Thursday, November 13, 2014
The Indiana Supreme Court has imposed a public reprimand of an attorney who had contained a non-compete provision in an associate's employment agreement.
In 2006, Respondent hired an attorney ("Associate") to work in his law office pursuant to an employment agreement. Respondent’s law practice focuses primarily on Social Security disability law. The employment agreement included a noncompete provision that prohibited Associate from practicing Social Security disability law for two years in the event his employment with Respondent was terminated.
In 2013, Respondent fired Associate. Thereafter, Respondent sent letters to Associate’s clients advising that Associate no longer worked at the firm and that Respondent would be taking over their representation, and in those letters Respondent included Appointment of Representative forms for the clients to complete in order for Respondent to replace Associate as the clients’ representative before the Social Security Administration.
Despite the foregoing, Associate continued to practice Social Security disability law after leaving the firm, and at least two of Associate’s existing clients chose to keep Associate as their lawyer. Respondent did not attempt to enforce the noncompete provision and, after the disciplinary grievances were filed against him, Respondent provided Associate with the files for Associate’s clients.
The court approved an agreed disposition. (Mike Frisch)
The Oklahoma Supreme Court has suspended an attorney until December 23, 2014.
On April 29, 2013, the Respondent drove to the home of his former spouse, let himself into the home and began talking about his sadness over their divorce. An argument arose about a bicycle in the garage and a struggle ensued that caused a superficial injury to the his former spouse's leg. Neighbors called the police about the loud voices and [he] fled on foot when police cars began arriving in the neighborhood. He later returned and drove away, followed by the Tulsa Police Department. He refused to pull his vehicle over when requested and led the police on a high-speed chase. The officers used spike strips to slow the Respondent's vehicle. He left his vehicle and began to run from the police. He was apprehended by and resisted a canine police officer. He was arrested, treated at a hospital for dog bites and then taken to the Tulsa County jail.
The attorney pled guilty to four misdemeanors and was suspended on an interim basis as a result.
There was mitigation
In the present matter the Respondent sought treatment and has followed up his treatment by attending Alcoholics Anonymous in order to maintain his sobriety. No clients were harmed by his conduct and he has recognized the seriousness of his actions and is remorseful for the disrepute it brought upon the legal profession. The Cooley and Bernhardt and Burns cases involved felony sentences; the Respondent is serving deferred and suspended sentences for misdemeanor violations. Each of these cases concerns the discipline of a lawyer whose conduct outside the setting of his professional practice brought disrepute and harmed the public image of the profession.
NEWSON6.com reported that he was employed by a public defender office.
Question: What can one do but resist a canine police officer who is apprehending you? You can't obey their commands. (Mike Frisch)
The New York Appellate Division for the Third Judicial Department has disbarred an attorney convicted of tax evasion.
The FBI Washington Field Office had this account of the case
Jon C. Cooper, 64, of Washington, D.C., pled guilty on October 9, 2013 in the U.S. District Court for the District of Columbia to one count of tax evasion related to his failure to report over $448,000 in income he received in 2006.
The guilty plea, which took place on October 9, 2013, was announced today by U.S. Attorney Ronald C. Machen, Jr.; Valerie Parlave, Assistant Director in Charge of the FBI’s Washington Field Office; and Thomas J. Kelly, Special Agent in Charge of the Washington Field Office of the Internal Revenue Service-Criminal Investigation (IRS-CI).
As part of his guilty plea, Cooper admitted that, in December 2006, he and Alan Messner induced an Indonesian airline company to pay them a $1 million security deposit to lease two aircraft using various false and fraudulent pretenses, representations, and promises—including forged and fraudulent documents. Cooper admitted that, after he received the $1 million security deposit, he transferred $284,500 to Messner in December 2006 and January 2007. Cooper spent the balance of the security deposit for his own personal benefit. Cooper and Messner did not provide the promised aircraft and did not return any funds to the Indonesian airline company.
Cooper admitted that he did not report at least $448,727 of those proceeds on his federal income tax return for 2006. Instead, by under-reporting his income, Cooper claimed a tax refund that year. As a result of Cooper’s tax evasion, Cooper caused a tax loss of at least $133,464 to the United States.
Cooper is to be sentenced on January 23, 2014, before the Honorable Amy Berman Jackson. He faces a maximum sentence of five years in prison and a $250,000 fine. In addition, as part of his guilty plea, Cooper agreed to pay $133,464 owed to the United States. Cooper further agreed to make restitution of $1 million to the victimized Indonesian airline company.
An attorney was properly disqualified from representing his sister-in-law in divorce litigation, according to a recent decision of the New York Appellate Division for the Second Judicial Department.
The plaintiff commenced this action for divorce and ancillary relief against the defendant. The plaintiff was represented by Eric A. Schwartz, who is the parties' brother-in-law and is married to the plaintiff's sister. During the pendency of the action, the defendant moved, inter alia, to disqualify Schwartz from representing the plaintiff, alleging that prior to the commencement of the action he had discussed confidential information about his finances and other personal matters with Schwartz. The defendant further alleged that these discussions took place after Schwartz assured him that he could not represent either party in any future litigation because of his personal relationship with both of them. The Supreme Court granted that branch of the defendant's motion which was to disqualify Schwartz.
...contrary to the plaintiff's contention, the evidence submitted on the motion demonstrated that the discussions between Schwartz and the defendant included matters related to the divorce, and took place prior to the defendant becoming aware that Schwartz would be representing the plaintiff in the case. The evidence further supported the reasonable probability that confidential information was shared by the defendant with Schwartz, based on his belief that Schwartz could not represent either party. Accordingly, based on the appearance of impropriety, disqualification was warranted.
An attorney who had filed a bar complaint against opposing counsel in a landlord-tenant matter violated ethical rules in so doing, according to a recent complaint filed by the Illinois Adminstrator.
The charged attorney had contended in the underlying matter that a lease had been forged. The bar complaint that forms the basis of the present matter alleged that the forger was opposing counsel.
According to the charges
Respondent, by signing and forwarding to the Administrator the request to investigate [opposing counsel] Wentz...presented disciplinary charges against Wentz in an attempt to obtain an advantage (discovery and monetary assistance by requesting that the ARDC retain a handwriting expert and obtain the transcript of the trial), in a civil proceeding (appeal number 3-12-0975), and in an effort to discredit Wentz. In the alternative, Respondent had no purpose other than to harass or needlessly burden Wentz.
The attorney also is alleged to have failed to cooperate in the investigation. (Mike Frisch)
Summary judgment based on the validity of a prenuptial agreement was reversed by the New York Appellate Division for the Second Judicial Department.
At the time of the marriage, the defendant, who had a background in marketing works of fine art to corporations, had recently opened an art gallery in California. She closed this business and relocated to Pine Bush, New York, in order to reside with the plaintiff in preparation for their marriage, and assist him in his business endeavors. These included real estate development, as well as breeding thoroughbred horses and managing polo ponies.
The plaintiff-husband did this
the defendant offered proof that she signed the premarital agreement without benefit of counsel, that she was presented with the agreement immediately prior to signing it without discussion or negotiation of its terms, and that she was pressured to sign the agreement by being told that, if she did not, the plaintiff would cancel the impending wedding, scheduled to take place two days later.
There is evidence that the defendant was not represented by independent counsel in connection with the preparation and execution of the allegedly "take-it-or-leave-it" premarital agreement that is the subject of this appeal. In addition, contrary to the plaintiff's contention, the preprinted financial forms executed by the parties do not demonstrate that they were expecting to enter into a premarital agreement, as the forms recite that they were furnished by a commercial bank in connection with an application for a mortgage. The defendant therefore raised triable issues of fact as to whether the premarital agreement was the product of overreaching, such that it would be rendered unenforceable.
Wednesday, November 12, 2014
The Minnesota Supreme Court denied the motion of an attorney who had been suspended for at least 30 days for additional time to take and pass the state bar professional responsibility examination.
The court's origninal order required the attorney to pass the exam within one year. When the attorney had failed to provide the court with proof of passage, a show cause order was entered.
The attorney stated in response that "during the summer of 2014 she realized for the first time ithat the professional responsibility portion of the state bar examination is only offered three times per year" and that realization came too late. In any event, she contended that financial problems prevented her registration.
She is now registered for the November 2014 exam.
The court revoked the attorney's conditional reinstatement.
These are the kind of details to which a suspended attorney should pay close attention. (Mike Frisch)
Tuesday, November 11, 2014
An Idaho attorney has resigned from the bar in the wake of his federal court conviction.
The web page of the Idaho disciplinary counsel notes
The Idaho Supreme Court accepted Mr. Ellison’s resignation in lieu of discipline. By the terms of the Order, Mr. Ellison may not make application for admission to the Idaho State Bar sooner than five years from the date of his resignation. If he does make such application for admission, he will be required to comply with all of the bar admission requirements in Section II of the Idaho Bar Commission Rules and shall have the burden of overcoming the rebuttal presumption of the “unfitness to practice law.”
The Order also provides that consistent with I.B.C.R. 512(d), if an appeals court vacates or reverses Mr. Ellison’s conviction, or if a trial court enters an order granting a motion for a new trial, a motion for judgment of acquittal, or a motion to withdraw a plea of guilty, that removes Mr. Ellison’s conviction of the crimes, which are the basis for this sanction, Mr. Ellison may file with the Clerk of the Idaho Supreme Court, a motion for dissolution or amendment of the sanction.
Law.com had this report on the underlying case
Douglas Swenson, former president of failed property management company DBSI, faces 20 years in federal prison. The company’s former general counsel, Mark Ellison, faces a sentence of up to five years.
A U.S. district judge in Idaho has sentenced Douglas Swenson, the president of failed southwest Idaho property-management company DBSI, to 20 years in federal prison without parole for defrauding investors, the Associated Press reports.
The judge, B. Lynn Winmill, also sentenced DBSI’s former general counsel, Mark Ellison, to five years in prison. Federal prosecutors have said they will seek at least $75 million in restitution, which will be set later. In April 2013, $1.5 million was seized from Swenson on the orders of a federal magistrate judge, the Associated Press reports.
This is the largest federal fraud case in Idaho history. Winmill told those in the courtroom that it was the toughest he had presided over in almost 30 years as a judge, as he believed that the defendants did not set out to defraud investors. He said he tried to weigh the descriptions of Swenson and Ellison as family men, churchgoers, and community leaders who had never before been in trouble with the law against the harm done to investors, some of whom lost hundreds of thousands of dollars, The Idaho Statesman reports.
In April a jury convicted Swenson of 44 counts of securities fraud and 34 counts of wire fraud. Ellison was convicted of 44 counts of securities fraud. Attorneys for Swenson and Ellison said they plan to appeal their convictions, the Associated Press reports.
Jeremy Swenson and David Swenson, Douglas Swenson’s sons and former company secretaries who were also convicted of securities fraud, were sentenced on Thursday to three years in prison followed by three years of supervised release and a $4,400 special assessment. They will also have to pay restitution, which will be set later, KTVB reports.
DBSI, founded in 1979, was once one of Idaho’s largest employers. Before it filed for bankruptcy in 2008, it managed 280 shopping centers, office buildings and other commercial buildings across Idaho and 33 other states. The company’s holdings were worth $2.7 billion, and many of them were owned by groups of investors to whom DBSI sold fractional shares. The company claimed to have a net worth of more than $105 million, when in fact it lost a total of $170 million in 2007 and 2008, The Idaho Statesman reports.
Swenson and Ellison concealed the company’s financial difficulties from investors and employees, and even continued to accept new investments when they knew there were not enough earnings to keep paying off investors.
University of Maryland Professor Jeffrey Mitchell told the court on Wednesday that he invested $113,000 in DBSI just 70 days before the company collapsed, and was given no indication that the company was in any financial trouble, the Associated Press reports.
However, other investors said that they understood the risks involved. Under federal regulations, DBSI investors had to have a minimum yearly income of $200,000 or a net worth greater than $1 million. They were also required to sign a document acknowledging that there was no guarantee of return and that they could afford to lose their investment, the Associated Press reports.
Samuel Levine of Touro Law reports to us that:
The winner has been selected for the fifth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. The Prize will be awarded to Russell M. Gold, for Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 U.C. Davis L. Rev. 1591 (2014).
The Prize will be awarded in January at the Section Lunch of the AALS Section on Professional Responsibility.
Thanks for the news, Sam, and congrats to Prof. Gold (of NYU Law, whom coincidentally I taught at GW). (Alan Childress)
November 11, 2014 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack (0)
Monday, November 10, 2014
The South Carolina Court of Appeals has found ineffective assistance of counsel in a case where the defendant was not advised of a ten-year plea offer before going to trial and getting twenty.
In this case, trial counsel testified the plea offer was for ten years imprisonment. Bell was sentenced to twenty years' imprisonment. The difference is evidence of his prejudice. See id. (concluding the difference in the sentence received and the plea offer was proof of prejudice). Furthermore, Bell testified he would have taken the State's plea offer had trial counsel told him about it, and the PCR court found Bell's testimony credible. Although self-serving, the statement is also evidence supporting the PCR court's finding of prejudice. See id. at 613, 675 S.E.2d at 422 ("[D]epending on the facts of the case, a defendant's self-serving statement may be sufficient to establish actual prejudice."). Deferring credibility matters to the PCR court, we find evidence to support the finding. See Simuel, 390 S.C. at 270, 701 S.E.2d at 739 ("This [c]ourt gives great deference to a PCR judge's findings where matters of credibility are involved.").
The offense was armed robbery. (Mike Frisch)
The Michigan Attorney Discipline Board has affirmed the denial of a suspended attorney's petition for reinstatement.
The suspension involved a false statement in a federal court proceeding.
The problem here
As noted in the panel's report, petitioner's testimony that he believed the Attorney Grievance Commission was part of the State Bar and he therefore had been suspended by the State Bar, and that because he had no pending cases in any courts, he was not "suspended by a court," was simply not credible in light of the fact that petitioner was fully aware of the process having gone through an entire reinstatement proceeding that resulted from his prior thirty month suspension. Additionally, on cross-examination, petitioner admitted that when the matter was brought to the court's attention, he wrote a letter of explanation which did not include his apparent belief that he had been suspended by the State Bar but rather had indicated thathe had voluntarily resigned.
An attorney's latest brush with ethical violations resulted in a one-year suspension by the Wisconsin Supreme Court.
The court noted that the attorney
has a lengthy and troubling disciplinary history, with three consensual private reprimands, one consensual public reprimand, and four previous suspensions.
Here, the attorney picked up a alcohol-related driving conviction after previous discipline for such misconduct.
He also again violated court orders in his domestic case
...although he had been disciplined in that proceeding for criminal convictions that arose out of improper actions toward his then-wife, he subsequently chose to violate a domestic abuse injunction by sending legal documents to her directly. Further, although he had been disciplined in Guenther III for his second offense of operating a motor vehicle with a PAC, he engaged in the conduct again, leading to a third PAC conviction. This repetition of misconduct makes the violations in this matter more troubling and worthy of a lengthier suspension, which hopefully will impress upon him the seriousness of his misconduct and the need to conform his conduct to both the criminal laws of this state and the Rules of Professional Conduct for Attorneys.
The New Jersey Supreme Court has imposed a one-year suspension as reciprocal discipline in an interesting litigation-misconduct matter.
The misconduct involved an associate's attorney handling of an employment discrimination matter against the client's former employer (OMD). The associate was supervised by partners of his law firm.
OMD had sought information about the client's efforts to mitigate damages through, among other things, obtaining new employment. Responsive documents were provided by the firm.
The firm retained an economist to assess damages. The expert prepared an analysis based on the assumption that the client would be unemployed through the end of 2010.
Prior to service of the expert's report, the client got two job offers. She accepted a job with Kraft that paid her more than she made at OMD. She advised the attorney informed about her employment situation, who in turn told his supervisor.
The firm then received and sent to opposing counsel the expert report, asking for a $350,000 settlement.
Then client was deposed a month later and lied about the situation. The attorney was aware of the false testimony but did not move to correct it
Negotiations continued until OMD learned about the client's new job.
The Disciplinary Review Board
OMD’s counsel moved for sanctions and dismissal. [Supervising attorney] Gilly and another partner from the firm were present at the May 2011 oral argument on the motion. Respondent was not present. The judge imposed a sanction $2,500 against [client] Fryer and $15,000 against the firm, "based on false testimony by Ms. Fryer at her deposition" and respondent and Gilly’s efforts "to conceal Ms. Fryer’s new employment and to leverage a false expert report in order to extract a favorable settlement." The judge declined to dismiss the case against OMD at the time. Respondent was asked to resign from the firm on May 31, 2011.
The court imposed the same sanction as originally ordered by the New York Appellate Division for the First Judicial Department.
LAW360 reports that the partner was suspended in the New York Southern District and had sued the law firm. (Mike Frisch)
Thursday, November 6, 2014
The Florida Supreme Court has commanded that a county judge appear for the administration of a public reprimand.
This action stems from charges filed against Judge Flood arising out of an inappropriate relationship with her bailiff, over whom she exercised supervisory authority. The JQC’s Notice of Formal Charges filed against Judge Flood recognized that a judge exercises "supervisory control" over her bailiff and alleged that Judge Flood had a "friendship" with her bailiff that became so close that it created an "appearance of impropriety."
The court concluded
We agree that Judge Flood’s conduct in having an "inappropriate relationship" with her bailiff, over whom she exercised supervisory authority, was clearly unacceptable. While we have not been provided with the details of this "inappropriate relationship," we accept the characterization by the JQC and Judge Flood’s own stipulation that this relationship went beyond the "fraternization that normally occurs in a professional workplace." We agree that such improper conduct in the workplace is of greater concern when engaged in by judges, who are held to the high standards of the Code of Judicial Conduct.
We recognize, however, that in this case the misconduct was an isolated incident in an otherwise exemplary career as a judge. Judge Flood has admitted her wrongdoing, in particular that "her actions have the effect of lessening the public’s confidence in the judiciary," and she has vowed that such misconduct will not be repeated.
Reprimand to be administered at a date and time to be determined.
The bailiff is known as Bubba.
And from Law360 there was this report on the charges
Judge Flood admitted to investigators that she kissed Maxcy at the courthouse, texted him that she loved him, loaned him $5,000, prepared his tax estimations and his divorce papers for him in her office and gave him advice on a pending civil lawsuit of which he was a party, according to the report.
The District of Columbia Court of Appeals has suspended an attorney convicted of causing the deaths of two people.
The attorney was driving a 2013 BMW; the couple died on a 2006 Harley motorcycle.
NBC News 4 had reported on the charges.
Mark Sgarlata, a partner in a Tysons Corner law firm, faces two counts of aggravated involuntary manslaughter for killing Ricky and Leia Wrenn, when he drove his car into their motorcycle...
Investigators say Sgarlata made a left turn into a shopping center just after midnight Oct. 6 and crashed into the Wrenns on their motorcycle, killing them.
He had faced another DUI charge in the past. Records show arrested in March 2011, but the charge was pleaded down to reckless driving. He had a restricted license for six months.
The court imposed an interim suspension pending final discipline for the attorney's resulting conviction. (Mike Frisch)
The Ohio Supreme Court has ordered a two-year suspension with the second year stayed on conditions of an attorney who engaged in gross overbilling for court-appointed legal services.
The attorney became the subject of scrutiny when the Dayton Daily News reported that he was the "attorney receiving the highest payment for court appointed legal work in Ohio."
Turns out he was billing for services in four counties such that in 2008 he billed 2,555.5 hours (the point 5 is a nice touch) to a single county, which comes out to over seven hours a day 365 days a year.
His billings to other counties got him over eight hours a day.
Restitution of $50,000 is one of the reinstatement conditions. (Mike Frisch)
An attorney retained as successor counsel in a contingent fee personal injury action was suspended for two years with the second year stayed on conditions by the Ohio Supreme Court.
The first firm initially had claimed a lien for fees and costs of under $3,000. When the case settled for $150,000 a month into the attorney's taking the case they claimed to have done most of the work and sought the bulk of the settlement proceeds.
The attorney had the settlement check released to her by the responsible judge, who initially had kept the check in a bowl on her desk.
The attorney failed the follow the court's instructions on distribution of the proceeds and was late for court proceedings. Eventually, the attorney was heldin contempt and incarcerated.
The attorney made a claim of bias by the trial court and contended that the hearing on the check distribution violated her rights in that her cross-examination of prior counsel was not allowed to be completed.
The court here rejected the bias claim but expressed concern about the fairness of the distribution hearing, which reains unresolved on appeal.
The court ordered restitution to the first firm among other conditions on reinstatement. (Mike Frisch)
Wednesday, November 5, 2014
The Arizona Presiding Disciplinary Judge has ordered the reprimand of an attorney who gave grand jury transcripts to a reporter.
It is clear release of such sensitive documents to the press when it is forbidden by court rule and statute is a direct interference with the legal process. It can cause significant harm to the opposing party, which is not in the interest of the public, harm the interest of the client, or disrupt the integrity of the legal system. Whether this harm happened, has yet to happen, or did not happen, the potential for significant harm undoubtedly existed. As with all matters, this case has been carefully considered. A request for modification was cautiously considered.
This is not to say a reprimand is not the appropriate action to be taken. As with plea bargaining in criminal proceedings, consent agreements typically involve one pleading to a lesser charge and often includes a request for leniency. Through the process of consent agreements, the parties are able to establish a mutual acknowledgement of the weaknesses and strengths of a case. Both parties are represented by counsel and the terms of the agreement support a negligent state of mind. The object of lawyer discipline is not to punish the lawyer, but to protect the public, the profession and the administration of justice. That purpose is met by the agreement.
The judge found that the attorney had acted with a knowing state of mind. (Mike Frisch)
Tuesday, November 4, 2014
The Illinois Review Board has recommended a three-year suspension of an attorney who engaged in a sexual relationship with a client
The Hearing Board found Respondent's sexual relationship with the client, while representing her in a lawsuit seeking damages for the wrongful death of her husband, constituted a conflict of interest. The Hearing Board found Respondent also engaged in a conflict of interest and improper business transaction by his multiple financial dealings with the client, while representing her. The Hearing Board concluded Respondent counseled his client to testify falsely, by telling her to describe their relationship as strictly platonic, as she was preparing for depositions in the wrongful death case. The Hearing Board also concluded statements Respondent made to the ARDC during its investigation of his conduct were false.
The evidence that he sought to get the client to lie
While another attorney was preparing [client] Scott and her children for their depositions in the wrongful death lawsuit, he asked Scott about her personal relationship with Respondent. Scott telephoned Respondent and informed him of the inquiry. Shortly after this call, Respondent sent a text message to Scott, which told Scott to "deny anything other than we r good friends nothing more I could lose my license." Scott then told the counsel preparing her for her deposition that she and Respondent were just friends.
The review board found that the findings were not against the manifest weight of the evidence.
The attorney also took out $48,000 in loans from the client to, among other things, buy himself a BMW.
The recommendation, if adopted, will require the attorney to establish his fitness prior to reinstatement. (Mike Frisch)
An attorney who settled a malpractice claim brought by a former client but was unable to pay the agreed $50,000 did not engage in conduct prejudicial to the administration of justice, according to a report of the New Jersey Disciplinary Review Board.
The DRB recommended (and the court imposed) an admonishment for his failure to respond to the bar investigation.
As to the alleged Rule 8.4(d) violation
Respondent’s failure to comply with the settlement in the malpractice action is a civil matter, not a disciplinary matter. If respondent’s actions in this context become fodder for a finding of misconduct, then every attorney-litigant who is unable to pay a civil judgment will face disciplinary charges. The floodgates will be opened.
Moreover, logic forces the conclusion that respondent was unable to timely pay the judgment against him. Had he timely paid, the amount due to his client would have been $50,000. Otherwise, the figure would rise to $118,000. Respondent testified that he ultimately paid $93,766.34 to the former client. Clearly, it was in his interest to timely pay the amount due, had he been able to. But there is no indication that his failure to timely make the payment was an act of defiance... To find that respondent was guilty of conduct prejudicial to the administration of justice implies a malevolent intent that the record does not support. The disciplinary system is not meant to function as a collection agency.
The attorney suffered from (entirely understandable) depression during the period of the violations --he had lost his mother, father and sister and was divorced. (Mike Frisch)