Tuesday, August 30, 2016

No Spit

A criminal conviction was affirmed by the Indiana Supreme Court

 As Michael Day’s marriage dissolved, the family home became increasingly tense, until one night Day came home, screamed in his wife’s face, and spat in her eye. Four 911 calls later, Day was arrested. He was subsequently convicted of disorderly conduct based on "fighting." Here, he asks us to interpret the disorderly conduct statute’s "fighting" subsection to require both a public disturbance and a physical altercation, claiming the State failed to prove either element.

Guided by well-established principles of statutory interpretation, we conclude that the "fighting" subsection does not contain a public disturbance element but does require a physical  altercation. Still, Day’s intentional spitting provided sufficient evidence of a physical altercation. We thus affirm his disorderly conduct conviction.

The court interpreted the statute and considered application of the rule of lenity

But even under our narrow interpretation of "fighting," Day’s intentional, point-blank spitting on M.D. constitutes sufficient evidence to support his conviction. After Day berated M.D. for ten minutes, he leaned over the bed where she was lying and deliberately spat in her face. Some of the spit entered her eye, forcing her to wipe it away. A reasonable factfinder certainly could have found Day’s conduct constituted a physical altercation.

 The court thus "affirm[ed]  Day’s conviction for B-misdemeanor disorderly conduct. (Mike Frisch)

 

August 30, 2016 | Permalink | Comments (0)

Judicial Ads Issues Before Ohio Supreme Court

A case scheduled for oral argument this week before the Ohio Supreme Court

Disciplinary Counsel v. Ronnie M. Tamburrino, Case no. 2016-0858
Ashtabula County

In a disciplinary case stemming from the 2014 election for judges on the Eleventh District Court of Appeals, the Board of Professional Conduct has concluded that Ron M. Tamburrino, a candidate in the race, approved and ran two television ads containing false statements, violating two judicial conduct rules.

Though the panel that reviewed the case proposed a stayed six-month suspension, the board noted Tamburrino has repeatedly refused to admit the content was false and continues to assert that the ads were appropriate. Given his perspective and its concern about “the chilling effect” false ads could have on the functioning of the judicial branch, the board recommends a one-year suspension with six months stayed.

Teenage Drinking Ad
Tamburrino, who is seeking election to the Eleventh District again this year, ran against Judge Timothy P. Cannon in the 2014 race. On Oct. 28 or 29, an ad approved by Tamburrino began to air on local television. The ad showed a judge in a courtroom serving what seems to be alcohol to children. Along with words appearing on the screen, the narration stated:

“Everyone knows that a judge would never serve alcohol to kids in a courtroom. But appellate judge Tim Cannon did something almost as bad. In the case State versus Andrews, Cannon ruled that cops couldn’t enter a house to arrest a parent who was hosting a teenage drinking party, because he felt teenage drinking wasn’t a serious crime. Cannon doesn't think teenage drinking is serious. What else does he think isn’t serious? We can’t afford Tim Cannon’s bad judgment. Elect Ron Tamburrino to the Eleventh District Court of Appeals.”

Judge Cannon wrote a concurring opinion in the Andrews case, which involved the suppression of evidence obtained during a warrantless search by police of a Geauga County home, where teenagers were allegedly drinking at a party. The homeowner was charged with contributing to the delinquency of a minor.

The board explains in its report that the court’s majority opinion and Judge Cannon’s concurring opinion concluded the police should’ve first obtained a warrant before searching the home. In neither opinion was there language indicating that teenage drinking isn’t a serious crime or that police couldn’t enter a house or arrest a parent hosting a teenage drinking party, the board notes.

Judge Cannon instead acknowledged concerns about underage drinking and stressed that he didn’t want to impede law enforcement’s efforts to address underage drinking. He added that the alleged activity was a misdemeanor, which he determined is a factor for police to consider when deciding whether exigent circumstances exist to justify an intrusion and search without a warrant. 

The board concluded that Tamburrino’s ad contained several “patently false” statements and that Tamburrino knew they were false or acted with reckless disregard for whether they were false.

Travel Expense Disclosure Ad
The second ad, first broadcast in mid-October 2014, stated that “Cannon won’t disclose his taxpayer-funded travel expenses.” The board found that Tamburrino never asked Judge Cannon to disclose his travel expenses, nor did anyone else during the campaign. In addition, the board noted that the Ohio Supreme Court, not the Eleventh District, paid Judge Cannon’s expenses, which then had no effect on the appeals court’s budget. The implication that Judge Cannon didn’t produce his expense reports in violation of the state’s public records law was false, the board concluded.

“Tamburrino’s use of false statements in both of the ads to unfairly denigrate Judge Cannon is inconsistent with the independence, integrity, and impartiality of the judiciary,” the board wrote.

Candidate’s Objections
Tamburrino objects to the board’s conclusions and recommended sanction, arguing that all charges should be dismissed. He maintains that the ads’ statements identified by the board as false are instead true.

In the ad involving the Andrews decision, the majority opinion and Judge Cannon’s concurring opinion both ruled the police shouldn’t have entered the house without a warrant, Tamburrino states. The ad said that Judge Cannon concluded “cops couldn’t enter a house to arrest a parent who was hosting a teenage drinking party,” not that Judge Cannon said police could never enter a house to arrest any parent hosting an underage drinking party, Tamburrino asserts. Judge Cannon also wrote that he didn’t want the decision to deter police from taking action if an officer observed a “serious misdemeanor offense.” Judge Cannon then considers teenage drinking not to be a “serious misdemeanor offense,” and the ad fairly summarizes the judge’s view, Tamburrino alleges.

Tamburrino contends he has as much right as the dissenting justice in the case to criticize Judge Cannon’s ruling. Tamburrino also asserts that his ad was an expression of free speech protected by the U.S. Constitution. Citing a 1996 federal court opinion and a 2002 U.S. Supreme Court decision, Tamburrino argues that judicial candidates have the same free speech rights as other candidates for elected office.

As far as the “won’t disclose” ad, Tamburrino argues he meant that the Eleventh District wouldn’t post its budget, including expenses such as Judge Cannon’s travel costs, on the court’s website. While Judge Cannon didn’t refuse any direct request to disclose the information, Tamburrino was of the opinion that the judge wouldn’t publish such information in the future. This opinion is protected under the U.S. Constitution’s First Amendment, Tamburrino concludes.

He adds that the Sixth U.S. Circuit Court of Appeals ruled earlier this year in Susan B. Anthony List v. Driehaus that Ohio laws barring false statements in campaign materials during political campaigns were unconstitutional. The board found Tamburrino violated a judicial conduct rule that mirrors the statutes struck down in Anthony, he notes. In his view, Ohio’s disciplinary process for the legal profession regarding campaign speech is also unconstitutional.

Disciplinary Counsel’s Positions
The Office of Disciplinary Counsel, which filed the complaint against Tamburrino with the board, counters that the In re Campaign Complaint Against O’Toole 2014 decision from the Ohio Supreme Court presented a sound analysis upholding the constitutionality of the current judicial conduct rule prohibiting false campaign speech by judicial candidates. The Anthony ruling didn’t affect the O’Toole decision, the disciplinary counsel asserts.

In discussing the ads, the disciplinary counsel’s brief states that the teenage drinking piece “twist[s] Judge Cannon’s discussion of the Fourth Amendment into a referendum on Judge Cannon’s personal views regarding teenage drinking.” In the context of the ad specifically citing the Andrews ruling, and the larger context of the judicial campaign, the statements made “could only be interpreted as fact,” not as opinion, the disciplinary counsel wrote.

The disciplinary counsel adds that the “won’t disclose” ad also “can only be interpreted to mean that Judge Cannon refused to disclose his taxpayer funded travel expenses after having been asked to do so,” which was untrue.

Noting shared concerns with the board, the disciplinary counsel, however, suggests a stayed six-month suspension and maintains that any stayed discipline would be adequate to protect the public and deter this type of conduct in the future.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Ronnie M. Tamburrino: Donald Brey, 614.221.2838

Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.461.0256

Oral argument will be heard tomorrow. (Mike Frisch)

August 30, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 29, 2016

Privilege When Combining Business And Legal Advice

A decision today from the Connecticut Supreme Court

Clients call upon attorneys to provide advice on a range of matters, some that may be purely legal, some that may be purely nonlegal, and others where the line between legal and nonlegal advice is more nuanced. This case provides an opportunity to address the circumstances under which communications relating to both nonlegal and legal advice may be covered by the attorney-client privilege.

The plaintiff, Michael C. Harrington, appeals from the trial court’s judgment dismissing his appeal from the decision of the Freedom of Information Commission, which concluded that e-mails that the plaintiff sought from the defendant Connecticut Resources Recovery Authority fall within the exemption from disclosure under the Freedom of Information Act (act) for communications subject to the attorney-client privilege. See General Statutes § 1-210 (b) (10). We conclude that the commission failed to apply the proper standard for assessing the communications at issue, which include communications that the commission characterized as containing a mix of business and legal advice. Therefore, the case must be remanded to the commission for further proceedings.

 The court

Although the plaintiff raises numerous arguments, our threshold, and ultimately dispositive, consideration is the proper approach for assessing the applicability of the attorney-client privilege when business or other nonlegal professional advice is provided. This is a legal rather than factual question. We therefore must consider whether the commission acted unreasonably, arbitrarily, illegally, or in abuse of its discretion in concluding that all of the communications that the defendant withheld are covered by the attorney-client privilege...

Just as this court has never specifically distinguished business advice offered by an attorney from legal advice, it has not addressed the application of the privilege to communications containing or seeking both legal and business advice, as was found to exist in the present case. The primary flaw in the commission’s approach to this question lies in its exclusive reliance on the ‘‘inextricably linked’’ standard...

When the legal aspects of the communication are incidental or subject to separation, the proponent of the privilege may be entitled to redact those portions of the communication.

Thus

 In the present case, the commission’s decision cited to cases from other jurisdictions that apply this standard, but it did not determine whether the primary purpose of the communications was seeking or providing legal advice. Nor did it consider whether incidentally privileged matters could be redacted to allow disclosure of nonprivileged matters. Indeed, Hunt stated that redaction would have been possible as to some documents, but she lacked sufficient time to do so. Our review of a sample of the communications reveals that proper application of these considerations undoubtedly would yield a different result as to a substantial number of the communications examined

The court remanded for further proceedings consistent with the opinion. (Mike Frisch) 

August 29, 2016 in Privilege | Permalink | Comments (0)

Partially Probated Suspension For "Women's Study"

A recent discipline case from the web page of the Texas State Bar

On May 20, 2016, Howard S. Jenkins Jr. [#10619550], 56, of Austin, accepted an 18-month partially probated suspension effective June 15, 2016, with the first three months actively suspended and the remainder probated. An evidentiary panel of the District 9 Grievance Committee found that Jenkins was court-appointed to represent a female client in a DWI criminal case. During the representation, he asked his client a series of inappropriate questions of a sexual nature, some of which were asked under the pretext that Jenkins was conducting a “women’s study.” In another matter, Jenkins was court-appointed to represent a female client in a criminal case. During that representation, Jenkins asked his client inappropriate questions of a sexual nature and made inappropriate sexual statements to her.

Jenkins violated Rule 1.06(b)(2) in each case. He was ordered to pay $500 in attorneys’ fees and direct expenses, to complete three additional hours of CLE in the area of client relations, and further agreed not to accept female client court appointments during the term of his probation.

In his dissent in Jones v. Barnes (a case I am sure many PR teachers use to teach the ethics of client autonomy), Justice Brennan notes the tension between appointed counsel and an indigent client

The Court subtly but unmistakably adopts a different conception of the defense lawyer's role -- he need do nothing beyond what the State, not his client, considers most important. In many ways, having a lawyer becomes one of the many indignities visited upon someone who has the ill fortune to run afoul of the criminal justice system.

I cannot accept the notion that lawyers are one of the punishments a person receives merely for being accused of a crime. 

The Justice likely did not have this particular form of indignity in mind.  (Mike Frisch)

August 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Doctor's Note

I mentioned in a previous post that the redesign of the web page of the Colorado Presiding Disciplinary Judge has made it far more difficult to access recent bar discipline decisions.

But such difficulties cannot deter the dedicated blogger.

From The Colorado Lawyer

The [Presiding Disciplinary Judge]  approved the parties’ conditional admission of misconduct and suspended Kallman S. Elinoff, attorney registration number 18677, for 30 days. Elinoff’s suspension took effect on February 20, 2016.

In 2015, Elinoff represented a client in a criminal matter in Jefferson County District Court. Nine days before his client’s trial, Elinoff filed a motion to continue in which he indicated that he was undergoing a medical procedure that week. Two days before the trial, Elinoff appeared at a hearing and asked to approach the bench, where he exaggerated the nature of his medical procedure in an effort to persuade the court to grant a continuance. That same afternoon, Elinoff brought medical documentation to the court, admitted his misrepresentation, and took responsibility for his actions.

Elinoff’s conduct violated Colo. RPC 3.3(a) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal) and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

This was not the attorney's first brush with bar discipline; he was suspended for three years in 2000.

That case also tangentially involved the attorney 's physical condition

On or about March 17, 1998 Elinoff appeared before Judge Kathleen Bowers in Denver County Court with his client, Douglas Rathbun in connection with a domestic violence charge. The day before the appearance, Elinoff had injured his arm in a snowboarding incident and was taking medication. Judge Bowers was made aware of the incident, the medication usage and inquired into Elinoff’s ability to proceed with the scheduled hearing. Based upon her observations and Elinoff’s assurances, Judge Bowers found there was no need to continue the hearing and that Elinoff was able to properly represent his client’s interests. Notwithstanding his medication usage, Elinoff was in full control of his mental faculties on the day of the Rathbun hearing.

The officers had allowed the client a cigarette before transporting him to the pokey when

 Although Elinoff had no prior contact with either Ollila or Mullen, he disclosed to them that his father had been a police officer and he had once applied to join the force. During their conversation, Rathbun continued to plead to be released. Elinoff told the detectives that they needed to talk about his client on a level they all could understand. Elinoff then reached into his shirt pocket and removed several bills of U. S. currency. The visible bill was a $100 bill. Elinoff extended the bills toward Detective Mullen and stated that if the detectives would forget the matter for that day, Rathbun would turn himself in the next day. Elinoff intended by this conduct to influence the decision made by Ollila and Mullen to jail Rathbun...

Elinoff, in testimony before the PDJ and Hearing Board, characterized his conduct as a joking effort to show his client that he was going to jail and that nothing would prevent the detectives from transporting him immediately. Elinoff also admitted, however, that if one of the detectives had accepted the funds offered, he would have reported the “bribe” to the police department with the anticipation that the detective would have been arrested

He was reinstated to practice in 2003 after returning from Israel

Due to the terror crisis in Israel and the demands on the regional police units, Elinoff was asked to join the regional police force as a volunteer police officer. He was selected because of his prior combat experience and exemplary military record. He received training in the classroom and in the field and was deputized to perform the same duties and was held to the same responsibilities as a regular police officer. He was legally authorized to make probable cause determinations, effectuate arrest procedures, investigate crimes and testify at trials. He was held accountable as a professional in all regards. He accompanied regular police officers on calls, set-up and manned security checkpoints and roadblocks, and patrolled the area for both criminal and terrorist threats. His opportunity to stand in a police officer’s shoes afforded him a tremendous insight on how difficult an officer’s job can be and how the public perceives their roles. Elinoff now understands the two officers he offended during the bribery incident and the disrespectful behavior that led to his suspension.

Elinoff was also a volunteer assisting the sex assault unit of the prosecution office in Haifa, Israel. Although his role was very limited in nature, his primary objective was to stay active in the profession and by doing so, learned about the Israeli legal system from investigation through trial, lectured to the sex assault investigators of the Department of Social Services, and provided to the unit sorely needed literature available only in the United States...

Elinoff had made a fundamental change in his character and his perception of the role of attorneys in our society. His objective undertakings, both the activities engaged in and the results obtained, reveal genuine efforts to restructure those professional shortcomings which culminated in the prior discipline. His efforts have been exemplary. Elinoff has established by clear and convincing evidence that he is, in fact, rehabilitated. Elinoff has testified and the evidence has shown that he has not merely taken responsibility and shown remorse for his conduct, but that he has used the suspension in a positive way to learn to be a different individual and a better professional.

(Mike Frisch)

August 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Practice Pointer: When It Comes To Depositions, Finish What You Start

An attorney who, among other things, allowed her paralegal to complete a deposition, was suspended for 180 days by the Kentucky Supreme Court.

the [Inquiry] Commission [of the Kentucky Bar Association] conducted an investigation and discovered that [attorney] Edmondson had noticed the deposition of Lee Jacobs for May 22, 2014. On that date, the court reporter placed Mr. Jacobs under oath and Edmondson questioned him regarding demographic and other background information. Edmondson then permitted a paralegal to complete the deposition. Based on its investigation, the Commission issued a Complaint advising Edmondson of the allegations and requesting that she provide additional information. The Boone County Sheriff served the Complaint on Edmondson. She did not respond.

There were also client complaints.

The court

Edmondson's conduct herein - misrepresenting the status of cases to her clients, failing to respond to her clients, permitting a paralegal to practice law, and retaining a fee when no work had been performed - merits discipline consistent with that imposed in [a prior disciplinary matter]. Therefore, we adopt the Board's recommendation that Edmondson be suspended for 180 days, that she reimburse Ray in the amount of $500.00, that she attend and complete EPEP, and that she pay the costs associated with this action.

EPEP is the bar's Ethics and Professional Enhancement Program. (Mike Frisch)

August 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, August 28, 2016

After The Fall

An attorney who has been charged by the Illinois Administrator with assisting his disbarred spouse's subsequent unauthorized practice has filed an answer denying any misconduct.

From the complaint (which also charges an "affiliated" attorney with facilitating unauthorized practice)

On June 27, 2013, a default hearing was held in relation to Commission number 2012PR00162, after which the Hearing Board issued a report and recommendation recommending that Ms. Niew be disbarred.

On November 20, 2013, the Court entered an order disbarring Ms. Niew as a result of her mishandling of her client's $2.34 million.

Shortly after November 20, 2013, Respondent Niew learned that Ms. Niew had been disbarred...

Between November 20, 2013 and about early June 2014, Ms. Niew maintained an office in the Jorie Boulevard suite, and she was physically present in the office four to five times per week. During that same period of time Respondent Niew observed Ms. Niew talking on the office telephone, writing letters on the office computer, and conducting meetings. Although Respondent Niew knew that his wife had been disbarred, he encouraged her to deposit money into the firm's client funds account that he knew or should have known was client money for legal services...

Between November 2013 through May 2014, Respondent Allegra, an affiliated attorney at the Law Offices of Stanley Niew, participated in meetings between Ms. Niew and at least six legal clients, including Harry Haralampopolous, Maciej Wilhelm, Peter Vhalos, Julia and Michael Maloney, and John Hryn. Respondent Allegra accepted instructions from Ms. Niew regarding legal work to be completed by Respondent Allegra on behalf of at least one client, Arno Reichel.

The answer responds

[Respondent] Stan denies the allegation that he was a partner with his wife Kathleen at NiewLegal Partners, at any point in time. Stan lacks sufficient information to definitively admit or deny the details of Allegra's affiliation with Niew Legal Partners, subject to the qualification that he believes at one point Allegra was a contract attorney for and subsequently employed by Niew Legal Partners.

 Whether he learned of the disbarment shortly after it had occurred

Admitted, subject to the qualification that Stan lacks sufficient information to admit or deny when he learned that his wife, Kathleen, had been disbarred.

Thereafter

Stan admits that at various points in time, on or near the dates alleged, his wife, Kathleen, was physically present at the Jorie Blvd. Offices, but not to engaged in the practice of law, and that, at some point, his wife, Kathleen, ceased to be present at the Jorie Blvd. Office.

The Chicago Tribune had reported on the criminal case against Kathleen Niew

Oak Park couple Jamal and Leda Khoury thought they were investing their life savings wisely when they transferred $2.3 million into their real estate attorney’s escrow account three years ago to buy commercial real estate properties in the area.

But within hours of the cash landing in the supposedly secure account, their attorney, Kathleen Niew, was stealing it to invest in an ill-fated scheme, federal prosecutors say. Over the next several weeks, Niew wired millions of dollars to mining company investors in far flung places like Singapore and Australia, expecting to make a hefty commission for herself in the deal.

The mining companies failed. Niew never made a penny. And by the time the Khourys realized something was wrong, their nest egg was gone.

On Wednesday, the couple watched silently as Niew, once a seemingly successful author, radio host and seminar speaker, pleaded guilty to 10 fraud counts in a surprise move in Chicago’s federal court. She had been scheduled to go to trial next month. She pleaded guilty “blind,” meaning she had no deal with prosecutors on the length of her sentence...

The guilty plea marked a swift fall from grace for Niew, a self-styled real estate and probate law guru known for her Saturday morning call-in radio show on WIND-AM 560.

The show was canceled in March 2013, shortly after the Tribune detailed Niew's mounting legal troubles, including a lawsuit filed by the Khourys over the missing funds, business associates who accused her of swindling them and state regulators pushing to revoke her law license.

Niew was arrested by federal agents last August at her Oak Brook law office. Three months later, she was disbarred by the Illinois Supreme Court.

Records show Niew, who began practicing law in 1981, had a history of disciplinary proceedings that dated back to 1989. In 2001, justices suspended her license for nine months based on allegations she forged clients' signatures, record show. In 1989 the state disciplined her for falsely stating that she was single when she married again.

In addition to prison time, prosecutors are seeking $2.34 million in forfeiture as well as her 5,500-square-foot Burr Ridge home and a 2009 Lexus LS sedan, records show.

Niew also faces separate federal charges in South Carolina alleging she defrauded investors by promising their money “could not be lost and that the rate of return was guaranteed and far in excess of normal investment returns,” court records show.

Her six-year sentence was reported by the LaGrange Patch.

Niew was a fast rising financial advisor and attorney, founding Niew Legal Partners, LLC, in Oak Brook, along with her husband, Stanley. Among the many accomplishments Niew touts in her online about.me bio, she is a former Republican Businesswoman of the Year, author of two books, a radio probate law guru, and a star on the seminar circuit with her “Money Talks For Women” series.

No answer has been posted for Mr. Allegra. (Mike Frisch)

August 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Practice Pointer: Termination Means Stop Filing Pleadings

The Idaho Supreme Court has imposed disbarment of an attorney after a hearing in which the attorney had admitted some of the charges and contested other allegations.

From the summary on the web page of the Idaho State Bar

Count One related to Mr. Robinson’s representation of an 18-year-old charged with felony lewd conduct with a child under 16 years of age. Mr. Robinson admitted that he violated I.R.P.C. 1.2(a) [Scope of Representation] and I.R.P.C. 1.4 [Communication], and the Hearing Committee concluded that the ISB proved by clearing and convincing evidence that Mr. Robinson violated I.R.P.C. 1.1 [Competence], I.R.P.C. 1.6(a) [Confidentiality], I.R.P.C. 1.16(a)(3) [Representation Following Discharge], I.R.P.C. 1.16(d) [Failing to Return Papers and Property to Client Following Termination], I.R.P.C. 3.1 [Meritorious Claims and Contentions], I.R.P.C. 3.3 [Candor Toward the Tribunal], I.R.P.C. 4.4 [Respect for Rights of Third Persons] and I.R.P.C. 8.4 [Conduct Prejudicial to the Administration of Justice].

Those rules violations were based primarily on pleadings Mr. Robinson filed in his client’s criminal case. In that case, Mr. Robinson filed pleadings, after his representation was terminated by his client, containing untrue statements that were prejudicial to his client and the client’s family. Substitute counsel filed motions to strike those pleadings and requested the court seal those pleadings to prevent public disclosure of private, untrue facts which could unduly prejudice the case and the rights of a victim in another criminal case. The court agreed and struck those pleadings from the record and sealed them from public disclosure. The court’s order provided that it appeared at the time the pleadings were filed, Mr. Robinson had already been discharged by his client, the pleadings were filed without client authority and based upon facts which were untrue, or, unverified, irrelevant and beyond the scope of any relevant issue before the court. The Hearing Committee concluded that the timing of those pleadings indicated that Mr. Robinson’s primary purpose was to harass his client and the client’s family for terminating his representation and that he provided no justification or reasonable explanation for filing those documents.

In a civil matter

The Hearing Committee concluded that Respondent continued to act on behalf of his clients after they had terminated his representation and repeatedly requested that he cease communications with opposing counsel on their behalf, and that he disclosed confidential information to opposing counsel that was detrimental to the clients’ case. The Hearing Committee concluded that Mr. Robinson communicated threats to one client that he had information that could affect the client’s real estate license and continued to seek money from his former clients after they settled the case with the City. The Hearing Committee concluded that Mr. Robinson actively campaigned against his clients’ interests in communicating with opposing counsel, which had the potential to severely damage their case.

Boise Weekly reported a story from the McCall Star-News that he was serving as Adams County prosecutor when bar charges were filed. (Mike Frisch)

August 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Multitude Of Crimes

Permanent disbarment has been imposed on a convicted attorney by the Kentucky Supreme Court.

In considering the appropriate penalty for this ethical violation, the Board [of Governors of the Kentucky Bar Association] considered the multitude of felonies for which Coffman was convicted, the fraudulent nature of those crimes, the Board's prior history of recommending permanent disbarment for members convicted of crimes involving knowing dishonesty and misappropriation of client funds, and relevant provisions of the American Bar Association Standards for Imposing Lawyer's Sanctions.

The crimes are described in this report from the Lexington Herald Leader.

A former Lexington lawyer was sentenced Wednesday in federal court to 25 years in prison and was ordered to pay restitution for his role in an oil- and gas-drilling scheme that defrauded at least 594 investors out of more than $36.5 million.

Bryan S. Coffman, 48, was ordered to report to the federal medical correctional center on Leestown Road in Lexington on May 16. Coffman, at times breaking into tears, told U.S. District Judge Karen Caldwell before he was sentenced that he had said goodbye to his 13-year-old daughter earlier Wednesday morning. Coffman's wife, Megan, who was acquitted of money laundering charges in the case, and his two sons, who are college students, were in the federal courtroom in Lexington to hear the sentence.

Coffman asked the judge that he be held in a medical center-type prison because he has diabetes and arthritis.

Coffman also asked for a short sentence.

He maintained his innocence throughout his speech before the judge, but he acknowledged he was tried by a jury of his peers, who found him to be "wanting."

"I have to take responsibility for what occurred, regardless of my role in it," he said. He said he'd lost his law practice, his law license, his reputation and some of his assets, and now he faced losing his liberty.

He said that he was sorry for the victims and that he never intended to deceive them.

Assistant U.S. Attorney Ken Taylor told the judge about victim impact statements he reviewed. There were 95 of them.

"They tell the story of just extreme agony over what happened to them," he said. "Finally, some closure can be given to these people."

Taylor said he was offended by Coffman's claim of innocence and said Coffman's court statement marked the first time he'd uttered a syllable of contrition.

Taylor said later that some of the victims lost their retirement money, the ability to pay for their children's college educations, or their homes, or had suffered serious health problems.

Defense attorney Steve Romines said he would file an appeal in Coffman's case on Thursday. Romines said a new trial will be sought.

"I expected her to give us a big sentence, but we'll keep fighting," Romines said.

Caldwell said that the schemes were "predatory in nature" and that "subterfuge and deceit are readily apparent."

The amount involved in the case was one of the largest the court had seen, the judge said.

In May 2011, Coffman and Gary Moss Milby, a Campbellsville businessman, were convicted by a jury of multiple counts of mail fraud and wire fraud. Coffman also was convicted of two securities fraud counts and was found guilty of 10 counts of money laundering and one count of money-laundering conspiracy. Milby also was convicted of one securities fraud count. He was acquitted of two counts of money laundering.

From 2004 to 2008, Milby and Victor Tsatskin of Canada solicited money from investors across the United States and from Canada. They gave them bogus predictions and guarantees about potential profits of the oil and gas well drilling programs, according to the U.S. Attorney's Office for the Eastern District of Kentucky.

Coffman provided legal and business advice with knowledge of the scheme and helped hide the scheme from investigators, according to the U.S. attorney's office.

Coffman and Milby used the money to pay for boats and vehicles, real estate, jewelry, personal trips, parties, family travel and trust funds, according to the U.S. attorney's office.

Recently, Coffman was ordered to forfeit $3.1 million in cash, a yacht and a condo in South Carolina.

Milby is to be sentenced Thursday. Tsatskin is serving a prison sentence in Canada.

(Mike Frisch)

August 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 27, 2016

From Defense Attorney To Defendant

A one-year suspension was imposed by the South Carolina Supreme Court for an attorney's federal criminal conviction.

Respondent represented a client who was indicted by the U.S. Attorney's Office for trafficking. However, respondent was relieved as counsel for the client after the U.S. Attorney's Office informed the federal court that respondent was being investigated for money laundering in connection with payments made by the client and other criminal clients to respondent.

As part of the investigation, federal agents requested respondent provide records of payments made to him by criminal clients. Respondent provided the requested records; however, the records indicated he had received cash payments for legal fees from multiple clients in amounts greater than $10,000. When questioned by federal agents, respondent denied knowing that he was required by the Internal Revenue Service to file a Form 8300 when the aggregate amount received from a client exceeded $10,000 for one transaction, such as legal representation. He stated he thought the form was only required for single payments over $10,000. However, respondent did know about the reporting requirement and therefore, his assertion was untruthful.

Respondent was charged with violating 18 U.S.C. § 1001 by knowingly and willfully making "a materially false, fictitious, and fraudulent statement and representation in a matter within the jurisdiction of the Executive Branch of the Government of the United States; to wit: he told a Special Agent from the Department of the Treasury that he was not aware of the reporting requirements of Form 8300." Respondent pled guilty and was sentenced to three years' probation, with electronic monitoring for six months. On December 9, 2015, respondent's motion for early termination of parole was granted, and he has now fully satisfied all conditions of his criminal conviction.

In a second matter

Respondent represented a client at various times for criminal charges. Two fee agreements between respondent and the client contained the following provision: "Client acknowledges and agrees that if balance of above agreement is not paid in full as agreed upon, the Law Office of [respondent] will collect by garnishment and/or a lien on any and all client's future tax refunds and/or wages." Respondent admits he does not have the legal authority to garnish wages or tax returns in South Carolina. Another fee agreement between the two referenced payment for representation by a third party, but only referenced the identity of the payor and amount paid, without reference to the scope of representation provided in exchange for the payment.

The attorney gets credit for time served on an interim suspension.

The Palmetto State reported on the sentencing

Chaplin, 47, earlier had pleaded guilty to making a false statement to an IRS agent, telling the agent he didn’t know about reporting requirements for the IRS Form 8300.

That form requires anyone depositing more than $10,000 or more in related cash fees to file a report with the IRS.

“According to court records, Chaplin’s false statements to federal agents occurred when he was questioned in relation to a drug and firearm investigation,” according to a federal press release on the matter issued Wednesday.

During an investigation, “it was determined that Chaplin was directing his criminal defendant clien6ts to pay his fees in a structured manner to avoid reporting those payments to the IRS,” the federal press release said.

(Mike Frisch)

August 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

South V. North (It's All Carolina)

An attorney admitted in South Carolina was sanctioned for unauthorized practice in North Carolina.

In 2011, respondent entered into an agreement for discipline by consent in South Carolina for her conduct underlying the North Carolina State Bar's letter of caution. As a result of the agreement, this Court issued the confidential admonition referenced in footnote 1.

In April 2014, respondent conducted a closing for the purchase of residential property in North Carolina. The purchaser, whom respondent represented, subsequently filed a complaint against respondent with the North Carolina State Bar and the South Carolina Commission on Lawyer Conduct.

In February 2015, the Authorized Practice Committee of the North Carolina State Bar again issued a letter of caution, finding probable cause that respondent had engaged in the unauthorized practice of law. The committee found respondent provided the complainant with legal advice and services and held herself out in numerous emails and communications with the complainant as having a law office in North Carolina. The committee also found respondent negotiated with the seller's attorney on the complainant's behalf, holding herself out as an attorney licensed in North Carolina in the process. The committee demanded respondent stop engaging in the unauthorized practice of law and requested respondent respond to the letter of caution within fifteen days; however, respondent did not respond as requested.

Approximately six weeks after closing, the complainant began inquiring by email and telephone about the title insurance policy that was supposed to have been purchased. Although the complainant initially received responses, respondent's law firm did not obtain the policy, did not adequately follow up on the issue, and later stopped responding to the complainant's inquiries.

Respondent states she thought her paralegal was handling the issue of the outstanding policy, as well as keeping the complainant informed, but respondent failed to supervise the paralegal and later learned that was not the case. Respondent learned about the paralegal's failure to handle the policy issue approximately four months after the closing, at which time respondent told the complainant she would take care of the issue herself. However, respondent became busy and the complainant's concerns "fell through the cracks."

After the complaint was filed in this matter, respondent contacted the title insurance company to learn what steps needed to be taken to secure the policy. However, after taking some action, which she did not document, respondent did not follow up and erroneously assumed the policy had been issued. Respondent did not investigate further until after ODC made multiple inquiries about the status of the policy. Respondent secured the policy in September 2015, well over a year after the closing. Respondent states she mailed the complainant the original policy with no cover letter and did not follow up to ensure he received it. When advised by ODC that the complainant did not receive the policy, respondent arranged for another copy to be mailed to him, which he received.

The complainant filed suit against respondent in North Carolina. Respondent appeared in the matter and has paid the $575 judgment the court awarded to the complainant.

The court imposed a nine-month suspension with conditions. (Mike Frisch)

August 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 26, 2016

Asset Management

A rather lenient suspension order from the Kentucky Supreme Court in light of the misconduct.

Mabab Trade, LLC, entrusted Movant with $775,000.00 to be used in connection with a proposed investment transaction between Mabab, Jason Castenir, and four other investors. Movant initially and appropriately placed the funds into his office escrow account.

About seven weeks later, Mabab requested the return of the funds in their entirety. An attempt to wire the escrow funds back to Mabab was unsuccessful due to a lack of funds in Movant's escrow account. At the time of the refund request, the escrow account contained a balance of approximately $373,131.13. Following this unsuccessful transfer attempt, Movant wired Mabab $300,000.00 about two weeks later, and an additional $47,000.00 about two weeks after that.

The remaining $427,500.00 was eventually returned to Mabab; not from Movant's escrow account, however, but rather from Maverick Asset Management, who had originally received the funds from the escrow account via a transfer initiated by Jason Castenir, one of the original investors. Movant had given Castenir, who is not an attorney, access to the escrow account with instructions to obtain prior approval from Movant before making any transfers from the account. Castenir did not, however, get Movant's approval before initiating the transfer of funds to Maverick Asset Management.

In connection with his failure to immediately return the funds to Mabab upon request, Movant falsely told the Manager of Mabab that the funds were secure even though a portion of the funds had already been transferred to Maverick Asset Management; falsely told him that the escrow account could not be accessed temporarily due to an audit when, in fact, there was no audit; and falsely told him that the funds were "tied up" due to a pending lawsuit in Texas when, in fact, there actually was no such lawsuit.

Mabab filed a lawsuit against Movant and others in connection with the mishandling of its funds, and the case was eventually settled, with Movant's portion of the settlement being $95,000.00, which he has paid. In summary, Mabab has been made whole, and Movant has fully complied with his obligations under the settlement.

Sanction

Movant, Joseph Daniel Thompson, is suspended from the practice of law in the Commonwealth of Kentucky for 181 days, with 120 of those days suspended under the condition that he commit no further ethical violations during the suspension period.

There are places (D.C. is one) where these facts would get far more severe discipline. 

As the Everly Brothers might sing, "A man in Kentucky sure is lucky..."

If I can be permitted a moment of personal privilege, here is a link to a performance of Bowling Green by the Everlys as I remember them at the Celler Door in Georgetown (the location, not the Law School) in about 1973.

My buddies and I went to see the warm up act - a comic named George Carlin - who we met outside the club and chatted with for awhile. A great memory. I asked George to sign a copy of his album and asked that he write something clever.

He wrote: "I can't think of anything clever, How's f*** you?"  

The Everly Brothers opened with this song.

Miss you George. Miss you Phil Everly. Rock on Don.

Thanks for the memories. (Mike Frisch)

August 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Moot Point

A petition for reciprocal discipline has been denied by the Kentucky Supreme Court.

The attorney had been subject to a stayed 90-day suspension and probation in Indiana. By the time the reciprocal matter reached to Kentucky Supremes, the probation term had been completed.

On May 23, 2016, this Court issued a status order. The KBA responded, stating that McCall's probationary status in Indiana ended in October 2015 and that it had received no information that McCall had not been compliant with the terms and conditions of his probation.

Based on the preceding, it is hereby ordered that the KBA's petition for reciprocal discipline is denied as moot.

(Mike Frisch)

August 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Rank Injustice?

The Kentucky Supreme Court has affirmed the order of its Court of Appeals granting an evidentiary hearing on claims of ineffective assistance of counsel.

The case

Rank was a practicing psychiatrist who developed a romantic relationship with a former patient named Misty Luke, who would become the victim of his assault. The couple lived together at Rank's residence located in the same building as his professional office. After a heated argument with Rank, and apparently believing that he had left the building, Luke texted a message to Rank telling him that she was ending their relationship and leaving. Rank, still on the premises, reacted immediately by returning with a sword and attacking Luke. He stabbed her four times. Other residents in the building heard the commotion and intervened. They overpowered Rank, took the sword, and removed Luke from the scene.

Rank was arrested; his bail was set at $50,000.00 cash. Through the advice of an attorney-friend, Patrick Hickey, Rank hired Gettys for his criminal defense. Rank claims that Gettys and Hickey advised him not to post bond. Gettys obtained Rank's power-of-attorney so that he would have control , over Rank's assets, ostensibly to protect them from a possible civil suit by Luke.

The issues

Rank's RCr 11.42 motion alleged several specific deficiencies in Gettys' representation. Rank claims that Gettys failed to explore the possibility of an [extreme emotional disturbance]  defense and that he failed to explain to him the legal concept of EED. He also claims that the effectiveness of Gettys' representation was compromised by the conflicts of interest inherent in Gettys' fee arrangement. Rank also claimed that Gettys failed to file a formal discovery motion, failed to follow criminal practice and procedure, failed to assist him in posting bond, and failed to adequately counsel him in making a knowing and intelligent decision to plead guilty. He also claimed that Gettys failed to present effective mitigating evidence at the sentencing hearing...

Rank's motion raised a material question as to the reasonableness of Gettys' investigation of the potential for an EED defense or, framed differently, whether it was reasonable for Gettys not to pursue an EED defense.. See Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001) (an evidentiary hearing is required to determine whether counsel's decision was "trial strategy or an abdication of advocacy"). Gettys' knowledge and understanding of the relevant facts relating to a potential EED defense are not evident on the face of the record. An evidentiary hearing on Rank's RCr 11.42 motion was required to ascertain those facts.

But no hearing on conflicts claims

Rank alleges that his acquaintance and personal attorney, Patrick Hickey, not only recommended that he hire Gettys, but also acted as Gettys' co-counsel. As described by Rank, Hickey's role as co-counsel' is demonstrated by Hickey visiting him in jail, advising him (in conjunction with Gettys) not to post bond and to liquidate his assets, counseling him about whether or not to plead guilty, providing materials to the expert witness, and sitting at counsel table during sentencing. Hickey had previously represented Luke in an eviction case and Rank contends that that representation created a conflict of interest for Hickey.

The court rejected a hearing on this and other claims of deficient performance of counsel.

AZCentral.com reported on the criminal case.

A psychiatrist was sentenced Tuesday to 15 years in prison for using a sword to stab a patient he had sex with and plied with narcotics.

Dr. Douglas Rank was sentenced after pleading guilty in October to first-degree assault. Rank, 52, will not be eligible for parole until he serves 85 percent of his sentence.

The charge was punishable by 10 years to 20 years in prison. Commonwealth's Attorney Rob Sanders had recommended 15 years.

 The victim, Misty Luke of Covington, Ky., attended the sentencing hearing but declined to speak with a reporter.

"She has some residual physical effects from the attack, but now most of the lasting effects are mental anguish - difficulty from being attacked by someone she cared about," Sanders said after the hearing.

Rank's lawyer, Robert Gettys, argued for the minimum sentence.

Gettys also called his client's rabbi and former dance partner to testify on Rank's behalf.

"Not one person mentioned he did a terrible thing," Judge Gregory Bartlett said. "Why is that? Why is (it) all the people come and talk about what a great ballroom dancer he is and how passionate he is? They didn't mention he did a terrible thing.

"He could have killed somebody."

Rank did not speak during the 90-minute hearing.

Rank attacked Luke on Feb. 21 in an apartment above his one-room medical office after she broke off their relationship, Sanders said.

He used a Civil War-era sword with a two-foot-long blade taken from a military memorabilia shop and museum located in the same building as Rank's apartment and medical office. Rank's license to practice medicine in Kentucky is currently suspended.

(Mike Frisch)

August 26, 2016 | Permalink | Comments (0)

Thursday, August 25, 2016

"Among The Most Shocking, Unethical, And Unprofessional [Misconduct] As Has Ever Been Brought Before This Court"

The Florida Supreme Court has permanently disbarred two attorneys who set up opposing counsel for a DUI

The Respondents in these two cases, Adam Robert Filthaut and Robert D. Adams, were members of a law firm, Adams & Diaco, P.A., in Tampa, Florida. Stephen Christopher Diaco was also a member of this firm and also took part in the events that are the subject of these proceedings. As a result of disciplinary action against Diaco and the withdrawal of his petition seeking review of the referee’s report, which jointly addressed Adams, Filthaut, and Diaco, Diaco has been permanently disbarred. See Fla. Bar v. Diaco, No. SC14-1052 (Fla. Jan 28, 2016).

The misconduct giving rise to the disciplinary actions against these three attorneys is among the most shocking, unethical, and unprofessional as has ever been brought before this Court. A brief summary of the facts, as found by the referee in his report, is as follows, and the full referee’s report is attached to this opinion. In January 2014, Adams & Diaco, P.A. was defending a radio network and one of its disc jockeys, “Bubba the Love Sponge” Clem, in a civil suit.

Opposing counsel included attorney Phillip Campbell, who represented another disc jockey named Todd Schnitt. Schnitt brought the action against Clem. The lawsuit was hotly contested for over five years and received substantial media coverage in the Tampa area. On the evening of January 23, 2013, while the trial was in recess for the night, Campbell and his cocounsel, Johnathan Ellis, walked to a nearby restaurant, Malio’s Steakhouse, for dinner and a drink. Unbeknownst to Campbell, a paralegal who worked for Respondents happened to be at Malio’s with a friend. Campbell did not know the paralegal, Melissa Personius, but she recognized Campbell as she was leaving the bar.

Personius contacted Adams after she left Malio’s to inform him she had seen Campbell at the bar. Adams then notified Diaco and called Personius back. After this call from Adams, Personius returned to Malio’s. Filthaut called his friend Sergeant Raymond Fernandez of the Tampa Police Department, informing him that Campbell was at Malio’s drinking and might drive while intoxicated. Filthaut did not inform Fernandez that Campbell was opposing counsel in the Schnitt versus Clem litigation.

Upon returning to Malio’s, Personius and her friend took a seat next to Campbell at the bar. Personius told Campbell, Ellis, and another attorney present that she was a paralegal but lied about where she was employed. Personius openly and obviously flirted with Campbell, encouraged him to drink, and bought him drinks. All the while, without Campbell’s knowledge, communications continued among Respondents, Personius, and Fernandez. Personius kept Respondents informed about what was transpiring with Campbell inside Malio’s. Fernandez assigned another officer to stake out Malio’s to see if Campbell would drive while intoxicated.

By 9:30 or 9:45 p.m., Personius’ friend and the other attorneys with Campbell had left Malio’s. Personius also had learned during the evening that Campbell had walked to Malio’s and intended to walk home—he lived a few blocks away. Witnesses who observed Personius that evening testified that she appeared to be intoxicated. Campbell observed the same, and he offered to call her a cab. She told him her car was in valet parking. He offered to see if it could be kept overnight. She told him that she needed to get to her car. He took her valet ticket, had the car brought up, and confirmed with the valet that it could be left overnight. She then refused to leave her car and insisted that it needed to be moved to a secure public parking lot where she could have access to it. He tried to convince her to leave the car, but she insisted that it had to be moved. Out of frustration, he agreed to move the car to a lot near his apartment building and call her a cab from there.

Shortly after leaving Malio’s driving Personius’ car, Campbell was pulled over by Fernandez and subsequently arrested for DUI and taken to jail. Additionally, Campbell inadvertently left his trial bag in Personius’ car. Personius and her car were later driven to her home by an associate attorney in Respondents’ firm.

The next day, Stephen Diaco made several statements to the media about the DUI of his opposing counsel Campbell, how the arrest caused the trial to be continued, and how Campbell’s behavior was a mockery of the judicial system and an embarrassment to Diaco as an attorney. Additionally, the Respondents were in possession of Campbell’s trial bag for several hours and made no attempt to inform him or return the bag until after Personius’ identity was discovered and Campbell’s cocounsel, Ellis, demanded return of the bag.

Sanction

Given all of these circumstances, we conclude that the referee’s recommendation of permanent disbarment is warranted and appropriately serves the three-pronged purpose of attorney discipline: (1) it is fair to society; (2) it is fair to the Respondents; and (3) it is severe enough to deter other attorneys from similar misconduct. See Fla. Bar v. Lawless, 640 So. 2d 1098, 1100 (Fla. 1994). We can only hope that our unanimous decision to approve the referee’s recommendation to permanently disbar these attorneys, a sanction not contested by and already imposed upon the third attorney involved, Stephen Diaco, will serve to warn other attorneys of the high standards of professional conduct we demand of all attorneys. And we hope in some small way, it will send a message to the public that this Court will not tolerate such outrageous misconduct on the part of attorneys admitted to practice law in Florida.

(Mike Frisch)

August 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Death Be Not Planned

A new one on me.

A deceased attorney has been chided by the New York Appellate Division for the Third Judicial Department for dying without a succession plan for his solo practice.

James R. Hickey Jr. (hereinafter decedent) was admitted to practice by this Court in 1980. He maintained an office for the practice of law in the City of Ithaca, Tompkins County.

Decedent died intestate on July 14, 2016 without any plan in place for the continuity of his solo law practice. The Tompkins County Bar Association (hereinafter TCBA) now accordingly moves pursuant to Rules of the Appellate Division, Third Department (22 NYCRR) § 806.11 for an order appointing one or more attorneys as custodian of the files of decedent's clients for the purpose of protecting the interests of those clients. TCBA also moves pursuant to Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.15 (g) for the appointment of an attorney to serve as successor signatory to decedent's law office and escrow bank accounts. Both the Committee on Professional Standards and the Lawyers' Fund for Client Protection advise that they do not oppose the motion. The Committee additionally indicates that the requested relief would serve to protect the public.

Under the particular circumstances presented, we grant the motion to the extent that TCBA is hereby appointed the limited custodian of decedent's law office files (see generally Matter of Van Zandt, 53 AD3d 982 [2008]). That part of the application seeking the appointment of a successor signatory for decedent's law office and escrow bank accounts is denied, without prejudice to the appropriate application being made to a Justice of the Supreme Court within the Sixth Judicial District (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.15 [g] [2]).

 Note comment 5 to Model Rule 1.3. (Mike Frisch)

August 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tamm Negotiated Discipline Imposed

The ethics saga of DOJ whistleblower Thomas Tamm ended after more than a decade with the adoption of a negotiated public censure by the District of Columbia Court of Appeals.

Based upon respondent’s recognition that during the course of his employment as a lawyer for the United States Department of Justice Office of Intelligence Policy and Review he provided a reporter with information that constituted "confidences" or "secrets," he admittedly violated Rule 1.6 of the District of Columbia Rules of Professional Conduct. The Committee considered the following circumstances in mitigation: (1) respondent cooperated with Disciplinary Counsel; (2) respondent’s sole intent was to further government compliance with the law; (3) respondent made limited disclosure of the information; (4) respondent did not receive any financial compensation from disclosure of the information; and (4) the investigation of this matter had been stressful and expensive. As a result, Disciplinary Counsel and respondent negotiated the imposition of discipline in the form of a public censure. The Committee reviewed the amended petition and supporting affidavit and concluded, after the limited hearing on the revised petition, that the revised petition for negotiated discipline should be approved.

We accept the Committee’s recommendation because it properly applied D.C. Bar R. XI § 12.1 (c) to arrive at this conclusion, and we find no error in the Committee’s determination. Based upon the record before the court, the negotiated discipline of a public censure is not unduly lenient considering the existence of mitigating factors and the discipline imposed by this court for a typical Rule 1.6 violation without any aggravating factors

 The disclosures at issue here took place in 2005. Disciplinary Counsel had the matter under investigation since 2009.

 The negotiated discipline was accepted by a panel consisting of Associate Judges Thompson and Beckwith and Senior Judge Farrell.

There is a view - with which I fully agree - that Thomas Tamm is a national hero. From his Ridenhour Award citation

Thomas Tamm worked at a Justice Department that, in the name of national security, had abandoned the core principles that form the basis of our democracy and our individual liberties. The fact that he still faces a threat of criminal prosecution at the hands of an institution which itself was operating outside of the law, is in and of itself a national disgrace. What makes Tamm’s case even more poignant is that there remains not a single authorized avenue for a national security whistleblower to use and receive protection when they challenge the Executive Branch for breaking the law. Today, we honor a person who has imperiled his own future liberty to preserve the liberties of all of us who live in this nation.

I was honored to be a part of the defense team in this matter led by Paul Kemp and Cary Feldman. (Mike Frisch)

August 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Crimes Of The Hate

An attorney convicted of "hate crimes" has been suspended for two years by the New York Appellate Division for the Second Judicial Department.

On August 20, 2014, the respondent pleaded guilty to 3 counts of a 33-count indictment before the Honorable Danny K. Chun, in the Supreme Court, Kings County. Specifically, he pleaded guilty to one count of strangulation in the second degree as a hate crime, in violation of Penal Law §§ 121.12 and 485.05(1)(b), a class C felony, and two counts of menacing in the third degree as a hate crime, in violation of Penal Law §§ 120.15 and 485.05(1)(b), a class A misdemeanor. The respondent entered his plea subject to the following conditions: he was required to complete a 12-week anger management program, perform 60 days of community service, and apologize on the record to the two complaining witnesses.

Sanction

In mitigation, the respondent testified at the disciplinary hearing to an earlier incident during which he was assaulted. He claimed that as a result of this earlier incident he suffers from post-traumatic stress disorder, a condition which allegedly contributed to his criminal conduct. The respondent, however, failed to offer any medical documentation or testimony by a medical expert to support his claim. In the absence of any supporting medical evidence, the Special Referee did not credit the respondent's claim. No other mitigating evidence was presented.

At the time of the hearing, the respondent had no prior disciplinary history. We note, however, that a separate disciplinary proceeding was commenced against the respondent by order to show cause dated January 12, 2016, under Appellate Division Docket No. 2016-00437. In that proceeding, by decision and order on motion dated April 25, 2016, this Court immediately suspended the respondent pursuant to 22 NYCRR 691.4(1)(l)(i) and (iii), finding that he constituted an immediate threat to the public based on evidence that he failed to submit answers to three complaints of professional misconduct filed against him, failed to comply with the Grievance Committee's investigation, and misappropriated client funds.

In view of the nature of the criminal conduct in this matter, particularly, the hate crime element of the respondent's conviction, and the absence of any credible mitigating factors, we find that a suspension from the practice of law for two years is warranted.

The court imposed the same sanction on an attorney who facilitated mortgage fraud by his paralegal

Although it is true that the respondent was not charged or prosecuted by the federal authorities in connection with the mortgage fraud, and that no evidence was presented in this case establishing that the respondent had actual knowledge of the fraud, it is undisputed that he allowed non attorneys to exercise control over his law practice. More specifically, he allowed his two paralegals to conduct hundreds of real estate closings, without his supervision, and went so far as to allow them to use his signature stamp and/or sign his name on real estate documents and to issue checks from his operating and escrow accounts. We reject the respondent's contention that his misconduct "had nothing whatsoever to do with the criminal activity." The respondent overlooks the fact that his role as the settlement agent was necessary to finalize the real estate transactions and loans. As an attorney, the respondent gave his imprimatur to the transactions and disbursed the funds. Without his part, the transactions could not have been completed and the fraudulent scheme could not have been carried to fruition. As a consequence, the respondent enabled or facilitated the mortgage fraud scheme.

In view of the respondent's wholesale disregard of his duty to supervise his paralegals and his duty to comply with the disciplinary rules, we conclude that a suspension of two years from the practice of law is warranted.

(Mike Frisch)

August 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 24, 2016

Former County Attorney Disbarred

The Wyoming Supreme Court has disbarred a attorney convicted of a "serious crime"

KOWB 1290 reported on the criminal charges

Charges have been filed against Albany County Attorney Richard Bohling stemming from allegations of using county funds to purchase cameras, computer equipment, and other items for personal use. Charges of six felonies and three misdemeanors were filed yesterday.

Bohling faces felony charges of four counts of Larceny. Other felony charges include Wrongful Taking or Disposing of Property and False Swearing in Non-judicial or Non-administrative Proceeding (False Claims or Vouchers).

Misdemeanor charges include Official Misconduct, Wrongful Appropriation of Public Property, and Misuse of Office.

Bohling has been summoned to appear in Circuit Court this afternoon.

The charges come about seven months after a search warrant was served to Bohling in May.

According to court documents, a “quiet audit” of the spending in the Albany County Attorney’s Office was conducted, and a list was created of 196 items purchased between August 3, 2011 and November 5, 2013. Out of those items, only 15 could be identified by a confidential source as being used in the office. The remaining 181 items on the list totaled $14,690.68, according to court documents.

Authorities say Bohling had possession of these items himself and did not bring them to the office until after he received word in April of a possible investigation. The affidavit filed in Albany County Circuit Court states that the property was “concealed by Bohling by keeping it at some location away from the Albany County Attorney’s Office, which was the rightful owner of that property.”

A representative from the Wyoming Department of Criminal Investigation was not immediately available for comment. Their department helped in conducting the investigation.

Bohling first took office as County Attorney in 2003. He did not run for reelection in the November.

(Mike Frisch)

August 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Falsified GPA On Resume Leads To Bar Admission Denial

The Maryland Court of Appeals has denied admission to an applicant who had passed the February 2013 bar examination

We consider whether to grant the application for admission to the Bar of Maryland of Deirdre Paulette Brown (“Ms. Brown”), who failed to disclose a prior felony theft charge on her application for admission and provided no credible explanation for her omission; intentionally misrepresented her grade point average (“GPA”) on her law school resume in order to enhance her qualifications with a prospective employer; and demonstrated a pattern of financial irresponsibility with credit account debt.

The Character Committee for the Seventh Appellate Circuit (“Committee”) recommended Ms. Brown’s admission to the Bar of Maryland by a vote of three to two. The State Board of Law Examiners (“Board”) voted four to three to adopt the recommendation of the Committee. Upon consideration of the recommendations of the Committee and the Board, and based upon our independent review of the record, we hold that Ms. Brown has not met the burden of establishing that she currently possesses the requisite moral character and fitness for admission to the Bar.

The court found that the debt issues were not an impediment to admission.

The problems lay elsewhere

In 1992, Ms. Brown was charged with making a false statement to a police officer and felony theft. She only disclosed the charge of making a false statement on her Bar application. The charges arose from an alleged robbery that occurred on or about October 10, 1992, while Ms. Brown was a manager in a retail clothing store in Prince George’s County.

The committee found that her testimony about the criminal matter was candid.

She had falsified her GPA

The Committee found Ms. Brown’s “admitted intentional misrepresentation of her [GPA] during the final semester of law school[,]” most egregious. Ms. Brown provided an April 24, 2012 reprimand letter from her law school’s Academic Standards Committee, which reported that she submitted a resume to the school’s Director of Career and Professional Development that falsely reported her GPA to be 3.71, when her GPA was only 2.71. The letter also noted that Ms. Brown failed to correct the misrepresentation when the Assistant Director of the career development office congratulated her on the false GPA. 

In deciding to issue a reprimand, the Academic Standards Committee considered the following: 1) Ms. Brown’s “estimable record of accomplishments;” 2) her “civic engagement and respect by her classmates;” 3) “the isolated nature of the incident;” and 4) the “sincerity of Ms. Brown’s regret regarding her conduct.” During the hearings, Ms. Brown admitted she placed false information on her resume in order to secure an on campus interview with a prospective employer, who required a minimum GPA of 3.0. Ms. Brown also testified that she withdrew her application with the prospective employer after the interview, reasoning that her conduct was “dishonest,” “unethical,” and “stupid.”

Although Ms. Brown acknowledged that her misrepresentation would have been exposed when the employer obtained her law school transcript, she admitted that she would not have reported it had she not been caught by the career development staff. The Committee accepted mitigation evidence relative to the resume incident. The Committee observed that three years had elapsed since the event leading to her academic reprimand, and that during that time, Ms. Brown held a real estate license, has been a notary public, and has worked for at least two title companies. The Committee also observed that within that period, no complaints had been lodged against her, and the accuracy and integrity of her work had not been questioned.

The court

Ms. Brown admitted that she had been financially irresponsible, failed to disclose the felony theft charge on her Bar application, and falsified material information on her resume during law school. Nonetheless, Ms. Brown avers that these incidents were not indicative of her present moral character and fitness for admission to the Bar of Maryland.

With the exception of Ms. Brown’s patterns of financial irresponsibility, which, in our view, she has since rehabilitated based on the record before us, we disagree.

Relative to the failure to disclose information, Ms. Brown alleges that she was not aware of the felony theft charge, and therefore, did not disclose it on her Bar application. However, the record reveals the contrary. Specifically, during Ms. Brown’s testimony at the February 2015 hearing, she stated, in relevant part: “I was very clear with [Mr. Herschfeld] . . . that I never said I committed theft of anything of that nature[,]” and that “[a]t first [the police officer] charged me with making a false statement. Then at some point he did do the theft, I do remember that, but I remember the theft either—I don’t know if it got tied into the stet or if it went away.” (emphasis added). Contrary to these assertions, Ms. Brown thereafter, affirmatively denied having recalled the felony theft charge, by stating, “I don’t remember that particular charge [(i.e., the felony theft charge)][,]” and “I don’t ever remember being charged with [felony] theft.”

...our cases demonstrate that an applicant’s lack of candor, truthfulness, or full disclosure, as reflected by an applicant’s inconsistent or contradictory testimony, or other evidence, also supports the denial of admission to the Bar.

...Ms. Brown’s explanations of her of failure to disclose, as reflected in the record and her representations during oral argument before this Court, are inconsistent, and tend to minimize the extent of her responsibility. We further observe that Ms. Brown failed to disclose a known criminal charge, despite signing an affirmation attesting to the accuracy of the information provided on her Bar application.

The coup de grace

Even more troubling, is Ms. Brown’s falsification of information on her resume during the last semester of law school. Ms. Brown alleges that this conduct displayed a “lapse in judgment” that was not indicative of her character, suggesting that the candid confession of her culpability and requisite remorse, should be viewed favorably towards her admission to the Bar. We disagree. Ms. Brown deliberately altered her GPA on her resume to advance employment prospects which she would not have qualified for, had her true GPA had been disclosed. Ms. Brown was cognizant that her actions were misleading. Ms. Brown also candidly admitted that the motivation behind her actions were calculated and purely designed for her own personal gain.

Ms. Brown further testified that had her law school not confronted her regarding the falsified GPA, she would not have taken the initiative to correct the misinformation. Specifically, Ms. Brown admitted that she did not correct the misrepresentation, even when the Assistant Director of the law school’s career development office congratulated her for achieving an “outstanding GPA,” and did not do so during an on-campus interview with the prospective employer. In furtherance of this act of deception, Ms. Brown testified that she only withdrew her resume from consideration because of her fear of being caught, and the fact that her actual GPA would have ultimately been revealed when compared against her law school transcript...

Although we accord great weight to the Board’s determination, our independent review of the record, which includes argument before this Court, where Ms. Brown appeared and responded to questions, and the proceedings before the Committee and the Board, leads us to conclude that Ms. Brown has failed to unequivocally meet the burden of establishing that she presently possesses the good moral character and fitness required for admission to the Bar of Maryland. In 2012, which was approximately four years ago, Ms. Brown revealed to the Committee and the Board that she deliberately falsified her GPA to enhance her qualifications with a prospective employer, and was less than candid regarding a previous felony theft charge.

Justice Hotten authored the court's opinion. (Mike Frisch)

August 24, 2016 in Bar Discipline & Process, Blogging | Permalink | Comments (0)