Legal Profession Blog

Essentially Similar

If a conviction bears an "essential similarity" to a state felony, disbarment in New York is automatic.

The Appellate Division for the Second Judicial Department thus disbarred an attorney convicted on these facts of honest services wire fraud

By virtue of his plea of guilty to the information, the respondent acknowledged that between in or about January 2011 and February 2015, while an employee of the Town of Oyster Bay, he participated in a scheme to receive bribes and kickbacks in exchange for his assistance in obtaining the Town’s guarantee of certain loans. Specifically, the Town guaranteed two loans totaling approximately$20 million made by a private corporate financing company to two entities owned and operated by one of the respondent’s co conspirators. Approximately one week after the first loan closed, the respondent received from one of his co-conspirators an envelope with five checks, each made out to “cash” and in the amount of $5,000, for a total of $25,000. After the second loan closed, the respondent again received from one of his co-conspirators an envelope with five checks, each made out to “cash” and in the amount of $5,000, for a total of $25,000.

Under the circumstances of this case, we conclude that the respondent’s conviction of the crime of conspiracy to commit honest services wire fraud, in violation of 18 USC §§ 1343 and 1346, is essentially similar to the New York felony of scheme to defraud in the first degree, in violation of Penal Law § 190.65. By virtue of his conviction of a federal felony, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

Newsday reported

Frederick Mei, a former Oyster Bay deputy town attorney, admitted Monday to taking bribes from restaurateur Harendra Singh and another contractor as part of what he described as the “pay-to-play nature” of conducting business in the Republican-controlled town.

Assistant U.S. Attorney Lara Treinis Gatz asked Mei, who took the stand in the federal corruption trial of former Nassau County Executive Edward Mangano, his wife Linda and former Oyster Bay Town Supervisor John Venditto, if he was familiar with the expression “the Oyster Bay way.”

Mei responded: “To me, it’s a phrase used to discuss the pay-to-play nature of the town.”

Mei, who pleaded guilty to accepting bribes from Singh in exchange for helping him secure town-guaranteed loans, said the GOP wielded outsized influence in Oyster Bay.

A job candidate has to — at a minimum — be a registered Republican to get one of the approximately 1,100 posts with the town and they have to go to GOP fundraisers, Mei said.

“Pretty much do whatever you have to do in furtherance of the Republican Party,” Mei said.

His testimony recalled similar testimony four weeks ago from Singh, who said he learned early in his career to join the “club” of local Republicans for his restaurants to thrive.

(Mike Frisch)

Misdemeanor Conviction Draws Reciprocal Sanction

The South Carolina Supreme Court imposed reciprocal discipline based on a four month New York suspension

Respondent's New York suspension was related to his pleading guilty to reckless assault in the third degree, a Class A misdemeanor in New York. The criminal charge arose from Respondent's physical assault of the Complainant in his home after he drank excessively and "blacked out." The Complainant suffered bruises on her neck, throat, ribcage, and both wrists; contusions on her head; and a scaphoid fracture. A special referee appointed by the New York Supreme Court found the Complainant's assertions that she feared for her life during the attack were credible; Respondent's actions "were aberrational and not in his character"; and Respondent's deep remorse and acceptance of responsibility "were . . . palpable at  the hearing." The special referee recommended Respondent receive a public censure. However, in light of the seriousness of Respondent's conduct, the New York Supreme Court found "a period of suspension for such an assault [was] warranted in order to maintain the honor and integrity of the profession and deter others from similar misconduct."

We find reciprocal suspension from the practice of law in South Carolina for four months is appropriate in this matter. We order the reciprocal suspension be imposed retroactively to March 5, 2020 (the date Respondent's New York suspension commenced), and that his South Carolina suspension run concurrently with his New York suspension.

(Mike Frisch)

Attorney's Lien Survives Deposit Into Personal Account

The Maryland Court of Special Appeals has upheld the enforcement of an attorney's lien

Bibi Khan retained Tracey J. Coates, Esq. and the law firm of Paley, Rothman, Goldstein, Rosenberg, Eig & Cooper, Chartered (the “Law Firm”) to represent her in an action for modification of child custody and child support against her ex-husband Douglas Moore. As a result of the legal services rendered by the Law Firm, the Circuit Court for Montgomery County granted the Law Firm’s Motion to Adjudicate Rights in Connection with Attorney’s Lien. In granting the motion, the court ruled that the $50,000 attorney fee award, granted to Khan against Moore and deposited in Khan’s personal bank account, was subject to the Law Firm’s attorney’s lien and should be paid towards the lien. It is from this ruling that Khan appeals.

Below

The [circuit] court’s ruling effectively validated the Law Firm’s attorney’s lien in the amount of $50,000 against the $50,000 fee award that Khan deposited in her personal Citibank account, and ordered Citibank to pay the $50,000 in her account to the Law Firm.

The court here rejected this contention

Khan argues that an attorney’s lien may only be enforced against the corpus of an existing award, not an account held by a third party. She contends that once the award for attorney’s fees was received from Moore and deposited into her bank account, the corpus no longer existed, and the Law Firm lost any right to assert a lien against the award...

Khan’s contentions are not supported by the plain meaning of § 10–501 or Maryland Rule 2-652(b), and the cases relied on are incompatible with the facts of the present case. For this reason, we hold that the circuit court’s interpretation and application of Maryland statutory and case law was legally correct.

(Mike Frisch)

Duty To Supplement Bar Admission Application

The Indiana Supreme Court suspended an attorney for 180 days without automatic reinstatement

The Commission filed its disciplinary complaint against Respondent on May 1, 2019. Respondent was served but did not appear or respond. Accordingly, the Commission filed motions for judgment on the complaint, to which Respondent likewise failed to respond, and the hearing officer took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c)(3).

Facts: After twice failing the Indiana bar exam, Respondent applied again in December 2014, took and passed the July 2015 bar exam, and was admitted to practice in April 2016. In his bar exam application, Respondent answered “no” to Questions 14 (“Have you ever been a party in a civil court case or proceeding?”) and 15 (“Have you ever had a complaint or other action (including but not limited to, allegations of fraud, deceit, misrepresentation, forgery or malpractice) initiated against you in any administrative forum?”). Respondent also acknowledged in his application his affirmative obligation to notify the Board of Law Examiners of any events between his application and bar admission that would cause any of the answers on his application to change.

After he submitted his application and took the bar exam, but before he was admitted to the Indiana bar, Respondent was the subject of a civil protective order proceeding filed in Marion Superior Court as well as a Title IX complaint filed with the McKinney School of Law. Respondent failed to supplement his bar application to include information about the protective order and Title IX proceedings.

Respondent has petitioned for review, but his petition does not articulate any grounds that would call into question the appropriateness of the hearing officer’s entry of judgment on the complaint. Moreover, Respondent’s argument that prosecution of the underlying misconduct is barred on res judicata grounds, due to the prior dismissal of a show cause proceeding that involved Respondent’s failure to timely cooperate with the Commission’s investigation into that misconduct, is without merit. See Matter of Krasnoff, 78 N.E.3d 657, 661-62 (Ind. 2017). So too is Respondent’s argument that he is being prosecuted for “a purely private affair disconnected from the practice of law.” (Pet. for Rev. at 12). Respondent is not being prosecuted for having been the subject of protective order and Title IX proceedings; rather, he is being prosecuted for having failed to comply with the requirement that he disclose those proceedings on his bar application, a failure with a direct and immediate bearing on the practice of law. See Matter of Charos, 585 N.E.2d 1334, 1335 (Ind. 1992).

(Mike Frisch)

The Elephant In The Room

The North Carolina Supreme Court reversed the Court of Appeals and remanded a first degree murder conviction, holding that the prosecutor's references to race in closing argument did not prejudice the defendant.

Facts

Defendant testified that he was upset from having a bad day. He heard people arguing outside and yelled at them from his window. He yelled, “keep it the f--- down.” The group yelled back, “shut the f--- up; f--- you; go inside, white boy.” Defendant testified that he saw multiple people in the group with guns. Other witnesses testified that they did not see anyone with a gun at the party. Defendant’s two young daughters were in the house.

Defendant called 911. Before the operator answered, defendant was recorded saying “I’m going to kill him.” In his testimony, defendant admitted to having falsely reported there were “hoodlums racing up and down the street.” He said he was “locked and loaded” and going to “secure the neighborhood.” Defendant was not a police officer.

Defendant believed his son was part of the rowdy group outside and went to get him. When he got to his garage, which was furnished like a den, he found his son there. From his garage defendant yelled at the group to “leave the premises.”

According to witnesses who were at the scene that night, Kourey Thomas and his friends saw police blue lights from an unrelated traffic stop down the street. Thomas had a weed grinder on his person and did not want any trouble with the police, so he ran from Lewis’s house back to his friend’s car.  He cut across a small part of defendant’s yard on the way. Defendant saw a man running in his yard. Thomas was shot before he made it to his car. The force from the shot caused him to fall on the curb next to defendant’s mailbox. Someone screamed, “he just shot him through the window!” Defendant’s house was dark, his garage was closed, and one of the garage windows was broken. Thomas was African American. Defendant is white.

The victim died at the hospital.

Defendant was charged with first-degree murder. His case went to trial in February 2018. During closing arguments at trial, the prosecutor made the following statements which are at issue here:

MR. LATOUR [prosecutor]: I have at every turn attempted to not make this what this case is about. And at every turn, jury selection, arguments, evidence, closing argument, there’s been this undercurrent, right? What’s the undercurrent? The undercurrent that the defendant brought up to you in his closing argument is what did he mean by hoodlums? I never told you what he meant by hoodlums. I told you he meant the people outside. They presented the evidence that he’s scared of these black males. And let’s call it what it is. Let’s talk about the elephant in the room.

MR. POLK [defense counsel]: Objection.

THE COURT: Overruled.

MR. LATOUR: Let’s talk about the elephant in the room. If they want to go there, consider it. And why is it relevant for you? Because we talked about that self-defense issue, right, and reasonable fear. What is a reasonable fear? You get to determine what’s reasonable. Ask yourself if Kourey Thomas and these people outside were a bunch of young, white males walking around wearing N.C. State hats, is he laying dead bleeding in that yard? 

MR. POLK: Objection.

THE COURT: Overruled.

MR. LATOUR: Think about it. I’m not saying that’s why he shot him, but it might’ve been a factor he was considering. You can decide that for yourself. You’ve heard all the evidence. Is it reasonable that he’s afraid of them because they’re a black male outside wearing a baseball cap that happens to be red? They want to make it a gang thing. The only evidence in this case about gangs is that nobody knows if anybody was in a gang. That’s the evidence. They can paint it however they want to paint it, but you all swore and raised your hand when I asked you in jury selection if you would decide this case based on the evidence that you hear in the case, and that’s the evidence. Now, reasonableness and that fear, a fear based out of hatred or a fear based out of race is not a reasonable fear, I would submit to you. That’s just hatred. And I’m not saying that’s
what it is here, but you can consider that. And if that’s what you think it was, then maybe it’s not a reasonable fear.

The court examined possible prejudice in light of all the evidence

Given that the jury found beyond a reasonable doubt that defendant was guilty of first-degree murder based on the evidence it heard, and given defendant’s failure to argue persuasively that there is a reasonable possibility that the jury would have acquitted him absent the prosecutor’s challenged remarks, we cannot conclude that the inclusion of the remarks prejudiced defendant. Therefore, we are unable to conclude that he is entitled to a new trial.

Justice Earls concurred but noted the majority and dissenting opinions below left an unresolved question

The essential question is: was it improper, in light of the evidence in this case, for the prosecutor to argue to the jury that a fear based on race would not be a reasonable fear? That argument was proper in this case for two reasons. First, it was not an appeal to racial animosity. Second, statements made by jurors during jury selection, the evidence here concerning race-based statements made by individuals at the scene, and defendant’s assertion of self-defense all combine to suggest that jurors potentially might have been swayed by their own conscious or unconscious racial biases instead of the evidence in the case. In these circumstances the prosecutor properly argued that it would not be reasonable for defendant to fear Kourey Thomas, the victim in this case, if that fear was based on the fact that Kourey Thomas was black.

While explicit references to race are improper

Equally well established is the principle, followed by this Court in Williams, that “[n]onderogatory references to race are permissible, however, if material to issues in the trial and sufficiently justified to warrant ‘the risks inevitably taken when racial matters are injected into any important decision-making.’ ”

...The record in this case shows that the prosecutor’s references to race in his closing argument were non-derogatory, and that they were intended to ensure that the jury did not allow implicit stereotypes about the dangerousness of young black men to infect their determination of whether defendant established that he had a reasonable fear and acted lawfully in self-defense. In these circumstances, the statements were proper.

As to relevance 

The remaining inquiry under our precedents is whether the statements were relevant to the facts of the case. In this case, the prosecutor’s statements were relevant because jurors themselves had raised the issue of race during jury selection, defendant testified that the men outside his house had used racially charged language, and defendant asserted self-defense. The very first mention of any race related aspect of this case came during jury selection when defendant’s counsel asked a prospective juror “do you remember anything about comparisons to the famous George Zimmerman case in Florida?” At that point the prosecutor objected and the trial court sustained the objection.

(Mike Frisch)

Internet- Based Research And Support Company Moves to Quash Subpoena

The Ohio Supreme Court has ordered the State Bar Association to respond to a motion to quash a subpoena for documents.

From the motion to quash

The Respondent is of information and believes that Ohio Regulatory Agency has received only one single complaint from an inmate incarcerated in Federal prison in Fort Dix New Jersey for crimes committed in New York. Timberwolf is a native Colorado business that had foreign registration in the state of Ohio. The inmate's lawyer was based in Colorado and a complaint filed by the inmate was against this Colorado based lawyer. Timberwolf performed research, typing and office support under the direction of Mr. Snyder’s Colorado based attorney. Some of this work, in particular the typing and mailing, was performed by the Ohio office of Timberwolf, but all work performed by Timberwolf for Mr. Snyder was under the direct supervision of that Colorado based lawyer.

One concern is whether a worker in a law office must be in the same state as the lawyer handling a case. A question arises as to whether internet-based research, typing and mailing of documents prepared or approved by an out of state lawyer constitutes the practice of law in the state from which the documents were physically typed or mailed. If so, then a situation could arise where a legal secretary living in an apartment just across a bridge from the Philadelphia law firm where she was employed could be found to be engaged in the practice of law simply because she dropped off the mail at a post office on the New Jersey side of the river where she lived instead of at a post office on the side of the river where she was employed.

The Ohio Regulatory Agency has received no other complaints whatever from Respondent’s customer base. The State agency filed a far reaching Subpoena Duces Tecum issued to a third non-party (James Houk) seeking the identities of all Timberwolf customers nationwide going back years and also requiring the presence at deposition of non-party Houk. See Exhibit A Subpoena Duces Tecum.

Respondent by counsel filed a Motion to Quash (Exhibit B) and a Memorandum of Law (Exhibit C).

(Mike Frisch)

Ohio Soldiers On

Dan Trevas previews an oral argument today before the Ohio Supreme Court

Erie-Huron County Bar Association v. Kenneth Ronald Bailey and Kenneth Richard Bailey, Case No. 2019-1028
(Huron County)

Father-son lawyers Kenneth Ronald (Ron) Bailey and Kenneth Richard (Ken) Bailey face disciplinary sanctions for their actions while representing a church pastor accused of raping two churchgoers under age 13.

The Board of Professional Conduct recommends that Ron Bailey be suspended for two years with one year stayed with conditions. The board recommends a public reprimand for his son based on disparaging posts about Erie County Common Pleas Court Judge Roger Binette on Facebook. Portions of those posts were reported by the Sandusky Register and Ken Bailey removed them.

Ken Bailey didn’t object to the board’s conclusion that he made a false statement regarding the qualification and integrity of Judge Binette and he isn’t participating in oral arguments. The Court is considering Ron Bailey’s objections to the board’s recommendations.

Attorney Seeks Time, Expert to Represent Client
The Erie-Huron County Bar Association charged Ron Bailey with several violations of the rules governing the conduct of Ohio lawyers based on his 2016 representation of Richard Mick. Mick was indicted in May 2014 on two counts of gross sexual imposition and two counts of rape stemming from alleged acts that took place 15 years earlier when the victims were younger than 13. Mick was first declared indigent and appointed a public defender.

The public defender represented him for the next 16 months, and the trial court agreed for the state to pay the cost to hire psychologist Terrence Campbell as an expert witness.

In 2015, Mick fired his public defender, and using funds donated by church members, hired Ron Bailey to represent him. He paid Bailey a $12,000 retainer agreed to pay $250 per hour for representation, and agreed to pay expenses associated with the cost of “investigators’ and “expert witness fees.”

In October 2015, Bailey took over the case and asked for several continuances. By that time, Campbell had died and Bailey requested he be replaced by Jolie Bram at the state’s expense. A third expert witness, Eric Ostrov was also expected to testify.

Dispute about Experts Arises
Prosecutors notified Bailey that Mick had previously been charged with sexual abuse in 2012 in a case involving his daughter. Ostov issued a report in the daughter’s case questioning the validity her testimony based on “repressed memory.” Bailey was provided the report and indicated that Ostrov asked Bailey to pay his travel expenses from Chicago to testify in the new Mick trial, as he shared the same view of repressed memory testimony as the deceased Campbell. Mick was acquitted in the 2012 case.

Prosecutors objected to Bailey’s request that the state pay for Bram, noting the presence of Ostrov and the fact that Mick shouldn’t be considered indigent because he was able to pay Bailey. The court denied the request to pay for Bram.

The trial was set for October 2016, and Bailey continued to insist that he was unable to prepare properly to represent Mick if he was denied the expertise of Bram.

Attorney Refuses to Participate in Trial
On the eve of the trial, Bailey, after consulting with his son, other lawyers, and Mick, developed the strategy that he wouldn’t participate in the trial and would force a mistrial. He would argue the denial of funds to hire Bram was of such constitutional magnitude that it would prevent a fair trial. He notified Ostrov not to travel to Ohio to testify.

When Judge Binette instructed the attorneys to begin jury selection, Bailey announced he “cannot and will not be able nor willing to proceed today.” Judge Binette called the lawyers to the bench and Bailey repeatedly requested that the judge continue the case and provide funding for Bram. The judge denied the motion and on three occasions requested that Bailey step back from the bench. Bailey refused and continued to argue his case. The judge notified Bailey he was going to cite him for contempt of court.

Bailey refused to participate in the trial and no witnesses were called on Mick’s behalf. Mick was convicted of the charges and sentenced to life in prison for the two rapes. Bailey was held in contempt, and ordered to pay a $250 fine and serve 30 days in jail.

The Sixth District Court of Appeals reversed Mick’s conviction based on ineffective counsel, and he was released from prison after 18 months. He was retried in 2019, which ended in a mistrial. A third judge was assigned in late 2019 to hear Mick’s case.

Board Finds Attorney Misconduct
While the bar association charged Bailey with several rule violations, a three-member hearing panel concluded that Bailey broke three rules. The panel found he disrupted a court case, acted in an undignified and discourteous manner toward the trial judge, and engaged in conduct that prejudiced the administration of justice.

The panel recommended a one-year suspension with six months stayed. The Board’s recommendation increased the sanction to a two-year suspension with one year stayed with the condition that he commit no further misconduct.

Attorney Denies Violations
Bailey objects to the recommended suspension, noting that he has no prior disciplinary violations in his more than 30 years as a practicing lawyer. He notes the 2019 mistrial of Mick’s second trial provides further evidence that he was correct in his position not to participate in a trial that would violate his client’s constitutional rights. Bailey acknowledges his actions disrupted the proceedings, but noted the panel found no evidence he acted in a dishonest manner and that his actions were sincere and in good faith.

Bailey notes that during his disciplinary hearing an expert witness supported his theory that he would have little success of winning an appeal had he allowed the trial to go forward then raised his objection to the lack of funding an expert witness.

He also notes that he didn’t intend to act discourteously toward the judge. He said he took the judge’s statements that he “may step back from the bench” to be advisory and not an order that he was disobeying. He asks the Court to find no violations of the rules.

Bar Association Support Sanction
The bar association maintains the board correctly found that Bailey’s fee agreement with Mick provided for funds to pay for the expert witnesses and he had no justification for disrupting after the trial court repeatedly denied his requests for funds. The association argues that Bailey engaged in a risky strategy to prevent his client from going to prison that backfired and his actions justify the suspension.

– Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Note from the court's web page: The Supreme Court of Ohio hears oral arguments in four cases on Tuesday and four cases on Wednesday. Oral arguments begin at 9 a.m. and will be conducted via videoconferencing. (Mike Frisch)

Board Reprimand For Disruptive Behavior

The Georgia Supreme Court approved a petition for a State Disciplinary Review Board reprimand

According to his petition, Abdur-Rahim was involved in an altercation with his father in September 2017, and as a result, Abdur-Rahim was charged with family violence battery, third degree cruelty to children, and disorderly conduct. At his arraignment in April 2018, Abdur-Rahim was unnecessarily argumentative with prosecutors, used profanity, failed to follow the instructions of the court, and generally engaged in disruptive conduct. In mitigation, Abdur-Rahim says that he was suffering from personal and emotional problems at the time of his arraignment, that he later sought and obtained treatment for these problems, that he apologized to the judge and court staff involved in his arraignment, that he freely and fully disclosed his wrongful conduct to and cooperated with the State Bar and State Disciplinary Board, and that he is remorseful for his misconduct. We note as well that Abdur-Rahim has no prior disciplinary history, and his disrespectful and disruptive conduct on the occasion of his arraignment appears to have been an isolated incident, inasmuch as the State Bar has come forward with no evidence of Abdur-Rahim disrupting court proceedings on other occasions.

The attorney represented himself at the arraignment. (Mike Frisch)

Focus

An agreed reprimand and probation from the Maine Grievance Commission

Respondent Steven A. Juskewitch, Esq. (Juskewitch) has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, Juskewitch is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R.P.C.). Juskewitch was admitted to the Maine Bar in 1976 and is currently a solo practitioner in Ellsworth, Me.

According to the parties’ stipulations, the Commission finds the following relevant facts:

On December 8, 2018, Richard Eckendorff filed a complaint against Attorney Juskewitch, based upon Juskewitch’s prior representation of Eckendorff. Within his complaint, Eckendorff alleged that Juskewitch threatened him with physical harm, causing Eckendorff to feel fearful and intimidated by his attorney. Eckendorff reported that the threats occurred over the span of four months during the representation. On at least two of the occasions when Juskewitch made the aggressive statements, there was another person present. Eckendorff did not discharge Juskewitch as his counsel. Mr. Juskewitch withdrew from representation after the court granted his motion to withdraw. Sometime thereafter, Eckendorff filed his grievance complaint, which followed his receipt of Juskewitch’s final bill. Eckendorff also complained to the local police but Juskewitch was not charged with a crime.

Juskewitch filed a timely response to the complaint, denying any professional misconduct. Instead, Juskewitch explained that while he did make statements such as "I'm going to strangle you," he did so in frustration with Eckendorff’s lack of focus, not as an intended threat toward his client. Juskewitch averred that his relationship with Eckendorff was a difficult one to manage and his statements were meant to focus the client on preparing for his anticipated testimony. With the passage of time, Juskewitch now agrees that his treatment of Eckendorff fell short of that which is ethically required of attorneys. He has expressed regret for acting in that manner toward Eckendorff.

Even though Juskewitch did not intend to convey a threat to his client, the Commission finds that his actions toward Eckendorff were violative of M.R.P.C. 1.4(a) [communication] and 8.4(d) [conduct prejudicial to the administration of justice].

The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Juskewitch agrees that he violated his duties to comply with those Rules.

Sanction

Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that an Admonition and Probation are appropriate sanctions to address the misconduct by Attorney Juskewitch. The parties shall mutually agree upon the Probation terms, but at a minimum, Probation shall continue for one year, and Mr. Juskewitch will consult with an agreed upon person or persons experienced in the proper management of client relations/communications and anger management. The parties have further agreed that the Probation terms shall be maintained within Bar Counsel’s file, and she shall notify the Commission Clerk upon Juskewitch’s successful completion of the period of Probation. With these consented-to-conditions, the Commission accepts the agreement of the parties, including Attorney Juskewitch’s separately executed waiver of the right to file for a Petition for Review.

Pursuant to M. Bar R. 13, the Commission hereby imposes an Admonition and one year of Probation upon Steven A. Juskewitch, Esq.

(Mike Frisch)

A Timely Guest Post

One Gig Too Many
Professor Michael A. Zuckerman
Northwestern Pritzker School of Law

 

Lawyers are increasingly joining the ranks of gig workers. Just look at websites like freelancer.com and Upwork—there is no shortage of legal work and lawyers willing to take it on. Through online platforms like these, lawyers are doing things like drafting employment agreements, advising on corporate structure, and reviewing real estate deals. These legal gigs—err, matters—may be lucrative and may even expand access to justice. But ethics issue abound.

 

One particular problem is the unauthorized practice of law. Unlike software engineers or virtual assistants, lawyers are subject to state ethics rules, like various versions of ABA Model Rule 5.5, which significantly restrict out-of-state lawyers from practicing law in a state absent certain circumstances. Helping someone who needs a lawyer on a matter of state law is generally not one of those circumstances. For good reason, states restrict practice of their own laws to their own lawyers. So, when a client in California needs help with a California contract, a lawyer from Illinois who she found online ordinarily cannot help, lest risk the authorized practice of law.

 

The contours of the unauthorized practice of law vary across jurisdiction. But as lawyers increasingly enter the gig economy, lawyers must remain vigilant to stay in their lane. Merely because it is easy to find clients and practice law across borders does not give license to do so. Rather than relying on clients and third-party platforms to regulate legal practice, lawyers must be aware of the rules. And before legal regulators come down on those who flout the rule, gig lawyers should start by policing themselves, even if there might be changes on the horizon. Our professional obligations demand it.

Former Judge Disbarred

A former judge's felony conviction has resulted in his disbarment by the New York Appellate Division for the Second Judicial Department

On September 13, 2019, the respondent pleaded guilty before the Honorable David Goodsell, in the County Court, Suffolk County, to the crime of attempted burglary in the second degree, in violation of New York Penal Law §§ 110 and 140.25(2), a class D felony.

The actions taken by the New York Commission on Judicial Conduct are linked here. 

ABC7 NY reported on the charges

A Long Island judge who police say repeatedly broke into his neighbor's home to steal her underwear has confessed to snatching panties on multiple occasions, even though he has pleaded not guilty.

Still, Suffolk County District Judge Robert Cicale has been removed from the bench and is facing up to 15 years in prison.

Cicale was arrested on burglary charges and appeared in court Friday morning.

The judge is a married father of three young children, and he is accused of sneaking into a home across the street and stealing the underwear of a 23-year-old woman who lives there with her parents. He reportedly knew the girl from when she worked as an intern at the Islip Town Attorney's Office, when he used to work there.

In his confession, he said he stole the underwear upon feeling "urges." He admitted that on several occasions, he entered the home, opened her hamper and took underwear.

Cicarle [sic]  was taken into custody after an incident that happened around 9 a.m. Thursday, when the young woman was alone. Prosecutors said she was sleeping but woke up when she heard the door open. She called out, "Hello?" and that's when she saw Cicale at the doorway.

Authorities say he turned around and ran away, and the victim closed and locked the door and called her mother, who called 911. Responding officers say they saw Cicale walking up to a different house and pretending to knock on the door.

They approached him because he matched the description of the person the victim described. They reportedly found several pairs of soiled women's underwear on him, which the victim identified as her own.

Cicale has written letter of apology to victim and also provided a written confession.

(Mike Frisch)

Wyoming Reverses Contempt Of Public Defender For Declining Cases

The Wyoming Supreme Court has reversed a contempt of a public defender

In May 2019, State Public Defender Diane Lozano notified the Circuit Court of the Sixth Judicial District that until further notice, the public defender was not available to take appointments to represent misdemeanor defendants due to an excessive caseload and shortage of attorneys in its Campbell County office. Shortly thereafter, the circuit court entered orders appointing Ms. Lozano, or her representative, to represent misdemeanor defendants in two cases. When the local public defender’s office declined the appointments, the court held Ms. Lozano in contempt. We granted Ms. Lozano’s petition for a writ of certiorari and now reverse.

The court held that the public defender did not have a legal or ethical obligation to seek withdrawal from cases where no appearence had been entered.

As to declining cases

The public defender is in the best position to know its resources, including its attorneys, the skills and experience of its attorneys, and the weight and complexity of each office’s caseload. We see little to be gained by requiring an evidentiary hearing for each individual case in which the public defender declares its unavailability based on those factors that are uniquely within its knowledge. As the circuit court noted in its contempt order, in the short time between the public defender’s notice of unavailability and the issuance of its order on May 23, the court made nearly three dozen appointments of private counsel. A hearing in each case would have required an expenditure of court and public defender resources that would not serve the interests of judicial economy and would have further depleted the public defender’s resources.

And ethics

The public defender testified to her actions during the roughly two months between when the Campbell County office lost three of its attorneys and her letter declaring the office’s unavailability. During that time she did the following: consulted with bar counsel concerning her ethical obligations, considered her options under the Public Defender Act, requested permission to fill the vacant positions and took steps to do that, consulted with the Governor’s office, consulted with her budget director, and reviewed caseloads in other offices to see if she could draw attorneys from elsewhere. We disagree that the time it took  the public defender to respond to the situation in Campbell County belies the seriousness of the problems.

We cannot fault the public defender for investigating other options before declaring the office’s unavailability. That it took time to decide that the only option was to declare the office unavailable does not undermine the public defender’s evidence that the ethical concerns were real and imminent. Ms. Lozano testified concerning the public defender’s caseload policies and that the Campbell County office was at 168% of the maximum caseload. Counsel for the Wyoming State Bar testified that the public defender’s policies on caseloads “support a way of measuring when an attorney’s caseload gets to the point where the attorney has no ethical choice but to decline representation.” The field supervisor for the Campbell County office testified to instances in which he had appeared on behalf of an indigent defendant without having read the file and without knowing enough about the defendant’s circumstances to present available defenses. Based on the unrefuted evidence, the concerns that the Campbell County office could not adhere to its ethical obligations without some relief were not speculative.

Thus

In sum, section 105(b) affords the public defender discretion to decline an appointment or appointments. In exercising that discretion, there is no requirement, statutory or otherwise, that the public defender show an individualized injury in fact or meet the Strickland post-conviction showing of prejudice.

Justice Kautz concurred

No evidence before the circuit court established that the public defender could comply with the orders. To the contrary, the evidence absolutely established there was no available public defender, as the majority opinion recognizes. The evidence did not show Ms. Lozano willfully failed to provide a public defender for Mr. Johnson or Mr. Stricker, but instead showed she could not reasonably do so. The threshold requirement of willful failure to comply was not met here. There simply was no evidence which could support a finding that there was an available public defender when the Johnson and Stricker appointments occurred. As a result, the circuit court’s order of contempt must be reversed.

Our review should end at this point. It does not matter whether the statutes authorize Ms. Lozano to unilaterally declare unavailability, or require her to establish unavailability to the court.

(Mike Frisch)

Sleep Apnea Treatment Mitigates Sanction

An attorney's sleep apnea is not a mitigating factor in a matter in which the attorney had allowed a default to be entered against a client and made misrepresentations to that client.

The New Hampshire Supreme Court ordered a three year suspension with 18 months stayed. 

However, his subsequent treatment and its positive consequences significantly impacted on the sanction

We note that, although the respondent’s sleep apnea does not qualify as a disability, his medical history and subsequent treatment are material factors in our analysis. Shortly after the events at issue in this matter, the respondent voluntarily ceased the practice of law, and sought treatment for his health problems. Beginning in 2012, the respondent went to dozens of medical appointments for problems including fatigue, swelling, and abdominal pain. Although he was diagnosed with a number of conditions, the respondent’s health did not markedly improve until after he was diagnosed with sleep apnea in 2017. Following this diagnosis, the respondent began sleeping with a CPAP (Continuous Positive Airway Pressure) machine, and has been healthier with less fatigue. After a period of approximately 15 months not practicing law, in March 2018, the respondent returned to practice handling a full caseload, apparently without additional instances of misconduct. Thus, we take into account the respondent’s struggles with his health during the events at issue in this matter, as well as his representations that he has since addressed his health problems, and is once again capable of handling the serious responsibilities associated with the practice of law.

Sanction

...we order the respondent suspended for three years, and we order him to pay all costs associated with the investigation and prosecution of this matter. See Sup. Ct. R. 37(19). We further order that 18 months of the suspension shall be stayed, provided that the respondent pays said expenses and engages in no further professional misconduct.

(Mike Frisch)

Disbarment Factor

A single justice of the Massachusetts Supreme Judicial Court has affirmed the disbarment of an attorney with a foreclosure practice for his involvement in misappropriation. 

The problem began with an employee misappropriation

Although the respondent denied knowing that Moss misappropriated funds, the hearing committee did not credit this testimony and cited to several sources, including testimony from Scofield, Donovan, and Feige. Specifically, testimony at the hearing established that the respondent discussed the IOLTA deficit with Feige and Scofield. Starting on February 28, 2011 Feige provided the respondent and Scofield with a weekly summary of the firm's finances which showed that the firm's accounts payable significantly exceeded the accounts receivable, sometimes by as much as three-fold. Testimony at the hearing, corroborated by email correspondence, demonstrates that the respondent was actively involved in the firm's financial decisions.  The respondent was involved in deciding which vendors to pay, the amount to be paid, and the timing of the payments, including payments made to ancillary businesses in which the respondent had an ownership interest.

After the new CFO was in place

As the firm's new chief financial officer, Feige continued and expanded the firm's misuse of 101 TA funds. In 2011, the financial pressures on the firm grew after this court issued its decision in U.S. Nat'! Bank v. Ibanez, 458 Mass. 637 (2011), requiring that a lender have possession of the promissory note prior to commencing a foreclosure action. As a result of the Ibanez decision, pending foreclosure cases were unable to move forward, but the firm continued to incur expenses. For several months after the decision, the firm did not receive any new foreclosure work and began to operate at a loss.

The bar came calling

In August 2011, as a result of five bounced checks drawn on the firm's IOLTA accounts, bar counsel opened an investigation. Bar counsel requested an explanation and supporting financial documents. Earlier in the summer of 2011, the respondent, Scofield, Feige, and Donovan met to review Donovan's preliminary findings on the extent of the misuse of client funds under Moss. Nevertheless, by the time bar counsel opened the investigation, this analysis remained ongoing and the firm's financial records were still not in compliance. Knowing the poor state of the firm's financial records, Feige and Donovan both expressed concerns over bar counsel's requests. The respondent hired a legal ethics attorney, who taught Donovan how to perform three-way reconciliations, as required by Mass. R. Prof. C. 1.15. However, Donovan was unable to reconcile the accounts and bring the accounts current due to a lack of funds. To comply with the request from bar counsel, Donovan created a second set of Quick Books which were submitted to bar counsel. On the basis of the false records, bar counsel closed the investigation on May I, 2012.

But continuing problems brought the bar back

The firm was again investigated by bar counsel. On August 2012, after a check for $370,000 drawn on an IOLTA account was returned for insufficient funds, bar counsel opened a second investigation of the respondent and Scofield. This investigation was also closed on the basis of false statements made by Feige to bar counsel. The hearing committee subsequently found that these statements were not truthful during the current investigation. Although Feige reported to bar counsel that the check was an accounting error, a review of financial records showed otherwise.

Two other firms were brought into the practice

On August 28, 2013, after learning that the firm would not be able to issue an IOLTA check, [new partner] Geaney also learned that more than $3 million was missing from the IOLTA accounts. Geaney called a meeting with the respondent, Scofield, and Connolly. At the meeting, Donovan and another member of the accounting department informed the partners that they had used IOL TA funds to cover firm expenses per instructions from Feige.

The partners discussed options on how to proceed, including firing Feige. The respondent testified that he wanted to fire Feige but did not have the authority. The hearing committee did not credit this testimony, as all the other partners testified that the respondent had the authority to fire Feige. Nor did the hearing committee credit respondent's argument that the firm's restructuring, including the respondent's purported resignation on May 16, 2013, left the respondent without the authority to fire Feige.

Respondent later declared bankruptcy.

A second count involved the ethics of a "factoring" agreement

On November 8, 2012, the firm entered into a factoring agreement with Durham Commercial Capital Corp. (Durham) under which the firm agreed to sell its accounts receivable to Durham. The respondent signed the agreement, which included a statement confirming that the firm was solvent. The agreement granted Durham a security interest in the firm's accounts receivable; however, the firm previously had granted the same assets to a creditor as collateral.  Although the respondent testified that he believed the firm was solvent at the time that he entered into the agreement with Durham, the hearing committee did not credit his testimony as the respondent knew that on multiple occasions the firm was unable to cover payroll and outstanding debts including as of October 2012.

The respondent further violated the rules of professional conduct as, pursuant to the factoring agreement, the firm granted Durham access to confidential client information prior to seeking and securing permission from those clients to disclose the information.  Further, the firm failed to inform clients that it granted Durham sole possession of all records and computer servers containing confidential client information as collateral.

The justice rejected Respondent's claim that his due process rights were violated by denying his request to depose three witnesses. He was given full ability to cross-examine these witnesses at the hearing.

Sanction

regardless of the respondent's motive, whether he was operating the firm for his personal gain or attempting to keep the firm afloat for the benefit of its employees and clients, it does not change the fact that IOLTA funds were misappropriated and the respondent did not, as a supervising attorney, take the necessary steps to ensure that the firm properly managed the IOLTA accounts. The respondent's failure to establish effective measures to ensure that the IOLTA accounts were managed properly is especially egregious given that the office of bar counsel investigated his firm for the same offense on two prior occasions.

Associate Justice Budd authored the decision. (Mike Frisch)

New York Rejects Former Client's Claim That Attorneys Pursued Meritless Case To Generate Fees

The New York Court of Appeals affirmed the dismissal of claims by a former client for the alleged pursuit of a meritless claim to earn fees

The singular issue before us in this appeal is whether the Appellate Division erred in dismissing plaintiffs’ claim under Judiciary Law § 487 (1) against their former attorneys who allegedly induced them to bring a meritless lawsuit in order to generate a legal fee. Defendants met their initial burden on summary judgment with respect to whether their alleged deceit occurred during the pendency of litigation, and plaintiffs failed to raise a triable issue of fact on that issue in response. We therefore affirm the Appellate Division order granting summary judgment dismissing the complaint.

Defendants, attorney Mitchell Stein and his law firm, Stein Law P.C., represented plaintiffs Bill Birds, Inc., which manufactures decorative metal automobile parts, and its president in a trademark dispute against General Motors, Service Parts Operation (GM) and Equity Management, Inc. (EMI). After the complaint in that action was dismissed, plaintiffs commenced this action against defendants alleging, as relevant here, a violation of Judiciary Law § 487(1).

Plaintiffs alleged that defendants advised them that GM had possibly abandoned the trademarks GM had licensed to plaintiffs for over a decade, advising plaintiffs that they had meritorious claims against GM. Based on this advice, plaintiffs commenced the underlying federal trademark action against GM and EMI in the United States District Court for the Eastern District of New York, incurring $25,000 in attorney fees. Plaintiffs alleged that the underlying action—which was dismissed as commenced in an improper venue based on a forum selection clause in plaintiffs’ licensing agreements with GM—clearly lacked merit, in part because a provision in the licensing agreement prohibited plaintiffs from challenging GM’s ownership of the relevant intellectual property. Plaintiffs further alleged that defendants concealed the dismissal of the underlying action for approximately nine months and subsequently lied about the reason for the delay, claiming that the federal court did not release its decision promptly.

The underlying case

Plaintiffs alleged that defendants advised them that GM had possibly abandoned the trademarks GM had licensed to plaintiffs for over a decade, advising plaintiffs that they had meritorious claims against GM. Based on this advice, plaintiffs commenced the underlying federal trademark action against GM and EMI in the United States District Court for the Eastern District of New York, incurring $25,000 in attorney fees. Plaintiffs alleged that the underlying action—which was dismissed as commenced in an improper venue based on a forum selection clause in plaintiffs’ licensing agreements with GM—clearly lacked merit, in part because a provision in the licensing agreement prohibited plaintiffs from challenging GM’s ownership of the relevant intellectual property. Plaintiffs further alleged that defendants concealed the dismissal of the underlying action for approximately nine months and subsequently lied about the reason for the delay, claiming that the federal court did not release its decision promptly.

The court

To the extent defendants were alleged to have made deceitful statements, plaintiffs’ allegation that defendants induced them to file a meritless lawsuit based on misleading legal advice preceding commencement of the lawsuit is not meaningfully distinguishable from the conduct we deemed insufficient to state a viable attorney deceit claim in Looff (97 NY at 482). The statute does not encompass the filing of a pleading or brief containing nonmeritorious legal arguments, as such statements cannot support a claim
under the statute.  Similarly, even assuming it constituted deceit or collusion, defendants’ alleged months-long delay in informing plaintiffs that their federal lawsuit had been dismissed occurred after the litigation had ended and therefore falls outside the scope of Judiciary Law § 487 (1). Thus, plaintiffs’ Judiciary Law § 487 cause of action was properly dismissed.

Justice Rivera dissented and would hold that summary judgment was inappropriate here

Plaintiffs allege that their attorney induced them to pursue a frivolous lawsuit for the sole purpose of charging them thousands of dollars in legal fees and with counsel’s full knowledge ab initio that the claims were meritless. As our precedents establish, an attorney may be liable for common-law fraud against a client, but when the conduct includes deceit on the court or a party in a pending lawsuit, the attorney is separately guilty of a misdemeanor and liable for enhanced civil damages under Judiciary Law § 487 (see Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15 [2014]; see also Judiciary Law § 487). According to plaintiffs, their attorney intentionally, and without regard to the ultimate outcome for plaintiffs, perpetuated a charade on the court and them by filing and pursuing what the attorney knew all along was a meritless action—one doomed to fail—which caused plaintiffs to pay the attorney’s unwarranted legal fees. I dissent because plaintiffs’ cause of action for attorney deceit was improperly dismissed on summary judgment as they asserted a viable legal theory and there exist triable issues of fact as to whether the alleged deceit caused plaintiffs’ any damages.

And recites the historic antecedents to the present section 487

These three decisions stand for several propositions that inform the analysis here. First, an action for attorney deceit existed under New York’s common law and predates the first state statute from 1787, which itself originated in English law and led to the enactment of Judiciary Law § 487 (Melcher, 23 NY3d at 15; Amalfitano, 12 NY3d at 12). Second, section 487, like its predecessors, codifies attorney deceit as a crime and provides for civil treble damages (Amalfitano, 12 NY3d at 13-14). Third, section 487 does not derive from or supplant common-law fraud, which applies to a broad spectrum of deceitful conduct, including pre-litigation deceit by an attorney, such as inducing a client to retain the attorney in matters the attorney knows are wholly without merit for the sole purpose of securing payment from the client (see Melcher, 23 NY3d at 14-15). Fourth, unlike common-law fraud, section 487 is limited to attorney deceit on the court or a party in the course of litigation (Amalfitano, 12 NY3d at 15; Looff, 97 NY at 482).

Applying these propositions here leads to the logical conclusion that Judiciary Law § 487 encompasses attorney deceit in the form of filing and pursing a knowing frivolous lawsuit...

This interpretation of section 487 and our precedents would not subject attorneys to liability for “poor lawyering, negligent legal research or the giving of questionable legal advice” (majority op at 6 n 2). An attorney is not subject to liability under Judiciary Law § 487 merely because their client fails to prevail in litigation. Otherwise, there would be a flood of meritless actions by dissatisfied clients since in our legal a system there is always a “losing” party. As the Court first stated in Amalfitano, the legislature codified the misdemeanor crime and civil treble damages remedy for attorney deceit because that specific type of conduct is particularly harmful to our judicial system (Amalfitano, 12 NY3d at 14; see also Melcher, 23 NY3d at 15). The legislature’s intent “to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truthseeking function” does not include penalizing an attorney for professionally competent, albeit unsuccessful, advocacy. Indeed, an attorney has a professional duty and ethical obligation, within the bounds of the law, to aggressively advocate colorable claims on behalf of their client (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.3 Comment [1] [Note: citation to rule and commentary]). However, the legislature, concerned with “enforc[ing] an attorney’s special obligation to protect the integrity of the courts and foster[ing] their truth seeking function” (id.), could not have intended to exclude from the statute’s coverage an attorney’s intentional filing of a frivolous lawsuit for the sole purpose of obtaining unwarranted legal fees.

(Mike Frisch)

Not Age Discrimination

A District of Columbia Hearing Committee has proposed a 60-day suspension, restitution with interest and a fitness showing of an attorney based on findings that he had mishandled a tax matter

Disciplinary Counsel maintains that the record demonstrates Respondent’s Rule violations. Respondent undertook an engagement to settle Mr. Bahri’s sales tax liability, then waited several months to proceed, during which delay Respondent misrepresented to his client that the matter was already submitted. Once Respondent finally took action, he did not follow his client’s instructions to seek relief only from accrued penalties and interest but tried to challenge the entire tax liability. When the New York DTF asked for further information, Respondent simply folded – doing nothing to inform his client of that request, nor responding further to the tax authority on his client’s behalf.

... we find Disciplinary Counsel has proved by clear and convincing evidence that Respondent committed all of the asserted Rule violations. 

The committee concludes that more than a losing strategic approach demonstrated incompetent representation

To be clear, the validation of Respondent’s legal strategies does not present the sole key issue in this disciplinary proceeding. Even if Respondent had correctly identified the right relief to pursue from DTF for this client at the outset of the representation, doing nothing in response to the DTF’s request for information – failing to inquire or respond in any fashion to that request and failing to timely inform his client about it – suffices here to find that Respondent failed to provide competent representation to Mr. Bahri and prejudiced him by delaying the resolution of his tax liability. FF 42. And the totality of this largely undisputed record – Respondent’s unreasonable delays, miscues, misrepresentations to his client, pervasive confusion about the status of his client’s matter and appropriate relief available, together with Respondent’s repeated failures to perform as directed and in response to the New York DTF’s request for additional information – demonstrate by clear and convincing evidence Respondent’s lack of competency in this matter.

As to the unreasonable fee charge in a flat-fee matter

A client is robbed of the bargained-for exchange if a lawyer accepting a flat fee spends time on the engagement but delivers no value to the client or abandons the engagement before it is completed. A lawyer is breaching his flat fee contract in these circumstances, rendering the fee unreasonable when the client has paid the flat fee in advance. See Mance, 980 A.2d at 1202-03.

That is precisely what happened here: Respondent promised to “endeavor to get [Mr. Bahri’s] sales tax liability settled” in return for a $4,000 fee. DX 5 at 8-9. Mr. Bahri paid the money, but Respondent did not endeavor to resolve the tax liability beyond his initial Offer in Compromise submission. His engagement letter  contemplated more than that, but Respondent’s filing of the Offer in Compromise provided no value to Mr. Bahri because Respondent failed to follow-up on the submission. Respondent neither asked his client for nor provided necessary information the New York DTF specified in Publication 220 (FF 12), and which the DTF specifically requested from Respondent. FF 30-32. Respondent’s $4,000 fee may have been eminently reasonable had Respondent done what he promised, but it was unreasonable to charge that amount and then make no meaningful effort to resolve his client’s sales tax liability after submitting the initial Offer in Compromise. The record demonstrates by clear and convincing evidence that Respondent charged an unreasonable fee to Mr. Bahri, in violation of Rule 1.5(a).

Fitness

by clear and convincing evidence the record raises serious doubts about Respondent’s ongoing fitness to practice law. Respondent does not acknowledge, much less recognize the seriousness of his mishandling of Mr. Bahri’s tax relief matter. Respondent has taken no steps to remedy his past conduct, but simply abandoned Mr. Bahri without notice or explanation, and steadfastly refuses to refund his client’s advance flat fee that has not been earned, while blaming the client for his own failures.

He had claimed that his prosecution had amounted to "age discrimination"

The Committee understands that Respondent enjoyed an estimable law practice, beginning in 1963 and continuing through several decades, that included admirable public service within the Internal Revenue Service Office of Chief Counsel. See Rebuttal Brief at 22-23 (detailing non-sequitous employment history). Yet, laws proscribing age discrimination do not compel this Committee to overlook the many instances of Respondent’s confusion in the record. Were he a lawyer aged  only thirty-five years, the record would still raise substantial doubts about Respondent’s fitness to practice.

Respondent should be required to demonstrate fitness before he resumes the practice of law.

In re Alvin Brown can be accessed here. (Mike Frisch)

A Familiar Law Firm Associate Task Is Not A Recoverable Copying Cost

The United States Court of Appeals for the District of Columbia Circuit has limited the taxable costs sought and obtained in the District Court by prevailing party Kellogg Brown & Root

The discovery response

To process Barko’s document requests, KBR used an ediscovery software called Introspect to “host, review, and export data for production.” Appellees’ Br. 4. The 2.4 million potentially responsive pages were loaded into Introspect, which required scanning hard copies of certain documents into electronic form and converting preexisting electronic files into the hosting platform’s format. Within the platform, documents were organized, keyword-searched, indexed, screened, and otherwise processed—tasks familiar to any law-firm associate who has survived “doc review.” As a last step, KBR converted the 171,000 responsive documents into TIFF or PDF files, transferred them onto USB drives, and produced the materials to Barko’s counsel.

The costs award sought

KBR’s e-discovery costs, all of which the district court awarded, stem from five different stages: (1) initial conversion, i.e., converting files from their native formats into a format compatible with an e-discovery hosting platform; (2) subscribing to a hosting platform, in this case Introspect,  that facilitates the various steps of e-discovery; (3) processing documents, e.g., organizing, keyword-searching, and Bates stamping; (4) conversion for production, i.e., converting documents into shareable formats for production to opposing counsel, and, where necessary, transferring those files onto portable media, e.g., USB drives; and (5) production processing, i.e., drafting production cover letters and shipping discovery materials to opposing counsel.

Hewing close to section 1920(4)’s text and guided by Taniguchi, we conclude that the only e-discovery costs that KBR may recover are those incurred in step (4)—converting electronic files to the production formats (in this case, PDF and TIFF) and transferring those production files to portable media (here, USB drives). That means KBR can recover $362.41 in “External E-Discovery” conversion and production costs— expenses that Barko concedes are taxable. Appellant’s Br. 3 n.3. These tasks resemble the final stage of “doc review” in the pre-digital age: photocopying the stack of responsive and privilege-screened documents to hand over to opposing counsel. Such costs were taxable then, and the e-discovery analogs of such costs are taxable now.

Conclusion

Again, these e-discovery tasks are comparable to the steps that law-firm associates took in the pre-digital era in the course of “doc review”—identifying stacks of potentially relevant materials, culling those materials for documents containing specific keywords, screening those culled documents for potential privilege issues, Bates-stamping each screened document, and mailing discovery materials to opposing counsel. Because “[n]one of the steps that preceded [or followed] the actual act of making copies in the pre-digital era would have been considered taxable,” id., such tasks are untaxable now, whether performed by law-firm associate or algorithm.

Circuit Judge Tatel authored the opinion. (Mike Frisch)

Massachusetts Upholds Public Defender Ability To Limit Caseload

The Massachusetts Supreme Judicial Court has held that an order to provide appointed counsel after a 

Due to the volume of additional cases, the attorney in charge of the Springfield PDD office and CPCS's deputy chief counsel determined in June 2019 that the staff attorneys in the Springfield PDD office had exceeded their caseload capacity and they could not provide effective assistance to any additional clients. Accordingly, on June 11, the attorney in charge informed the First Justice of the Springfield District Court that CPCS staff attorneys in the Springfield PDD office could not handle any more duty days in that court.

In response, the district court ordered that the public defender continue to accept appointments.

The court here

We recognize that the First Justice was taking emergency action that he deemed necessary under the circumstances to protect indigent defendants' constitutional rights to counsel and to avoid halting proceedings in new criminal cases in the Springfield District Court. We conclude, however, that the June 12 order and the court's subsequent appointments of CPCS staff attorneys in the Springfield PDD office under that order were invalid. The June 12 order and subsequent appointments of CPCS staff attorneys improperly infringed upon CPCS's statutory authority to control assignments and to limit caseloads for its staff attorneys under G. L. c. 211D because the order and the appointments overrode CPCS's determination that the staff attorneys in its Springfield office had already reached their caseload capacity and could not accept any more cases, without any contrary findings by the court that put in doubt the validity of that determination. We also note our concern that, to the extent such an order may require CPCS staff attorneys to accept more appointments than they can reasonably handle, it risks interfering with their ethical obligations under the Massachusetts Rules of Professional Conduct to act with reasonable diligence and promptness in representing their clients, and thereby threatens to undermine the very right to counsel that the order seeks to protect.

Conclusion

The case is remanded to the county court to determine whether a hearing is required concerning the current availability of defense counsel to represent indigent defendants in Hampden  County and whether the Lavallee protocol imposed by the single justice is still required.

(Mike Frisch )

A Case For Disbarment

Multiple failures, mishandling entrusted funds and dishonesty led to the disbarment of an attorney admitted in December 2014 by the Maryland Court of Appeals

These violations arose from respondent’s misconduct in two separate client matters, in which respondent failed to appear at a meeting with a client and at the client’s court hearing; failed to inform the client about his absences; failed to respond to the two clients’ numerous attempts to contact him; failed to return his collected fee to a client after performing no legal service; failed to deposit a client’s retainer fee into an attorney trust account; failed to notify a client’s medical provider about settlement funds received and to distribute its portion; abandoned a client’s case without notice and without returning unearned fees; failed to respond to the Bar Counsel’s requests for information and documentation; and misrepresented to a client that he was licensed to practice law in a state where he was not. The proper sanction for these violations is disbarment.

In one matter, the attorney took on an Oklahoma motor vehicle accident case without an Oklahoma license. He secured a $200,000 settlement.

The second matter involved defense of an assault charge.

Sanction

Respondent’s failures to safekeep funds and acts of dishonesty and misrepresentation each independently warrant disbarment absent compelling mitigating circumstances...

Respondent did not participate in any part of this disciplinary proceeding. He presented no evidence and no mitigating factors. Respondent acted with a dishonest and selfish motive, exhibited a pattern of misconduct, engaged in multiple offenses of the Maryland Rules, acted in bad faith to obstruct the disciplinary process, and showed indifference to making restitution. Disbarment is the appropriate sanction for respondent’s misconduct.

(Mike Frisch)

No Way!!

The Illinois Administrator has filed a complaint alleging that a Nevada attorney not admitted in Illinois undertook an Illinois personal injury matter.

When the client inquired as to the status of the case, he allegedly told her to be patient and trust him.

Then

On July 25, 2019, Respondent and Taylor exchanged a series of text messages. Those messages read as follows:

Taylor    I want this case to be over soon, Dr. Libo.

Tmvr is your bday!!

Respondent    Yes ma’am. What’s my gift?

Taylor    Where’s my bday gift

Respondent    It’s not your birthday.

Taylor    You didn’t get me a birthday gift, remember

Exactly!!

What would you like?

Respondent    Pussy

Taylor    No way!!

At no time had Respondent and Taylor engaged in any consensual sexual relations prior to the commencement of their lawyer-client relationship on June 6, 2018, and Respondent’s request for sex from Taylor on July 25, 2019 materially affected his ability to represent Taylor in connection with her claim against Zagal.

She terminated the representation on the same day. 

Further alleged

On July 30, 2019, Respondent prepared and sent to Allstate Insurance a Notice of Attorney Lien ("attorney lien"), asserting a lien for fees on any proceeds recovered by Taylor in connection with her claim related to the December 16, 2017 vehicle collision. Respondent’s attorney lien stated, "This lien is in the amount of $3,766.66, representing the 33 1/3 percent of the total amount recovered, plus costs of $180.26 (see attached breakdown) for a total of $3,946.92."

Respondent’s claim for fees was fraudulent. Respondent knew that he was being dishonest by sending the attorney lien to Allstate on July 30, 2019 because at no time had Taylor agreed to pay him any fees for handling her claim against Zagal in connection with the December 16, 2017 vehicle collision.

The complaint  alleges that the attorney made false statements in response to the complaint and offered to reduce the lien if the former client dropped the grievance. (Mike Frisch)