Monday, April 11, 2016

File Deletions Lead To Resignation

A statement of charges filed by the Illinois Administrator moves for resignation (consent disbarment)  of an attorney

On December 4, 2014, Movant was charged in a four-count information with two offenses of official misconduct, in violation of 720 ILCS 5/33-3(b) (Counts I and III); aggravated computer tampering, in violation of 720 ILCS 5/17-52(a)(1) (Count II); and computer tampering, in violation of 720 ILCS 5/17-51(a)(3) (Count IV). The charges alleged that on January 9, 2014, Movant, while employed as an assistant State’s Attorney for Hancock County, Illinois, knowingly deleted data contained on the computers of the Hancock County State’s Attorney’s office.

The data that Movant unlawfully deleted included files, correspondence, grant documents, trial preparation materials, and memoranda. Movant performed those acts after he learned that the Hancock County Board did not appoint him to succeed James M. Drozdz, who recently had died, as State’s Attorney for Hancock County.

On March 4, 2016, the Honorable William E. Poncin allowed the State to amend Count IV of the information to reduce the felony charge of computer tampering to a violation of 720 ILCS 5/17-51(a)(2), a Class A misdemeanor. Movant pled guilty to the offense in Count IV as amended. With the parties’ agreement, the court dismissed the other counts and sentenced Movant to conditional discharge for a period of 18 months, with agreed conditions including that he submit a motion to this Court for a voluntary name strike under Supreme Court Rule 762(a), perform 40 hours of public service, and pay a fine, costs and restitution totaling $590.

The Herald-Whig reported on the offense

A former Hancock County assistant state's attorney received 18 months conditional discharge -- a form of unsupervised probation -- after pleading guilty Friday to an amended charge of computer tampering, a class A misdemeanor. Other charges he faced were dismissed as part of the plea.

Brian Hunter originally was charged with two counts of official misconduct and two counts of aggravated computer tampering in December 2014.

Prosecutors alleged that Hunter went to the state's attorney's office Jan. 9, 2014, and deleted documents, files, letters of correspondence, grant documents, trial preparation materials and memoranda from official state's attorney's computers after he learned that the Hancock County Board didn't select him to replace the late Jim Drodz as state's attorney. Drodz died Dec. 29, 2013, in a traffic crash in Dade County, Ga.

Hunter resigned from the office Jan. 10, 2014.

As part of the sentence, Hunter must complete 40 hours of community service, pay fines and court costs of $1,167, including $90 in restitution to the county, and surrender his law license. According to the Illinois Attorney Registration and Disciplinary Commission, Hunter is voluntarily inactive and not authorized to practice law in the state.

According to court records, Hunter, who now lives in the state of Washington, is employed and in an electrical apprenticeship program.

The case was prosecuted by the state appellate prosecutor's office.

April 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Risky Business

The Michigan Attorney Discipline Board affirmed a panel's 60-day suspension of an attorney in a matter in which both sides sought review of the sanction.

The board discussed the substance of Rule 1.15

Nowhere in the text of MRPC 1.15 will one fmd the words "misappropriation" or "commingling," but parties, hearing panels, this Board, and others have traditionally used the terms to describe conduct prohibited by MRPC 1.15( d). Many disciplinary bodies have used the word "misappropriation" as a synonym for theft, or, at times, for any unauthorized taking or use of the funds not belonging to a lawyer, whether accompanied by bad intent or no intent at all. In other words, we have said that misappropriation is a "per se offense," meaning that "'once the running balance of the [trust] account fell below the amount [required to be] held in trust for the client, misappropriation had occurred.'" Grievance Administrator v Deborah C. Lynch, 96-96-GA (ADB 1997) (discussing cases involving "inadvertent misuse" of client funds), pp 5-6.

Often, the modifier "intentional" or "knowing" is attached to the word "misappropriation" to signal the some of the most serious conduct prohibited by MRPC 1.15( d). With the increased use of the ABA Standards since the Court's Lopatin decision adopting them in 2000, the word "conversion" has been used much more frequently to refer to knowing misuse of client funds.  A lawyer who knowingly takes money belonging to others has failed to keep it separate from his own in the most flagrant way. Thus, this kind of "[ m ]isappropriation of client funds ... is an obvious violation of the rule." The lawyer has failed to keep funds safe and separate from his own by appropriating them to his or her own use.


We now turn, at last, to the provision of the rule found to have been violated in this case. The panel found that respondent deposited personal funds into the trust account in sums greater   "reasonably necessary to pay financial institution service charges or fees or to obtain a waiver of service charges or fees." MRPC 1.15(f). Some view this type of rule as an "exception" to the anticommingling rule. While this may be seen as true in some circumstances, the respondent's contentions in this case illustrate that it may not always be an accurate description. In other words, our rule's prohibition does not depend upon whether or not client funds are actually in the trust account. Even if no client funds are in the account, MRPC 1.15(f) prohibits the deposit of lawyer funds in an amount beyond that "reasonably necessary" to payor avoid the charges or fees referenced in the rule.

Respondent argues that there was no commingling because there were no client funds in the account. After receiving evidence, including generalized testimony from respondent that he placed some unearned fees in the account, the panel concluded that the ''the proofs are not clear with respect to the actual mixing of client and attorney funds here." In any event, the formal complaint did not allege a violation of MRPC 1.15( d), and the Administrator disavowed such a charge. Understandably, this informed much of respondent's argument, as he sought to make it clear that client funds were not invaded and that the absence of a Rule 1.15( d) charge took commingling off the table. The panel agreed, and so do we.

On sanction

Respondent asserted that there was no risk to client funds, because there were no client funds in the account. However, this assertion is inconsistent with respondent's own testimony at the September 11, 2013 hearing and two of the bank record exhibits offered by petitioner and admitted into evidence by the panel. The hearing panel's report appropriately noted the potential for injury that respondent's predicament with his creditors created. We agree with the panel's observation that respondent's misuse of his IOLTA account, and his predicament with his creditors, did put his clients' funds at risk and therefore caused the potential for injury.

The board concluded that the sanction was within the range of discipline for the found misconduct. (Mike Frisch)

April 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Sanctions For "Inarticulate, Evasive and Dishonest" Answers

sunEthics has a sanctions story

Second DCA reverses sanctions imposed against lawyer who gave “dishonest” answers to trial judge in matter involving Facebook research on juror. [Added 4/9/16]

Lawyer represented Defendants in a suit over dissolution of a dental practice.  At the end of the day in which the jury was selected, the trial court warned the jurors to avoid any contact with parties, lawyers, or witnesses, and instructed them not to do “any electronic research on the Internet or any other electronic devices.”

The next morning Lawyer informed the judge that she wanted to strike a juror for cause “because the juror was a Facebook friend of one of [Lawyer’s client’s] employees.”  The judge became upset and admonished Lawyer for violating the court’s instructions to the jury.  When the judge asked Lawyer how she learned the information, Lawyer “gave three different answers to the inquiry.”  None of her answers involved contact with the juror.

Plaintiff moved for a mistrial.  The court found that Lawyer had acted in bad faith and granted the mistrial.  Plaintiff also moved for sanctions against Lawyer.  The court granted the motion and ordered Lawyer to pay the fees and costs of Plaintiff’s counsel.  Lawyer appealed.

The Second DCA reversed.  Lawyer gave the court “inarticulate, evasive, and dishonest answers.  As a consequence, she violated her oath as an attorney to be honest before a tribunal.  See R. Regulating Fla. Bar 4-3.3(a)(1) (‘A lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.’); 4-8.4(c) (‘A lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’).”  Despite this, however, Plaintiff had not proved his case for sanctions.  In the view of the appeals court, Lawyer’s “dishonest answers” did not prevent a fair trail from being held and did not result in Plaintiff incurring additional fees.

The appeals court further noted that the trial court’s order regarding refraining from research “was directed to the jurors – not the attorneys or the parties – and could not be a basis for the imposition of sanctions against [Lawyer].  There is no prohibition in Florida law against an attorney researching jurors before, during, and throughout a trial so long as the research does not lead to contact with a juror.  An attorney is not obligated to inform the court of such research unless it affects the fairness of the trial and the administration of justice.” Tenev v. Thurston, __ So.3d __ (Fla. 2d DCA, No. 2D14-4566, 3/9/2016), 2016 WL 886280.

(Mike Frisch)

April 11, 2016 | Permalink | Comments (0)

A Bit Less Than Disbarment

An attorney who failed to turn over funds due to his law firm agreed to a five-year suspension imposed by the Pennsylvania Supreme Court.

The firm had confronted the attorney about failure to deposit client funds in the IOLTA account. He confessed to having kept over $40,000 due to the firm. He repaid $1,005 to his former partners.

The sanction was agreed to by Disciplinary Counsel in light of the attorney's acknowledgement of the misconduct and sanction. (Mike Frisch)

April 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Resignation For Misuse Of Entrusted Funds

An attorney who misused a relatively small amount of entrusted funds has resigned from the New York Appellate Division for the First Judicial Department.

The court

Respondent states that he is aware that he is the subject of disciplinary charges currently pending before a Referee alleging that he misappropriated and/or intentionally converted funds belonging to others for his own use and benefit in violation of the New York Rules of Professional Conduct (22 NYCRR 1200.00), namely, rule 1.15(a) and rule 8.4(c).

Specifically, respondent acknowledges that during his May 13, 2015 examination under oath before the Committee he testified, inter alia, that he used approximately $2,400 that belonged to a client whom he represented in a dispute with his commercial landlord, for his own personal purposes. Respondent further testified that he used approximately $1,500 which belonged to an estate for his own personal purposes (see 22 NYCRR 603.11[a][2)). Respondent testified that he reimbursed both the client and the estate.

The attorney was admitted in 1987. (Mike Frisch)

April 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, April 10, 2016

Duped Into Reprimand

The attorney partners in a two-partner firm (Hutton and Vasa) purchased a highly-successful personal-injury law practice. The seller - attorney Lipis -  was later suspended  for two years in 2008 and lost a  bid for reinstatement.

The attorneys employed him in violation of unauthorized practice restrictions in order to bolster the ailing practice.


Beginning in 2010, Hutton moved in with Lipis' to Lipis's home. They currently share Lipis's split-level home. 

 At all times relevant to the petition, Hutton and Vasa were aware of Lipis's suspensiOn. 

The former attorney was quite skilled at negotiating settlement but crossed the line

we have no hesitation in concluding that in the circumstances of this case, Lipis's actions constituted the practice of law. We do not need to provide an abstract or stand-alone definition of the "practice of law" to resolve this issue. To be sure, the Court has provided some general guidance about the nature of work that might readily be categorized as the practice of law: "In the context of bar discipline proceedings, it is relevant whether a disbarred or suspended lawyer draws on his or her legal education and experience and exercises judgment in applying legal principles to address the individual needs of clients." Matter of Bott, 462 Mass. 430, 437, 28 Mass. Att'y Disc. R. 54, 62 (2012). Using that criterion, Lipis's evaluation of V &H's cases would appear prima-facie to fall generally within the practice of law. Done properly, such evaluation required that Lipis consider, in the specific factual context of each client's individual case, the evidence and the applicable law, including rights to recovery, available defenses, the admissibility of the available evidence and the legal avenues available for obtaining evidence where needed, all for the purpose of making a recommendation for settlement...

We have detailed above the respondents' nearly complete lack of supervision of. Lipis. It is undisputed that he worked alone in a conference room across the hall from the respondents' offices. Hutton was out of the country when Lipis started, and Vasa was rarely in the office during the relevant time period; both respondents had offices in a separate suite from the one where Lipis was working. Although the respondents did not think he was doing so, Lipis indeed called clients. In addition, as discussed below, Lipis was permitted to adopt and use a false name. Bar counsel has proved a violation of these rules.

 Hutton was visiting h is sick father in Europe when Lipis started. Vasa told Hutton on his return that Bar Counsel had blessed the arrangement.

A few months later

Vasa asked Lipis to do a voice shot for the firm, where his voice would be recorded saying he was Jay Lipis and he was back at the firm. We find that Lipis told Hutton about the voice shot and the proposed salary in October 2012. After learning in mid-October about the proposed salary and the voice shot, Hutton called assistant bar counsel Linda Bauer on October 16, 2012. 

 Hutton asked Bauer if the firm could hire Lipis in a non-legal capacity to negotiate with insurance adjusters on bodily injury claims. Bauer said that this was prohibited, referred him to SJC Rule 4:01, § 17(7) and confirmed her advice with a letter dated October 16, referencing their phone conversation earlier that day.  

Hutton fired Lipis after his conversation with Bauer. 

Lipis used the false name ("Larry Kreiger") so that insurance adjusters would not know they were dealing with him

The fact that Lipis decided he needed to use a false name to avoid recognition by insurance adjusters he had worked with in the past should have raised a large red flag for the respondents. Their admission that it did not speaks volumes. Indeed, Vasa thought the false name was a joke, and Hutton was apparently unperturbed. In their requests for findings, both respondents resist the conclusion that there is anything wrong with the use of a false name. · Hutton cites an IRS Bulletin that apparently authorizes the use of pseudonyms...

The court rejected the argument and found a violation of Rule 8.4(c).

As to sanction

We do not think the respondents' conduct rises to the level manifest in the six-month suspension cases. Bar counsel did not prove that Lipis gave legal advice, actively assisted in litigation matters, had extensive client contact or had access to IOLTA funds. Lipis worked parttime for at most ten weeks. We think a six-month suspension is too severe for the conduct we have found. Turning to Hutton first, we note that he could certainly have been more proactive about contacting bar counsel once he learned Lipis was back. However, we find that Hutton was misled by Vasa into thinking that bar counsel had given the arrangement her blessing, and that this misplaced reliance on Vasa was reasonable. This does not mean there should be no sanction, since we have found above that Hutton, too, violated various rules. But to some extent, Hutton was Vasa's dupe; as discussed below, Vasa did not include Hutton when he emailed Lipis about starting work, he brought Lipis back while Hutton was out of town, and he twice tried to make arrangements with Lipis behind Hutton's back- the proposal that Lipis do a voice shot, and the proposal to pay him $1,000 per week to stay on.

Clearly some sanction is in order for Hutton. As a partner and a supervising attorney in a small firm, he was equally responsible with Vasa for V &H engaging Lipis in violation of the rules. Further, Hutton knew that Lipis was using a false name and he knew that on at least one occasion, Lipis represented himself to an insurance agent as an attorney. At any point, Hutton could have called Linda Bauer to determine if indeed the Lip is arrangement was lawful, or he could have opened the rule book. But unlike Vasa, Hutton was ashamed, contrite and insightful and, as indicated, fired Lipis promptly once he heard from Bauer that the firm could not engage Lipis. He acknowledged that he violated the ethical rules and conceded that punishment is called for.

The Board of Bar Overseers imposed a public reprimand of Hutton and recommended a three-month suspension for Vaca.

Lipis received an indefinite suspension for the misconduct. (Mike Frisch)

April 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Former Fox Rothschild Attorney Suspended For Insider Trading Conviction

An attorney recently convicted of insider trading has been suspended pending final discipline by the Pennsylvania Supreme Court.

The Reporter reported on the conviction

Doylestown lawyer Herbert K. Sudfeld, Jr. has been found guilty of illegally profiting from a 2011 merger between insurer Harleysville Group, Inc. and Nationwide Mutual Insurance Co., the U.S. Department of Justice announced.

Sudfeld, 64, was convicted on charges of insider trading and making a false statement in federal court on Feb. 5, according to the U.S. Attorney’s Office for the Eastern District of Pennsylvania.

Sudfeld, who was indicted in July on securities fraud and other criminal counts, faces a maximum sentence of 25 years in prison and three years of supervised release, and possibly a substantial fine.

Prosecutors had said that while a partner at Fox Rothschild, the law firm advising Harleysville Group in the merger, Sudfeld — despite his learning through nonpublic information that the merger was imminent and that he had “a fiduciary duty to keep it confidential,” prosecutors alleged — used the insider information to direct his stockbroker to purchase 1,000 shares of Harleysville stock under his wife’s account and 2,000 shares from his personal account on Sept. 28, 2011, the day before the public announcement of the merger, according to the federal indictment.

After the merger was announced on the morning of Sept. 29, 2011, just before the market opened, shares of Harleysville stock rose by about 85 percent, and Sudfeld immediately sold the 3,000 shares he had bought the day before, netting a profit of about $75,530, according to the indictment.

Prosecutors also said that during an investigation into the matter, Sudfeld lied to FBI agents looking into the alleged insider trading, falsely stating that he wasn’t aware of the stock transactions until several days to a week afterward; that he told his broker he couldn’t be involved in trades of Harleysville stock due to his position at the law firm; and that he didn’t discuss the stock trades with his broker until after they were completed.

It was not immediately known when Sudfeld will be sentenced.

The Securities & Exchange Commission filed a related civil suit . 

The temporary suspension was imposed based on the joint petition of the attorney and disciplinary counsel. (Mike Frisch)

April 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 8, 2016

Kansas Agrees With Missouri

The Kansas Supreme Court has stayed an indefinite suspension and placed the attorney on supervised probation for misconduct in several matters

The respondent borrowed funds held in trust on behalf of G.F. The hearing panel concludes that the respondent's motivation regarding that misconduct was motivated by selfishness. Additionally, the respondent placed earned fees in his attorney trust account in an attempt to avoid tax levies. The hearing panel concludes that such misconduct was motivated by dishonesty and selfishness. However, the respondent also advanced fees to his clients to provide financial assistance. The hearing panel finds that misconduct was not motivated by dishonesty or selfishness.

On the plus side

The respondent is an active and productive member of the bar of the Metropolitan Kansas City area. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.

The misconduct was also prosecuted in Missouri where the same sanction was imposed.

This matter was handled under the procedures for reciprocal discipline.

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

April 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Never Say Always

The New Jersey Supreme Court has remanded for re-sentencing a first degree murder case

In this appeal, the Court determines whether a remand for resentencing before a different judge is required after the trial judge remarked during a subsequent, unrelated status conference that he always gives sixty-year sentences to defendants convicted by a jury of first-degree murder.


The trial judge’s statement during a subsequent, unrelated status conference that he always gives sixty-year sentences to defendants convicted by a jury of first-degree murder undermines public confidence in our system of criminal sentencing. Consequently, the matter is remanded for resentencing by a different judge...

The Court acknowledges that the record of the sentencing hearing in this matter reveals that the trial judge did not violate the sentencing guidelines. However, a remark in open court, even in a subsequent, unrelated proceeding, that a judge “always” sentences defendants convicted of first-degree murder to sixty years in prison improperly suggests that the unique facts of each defendant’s case are not considered when determining the appropriate sentence. Although the Court accords substantial deference to sentencing determinations and acknowledges the trial judge’s explanation of his sentencing methodology given during the remand hearing in Richardson, it finds that the Brown status conference statement, particularly when viewed in light of the trial judge’s sentencing record, undermines public confidence in our system of criminal sentencing. Accordingly, to preserve public trust in the sentencing framework established by our Code of Criminal Justice, the Court reverses the judgment of the Appellate Division and remands for resentencing by another trial judge of the Mercer Vicinage. The Court offers no comment on the appropriate sentence to be imposed.

(Mike Frisch)

April 8, 2016 | Permalink | Comments (0)

Public Discipline For Part-Time Magistrate

A pert-time judicial magistrate has been reprimanded by the Iowa Supreme Court.

Magistrate Sevcik, acting in his capacity as a private attorney, represented a client in district court for a hearing on a motion for temporary placement of a child. Prior to the hearing, he retrieved four criminal and six domestic abuse court files from the office of the clerk of court. He had notified the clerk of court in advance that he wanted the files and intended to ask the judge to take judicial notice of the contents of the file during the course of the hearing. Magistrate Sevcik was uncertain whether he was on duty as a magistrate when he requested the files, but was not on duty when he retrieved them from the clerk’s office. He knew two of the criminal files included deferred judgments and had been expunged. These files were marked as expunged. He understood the expunged files contained confidential documents and were only available to specific persons and agencies, including magistrates...[He] believed the district judge presiding over the hearing could take judicial notice of all the files, and he requested such judicial notice during the hearing, placing them on the courtroom bench. In addition, Magistrate Sevcik used a document from one of the expunged files to impeach a witness during the hearing.

The court affirmed some findings of misconduct

A judge who acquires nonpublic information in a judicial capacity and uses the information for purposes unrelated to the judge’s judicial duties can undermine the judge’s independence, integrity, and impartiality. Here, the conduct by Magistrate Sevcik was in the nature of abuse of power and projected a willingness to misuse judicial authority to benefit his private practice of law.

On sanction

It is unnecessary for us to decide if we should adopt a public admonition as a form of judicial discipline. Considering the nature of the conduct, this case does not present a need for us to provide instruction to magistrates on how to use their authority to access expunged records. The misuse of authority in this case was not the result of a misunderstanding, but a clear violation of the rule against using judicial authority for purposes unrelated to the work of a magistrate. We agree with the Commission [on Judicial Qualifications] that a public reprimand is the appropriate sanction. It meets the goals of imposing sanctions and is supported by the relevant circumstances in the case.

(Mike Frisch)

April 8, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Conspiring Against Client

The Ohio Supreme Court has suspended an attorney as a result of a criminal conviction.

The ABA Journal had reported

A former county bar association president and his law partner in a Youngstown, Ohio, firm have avoided prison time in a federal case over claimed extortion of a client convenience store owner.

Originally charged with extortion and obstruction of justice, among other crimes, defendant attorneys Scott Cochran and Neal Atway got a reprieve last year when a mistrial was declared in the Cleveland case. An undescribed juror communication led to the early termination of the trial, asWFMJ reported at the time.

In October, the two took a plea deal: Cochran pleaded guilty to misbehavior in the court’s presence, because of failing to provide truthful testimony at a trial; and Atway pleaded guilty to conspiring against the rights of a client, according to the Vindicator and WFMJ.

On Tuesday, the two were sentenced. Cochran was fined $2,500 and put on probation for two years. Atway was fined $2,000 and put on home confinement, with an electronic monitor, for four months, and probation for three years.

In pre-sentence filings, lawyers for both defendants said they had already suffered significantly as a result of the case.

“While many of his clients were willing to stay with him, and many in the local legal community expressed continued support for him, the stress and his commitment to fighting the original charges against him devastated his practice,” wrote attorney Lynn Maro in a sentencing memorandum about Cochran.

Attorney Roger Synenberg represented Atway. He described his client as “deeply remorseful, ashamed, and embarrassed by his conduct.”

An earlier Vindicator story provides additional details about the trial.

The extortion case began to unfold when Atway was hired to represent convenience store owner Charles Muth, who faced sentencing in a criminal case concerning a drive-by shooting at the home in which the wife of a rival store owner lived. Atway was accused of conspiring with the other store owner, Mohd Rawhneh, in an effort to extract money and property from Atway’s client, Muth.

If Muth didn’t ante up, he was allegedly told, the other store owner would speak at his sentencing hearing in an effort to see that Muth got more time, the WFMJ article explains.

Cochran testified when the two lawyers were tried last year that he knew nothing about Atway’s claimed communication to his client, in which he allegedly told Muth that Rawhneh would say nothing at Muth’s sentencing if he anted up. However, federal prosecutors say Cochran had heard a phone conversation in which Atway did make this statement to Muth.

Rawhneh previously took a plea in a witness-tampering case and awaits sentencing.

The suspension is of Mr. Atway. (Mike Frisch)

April 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Twist On Privilege Law

An attorney's effort to resist compelled disclosure of allegedly privileged information was rejected by the West Virginia Supreme Court of Appeals.

The case involved litigation over drilling rights

In January 2004, the Martins leased the right to drill for and produce natural gas on approximately sixty-one acres (the “Martin Lease”) to Martin Twist Energy Co., LLC (“MTEC”). Pursuant to the lease, MTEC drilled three wells upon the Martins’ property. Subsequently, AIO lent $2 million to MTEC. The loan was collateralized by various oil and gas leases and wells, including the Martin Lease and the wells that had been drilled. MTEC defaulted on its loan with AIO. Thereafter, AIO instituted foreclosure proceedings against MTEC in Kentucky. The proceedings resulted in the entry of an Agreed Judgment whereby the entire right and interest in the Martin Lease and the drilled wells was transferred to AIO in October 2008.

In March 2009, the Martins filed suit against AIO. The complaint set forth multiple grounds, including failure to pay appropriate royalties under the Martin Lease. Counsel for AIO, Scott Kaminski, first appeared in April 2009. Subsequently, AIO filed an answer and a counterclaim against Mr. Martin alleging that he interfered with AIO’s production from the wells by chasing AIO employees off the property with a gun and prohibiting them from working. A court-ordered mediation held in July 2010 was unsuccessful. A settlement offer presented by the Martins was rejected by Todd Pilcher (“Mr. Pilcher”), who was said to be acting on behalf of AIO.

Kaminski withdrew after consulting with disciplinary counsel. He then asserted attorney-client privilege to resist disclosure despite AIO's explicit waiver. He did so on behalf of a Mr. Twist (now deceased)

Rule 1.8(f) of the West Virginia Rules of Professional Conduct provides that a lawyer cannot accept compensation for representing a client from anybody other than the client unless three criteria are met. First, the actual client must give consent. Second, there can be no interference with the lawyer’s independent judgment. Third, all information relating to representation of the client must be protected as confidential. While Mr. Twist may have retained and paid Mr. Kaminski, the record does not establish how the Rule 1.8(f) criteria were met. Rather, what is plainly established is that no consent was given by AIO.

The attorney-client privilege belongs to the client. Typically, the client alone may waive the privilege. USF &G, 194 W. Va. at 442, 460 S.E. 2d at 688. The only privilege with respect to the Martin litigation belongs squarely with AIO, who is entitled to waive it regardless of the protestations of others who claim to be acting on behalf of AIO. We observe that all parties appear to accept the existence of an attorney-client relationship between AIO and Mr. Kaminski. The record establishes that AIO has expressly waived the privilege and provided documents to the Martins. The trial court’s conclusion that Mr. Kaminski failed to establish the existence of an attorney-client relationship with Mr. Twist and/or 530 West Main regarding the matters at issue with respect to the Martin complaint is not clearly in error and will not be disturbed...

We now address the claim by Mr. Kaminski that the West Virginia Rules of Professional Conduct apply to this matter such that he cannot be compelled to disclose client confidences. We find that Mr. Kaminski has failed to distinguish the evidentiary attorney-client privilege and the professional and ethical duties of confidentiality. The trial court correctly found that the evidentiary privilege exists apart from, and is not coextensive with, the ethical confidentiality precepts...

Rule 1.6 of the West Virginia Rules of Professional Conduct provides for the confidentiality of information relating to the representation of a client. Confidentiality applies even after withdrawal from representation. Here, Mr. Kaminski recognized his potential duties, consulted with disciplinary counsel, withdrew from representation, and disavowed pleadings. He has continued to assert and maintain confidentiality. Nevertheless, Rule 1.6(b)(6) specifically provides that an attorney may be compelled to reveal information relating to representation of a client so as to comply with a court order. That is the situation confronting Mr. Kaminski. The trial court did not commit clear error when it determined that the West Virginia Rules of Professional Responsibility do not bar disclosure of the contested documents.

The court further held that an attorney may not assert a "blanket claim of privilege" in response to an effort t o compel disclosure. (Mike Frisch)

April 8, 2016 in Clients, Hot Topics, Professional Responsibility | Permalink | Comments (0)

Sanction Recommendation Rejected As Unduly Lenient

In a disciplinary matter involving neglect and other violations in two criminal matters, the West Virginia Supreme Court of Appeals was critical of the recommendations for discipline

Taking into account all the mitigating and aggravating factors, we are confounded as to why the HPS found the lack of prior “adverse” disciplinary findings as a mitigating factor while also finding the presence of two prior Investigative Panel admonishments to be an aggravating factor. As the HPS found, and the LDB advocates, it should be considered mitigating that Ms. Sturm was only admonished in the two prior disciplinary actions brought against her. The HPS notes in the Brown/Wright-Ochoa case that Ms. Sturm “had no prior adverse disciplinary findings,” despite also recognizing the prior disciplinary action by the Investigative Panel of the LDB. We are equally disturbed that the LDB engaged in a game of semantics in its argument before the Court that Ms. Sturm “had no prior disciplinary proceedings before this Honorable Court,” in an attempt to mitigate Ms. Sturm’s prior admonishments by the Investigative Panel for conduct very similar to the conduct at issue now. The manner in which these conflicting positions espoused by the HPS and the LDB as the mitigating and aggravating factors were analyzed is confusing at best. There is nothing in our rules or case law supportive of the proposition that if the discipline is only an admonishment given by the Investigative Panel of the LDB, and not this Court, it is not to be considered as aggravating. Rather, we have treated an Investigative Panel admonishment to be aggravating just like any other disciplinary action.

The court's view

Notwithstanding Ms. Sturm’s conduct in the cases sub judice, Ms. Sturm’s prior conduct establishes her propensity for ignoring requests from the ODC and this Court for information, as well as her pattern and practice of failing to file pleadings or appeals with courts and failing to communicate with her clients. Our concern with Ms. Sturm’s conduct in these two cases is heightened by her testimony that she has ninety to one hundred clients and handles a lot of court-appointed cases. Some of these individuals are in great need of competent legal services, and it may take more effort and diligence to meet with them in order to assure that their legal matters are being handled in a competent manner. While we understand that sometimes a lawyer’s personal problems require the lawyer’s utmost attention, this focus of a lawyer’s attention cannot come at the client’s expense. Rather, we are extremely concerned about the repetitive nature of Ms. Sturm’s conduct regardless of her personal problems. Ms. Sturm’s two prior admonishments failed to prevent her from repeating similar conduct.

Thus, a 90-day suspension followed with a period of supervision was imposed. (Mike Frisch)

April 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Non-Response As Consent

The District of Columbia Board on Professional Responsibility has blessed a consent to disbarment under somewhat unusual circumstances

Disciplinary Counsel seeks reconsideration of the Board’s December 28, 2015 order denying Disciplinary Counsel’s December 7, 2015 motion to accept Respondent’s consent to disbarment. After reviewing Disciplinary Counsel’s motion and Respondent’s December 7, 2015 affidavit declaring consent to disbarment, the motion was denied, because the affidavit raised a question whether Respondent’s consent was based on a mistake of law. Order, In re Henderson, Bar Docket Nos. 2014-D172 et al. (Dec. 28, 2015) (under seal).  The Board’s order permitted Disciplinary Counsel to file a renewed motion clarifying this issue.

In its motion for reconsideration, Disciplinary Counsel represents that Respondent agreed to submit a revised affidavit that would resolve the issue identified in the December 28 order, but that Respondent has not done so. Respondent has neither responded to Disciplinary Counsel’s motion for reconsideration, nor revoked his consent to disbarment by other means...

Upon consideration of Respondent’s affidavit declaring his consent to disbarment, Disciplinary Counsel’s representations in its motion for reconsideration, Respondent failure to respond to the motion for reconsideration, or to revoke his consent to disbarment by any other means, the Board, acting through its Chair, and pursuant to D.C. Bar R. XI, § 12(b) and Board Rule 16.2, recommends that the Court enter an order disbarring Respondent on consent pursuant to D.C. Bar R. XI, § 12(b).

If the affidavit was not sufficient, I am not sure how the attorney's subsequent non-participation is a cure. Nonetheless, if an attorney facing multiple complaints (here five( wants to end the process by agreeing to the ultimate sanction, why nitpick the affidavit?

The case is In re Reid Henderson and can be found at this link. (Mike Frisch)

April 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 7, 2016

Answer Please

A New York attorney convicted on plea of guilty of two felony counts of aggravated harassment was automatically disbarred as a result. He also resigned from practice.

The convictions were later vacated on the "sole basis that the underlying crimes were held to be unconstitutional by the [New York] Court of Appeals in an unrelated case."

The Albany Times Union reported on the criminal charges.

The decision describing the conduct but remanding the conviction in light of competency issues  is linked here.

Defendant was charged in an indictment with 11 counts of aggravated harassment in the second degree as a hate crime, after he made anonymous telephone calls to African-American residents of his neighborhood and used threatening language, profanity and racial epithets.

The attorney moved for reinstatement after the conviction was vacated. The motion was opposed  by the Committee on Professional Standards.

The Appellate Division for the Third Judicial Department held the reinstatement in abeyance while proceedings based on the underlying facts were commenced. On January 19, 2016, a petition of charges was filed. The attorney then moved to dismiss the petition.

Not so fast, held the court.

Respondent's motion to dismiss is founded primarily on his claim that the petition of charges is impermissibly based upon information and statements obtained from respondent's "now sealed criminal case." However, as this Court indicated in its June 2015 order directing commencement of the subject investigation, CPL 160.50 (1) (c) permits review of the record on appeal previously submitted to this Court in conjunction with People v Hennessey (supra). Accordingly, we find no basis to grant respondent's pre-answer motion to dismiss the petition of charges.

The attorney must now answer on the merits. (Mike Frisch)


April 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Counselor Who Treated Teen Pregnancy As Confidential Reinstated

A school guidance counselor was improperly dismissed from her employment after protecting the confidentiality of a pregnant 15-year-old student, according to a decision of the New Hampshire Supreme Court.

[Counselor] McKaig suggested that Student A tell her mother about the pregnancy, but Student A refused. Student A and her boyfriend told McKaig that they did not want Student A’s mother to know about the pregnancy because they were afraid for their safety. McKaig researched Student A’s options and found New Hampshire’s parental notification and judicial bypass laws for minors seeking an abortion. See RSA 132:33, :34, II (2015).

After meeting with Student A, McKaig and the other guidance counselor met with the principal and other school staff to discuss the issue of Student A’s pregnancy. The principal expressed his view that the school should inform Student A’s mother about the pregnancy. McKaig disagreed, asserting that Student A had a right to keep the pregnancy confidential. The meeting concluded without a decision about whether to contact Student A’s mother.

After the meeting, McKaig spoke with Attorney Barbara Keshen of the New Hampshire Civil Liberties Union about Student A’s situation. McKaig provided Keshen with Student A’s initials, age, and grade. McKaig and Keshen also discussed Student A’s potential privacy rights. Keshen’s opinion was that the judicial bypass law protected the confidentiality of Student A’s pregnancy and the fact that she was contemplating an abortion. McKaig relayed this opinion to Student A, and Student A made an appointment with a health center and another attorney to assist her with the judicial bypass proceedings.

On December 3, 2012, the principal instructed the school nurse to meet with Student A to tell her that the school would inform her mother about her pregnancy by December 5. That same day, McKaig told the principal about her conversation with Keshen and urged him to contact Keshen to discuss Student A’s rights. The principal did not contact Keshen; however, on December 4, Keshen contacted him. He told Keshen that he had reviewed the parental notification and judicial bypass laws and determined that they did not prevent him from telling Student A’s mother about the pregnancy.

Keshen instituted a petition for a temporary restraining order (TRO) against the principal in superior court to prevent the principal from contacting Student A’s mother. McKaig was named as the petitioner "ON BEHALF OF [Student A]"; she was not named in her individual capacity. The petition did not include Student A’s name. It instead referred to Student A by her initials and mentioned her age and grade, and that she was pregnant.

The district board had agreed with the decision not to renew the counselor's employment and appealed the decision of the state board to reinstate her.

 The court majority

Apart from the unique circumstances giving rise to this case, there is nothing remarkable about our analysis; rather, it is based upon a reasoned application of legislative enactments, and employs well-established principles of judicial review, according proper deference to the state board’s decision. We are disappointed by the tone of the dissent and its incorrect assumptions about our motivations. In contrast, we do not choose to speculate upon the motivations of the dissent; rather, after giving due consideration to the legal points raised by the dissent, we reject its substantive criticisms of our analysis...

We acknowledge, as did the district, that, without the ability to order reinstatement, the state board’s authority to reverse a local board’s decision not to renew a teacher or, in the instant case, a guidance counselor, would be meaningless. See RSA 189:14-b. We therefore affirm the state board’s reversal of the local board’s decision, and order that McKaig be reinstated to her former employment. We also remand to the state board the issue of whether McKaig is entitled to additional remedies, which issue should be addressed by the state board in the first instance.

Justice Lynn dissented.

 The majority’s holding, that the State of New Hampshire Board of Education (state board) could have reasonably concluded that McKaig was not insubordinate, is based upon two flawed premises. First, the holding is based upon the implicit (albeit unstated) determination that the principal’s decision to disclose Student A’s pregnancy to her parents was in some manner at least arguably unlawful or wrong. Second, it also accepts that, because McKaig disagreed with the principal’s decision to tell the parents, she had a right, not simply to advise the student of her disagreement with his decision, but to become an adversary in a court proceeding against him. Neither of these premises, however, can withstand scrutiny. Additionally, the majority allows the state board to impermissibly act as fact finder regarding McKaig’s breach of Student A’s right to confidentiality per district policy. Had the state board given the required deference to the Farmington School Board’s (local board) decision, it would have been required to uphold the decision not to renew McKaig’s contract. For these reasons, I respectfully dissent...

although the majority studiously avoids saying as much, the only plausible explanation for its holding is that the majority believes McKaig’s action in suing her principal was not insubordinate because the principal’s decision to tell Student A’s parents about her pregnancy was not simply one with which McKaig disagreed, but was in some way wrongful or unlawful. Stated differently, if the principal was properly within his rights to tell the parents about the student’s pregnancy, then it is hard to imagine how the majority could hold that it was not insubordinate for McKaig to participate in a lawsuit against the principal because she disagreed with that otherwise correct decision.


(Mike Frisch)

April 7, 2016 in Comparative Professions | Permalink | Comments (0)

Power Of Attorney

The North Carolina State Bar has filed a complaint alleging misconduct in two criminal defense matters.

In one matter, the attorney represented an incarcerated defendant facing multiple charges. It is alleged that the attorney obtained a durable power of attorney from the client and had it improperly notarized outside the client's presence. The State Bar contends that the power of attorney created a conflict of interest.

It is also alleged that the attorney misrepresented that the client's wife was his "assistant" to allow her to "participate in an after-hours meeting with [the client] in the attorney visitation area."

In a second matter, it is alleged that the attorney used improper means (and false documents) to depose witnesses in two criminal cases without legal basis to do so. (Mike Frisch)

April 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Malice In The Truth

The District of Columbia Court of Appeals has reversed a plaintiff's judgment in a loss of contractual opportunity suit, holding that the plaintiff was a public figure and that the allegedly defamatory statements at issue were protected by the First Amendment.

The plaintiff had obtained a "sizable" award of damages based on six letters written by a co-worker that led to the withdrawal of a job offer with the United States Department of Agriculture.

Undisputed facts of record and relevant case authority, including a decision of our own, teach us that Mr. Armstrong was a public official at the time in question. He was an Assistant Special Agent in Charge (ASAC) at TIGTA, supervising five to seven employees. As an ASAC, he was responsible for managing a group of Special Agents investigating mainly fraud involving Internal Revenue Service procurements. His unit presented the results of its investigations either to an “adjudicator” or to the United States Attorney‟s Office if possible criminal prosecution was warranted. His duties required him to carry a firearm and federal law enforcement credentials, and gave him access to sensitive databases and information. In TIGTA‟s own description, which Mr. Armstrong does not question, he occupied “a position of heightened public trust and responsibility” as a “[f]ederal law enforcement officer,” and “[a]s an ASAC [was] held to a higher standard of conduct than non-supervisory employees . . . .”

...Many courts have gone further and held that, because “[l]aw enforcement is a uniquely governmental affair,” an officer “of law enforcement, from ordinary patrolman to Chief of Police, is a „public official‟ within the meaning of federal constitutional law.” Roche v. Egan, 433 A.2d 757, 762 (Me. 1981) (collecting cases).6 Here it is enough for us to conclude that Mr. Armstrong, a supervisory special agent in TIGTA investigating potential criminal fraud, with access to confidential databases and occupying what TIGTA itself considered "a position of heightened public trust and responsibility," was a public figure within the First Amendment when Ms. Thompson made her statements.

As to malice

The assertions of fact in Ms. Thompson‟s letters, we held, were substantially true as a matter of law, 80 A.3d at 185, and the Supreme Court has "long held . . . that actual malice entails falsity." Air Wisconsin Airlines v. Hoeper, 134 S. Ct. 852, 861 (2014). For the rest, the letters consisted of expressions of opinion that we concluded "were unverifiable and therefore not actionable in defamation." Id. at 187. The Supreme Court similarly held in Milkovich v Lorain Journal Co., 479 U.S. 1 (1990), that ¡°a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.¡± Id. at 20. In sum, as a matter of law under the First Amendment, none of the statements in Ms. Thompson.s letters provided a basis for liability. 

Senior Judge Farrell authored the opinion.

April 7, 2016 | Permalink | Comments (0)

Wednesday, April 6, 2016

Village Court Justice Should Be Removed: Told Co-Judge To "Have A Stroke And Die"

A justice should be removed from office , according to the New York Commission on Judicial Conduct.

The village court justice also is an attorney.

One count involved his abuse of a student intern and others

On repeated occasions over several years, respondent abused his judicial position in order to bully, harass, threaten and intimidate his court staff, his co-judge and other village officials and employees with whom he dealt in an official capacity. Without lawful basis, he repeatedly threatened such individuals with contempt or arrest over routine personnel or administrative issues in his court. On a frequent basis, he also subjected them to demeaning treatment, insults and angry diatribes in response to perceived disrespect or shortcomings in the performance of their duties and, in one instance, exhibited a shocking display of physical aggression in the court clerk's office. Such "a pattern of injudicious behavior and inappropriate actions ... cannot be viewed as acceptable conduct by one holding judicial office" (Matter of VonderHeide, 72 NY2d
65 8, 660 [ 1988]) and warrants his removal from judicial office.

Epitomizing respondent's misconduct is his response to the hiring of a college student to work in the court clerk's office in the summer of 2012. In an incident that escalated into a melee, respondent, who was displeased because the student, Maxary Joseph, had been hired by the mayor without respondent's input or approval, acted in a manner that failed to show "even a modicum of sensitivity or self-control so vital to the demands of his position" (Matter of Kuehnel, 49 NY2d 465, 469 [1980]) as he attempted to have the student removed from the premises, threatened him with arrest and contempt, and made similar threats against others who attempted to thwart respondent's efforts to effectuate the arrest.

 Initially, after ordering Mr. Joseph to leave the office and threatening him with arrest when he returned at the mayor's direction, respondent called the police and told them he had held an individual in contempt (a statement respondent later admitted was untrue) and that he wanted him arrested for trespassing; he also told the police "the mayor may be next." Then, with a commitment order in hand, he went to the police office in the municipal building, announced that he was sentencing an individual to jail for 15 days, and said he would hold the police in contempt unless they assisted him. He called the sheriffs office and said he wanted the matter investigated, summoned an offduty court officer to the court for assistance, and directed a court clerk to set up the recording equipment in the courtroom. When his co-judge attempted to intervene, respondent threatened him with contempt and told him to "have a stroke and die."   Respondent also ignored the pleas of the court clerks, who were shocked and frightened by respondent's evident rage as he screamed at Mr. Joseph and, while standing next to the student's desk, ordered him into the courtroom and began to advise him of his rights. In an alarming display of injudicious temperament, respondent grabbed Mr. Joseph's arm and attempted to pull him out of his chair, yanking him with such force that the chair began to slide toward respondent. When police, who had rushed to the clerk's office after hearing screaming and yelling, tried to calm the situation and suggested that respondent discuss his concerns about hiring with the mayor, he responded by referring to the mayor in profane, vulgar terms and added that he was contemplating holding her in contempt.

The commission noted that the behavior at issue was not an isolated instance.

The proposed removal now goes to the state Court of Appeals. (Mike Frisch) 

April 6, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

From Church To The Chatterbox Cafe

A church and its pastors are protected from suit alleging defamation according to a decision of the Minnesota Supreme Court.

Under the ecclesiastical abstention doctrine, pastors and their church are not liable to former parishioners for defamation or related common-law torts for statements made by the pastors during the course of formal church discipline proceedings when the statements were communicated only to other members of the church and participants in the formal church discipline process.

The allegedly defamatory statements that led to excommunication

 The Pfeils were actively involved in slander, gossip, and speaking against Braun and his wife, Behnke, and the St. Matthew Board of Elders.

 The Pfeils had intentionally attacked, questioned, and discredited the integrity of Braun, Behnke, and other St. Matthew church leaders.

 Other people had observed the Pfeils display anger and disrespect toward Braun.

 The Pfeils had publicly engaged in "sinful behavior" inside and outside St. Matthew.

 The Pfeils had engaged in behavior unbecoming of a Christian.

 The Pfeils had engaged in a "public display of sin."

 The Pfeils had refused to meet for the purpose of confession and forgiveness.

 The Pfeils had "refused to show respect" toward servants of God and St. Matthew church leadership.

 The Pfeils had led other people into sin.

 The Pfeils had engaged in slander and gossip and had refused to stop engaging in slander and gossip.

 The Pfeils had refused to follow the commands and teachings of God’s word.


we agree with respondents insofar as they argue that applying the issue-by-issue approach advocated by the Pfeils to this case would foster an excessive entanglement with religion, unduly interfere with the internal governance decisions of religious organizations, and violate the First Amendment. Ultimately, adjudicating Pfeils’ claims would excessively entangle the courts with religion and unduly interfere with respondents’ constitutional right to make autonomous decisions regarding the governance of their religious organization. We hold that the First Amendment prohibits holding an individual or organization liable for statements made in the context of a religious disciplinary proceeding when those statements are disseminated only to members of the church congregation or the organization’s membership or hierarchy. As a result, the district court properly dismissed the claims brought by the Pfeils against St. Matthew and its pastors.

 A dissent from Justice Lillehaug would affirm excommunication but allow a defamation claim

Although religious freedom is, of course, a strong public policy, the court does not demonstrate that the possibility of defamation liability "unduly interfere[s]" with that freedom. Nor does the court discuss why religious organizations cannot procure insurance to protect themselves from defamation liability.

On the other hand, the court concedes that there is "merit" to concerns about injustice to defamation victims. It tries to limit the inoculation from liability it grants with a proviso: the rule of law applies only to statements made "during the course of formal discipline proceedings" and "communicated only to other members of the church and participants." This proviso ignores the reality of how defamation can devastate its victims. Any statement made in a closed meeting of "members" and "participants" is unlikely to stay there. More likely, a vicious falsity uttered in a small-town house of worship will be avidly republished, starting the very next morning during coffee at the Chatterbox Café...

Whether or not the Pfeils accused the minister of theft has little to do with the underlying disciplinary proceeding. I see no reason why a court and jury could not apply neutral principles of law without entanglement to determine whether: (1) the minister made the alleged statement; (2) it was false; (3) it was damaging to reputation; and (4) it was not protected by a qualified privilege.

(Mike Frisch) 

April 6, 2016 in Comparative Professions | Permalink | Comments (0)