Friday, August 8, 2014
The web page of the Pennsylvania Disciplinary Board reports that an attorney was recently placed on disability inactive status.
Philly.com has some information about the attorney in a June 2014 post
Less than two weeks after she was arrested for allegedly threatening Philadelphia Common Pleas Court Judge Jeffrey Minehart on Twitter, Jennifer Mondesire, the daughter of suspended Philadelphia NAACP leader Jerry Mondesire, has been released on bail.
According to court records, Mondesire, 35, was deemed incompetent after a mental health evaluation, and Judge Marsha Neifield reduced her bail. She has been ordered to comply with in-patient treatment and to stay off all social media.
Mondesire’s Twitter feed, since deleted, contained several messages mentioning Minehart, including at least one direct threat on his life. When reached in his chambers after the arrest, Minehart, who presided over the Kermit Gosnell trial, told us that he didn’t even know what Twitter was and said he had no idea why Mondesire would target him.
Unusually, the Philadelphia Police Department directed all calls about Mondesire to Tasha Jamerson, spokesperson for District Attorney Seth Williams. Normally after an arrest, police release basic details about the defendant and the charges against them — including when mental health issues are involved — but police refused to do so in this case.
Also unusual, police have not released a mugshot of Mondesire and haven't been able to offer an explanation as to why. [UPDATE: Police now say that Mondesire was never photographed, even though she was in custody for more than a week.]
Mondesire's next court date is July 9th. She faces charges of harassment, terroristic threats and marijuana possession. Judge Neifield has sealed the case.
Meanwhile, reports have surfaced that Pennsylvania Attorney General Kathleen Kane has been reviewing a 2009 probe of Jerry Mondesire's finances. And AxisPhilly has been asking a lot of questions about Next Generation Community Development Corporation, the non-profit he created in 1999.
Jerry Mondesire has not responded to requests for comment, and Jennifer Mondesire was unable to be reached.
CNN Justice had this report on the Gosnell case. (Mike Frisch)
The New York Commission on Judicial Conduct has censured a town court justice who imposed sentences in excess of the legal limit in 791 matters.
Respondent testified that he was "shocked" when he learned of the sentencing errors. He itnposed the fines and surcharges from melnory instead of relying on the resources available to him. He acknowledged that "too many mistakes" were made and attributed his errors to "oversight," "mental lapse," "not paying attention," "mis-memoriz[ing] the law," "being overloaded" and "judicial error." He believed that he devoted sufficient time to his judicial duties (about 20 hours a week), but testified that even if he had worked longer hours, "I probably still would have made some mistakes"; he stated, "It's impossible not to make a mistake." He noted that for several months during this 29-month period, he was also doing the work of his co-judge who was unavailable.
The commission also rejected the contention that the fault lay with staff
While respondent attributes many of these unlawful dispositions to the unauthorized actions of his staff, as a judge he bears full responsibility for his clerks' conduct. This is especially so where, as the referee found, the record shows that during this period respondent did "little to nothing" to supervise his clerks, such as reviewing fine notices before they were sent or providing internal controls or written policies or procedures relating to the processing of cases (Report, p 5). Indeed, not until June 2013 three years after being served with formal charges addressing the sentencing errors he attributed to his clerks did respondent prepare a written "Policy Statement" for his staff, describing the court's procedures for handling traffic cases and making it clear that the judge imposes all fines. In view of his ethical obligation to ensure that those subject to his direction and control follow the law and "adhere to the standards of fidelity and diligence that apply to the judge" (Rules, §100.3[C]), respondent is responsible for the sentences imposed by his court staff.
The commission also rejected the contentions that the defendants had an appellate remedy for the excessive sentences and that, in order to discipline him, his motives must have been "vile, improper or impure." (Mike Frisch)
Thursday, August 7, 2014
The Pennsylvania Supreme Court has disbarred by consent an attorney convicted of money laundering and other federal offenses.
The ABA Journal had the story of the criminal matter
When attorney Mikel D. Jones, obtained a multimillion-dollar credit line from a New York venture capital firm in 2006, he agreed to use the money on legitimate law firm expenses.
But instead Jones, 56, and his wife, Dona Nichols Jones, 54, paid off personal credit card debt and purchased tickets to Philadelphia 76ers basketball games. Federal prosecutors say they used fraudulent invoices from a company they controlled and another business to document, falsely, that goods and services had been provided to the Philadelphia law office Jones owned and operated when they had not, according to the Philadelphia Business Journal and the Philadelphia Tribune.
They also were accused of laundering around $160,000 by putting it in Florida bank accounts for Dona Jones and another relative, and then used that money to repay funds Mikel Jones had withdrawn from his law firm's trust account, the Inquirer article says. The couple reportedly got around $350,000 from the line in 2008 and 2009.
Jones, who was a longtime former aide to U.S. Rep. Alcee Hastings, D-Fla., and was running the Philadelphia personal injury law practice at the same time he was working for Hastings, was convicted in November, along with his wife, of federal crimes related to the couple's use of the law firm line of credit, according to the Pulp blog of the Broward-Palm Beach New Times.
He lost his job with Hastings when he was convicted by a federal jury in Philadelphia and his Florida law license was suspended temporarily last week by the state supreme court, pending further action. Hastings suspended Mikel Jones from his job when federal charges were filed earlier in 2011, notes a Sunshine State News blog post.
His law license is listed as active on a Pennsylvania Supreme Court website.
On Monday, Mikel Jones was sentenced to a 42-month prison term by a federal judge in Philadelphia, and Dona Nichols Jones, who helped in the law firm's operations, got one day, as a Philadelphia Inquirer article details.
The disbarment is effective asofthedate ofthe attorney's 2012interim suspension. (Mike Frisch)
Wednesday, August 6, 2014
A former magistrate has been publicly reprimanded by the South Carolina Supreme Court.
The magistrate was the subject of criminal charges in two matters, both of which involved providing money and other benefits including his official actions in exchange for "sexual contact."
One of the relationships extended over a period of 13 years; the other for a decade.
The magistrate pleaded guilty to one count of Misconduct in Office and was sentenced to a year in jail with all but 90 days stayed.
The court noted that the reprimand was the most severe sanction it could impose on a former magistrate. (Mike Frisch)
The Michigan Attorney Discipline Board has affirmed a panel's one-year suspension of an attorney convicted of felony possession of an unregistered machine gun.
The Grievance Administrator had sought disbarment.
ABC12.com had a story about the criminal case
The family of a murdered Mid-Michigan woman is speaking out after a shocking court confession this week.
Former attorney Michael Hoy admitted he helped bury their loved one's body.
Hoy didn't come clean on his own. He was in federal court for sentencing on a gun charge.
As ABC12 reported Tuesday, the judge brought up Katie Cook's 2005 murder. There was mention of it, and Hoy's involvement, in his pre-sentencing report.
What didn't come out in court was how Hoy came to be implicated. Federal court documents detail that information.
Out of all the things that could have cracked Cook's murder case wide open, it came down to a state probation officer smelling marijuana during a home visit at Hoy's brother Gerald Hoy's place in Shiawassee County.
Federal court documents show police found a grow operation and guns - a number of them fully-automatic machine guns.
Published reports point to a federal search warrant in which Gerald, a convicted felon, said he got the illegal weapons from his brother Michael.
"When I was contacted by the feds about someone who possibly knew information, I've got that phone call a hundred times," said Mt. Morris Township Police Chief Scott McKenna.
But McKenna said that call about Cook's murder was different. Police focused on Michael and executed a search warrant at his Genesee County home last July. They found machine guns and materials needed to convert the weapons.
A 15 day dig uncovered Cook's remains, in a Gaines Township cornfield, almost exactly seven years after she went missing from Mt. Morris Township.
The state's case against Michael was eventually dropped while his federal case continued.
He pleaded guilty to one count of possession of an unregistered machinegun. He was sentenced, Tuesday, to one year in federal prison and three years probation.
Michael confessed, after nudging from the judge, that he helped a mentally ill acting friend bury a woman's body, scared that friend would hurt him if he didn't.
"Everybody's going to present a story that benefits them in some way," McKenna said. "There's tons of things that had to fall into place for us to find Katie's body. I don't care how they happened. I just care we got here and that her family has her today."
Michael's said he has a written agreement with Genesee County prosecutors to testify against that friend. The agreement includes a misdemeanor charge, according to what was said in federal court Tuesday.
McKenna confirmed there is an agreement in place, but said he is unsure of the exact details.
Michael's brother Gerald is scheduled to be sentenced in federal court next month.
While Cook's family finds some relief in Michael taking some responsibility, her sister says they don't believe the man suspected in her murder was mentally ill and they don't believe Michael was scared of him.
"We can not wait for all of this to be over. He's just one small step in this. We're waiting to get the big fish," said Jenni Cook.
The suspect, Cook's boyfriend at the time, remains in jail in Missouri charged in a 2010 Christmas Eve attack on his wife.
Marie Hunault says she is that victim and is in the process of divorcing Joseph Hunault.
Police and prosecutors have not publicly named him as the suspect.
"We were driving home Christmas Eve to see family," Marie said Wednesday.
Marie said she and Joseph, who'd been married one month, were arguing, things got physical and then very violent.
"He stabbed me right here," she said pointing to her neck.
Marie said Joseph ditched her, bleeding and nearly dead, on the side of the road, but returned.
ABC12 asked her if she thought he was coming back to kill her. "Oh yeah," she said. "To finish it."
Police arrived, Joseph was arrested and charged.
"If he's found guilty, it's 10 years to life," Marie said.
Marie said she did not know Cook, but confirms a connection between Cook and Joseph.
"He'd bring her name up," she said.
Marie said Joseph would threaten her and hint it wouldn't be the first time he had hurt a woman.
Marie said she also knew Michael well, adding he was through law school at the time sometime in 2006 when she first started dating Joseph.
Hoy was a close friend of Joseph's and frequently at their home, she said.
Here, the board found that the record was "devoid" of evidence of a sinister intent. (Mike Frisch)
A Tennessee attorney has received a stayed one-year suspension and probation for misconduct in a criminal appeal and a divorce matter.
The attorney failed to perfect an appeal that he had been retained to pursue.
In the divorce matter, the attorney was retained by the wife and "prepared the appropriate paperwork to file the divorce" but
...prior to filing the divorce, [he] received information from the husband that the parties had reconciled. [He] did not confirm the reconciliation with his client or inform her that the divorce complaint was not filed. The wife inquired of [his] office staff concerning the progress of the divorce, and the staff led her to believe the divorce was proceeding.
The wife discovered after approximately a year that the complaint had not been filed. The attorney secured the divorce when the wife informed him that there had been no reconciliation. (Mike Frisch)
The California State Bar Court Review Department has recommended a partially stayed two-year suspension and probation for misconduct in two matters.
The recommendation would require an actual suspension of six months.
From 1998 to 2008, Cisneros was a partner at the law firm of Graham, Vaage & Cisneros (Graham Vaage). He represented SMS Financial, LLC (SMS) in numerous client matters. In early 2008, he filed a complaint on behalf of SMS that included causes of action for judicial foreclosure of a deed of trust and breach of continuing guaranty. Cisneros sought a writ of attachment, and a hearing was scheduled for June 11, 2008, after several continuances. Two days before the hearing, Cisneros called Jonathan Hoffer, an SMS partner, claiming he had traveled six hours roundtrip to attend the hearing. He advised Hoffer that the writ application had been taken under submission. None of this was true, which Hoffer discovered when he contacted the court. Hoffer confronted Cisneros by telephone. Cisneros apologized for making the misrepresentation. Thereafter, SMS terminated Cisneros, who fully cooperated in returning SMS’s 90 to 100 client files. At trial, Cisneros testified he felt "horrible" about the situation, but did not explain why he had lied to his client.
In an unrelated matter, the review department found he engaged in what it called misappropriation through gross negligence.
There were a number of mitigating factors, including cooperation, remorse and favorable character testimony. (Mike Frisch)
Tuesday, August 5, 2014
I have always made fun of Texas cities that start with THE, as in The Colony and The Woodlands. But it never occurred to me the worst named one has AND in it, sort of like Truth or Consequences, NM. I encountered it at 2:00 a.m. on a roadtrip along Hwy 105, population 1,098. (105 is, btw, a 2-lane highway with a 75 mph speed limit. Jousting! Just insane.) How do they avoid kids getting suspended at school by mentioning gun-related (or knife-related) violence? [Alan Childress]
Collection of papers on "Jews and the Law" and in the legal profession: now published as a book and ebook
Collecting essays presented in a conference held at Cardozo Law School a few years ago, editors Ari Mermelstein, Victoria Saker Woeste, Ethan Zadoff and Marc Galanter have published a new book on Jews and Judaism in the legal profession and law. Called Jews and the Law, it is a book of legal history and current insights about the profession, law firms, networks, assimilation, and antisemitism. Here is a story about it by Dan Ernst on Legal History Blog. It was published through my Quid Pro Books publishing project, and so it no longer sits as a collection of unpublished papers from a conference but is now -- I am proud to say -- a resource that can be read by anyone or recommended to a library to acquire. Its Amazon page for the paperback is here, and it can also be bought at many other places and in ebook sites such as Apple, Play, Kindle and Nook. [Alan Childress]
The Wyoming Supreme Court imposed a suspension of three years for an attorney's misconduct in seven matters.
The court rejected both the disbarment recommendation of disciplinary counsel and the attorney's call for a lesser sanction
This Court does not agree with Ms. Richard’s characterization of her conduct as negligent. In case after case, she has demonstrated an intentional, willful refusal to respond appropriately to discovery requests, comply with court orders and follow the rules of procedure. She has also repeatedly demonstrated a total lack of concern for honest communication with opposing counsel and the courts. Looking at each case individually, without considering the other six cases, Ms. Richard’s conduct might be seen as an isolated event, resembling behavior members of the bar have seen from some other lawyer in some other case. Taken together, however, Ms. Richard’s conduct in the seven cases clearly shows not an isolated event but a consistent pattern of misbehavior affecting many, many people. Eight judges sitting in seven districts and lawyers in five different law firms have struggled with Ms. Richard’s obstructionist tactics. The clients of those five law firms as well as Ms. Richard’s clients have incurred unnecessary expense and been subjected to needlessly prolonged litigation because of her misconduct. The video-tape deposition in Miller clearly shows the witness in that case was also a victim of Ms. Richard’s unacceptable behavior.
The court found the misconduct caused the attorney to come "perilously close" to disbarment. (Mike Frisch)
The deadline now less than a month away, so it is a good time to remind people of this important opportunity in legal scholarship:
Submissions and nominations of articles are now being accepted for the fifth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred’s memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2014. The prize will be awarded at the 2015 AALS Annual Meeting in Washington, DC. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: email firstname.lastname@example.org. The deadline for submissions and nominations is September 1, 2014.
Our thanks to Sam Levine for the notice. [Alan Childress]
A majority of the Wisconsin Supreme Court has ordered a public reprimand of an attorney for comments made in connection with the attorney's candidacy for the Supreme Court.
The matter involved a series of complaints filed on behalf of a prosecutor against the attorney.
The two had a contentious relationship that led to 30-day suspensions for both.
We must take care to limit the scope and application of the Attorney's Oath so that it does not reach a substantial amount of constitutionally protected conduct or significantly inhibit an attorney's exercise of the right of free speech. We are reluctant to deem that statements made during a judicial election violate the Attorney's Oath. The Attorney's Oath should not be invoked to stifle legitimate critique of judicial administration or process.
However, Attorney Sommers' sweeping assertion that "judges are permitted to get away with falsifying the record" reflects outspoken contempt for the entire court system. He has declined to participate in this proceeding. The facts underlying the referee's conclusion that Attorney Sommers violated that portion of the Attorney's Oath requiring an attorney licensed by this court to maintain the respect due to courts and judicial officers are a matter of record and are not disputed. We emphasize that this determination is made in the context of a default proceeding and our holding is limited to the facts of this case. In sum, the referee's findings of fact on this point have not been shown to be clearly erroneous, and we adopt them as well as his conclusion of law.
The court did not adopt the referee's sanction proposal of a 60-day suspension.
Chief Justice Abrahamson would impose no discipline, noting that the attorney was suspended for his dealings with the prosecutor. Justice Crooks would adopt the referee's recommendation. (Mike Frisch)
Mike Frisch has helpfully cataloged many instances on this site of state bars or their disciplinary authorities making it easier on people to see reports and read them. Or he has nicely ragged on ones that make it hard for no reason. Recently I have had more and more trouble reading the hearing committee reports and disciplinary board opinions from the website of the Louisiana Attorney Disciplinary Board, ladb.org. I don't think it's intentional on their part (they have been a really good souce of information in the past and don't seem to try to hide disciplinary information), and they may open easily on many attorneys' computers, but they don't open easily on mine. They used to download in a PDF format. Now they seem to default to opening on the website's own page instead of getting downloaded (and on mine that just freezes my computer). And if you do download it, it saves in a format ending in .aspx. At least on my computer, that opens as garbled data.
I searched on the internet and found that .aspx is an executable file format that one should be wary to open. I guess opening it within the board's website "viewer" pane is not a problem (if you can get it do that), but once it is downloaded it does look scary to me. But I also read that one can change the file extension from .aspx to .pdf and that new file can then be opened as a regular PDF. I did that and it worked. That of course would be the same procedure one would use to easily read a downloaded report from this site linked from the Louisiana site, since it would likely be "saved as" to the .aspx extension, assuming that just clicking on the link from our blurb does not work.
An appeal to LADB: could you just go back to having the files saved as PDFs? I think this is probably a case where the tech consultants made the site needlessly complicated and assume everyone has on their computers the same opening-up programs as they do. Well, everyone does have a PDF reader. And no one is too scared of just opening up a non-executable simple PDF.
One internet sites tells me: "If you've downloaded an ASPX file and expected it to contain information (like a document or other saved data), it's likely that something is wrong with the website and instead of generating usable information, it provided this server-side file instead." That is exactly what happens with me: when I download the file offered at ladb.org, it arrives as an .aspx file and not "usable information" until I change it to a PDF. Please, ladb, fix the "something is wrong" part?
UPDATE: The site works fine in IE and Chrome browsers. I mean, fine in the sense that you can download a PDF after viewing it in their viewing pane. Personally, I prefer not to have a site open up docs and the like for viewing just by clicking on the Respondent's name. But I recognize that there's no technological error in having it do that. I just like to be asked first whether it does something on my computer. But I can't say LADB is doing anything awful by going ahead and executing a script in a viewing pane by my clicking on the name of a Respondent. It just presents it as a view to the reader. I am not a big fan of that way of doing that, or not asking first whether one wants to have something run on my computer. So I admit I like PDFs as the main presentation. But this way certainly does allow PDFs to be downloaded in these two browsers, at least, and also in some people's Firefox (though not mine).
A Cleveland attorney has been suspended from practice pending further proceedings by the Ohio Supreme Court.
The interim suspension was based on a federal felony criminal tax conviction.
The United States Attorney's Office for the Northern District of Ohio reported on the allegations
Attorney Ronald L. Rosenfield was charged in an information with failing to report and pay approximately $196,832 of employment taxes announced United States Attorney Steven M. Dettelbach. The case is assigned to United States District Judge John R. Adams in Akron. The unpaid taxes consisted of income taxes and FICA taxes withheld from the wages paid by his law firm, Ronald Rosenfield Co., L.P.A., including his own wages, for the eighteen consecutive calendar quarters from December 2006 through March 2011, according to the information. The information also alleges that Rosenfield failed to report and pay an unspecified amount of additional employment taxes for all of the prior quarters dating back to June 2001.
At all relevant times, Rosenfield retained a national payroll firm, which prepared the law firm’s required employment tax returns for him to file with the Internal Revenue Service. Rosenfield, however, did not file any of those returns and made no payments of the taxes reported on those returns, according to the information. Moreover, the information alleges that Rosenfield claimed credits on his personal income tax returns for his unpaid income tax withholdings.
Monday, August 4, 2014
A rather unusual set of ethics charges was recently filed by the Illinois Administrator.
The complaint alleges that the attorney instituted frivolous litigation in connection with the Malaysian Airlines Flight 370 matter
As of the date this matter was referred to the Inquiry Board, no trace of the aircraft had been found, and no evidence had been recovered which indicated that it had crashed or had experienced any mechanical malfunction.
On March 25, 2014, Respondent, or someone acting at her direction, using the name "Monica R. Kelly," prepared and signed a Verified Petition for Discovery, pursuant to Illinois Supreme Court Rule 224, against the Boeing Company and Malaysian Airlines, and filed it in the Circuit Court of Cook County. The clerk of the Court docketed the matter and assigned it case number 2014L003408.
Under Illinois Supreme Court Rule 137, by signing the petition described...above, Respondent certified that she had read the petition and that, to the best of her knowledge, information or belief formed after reasonable inquiry, it was well grounded in fact and was warranted by existing law.
In the petition..Respondent alleged that she represented the estate of Firman Chandra Siregar ("Siregar"), that Siregar had been a passenger on Malaysian Airlines Flight 370, that the aircraft had crashed, that Siregar had been killed.
Respondent’s allegations...had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence had been discovered regarding the location or disposition of Malaysian Airlines Flight 370.
...Respondent alleged that Siregar’s estate reasonably believed that Malaysian Airlines Flight 370 had crashed as the result of negligent design, manufacture, repair and maintenance of the aircraft by the Boeing Company.
Respondent’s allegations...had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence existed that Malaysian Airlines Flight 370 had experienced a mechanical malfunction, and that the evidence in fact showed that the aircraft had changed direction and had continued to fly for several hundred miles after its last contact with air traffic controllers.
In March 2014, at the time Respondent filed the petition described above, Illinois Supreme Court Rule 224 authorized the filing of such a petition "for the sole purpose of ascertaining the identity of one who may be responsible in damages," and Illinois courts had long held that a Rule 224 petition was not appropriate if the identity of any potentially-responsible defendant was known to the petitioner. Guertin v. Guertin, 204 Ill.App.3d 527 (3rd District, 1990); Roth v. St. Elizabeth’s Hospital, 241 Ill.App.3d 407 (5th District, 1993)
Respondent’s petition in case number 2014L003408 was frivolous, because Supreme Court Rule 224 did not permit the filing of such a petition where the "identity of one who may be responsible in damages" was known to the petitioner, and Respondent knew that the missing aircraft had been manufactured by the Boeing Company and that it was being operated by Malaysian Airlines when it disappeared. Respondent therefore had no need to discover the identity of a responsible party, and no basis for filing a Rule 224 petition.
On March 25, 2014, Respondent conducted news media briefings in Kuala Lumpur to announce the filing of her action against the Boeing Company and Malaysian Airlines and to claim that those entities were responsible for the disappearance of Flight 370.
On two occasions in 2013, the Hon. Kathy M. Flanagan, a Judge of the Circuit Court, had dismissed Rule 224 petitions filed by Respondent against aircraft manufacturers, on the basis that such petitions were not authorized by the rule, when the identity of a potential defendant was known to the petitioner.
On March 28, 2014, the Judge Flanagan entered, sua sponte, a memorandum opinion and order dismissing Respondent’s petition in case number 2014L003408, in which the judge found that the petition exceeded the scope of Supreme Court Rule 224, that it was baseless, and that Respondent knew that the filing of a Rule 224 Petition was inappropriate where the identity of a potential defendant was known.
Earlier coverage from the Chicago Tribune
Aviation litigation experts contacted by the Tribune agreed that while taking court action to preserve evidence in advance of a lawsuit can be an important step, filing such litigation before a plane had even been found seemed to be jumping the gun.
"It seems to be a legal gray area when we are operating without the plane," said Bruce Ottley, a professor and co-director of DePaul University's International Aviation Law Institute. "It certainly gets them attention to be first. ... But when you file it before we even have verified that the passengers are dead, it may be a little bit early."
It wouldn't be the first time the tactics of Ribbeck Law Chartered or its associates had drawn complaints. Last year, after the Asiana crash, the National Transportation Safety Board recommended that Illinois regulators investigate the firm over allegations its attorneys violated U.S. law barring uninvited solicitation of air crash victims in the first 45 days after a crash.
A criminal defense attorney who offered a witness $300 (and later $500) to not show up for a trial committed an offense worthy of disbarment, according to a recent report of a Louisiana Hearing Committee.
The criminal case involved a burglary where a gun was taken from a "raised double-shotgun house."
The hearing committee found that he came to a restaurant where the key witness was employed and offered him payment to drop the charges. The offer was increased on a second visit.
The hearing committee rejected the contention that the offer was intended as restitution rather than a bribe. They also found that the attorney's hearing testimony was false.
The witness told the prosecutor, who filed the bar complaint.
The accused attorney had called as a witness a lawyer who teaches trial practice at Tulane Law School. His own witness "testified that he never would offer money to a victim to drop a case; that would be unethical." (Mike Frisch)
The North Carolina State Bar has filed ethics charges against a Johnston County Assistant District Attorney.
The attorney is alleged to have failed to make reasonably diligent inquiry into the availability of a crime lab report in a rape case. The charges were eventually dismissed when the lab report concluded that the sperm fraction from vaginal swabs did not match with the defendant.
Cocaine charges against that defendant were also dropped because he "had served more time awaiting trial than he could receive for conviction on the cocaine possession charge."
The attorney also is charghed with a false statement concerning the status of the DNA report.
The answer to the charges seeks dismissal. (Mike Frisch)
Friday, August 1, 2014
The Ohio Supreme Court has denied the reinstatement petition of an attorney suspended for a federal false tax filing conviction.
The Plain Dealer reported on the conviction
Prominent Cleveland attorney Leslie W. Jacobs was sentenced Tuesday in U.S. District Court in Youngstown to one year and one day in federal prison for one count of filing false income taxes from 2004-2007.
Jacobs, a Harvard Law School graduate and former president of the Ohio State Bar Association, was also given an additional four months, less one day, of home confinement and ordered to pay a $10,000 fine...
The court's order states that the petitioner failed to comply with the requirements imposed by his suspension. (Mike Frisch)
An Illinois Hearing Board has recommended a suspension of nine months of an attorney who used a power of attorney to write himself checks from the account of an elderly woman.
Respondent, who had power of attorney for the property of his client, Eleanor Smith, acknowledged he used funds from Eleanor Smith's bank accounts but asserted he cannot be found to have committed misconduct because there was no attorney-client relationship between him and Eleanor Smith. He further asserted he was entitled to the funds as his fees. The Hearing Board rejected both of these assertions.
The committee concluded
Respondent admittedly met with Eleanor and her family, obtained information from them, accepted fees from Eleanor and advised Eleanor regarding the best method to protect her assets from further dissipation by her husband. Respondent also recommended that Eleanor sign the Agreement and give Respondent power of attorney for property. The Illinois Supreme Court has held that all of these activities constitute the practice of law...
Respondent admits he took money from Eleanor's accounts but claims he was entitled to it as fees. We find no evidence to support this assertion. Respondent was paid in full for the invoices he prepared for Eleanor. Even if he performed legal services after the last invoice date of October 2010, he has no documentation upon which to ascertain the amount of fees purportedly due to him. He did not produce work product or time records after October 2010, nor did he testify as to any work he performed for Eleanor after October 2010. Thus, there was no reasonable basis for the purported fees Respondent paid himself. At the time of hearing, more than two years after his representation of Eleanor ended, Respondent had yet to determine the amount of fees he claims he earned. This reinforces our determination that he has no basis for asserting he was entitled to the funds as fees. By converting the funds, Respondent failed to keep property in his possession in connection with a representation separate from his own property, in violation of Rule 1.15(a).
As to sanction
Respondent's misuse of his client's funds constitutes serious misconduct that warrants a period of suspension. There are several factors in aggravation. Respondent abused his position of trust for his own benefit at a time when he was in a precarious financial position and his elderly client was vulnerable and in poor health. We also consider the harm Respondent caused by his misconduct. He caused financial harm to Eleanor by dissipating the assets he was hired to preserve. He also caused Eleanor's family, who was dealing with Eleanor's failing health, to experience anxiety and stress when they learned of her unpaid bills. Additionally, Respondent's misconduct was not an isolated incident but a pattern of misconduct over a period of several months.
We must note Respondent was less than cooperative with discovery in this matter. He did not identify witnesses with knowledge of the subject matter of the proceeding, as required by Commission Rule 253, nor did he respond to the Administrator's Request to Produce Documents. An attorney is obligated to cooperate with the Illinois Supreme Court and its agency, the Attorney Registration and Disciplinary Commission, in connection with a disciplinary proceeding.
The Hearing Committee also found that the attorney's conduct was dishonest.
In a recent comment, my colleague Alan Childress noted that we ethics professors teach our students that misuse of entrusted funds gets an attorney disbarred.
If that ever was true, it surely no longer is.
Here, the Administrator sought a suspension of twelve to eighteen months. The attorney, based on his defenses, sought dismissal of the charges. (Mike Frisch)
Thursday, July 31, 2014
The Washington State Supreme Court sitting en banc has held in a legal malpractice matter arising from a joint venture agreement to operate a debt collection business
In this opinion, we consider whether the trial court erred in applying the doctrine of equitable indemnification (also known as the "ABC Rule") to hold that the legal malpractice plaintiffs here suffered no compensable damages as a matter of law and that summary judgment dismissal was appropriate.
We adhere to established precedent. Where the only damages claimed by a legal malpractice plaintiff are attorney fees incurred in a separate litigation and the only legal basis on which plaintiff asserts those fees are compensable is the ABC Rule, then the defendant is entitled to summary judgment dismissal if the ABC Rule does not apply to the undisputed facts as a matter of law. That was the situation presented here. We decline the invitation to reexamine the ABC Rule in the legal malpractice context because that issue wasnot raised below. We affirm.
In a related ruling, the court held that the attorney who had created an entity that provided legal services and financial contributions to the client violated the former version of Rule 1.8(a)(business transactions with client).
As a result, the agreement was void for public policy reasons.
The court majority opined at length about the application of the Rules of Professional Conduct to civil litigation, concluding
We do not purport to set out any all-encompassing rule for how violation of any RPC in connection with a contract might affect that contract's enforceability. We simply reaffirm that a contract entered in violation of former RPC 1.8(a) may not be enforced unless it can be shown that notwithstanding the violation, the resulting contract does not violate the underlying public policy of the rule.
Chief Justice Madsen dissented and would not use the rules as a basis for civil liability.
Justice McCloud concurred but disassociated himself with the majority's expansive discussion of the intersection between the rules and civil claims predicated on an ethics violation.