Legal Profession Blog

False Letter And Venmo Payment Draws Suspension

The Colorado Presiding Disciplinary Judge has accepted a 34-month consent suspension

In 2016, Newell met a Peruvian woman online. They began a romantic relationship, and Newell proposed marriage to facilitate the woman’s medical treatment in the United States. Newell served as the woman’s sponsor. She arrived in the United States in May 2017. The couple married in August 2017 and had a son together. Newell’s spouse was awarded a temporary green card. But the relationship deteriorated, and Newell threatened to withdraw his support or to seek her deportation. In April 2021, after Newell moved to Mississippi with his family, he told his spouse that he had purportedly received a letter from USCIS, instructing them to mail their passports to verify their recent out-of-country travel. Newell’s spouse questioned the authenticity of the letter, but Newell insisted that he did not create the letter. She gave Newell her passport; he eventually returned it to her after some time passed. The couple filed for divorce in September 2021. During the disciplinary investigation, Newell initially denied creating this letter but later admitted to fabricating it; he did so, he said, to prevent his spouse from taking their son out of the country. Newell is currently under a court-ordered child support obligation but is now several months behind in his child-support payments. No evidence indicates that he has moved to modify his support obligation.

In a client matter, a jury entered a verdict in favor of one of Newell’s clients in April 2021. On the client’s behalf, Newell filed a countersuit. The client sent money to Newell via Venmo to cover the filing fee; that money went into Newell’s personal account. The parties later stipulated to a comprehensive settlement, and $20,000.00 was sent via Venmo to Newell’s personal account. Newell’s client had an interest in at least part of these funds. Newell acknowledges he did not place these funds in a trust account.

(Mike Frisch)

Resignation Not Accepted

The New York Appellate Division for the Third Judicial Department denied an attorney's application to resign from the Bar and ordered an interim suspension

We further agree with AGC's concern that respondent's resignation application is an attempt to minimize his misconduct and to avoid any public determination of same. While respondent's statements do "readily admit" his wrongdoing regarding the firm's escrow account, they simultaneously minimize his culpability in the misappropriation of funds from the firm's operating account by noting only briefly that such issue was "resolved" by the mutual exchanges of releases between respondent and [his law firm] DGD. Accordingly, we deny respondent's motion for leave to resign.

But

given respondent's admission of professional misconduct as to the firm's escrow account and the fact that respondent has failed to respond to AGC's notices directing him to fully address its allegations, we grant AGC's cross-motion (see Matter of Hessberg, 166 AD3d at1284; Matter of DiStefano, 154 AD3d 1055, 1056-1057 [3d Dept 2017]). AGC's remaining request for an order directing respondent to pay restitution has been considered and found to be premature (see Judiciary Law § 90 [6-a]).

(Mike Frisch)

Maine Attorney Suspended On Interim Basis

A Maine attorney has been suspended on an interim basis.

The Portland Press Herald reported on the action

Scott Fenstermaker, who was charged with assault and trespassing last fall, is no longer allowed to take any new clients and was ordered by the courts to surrender all of his existing clients and their files to another attorney.

In an order for Fenstermaker’s suspension Friday, Maine Superior Court Justice Thomas McKeon wrote that Fenstermaker’s misconduct “serves as an imminent threat to clients, the public and to the administration of justice.”

Fenstermaker was served the order on Monday afternoon, according to the Maine Supreme Judicial Court clerk’s office. But when reached shortly afterward, Fenstermaker said numerous times that he wasn’t aware of the orders and that his suspension is “illegal” under state, federal and international law because it prevents him from exposing “illegal conduct” within the Maine state government.

“It’s not surprising. This was a kangaroo court, a political act,” Fenstermaker said.

When asked if he plans to work with the attorney taking over his caseload, Fenstermaker said numerous times “I have no choice.”

Fenstermaker joined the Maine bar in May 2022 and briefly represented clients through the Maine Commission on Indigent Legal Services until he was suspended from taking new cases in November.

He was charged with assault and trespassing at a towing lot in Addison in September – he said he was just trying to help a client retrieve her car. He has since filed a racketeering lawsuit on behalf of that client and two others in U.S. District Court, alleging that several towing companies, state agencies, and local police are involved in a multi-county scheme to illegally seize and sell vehicles.

The district attorney’s office for Hancock and Washington counties then asked Maine court officials to prohibit Fenstermaker from representing any criminal defendants, and later asked the court to prevent him from contacting the DA’s office because he had not yet indicated whether he intends to represent himself or hire an attorney. Despite McKeon’s ruling, Fenstermaker could still choose to represent himself in that case just as any person has a right to do.

The Maine Board of Overseers of the Bar voted last Tuesday to file the petition for Fenstermaker’s suspension after receiving two complaints against him – one alleged he “made unsupported allegations of criminal activity against a sitting judge” and made “misrepresentations” to the court that he had been arrested; another said he was “physically aggressive” toward another attorney.

When Fenstermaker was charged in September, he was issued a criminal summons, but was not taken into custody.

“Attorney Fenstermaker allegedly attempted to remove his client’s vehicle from an impound lot when the lot was closed and without paying the fees,” the petition stated. “When the impound lot owner attempted to block the way, Attorney Fenstermaker allegedly hit the owner with his vehicle.”

An affidavit that describes the investigation into the complaints is still impounded.

In Friday’s ruling, McKeon also ordered Fenstermaker to vacate any physical law office, to immediately cease contact with current and potential clients and to stop using any websites or social media pages where he’s advertising legal services. Fenstermaker and any staff must immediately surrender all physical and digital client files and the technology for maintaining these files, the order states. The order also prohibits charging or attempting to charge any clients while he’s suspended.

In a second order filed Friday, McKeon appointed attorney Barry Mills to take over all of Fenstermaker’s open cases. Mills agreed to represent Fenstermaker’s clients on a pro bono basis “as a service to the bar,” the order stated. After six months, if Fenstermaker’s law offices have any “sufficient assets” the court will consider using those to reimburse Mills for his time. Fenstermaker’s clients are also “free to choose to employ any attorney” if they don’t want Mills, McKeon wrote.

It’s not clear how many cases will be turned over to Mills, which include lawsuits already filed in court and those in which clients have yet to file.

Mills did not respond to messages Monday asking to discuss the new assignments and his plans for representing Mainers in Fenstermaker’s larger lawsuits, including the racketeering case.

As of February, Fenstermaker, who once represented detainees at the Guantanamo Bay military prison, said he was still representing several clients whom he picked up through MCILS pro bono, even after he was removed from the commission’s rosters and barred from accepting any new indigent appointments.

NECN had  information about the attorney's career from the Associated Press

A defense lawyer in Maine who once represented detainees at the Guantanamo Bay military prison has been charged with several criminal counts, and a prosecutor is recommending his disbarment, court records show.

Scott Fenstermaker was charged with trespassing, assault, reckless conduct and attempted theft in November, according to the records.

Fenstermaker told the Bangor Daily News that the November charges were filed after an argument broke out while he was trying to persuade a towing company owner to release his client’s car from an impound lot. He said he was working in his capacity as a lawyer at the time and it’s “not like I was going out and burglarizing homes in my free time.”

The court case against Fenstermaker is currently awaiting a new judge. A letter from the Maine Board of Overseers of the Bar states that the prosecutor working on Fenstermaker’s case is seeking his disbarment.

Fenstermaker worked as a lawyer in New York for three decades and once represented a person who prosecutors said was a courier for Osama bin Laden, the Daily News reported.

He was also previously among a group of lawyers in Maine who were eligible to represent people who cannot afford a lawyer. The agency that oversees that roster of lawyers has barred him from taking on cases, Justin Andrus, the commission’s executive director, told the newspaper.

(Mike Frisch)

The Most Vulnerable

The criminal conviction has drawn an interim suspension from the Ohio Supreme Court.

Cleveland.com reported

 A 70-year-old former attorney who stole hundreds of thousands of dollars belonging to her mostly elderly and special-needs clients was sentenced Wednesday to prison.

Cuyahoga County Common Pleas Court Judge Jeffrey Saffold told Dorothea Kingsbury that placing her on probation after pleading guilty to second-degree felony theft and other charges for the years long scheme would “disrespect all of the truly bad deeds” she had committed.

Instead, the judge sentenced her to spend the next four years in prison.

 

“Of all of the people in the world to steal from, you picked the absolute most vulnerable among us,” Saffold said. “When I think of your behavior here, I’m stuck with the word ‘despicable.’ If you have remorse, I think you would agree with that statement.”

 

Kingsbury, who had asked Saffold to spare her a prison sentence, answered quietly, “Yes sir.”

 

Kingsbury, of Mayfield, pleaded guilty in September 2021 to theft and attempted theft -- both second-degree felonies -- as well as money laundering. She also pleaded guilty in a separate case to failing to file state income taxes for five years, which is a fifth-degree felony.

 

The charges carried a maximum sentence of more than 20 years in prison.

 

Kingsbury, whose legal career spanned four decades, agreed to forfeit her law license as part of the plea bargain. She also has repaid $125,000 and agreed to forfeit money in her retirement accounts to pay back the more than $500,000 that is still unaccounted for.

 

Saffold said during the sentencing that he would consider letting Kingsbury out of prison early, but only if she continues to pay back the surviving victims and locate the missing money.

Her sentencing was delayed when she was referred in January 2022 to the court’s psychiatric clinic.

 

Kingsbury admitted to taking nearly $600,000 from her clients’ trusts from 2012 to 2017 without explanation and transferring hundreds of thousands of dollars more between a total of 22 people’s accounts to cover up her financial malfeasance.

 

All told, investigators uncovered nearly $1.2 million in questionable transactions that Kingsbury made with money from the accounts she managed.

 

Assistant Cuyahoga County Prosecutor J.D. May said during the hearing that, after a forensic examination of the accounts that Kingsbury pilfered, investigators still cannot account for a large portion of the money.

 

Nearly all of Kingsbury’s victims were severely mentally and developmentally disabled. Some of them could not read or write.

Several family members and attorneys who serve as guardians to Kingsbury’s clients told Saffold that the money in their trusts was meant to pay for medical expenses that Medicare and Medicaid would not cover, including trips to dentists and wheelchairs.

 

Michelle Owen brought her sister, who lost $29,000 to Kingsbury’s crimes, into the courtroom. Owen moved her sister’s wheelchair so she would face directly at Kingsbury.

 

“This is the person whose heart you broke,” Owen said.

 

The sister twice told Owen that she loved her as Owen spoke to the judge.

 

“I love you, too, baby,” Owen replied, as she ruffled her sister’s short gray hair.

Kingsbury stole more than $50,000 from Theresa Manary’s brother. Manary decided to speak directly to the former attorney.

 

“I don’t know how you sleep at night,” Manary said.

 

Michael Lear, who defended Kingsbury alongside Larry Zukerman, asked Saffold to spare his client prison time.

 

Lear pointed to a court psychiatrist’s diagnosing of Kingsbury with depression, stress disorder and caretaker fatigue at the time she began the thefts. He also said that Kingsbury was working to pay back the money, and she was one of the most remorseful clients he has ever had.

 

Kingsbury read from a written statement in which she apologized to her victims and their families.

 

“Those families deserved the highest level of care and service from me, and I failed miserably,” she said. “The words ‘I’m sorry’ hardly convey the depth of grief and the number of sleepless nights that I have suffered, but they are the only words I have to offer.”

After Saffold announced the prison sentence, Lear asked if the judge would consider allowing Kingsbury to go home and report to prison at a later date.

 

“No, I think she needs go out the side door today,” Saffold said.

 

Sheriff’s deputies handcuffed Kingsbury and escorted her out of the courtroom.

 

After the hearing, the families of the victims said they were grateful that Kingsbury received a prison sentence.

 

“Seeing the handcuffs getting slapped on was most satisfying,” Karen Farrell, a friend of Manary who attended the sentencing, said after the hearing.

 

Manary and Owen agreed.

 

“I thought if they don’t punish her, then other lawyers may see this and think, ‘I can do this and get a slap on the hand too,’” Manary said. “And that cannot happen.”

(Mike Frisch)

A "Little Bit Of A Pervert"

The Missouri Supreme Court has suspended an attorney with no leave to seek reinstatement for 12 months.

In jail

In September 2020, the Vernon County Sheriff (hereinafter, “Sheriff”) contacted OCDC regarding Purdy’s conduct with four, female clients in the jail interview room. Sheriff provided OCDC with video footage of Purdy meeting with his clients on two days. For all of his visits, the video footage depicted Purdy making sexual advances toward his clients and engaging in unwanted and improper sexual touching. This conduct included, but was not limited to, pulling them into his body, reaching underneath their jumpsuits, and kissing them on the mouth.

Following these incidents, officers at the jail interviewed each of the women regarding Purdy’s conduct. Each woman confirmed Purdy’s sexual advances were unwanted. The women stated they were uncomfortable with his conduct, and one described Purdy as a “little bit of a pervert.” The officers confirmed Purdy never told his clients his sexual conduct was in exchange for payment or reduced legal fees.

In court

In March 2021, an assistant prosecuting attorney for St. Clair County contacted OCDC regarding Purdy’s conduct in open court. The courtroom’s video footage showed Purdy touched his client on her buttocks. The client at issue, however, submitted an affidavit to OCDC stating she did not believe Purdy touched her inappropriately.

In his car

In September 2021, Purdy was transporting a client in his vehicle. The client rode in the front passenger seat. The client used her cellular telephone to record a portion of their drive. The video shows that, while he was driving, Purdy reached across the seat, placed his hand inside the client’s blouse, and rubbed her breast. The client stated this was unwanted sexual conduct.

Sanction

This Court must impose significant discipline to maintain the public’s trust and protect the integrity of the legal system. Purdy’s request that he need not be further disciplined because he has been suspended for more than a year pursuant to Rule 5.24 is inappropriate. Alternatively, Purdy seeks an indefinite suspension with only six months’ leave before he is eligible to be reinstated...

In light of Purdy’s interim suspension of fifteen months and in accordance with OCDC’s stipulated discipline and ABA Standards, this Court indefinitely suspends Purdy from the practice of law with no leave to apply for reinstatement for twelve months. This discipline is “designed to correct any antisocial tendency on the part of [Purdy] as well as to deter others who might tend to engage in similar violations.”

Respondent is 86 years old.

A dissent from Judge Fischer

I must dissent. I, like the Disciplinary Hearing Panel that heard the evidence in this case, am of the opinion that Dan Purdy should be disbarred. In light of the egregious and outrageous conduct perpetrated, I am deeply distressed that this Court merely indefinitely suspends Mr. Purdy with no leave to apply for reinstatement for one year.

Implicit in the principal opinion's analysis is that Mr. Purdy only needs to be indefinitely suspended with no leave to apply for reinstatement for one year because of his advanced age. In my view, neither the race, gender, ethnicity, nor age of an attorney should be taken into consideration to determine appropriate discipline. In my view, Mr. Purdy's conduct, which was clearly and explicitly depicted in the video evidence, warrants disbarment.

(Mike Frisch)

Death At The Reservoir

The Ohio Supreme Court has imposed an interim suspension of a convicted attorney.

The attorney pled guilty to felony manslaughter with a firearm (first degree) and felony tampering with evidence (third degree).

The Columbus Dispatch reported on the charges

Walter C. Boyuk was under house arrest, awaiting trial in the shooting death of his wife last October at Griggs Reservoir Park, when he walked into a hair salon on March 18, looking for a witness in the case.

The witness, a hairstylist at the business on Columbus' Northwest Side, hid in a bathroom until Boyuk, a 77-year-old Hilliard-area attorney who is semi-retired, was convinced to leave.

More: Husband charged with murder in shooting death of wife at Griggs Reservoir Park

Boyuk meant no harm, his attorney said Tuesday during a hearing in Franklin County Common Pleas Court.

His client had visited with a Catholic priest for confession that morning, then sought out the witness, a 60-year-old woman, "in a spirit of atonement," defense attorney Vicente Rivera told Judge Michael J. Holbrook.

"He didn't intend to intimidate or scare a witness, although that is probably what happened," Rivera said. "It's obviously a violation" of the terms of his bond. 

Holbrook said he had made it clear in January, when Boyuk posted a $500,000 bond and was released on house arrest, that he was to remain in his Norwich Township home and have no contact with any witnesses in his case.

The judge ruled Tuesday that Boyuk, who was re-arrested on the day that he went to the hairstyling business and violated bond, now will be held without bond as a "danger to society" until his case is resolved.

Boyuk is charged with aggravated murder and a gun specification in the death of his wife, 75-year-old Kathleen Boyuk. Her body was found slumped over the steering wheel of a white Honda Accord in the parking lot of Griggs Reservoir Park off Riverside Drive on the morning of October 22.

Police said she had been shot multiple times in the upper body. She was pronounced dead at OhioHealth Riverside Methodist Hospital.

Boyuk, who contacted Hilliard police to report that his wife was missing, was arrested later that day at the couple's home in the 3800 block of Ridgewood Drive in Norwich Township. The house is near Hilliard and about 1 1/2 miles from the park.

The witness came to the Franklin County courthouse for Tuesday's hearing, but was too frightened of Boyuk to enter the courtroom, Assistant Prosecutor Kara Keating told the judge.

"She is terrified that if he is released he will do the same thing or worse," Keating said.

It wasn't explained how the witness is connected to the case, but Boyuk appears to be infatuated with her.

The woman's attorney, Garth Cox, told the judge that the claim that Boyuk was seeking atonement by looking for her doesn't explain a phone call that Boyuk placed to the hair salon hours before his visit.

 

According to Cox, when the hairstylist witness answered the phone, Boyuk said to her, "Hello, beautiful. Have you forgotten about me?"

Boyuk then invited her to dinner at his home before she hung up on him, Cox said.

She is now "petrified" of a man that she once considered a friend, he said.

Much of the case against Boyuk, who has pleaded not guilty to the charges, is laid out in motions that prosecutors have filed with the court.

Columbus police recovered a gun from Boyuk's home, and spent 9mm shell casings fell from his pocket after he was taken into custody. Testing determined that the shell casings had been fired from the gun that police confiscated from the home, prosecutors wrote.

A cab driver told police that she picked up Boyuk across from Griggs Reservoir on the morning of the murder and dropped him off at his home.

Prosecutors also revealed that when Columbus police officers arrived at Boyuk's house to inform him of his wife's death, he offered them multiple stories about the whereabouts of her cellphone. The officers eventually observed Boyuk walk to the back of the house and slip his wife's cellphone in his back pocket.

Among the most curious of the prosecution's revelations: Boyuk informed multiple individuals of his wife's death, including posting about it on Facebook, before police arrived at his home to notify him.

Boyuk's trial is tentatively set for June 7, but the court has granted defense motions for psychological evaluations of their client in the meantime.

(Mike Frisch)

Restitution And Reinstatement

The Michigan Attorney Discipline Board affirmed a hearing panel's denial of a reinstatement petition

Forced or compelled restitution is not mitigating in a discipline case. ABA Standard 9.4(a). And we have “warned against an overemphasis on restitution as mitigation in misappropriation cases”  because not every lawyer will have the means to make restitution and such ability may come and go. The ability to make restitution neither establishes the character requisite to hold a law license or provides assurance to the public that only those fit to act as repositories of their funds will be able to practice law. Our sanctions must not result in clients having to gamble on the financial health of their attorneys when they entrust funds to them. By analogy, making restitution for theft of client or third party funds does not entitle a disciplined attorney to reinstatement. It is but one indicator of rehabilitation and fitness, and it is certainly not enough by itself to earn the proclamation of fitness contemplated by MCR 9.123(B).

As the case law referenced above repeatedly underscores, whether an attorney who deliberately violated the fundamental fiduciary responsibility to not steal client funds should be reinstated to the practice of law will depend upon a truly compelling showing of change and rehabilitation. Here, no evidence of moral rehabilitation is in the record. Petitioner’s conduct since disbarment and the activity leading to it does not evidence a genuine transformation in any respect and there is nothing in the record to support a conclusion that petitioner could now be safely recommended to the public as a fiduciary in light of his misconduct. This is so even before considering petitioner's failure to pay one dime to reimburse the Illinois Client Protection Program for the compensation it paid to the victims of his theft (or towards his IRS obligations) despite having the ability to do so. When the panels and this Board reference these failures, the point is not that payment will result in reinstatement. Rather, the point is that the failure even to comprehend the importance of righting the egregious wrong of theft from a client while having substantial resources to do so is evidence that petitioner has not changed his ways or his character. Again, petitioner’s failure to meet the burden imposed by MCR 9.123(B) is about so much more than payment or nonpayment. His failure to grasp this has likely contributed to his inability to meet that burden.

(Mike Frisch)

Third Time's A Disbarment

The Georgia Supreme Court has disbarred an attorney

This is the third appearance of this disciplinary matter before the Court, following the rejection of the petition for voluntary discipline filed by Willie George Davis, Jr. (State Bar No. 213371) after a formal complaint was filed against him. See In the Matter of Willie George Davis, Jr., 311 Ga. 67 (855 SE2d 643) (2021) (“Davis II”).  This matter is now before the Court on the report and recommendation of the State Disciplinary Review Board (the “Review Board”) which recommends that Davis, a member of the State Bar since 1996, be disbarred based on his violations of Rules 1.7 (a) and (b), 1.15 (I) (a) and (c), 1.15 (II) (a) and (b), 3.4 (a), 3.5 (d), 8.1 (b), and 8.4 (a) (5) of the Georgia Rules of Professional Conduct (“GRPC”) found in Bar Rule 4-102 (d), which stem from Davis’s mishandling of his sister’s estate and his nephew’s conservatorship as well as his repeated failure to comply with orders of the Cobb County Probate Court. After considering the record and Davis’s exceptions to the Review Board’s report and recommendation, this Court finds that given the circumstances of this case, disbarment is appropriate.

(Mike Frisch)

A Full Bottle Of Champagne

The Oklahoma Supreme Court has imposed an interim suspension of a former judge for a misdemeanor driving under the influence offense.

The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), forwarded to this Court certified copies of the Sentence Order, Order: Report to Court, County Court Plea Agreement, and Information, in the criminal matter of State of Colorado v. McCoy, Kassie Nicole, Case No. 2022T966, in the District Court of Mesa County, State of Colorado. On August 30, 2022, Kassie Nicole McCoy entered a plea of Guilty to the misdemeanor crime of Driving Under the Influence (1^st), Colorado Code 42-4-1301(1)(a), committed on the 8^th day of April, 2022. The Colorado Court accepted Respondent's Guilty plea and sentenced Respondent to a 14 day suspended jail sentence, 12 months of probation, 48 hours of public service, an alcohol evaluation, restitution to the Grand Junction Police Department, and participation in MADD Victim Impact Panel. The OBA received certified copies of the papers and Exhibits 1-4 from the Mesa County District Court on February 21, 2023.

News on 6 reported on the arrest

Claremore Police have released the body cam video of officers arresting a Rogers County Judge.

Police said they found Judge Kassie McCoy with her head slumped down behind the wheel of her parked car.

“I would like to administer some standard field sobriety tests to ensure that you are safe to be operating a motor vehicle,” an officer said to McCoy.

Police say McCoy admitted to drinking a full bottle of champagne and had a blood alcohol content of 0.35.

Related Story: Rogers County Judge Arrested, Accused Of Being In Control Of Car While Intoxicated

She was booked into jail on a misdemeanor charge for being in control of the vehicle.

She said she is "embarrassed both personally and professionally" and will get treatment for alcohol dependency.

(Mike Frisch)

No Associates

The Massachusetts Supreme Judicial Court has suspended an attorney for charging and collecting excessive fees

This matter came before me on an Information and Record of Proceedings filed by the Board of Bar Overseers (board) in January, 2023, under S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009). The respondent, Daniel G. Ruggiero, was charged with participating in a scheme with nonlawyers to charge and collect illegal and excessive fees from fifteen clients – homeowners in Massachusetts and Rhode Island seeking mortgage assistance relief work. The respondent also was charged with failing to supervise nonlawyers with whom he worked, using a misleading law firm name, and sharing fees with nonlawyers. Count I of the petition regards the respondent's activities generally, while Count II focuses on one particular Rhode Island client.

A hearing was held on March 2, 2023, attended by assistant bar counsel and the respondent, and, on consideration thereof and for the reasons set forth below, it is ordered that the respondent's license to practice law is suspended for a period of one year and one day.

As to the allegations

The record supports the hearing committee's conclusion that the respondent violated each of these rules. As an initial matter, the fee agreement represented that the respondent would negotiate personally with lenders. There is substantial evidence in the record that this promise was "illusory and false." Similarly, substantial evidence supported the committee's conclusion that the representation that nonlegal services "may be provided by outside servicing Agents, all of whom shall be engaged, compensated, and supervised by Daniel Ruggiero, Esq. and Associates" was false. The nonlawyer agents all were hired and paid by NVA or ND. To the extent that the respondent occasionally may have supervised agents, the record supports the committee's finding that there were no "Associates." Indeed, the respondent conceded as much. See Mass. R. Prof. C. 8.4 (c), (h).

Four areas of violations

In determining its recommended sanction, the board sorted the respondent's rule violations into four categories. The first area of misconduct concerns the respondent's fee agreement and fee collection practices. This arrangement allowed the respondent to collect fees every month, even if no work was performed, in violation of rules 1.5, 8.4 (c), and 8.4 (h)...

The second area of misconduct related to the respondent's failure to communicate with his clients, as well as his delegation of work to unsupervised nonlawyers and subsequent ratification of their conduct. This conduct encompassed the respondent's violations of rules 1.1 and 1.4...

The third area of misconduct concerned the respondent's sharing fees with nonlawyers in violation of rule 5.4. The board noted that the typical sanction for a rule 5.4 violation is an admonition...

The fourth area of misconduct, which the respondent conceded, was his misrepresentation that he was part of a legal organization as opposed to a solo practitioner.

(Mike Frisch)

Insider Trade Draws Suspension For Former Cozen O'Conner Conflicts Attorney

A former conflicts counsel at Cozen O'Connor has accepted a one-year suspension from the Pennsylvania Supreme Court.

As part of his employment role, Respondent learned confidential information about a proposed merger and purchased stock based on that information.

Respondent then sold the stock for a $10,000 profit.

The sales led to an inquiry from FINRA and the Securities & Exchange Commission and an administrative settlement with the SEC.

The settlement involved a penalty payment of over $20,000 to the SEC.

The SEC findings are linked here.

Further from the SEC on the civil settlement

The Securities and Exchange Commission today announced settled charges against William E. Gericke, an attorney formerly employed by a large international law firm, for improperly trading on confidential information that he learned in connection with running a conflicts check.

According to the SEC's order, on or before October 7, 2019, Gericke, in his capacity as conflicts counsel, ran a "confidential" conflicts check related to a potential merger involving the firm's client, Liberty Property Trust (NYSE: LPT). Gericke understood that the information about the potential merger was confidential, but the next day, he purchased 1,000 shares of LPT. After the merger was announced, LPT's stock price increased 13.7%, and Gericke subsequently sold his shares for a profit of $10,002.

The order charges Gericke with violating the antifraud provisions of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder and finds that Gericke engaged in conduct within the meaning of Section 4C(a)(3) of the Exchange Act and Rule 102(e)(1)(iii) of the Commission's Rules of Practice. Gericke consented, on a neither admit nor deny basis, to pay a penalty in the amount of $20,004 and to the entry of a cease-and-desist order. Gericke also agreed to the entry of an order permanently denying him the privilege of appearing and practicing before the SEC as an attorney, which prohibits Gericke from representing clients in SEC matters, including investigations, litigation, or examinations, and from advising clients about SEC filing obligations or content.

(Mike Frisch)

The Dangers Of Discipline

The Colorado Presiding Disciplinary Judge approved a year and a day suspension by consent of an attorney for ethics violations in the representation of a criminal defendant.

The problem involved, in part, a six-month suspension imposed during the pendency of the criminal matter.

The Denver Post reported on her participation in the Discovery Channel series "Naked and Afraid" in a 2019 story 

In addition to running her own law firm (Molly Jansen Law Group) and practicing criminal defense, the Denver native is a longtime morning DJ on hard-rock station KBPI 107.9-FM (Mondays 8:30-9:30 a.m.), a mountaineer, a ski instructor at Beaver Creek, a licensed real estate broker (Falk Ryan LLC), a yoga instructor, a former candidate for Denver district attorney, and a single mother of three who hails from a prominent Denver family known for its philanthropy.

Now Jansen can add “Naked and Afraid” survivalist to the list — a title that seems impossibly distant from her debutante past. Teasers for her episode advertise her as a “super fan” of the series, and one who was paired with “Naked and Afraid” veteran and Lakewood-based Wright. (A fan-favorite “all-star,” Wright counts the equivalent of more than three months of filming for the show.)

The “super fan” tag is true now for Jansen, having watched every episode twice. But it wasn’t when she started.

“There’s a part of me that has a lot of adrenaline because I like to do unique things, like heli-skiing in Iceland or running marathons,” she said. “So when I got back from an 18-day climb in Nepal last April (part of her training for a May 2020 attempt to summit Mount Everest), I saw a random message on Facebook asking if I wanted to apply.”

(Mike Frisch)

Giuliani Post-Hearing Briefs Filed

Counsel for Rudy Giuliani have filed his post-hearing brief in the District of Columbia bar discipline case.

Follow the links to the document by clicking on cases of public interest.

The Brief contends that Disciplinary Counsel has failed to establish any ethics violations by clear and convincing evidence.

As to sanction, the Brief contends that an informal admonition or reprimand should be the sanction if the Hearing Committee finds a violation. If a more severe sanction is imposed, it should be no more than a 30-day suspension.

Disciplinary Counsel filed its reply brief yesterday that reasserted its call for disbarment.

One would have to be insentient to ignore the societal damage to which Mr. Giuliani has made a substantial contribution. Mr. Giuliani's public service, while alluded to in his testimony, is not part of the record in this case, but he urges it as mitigation. Equally relevant, although as aggravation, are the consequences of his misconduct: the loss of faith in the integrity of elections by a substantial portion of the citizenship, an unfounded belief that President Biden was not elected legally, the consequential claim of illegitimacy of his administration - all culmination [sic] in the events of January 6, 2021. Mr. Giuliani objects to being compared to a lawyer who spied against her country, but he did a great deal more harm to his country than Ms. Squillacote.

It must be clear that lawyers cannot use their law licenses illegitimately to undermine the constitutional system they are sworn to uphold. Rudolph W. Giuliani must be disbarred.

It appears that the reply brief was filed one minute after Respondent's brief. (Mike Frisch)

Cert Not Filed

An attorney who was on disciplinary probation has been suspended for one year by the Indiana Supreme Court for a probation violation involving his failure to file a certiorari petition

The material facts are not in dispute. The petition for certiorari was due on March 3, 2022. Pursuant to United States Supreme Court Rule 13(5), an application for extension of this deadline could be granted for good cause and “must be filed . . . at least 10 days before the date the petition is due, except in extraordinary circumstances.” Despite timely reminders from Mother, including one in which Mother specifically identified for Respondent the 10-day deadline for the extension request, Respondent failed to file an extension request by that deadline. Respondent did not file an extension request until March 3, the date the certiorari petition was due and the last date an extension request could be made based on “extraordinary circumstances.” The extension request was denied, and no certiorari petition was filed on the client’s behalf.

Mother texted Respondent on February 18 and February 24 asking for a copy of the extension request Respondent had indicated he would file. Respondent did not respond to either of these inquiries. Mother twice texted Respondent on March 8, once in the morning and once in the evening, asking that Respondent call her and expressing concern that she had not heard from Respondent. Respondent likewise did not respond to either of these inquiries. Respondent asserts he finally contacted Mother on March 10 to advise her the extension request was denied and no certiorari petition was filed. Respondent claims he offered to refund the $7,500 retainer Mother had paid once he could obtain the funds, but Respondent makes no claim that he has actually refunded that money.

Respondent’s characterization of this as a “single calendar error” ignores the litany of similar appellate errors and pattern of misconduct giving rise to his suspension and probation. See Matter of Small, 167 N.E.3d 1160 (Ind. 2021). Simply put, Respondent was placed on probation for the precise purpose of ensuring that his neglect of appellate matters would not continue. Respondent’s attempted diminution of Mother’s requests for information is similarly
unavailing. The requests were reasonable under the circumstances, even if made by text message (a medium of communication Respondent apparently invited), and Respondent’s failure to respond in any manner whatsoever during this critical three-week window—even simply to acknowledge receipt of the requests and advise when a response would be forthcoming—fell short of what our professional conduct rules require. Accordingly, the Court finds Respondent violated Professional Conduct Rules 1.3 and 1.4 and, hence, has violated the terms of his probation.

Reinstatement is not automatic. (Mike Frisch)

"Probably Impaired"

Ohio Disciplinary Counsel has filed a complaint alleging that an attorney had fled the scene after stopping for a police officer who had witnessed him making an illegal U-turn.

A high speed chase led to an accident that damaged but did not disable the attorney's car. 

The attorney was able to elude the officer. He allegedly then rented a car and took the damaged vehicle to a local body shop.

The police officer did get the license plate.

The attorney was convicted of a third degree felony of failing to comply with the officer and found not guilty of tampering with evidence.

He admitted that he had "been drinking" and was "probably impaired" in the presentence investigation.

The attorney is on an interim suspension for the conviction. 

Right To Respond To Internet Reviews Expanded In Florida

Some highlights of amendments to ethics rules adopted by the Florida Supreme Court

in rule 4-1.6, subdivision (b)(2), regarding when a lawyer must reveal information, is amended to make clear that confidential information must be disclosed to prevent death or substantial bodily harm to anyone, including a client. Additionally, a new subdivision (c)(7) is added to rule 4-1.6 to permit a lawyer to reveal confidential information to the extent the lawyer reasonably believes necessary to “respond to specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law.

And

rule 19-1.5 is deleted, as the Supreme Court Commission on Professionalism and Civility was disbanded in In re Florida Supreme Court Commission on Professionalism and Civility, Florida Administrative Order No. AOSC19-12 (Mar. 12, 2019).

(Mike Frisch)

For Judges Only

The Georgia Supreme Court has ordered a remand in a judicial misconduct matter where the Judicial Qualifications Committee had proposed removal from office

the JQC - both the Director and the Hearing Panel — made two critical legal errors that prevent us from resolving this matter now. First, both the Director and the Hearing Panel determined that the JQC has “jurisdiction” over conduct that occurs before a person becomes a judge or judicial candidate, and thus could pursue counts against Judge Coomer regarding prejudicial conduct. That is wrong. The Code of Judicial Conduct plainly applies only to conduct by judges and judicial candidates while they are judges or judicial candidates — indeed, the JQC acknowledged as much in two separate filings with this Court, not long before filing formal charges against Judge Coomer. Inexplicably, however, neither the Director’s argument to the Hearing Panel nor the Hearing Panel’s conclusion even acknowledges the JQC’s previous position; the Director’s only acknowledgement of that position came after Judge Coomer raised the issue last week, and still fails to engage with the relevant text. The Code of Judicial Conduct simply has no application to conduct by people who are not yet judges or judicial candidates, even if they later become a judge or judicial candidate.

Second, both the Director and the Hearing Panel failed to understand the circumstances in which the Constitution and our case law permits judicial discipline. Longstanding precedent makes clear that although actions taken in a judicial capacity — acting as a judge, not merely while a judge — can warrant discipline regardless of good faith, actions taken outside a judicial capacity can warrant discipline only when taken in bad faith. None of the counts against Judge Coomer allege any actions taken in a judicial capacity, and so, in order to prevail on those counts, the Director would need to prove bad faith by clear and convincing evidence. But the Director instead argued that even mere negligence would warrant discipline, without acknowledging our case law to the contrary. And the Hearing Panel accepted that argument, recommending removal based on an apparent assumption that it did not matter whether Judge Coomer violated the law knowingly or in ignorance. But bad faith requires more than ignorance, and because the Hearing Panel’s report and recommendation was ambiguous as to whether it found that Judge Coomer acted with bad faith, without clearer findings we cannot determine what, if any, discipline is appropriate.

(Mike Frisch)

Non-Participation In Trial After Defendant Fled No Ethical Violation

A Louisiana Hearing Committee recommends a partially-stayed suspension in a matter involving two counts of alleged misconduct.

Count One involves the attorney's failure to file state income taxes for two years.

Count Two involves the attorney's handling of a criminal trial on charges of first degree murder of a police officer

After the prosecution and the judge examined the first panel of jurors on voir dire a restroom break was taken. [Defendant] Zarius Brown, after the break, did not return to the courtroom. Efforts made to locate Mr. Brown were unsuccessful.

Respondent sought a continuance but did not seek to withdraw when that motion was denied

The trial for Zarius Brown in his absence took two days, and the jury found Mr. Brown guilty on all counts. Respondent could not recall whether he sought advice during the two trial days from other attorneys as to how to proceed while the client was absent. Respondent was present in the courtroom during the entire trial, but did not question any witnesses, did not make any arguments, and did not enter any evidentiary objections. The verdict was appealed, and the Court of Appeal, First Circuit of Louisiana, reversed the conviction and remanded it for further proceedings for ineffective assistance of counsel that included an improper jury charge to which Respondent did not object. Respondent credibly testified that he was not trying to disrespect the court and was open with the court as to what he was doing. Neither Judge Burris nor the prosecutor in the district court reported Respondent to the ODC. The appellate attorney for the district attorney’s office reported Respondent to the ODC after the First Circuit published its opinion.

The committee rejected ethics charges relating to Respondent's conduct (or lack thereof) at the criminal trial

Respondent moved for a mistrial and remained in the courtroom during the two days of trial. Respondent made the strategic decision as Mr. Brown’s attorney to do what Respondent thought was in the best interests of his client. There was no credible evidence introduced at the Committee hearing that Respondent’s decision to not further participate in the trial was to benefit himself or was made because Respondent was not prepared for trial.

...The Committee finds that Respondent acted in what he believed at the time was in the best interests of his client. He had not faced this situation of a client absenting himself during a trial and neither had the presiding judge nor prosecutor. The decision  was made during the heat of the trial. Respondent was not ordered by the court to participate in the trial. Balanced against Respondent’s actions that he believed were in the best interests of his client is the potential adverse impact on the system of justice. The precedential effect of no ethical violation for an attorney’s unwillingness to actively participate on behalf of his absent client during a trial is a potential adverse impact on the administration of justice that concerns the Committee. However, there was no credible evidence presented in this specific case that Respondent was complicit in any way with his client’s absence. To the contrary, Judge Burris testified at the hearing that Respondent was agitated and visibly upset after he learned that his client left the premises. Respondent was open with the Court about why he felt he could not continue to participate in the trial without his client. Furthermore, the evidence showed that Respondent was prepared for trial, and his decision to not participate in the trial was not self-serving.

The decision of the Louisiana Court of Appeals in the criminal case is linked here.

Proposed sanction

Considering all of the facts of this case, the Committee recommends a six month suspension from the practice of law with all but two months deferred as the appropriate sanction for Respondent’s misconduct.

(Mike Frisch)

To Preserve Life And Health

The North Dakota Supreme Court has upheld the right to abortion to preserve the life and health of a pregnant woman

The North Dakota Constitution guarantees North Dakota citizens the right to enjoy and defend life and the right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health. Thus, strict scrutiny analysis applies, and RRWC has a substantial likelihood of demonstrating N.D.C.C. § 12.1-31-12 is not narrowly tailored to achieve a compelling government interest, at least in the limited instances of life-saving and health-preserving circumstances. The district court did not abuse its discretion in granting the preliminary injunction. We deny the requested relief and leave the preliminary injunction in place.

(Mike Frisch)

Defendant May Discover Discharged Lawyer's Social Media Posts And Cell Phone Records

The New Jersey Appellate Division affirmed discovery orders for information sought by defendant Disability Rights in an action brought by a discharged senior staff attorney

In A-0269-22, the trial court order (cell phone record order) granted in part and denied in part plaintiff's motion to quash defendants' subpoena to her cellular provider seeking her cell phone records. Plaintiff used her cell phone to perform her work duties while allowed to work from home. The order required plaintiff: (1) to produce a redacted copy of her personal cell phone records indicating work-related calls and texts made and received during her normal workday from January 1, 2018 to January 31, 2020; and (2) to submit to the court a copy of the redacted records provided to defendants, as well as a Vaughn index of an unredacted copy of the records showing all calls and texts made and received during that period. National Employment Lawyers Association/New Jersey (NELA) filed an amicus brief in support of plaintiff.

In A-0270-22, the trial court order (social media posts order) granted in part and denied in part defendants' motion to compel plaintiff to provide copies of her private social media posts, profiles, and comments (collectively "social media posts" or "social media content") from January 1, 2020 to August 29, 2022, depicting an emotion, attaching a picture of herself, or mentioning: Disability Rights or her lawsuit's allegations; her vacations or celebrations; her being ill or worrying about being ill; and her work. NELA and New Jersey Association of Justice (NJAJ) filed amicus briefs in support of plaintiff.

We are unpersuaded by plaintiff's and amici's arguments that the trial judge abused his discretion in entering orders which abridged her privacy interests. We conclude the judge appropriately considered plaintiff's privacy interests in her social media posts and cell phone bills and did not err in allowing defendants' discovery of limited private social media posts and cell phone bills to defend against her claims that her termination violated the LAD, causing her emotional distress. We, however, remand for the judge to add the requirement in the social media posts order –– similar to the cell phone record order –– that plaintiff submit a redacted copy of her private social media posts to defendants and the trial court as well as an unredacted copy of the posts with a Vaughn index to the trial court.

The litigation

In January 2020, Orlowski and Catanese terminated plaintiff's employment as a senior staff attorney with Disability Rights. Seeking redress, plaintiff filed a LAD complaint against defendants alleging she was terminated because she needed disability accommodations relating to her lupus condition and cancer diagnosis. Plaintiff claimed "defendants have caused [her] to suffer personal hardships, including economic loss, physical and emotional distress, anxiety, pain and suffering, humiliation, [and] career, family and social disruption[.]" In response to defendants' interrogatory questions, plaintiff asserted she suffers "ongoing" emotional distress due to defendants' discrimination which has led to physical manifestations, including "terrible migraines, insomnia, worsening of her diabetes, [and] worsening blood pressure.

Social media posts

The social media posts order is not overbroad or burdensome. The order is limited to private posts made during a three-year timeframe and permits plaintiff to review the posts to determine which ones are responsive to the order without requiring her to provide unfettered access to her accounts. We appreciate plaintiff's counsel's contention at oral argument that plaintiff made daily private social media posts, thereby making the collection of her posts arduous. However, plaintiff's avid use of social media should not be a bar to defendants' legitimate discovery request given that her posts may be a window into her emotional state, which is in dispute.

Cell phone records

Considering the same liberal discovery rules applied to the social media posts order, we likewise conclude the judge did not abuse his discretion in entering the cell phone records order. We see no fault with the judge's assessment that records of plaintiff's work-related phone calls are relevant to defendants' claim that she was terminated because she was not performing her job duties by maintaining phone contact with her clients. The judge did not determine defendants' claim would succeed at trial but that the cell phone records could lead to admissible evidence concerning plaintiff's job performance. The order valued plaintiff's privacy rights by allowing her to redact the records of personal calls and texts made and received during workdays and non-workdays. Moreover, the order dictates that plaintiff provide a Vaughn index to justify her claim that certain redacted calls should not be disclosed to defendants.

(Mike Frisch)