Monday, August 10, 2015

Not Horsing Around

The Arkansas Supreme Court Committee on Professional Conduct ordered a 36-month suspension of an attorney who neglected a client's criminal appeal petition.

Magnolia  reported on the client's case involving the theft of five horses from Southern Arkansas University

[The jury] found Cox guilty of four counts of theft of property between $5,000 and $25,000 involving three horses and a horse trailer, two counts of theft of property more than $25,000 for two of the horses, and two counts of theft of property between $1,000 and $5,000, involving horse tack.

Testimony from the student victims during the sentencing phase of the trial had some members of the audience and jury in tears. The most powerful testimony came when Shaun Smith, whose horse, Credit Card, was slaughtered, described the impact on the animal he described as his "teammate."

On Tuesday, jurors heard about the mistreatment of four horses and the death of a fifth during the theft trial of Cox, 38, of Howorth, Oklahoma.

Cox is the first person to go on trial in Arkansas for the Nov. 3, 2011 theft from Southern Arkansas University’s Mulerider Stables. The emaciated condition of the four rodeo-competition horses that were found tied to trees almost two weeks after their abduction, and the slaughter of student Shaun Smith’s horse, Credit Card, enraged horse fanciers across the nation.

Cox is charged with four counts of theft of property worth less than $5,000, and two counts of theft of property of more than $5,000. Butler said that if convicted of the maximum on all counts, Cox could be sentenced to up to 92 years in prison.

The Cox trial was moved to Union County on change of venue from Columbia County.

Butler, through the testimony of state witnesses, laid out for the jury of nine women and three men a story that painted Cox – the mother of former SAU student Jaci Jackson – as a woman who manipulated others to get what she wanted.

Apparently manipulated the most was William “Billy” Hamilton, who testified that he was Cox’s boyfriend. Hamilton admitted stealing cattle in Little River County and using most of the proceeds to purchase an engagement ring. He also admitted driving to Magnolia to steal the horses owned by Smith, Ashley Mills, Ty Lester, Hope Shelton and D.J. Dickinson, with the intent of reselling them.

But according to testimony, the plan to profit from the crime committed in the early hours of Thursday, Nov. 3, 2011 began to fall apart by 10 a.m. when Cox’s youngest daughter, Jade Jackson, told her that she recognized the still-living Credit Card from the region’s tight-knit rodeo circuit – making the horse in her mother’s mind too hot to sell and too obvious to keep alive. With McCurtain County, Oklahoma sheriff’s deputies already poking around, Cox, Hamilton and Jaci Jackson looked for means to hide or and move the horses and other evidence away from Cox’s property with little success.

It also spelled Credit Card’s doom.

It appears that the suspension only prohibits the attorney from handling appeals as he is 

SUSPENDED from the practice of appellate law before the Arkansas Appellate Courts for a period of THIRTY-SIX (36) MONTHS for his conduct in this matter. Further, Mr. Kearney shall complete an approved course of instruction on Arkansas appellate practice. Mr. Kearney shall notify current and future clients of his suspension from appellate practice.

His prior discipline was a factor. (Mike Frisch)

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

Link Out

A serious case of misconduct in North Carolina is reported on the State Bar web page

Peter C. Capece of Lincolnton surrendered his license and was disbarred by the Wake County Superior Court. Capece admitted that he misappropriated in excess of $1.5 million he held as trustee and guardian for a minor.

The Charlotte Observer reported on the matter

Capece worked in the Denver, N.C., office of the Lincolnton-based Jonas law firm, whose high-profile lawyers include former N.C. House Minority leader Johnathan Rhyne. Rhyne served in the role when Republicans were in the minority.

Capece signed the affidavit surrendering his law license on May 13, according to a copy of the affidavit obtained by the Observer.

He admitted to misappropriating the money between December 2009 and February 2015, according to the affidavit.

In a consent order of disbarment filed in Wake County Superior Court on Monday, Judge Donald Stephens ruled that Capece misappropriated about $706,000 as legal guardian of an estate and about $817,000 as trustee of a related living trust.

Capece misappropriated another $62,200 from a general trust account he maintained at BB&T Bank, the judge found.

The order does not say how Capece spent the money.

Capece is barred from asking to have his law license reinstated for at least five years, the judge ordered.

Capece was executor of the estate of Fritz Detmers of Denver, N.C., court records show. Detmers died at age 78 in 2009.

On LinkIn, an online business-oriented social networking service, Capece lists himself as project manager at Capital Conservation Group Inc. in Denver, N.C., for the past three months. A spokesman for the firm said Thursday that Capece had been a lawyer for the firm but was not employed there.

Capece says on LinkedIn that he worked for the Jonas law firm from April 2008 to February 2015 and at the Denver, N.C., law firm of Kennedy & Wulfhorst from December 2002 to April 2008.

In a statement Thursday, the Jonas law firm said Capece had been fired and that it was “dismayed that a former employee, a person we invited into our firm and treated as one of our own, would betray the trust of a client. Such an egregious breach of ethics and violation of the law is a betrayal of every standard we have worked hard to uphold over the decades.”

The firm said it continues “to work hard to be effective and ethical advocates for our clients. That is what we have been doing since Charles A. and Harvey Jonas first opened this practice in 1912.

(Mike Frisch)

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

Unreported Crimes

The Arkansas Supreme Court Committee on Professional Conduct ordered a 36-month suspension of an attorney admitted in 2007.

Since her admission, the attorney has faced a series of criminal charges and convictions for drug and driving offenses, as well as violation of probation.

The committee noted

At no point in time did any prosecuting attorney or any court report the conduct of Burris to the Office of Professional Conduct, as required by Section 15.A of the Supreme Court’s Procedures. When the criminal convictions were discovered, a formal complaint was prepared and served upon her. Burris filed a response to the formal complaint and admitted that she had been dealing with drug addiction issues for years and that she now believes that she has those issues under control.

The attorney's license has been suspended for years.

Burris’ license to practice law was suspended by the Arkansas Continuing Legal Education Board in 2009 and was never reinstated. Her license to practice law was suspended on March 2, 2009 for failure to pay her annual license fee and she did not pay her license fee for the years 2009, 2010, 2011, 2012, 2013, and 2014.

Self-regulation depends on fulfilling reporting obligations. See Rule 8.3(a).  (Mike Frisch)

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

Sunday, August 9, 2015

Attempted Murder And Other Charges Get Attorney Suspended

A North Carolina tax attorney has been suspended from practice as a result of criminal charges in South Carolina had the story 

A 39-year-old Cary man, who has worked as a tax attorney in Raleigh, is accused of holding his ex-girlfriend hostage at a South Carolina grocery store.

The Isle of Palms Police Department has charged Robert Howell with attempted murder, kidnapping and first-degree burglary in the incident, which happened Wednesday.

Investigators said Robert Howell followed Autumn Yee, 29, of Cary, to Isle of Palms, where she was vacationing. Howell allegedly took Yee to Hudson's Market, where she alerted one of the clerks by silently mouthing "call police."

In a 911 recording, the woman can be heard speaking to an emergency operator about the situation.

 "I need you to come to Wild Dunes, please. There's a man with a gun and he's holding me hostage," she said. "I need you to get here quick."

Isle of Palms police Capt. Kimberly Usry said Yee tried to keep herself and her assailant in public places so someone could see them. At some point, she jumped over the counter to try to get away. Howell grabbed her, ran out of the store toward the beach and was arrested, Usry said.

Police said Yee, who suffered minor scratches in the incident, had gone to Isle of Palms to flee from Howell a day after he allegedly assaulted and threatened her in her Cary home.

"Officers responded and found that a subject and been harassing the victim there," Cary police Capt. Randall Rhyne said.

In a 911 call that day, Yee told dispatchers she arrived home and found him pacing back and forth in the road, staring at her. She said she was frightened and asked the call-taker to stay on the line until help arrived.

"I'm just afraid to get out of the car," she said in the recording released Monday. "I just want a cop to escort me to my door and ask him to leave."

Robert Howell and his estranged wife, Sarah Howell, are locked in a contentious custody battle over their three children. According to court documents, Sarah Howell had subpoenaed Yee in the custody case.

A day after Yee was held hostage, Sarah Howell sought a protective custody order against her husband, citing the kidnapping as proof that he posed a danger to her and her children.

Cary police said they are now working with South Carolina authorities to serve Robert Howell with additional warrants.

"We take domestic violence very seriously," Rhyne said. "We have a pro-arrest policy for these type of offenses. We try to get them adjudicated to the full extent of the law."

Bo Demster, a managing partner at Poynter & Spurill in Raleigh, confirmed that Howell worked as a tax attorney at the firm from 2013 until this April. The terms of his departure were not disclosed.

"This was a real surprise to all of us who have worked with him," Demster said of Howell's arrest.

The Wake County Superior Court ordered the suspension. (Mike Frisch) 

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

Honest Lobbyist Gets Law License Back

The case recounted below from Pennsylvania demonstrates that disbarment is not necessarily a permanent condition.

Rather, with a proper showing of rehabilitation, a disbarred attorney can be restored to the practice of law.

These same principles animate a recent order of reinstatement from Massachusetts, where the court accepted a favorable recommendation from the a Hearing Panel.

The  attorney had been suspended for a criminal conviction and later resigned 

The professional misconduct that resulted in the petitioner's discipline, spanning roughly ten years, ended around 1999, and he has been disbarred since 2000. We are, of course, mindful that the mere passage of time is not enough to demonstrate current moral fitness.

He then appears to have turned his life around

Starting around 2001, and in the course of his work as a lobbyist, the petitioner has impressed his colleagues as a "straight shooter" even when that was not to his advantage, and they never had cause to question his honesty. The clients and colleagues to whom the petitioner disclosed his disbarment have found it inconsistent with the character they know.

The petitioner's supporting witnesses describe him as a person of great drive and initiative, always prepared to help, and an inspiration. His drive and initiative were on display when, despite his disbarment, he pursued business opportunities to support himself and his family. He continued his business as a lobbyist, we discuss other businesses below. The petitioner has also demonstrated good moral character by standing by friends and providing support in times of crisis or difficulty.

The misconduct that resulted in the petitioner's resignation and disbarment spiraled out of his attempt to handle a client's matter when- he candidly admits -- he was not competent to do so.

The panel was also impressed by the petitioner's community involvement, charitable activities and learning in the law

In light of our findings above, we need say no more to conclude that the petitioner's return to practice is consistent with precedent and the even-handed administration of justice, and it will not be detrimental to the integrity and standing of the bar or to the public interest. Still, we add that we are favorably impressed that, in response to bar counsel's inquiries about restitution, the petitioner placed $18,000 in escrow with his counsel, to be distributed to the estate heirs in the matter that resulted in his resignation and disbarment and constituting return of his legal fees in that matter, and that he charged his counsel with locating the heirs to receive that distribution. On a petition for reinstatement, "making restitution ... is an outward sign of the recognition of one's wrongdoing and the awareness of a moral duty to make amends to the best of one's ability. Failure to make restitution, and failure to attempt to do so, reflects poorly on the attorney's moral fitness." Matter of McCarthy, 23 Mass. Att'y Disc. R. 469, 470 (2007).


We recommend that as a condition on his reinstatement, if the petitioner establishes a practice which requires a trust account, he consult with the Law Office Management Assistance Program concerning the establishment and maintenance of trust accounts, and adopt its recommendations.

Citations to record omitted throughout. (Mike Frisch)

August 9, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Saturday, August 8, 2015

Commitment To Sobriety Leads To Reinstatement

The Pennsylvania Supreme Court has granted reinstatement to an attorney suspended since 2010.

The misconduct involved a third DUI and mishandling of estate assets. 

He offered persuasive evidence that alcoholism had led to the misconduct and that he has been sober and active in recovery programs since 2008.

The Disciplinary Board

Petitioner is not currently at risk for relapse, based upon his history of treatment and recovery, including the diagnosis of full sustained remission after 15 months of sobriety, as well as his ability to tolerate and cope with significant facts involving loss and an increase in stress without reverting back to addictive behaviors and/or addictive use...

Petitioner presented the testimony of his former wife, two adult children, attorneys and friends, all of whom credibly testified concerning Petitioner's addiction, acts and omissions, the consequences and ramifications of his conduct, and the steps he has taken to confront his addiction and redress his transgressions, as well as his ongoing recovery...

Despite the fact that his actions resulted in a great number of negative consequences in his life, such as alienation from family, incarceration, health problems, financial issues and suspension from the legal profession, Petitioner considers himself lucky because he has been given the gift of sobriety as a result. N.T. 252-253.

Petitioner regrets the harm that resulted from his actions, and accepts it as being the necessary consequence of the misconduct. N.T. 260. Concerning the matter involving the client estate from which he converted funds, Petitioner sought to contact the executor, who is a Catholic priest and longtime friend of Petitioner, and expressed remorse for his actions and a willingness to make restitution. N.T. 283-285

As a result of his sustained efforts, he is ready to return to practice

By all accounts, Petitioner has been tireless and unwavering in his efforts to address his addiction and regain control of his life. The record is replete with evidence of Petitioner's significant progress, starting from the time he sought assistance from LCL in 2008 and continuing to the time of the reinstatement hearing. Petitioner has actively participated in inpatient and outpatient treatment, and has displayed consistent and continued attendance at and involvement in AA and LCL.  Petitioner's testimony is very persuasive as to his readiness to resume the practice of law. He credibly described his transformation from addict to recovering addict. Not only has Petitioner actively worked his own recovery, he has transitioned to a place where he is able to assist other addicts. Petitioner is so dedicated to helping others achieve recovery that he was inspired to pursue a new life's work in the field of addiction counseling. His work at Mirmont Treatment Center is extremely important to him and will remain so after reinstatement, as he hopes to combine his legal expertise with his counseling work.

Petitioner has accepted full responsibility for his misconduct and has demonstrated sincere remorse and regret. Petitioner suffered many negative consequences as a result of his addictive behavior; however, he views these consequences as necessary in that he was able to achieve sobriety. Petitioner has worked to mend fractured relationships with his family, particularly his adult sons, and to be more accountable in his life. Petitioner's sobriety remains his first priority in life, as he is cognizant that a relapse could signify the loss of hard-won achievements. The record demonstrates that Petitioner has been an effective father, employee, LCL volunteer and member of society since his suspension.

Petitioner's witnesses wholeheartedly endorse his reinstatement, as they have observed first-hand the extraordinary changes he has made in his life. None of the witnesses have observed a relapse of Petitioner's sobriety, and each believes that Petitioner will properly balance his legal career with his recovery and be an asset to the legal profession.

(Mike Frisch)

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

Whistleblowing Attorney Loses

The public policies that underpin Rule 1.13(b) do not protect a whistleblowing attorney's job, according to a recent opinion of the Utah Supreme Court.

This case requires us to determine whether rule 1.13(b) of the Utah Rules of Professional Conduct reflects a clear and substantial public policy of the kind sufficient to prevent companies from terminating in-house legal counsel for reporting illegal activity to management. David K. Pang, an attorney, filed a complaint against his employer alleging that he was terminated for refusing to ignore the company‘s violation of several states‘ usury laws. He asserted that the company had effectively asked him to violate the Utah Rules of Professional Conduct in order to keep his job. The district court dismissed his complaint, concluding that Mr. Pang was an at-will employee and that his firing did not violate a clear and substantial public policy of the State of Utah. We affirm the district court‘s decision. Rule 1.13(b) does not constitute a clear and substantial public policy that prevents the termination of an at-will employee. And even if it did, other rules of professional conduct evince strong policy choices that favor allowing clients to terminate the attorney-client relationship at any time, including firing an inhouse lawyer with whom an organizational client disagrees.


Between 2009 and 2012, Mr. Pang worked as a compliance officer for Internal Document Services (IDS) and Progressive Finance. Resource Management Incorporated (RMI) also hired Mr. Pang in 2012, becoming a ―co-employer‖ with the other two companies. IDS promoted Mr. Pang to in-house counsel in 2011, making him responsible for its compliance with state regulatory requirements in several different jurisdictions. Mr. Pang apparently worked in this same capacity for the other two companies. Because the relationship between these three entities is not relevant to the merits of the issues presented on appeal, we will refer to them collectively as ―the Company throughout this opinion.

Beginning in September 2011, Mr. Pang became concerned that the Company was violating "usury laws in numerous states by charging an interest rate above statutory limits and not registering as a loan institution." He warned the Company‘s owners ―repeatedly "that these oversights ―rendered their out of state practice illegal." Mr. Pang ―made a final attempt to convince "the Company of its ―illegal lending practices" in May 2012. He ―printed, and took home, loan contracts from different states in order to develop a spreadsheet report to show the specific number of . . . usury violations." Two weeks later, the Company fired Mr. Pang ―for taking home documents, "citing a provision of the employee handbook that prohibited such conduct. ―[A]t the time of his termination," Mr. Pang learned ―for the first time "that ―the owners were aware of the problems but did not plan to correct" them. And he ―was told to ignore " the Company‘s ―non-compliance."


We affirm the district court‘s decision. Even though the court erroneously denied Mr. Pang‘s request for a hearing, the error was harmless. Mr. Pang fails to invoke a clear and substantial public policy that would have prohibited the Company from terminating him. The specific allegations in his complaint do not support the assertion that he was terminated for refusing to commit an illegal act, and rule 1.13(b) does not, standing alone, reflect the type of public policy that qualifies as an exception to the at-will employment rule.

(Mike Frisch)

August 8, 2015 | Permalink | Comments (0)

Friday, August 7, 2015

Disbarred Before Barred

An attorney admitted in Virginia and the District of Columbia has an application pending for Maryland admission.

Unfortunately, the Maryland Court of Appeals has disbarred her before they barred her.

This attorney disciplinary proceeding involves a lawyer, unlicensed to practice law in the state of Maryland, assuming the role of “Managing Attorney” in a Maryland law firm and meeting with clients in the firm’s Maryland office.

The misconduct involved unauthorized practice that led to a laundry list of ethics violations.

Not only did the hearing judge make no findings as to mitigation, but, as Petitioner points out, Respondent engaged in a variety of misconduct. Respondent’s misconduct stems from her ineffective supervision of the firm’s attorney trust account and her engagement in the unauthorized practice of law in Maryland. Although Respondent maintains that her misconduct was unintentional, in some instances her misconduct led to harmful consequences to clients, and that harm was not remedied. By inadequately supervising the attorney trust account, Respondent harmed clients in failing to ensure that unearned attorneys’ fees were being held in trust, and by failing to issue refunds when work was not performed. In addition, though Respondent signed retainer agreements promising services to clients and initial letters on behalf of clients in furtherance of those promised services, several clients’ matters were either not completed or not undertaken at all.

Finally, one crucial feature of the instant case is Respondent’s role as “Managing Attorney.” When an attorney engages in managerial conduct like Respondent’s, from which a reasonable client could conclude that the attorney is in some real way responsible for the client’s matter and the legal matters of the firm generally, then that attorney has adopted a significant set of responsibilities. That Respondent took no reasonable steps to ensure that client matters were handled correctly is a serious violation. As noted, in cases involving the unauthorized practice of law, one of the factors we consider is deterrence. Here the misconduct evolved from an arrangement between an unlicensed attorney and a nonlawyer, whereby the unlicensed attorney agreed to manage a law firm for the nonlawyer. Although the primary duties and responsibilities of the unlicensed lawyer related to the management of the law firm’s attorney trust accounts, Respondent’s ineffective management led to the firm’s deposit of unearned client fees into the firm’s operating account before performing any meaningful client services. Taking all of this into account, the appropriate sanction is disbarment.

Judge McDonald would suspend rather than disbar. (Mike Frisch)

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

Thursday, August 6, 2015

No Obvious Miscarriage of Justice

The District of Columbia Court of Appeals found that there was not an obvious miscarriage of justice in imposing reciprocal discipline based on an attorney's disbarment in Alabama.

The court concluded that her failure to participate in the proceedings waived her rights and disbarred her.

When neither the respondent nor Bar Counsel opposes identical reciprocal discipline, “the imposition of identical discipline should be close to automatic, with minimum review by both the Board and this court.” In re Childress, 811 A.2d 805, 807 (D.C. 2002) (quoting In re Cole, 809 A.2d 1226, 1227 n.3 (D.C. 2002). At most, the reviewing body should examine “the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result [from] the imposition of identical discipline—a situation that we anticipate would rarely, if ever, present itself.” In re Spann, 711 A.2d 1262, 1265 (D.C. 1998).

Although we have often repeated these words, we have yet to provide much guidance for assessing whether an obvious miscarriage of justice will result. We do so here and conclude that this is not one of those very rare cases where an obvious miscarriage of justice will result from imposing identical reciprocal discipline.

The court rejected the Board on Professional Responsibility's call for a short suspension

the Board found that disbarment is substantially different from the sanction that would have been imposed had Caffey’s misconduct occurred in the District. It therefore recommends that we impose a ninety-day suspension but require Caffey to demonstrate her fitness to practice law before she may be reinstated. Bar Counsel takes exception to that recommendation, arguing that the Board failed to accord appropriate deference to Alabama’s decision and unnecessarily complicated its review in an uncontested case “by applying the typical exceptions to reciprocal discipline” available to attorneys who contest identical discipline. Although we appreciate the Board’s assistance, we agree that it erred by analyzing this case as if it were a contested proceeding.


The facts of this case readily demonstrate that this is not the “rare” case where such an obvious miscarriage of justice will result. Caffey received notice and was given an opportunity to be heard in the Alabama disciplinary proceeding. The Board does not dispute that if it had occurred in the District of Columbia, Caffey’s behavior would have violated our Rules of Professional Conduct, including Rule 1.1 (b) (duty to serve a client with skill and care); Rule 3.5 (impartiality and decorum of the tribunal); and Rule 8.4 (d) (serious interference with the administration of justice). Caffey’s misconduct has been deemed contemptuous and prejudicial to her client by forcing a mistrial. She was found to have acted dishonestly and with selfish motive...

We do not act unfairly by assigning such significant weight to Caffey’s failure to oppose identical reciprocal discipline. There is no doubt that she had notice of the instant proceedings. She requested, and was granted, additional time to file a brief with the court.9 We recognize that, in some circumstances, physical or other forms of incapacitation may prevent an attorney who has received notice from participating in disciplinary proceedings. But Caffey has never claimed that she was hampered by incapacity.

As I blogged when the board filed its recommendation, I find disbarment based on the Alabama proceeding deeply troubling and quite likely an obvious miscarriage of justice. I think the board got this one right.

The disbarment involved her conduct during a single state court criminal trial.

The Alabama order (which I have been unable to find on line) quotes from the transcript extensively. The attorney may well have crossed the often difficult to discern line from zealousness to argumentative, but no more so than I have frequently seen in hotly-contested criminal and civil trials.

The trial court found the attorney in contempt and declared a mistrial.

After the trial, the attorney made a comment to a television station "that there was an intolerance by white judges to show respect to black attorneys and that the judge was embarrassed by all the lies the State told during the trial."

The prosecutor filed the bar complaint.

After the Alabama disbarment, the attorney sued a host of defendants including the Alabama Supreme Court.

The suit was dismissed on immunity grounds. a blogger who surfs state court and bar web pages for disciplinary orders, I would rank Alabama as the very worst jurisdiction  in terms of online transparency. Lack of transparency (which is not limited to Alabama) makes me wary of any disciplinary regime. If anyone knows how to find Alabama disciplinary orders on line, please educate me.

District of Columbia Bar Counsel supports disbarment.

As an assistant bar counsel, I argued many times in opposition to a downward departure from identical discipline recommendation by the BPR. My position was premised in the idea that the Board often inappropriately either minimized the misconduct found or second-guessed the disciplining tribunal's sanction.

Here, the Alabama proceedings just give me pause that I rarely, if ever, have felt in a reciprocal matter.

I predict that the Court of Appeals will not impose such a harsh sanction. 

If you are keeping score, that would be a wrong prediction.

I think the court correctly was concerned by the attorney's lack of interest in these proceedings.  This may have led here to a subtle miscarriage of justice. (Mike Frisch)

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

I Declare

An unpublished recommendation for disbarment of the California State Bar Court Review Department rejected a number of charges because the evidence was presented by declaration rather than live

This is respondent Lorraine Dickson’s second disciplinary proceeding. It involves our evidentiary rules, on the one hand, and Dickson’s serious misconduct, on the other. During the first part of Dickson’s trial, the Office of the Chief Trial Counsel of the State Bar (OCTC) presented its case in six client matters by relying on direct testimony from witnesses and documentary evidence. After a break of several months, and over Dickson’s objections, OCTC presented its case in the remaining matters by relying on declarations, in lieu of live testimony, and other documentary evidence. Ultimately, the judge found Dickson culpable of 44 counts of misconduct, and further found five factors in aggravation (prior record, multiple acts/pattern of misconduct, dishonesty and concealment, significant harm, and indifference) and one factor in mitigation (emotional/physical difficulties). The judge recommended disbarment.

After independently reviewing the record (Cal. Rules of Court, rule 9.12), we find that the judge erred in relying solely on the witness declarations in lieu of testimony to support his findings in eight client matters. We dismiss those matters, and the counts therein, with prejudice. Nevertheless, we affirm the judge’s disbarment recommendation because Dickson is culpable of 21 counts of misconduct, which is serious in its breadth and reveals an ongoing disregard for the public, the courts, and the legal profession.

The change in procedure came at a break in the proceedings

Over six days in the fall of 2012, OCTC presented its case in six client matters through the testimony of witnesses, including Dickson, and documentary evidence. In turn, Dickson cross-examined the witnesses. The trial was then continued to May 2013 because Dickson underwent emergency surgery.

Thereafter the evidence consisted of declarations, which led the Review Board to conclude

the judge did not err in admitting the declarations. Admission was proper under rule 5.104(C) because the statements are relevant, and signed declarations are the type of evidence relied on in serious matters.  Nevertheless, as out-of-court statements offered to prove the truth of the matters stated, the declarations are hearsay evidence, not direct testimony, even though the judge gave Dickson an opportunity for cross-examination...

Further, in the eight at-issue matters, the charges were based on clients’ disputed versions of events. Without direct testimony, the judge did not have the opportunity to observe the clients’ demeanor or evaluate their credibility — essential information where a complaining witness’s version of events is the basis for the allegations...

As such, we find the judge improperly relied on declarations “to support a finding.” (Rules Proc. of State Bar, rule 5.104(D).) He could only “use” this hearsay to explain or supplement “other evidence.” (Ibid.) The evidence in the following matters is comprised almost exclusively of hearsay declarations and other hearsay documentary evidence...

The few exhibits containing evidence that is admissible over objection in civil actions, such as party statements, do not provide clear and convincing proof of Dickson’s culpability.

This strikes me as a significant decision.

Can California readers tell us the reason why so few disciplinary decisions are published? (Mike Frisch)

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

Who Wants To Buy this Diamond Ring?

An attorney who broke into the home of her ex-husband, stole a $13,000 diamond ring and his present wife's Rolex watch and sold the stolen items to Diamond Distributors for $2,700 should be suspended for a year and a day, according to a report of a Louisiana Hearing Committee.

She used the proceeds to gamble.

The attorney had self-reported the arrest and admitted the charged ethical violations.

The committee considered that she is seeking treatment for a previously undiagnosed bipolar disorder. (Mike Frisch)

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

Wednesday, August 5, 2015

Blame It On The Cosa Nostra

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a defamation action

This defamation action arises out of a wholly accurate news report stating that federal authorities raided The Cheetah Club (Cheetah's), a midtown Manhattan strip club, which they alleged to be "run by the [M]afia" and at the center of an underground immigration ring that brought Russian and eastern European women into the United States, forcing them to work as exotic dancers. On November 30, 2011, federal agencies charged seven alleged members and associates of the Gambino and Bonanno crime families with, inter alia, transporting and harboring illegal aliens to work as dancers in New York area strip clubs. The indictment alleged that organized crime defendants controlled certain strip clubs and forced women who had been trafficked from eastern Europe to dance at the clubs. As the women would be placed in sham marriages for citizenship purposes, the federal operation was called "Operation Dancing Brides."

The conduct of the defendants

After the raid at Cheetah's, defendant CBS News broadcast the event during its noon news broadcast. Reporter Kathryn Brown (in front of Cheetah's) broadcast the following:

"[S]ources tell CBS-2 News this bust is being dubbed  Operation Dancing Brides,' and this strip club here, Cheetahs in Midtown, they say is at the center of the operation. Cheetahs advertises exotic women and the

. . . federal authorities say it is run by the mafia. They have been here — feds have been here all morning. They conducted an early morning raid and they've been here for hours inside collecting evidence. They are still inside right now. Meantime, earlier this morning, agents with the immigrations and customs enforcement arrested 25 men described as ringleaders of this entire operation. Many of them they say are members of the Gambino and Bonanno crime families. They say the men were involved in an elaborate operation to recruit women from Russia and eastern Europe into the U.S. . . . [to] force the women to work as dancers in strip clubs across New York City, including Cheetahs . . . This is still a developing story and we will have much more on this tonight on CBS-2 News at 5:00."

At 5:00 p.m., defendants broadcast a news program called The Evening Report, which contained, inter alia, the following segment:

"Federal authorities carried out boxes of evidence from this Midtown strip club during an early morning raid. They say the club, Cheetahs, is one of several at the center of an underground immigration ring that stretches from Times Square to the heart of Russia. Investigators say Russian and Italian mobsters were working together in the elaborate scheme to bring Russian and eastern European women to the U.S., then funnel them to strip clubs to work as exotic dancers."

The Report then showed Kathryn Brown interviewing a federal law enforcement official, the director of the National Organization for Women, and David Carlebach, an attorney for Cheetah's. Carlebach was broadcast saying, "There is absolutely no La Cosa Nostra, as you say, connection."

No case, says the majority

The suggestion that the individual plaintiffs are necessarily identified as members of organized crime because they are employees of entities that provide management services to Cheetah's — reported to be "run" by the Mafia — is simply not logical. It is based on innuendo and constitutes an attempt to enlarge the concept of managerial services to include domination and control of an organization by force, whether actual or threatened, in contravention of the rule set forth in Tracy.

There is a dissent.

Bonus points to whoever gets the title reference. (Mike Frisch)

August 5, 2015 | Permalink | Comments (1)

Moral Turpitude Is In The Eye Of The Beholder

In contrast to the District of Columbia Board on Professional Responsibility, the California State Bar Court Review Department holds that an attorney's four alcohol-related driving offenses involved moral turpitude and warrants a meaningful sanction of actual suspension

 After independently reviewing the record (Cal. Rules of Court, rule 9.12), we agree with the hearing judge that the facts and circumstances surrounding Guillory’s convictions involve moral turpitude. We base our conclusion on the following facts: (1) Guillory attempted to use his position as an assistant deputy district attorney to avoid arrest; (2) his cousin died in one of his alcohol-related driving incidents; (3) he repeatedly drove with a blood alcohol concentration (BAC) well above the legal limit; and (4) he violated his criminal probation by driving on a suspended license at the time of his two most recent arrests for DUI.

 From the start of his career, Guillory has been on notice that the State Bar considers alcohol-related driving convictions to be a serious matter. His first conviction occurred while he was in law school, and it affected his admission to the Bar. He promised the Moral Character Committee (Committee) during the admissions process that he would not drink and drive again. Nevertheless, he did so repeatedly after becoming an attorney, evidencing a lack of concern for public safety and respect for the legal system. Given these circumstances, as well as the serious aggravation (multiple acts and indifference) and lack of mitigation, we affirm the hearing judge’s recommendation of a two-year actual suspension with conditions, including proof of his rehabilitation and fitness to practice law.

The accident that had killed his cousin took place prior to admission and had been disclosed.

He had difficulty acknowledging he was an alcoholic but had some mitigation

As for his personal problems, we accept that Guillory’s emotional and financial difficulties contributed to his alcohol abuse and DUIs. But absent evidence of a sustained commitment to sobriety, he is at risk of committing misconduct if faced with future stressors. (Std. 1.6(d) [must prove that problems no longer pose risk that attorney will commit future misconduct].) Also, the two attorney witnesses who testified to his good character do not represent a wide range of references in the legal and general communities required to demonstrate extraordinary good character.

 Unlike the D.C. case, the offenses were misdemeanors and he did not flee the scene of an accident.

The Review Department nonetheless concludes that a two-year suspension is appropriate.

The Review Department was less sympathetic to the attorney that the D.C. Board had been for  an attorney who seriously injured another motorist and fled the scene.

Unlike in D.C., the regular practice of driving around blind drunk was treated as an aggravating rather than mitigating factor

Guillory claimed that his DUIs caused no harm because they did not result in actual bodily harm or property damage. This attitude shows a lack of insight into the inherent danger in drinking and driving, and the evasive action required by motorists to avoid his reckless driving.

The D.C. BPR apparently shares that lack of insight. (Mike Frisch)

August 5, 2015 in Bar Discipline & Process | Permalink | Comments (1)

No Property Right To Be Named Emeritus Professor

A North Carolina Central State chemistry  professor who had retired after 38 years of teaching expected to be accorded professor emeritus status.

He did not get it. 

He sued but lost in an affirmance of the North Carolina Court of Appeals.

In the instant case, at no point before or after retirement did Plaintiff actually acquire the specific benefit of Professor Emeritus status. He was merely “nominated.” No alleged facts, even when taken as true, indicate nomination results in automatic approval. To the contrary, Plaintiff’s complaint forecasts that conferral of the status is a discretionary university decision; the nomination must pass several stages of approval by multiple committees. Such a discretionary conferral process cannot give rise to more than a “unilateral expectation” of the status.

The professor had no property interest protected by state or federal law

The absence of any record or legal support underlying Plaintiff’s claim to a “due process property interest” in Professor Emeritus status compels us to conclude his section 1983 causes of action premised solely thereupon must fail...It is therefore unnecessary to address Plaintiff’s contention that the change in NCCU’s nomination procedure—which appears now to include a faculty deliberation of a nomination outside of a candidate’s presence without a “name-clearing” hearing—deprived him of that alleged interest.

His defamation claim also was dismissed. (Mike Frisch)

August 5, 2015 in Comparative Professions | Permalink | Comments (0)

Tuesday, August 4, 2015

Making Bar Counsel's Job Harder

The District of Board on Professional Responsibility has recommended that an attorney who had misappropriated entrusted funds and failed to participate in the disciplinary proceedings be disbarred.

Nothing remarkable about that result but my attention was drawn to the following footnote

We note that Bar Counsel charged Respondent with violating Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation) in both the Mills and Anderson Matters. The Court has held that each of the four terms encompassed by Rule 8.4(c) “should be understood as separate categories, denoting differences in meaning or degree.” Each category of misconduct under Rule 8.4(c) thus requires different elements of proof. See In re Romansky, 825 A.2d 311, 315 (D.C. 2003). Notwithstanding the clear holding of Shorter, Bar Counsel declined to identify the element or elements of Rule 8.4(c) on which it relied to establish a violation, when the Hearing Committee invited it to do so at the conclusion of the hearing. Tr. 263-64. In its post-hearing brief, Bar Counsel explained that “classifying which type of dishonesty occurred [] would not change the fact that Respondent violated Rule 8.4(c), or affect the appropriate sanction,” because Respondent had committed each of the four types of misconduct “[a]t some point.” See Bar Counsel’s Post-Hearing Brief at 46 (emphasis in original). Yet, Bar Counsel still failed to specify the facts that supported each of the elements of Rule 8.4(c). As a result, the Hearing Committee was left to sift through the evidence on its own, concluding that Bar Counsel proved that Respondent committed dishonesty, deceit and misrepresentation, but not fraud, in the Anderson Matter, and that Respondent committee all four types of misconduct in the Mills Matter. See H.C. Rpt. at 39-43; 59-62. Bar Counsel’s reluctance at the outset to specify the elements underlying the Rule 8.4(c) charges, and its eventual failure to identify the facts underlying each element of a violation in its brief, raises potential due process concerns for respondents, although we find none here; Respondent made no attempt to participate in this disciplinary proceeding and should be disbarred under Addams in any event, regardless of any violation of Rule 8.4(c). At the least, Bar Counsel’s failure to clarify its theory of prosecution created a burden for the Hearing Committee, which diligently matched the facts to the Rule 8.4(c) elements.

Pardon my broken record, but this is nonsense.

These are not criminal proceedings. If it was a criminal proceeding, crimes can be charged in the alternative and are subject to lesser-included offense provisions. 

As the Court of Appeals explained years ago in rejecting a board order of dismissal on speedy trial grounds

A disciplinary sanction differs from a criminal conviction. Although both protect the public, they do so in different ways. Most importantly, an attorney is in a continuing position of trust toward clients, the courts, and society in general. A member of the bar has accepted the onerous responsibility of participating in the administration of justice. We grant the license to practice law as a privilege, not as a right, and we do so only on the strict condition that the attorney aspire to the highest standards of ethical conduct. 

Simply out, the board wants to enforce a procedure that forces Bar Counsel to do something unheard of in disciplinary law - elect the subsection of a rule that clearly describes gradations of the same type of misconduct.

If the attorney violates the rule in any respect, sanction follows. That is what the Shorter case holds.

And if Bar Counsel gets it wrong (something the board treats as the rule, not the exception), does the lawyer go free because the misconduct involved dishonesty but not misrepresentation?


Romansky (which I handled for several of the many years it took to decide) and Shorter do not remotely stand for this pleading proposition.

The only thing driving this assault on commonsense is a desire to make Bar Counsel's job harder and create rights for lawyers that no one else has in any adjudicatory forum. These proceedings exist to protect the public and the integrity of the profession.

Creating procedures to make enforcement a hide-the-ball game is directly contrary to the reason the board is supposed to exist.

As the Connecticut Supreme Court aptly held

In attorney disciplinary proceedings, two interests are of paramount importance. On the one hand, we must not tie the hands of grievance committees and trial courts with procedural requirements so strict that it becomes virtually impossible to discipline an attorney for any but the most obvious, egregious and public misconduct. On the other hand, we must ensure that attorneys subject to disciplinary action are afforded the full measure of procedural due process required under the constitution so that we do not unjustly deprive them of their reputation and livelihood.

This is just the kind of "procedural requirement" that Connecticut justly condemned. 

Because neither the attorney or Bar Counsel will likely appeal the recommendation, going forward the board will cite this footnote as authority for requiring Bar Counsel to engage in all sorts of "elections" in dishonesty, conflicts and misappropriation cases.

 The case is In re Jerome Clair. (Mike Frisch)

August 4, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Monday, August 3, 2015

D.C. BPR: No Moral Turpitude, No Suspension, For Felony Hit-And-Run

The report of the District of Columbia Board of Professional Responsibility in the case of Wayne Rohde, Board Docket No. D347-05, has been filed.

You may remember the case - it involves an attorney who drove from the District of Columbia to Virginia after a night of heavy drinking. He struck and seriously injured another motorist, fled the scene but left his car bumper with license plate affixed behind.

He pled guilty and was sentenced in 2005 to felony criminal charges in Virginia.

The D.C. disciplinary system began its processes that same year.

It took seven years for the hearing committee to file a report on the ethics charges. On the plus side, the Board acted faster but to no better result.

The board  found that the conduct did not involve moral turpitude because the attorney was suffering from an "alcoholic blackout" when he committed these crimes.

The effect of the "blackout" was a subject of conflicting expert testimony

[Bar Counsel expert] Dr. Blumberg disagreed with [respondent's expert] Dr. Whitfield concerning the effects of an alcoholic blackout. In his opinion, a person suffering an alcoholic blackout can still access his long term memory and is able to distinguish right from wrong; the person still knows when his or her behavior is illegal or unethical. FF 90. Applying these principles to this case, Dr. Blumberg testified that at the time of the collision, Respondent was aware of the collision and understood that it was wrong to leave the scene, even if he later did not remember having such knowledge or awareness. FF 92. Dr. Blumberg opined that Respondent did not lose the ability to appreciate the wrongfulness of his actions or to conform his conduct to the requirements of the law and that he retained the ability to form the specific intent to stop and render aid to Ms. Banks. Although Respondent’s judgment was impaired, he did not lose the capacity to choose the proper course of action. FF 93. In support of his opinion, Dr. Blumberg observed that Respondent was able to perform a number of other tasks during his alcoholic blackout, including paying his bar tab, with a tip, retrieving his car from the parking garage, and driving to the scene of the collision and then home after colliding with Ms. Banks. FF 94. Respondent’s ability to drive home suggested an awareness that he was involved in an accident and that he was choosing to leave the scene. FF 95. Dr. Blumberg agreed with Dr. Whitfield that, but for Respondent’s intoxication, he would not have left the scene of his collision with Ms. Banks. FF 96. The determination of the credibility of the experts was central to the Hearing Committee’s findings. The Hearing Committee found that it was a “close question,” FF 105, but ultimately credited Dr. Whitfield’s testimony in its entirety.

So let me get this straight. An attorney practices at a major law firm and there is not a hint of evidence that he functions below par at work. His practice is to get loaded night after night near work and drive home drunk to Virginia. Like a random bullet from a gun, the inevitable happens. Fortunately, he causes major injury but not death. He flees the scene.

No real disciplinary consequences because he'a an alcoholic?

If it's a "close question," why not protect the public and uphold the integrity of the legal profession?

While the board found ethical violations, it was a treated as a mitigating factor that he was an alcoholic when he was driving drunk.

It found distinguishable the Tidwell case, where the court disbarred the attorney for causing a death while driving drunk and fled the scene. Likewise the Hoare case, where the court imposed a two-year suspension for a vehicular homicide where the attorney did not flee, played no role in the sanction analysis.

Rather, the proposed sanction is probation without suspension for a single day

we recommend that Respondent be suspended for two years with a requirement to prove his fitness to practice as a condition of reinstatement, and that the suspension be stayed in favor of a three-year period of supervised probation, subject to the conditions set forth by Hearing Committee Number Three in its Report and Recommendation. We further recommend that Respondent not be required to provide his clients notice of the probation.

For nearly killing someone and fleeing the scene. 

They note that the incident happened eleven years ago and never (unless I missed it) acknowledge that seven years of that time involved their own hearing committee's disgraceful delay.

And he doesn't need to tell his clients about it - it's double secret probation. 

By coincidence, he's a big firm lawyer. 

It's another day in the the world of the D.C. bar disciplinary system.

The Board report can be found at this link by entering the attorney's name. (Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Unneighborly Threat

The California Bar Journal reports a six-month suspension with credit for time served and probation for these incident

In the first incident, on Oct. 16, 2011, a police officer saw Sterkin yelling obscenities at people and shattering wine bottles in the middle of the street. Sterkin asked to be transported for mental health treatment, but struck an officer and resisted being placed in handcuffs. Later, Sterkin threatened a neighbor, stating: “I am going to slit your throat with a buck knife and watch your guts fall on the floor.” The neighbor had not had any prior contact with Sterkin and did not provoke the threat.

In mitigation, Sterkin cooperated with the State Bar and his successful completion of the Alternative Discipline Program, and the Lawyer Assistance Program indicates he no longer suffers from the mental health issue that led to his misconduct.

The attorney pleaded no contest to criminal charges "that occurred when he had not been taking his medication." (Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Oh Brother

More from the California Bar Journal

JOHN MICHEL GANTUS [#55038], 67, of Glendale, was disbarred March 1, 2015 and ordered to comply with rule 9.20 of the California Rules of Court.

The State Bar Court found that Gantus misappropriated $365,059.84 from his father’s estate, failed to file an inventory and appraisal or to file federal and state income tax returns for his late father and his estate and breached his fiduciary duties in the administration of the estate.

Gantus and his sister were to share equally in their late father’s estate, which was admitted to probate in November 2001. Gantus was to serve as executor of his father’s will the following March and was supposed to file an inventory and appraisal within four months. He didn’t do so for more than eight years. He also did not deposit any of this late father’s assets into an estate fiduciary account and instead put them into a non-interest bearing checking account on which both he and his father were signatories.

For more than seven years until he was removed as executor, Gantus kept rental income from the estate, making cash payments to himself and paying credit card bills and his son’s college tuition. When his sister asked for an accounting and her share of the estate, he did not oblige, leading her to hire an attorney. Gantus and his sister ultimately mediated the case and arrived at a settlement agreement.

He had one prior record of discipline, a 1998 public reproval for failing to deposit client funds in his client trust account or communicate with a client.

(Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)


From the August 2015 California Bar Journal

 [An attorney] was disbarred Feb. 28, 2015 and ordered to comply with rule 9.20 of the California Rules of Court.

On Nov. 14, 2013, Martinez pleaded no contest to 43 felony counts of a practice known as “capping,” of soliciting legal business with the help of non-attorneys. According to his stipulation in which he agreed to disbarment, from 2006 to February 2012, Martinez used approximately eight cappers to obtain cases for his law firm. The cappers would listen to traffic scanners to identify automobile accidents, go to the scene and meet with the accident victims then refer them to Martinez for representation. Often, they would take the accident victims to Martinez’s office. In return, the cappers would receive a fee for their referral.

In addition, Martinez failed to comply with the terms of his disciplinary probation in another case by failing to submit quarterly reports to the Office of Probation on time and by not paying restitution in full by deadline.

He had one prior record of discipline, a 2012 suspension for failing to supervise by allowing his non-attorney staff to engage in the unauthorized practice of law and failing to supervise his employees (which allowed them to mishandle client funds), perform legal services with competence by not paying his clients’ bills for services rendered by their chiropractor or deposit his clients’ settlement funds into his client trust account.

(Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)

From Ethics Professor To Suspended Lawyer

Oklahoma's Own had the story behind a recently-entered order of interim suspension of the Oklahoma Supreme Court

Documents show one of Tulsa’s top lawyers is suspended from practicing law in Oklahoma.

Attorney Robert Nichols has taught ethics at University of Tulsa law school, but one of his former clients is accusing him of stealing almost $200,000.

Ralph Mackey said he trusted Nichols for years in an imminent domain case but when it came time to get a settlement check, Mackey said Nichols kept it all to himself.

Mackey said he never signed a check for $198,332, but his name is on it along with the real estate fraud attorney’s signature.

"Obviously didn't look like my signature at all. My heart just sunk. My stomach turned," Mackey said.

He and Nichols were in a five-year eminent domain fight with the City of Tulsa over plans to expand the Gilcrease Expressway - the expansion cut 20 acres out of Mackey's 40 acre property near 41st West Avenue and 31st Street.

Their negotiations were wrapping up this time last year and Nichols was set to accept the almost $200,000 settlement check on behalf of his client.

"Was looking forward to finally having everything ended, finally receiving my money," Mackey said.

But he never saw the check.

Mackey said he emailed Nichols for months -- "Hey Robert, do you have my money? How long have you had my money? Please answer all of my emails that you have not replied to."

He said Nichols' responses were just excuse after excuse until Attorney Edward Lindsey got involved and filed a lawsuit against his law firm.

"When you settle a case, the first person who should get their money is the client. And he was hiding that he had gotten the money and used the money for other purposes, and he had to be sued to come clean on that,” Lindsey said.

In the lawsuit, Edwards and Mackey are asking Nichols for $250,000. Edwards said Nichols has paid $7,000 of it, and Mackey needs the rest of it, ironically, to pay attorneys' fees.

"You're sitting around and you're waiting, and you're waiting, and waiting, and you haven't been paid and it affects everything," he said.

We called Nichols for comment but have not heard back. His law firm partner Brian Curthoys, who is named in the suit, has not had his license suspended.

From the court order

The [Oklahoma Bar association]  alleged instances of Respondent settling matters without client knowledge or approval and converting client funds to his personal use, and noted that Respondent continues to appear in district court on several condemnation cases where large Commissioner's awards and/or damage settlements are anticipated. The OBA also requested an Order prohibiting Respondent from withdrawing funds from his client trust account(s) until an audit may be performed.

(Mike Frisch)

August 3, 2015 in Bar Discipline & Process | Permalink | Comments (0)