Wednesday, June 10, 2015

Courtesy, Respect And New Jersey

From the web page of the New Jersey Supreme Court

The Supreme Court invites comment on the report of its Special Committee on Attorney Ethics and AdmissionsClick here to read the notice to the bar and click here to read the report. The comment period closes August 1.

The court's notice states that a separate committee will make recommendations regarding the ethics of metadata in Rule 4.4(b).

The Special Committee recommends a new Rule 8.4(h) that will require New Jersey lawyers to "treat with courtesy and respect all persons involved in the legal process."

(Mike Frisch)

June 10, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Oglala Sioux Sanction Draws Reciprocal Discipline

A somewhat unusual reciprocal discipline order from the North Dakota Supreme Court

The record reflects that the Supreme Court of the Oglala Sioux Nation filed an order publicly reprimanding Delorme for making a false statement to a court regarding a former judge, impugning his judicial integrity and the integrity of the Oglala Sioux courts...

On January 20, 2015, the Disciplinary Board filed its recommendation that Delorme be reprimanded. Delorme was granted a stay of these proceedings until May 4, 2015, or until disposition of Delorme's request for reconsideration pending before the Supreme Court of the Oglala Sioux Nation, whichever was sooner. On May 6, 2015, Delorme filed a request that reciprocal discipline not be entered.

The court imposed a public reprimand.

The court's rule is linked here and provides in part

Upon being disciplined in another jurisdiction, a lawyer admitted to practice in North Dakota shall promptly inform counsel of such action. Upon notification that a lawyer within the jurisdiction of the court has been disciplined in another jurisdiction, counsel shall obtain a certified copy of the disciplinary order and file it with the board.

In the District of Columbia, the sanction must be imposed by a state or  "disciplining court" in order to invoke reciprocal discipline.

That term is defined much more narrowly than the "another jurisdiction" language of the North Dakota rule

Section 11. Reciprocal Discipline

     (a) Definition. As used in this section,

(1) “state” shall mean any state, territory, or possession of the United States.
(2) “disciplining court” shall mean (a) any court of the United States as defined in Title 28, Section 451 of the United States Code; (b) the highest court of any state; and (c) any other agency, commission, or tribunal, however denominated, that is authorized to impose discipline effective throughout a state.

One of the most interesting interpretations of the D.C. provision involved a reciprocal sanction imposed based on disbarment in  the Trust Territory of Palau. (Mike Frisch)

June 10, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Was Attempt To Obtain Civil Settlement Unethical?

A suspension of at least 30 days was imposed by the Minnesota Supreme Court of an attorney who sought a settlement for a victim/witness in a criminal case.

The complainant in the criminal case was on probation. The defendant was a probation officer although he did not supervise the complainant.

He was accused of third degree criminal sexual conduct and misconduct as a public employee.

The court

We conclude there is evidence in the record to support the referee’s findings that Kennedy offered to have B.W. not testify against the defendant in the criminal case if he received a payment from the defendant. There are, of course, the three letters Kennedy wrote, the contents of which are not disputed. The first letter demands a settlement of B.W.’s civil claim for $300,000 and notes that a “dismissal, where she has a right to expungement” is “[t]he only good resolution for [the defendant].” The second letter makes an express connection between a settlement and the dismissal of the defendant’s criminal charges. It states that a settlement “could result in dismissal of the criminal complaint against [the defendant], with a right of expungement.” Having received no response to either of these letters, Kennedy sent a third letter in which he indicates for the first time what B.W. would do if his civil claim settled. The third letter states that if a settlement is reached, B.W. “may decide to ask the prosecutor to dismiss and he may decide to not testify against [the defendant]. In that event, she would not be convicted . . . .” It was not clearly erroneous for the referee to conclude that in these letters, B.W. is offering to not testify against the defendant in her criminal case in exchange for a cash payment as settlement of B.W.’s civil claim.

Justice Lillehaug dissented

Today the court disciplines an attorney for assisting his client, the alleged victim of a crime by a public employee, to negotiate a civil settlement during the pendency of a criminal case. I respectfully disagree with the majority’s conclusion that, by assisting his client, respondent Duane Kennedy engaged in conduct prejudicial to the administration of justice under Minn. R. Prof. Conduct 8.4(a) and 8.4(d). The referee’s theory of unethical behavior, advanced by the Director, is without sufficient factual support. Perhaps realizing this, the majority constructs and applies its own theory, but that theory is similarly without sufficient support.

Justice Anderson joined the dissent. (Mike Frisch)

June 10, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, June 9, 2015

No Ghosts In Rhode Island

The Rhode Island Supreme Court has decided that ghostwritten pleadings are improper but nonetheless vacated sanctions against three attorneys who had engaged in the practice

We have carefully considered the various comments of amici and, pursuant to our general supervisory authority, we declare the policy in our courts to be as follows: An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney’s representation is reasonable and the litigant gives informed consent. See Rule 1.2(c). Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship. An attorney, however, shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation. The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance.

Unless and until we are persuaded otherwise, we believe that full disclosure of the attorney’s involvement, albeit limited, is the better practice.

The court's web page summary

This set of appeals emanated from the activities of three attorneys who authored pleadings, but did not disclose their respective identities, on behalf of pro se defendants in three separate debt collection cases, a practice colloquially known as ghostwriting.  These appeals presented the Supreme Court with two issues of first impression: (1) whether Rule 11 of the Superior Court Rules of Civil Procedure applies to an attorney who neither signed a pleading nor entered his or her appearance in the case; and (2) whether the anonymous preparation of pleadings for self-represented litigants is a permissible practice pursuant to the Supreme Court Rules of Professional Conduct.
The hearing justices imposed sanctions on each attorney for drafting, but not signing, answers and objections to dispositive motions on behalf of the three pro se defendants.  All three attorneys argued that Rule 11 did not apply to their respective situations because none had either signed the pleadings or entered an appearance.  The Supreme Court held that the conduct of the three attorneys did not violate Rule 11 and, accordingly, vacated the sanctions imposed by the three Superior Court orders.
The attorneys also argued that ghostwriting was a permissible form of limited-scope representation pursuant to Article V, Rule 1.2(c) of the Supreme Court Rules of Professional Conduct.  The Supreme Court declared the policy in our courts to be as follows: An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney’s representation is reasonable and the litigant gave informed consent.  Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship.  An attorney, however, shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation.  The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance.
Through an order, the Supreme Court invited comment from members of the bench, bar, and public on the subject of limited scope representation in general and the practice of ghostwriting in particular.

In my view, the benefits that ghostwriting pleadings provide in terms of access to justice outweighs the harms. (Mike Frisch)

June 9, 2015 in Professional Responsibility, The Practice | Permalink | Comments (0)

Does Rule 4.2 Require Attorney To Confirm Termination Of Prior Counsel?

The Indiana Supreme Court has imposed a public reprimand of an attorney on these stipulated facts

Following E.G.’s death, “Attorney” was retained by F.G., the personal representative of E.G.’s estate, to handle the supervised estate. Believing E.G. might still be owed wages, Attorney later filed suit on the estate’s behalf against E.G.’s former employer to recover proof of E.G.’s wages or deferment. Respondent appeared in the wage suit on the former employer’s behalf.

Soon thereafter, F.G. began demanding dismissal of the wage suit, and Attorney gave F.G. ten days’ notice that she intended to withdraw her appearance on behalf of the estate. Before Attorney withdrew, F.G. approached Respondent and engaged in discussions about the supervised estate and the wage suit. F.G. told Respondent that Attorney was no longer representing him, but Respondent failed to independently confirm this. After Attorney withdrew, Respondent appeared on the estate’s behalf in the supervised estate. At this point, Respondent was representing both the estate and E.G.’s former employer, who were direct adversaries in the same related litigation.

The attorney stipulated to violations of Rules 1.7 (concurrent conflict of interest) and 4.2 (unauthorized communication with represented person).

While this is a stipulated disposition and presumably of limited precedential value, I respectfully question the Rule 4.2 violation where the person says they have dismissed counsel.

Not sure where the "duty to confirm" with presumably discharged counsel comes from although I always advise attorneys in this position that confirmation is a good idea.

Any thoughts readers? (Mike Frisch)

June 9, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Silence Of The Lamb

The Wisconsin Supreme Court revoked the license of an attorney who had stipulated to misconduct and then sought to avoid the stipulations.

Attorney William R. Lamb has appealed from the report of the referee, Attorney James R. Erickson, which found, based on Attorney Lamb's stipulation and no contest plea, that Attorney Lamb had engaged in 75 counts of professional misconduct arising out of ten client representations, that his license to practice law in Wisconsin should be revoked, that he should be required to pay restitution in the total amount of $21,580, and that he should be required to pay the full costs of this disciplinary proceeding...

We reject Attorney Lamb's request that he be relieved of the stipulation he entered so that the matter can be remanded to the referee and Attorney Lamb can now present evidence to "correct the record."  We further conclude that the referee's factual findings support his conclusions of misconduct on the 75 counts alleged against Attorney Lamb.  Given Attorney Lamb's pervasive pattern of misconduct, including forging his client's name in order to convert the client's settlement funds, we determine that it is necessary to revoke Attorney Lamb's license to practice law in this state.

The court described in detail one of the ten client matters and rejected claims of mitigation

Although Attorney Lamb asserts that he was impaired by his alcoholism during the time that the OLR was conducting its investigation and presenting the results of that investigation to the PRC, he does not claim that his subsequent entry into the stipulation was unknowing or involuntary due to his alcoholism.  The time period for the initial investigatory stage of this matter ended, at the very latest, in February 2013 when the OLR filed its amended complaint, adding a number of client representations and alleged ethical violations.  Attorney Lamb, however, did not enter into the stipulation until November 2013.  He never expressly contends that he was impaired at that time, which is the relevant time period for determining whether he should be granted relief from the stipulation he entered.  In a motion Attorney Lamb filed with this court in May 2014, he asserted that he had sought treatment for his alcoholism in 2012.  Indeed, in an April 2014 email message to the referee, which the referee treated as an objection to the imposition of costs, Attorney Lamb specifically stated that he had been impaired by his alcoholism "until sometime later on in 2012."  Thus, according to Attorney Lamb's own admission, his impairment was no longer an impediment to responding to the charges in this matter after the latter part of 2012, a year before he entered into the stipulation.  There is simply no basis in the record to conclude that Attorney Lamb's earlier problems with alcohol dependency rendered his November 2013 decision to enter into the stipulation unknowing or involuntary.

He was admitted in 1989. (Mike Frisch)

June 9, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Dealing With Bar Complaints

Several years ago I posted an article on the ins-and-outs of dealing with a bar complaint over at Build A Solo Practice LLC.

Some of the basics remain unchanged

First, in any disciplinary complaint, the bar prosecutor is the key decision maker. If the prosecutor decides to bring charges, charges will likely be brought. If the bar prosecutor wants to admonish the lawyer, the lawyer will likely be admonished. If you get a complaint, you must deal with it. There is nothing more important that I can say. Failure to respond to a complaint is a free-standing ethical violation that is the easiest charge in the world to prove. Bar counsel will only get the most negative view of your ability to practice if you won't deal with them. If you need more time, call or write and request it. If you need help in responding, get it. Second, understand the disciplinary process in your jurisdiction. What sanctions may be imposed? How are addiction/depression issues dealt with? Who (court, disciplinary board, bar prosecutor) shapes policy? The rules that govern bar discipline procedures are available online virtually everywhere. If you have a complaint against you, understand the process and know what avenues for resolution of a complaint exist.

Seven rules for avoiding and resolving Bar complaints

1. Avoid problem clients. If the client has wildly unrealistic expectations, wants much justice than he or she can afford, or has had several prior lawyers all of whom are liars and cheats, it may be prudent not to get involved. If you decline the case, promptly confirm that fact in writing. Bar Counsel gets plenty of cases where the lawyer and putative client disagree on whether or not there is an agreement to represent. doubt may be resolved in the client's favor. Return any documents if you are not taking the cases

2. Provide competent service. There is no substitute for a sufficient degree of obsessive-complusive behavior toward deadlines, maintaining your calender and being able to document your time and attention to the client's matter. A well-kept file can serve you well if the bar comes calling

3. Communicate. Return calls. Send written updates. Care about the client and the matter. As many complaints arise from a bad bedside manner as a bad law practice. I'm convinced that there are plenty of marginally competent lawyers who never get complaints because their clients like them.

4. Don't encourage unreasonable expectations. This can be tough in practice as the matter evolves and may be unavoidable to some extent, but it is something to keep a close eye on throughout the representation

5. Honesty is the only policy. If there is bad news, deliver it. If it involves your conduct, don't conceal it from the client. The adage that it's the cover up not the misconduct that ruins a career is absolutely true in bar discipline. Don't make a minor problem a suspension-worthy offense. Abide by the rules that relate to honesty with tribunals, opposing parties and third parties

6. Other peoples money. The rules of escrow of entrusted funds are the most important to all lawyers who wish to maintain their license. Know the rules: are you obligated to escrow unearned fees? Escrow violations are considered the most serious violations throughout the country. Follow the rules and keep the required records or have a post-lawyer career plan.

7. If the client fires you (which is the client's right), don't react in anger. While you can protect your right to fees, you should return the file immediately and fully cooperate in the transition to new counsel. Many bar discipline cases have a genesis in a suit for unpaid fees, so be prepared for that if you sue the former client.

I'd welcome the thoughts of readers on the subject. (Mike Frisch)

June 9, 2015 in Bar Discipline & Process | Permalink | Comments (3)

Monday, June 8, 2015

No Standing To Sue The Inn

The Virginia Lawyers Weekly has stories (linked here and here)  on a lawsuit filed by an attorney that involves the Inn at Little Washington and sanctions sought against the attorney

A lawyer whose connection to the picturesque town of Washington consisted mainly of a post office box and his work at the county courthouse lacked standing to challenge the actions of the town council in a deal with the biggest business in town.

That was the judge’s ruling in a dispute that focused attention on connections between the town government and the owner of a tony bistro that brings well-heeled tourists to the tiny Rappahannock County community.

Nestled against the Blue Ridge Mountains, “Little Washington” looks more like a little Williamsburg, without the costumed characters. The top-rated Inn is famous for its fare.

The Inn’s owner and chef, Patrick O’Connell, is also a member of the town council.

Attorney David L. Konick thought the relationship between the town government and the Inn became little too cozy with a recent agreement between the two.

Konick filed suit to challenge what he called a “scheme” in which the Inn would get $20,000 and part of a dead-end street and the Inn would perform a “Town Square Beautification Project.” The town’s plan also involved an alleged “kickback” payment from a nearby church to the Inn, according to a judge’s summary of Konick’s allegations.

Alleging that O’Connell – the councilman and Inn owner – would benefit from the plan, Konick claimed violations of the state Conflict of Interest Act and the Public Procurement Act.

O’Connell had recused himself from the town council vote on the proposal, according to pleadings in the case.

The town, the Inn and O’Connell asked Judge Jeffrey W. Parker to throw out Konick’s claims because he lacked standing. He did not live or pay taxes in the town of Washington, they said.

Parker agreed Konick had no particular interest in town affairs.

“There is nothing contained in the pleading which would bestow any type of justifiable interest in the Plaintiff,” Parker wrote in Konick v. Town of Washington (VLW 015-8-054).

The standing issue was “fatal to all Counts,” Parker said.

Parker went on to assess Konick’s claims, however. He found nothing “other than innuendo” to support a claimed violation of the doctrine of church-state separation.

“Pleadings must set forth facts, not suspicious allegations in quotation marks,” the judge said.

Nevertheless, Parker said he would have allowed claims of technical code violations by the town to proceed if Konick had standing. While the judge gave Konick 21 days to file an amended pleading, he said it was unclear how Konick would be capable of “remedying the defects.”

In a May 21 email, Konick said he had not yet decided whether and how to move forward.

Parker did not address the Inn’s motion for sanctions that claimed Konick’s suit was a vehicle to attack O’Connell as a homosexual and vilify the wealthy outsiders who patroned his business.

“The instant suit is a culmination of years of resentment and hatred expressed by Complainant against Respondents,” wrote Alexandria attorney David G. Fiske on behalf of O’Connell and the Inn. Their April 7 sanctions motion included pages of vitriolic public comments attributed to Konick.

RappNews quoted the Inn's attorney in characterizing the litigation as a "homophobic vendetta." (Mike Frisch)

June 8, 2015 | Permalink | Comments (0)

The Life Monastic

The Connecticut Appellate Court affirmed the imposition of punitive damages in a case where the plaintiff had given donations for chapel construction under the false belief that the defendant was a Benedictine monastery.

The Diocese of Norwich had issued a pious union decree in 1979 but the decree did not lead to recognition by the church. 

Pursuant to that decree, the union consisted of ‘‘Sister Mary Peter [also known as Dorothy Jordan], professed Sister of the Benedictine Community in Stillwater, Massachusetts and one secular Oblate, Eleanor J. Tremko, by name.’

The plaintiff's story

After her initial visit to the defendant in August, 2008, the plaintiff quickly became involved in all of its activities...She participated in bible study groups and various fundraising events, mostly with the goal of raising the money to build the new chapel. She developed a close relationship with women she believed to be Roman Catholic nuns who were involved with the defendant, including Jordan, whom she respected. On August 23, 2009, because she had been spending so much time with and contributing financially to the defendant, the plaintiff transferred her oblation from the monastery in Nebraska to the defendant.

An "oblate" is defined

Sister Sally J. Tolles, a canon and civil lawyer employed by the diocese, testified at trial that oblates are ‘‘laypeople who associate themselves with monasteries or abbeys or priories in order to say that they will help in a spiritual way or in a financial way with the needs of the community . . . .’’

The defendant had never been accorded recognized Benedictine status

On February 17, 2011, Bishop Cote sent a letter to the plaintiff advising her, among other things: that the defendant was not, and never had been, a Benedictine monastery; that the residents at Mount Caritas were not Benedictine sisters; that the defendant did not have permission from the diocese to build a Roman Catholic chapel; and that the defendant did not have permission to solicit money or to sell items in any Roman Catholic parish in the diocese. The plaintiff testified that this was the first time that she had heard anything disputing the defendant’s status as a monastic community. Upon receipt of the bishop’s letter, the plaintiff was in disbelief. Based on the pious union decree that Jordan had shown her, along with Jordan’s prior representation she plaintiff believed that the defendant had been a monastery for thirty-five years.

 The court

The record in this case is replete with evidence of the defendant’s portrayal of itself as a Roman Catholic Benedictine monastery. The record is likewise laden with evidence that Jordan knew that the defendant was not, in fact, a Roman Catholic Benedictine monastery. The plaintiffs testified that they would not have given money to the defendant if they had known that it was not a Roman Catholic institution. Although Jordan apprised the plaintiff of the contentious relationship between the defendant and the diocese, and the plaintiff later was informed by the diocese that the defendant was not a Roman Catholic Benedictine monastery, Jordan repeatedly assured the plaintiff that the diocese was lying. The plaintiff continued to trust Jordan and thus continued to fund the construction of the chapel.

The court respected the jury verdict

 The jury reasonably could have concluded that the defendant repeatedly and intentionally, over a period of years, misrepresented itself to the plaintiff as a Roman Catholic Benedictine monastery, knowing that that was the type of community that she was searching for in which to continue her work as an oblate. The evidence amply supported a finding that the defendant intentionally misrepresented its status to induce the plaintiffs to fund the construction of the chapel, and that, in so doing, it displayed a reckless indifference to the rights of the plaintiffs. We therefore conclude that the court did not abuse its discretion in denying the defendant’s motion to set aside the verdict with respect to the plaintiffs’ entitlement to punitive damages.

The Hartford Courant had this story.

The trial court decision is linked here. (Mike Frisch)

June 8, 2015 in Law & Society | Permalink | Comments (0)

Juror's Lies On Voir Dire Lead To New Trial

The United States Court of Appeals for the Second Circuit has vacated and remanded a conviction in a high-profile tax prosecution based on findings that a juror lied extensively about her background in order to get on the jury.

Parse and several others were indicted in 2009 and were ultimately charged with one count of conspiracy to defraud the United States and to commit mail fraud, wire fraud, and tax evasion, in violation of 18 U.S.C. § 371, and with multiple substantive counts of tax evasion and other tax-related offenses in connection with the creation of a series of tax shelters "designed and marketed by [a law firm and an accounting firm] to take advantage of Internal Revenue Code . . . loopholes so taxpayers could claim non-economic tax losses to avoid taxes they otherwise would have owed" (Parse brief on appeal at 7).

Parse was a broker employed by an investment banking firm that executed transactions for implementation of the shelters. In the spring of 2011, Parse was tried along with four of his codefendants: Paul Daugerdas and Donna Guerin, who were attorneys at the law firm; Denis Field, a member of the accounting firm; and Craig Brubaker, a broker at the investment bank that employed Parse.

He was convicted of mail fraud and attempting to interfere with the administration of the federal tax laws.

The lies included the juror concealing the fact that she was a suspended attorney. Indeed, she created a fictitious persona in order to get on the jury.

Further, she concealed the fact that she was on probation for shoplifting at the time of the trial.

As the district court later found. the juror was "a pathological liar and utterly untrustworthy."

The investigation into the juror's lies began after she wrote a post-verdict letter to the prosecutors  "praising its performance at trial but lamenting the acquittals of Parse." 

The letter was turned over to defense counsel and the court about a month after receipt.

The circuit court found no waiver based on information that the defense had at the trial

although the court stated that Parse's attorneys' "suspicion that Juror No. 1 was not the person she represented herself to be during voir dire . . . . leavened into tangible evidence that Conrad was a monstrous liar," id. at 484 (emphasis added), that leavening did not occur until Conrad sent her May Letter to the government after the verdicts were returned. It was that post verdict letter that first disclosed the juror Conrad's (claimed) street address (against which one of the addresses in the Westlaw Report could be matched) and her telephone number (against which the telephone number shown for the suspended lawyer Catherine M. Conrad on the New York attorney registration website could be matched). And the monstrosity of her deliberate and purposeful voir dire deceit came to light in her statements to the court in the hearings conducted thereafter. As Conrad had "lied about virtually every detail of her life," id. at 473, almost none of the Westlaw Report information cited by the district court about the suspended lawyer matched the information Conrad had provided under oath during voir dire. The information in that Report did not support a finding that Parse's attorneys knew that Conrad the juror was the same person as Catherine M. Conrad the suspended lawyer.

Bloomberg Business reported that the juror testified that she had lied to "make [herself] more marketable" to serve as a juror.

Bloomberg further reported on the trial court hearing

Conrad also admitted she didn’t tell the judge that her husband had been convicted of crimes including check fraud, weapons possession, harassment and burglary. He served seven years and seven months in prison for auto theft, Conrad testified.

“Your husband is a career criminal, isn’t he,” [Daugerdas attorney Chris] Gair asked Conrad.

“So are most attorneys,” she answered, prompting laughter from some in the courtroom.

The district and circuit court did not join in the laughter.

Alison Frankel at Reuters has an interesting take on the implications of this decision.

Thanks to a reader for sending the opinion. (Mike Frisch)

June 8, 2015 in Current Affairs | Permalink | Comments (0)

Reality TV As Aggravating Factor

There is one unusual aspect to an Illinois Hearing Board report and recommendation in a default proceeding.

The hearing board proposes a suspension of two years and until further order ("UFO")

The Panel of the Hearing Board considered...[a] Recording of the Bravo TV series Below Deck, season 2, episode 209, which was submitted in aggravation (Adm. Ex. 14). Additionally, in aggravation the Administrator presented the testimony of James Easoz, an investigator for the ARDC. Mr. Easoz testified regarding the ARDC's efforts to locate and procure service of the Complaint on Respondent and the information he learned regarding Respondent's involvement in the Bravo TV series Below Deck. The Administrator also stated on the record that Respondent has no prior discipline.

From the complaint

On November 29, 2012, at approximately 4:30 p.m., Respondent was seated in a white Cadillac Escalade, Florida license plate number 865 WUP, hereinafter "Escalade," in the parking lot of the "Promenade," a strip mall located at the intersection of Wiles Road and Lyons Road in Coconut Creek, Florida.

While Respondent was seated in the driver's seat of the Escalade, Marcus Lockhart, hereinafter "Lockhart," entered the front passenger seat of the Escalade and engaged in a drug transaction wherein Respondent bought approximately 12.8 grams of Methylone, a schedule I controlled substance, from Lockhart for approximately $800.00. The transaction was videotaped by Gerard Andrews, an agent of Crispin Investigations, and turned over to Coconut Creek police.

On November 29, 2012, at approximately 4:35 p.m., Respondent, driving the Escalade left the Promenade parking lot and was subsequently stopped by Coconut Creek police officer Hofer.

Coconut Creek police officers arrested Respondent after smelling marijuana coming from the inside of the vehicle.

Respondent advised the police that he had "just bought some MDMA and it is in the car."

Coconut Creek police recovered from the Escalade two small baggies which subsequently tested positive for Methylone, in the amount of approximately 12.8 grams. One baggie was recovered from the Escalade driver's console, the other bag was recovered from a compartment in a small black piece of luggage with the initials "CKD," located in the Escalade.

The criminal charges were dismissed after a motion to suppress evidence was granted.

It is not clear from what I have been able to locate how the reality show information served to aggravate the misconduct. (Mike Frisch)

June 8, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Don't Get Administratively Suspended In Pennsylvania

There is no jurisdiction that takes unauthorized practice while administratively (as opposed to for disciplinary reasons) more seriously that the Commonwealth of Pennsylvania.

A recent case in point involves a consented-to one year suspension for an attorney suspended for non-compliance with CLE obligations. He remained suspended for over a year.

During the period of suspension, the attorney reviewed pleadings of junior lawyers and participated in a single telephone conference.

The problem cane to light when the judge in the conference checked his bar status. 

The consent provided for automatic reinstatement in light of his cooperation, acknowledgement of the misconduct and lack of prior discipline.

In the District of Columbia, my guess is that this type of violation would not be prosecuted at all. (Mike Frisch)

June 8, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Delays In Payment Lead To Prompt Report On Misconduct

A District of Columbia Hearing Committee has recommended a one-year suspension with automatic reinstatement of an attorney admitted in 2002 for misconduct in failing to pay third-party providers of services in personal injury matters. 

The misconduct involved failure to pay chiropractors who had an assignment ("A&A") entitling them to settlement proceeds.

The hearing committee dealt with a significant question - what is the meaning of the "promptly pay" obligation in Rule 1.15?

One possible standard for prompt payment under Rule 1.15(c) is the date on which the client received disbursement of the net settlement amount. We are reluctant, however, to assume there could be no reason to retain funds that have been withheld to pay third parties when the client (and the lawyer) have been paid. Here, the record provides little information regarding the factors that may be relevant in determining whether a payment is insufficiently prompt in violation of Rule 1.15(c). If Respondent’s recordkeeping had been more comprehensive, such a determination may have been possible, but then if there had been better recordkeeping, Respondent would not likely have found herself in this situation. In the absence of evidence to conduct a case-specific inquiry into the promptness of Respondent’s payments, we will view 90 days as the limit of promptness in this case in the absence of evidence that further delay was justified.

Her defense was rejected

Respondent argues that she had no obligation to pay the chiropractors because there was a dispute as to the amount they were entitled to receive. Respondent uses Rule 1.15(d) as a defense, arguing that amounts in dispute must be kept separate by the lawyer until the dispute is resolved. In doing so, Respondent misreads Rule 1.15(d) because she fails to acknowledge the significance of the A&A as discussed by several Court decisions.

The committee rejected charges of dishonesty but found that the attorney engaged in negligent misappropriation.

The committee explained why it recommended automatic reinstatement

Rather than acknowledge the delay in payments and take responsibility for rectifying those failures, Respondent doubled-down: blaming everyone but herself, creating post-hoc excuses for failing those to whom she owed a fiduciary duty, and (at least initially) expecting Bar Counsel to mediate the confusion she created. The record also reflects a pattern of bullying and strong-arming engaged in by Respondent that is not unfamiliar in the practice of law, nor necessarily unethical, but it is uncivil and unprofessional. We are inclined to view this not as evidence of a lack of fitness to practice, but a loss of what it means to practice law. Respondent’s clients were characterized by witnesses as “difficult” and demanding (client characteristics with which many attorneys are familiar), but that does not justify ignoring the duties that attorneys have to third-parties – including those for whom the attorney is safeguarding property. If any additional sanction is warranted, we recommend that it be in the form of a practice monitor, CLE or referral to the D.C. Bar’s Practice Management Advisory Service, to assist Respondent in tracking and accounting for entrusted funds in compliance with her ethical and fiduciary obligations.

The committee held four days of hearings on 37 counts in October and November 2014 and filed a comprehensive and thoughtful report of over 100 pages in late May of this year.

The system is working when this happens.

The case is In re Brandi S. Nave. (Mike Frisch)

June 8, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 7, 2015

Sob Story

The Pennsylvania Supreme Court has ordered the suspension of an attorney convicted of federal criminal offenses.

The Pittsburgh Post-Gazette had this February 2015 story on the criminal case

A Pittsburgh lawyer waived indictment and pleaded guilty today to bank fraud in connection with several schemes, including embezzling from his law firm.

Erik Sobkiewicz, 51, of Morewood Avenue in Squirrel Hill, was charged directly by the U.S. attorney's office in November.

Prosecutors said he used the resources of his Grant Street law firm, Campbell and Levine, to "advance his own personal wealth." He sent invoices from the firm to companies he controlled, unknown to firm, knowing that the invoices would not be paid.

The bogus billings "lulled the law firm into believing" that what he was doing was legitimate and allowed him to tap into the law firm's money, prosecutors said.

He then diverted money from a real estate closing owed to the law firm to a personal account and diverted client funds held in the firm's escrow account his personal account.

He also was involved in several complex loan fraud schemes, prosecutors said, involving Indiana First Savings Bank in Indiana, Pa., and Milestone Bank in Doylestown, Pa.

In the first scheme, he applied for a series of loans from the Indiana bank. For the last of them, which was for $350,000, he used the securities account of a person identified only as "RG" as collateral for the loan without RG's permission.

He also falsely represented that the bank would be in first lien position with regard to two properties he owned that would serve as collateral when he had already borrowed money from another bank and also promised that institution the first lien position.

He pulled a similar scheme involving Milestone bank and a Philadelphia property he said he was developing.

Sentencing was set for May before U.S. District Judge David Cercone.

Final discipline for the offenses will be determined when the disciplinary process is completed. (Mike Frisch)

June 7, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Family Illegal

An eighteen month suspension was imposed by the Massachusetts Supreme Judicial Court of an attorney who had an independent contractor relationship with an entity called Family Legal.

Family Legal was a New Hampshire-based network of affiliated lawyers in several New England states. It advertised for clients and referred those clients to its affiliated attorneys.

Family Legal's agreements provided that the independent contractor would handle referred cases for 40% of the collected fees.

A Michigan man retained the attorney through Family Legal's advertisement and paid the attorney $3,500 to handle a visitation matter. 

The attorney took the full fee and did not notify Family Legal.

He then failed to respond to the client's email and was terminated by Family Legal for unrelated reasons. 

The matter came to light when the client contacted Family Legal.

The attorney stipulated to misconduct towards both his client and Family Legal. He agreed to the period of suspension. (Mike Frisch)

June 7, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 6, 2015

Not For The Weak Willed

A justice of the Massachusetts Supreme Judicial Court agreed with Bar Counsel that private discipline was not appropriate for a violation of Rule 1.2(d) - assisting a client's criminal conduct.

The respondent's practice centers on real estate, probate law, and conveyancing. One of her clients is in the business of making private loans, primarily to business borrowers in need of financing for the purchase, rehabilitation, or refinancing of commercial real estate. At issue in this complaint are at least five loans that violated G. L. c. 271, § 49 (a), the Massachusetts criminal usury statute, because the terms of the loan charged interest rates, as defined by the statute, in excess of twenty per cent when, as the respondent knew, the client had not notified the Attorney General of his intent to engage in such transactions as required to avoid criminal liability.

The borrowers were all in need of rapid, alternative financing.  Accordingly, the respondent's duties included drafting loan documentation, the terms of which were determined by the client. The nature of the work required tight deadlines. The respondent maintained the documentation of loans in her office.

Justice Spina

The Board found that the essence of the respondent's misconduct was not the result of true ignorance nor willing and zealous participation in the lending scheme. Rather, it was "her failure to take a strong stand as an independent professional in response to a stubborn and opinionated client." However, the respondent did not fall into a "trap for the unwary." She knowingly assisted her client in the commission of a felony. As such, she was an accessory before the fact and potentially liable as a principal to the crime. 

And public discipline should result

I am persuaded by Bar Counsel's argument that no violation of rule 1.2( d) has previously resulted in a private admonition. The public is best served by reminding attorneys that they must resist strong-willed clients who insist 0n pursuing a course of conduct that clearly violates the criminal law, even if the client does not believe his conduct may be criminal, and that they should not assist the client in such a pursuit. For the foregoing reasons, the appropriate sanction is a public reprimand.

Bar Counsel had appealed the private reprimand recommended by the Board of Bar Overseers. (Mike Frisch)

June 6, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Mr. Ibe's Wild Ride

An attorney facing discipline for a criminal conviction has filed a consent to disbarment in the District of Columbia.

The York Daily Record had the story of the charges

An attorney licensed to practice in Pennsylvania and the District of Columbia is being held at York County Prison on misdemeanor criminal charges and a Department of Homeland Security detainer.

Pennsylvania State Police reported Peter Chidi Ibe was pulled over by a trooper on southbound Interstate 83 near Exit 22 in Manchester Township around 1:30 a.m. on July 13, 2011.

Police allege that Ibe:

--- was driving his Mercedes Benz on the wrong side of orange safety cones in a work zone;

--- had several open containers of JOOS and malt beverage in the vehicle;

--- was driving four underage females -- ages 14, 14, 15 and 16 -- who were intoxicated; and

--- had a loaded .380-caliber handgun in the trunk that was reported stolen by the Erie Police Department.

Ibe, 42, whose court documents list a work address in Washington, D.C. and home addresses in Maryland and Pennsylvania, is representing himself.

He is charged with receiving stolen property, carrying a firearm without a license, furnishing alcohol to minors and three counts of corruption of minors -- all misdemeanors.

He also is charged with the summary offenses of obedience to traffic control devices and restrictions on alcoholic beverages.

Ibe posted $20,000 bail on July 21, 2011. The Department of Homeland Security then filed a detainer against him and he was placed in the ICE detainee section of York County Prison, according to court documents.

In December, District Attorney Tom Kearney rejected Ibe's application for Accelerated Rehabilitative Disposition, a pre-trial diversionary program. Kearney said the firearm charge is a mandatory reason to exclude someone from the program.

Ibe is contesting the vehicle stop and his ICE detention. His pretrial conference, scheduled for last week, was rescheduled for July 17 before Judge Michael E. Bortner.

According to the Pennsylvania Supreme Court attorney disciplinary board, Ibe was admitted to the bar in October 1999 and has never faced any disciplinary action.

He was convicted of one count of receiving stolen property and three counts of providing alcohol to minors.

The practical consequence of the consent is that the question whether these crimes involved moral turpitude on the facts need not be addressed. 

Thus we leave to future litigation the issue whether dangerously driving with four intoxicated underage persons in the car offends the generally accepted moral code of mankind. 

As someone once said, the answer to that question depends on the values one brings to the debate.

The D.C. Court of Appeals will review the report of its Board on Professional Responsibility recommending acceptance of the consent. (Mike Frisch)

June 6, 2015 | Permalink | Comments (0)

Friday, June 5, 2015

Not Solely Responsible, Not Liable For Malpractice

A criminal defendant was convicted at trial of multiple counts of sexual conduct against a child. The conviction was reversed based on a finding of ineffective assistance of counsel.

The defendant, represented by new counsel, was acquitted at a second trial.

She then sued her first counsel for legal malpractice.

The New York Appellate Division for the Second Judicial Department held that the trial court should have granted summary judgment to the defendant attorney. 

Here, the defendant met his initial burden of demonstrating, prima facie, that the plaintiff is unable to prove the element of causation. Specifically, the defendant submitted admissible evidence demonstrating that the plaintiff's convictions after her first trial were not due solely to the defendant's conduct, but were also the result of other factors, including those arising from "some consequence of [her] guilt" (Britt v Legal Aid Socy., 95 NY2d at 447). The evidence submitted by the defendant included graphic testimony of the plaintiff's own children, admitted into evidence at the first trial, which detailed numerous acts of sexual abuse committed by the plaintiff against them. In opposition, the plaintiff failed to raise a triable issue of fact as to whether her convictions after the first trial were due solely to the defendant's conduct (see id.)

The court further held that "the plaintiff's claims for nonpecuniary damages, including physical and psychological injuries allegedly sustained while she was incarcerated following the first trial, are not recoverable in a legal malpractice action."  (Mike Frisch) 

June 5, 2015 in Clients | Permalink | Comments (0)

Securities Investigation Leads To Consent Disbarment

An attorney consented to disbarment in Maryland while facing ethics charges arising from actions taken by the Securities & Exchange Commission.

Law 360 reported on the civil action

The U.S. Securities and Exchange Commission won a judgment against Washington attorney Brynee Baylor and the other accused perpetrators of a scheme that defrauded investors of nearly $3 million when a D.C. federal judge ordered Monday that the funds be returned. 

U.S. District Judge Rosemary M. Collyer found Baylor liable for the fraud perpetrated by a late client, then ordered her and two people who had received money from the scheme without participating in it to pay the SEC so it might return some funds to the scammed investors, according to Monday’s ruling. A third defendant successfully argued that he wasn’t liable for the fraud and was allowed to keep the money he had earned from it, according to the decision.

Baylor is the only remaining principal defendant in the case, with the investment firm and her business partner having already settled with the SEC. Baylor argues that she had no knowledge of the scam itself and was only acting as an attorney for her client. The nearly $750,000 she collected from the scam was payment of fees, she contended.

But Judge Collyer was unmoved, noting that Baylor, at best, had acted recklessly when she represented to potential clients and law enforcement officers that she endorsed the investments her client was making.

“It ill behooves her now to declare that she represented the Milan Group for more than a year, from mid-2010 to November 2011, but that she had no relevant experience, knew nothing about securities laws, and did only what [her client] directed her to do, without ever exercising a modicum of lawyerly interest in the legal implications of their activities,” Judge Collyer wrote in Friday’s decision.

The SEC filed suit against Baylor, her law firm, and client Frank Pavlico, who ran a so-called prime bank scheme that defrauded 13 investors of nearly $3 million beginning in August 2010, according to a complaint filed in Washington federal court in December 2011.

Prime bank schemes lure investors into believing they are getting an exclusive chance to take part in an investment program involving complex financial instruments that produce huge profits. Perpetrators of such a scheme often emphasize the trading program's secrecy as a key to its success and say the financial instruments are too complicated for laymen to understand, the commission says.

Baylor and Pavlico made up excuses to explain delays in the promised returns, faking illnesses and telling investors that the European bankers purportedly involved in the deals were on extended vacations, the SEC alleges.

Throughout the scheme, Baylor provided “attorney attestation letters” telling investors that their money was legitimately invested, as well as contracts that said the profits from the program would be shared with Milan, Baylor's law firm and the investor, the suit says.

Pavlico committed suicide in December 2012, the day before he was to appear in court on fraud charges in South Carolina, according to Monday’s decision. His estate settled with the SEC.

Baylor was ordered to be disgorged of her gains from the scam, according to Monday’s ruling.

Also included in the ruling were three so-called relief defendants, who didn’t advance the scam but received ill-gotten gains. Mia Baldassari and Patrick Lewis were ordered to disgorge their gains in Monday’s ruling, while a third relief defendant, Brett Cooper, was not.

Cooper argued that he was merely an employee of a firm that had already disgorged its gains. The court had no legal reason to pierce the corporate veil and come after him as an employee, Cooper argued. The judge agreed, releasing him of liability in the suit.

Baylor was represented by Alan I. Baron, Rhett E. Petcher and Christopher F. Robertson of Seyfarth Shaw LLP. Baldassari was represented by Christopher Allan Glasser of Jackson & Campbell PC, and Cooper and Lewis each represented himself.

The case is Securities and Exchange Commission v. Milan Group et al., case number1:11-cv-02132, in the U.S. District Court for the District of Columbia.

Judge Collyer's judgment in favor of the SEC is linked here. 

Ms. Baylor’s attempt to use her role as an attorney as a shield is particularly pernicious because, as an attorney, she was in the position to lead investors to believe that their money was safe. Investors retained Baylor & Jackson to use the firm’s trust account to “escrow” investor money. Each escrow agreement identified the investor(s) as a “client” of Baylor & Jackson. In every instance, investor funds were immediately disbursed from the IOLTA account to Milan and Baylor & Jackson for personal use, or, to a lesser extent, to Relief Defendants. While Ms. Baylor protests that the “fees” she received were paid only on authority of Frank Pavlico at Milan, she does not argue that she did not know that her firm’s trust account was used as a revolving door to receive investors’ money and pay it out to Milan/Pavlico and thence to her, despite her assurances to investors that their money was safe.

The Legal Times had this account of the appeal to the United States Court of Appeals for the District of Columbia Circuit. had the story of the client's suicide. (Mike Frisch)

June 5, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 4, 2015

Mississippi Keeps Paying Suspended Judge

The Mississippi Supreme Court denied a motion to reconsider its prior order that had suspended a judge with pay.

Gawker reported on allegations against the judge

This week, a Mississippi grand jury indicted Justice Court Judge Bill Weisenberger for felony assault on a vulnerable adult after he allegedly struck a mentally disabled black man and yelled, "Run, nigger, run."

According to WAPT, multiple witnesses report seeing the judge attack 20-year-old Eric Rivers while screaming racial slurs at a flea market in Canton, Mississippi last May. Weisenberger claims Rivers made "negative comments to his mother."

Since then, the judge has faced additional accusations of misconduct. From The Clarion-Ledger:

Weisenberger also had a lawsuit filed against both him and the county in November. The attorney for Charles Plumpp said Weisenberger arrested and jailed her client, who is African American, on the nonexistence charge of "roaming livestock."

While the judge voluntarily stepped down from his position last June, the Ledger reports that Weisenberger is currently seeking re-election.

The Commission on Judicial Performance had sought suspension without pay. (Mike Frisch)

June 4, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)