Saturday, December 17, 2016
The Wyoming State Bar has a Disciplinary Summary document that lists and describes the public and private attorney discipline imposed in the Cowboy State.
Among the more interesting summaries of private discipline
Attorney drafted an order that contained the words “Circuit Court Witch” under the signature line for the Circuit Court Judge. The order was drafted as a joke but was inadvertently printed by the attorney and submitted to the judge by mistake. The attorney did not discover the mistake until the judge reported the matter to the Wyoming State Bar. Attorney violated Rule 8.4(d). Discipline: Private Reprimand. Attorney required to pay costs of $50 and an administrative fee of $500.
Attorney made demeaning comments reflecting the attorney’s personal and religious feelings against gay couples being foster parents in the presence of several individuals, including the foster parent and the attorney’s client, the foster child’s natural parent. In making these comments, the attorney was not speaking for the client, as the client did not share the views expressed by the attorney. Such conduct on the part of the attorney violated Rule 8.4(d). Other rule violated: Rule 4.4(a). Discipline: Private Reprimand. Attorney privately reprimanded and required to pay cost in the amount of $50 and an administrative fee of $500.
Prosecuting attorney met with several minors and their parents following an incident in which law enforcement personnel discovered the minors after hours on school property, mixing toilet bowl cleaner with balls of aluminum foil in plastic bottles, which led to a chemical reaction that caused the bottles to burst or explode, making a loud noise. The prosecutor told the minors and their parents that they could be charged with felonies or misdemeanors and perhaps federal charges and may be subject to incarceration. The minors cooperated fully with the prosecutor and freely admitted their involvement. School district officials were contacted but declined to pursue school district discipline actions. Attorney violated 3.8(b) when prosecutor interviewed the young men before giving them a reasonable opportunity to obtain counsel. Discipline: Private Reprimand. Attorney privately reprimanded and required to pay administrative fee of $500 and costs of $50.
Private reprimand issued to attorney whose law firm issued a press release reporting upon the results of a jury trial in which the attorney represented an injured plaintiff. The verdict apportioned comparative fault among the plaintiff and several other parties, including the defendants. The jury apportioned 95% of the fault to the plaintiff and two non-parties, and 5% to the defendants. The jury determined the plaintiff’s total damages to exceed $5 million. Judgment was ultimately entered in favor of the plaintiff and against the defendants in the amount of 5% of the plaintiff’s total damages. The press release reported the jury’s finding of liability on the part of the defendants, reported the amount of the plaintiff’s damages, but omitted any mention of the jury’s apportionment of fault or the fact that the plaintiff would only recover 5% of his total damages from the defendants. Such conduct on the part of the attorney violated Rule 7.1 because the press release omitted facts necessary to make the statement, considered as a whole, not materially misleading, and because the press release was likely to create an unjustified expectation about results the lawyer can achieve. Discipline: Private Reprimand. Attorney privately reprimanded and required to pay costs in the amount of $50 and an administrative fee of $500.
The summaries are organized by the applicable rule violation and also contain the full text of each rule. (Mike Frisch)
The Florida Judicial Ethics Advisory Committee has an opinion
Opinion Number: 2016-20
Date of Issue: November 28, 2016
1. May the inquiring judge serve on a local bar association committee formed to host a golf tournament, which is a fundraising event for the Guardian Ad Litem Foundation, an entity that appears in every dependency case coming before the judge?
2. May the inquiring judge attend the golf tournament and assist with organizational tasks such as setting up the silent auction, serving food and beverages, setting up hole sponsor signs, taking pictures, and other non-fundraising tasks?
Canon 5A(1) requires that a judge conduct all extra-judicial activities so that they do not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Â Canon 5C(3) permits a judge to serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, sororal or civic organization not conducted for profit, subject to the limitations and the other requirements of the Code of Judicial Conduct.” However, Canon 5C(3)(a) provides that “[a] judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization (i) will be engaged in proceedings that would ordinarily come before the judge, or (ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.”
Service on the committee charged with the responsibility of raising funds for an entity that appears in every dependency case coming before the inquiring judge “casts reasonable doubt on the judge’s capacity to act impartially as a judge” as prohibited by Canon 5A(1), even if the inquiring judge is engaged in non-fundraising activities as a member of the committee.
Mere attendance at a fundraising event does not violate the Canons. Specifically, Canon 5C(3)(b) permits the inquiring judge to attend the golf tournament and assist with organizational tasks such as setting up the silent auction, serving food and beverages, setting up hole sponsor signs, taking pictures, and other non-fundraising tasks.
Play on! (Mike Frisch)
Friday, December 16, 2016
The Alaska Supreme Court has imposed a one-year suspension of an attorney for misconduct that took place shortly after his reinstatement from an earlier suspension.
A few months after reinstatement to the Alaska Bar from a two-year suspension, an attorney violated Alaska Rule of Professional Conduct 1.8(c) by drafting a friend’s will that named him as the contingent beneficiary. The friend died leaving a considerable estate, but the attorney inherited nothing.
The Bar brought a disciplinary action against the attorney and stipulated that his violation of Rule 1.8(c) was negligent, punishable by public censure. The Bar’s Disciplinary Board, however, found that sanction too lenient in light of the attorney’s prior disciplinary record. The Board recommended that we impose a six-month suspension from practice; it also noted that the misconduct at issue occurred during a year of stayed suspension that had been imposed as part of the earlier discipline.
We conclude that the attorney acted not negligently but knowingly, and after considering relevant aggravating and mitigating factors we impose a 12-month suspension. But because the violation is not the same as or similar to the misconduct for which the attorney was suspended before, we do not also impose the stayed year.
The will that the attorney drafted for his longtime friend named himself as contingent beneficiary
The client died about six weeks after signing his will. Because his wife survived, the contingent beneficiary, Stepovich, received nothing. Probate proceedings were nonetheless contentious, as the client’s mother contested the will. Eventually she and the client’s wife successfully petitioned to remove Stepovich as the personal representative of the estate. The court enforced a settlement agreement in 2012, ending the probate proceedings.
As to intent
Ultimately,there is no question that Stepovich knew that the will he drafted, in his capacity as a lawyer, identified himself as the contingent beneficiary. And we agree with the Committee that the conflict created by this knowing conduct was “obvious.” Stepovich’s counsel argued before the Committee that Rule 1.8(c) “should have been a rule that he was conscious of, aware of, and avoided, but he actually was not, and that is negligence.” In determining the appropriate state of mind the Committee apparently accepted this construct and focused — mistakenly — on whether Stepovich was aware of Rule 1.8(c) or had learned its substance in law school or continuing legal education courses. But the question under the ABA Standards is not whether Stepovich knew of a particular ethics rule, but whether he knew the nature of his conduct. Ignorance of the rules is no excuse and in fact is itself blameworthy.
We conclude that these facts establish at least knowledge: Stepovich knew that the will he drafted identified himself as the contingent beneficiary and created an obvious conflict of interest, the potential consequences of which he paused to contemplate. We conclude that Stepovich acted knowingly.
The court analysed at length the mitigating and aggravating factors influencing its choice of sanction.
When we consider the “prior offenses” aggravator in this case, remoteness does not lessen the weight we give it. While the earliest offenses date back decades, Stepovich wrote the will at issue six months after reinstatement following the serious trust fund violation, while a stayed year of suspension was still pending. The trust fund violation cannot be characterized as remote or distant. And while the instances of Stepovich’s misconduct are not all similar, a lawyer with a history of professional discipline should be familiar with the Rules of Professional Responsibility and particularly apt to tread carefully in circumstances that are ethically uncertain...
Though his client was vulnerable, Stepovich did not take advantage of that vulnerability. There is no dispute about his motive; the parties agree it was not dishonest or selfish. Stepovich did not expect to inherit, and he testified that he agreed to be named as contingent beneficiary only because the client, his long-time friend, insisted on it. The lack of a dishonest motive is a weighty mitigator; we have treated it as such in the past...
We conclude that Stepovich’s violation of Rule 1.8(c) is not the same as or similar to the misconduct for which he was suspended from practice in 2006, and we therefore do not impose the stayed year of suspension from the 2006 disciplinary matter.
He must also take and pass the MPRE. (Mike Frisch)
An opinion from the Georgia Supreme Court
This disciplinary matter is before the Court on the Report and Recommendation of the Review Panel recommending that Michael Anthony Eddings (“Eddings”) (State Bar No. 238751) be disbarred for several violations of the Rules of Professional Conduct arising out of the theft of $2.3 million from his law firm's trust account by his wife (now ex-wife), Sonya Eddings (“Sonya”), while she was the law firm’s financial manager. Eddings, in response, contends that a public reprimand or suspension is more appropriate under the circumstances, as Eddings did not participate in the theft and was unaware of Sonya’s wrongful actions. After a review of the extensive record and detailed fact-finding provided by the special master, Katherine L.McArthur, we reject the Review Panel’s recommendation that Eddings be disbarred, and we agree with Eddings that a public reprimand is the more appropriate level of discipline to impose in this case.
Eddings, who was admitted to the Georgia Bar in 2002 and initially worked for a plaintiffs’ personal injury firm, opened his own practice in 2003, the Law Office of Michael Eddings, PC (“the Firm”), concentrating in real estate law. Sonya served as the Firm’s financial manager. Sonya had a bachelor’s degree in accounting, a master’s degree in business administration, and substantial work experience in banking, including seven years with Columbus Bank & Trust/Synovus (“CB&T”), which was also the Firm's financial institution.
In 2006, Eddings and Sonya established Eddings Holdings for the purchasing and holding of a franchise of The Coffee Beanery with two stores. Sonya handled all of the operations related to the franchise, and told Eddings, falsely, that the franchise was breaking even. However, in March 2007, without telling Eddings, Sonya began diverting money from the Firm’s IOLTA account to cover losses from the franchise. Between 2007 and October 2011, she stole over $2.3 million.
The record shows that Sonya used her inside knowledge of CB&T’s technology and technological vulnerabilities to accomplish the theft. Because she had been a top professional at CB&T, the bank did not question her as closely as others might have been questioned when questions arose about the Firm’s accounts. For example, just before Sonya’s scheme came to light, she admitted to a CB&T employee that she had created a fake wire confirmation to present to a client, but claimed she did so because she had not sent the wire transfer when she should have. The CB&T employee accepted this explanation and did not inform Eddings.
Although Eddings and Sonya had monthly financial meetings to review the Firm’s account reconciliations, Sonya presented bank statements that she had altered to remove any negative balance information. Additionally, over the course of Sonya’s criminal activities, CB&T, without notice to Eddings, ceased providing notifications of overdrafts and placed the Firm’s IOLTA account on automatic overdraft protection. As a result, CB&T provided notice to the State Bar on only a few of the multiple times the IOLTA account was overdrawn . On four occasions, Sonya also intercepted letters from the Bar’s Trust Account Overdraft Notification Coordinator regarding checks presented against insufficient funds in the Firm’s IOLTA account, and responded, to the Bar’s satisfaction, without Eddings’ knowledge or consent. WhenEddings did receive information about minor irregularities during this time, Sonya was able to resolve or explain the issues to his satisfaction. And, when Eddings subsequently instituted new firm policies to address the issues, Sonya simply increased her level of deception to get around the new policies.
Finally, in October 2011, after a late payoff, the Firm’s title insurance company conducted an audit which showed that between October 2007 and October 2011, the Firm’s IOLTA account had a negative balance 50 times. Sonya then admitted her wrongdoing, and CB&T seized the Firm’s funds and closed the Firm’s accounts. The Firm’s insurance company provided coverage for most of the losses; however, the parties agree that $65,618.22 in losses to clients and mortgage holders remains uncompensated.
As to the attorney's level of responsibility
the facts here point to the conclusion that Eddings was the victim of an elaborate con perpetrated by his wife, Sonya – a con that even bank officials unwittingly helped Sonya commit and in one case even helped her cover up – and not the conclusion that it was unreasonable for Eddings not to have done anything more to have prevented Sonya from misappropriating the funds that she stole. Eddings reviewed bank statements from CB&T, but had no reason to believe that Sonya had altered them; received information from an audit in February 2010 that did not find any suspected embezzlement activity; was unaware of correspondence that Sonya had deliberately intercepted to ensure that her deceit would not be discovered; and, even when Eddings implemented new office procedures in November 2010 in an effort to prevent future account irregularities and make sure that all wire transfers would be made properly, Sonya was able to use her banking skills and relationships to circumvent these policies (and even convince bank officials to hide from Eddings the fact that she had created a fake wire transfer in connection with one of the law firm’s real estate closings). Sonya was so convincing in her con that no one from CB&T believed that any deceit was occurring, let alone to the tune of $2.3 million, and Eddings was given no information upon which to base a reasonable belief that any deceit was occurring. Indeed, no one discovered Sonya’s deception until October 27, 2011, when Sonya herself confessed in writing during the audit by First American Title Insurance Company that she had been misappropriating funds from the law firm’s trust account since 2007.
The court found the failure to supervise and trust account violations were not intentional and that there was mitigation such that suspension should not be imposed.
The Ledger Enquirer reported on the criminal case against the ex-wife. (Mike Frisch)
The North Carolina State Bar continues to demonstrate its commitment to transparency in a series of notices posted inviting participation in upcoming ethics inquiries.
For instance, any interested person may participate in a December 20, 2016 4 pm telephone conference call on the following
The purpose of this call is to study the ethics inquiry regarding Avvo, participation in online flat-fee client referral services. Guests that wish to participate on the call, please contact Lanice Heidbrink.
And, of course, the contact information
North Carolina is the leader on providing information and access in matters involving attorney ethics and bar discipline.
While there are other jurisdictions who do a praiseworthy job in transparency (and plenty that do not), they can all learn lessons from North Carolina. (Mike Frisch)
The Iowa Supreme Court revoked the license of an attorney charged with misappropriation and dishonesty who had defaulted on the bar's charges.
Notably (particularly in light of the slow pace of bar process in other places), the Attorney Disciplinary Board filed its charges on March 23, 2016, a hearing was held on August 15 and the entire process was done in time for the holidays.
[Attorney] Green rented office space from Troy Strawhecker (Strawhecker) and James Myers (Myers) in the name of his company, Third Inning Solutions (3IS, L.L.C.). Strawhecker and Myers are commercial real estate developers in central Iowa and Nebraska. After a few months, Strawhecker and Myers approached Green for help raising equity for a business project. While the majority of the services Green provided to Strawhecker and Myers involved raising equity, he did provide legal services to them on an occasional basis...
He created a company for the clients and made numerous misrepresentations for his own benefit.
When the clients complained
Green wrote the Board a letter in which he generally denied Strawhecker and Myers’s allegations but concluded as follows
However, I no longer live in Iowa. I haven’t practiced law in over four years and my license has been on inactive status for about three years. I have no desire to practice law now or in the future. As such, to save the State of Iowa, the Disciplinary Board and all of the parties’ time and resources (of which I don’t have any), I am willing to voluntarily give up my law license in perpetuity to resolve this matter.
The bar nonetheless proceeded with charges and the attorney failed to respond
Because Green failed to file an answer to the Board’s complaint, the facts as set forth by the Board in the complaint were admitted. Strand, 841 N.W.2d at 603. Pertinently, the complaint states that Green "had a history of providing legal assistance/advice" to Strawhecker and Myers and that "Green entered into a business transaction with his clients without fully disclosing to the clients the true terms of the arrangement in writing." Additionally, the complaint alleges that Green misrepresented that the legal entity created by him that would be entering into the relationship with GMS (i.e., Holdings) was one in which Green, Strawhecker, and Myers would have an equal interest. Instead, the entity created by Green that contracted with GMS (i.e., Capital) was solely owned by Green.
Thus, Green made representations to Strawhecker and Myers that were intended to mislead them into thinking an entirely different business entity was created. Green misled Strawhecker and Myers into believing they were creating a business entity with Green and they would share equally in the business income and profits. In reality, Green created a separate business entity that only named him and his wife as members with rights to share in the business income and profits. For months, Green represented to Strawhecker and Myers that he was performing CEO duties on behalf of Holdings. Although they repeatedly requested documents and accountings, Green refused to produce documents.
Further, Green misappropriated all of the revenue under the fraudulent entity (Capital) for himself, disbursing little or nothing to Strawhecker and Myers. The revenue made from the management agreement with GMS was not received by Holdings, but was all misappropriated to the entity controlled by Green, Capital. After Green dishonestly and fraudulently received the monthly payments under the agreement, Green misappropriated all of the funds for his own use. None of the money remained in Capital by the time Strawhecker and Myers learned of the misappropriation. We agree with the commission. We hold that the Board proved a violation of rule 32:8.4(c) by a convincing preponderance of the evidence and that there was a misappropriation of funds.
The court declined to apply issue preclusion based on related civil proceedings.
In terms of timeline contrast, note that the web page of the District of Columbia Bar lists the following scheduled hearing
In re Ephraim C. Ugwuonye, DNos. 098-05, et al.
May 16 & 17, 2017, 9:30 a.m.
It appears that charges arising from complaints that began in early 2005 have apparently been approved for some time and will not even be heard until next May!
One might conclude that efficiency in discharging a public protection obligation is accorded an extraordinarily low priority in the Nation's Capital. (Mike Frisch)
An experienced real estate attorney was publicly censured by the New York Appellate Division for the Second Judicial Department for his role in representing a client who purchased the home of an elderly person to whom the client was providing health care services.
The respondent was an experienced real estate practitioner who regularly represented buyers and sellers in residential real estate transactions. On or about February 23, 2007, the respondent undertook to assist Idabelle Ward in the purchase of a single-family home located in North Babylon, New York (hereinafter the North Babylon property). The respondent knew that Ward owned several properties and regularly purchased and sold real estate for investment purposes. The respondent had represented Ward's legal interests in at least four prior real estate transactions. At all relevant times prior to February 2007, the owner of the North Babylon property was Dorothy Johnson, as surviving tenant by the entirety. On or about February 23, 2007, the respondent knew or should have known that Johnson was 80 years old and a widow, and required the assistance of a home health care aide. At the time of the closing, Ward had only recently become employed as Johnson's home health care aide...
The facts in this case were largely uncontested. The parties, however, differed widely with regard to the respondent's obligations, if any, to the seller. The hearing evidence revealed, inter alia, that shortly before the subject closing, the buyer approached the respondent and requested that he represent her in a real estate transaction. The buyer sought the respondent's assistance in preparing a deed only . The parties had agreed, according to the buyer, to a sale price of $100,000. The sale price of $100,000 was below market value for such a residential home due to the agreed terms of the sale, which provided that the seller would be permitted to continue to reside in the home, and the buyer would continue to care for the seller, until the seller's death. These terms, which were atypical, were never memorialized in any sort of writing, and no request to do so was made by the buyer or the seller. Since the buyer had already conducted a title search on the property and there were no contingencies, e.g., procurement of a mortgage, the respondent did not see a need for a contract of sale and agreed to conduct the closing. At the closing, which took place in the seller's home (the North Babylon property), the respondent introduced himself to the seller as the buyer's attorney. The seller, an 80-year old woman, was weak and infirm in appearance, but she otherwise appeared to be competent. The seller was not represented by counsel. The respondent oversaw the execution of the transfer documents and witnessed the exchange of a check, but did not view or examine the check. The amount of the check, as it turned out, was for $10,000 only, not $100,000, the agreed-upon sale price.
The Grievance Committee contends, as alleged in the petition, that the respondent failed to confirm or take steps to ensure that the seller received the $100,000 from the buyer, and failed to take any steps to ensure that the seller would have any recourse against the buyer in the event that, post-closing, the buyer failed to permit the seller to remain in the home and failed to continue to care for her. The respondent contends that, as the attorney for the buyer, he had no such obligations, arguing that he owed the seller a duty not to discriminate against her and not to deceive her, but that he was not required to take affirmative steps intended solely to protect the seller from his client. The respondent, however, did acknowledge at the hearing that he had "some duty . . . to ensure a legitimate transaction occurred."
We have carefully considered the parties' contentions and find that, under the circumstances of this case, the respondent, at a minimum, had a duty to confirm that his client tendered the agreed consideration of $100,000, to ensure that the transaction was "legitimate." We conclude that the respondent's failure to do so is sufficient to sustain the charge that he engaged in conduct that adversely reflects on his fitness as a lawyer. Accordingly, the Grievance Committee's motion to disaffirm the Special Referee's report and to sustain the charge is granted.
In determining the appropriate measure of discipline to impose, this Court takes note of the fact that the respondent has no prior disciplinary history, that he did not profit from the transaction as he earned only a nominal fee, and that the District Attorney's Office conducted an investigation and filed no criminal charges against any party. Under the circumstances of this case, we conclude that a public censure is warranted.
The Maryland Court of Appeals rejected a circuit court judge's most serious misconduct findings and suspended an attorney with the right to apply for reinstatement in 90 days
On July 10, 2015, the Attorney Grievance Commission of Maryland ("Petitioner"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Andrew Ndubisi Ucheomumu ("Respondent") charging him with violating the Maryland Lawyers’ Rules of Professional Conduct ("MLRPC"), arising out of his representation of David C. Jackson and Jackson’s companies, Jalin Realty Capital Advisors ("Jalin") and American Capital Holdings ("ACH"). Petitioner’s gravest allegations against Respondent claimed that Respondent continued to assist Jackson after Respondent was placed on actual or constructive notice of Jackson’s fraudulent lending practices. The hearing judge agreed and found that Respondent was "well aware of Jackson’s illegal activity," and that Respondent’s representation "actively aided and abetted" Jackson and Jalin.
For the reasons outlined infra, we disagree with the hearing judge’s finding that Respondent had knowledge of Jackson’s advance fee fraud during Respondent’s representation. Accordingly, we disagree with the hearing judge’s finding that Respondent "aided and abetted" Jackson’s criminal activity. In light of Respondent’s less serious violations of the MLPRC discussed herein, we find that the appropriate sanction is an indefinite suspension with the right to apply for reinstatement after 90 days. As a condition of reinstatement, upon application, Respondent must provide the Attorney Grievance Commission and Bar Counsel with appropriate documentation showing the existence and maintenance of an attorney trust account.
Respondent was a newly admitted attorney at the time of his representation of Jackson and Jackson’s companies. Respondent was admitted the Bar in June of 2009. His representation of Jackson and his companies spanned from 2010 to 2012. Respondent admitted to the hearing court that he was engaged in matters that were "over [his] head" in relation to his representation of Jackson and Jackson’s companies. Although Respondent had a prior career in the import/export business, and he was fifty-six years old at the time of the hearing in this matter, Respondent was, nonetheless, inexperienced in the unique challenges that confront solo practitioners, and those in private practice, generally, during his representation of Jackson and Jackson’s companies. Lastly, Mr. Samuel Hamilton, Esq., a longtime member of the Maryland Bar, testified favorably before the hearing judge regarding Respondent’s quality of character since Mr. Hamilton initially met Respondent in 2010. The hearing judge expressly credited Mr. Hamilton’s testimony regarding Respondent’s character.
Thursday, December 15, 2016
A 2001 Stanford Law graduate admitted to practice in Washington State has been teaching pre-law courses at the high school level in Kentucky. He applied for admission to the Kentucky Bar on the strength of his teaching credentials.
The Office of Bar Admission Character and Fitness denied the application for admission without examination, concluding that the provisions that permit admission based on law teaching credentials only applies to law school teachers.
The Kentucky Supreme Court denied admission.
While the court found the petitioner's credentials "impressive" and his teaching efforts "laudable," he does not qualify for admission without examination based on reciprocity with Washington State.
He had not practiced in Washington State for the requisite number of years to be admitted without examination.
The court cited the "unique circumstances" in ordering the return of his application fee.
A recent informal admonition posted on the web page of the District of Columbia Bar
We opened an investigation based upon a review of the Memorandum Opinion and Order in United States v. Walter Lacy, Case No. 2015 CMD 9486, filed in the Superior Court of the District of Columbia on March 10, 2016. The court granted Mr. Lacy a new trial based upon a violation of his right to effective assistance of his counsel. Specifically, the court found that you did not "meaningfully advise [Mr. Lacey] of his Fifth Amendment right to remain silent at any point before calling him as a witness." You were his trial counsel.
A review of the trial and motion for a new trial hearing transcripts shows that there were other concerns about the accuracy of your CJA voucher, your trial preparation and the adequacy of your communication with your client.
We find that the voucher you submitted did not accurately reflect the work that you did on this case. That is, we find that you stated in your voucher that you drafted an opening statement, a closing argument and direct examination questions when you did not do so. We do not need to determine whether this misrepresentation effected the total an1ount of claimed in your voucher because this misrepresentation was, at a minimum, recklessly dishonest.
Thus, your conduct violated Rule 8.4( c ). We do not find that we could prove, by clear and convincing evidence, that your conduct violated other Rules. In deciding to issue this letter of Informal Admonition rather than institute formal disciplinary charges against you, we have taken into consideration that you have no disciplinary history, took this matter seriously, cooperated with our investigation, and have accepted responsibility for your misconduct, including by accepting this Informal Admonition.
In D.C., an informal admonition publicly identifies the attorney. An attorney may reject an informal admonition and face disciplinary charges. Disciplinary Counsel does not post informal admonitions until the time to request a hearing expires. (Mike Frisch)
An attorney whose law license was revoked as a consequence of a felony DUI sought reinstatement after she had completed a court program and the conviction was reduced to a misdemeanor.
The petition was denied by the New York Appellate Division for the Third Judicial Department
Respondent's application for reinstatement to the practice of law is deficient and must be denied. A respondent seeking reinstatement following disbarment must establish, by clear and convincing proof, that he or she has complied with the order of disbarment and the rules of the Court, that he or she possesses the requisite character and fitness to practice law and that his or her reinstatement would be in the public interest...
Respondent failed to offer proof establishing that she has taken and passed the Multistate Professional Responsibility Examination. Respondent also failed to submit an affidavit in the form in Appendix C to the Uniform Rules for Attorney Disciplinary Matters
The affirmation that respondent did submit in support of her application failed to provide the relevant information that must otherwise be submitted via completion of the subject form affidavit. Namely, respondent's affirmation fails to provide, among other things, whether, since entry of the order of discipline, any additional matters were pending against her before any attorney grievance committee in this state; whether she has been the subject of professional discipline in any other court or jurisdiction; whether, since entry of the order of discipline, she has engaged in the practice of law in any other court or jurisdiction; or whether, since the entry of the order of discipline, she has been arrested, charged with, indicted, convicted, tried and/or entered a plea of guilty to any felonies, misdemeanors, violations and/or traffic infractions.
By contrast, an attorney who was convicted of forgery and followed the procedural requirements was granted reinstatement.
Our examination of the papers submitted on the application indicates that respondent has made all proper disclosures and has complied with the provisions of the order of disbarment and with this Court's rules regarding the conduct of disbarred attorneys...Further, we are satisfied that respondent has complied with the requirements of the applicable rules regarding reinstatement...and that he possesses the character and general fitness to resume the practice of law in this state.
Lesson: if you are suspended/disbarred and want your license back, dot the applicable "i" s and cross the applicable "t" s. (Mike Frisch)
Wednesday, December 14, 2016
An "intimate, romantic" relationship between an Assistant United States Attorney and her lead FBI agent in two cases has led to a proposed six-month suspension and probation by a Louisiana Hearing Committee.
The hearing committee found that the AUSA had failed to disclose the conflict in the investigations and prosecutions of Monroe Councilmen "Red" Stevens and Arthur Gilmore and a separate prosecution of Ouachita Parish Sheriff Royce Toney.
In the Toney case, the AUSA responded to the defendant's supposed "spreading rumors" about the affair (true rumors, it turns out) by making the defendant submit to a "perp walk."
The hearing committee also found that she lied to the United States Attorney when confronted.
The relationship was found to create a Rule 1.7 conflict of interest.
According to the hearing committee, she was suspended without pay for 19 days after an internal Department of Justice investigation and remains employed as an appellate attorney.
The Ouachita Citizen reported on the charges and disciplinary hearing in detail
Whether Griffing was truthful with her employer, specifically both [First Assistant AUSA Alexander] Van Hook and [United States Attorney Stephanie] Finley, formed another major focus of the hearings.
Van Hook said he asked Griffing specifically whether she was engaged in an intimate relationship with Chesser between 2007 and 2009.
“She said, ‘No,’ that they were just friends, that she was his office wife,” said Van Hook, who explained the phrase “office wife” was so strange to him that he went to his computer and Googled the phrase’s meaning.
“I just think it would raise an appearance of impropriety,” said Van Hook, who expressed extreme disappointment in how Griffing’s conduct at that time reflected on the U.S. Attorney’s office.
Later, Finley called Griffing to her office in the presence of Van Hook when Griffing again was queried about the nature of her relationship with Chesser. Finley questioned Griffing in light of a letter from Toney’s attorney, Davis, alleging the affair.
“She said he was her best friend but she didn’t go any further than that,” Van Hook said. “We were left with the distinct impression it was not (intimate).”
Griffing acknowledged she was not fully forthcoming with Van Hook and Finley.
Later, Griffing said, “It was never consummated, so in my mind it wasn’t wrong. I mean it was wrong, but it wasn’t.”
“I’ve never had sexual intercourse with Bill Chesser,” she added when asked to clarify.
The conduct took place in the Western District of Louisiana. (Mike Frisch)
A one-year suspension was imposed by the Maryland Court of Appeals for neglect and related violations
This attorney discipline proceeding involves a lawyer who failed to diligently represent a client, failed to adequately communicate with the client, failed to take steps to protect the client’s interests after the lawyer’s representation ended, failed to respond to Bar Counsel’s numerous lawful demands for information, and engaged in conduct that was prejudicial to the administration of justice.
Terrance Venable, Jr. ("Venable") retained Jerome P. Johnson ("Johnson"), Respondent, a member of the Bar of Maryland, to represent him in a child support case in the Circuit Court for Anne Arundel County ("the circuit court"). Despite having advised in open court at a hearing before a magistrate that he would enter his appearance in the child support case, Johnson neither filed his appearance with the circuit court’s Civil Department nor paid the appearance fee. After the hearing, the magistrate issued a Report and Recommendations, and Venable asked Johnson to file exceptions. Johnson agreed to do so, and charged an additional fee for the exceptions. Johnson failed to timely file the exceptions; instead, he mailed the exceptions to the circuit court on or after the due date. The circuit court closed the child support case, and the Civil Department returned the exceptions to Johnson. Johnson did not make any attempt to rectify the consequences of his failure to file his appearance or pay the appearance fee, such as refunding the fee for the exceptions. Johnson did not inform Venable that he had failed to pay the appearance fee, that he had mailed the exceptions late, and that the circuit court’s Civil Department had returned the exceptions. Additionally, Johnson failed to respond to Venable’s requests for updates about the child support case. Venable ultimately filed a complaint against Johnson with Bar Counsel.
A significant court ruling on default in bar proceedings
Where Bar Counsel offers no evidence or a small amount of evidence and then rests, the hearing judge is not obligated to seek additional evidence from Bar Counsel. Indeed, where an order of default has been entered in a case and not vacated, the hearing judge may accept the averments in the Petition for Disciplinary or Remedial Action as admitted and is not obligated to conduct a hearing. Maryland Rule 2-323(e) provides: "Averments in a pleading to which a responsive pleading is required . . . are admitted unless denied in the responsive pleading or covered by a general denial." We reaffirm that which was stated in Thomas, 440 Md. at 550, 103 A.3d at 645, that a hearing judge takes unnecessary action in conducting "a full-blown evidentiary hearing" in light of the existence of an order of default. We now unequivocally hold that a hearing judge in an attorney discipline proceeding may refrain from conducting an evidentiary hearing where the hearing judge has entered an order of default that has not been vacated.
We conclude that the appropriate sanction for Johnson’s misconduct is a one-year suspension from the practice of law in Maryland. Johnson’s misconduct in representing Venable demonstrated a pattern of neglect and non-responsiveness; Johnson failed to diligently represent Venable, failed to adequately communicate with Venable, falsely advised Venable that a motion for reconsideration had been filed in the child custody case when it had not, and failed to take steps to protect Venable’s interests after Johnson’s representation ended. Among the many troubling aspects of Johnson’s various instances of misconduct were his repeated failures to respond to Bar Counsel’s numerous lawful demands for information. It took two letters from Bar Counsel and an extension for Johnson to provide a response to Venable’s complaint, and Johnson never responded to any of Bar Counsel’s six letters requesting documents and additional information. Johnson’s misconduct is aggravated by six factors, including refusal to acknowledge his misconduct’s wrongful nature and indifference to making restitution or rectifying his misconduct’s consequences. Johnson’s misconduct injured Venable by causing the circuit court to close the child support case without considering the exceptions to the magistrate’s Report and Recommendations, and is mitigated only by the absence of prior attorney discipline...
In this case, Johnson’s misconduct was serious, demonstrated a significant disregard for his obligations to his client and Bar Counsel, and merits a sanction that is severe enough to deter similar misconduct in the future. A one-year suspension is commensurate with Johnson’s misconduct, and will protect the public by deterring Johnson and other lawyers from engaging in similar misconduct in the future.
Judge Watts authored the opinion. (Mike Frisch)
Disbarment should be imposed on an attorney convicted of theft, according to a recent recommendation of an Illinois Hearing Board.
The administrator had charged the attorney with numerous acts of forgery and dishonesty as a law firm associate.
Among the charges were falsifying documents to get a bonus from her firm
Respondent's representations to the firm regarding purported clients Michael Dembov, Steve Stone and Shihai Chen were false and intended to mislead the firm that she was entitled to receive new client bonuses for those bringing the purported new clients to the firm.
The hearing board
In aggravation, the Panel considered the evidence presented by the Administrator, including the testimony of Patrick Sheehan and Administrator's Exhibits 1 through 13. As the exhibits reflect, Respondent has been convicted of felony theft. Additional aggravating factors are present, which we also considered. Those factors include the pattern of misconduct present in this case and Respondent's failure to participate in her own disciplinary proceedings.
There are no mitigating factors. While Respondent has no prior discipline, she had been licensed to practice law for only a few years when her misconduct began.
Respondent engaged in multiple acts of dishonesty. Her misconduct included giving falsified information to her employer and her creditors, forging payroll checks and tendering a fraudulent check to settle a claim. The seriousness of Respondent's misconduct, particularly when combined with the aggravating factors discussed above, warrants disbarment.
The attorney had defaulted on the charges. (Mike Frisch)
Tuesday, December 13, 2016
An order sealing documents in high-profile litigation between Maxim and two former employees was reversed by the New York Appellate Division for the First Judicial Department
This appeal involves two related actions. In the first action, plaintiffs Maxim Inc. and Sardar Biglari brought claims for defamation, breach of contract, and fraudulent inducement against defendants Jason Feifer and Wayne Gross. In the second action, plaintiff Maxim sought, among other things, to enjoin defendants Feifer and Charna Sherman from disclosing confidential business information. In the first action, plaintiffs redacted several documents before filing them with the clerk's office, and these documents remain redacted. In the second action, the motion court completely sealed the record based on a joint stipulation between the parties, which the court so-ordered. That stipulation did not fully explain the reasons for sealing or make reference to the standards in the applicable court rule. The proposed intervenors, Hearst Newspapers and Daily News, filed a motion to intervene in each action for the limited purpose of obtaining access to the sealed documents. The motion court denied the motions in identical one-sentence orders which contained no discussion of the press's specific interest or analysis of whether the parties met their burden to justify sealing. These appeals followed, and we now reverse.
We conclude that there was no basis for the May 3, 2016 order, because the record contains many non-confidential items. For example, the motion court's March 21, 2016 order, which among other things, directed the parties "to extend courtesy to each other" and set forth certain scheduling directions, was filed under seal. Nothing in that order involves trade secrets, confidential business information, or proprietary information. Another example of a document which was incorrectly sealed is a request for judicial intervention form, which clearly does not contain any information that would satisfy the good cause requirement. We recognize that it may be easier for the parties and the motion court to seal an entire court record, rather than make a determination on a document by document basis about sealing, but administrative convenience is not a compelling reason to justify sealing. In addition, although the parties might prefer there be no further publicity about this case, that is not a sufficient basis for sealing. While the second action seeks an injunction preventing defendants from making public confidential business information of Maxim's parent company and releasing recordings of business meetings, that allegedly confidential information is not contained in the complaint.
...Therefore, as to the first action, to the extent that certain documents remain redacted, plaintiffs are directed to file unredacted copies of the above documents. As to the second action, the sealing order is vacated. While these appeals have been pending, we do not know if other documents have been filed in the second action that might contain confidential business or proprietary information.
A story on the litigation from Kate Dreis in Jezebel is linked here.
The Law Society of Upper Canada Hearing Division Tribunal has ordered an interlocutory suspension of an attorney convicted in Jamaica.
This is a motion for an interlocutory order suspending the licence of Oswald Paul David James (“the Lawyer”). The Law Society relies principally on the Lawyer’s conviction under the Jamaican Larceny Act and disbarment in that country for the fraudulent conversion of $237,500 USD he had received in trust from a client of his law practice in that country. It seeks an interlocutory suspension of the Lawyer’s licence to practise law in Ontario while it conducts its investigation into the Lawyer’s conduct...
The supplementary motion record also contains a letter dated November 2, 2016 from Mr. John Dent, counsel for the Lawyer, consenting to an interlocutory order suspending the Lawyer’s licence to practise law and confirming that the panel has jurisdiction to make the order. He advises, however, that the Lawyer takes no position on whether the Law Society has met the test for an interlocutory order and asks that the Tribunal grant the order without adjudicating the merits of the Law Society’s position that there are sufficient grounds for such an order...
In these circumstances, based on our review of the record and the fact that the Lawyer is represented by counsel, we granted the interlocutory order suspending the Lawyer’s licence, which was sought on consent, without adjudicating the merits of the Law Society’s position that there are sufficient grounds for making such an order.
The New Hampshire Supreme Court affirmed a murder conviction
The central disputed issue at the defendant’s trial concerned the circumstances of the victim’s death. The State contended that the defendant, enraged by the victim’s refusal to participate in a sexual encounter with him and his girlfriend, attacked the victim from behind while she was watching a movie, strangling her with a rope. The State further asserted that, after the victim had died, the defendant sexually assaulted her.
By contrast, the defense theory was that the victim died during a consensual sexual encounter with the defendant and his girlfriend. According to that theory, the victim allowed the defendant and his girlfriend to put a "harness" around her and then had consensual sexual intercourse with the defendant, while his girlfriend accidently smothered her. The defense theory was based upon the story that the defendant’s girlfriend had initially told the defense team in October 2012.
Before trial, the defendant filed a motion to introduce evidence alleging that the victim, then a 19-year-old college student, had previously expressed interest in bondage-related sexual activities. The defense sought to admit evidence alleging that the victim had expressed interest in such activities to her prior sexual partner in May 2010, approximately two and one-half years before her murder. The defense also sought to admit evidence alleging that she had expressed the same interest more recently to her then-current sexual partner.
The defendant argued that, without the evidence alleging that the victim had previously expressed interest in bondage-related sexual activity, "any claims that [the victim] would consent" to bondage-related activities with the defendant and his girlfriend "would seem objectively counterintuitive and implausible." The defendant’s pretrial motion also sought to introduce evidence of specific instances of the victim’s alleged prior sexual conduct. However, at the trial court hearing on the motion, defense counsel clarified that counsel sought only to introduce evidence of the victim’s alleged "openness" to bondage-related sexual activities and would not seek to introduce evidence alleging specific instances of her prior consensual sexual conduct.
The trial court denied the motion, pursuant to New Hampshire Rule of Evidence 412. See N.H. R. Ev. 412. The court explained that, under Rule 412, "inquiry into the prior consensual activities of victims is generally prohibited," but that "[i]n certain instances, . . . protection of the victim and her privacy rights must yield to a defendant’s right to due process and to confront accusers." (Quotation and brackets omitted.) "Thus," the court further explained, "a defendant must be given the opportunity to demonstrate that due process requires admission of a victim’s prior sexual conduct," by demonstrating that the evidence "is relevant" and that "its probative value outweighs its prejudicial effect on the victim." (Quotations omitted.)
The court first found that the evidence alleging the victim’s prior expressions of interest in bondage-related sexual activities was not relevant to show that the victim consented to engage in such activities with the defendant and his girlfriend. The court also determined that, even if it were to accept the defendant’s theory that the evidence had some relevance to show that the victim would consent to engage in bondage-related sexual activities with the defendant and his girlfriend, its probative value was outweighed by prejudice to the victim and her family.
On four occasions during the trial, the defendant argued that the State had opened the door to the evidence alleging that the victim had previously expressed interest in bondage-related sexual activities. On each occasion, the trial court disagreed and precluded the defendant from introducing the challenged evidence. Ultimately, the jury convicted the defendant on both alternative theory first degree murder charges, and he was sentenced on one. This appeal followed.
Based upon our review of the record, we conclude that the trial court was not compelled to interpret the evidence as the defendant interprets it. Rather, it was reasonable for the trial court to have found, in each of the instances upon which the defendant relies, that the State did not create the misimpression that the victim was repelled by bondage-related activities. Accordingly, we uphold the trial court’s determination that the State did not open the door to the challenged evidence. All issues that the defendant raised in his notice of appeal, but did not brief, are deemed waived.
48 Hours covered the crime. (Mike Frisch)
The New Jersey Disciplinary Review Board web page notes a recent consent disbarment of an attorney who was the subject of this Law360 report
Scott Saidel, a Florida attorney who represented the wife of convicted Ponzi-schemer Scott Rothstein was disbarred in Arizona on Friday, after he pled guilty this winter to charges he helped the wife in a conspiracy to hide more than $1 million in jewelry from investigators.
Saidel consented to the disbarment, and the state bar said it won't take any further disciplinary action against him. However, he has been ordered to pay the State Bar of Arizona $1,200 in costs and expenses.
“I consent to disbarment freely and voluntarily and not under coercion or intimidation,” Saidel said in court documents.
Saidel, who was also admitted to practice in Florida, was suspended from the Florida bar in February and tendered his consent to disbarment before the state Supreme Court in April, according to documents from the Florida Bar. On Friday, Judge Reginald Corlew, a referee in Saidel's disciplinary matter, said Saidel should be found guilty of misconduct and disbarred.
Rothstein's wife, Kimberly, pled guilty in February to conspiracy charges that she hid more than $1 million in jewelry from U.S. investigators that had been purchased with proceeds from her husband's $1.2 billion scheme.
As part of Scott Rothstein's January 2010 plea agreement, which resulted in a 50-year prison sentence and an order to pay $300 million in restitution, he agreed to forfeit all assets acquired using ill-gotten gains from the Ponzi plot. This included tens of millions of dollars in real estate, vehicles, boats, luxury watches, jewelry and sports memorabilia bought for his wife and himself, according to court documents.
On Nov. 9, 2009, federal agents went to the Rothsteins' home to seize these possessions. Kim Rothstein purportedly helped the agents retrieve all of the cash, luxury watches and jewelry connected to the Ponzi scheme. But before, during and after the agents' visit, she, her friend Stacie Weisman and Saidel took steps to conceal more than $1 million in jewelry, prosecutors said.
The three then conspired to sell some of the hidden jewelry, including a 12.08-carat yellow diamond ring, prosecutors said. Another alleged participant Eddy Marin allegedly helped Weisman sell some of the jewelry, including the ring, to jeweler Patrick Daoud. Saidel hid the proceeds of those sales by depositing the money into his law firm trust account, and then dispersed the money to his and Kim Rothstein's debtors.
As part of the conspiracy, Rothstein, Weisman and Saidel also attempted to tamper with Scott Rothstein's testimony about the whereabouts of the diamond ring that was taken for an adversary case filed by the trustee in the bankruptcy case of Scott Rothstein's law firm.
The U.S. Department of Justice filed a criminal information Sept. 6, charging Rothstein, Weisman and Saidel with conspiracy to commit money laundering, obstruct justice and tamper with a witness. Marin and Daoud, were charged separately with obstruction of justice and perjury for their roles.
Saidel pled guilty in January and Weisman entered her guilty plea in February, according to court documents.
A spokesman for the State Bar of Arizona declined to comment on Tuesday.
Saidel represented himself.
The case is In the Matter of a Suspended Member of the State Bar of Arizona, Scott F. Saidel, case No. PDJ-2013-9050 in the Supreme Court of Arizona.
A law firm is entitled to prejudgment interest on its judgment against a former client, according to a decision of the New York Appellate Division for the First Judicial Department
The addition of prejudgment interest to plaintiff's award for unpaid legal fees under quantum meruit was mandatory (see CPLR 5001; Ash & Miller v Freedman , 114 AD2d 823 [1st Dept 1985]). Moreover, where plaintiff was required to seek permission to withdraw, it was required to continue to zealously represent defendants until the court granted its motion to withdraw (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[d], [e]). Therefore, it was incorrect for the JHO to refuse to consider any value for plaintiff's work from the time it moved by order to show cause to withdraw. This is particularly true where plaintiff sought, but was denied, an adjournment of the trial date, and the court took six months to grant the application.
Monday, December 12, 2016
The Law Society of British Columbia imposed a four-month suspension of an attorney who received loans from two clients.
The Respondent’s professional misconduct is very serious. In particular, he knowingly acted for two clients in securing loans in which he had an exclusive personal interest.
When these loans went into default his clients were compelled to hire different lawyers to enforce the security the Respondent had prepared himself and presumably charged for. Foreclosure proceedings against the Respondent were commenced, and in the context of these proceedings the Respondent not only misled the new counsel for the lenders about the status of a pending sale of the subject property, but also misled the court about the status of the potential buyer.
The more serious the conduct, the greater the need for deterrence, both specific and general. Given the Respondent’s status as a former member, specific deterrence may have less import. However, general deterrence remains a significant factor in imposing the appropriate sanction.
This is undoubtedly one of the most egregious Ogilvie factors in this case. The two clients who loaned money to the Respondent have lost significant sums of money. The Respondent has made an Assignment into Bankruptcy and at present is an undischarged Bankrupt. The Respondent tendered as Exhibit 9 in these proceedings his Notice of Bankruptcy. We note that Exhibit 9 reveals that both clients that loaned the Respondent money are listed as creditors and are still owed $224,000 and $120,000 respectively. The Panel notes that there is virtually no chance these victims of the Respondent’s professional misconduct will ever be made whole.
The Panel has concluded that the penalty in this matter for all eight findings of professional misconduct should be a global sanction. A suspension of four months is the appropriate disposition in this matter, the suspension to commence upon the issuance of this decision. Members of the profession must know that borrowing money from a client fundamentally alters the solicitor-client relationship. In a case such as this, no doubt the individuals who lent money to the Respondent did so because they trusted him. Trust is the very foundation of a solicitor-client relationship and the Respondent’s professional misconduct in this case breached that trust.
Furthermore, it is impossible for the lawyer to act objectively for the client when he is beholden to the client as in this case. The Respondent’s professional misconduct was a clear violation of the PCH in that he took advantage of his special relationship with these clients as their lawyer. Accordingly, the public must know that this type of conduct will attract the most serious sanctions if lawyers choose to cross the line and borrow money from individuals who are their clients.