The Nanny's Spouse Was A Suspended Lawyer

The New York Appellate Division for the First Judicial Department has imposed a one-year suspension of an attorney who assisted in authorized practice and falsely denied the misconduct to the Departmental Committee:

By way of background, respondent graduated law school in 1978 and has been a non-practicing attorney for most of his career. An unrelated incident in 1998 led to a forced but honorable discharge from the Army. That incident also resulted in an admonition in 1999. From 2007 through 2010, while employed at the EPA, respondent performed per diem work, in immigration law, for a suspended attorney (SA). The present charges stem from respondent's association with SA. Although respondent was aware of the suspension from 2007, he claimed that he did not see the actual Appellate Division decision until he was deposed by the DDC in January 2012.

Respondent's relationship with SA developed as a result of his employment of SA's wife as a nanny for his young daughter. Respondent explained that he and his then wife (who suffered from a serious chronic illness) were both employed full time and that SA's wife provided reliable childcare. Respondent became aware that SA and his wife were experiencing financial difficulty and respondent felt that by assisting SA in immigration matters he could help alleviate the couples' financial strain. This would, in turn, maintain stability in his own family by SA's wife continuing as his nanny. In addition, respondent was anticipating retiring from federal service in the near future and thought that by working for SA he could learn immigration law (an area in which he had no experience) and then develop his own immigration practice.

Respondent did not initially believe that assisting SA in immigration matters constituted aiding the unauthorized practice of law, and only became aware of this after he became the subject of a DDC investigation. SA was ineligible to practice before the United States Citizenship and Immigration Service (USCIS) and the Immigration Court because he was required to be an attorney in good standing "of the bar of the highest court of any State...and is not under any order suspending...or otherwise restricting him in the practice of law" (8 CFR 1001.1[f]; 1292.1[a][1]).

Respondent assisted SA's office in Astoria, Queens. The office and all client files belonged to SA. Respondent was paid $400-500 per day for immigration-related appearances. Respondent would meet with SA the day prior to (or, in some cases, the day of) a proceeding and SA would instruct him as to what he must do at the proceeding. Respondent would not meet with the client until the actual day of the proceeding. Due to his lack of experience in immigration law, respondent allowed SA to make all legal (and non legal) decisions with respect to the cases. In addition, all letters and documents were prepared by SA. Respondent never executed retainer agreements with the clients, nor did he ever receive any payments from the clients. Respondent estimated that he appeared at 10-12 immigration hearings (before the USCIS) for SA during the three years.

As to sanction:

Sanction determination in cases where attorneys have aided the unauthorized practice of law is very fact dependent. Here, respondent's misconduct is not as extensive as those matters in which disbarment was imposed, however, the surrounding circumstances make his case distinguishable from those in which a brief suspension of three to six months was imposed. Specifically, respondent was aware from the outset that SA was a suspended attorney. Notwithstanding this knowledge, he never bothered to review this Court's decision suspending SA; there is no evidence that he consulted with ethics counsel or performed any legal research of his own regarding the ethical issues raised by his arrangement with SA; nor is there any indication that he reviewed the federal regulations pertaining to the eligibility to practice immigration law.

Respondent's conduct was reckless and irresponsible and warrants suspension. Furthermore, respondent's intentional misrepresentation to the DDC in his answer to the complaint is a significant aggravating factor which only adds to the case for suspension...

(Mike Frisch)

March 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Far Beyond The Typical Failure To Cooperate"

Kevin Kidder has this summary of a decision of the Ohio Supreme Court

The Ohio Supreme Court today announced that it will indefinitely  suspend Cincinnati attorney Robert F. Alsfelder Jr. from the practice of law  for failing to respond to repeated court orders for information as part of an  investigation into his alleged misconduct.

In a 7-0 decision, the Supreme Court adopted the findings of  the Board of Commissioners on Grievances & Discipline. The per curiam (not  authored by a specific justice) opinion concluded that Alsfelder violated professional  conduct rules by not complying with investigators or court orders requesting  documents.

Alsfelder was a customer of Eastern Hills Dry Cleaners when  in 2005 he and his wife, an accountant, agreed to manage the “business aspects”  of the company. The couple charged $225 per hour for legal services, and $65 an  hour for business-related services. Alsfelder cashed the checks he received at  various Cincinnati banks.

Between 2005 and 2008, Eastern Hills Dry Cleaners and its  owner, Joseph Witschger, paid more than $152,000 to Alsfelder.

In 2010, a probable cause panel agreed with a two-count complaint  made by the Cincinnati Bar Association alleging that Alsfelder had failed to  maintain records of client funds and had converted funds to his own personal  use, and had improperly used information he received in his role with the dry  cleaners to the company’s detriment.

Two years later the bar association added two more counts,  alleging that he had failed to report income he received from his business  relationship on his federal and state tax returns, and that Alsfelder had not  cooperated with investigators.

In 2011, the Supreme Court found Alsfelder in contempt for not  appearing for a deposition and failing to produce documents, and then suspended  him later that year. In 2012, Alsfelder was found in contempt a second time.

In today’s ruling, the court found that there was  insufficient evidence to establish the underlying misconduct, but held that  Alsfelder had violated professional conduct rules by not cooperating in the  disciplinary proceedings and ignoring at least five board orders and three Supreme  Court orders to produce documents, including certain tax returns.

In determining the appropriate sanction, the court agreed  with the board’s finding of four aggravating factors, including a previous  one-year suspension for misconduct, failing to cooperate with investigators and  the court, and engaging in deceptive practices. The court found no mitigating  factors.

“Alsfelder’s  misconduct goes far beyond the typical failure to cooperate in a disciplinary  investigation. It encompasses a complete and contumacious disregard of this  court’s orders over a period of years,” the court concluded in its decision. “Alsfelder’s  recalcitrance flies in the face of his oath of office, his duties to this  court, and his duties to the legal profession as a whole.”

The court noted that Alsfelder’s new suspension  will not go into effect until he complies with the court’s contempt orders.

The opinion is linked here. (Mike Frisch)

March 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Who Appointed Himself To Run Non-Profit Disbarred

The New York Appellate Division for the Second Judicial Department ordered the disbarment of an attorney convicted of federal offenses

As revealed in the United States Government's sentencing memorandum, and the District Court's order denying the respondent's posttrial motions, the respondent unilaterally appointed himself Executive Director of Neighborhood Enhancement Training Services (hereinafter NETS), a not-for-profit corporation located in the Bronx, which was established to help poor constituents in the district of then-Assemblyman Peter M. Rivera, who asked the respondent to help NETS renovate a building it had purchased. At or about that time, the respondent was treasurer of Assemblyman Rivera's political campaign, worked in Assemblyman Rivera's law office, and ran Assemblyman Rivera's for-profit corporation, R & S Group, Inc. (hereinafter R & S). In his role as Executive Director of NETS, the respondent unilaterally authorized payment of a salary, and other funds, to himself.

Counts one and two of the federal information arose from the respondent's production of documents to the FBI, in response to a grand jury subpoena, purporting to be the minutes of two meetings of the Board of Directors of NETS. At trial, the jury found that the purported minutes provided by the respondent falsely stated that the Board of Directors of NETS had certain discussions, and took certain actions related to the respondent's salary, both prospective and retroactive, and that the respondent accepted alleged loans from Assemblyman Rivera's law firm and R & S.

Count three arose from the respondent's mailing of a "grantee questionnaire" to the Dormitory Authority of the State of New York, in which he falsely represented that, within the preceding five years, neither NETS, nor any director or officer of NETS, nor any affiliated or related companies, had been the subject of a criminal investigation, a civil investigation by any governmental agency, or any tax liens or judgments.

The opinion is linked here. (Mike Frisch)

March 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Mitigation Rejected

An attorney who had converted entrusted funds to pay personal expenses was suspended for two years by the New York Appellate Division for the Second Judicial Department.

The attorney had been suspended on an interim basis and here had sought a "time served" disposition.

The court rejected mitigation evidence based on a series of traumatic events in the attorney's life.

In mitigation, the respondent asserts that she made mistakes, and attributes them to the fact that during the relevant time period she was distracted and unfocused owing to personal circumstances in her life, i.e, the birth of a child in September 2008, the death of her grandmother in August 2009, which left her devastated; a second pregnancy; the death of her father in May 2011; and the death of her aunt in June 2011. The respondent's therapist, Lois Winston, opined that the respondent had suffered from postpartum depression, major depression, and posttraumatic stress disorder, all resulting from these events in her life, which occurred one after another. Winston further opined that the respondent's misconduct was a direct result of her depression, which impaired her ability to focus. In seeking a one-year suspension, applied nunc pro tunc from the date of her interim suspension, the respondent asks this Court to also consider the fact that she did not act with venality, no clients were harmed, she is remorseful, she cooperated with the investigation, she was relatively inexperienced, and her general reputation is that of an honest attorney.

We agree with the Special Referee's finding that the testimony of the respondent's therapist was not credible. The evidence revealed that the respondent never sought professional help during any of the years she experienced the traumas she identifies, and began therapy in August 2012, only after she retained counsel and was suspended by this Court. Moreover, the respondent's alleged depression cannot explain why her inattention affected only escrow matters and not other aspects of her law practice. It is far more likely that the respondent's admitted errors were a product of not having implemented basic accounting procedures to monitor her escrow account, which were compounded by her failure to review her bank statements or monitor her accounts online. While the respondent's claim of depression as the cause of her misconduct is not credible, this Court nonetheless acknowledges that she did experience many emotional events in a relatively short time frame.

(Mike Frisch)

March 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)