Friday, November 16, 2018

Snapchat Couch Fee Proposal Leads To Bar Charges

The Illinois Administrator has filed a complaint alleging misconduct in a domestic relations matter.

 In or around September 2017, C.S. telephoned Respondent to discuss a possible divorce from her husband.

In late September or early October, C.S. met with Respondent at his law office to discuss a possible divorce action. C.S. revealed many personal details to Respondent about herself and her relationship with her husband. Respondent indicated to C.S. that he required a retainer to proceed with a dissolution action. C.S. told Respondent that she was in poor financial shape and Respondent indicated that he might be able to work out a payment plan. C.S. indicated to Respondent that she would attempt to secure funds for his retainer.

On December 25, 2017, C.S. left a telephone message for Respondent concerning the actions of her husband and she requested that Respondent file divorce papers as soon as possible.

During the evening of December 25, 2017, C.S. received a Snapchat friend request from Respondent and she accepted the request.

On or about December 26, 2017, C.S. received a Snapchat message from Respondent inquiring about her ability to pay his attorney fees. C.S. responded that her financial condition was even worse than when she met with him.

On or about December 28, 2017, Respondent sent C.S. a Snapchat message which stated in part, "I think I have a solution…", "A free one…", "And we can start the proceedings asap."

In Snapchat messages on or about December 26, 2017 through December 28, 2017, Respondent proposed to C.S. that she engage in sex with Respondent and/or provide him with nude pictures in exchange for legal representation in her divorce case.

In one Snapchat message Respondent sent to C.S. on December 28, 2017, Respondent proposed that C.S. provide oral sex or masturbation to Respondent: "Maybe…mouth or hand? Or anything you’d be comfortable with."

In another Snapchat message to C.S., Respondent stated, "I was thinking maybe some snaps and pictures and you let me screenshot them? And I’ll do all the paperwork."

On or about December 28, 2017, the following Snapchat exchange occurred between Respondent and C.S.:

Respondent: "I feel anxious about that tbh [to be honest]? I’ve never done that…and if anyone found out I could and most likely would lose my law license. But…essentially no fees. I’ll try to get atty fees from [C.S.’s husband] but if I can’t there’s nothing on you."

C.S.: "You def would. Not gonna say anything to anyone."

Respondent: "But…once or twice a week you just…take care of me I suppose while trying to get the divorce done. Maybe some snaps. That’s about it."

C..S: "Give me just a little bit. Just got to my sisters house. My fuel pump is fkd. Have the worst luck in life since I got with this dumbass."

Respondent: "Are you considering that option?"

C.S.: "Idk [I don’t know]"

Respondent: "No pressure…I understand…it won’t be awkward either wat [sic]."

Respondent: "Way. It might save you 2-3000 tho."

On or about January 9, 2018, C.S. decided not to retain Respondent for her divorce case and she reported Respondent’s conduct to the Jefferson County Sheriff’s Office.

The complaint alleges a conflict of interest and a violation of criminal law. (Mike Frisch)

November 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Intemperate Email Draws Sanction

An intemperate communication to an unrepresented alleged domestic violence victim drew a public reprimand without terms (i. e. a slap on the wrist) from the First District Subcommittee of the Virginia State Bar for violation of Rules 3.4 (fairness to opposing party) and 4.3 (dealing with unrepresented person). 

On July 12; 2017, Mr. Polk was arrested on charges of felony strangulation of Complainant and misdemeanor assault and battery on Complainant. The incident occurred on July 11, 2017. Thereafter, a preliminary protective order was entered prohibiting Mr. Polk from having contact with Complainant.

While that protective order was set aside, a military protective order was in place when

While the Chesapeake JDR protective order had been dissolved a military protective order was still in place. On August 6, 2017, Mr. Polk showed up at Complainant's residence with some friends and used a hammer to break glass near the door to gain entry into the residence. Complainant called the police.

There was a hearing set when the misconduct took place

The day before a hearing on the second protective order, Respondent wrote the following to Complainant:

You have really messed up now. You set up Marvin and got him locked up. I tried to be civil, because I thought you were sincere. But now, I will pull out all the stops to go after you ~ both civilly and criminally.

Even the Commonwealth's Attorney knows you 're a liar. This time you went too far. You created fake email accounts; you hacked into Marvin 's accounts, and you falsified charges against him.

You maligned him and you prosecuted him maliciously. For your callous acts, you will pay a hefty price with money and your freedom.

You will regret the day you ever hatched your evil plot to destroy your husband and his career; I'm sorry it had to come to this. But, I'll see you in court.


Respondent asserts that the message to the Complainant had nothing to do with the strangulation charge or the domestic assault and battery charge. He asserts that he wrote the message only after Mr. Polk was arrested on a violation of his bond.

Respondent has stated that he recognizes he was acting in a reactionary manner and he recognizes that he should not have acted in haste, as he did when he sent the above email to Complainant.

Think twice before you hit "send" while angry. (Mike Frisch)

November 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Intertwined Drug Use And Misconduct Draws Suspension

The Indiana Supreme Court further sanctioned an already-suspended attorney

We find that Respondent, Tia R. Brewer, committed attorney misconduct by, among other things, neglecting clients’ cases, failing to appear at show cause hearings, failing to withdraw from cases when her abuse of cocaine rendered her unable to assist her clients, committing a crime that reflects adversely on her fitness as a lawyer, and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be suspended for at least three years without automatic reinstatement.

There was misconduct in eleven client matters leading to this

After the court entered a bench warrant against Respondent in one case, Respondent appeared and admitted she had not appeared for a change of plea hearing or the show cause hearing because she was voluntarily intoxicated at the time. Respondent has admitted to abusing cocaine during much of this period, rendering her unable to assist her clients...

On May 26, 2017, when the bench warrant was served on Respondent, she was incoherent and impaired. Law enforcement found cocaine, marijuana, and drug paraphernalia in Respondent’s possession. She was charged with one Level 6 felony and two misdemeanors. She pled guilty to possession of cocaine as a Level 6 felony, though the trial court entered a judgment of conviction for a misdemeanor.

Here the attorney defaulted

Respondent already is under interim and administrative suspensions. For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for not less than three years, without automatic reinstatement, effective immediately. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18).

(Mike Frisch)

November 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Flagrant Disregard

The Rhode Island Supreme Court has granted a motion to suspend a non-responding attorney on an interim basis

On June 8, 2018, Disciplinary Counsel received a complaint alleging that respondent had settled personal injury claims on behalf of clients, withheld funds from his clients’ settlements to pay medical bills, and failed to remit those payments on the clients’ behalf. A copy of that complaint was forwarded to respondent on June 13, 2018, directing him to file a written response to the complaint on or before July 3, 2018. The respondent failed to comply. On July 12, 2018, a second notice was sent by Disciplinary Counsel to respondent, via certified mail, directing him to file a response on or before July 23, 2018. That certified mail was received by respondent on July 19, 2018. The respondent did not file a response after receipt of that correspondence.

Other lapses led the court to conclude

We do not hesitate to find that the respondent is in contempt. He has flagrantly disregarded his obligation to respond to a lawful request for information from Disciplinary Counsel, in violation of Article V, Rule 8.1 of the Supreme Court Rules of Professional Conduct, and has refused to comply with a duly-authorized subpoena issued by the Clerk of this Court. Accordingly, it is hereby ordered, adjudged, and decreed that the respondent, Thomas F. Cotroneo, is hereby suspended from engaging in the practice of law in this state, effective immediately, until further order of this Court.

(Mike Frisch)

November 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Appeal Misconduct Leads To Disbarment

The Maryland Court of Appeals has disbarred an attorney

Court of Appeals disbarred lawyer who failed to order transcripts that were necessary for appeal to proceed, failed to advise client to do so, and failed to file timely motion for extension of time to file transcripts, resulting in appeal’s dismissal; completely failed to accomplish objectives of his representation of client in appeal; did not advise client of deadline for ordering transcripts, his failure to meet it, his failure’s possible consequences, and show cause order that Court of Special Appeals issued; failed to comply with client’s requests for copies of certain documents; failed to communicate, before or during his representation, that he would charge hourly rate; collected, and failed to earn or refund, $6,200 that client paid him; withdrew unearned funds from, and failed to deposit unearned funds into, his attorney trust account; falsely represented to Court of Special Appeals that there had been delay in ordering transcripts because he had not received client’s case file from her previous counsel; falsely represented to Bar Counsel that he had advised client to order transcripts, that she had never paid him so that he could order transcripts, and that Court of Special Appeals had dismissed appeal because client had failed to order transcripts; and falsely represented to client that she was responsible for appeal’s dismissal.

The case 

Shannan Martin retained Andrew Ndubisi Ucheomumu, Respondent, a member of the Bar of Maryland, to represent her in an appeal. For an appeal to proceed, transcripts of relevant proceedings in the trial court need to be ordered by a certain deadline. In this case, after the deadline passed, Ucheomumu requested from Martin money to cover the cost of obtaining transcripts, and she paid him $3,000. Ucheomumu, however, never ordered the transcripts or advised Martin to do so. The Court of Special Appeals issued an order directing Martin to show cause why the appeal should not be dismissed for failure to file the transcripts. Ucheomumu filed a motion for extension of time to file the transcripts in which he falsely stated that one of the reasons why there had been a delay in filing the transcripts was that Martin’s previous counsel had not provided him with them.

Martin terminated Ucheomumu’s representation. Although Ucheomumu had not earned the total of $6,200 that Martin had paid him, he did not refund the $6,200. Additionally, after the Court of Special Appeals denied the motion for extension of time and dismissed the appeal, Ucheomumu falsely advised Martin that she was responsible for the appeal’s dismissal. Martin filed a complaint against Ucheomumu with Bar Counsel. In his response to Martin’s complaint, Ucheomumu falsely stated that he had advised Martin to order the transcripts, that she had never paid him so that he could order the transcripts, and that the Court of Special Appeals had dismissed the appeal because Martin  had failed to order the transcripts.

The court was unanimous in an opinion authored by Judge Watts. (Mike Frisch )

November 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Former DA Reinstated

The Pennsylvania Supreme Court reinstated a former Philadelphia District Attorney who rose to Assistant Chief of Homicide and had been suspended for 30 months.

The Disciplinary Board noted that she had sought treatment that included yoga, meditation and nutritional supplements.

She expressed sincere remorse and presented a number to strongly favorable character witnesses. 

The Inquirer had the story of the suspension

The story of former Philadelphia prosecutor Lynn Marietta Nichols - who was forced to resign in 2013 for lashing out against her former lover - marked another chapter this week.

 Nichols, 49, was suspended Monday from practicing law for 30 months by the Disciplinary Board of the Supreme Court of Pennsylvania. It was the latest punishment in connection with the illegal use of her authority to aid and then attack her landscaper boyfriend.

"A public official's misconduct speaks directly to the integrity of the legal system by placing the reputation of those tasked with serving and protecting the public at issue," the board wrote in a statement accompanying its decision.

 Neither Nichols nor her lawyer, Brian McMonagle, immediately responded to a request for comment.
Nichols spent 22 years with the District Attorney's Office, rising to assistant chief of the Homicide Unit.

Her troubles began in 2012, after she started dating her gardener, Joselyn Herron.

In October of that year, Herron encountered a problem. His ex-lover, Nicole Chandler, had reported her Ford F-150 truck stolen.

The problem was that Herron had the truck.

Nichols used her influence as a prosecutor to persuade a Philadelphia police detective to remove the stolen-truck report from the National Crime Information Center database.

But then, in August 2013, Nichols learned that Herron was involved with yet another woman.

Furious, Nichols called the detective and asked him to again list the truck as stolen, but the detective refused.

So Nichols contacted Chandler, and said she knew where the truck was and would help her file a new stolen-vehicle report with police. Nichols then called Chesilhurst police - impersonating Chandler - and provided the truck's location.

After making the report, Nichols offered to cover the cost of the tow service for the trouble, but later reneged. Unable to afford the bill, Chandler reported Nichols to the Camden County Prosecutor's Office.

Nichols resigned in October 2013, on the day she was arrested.

She was charged with obstruction of justice and filing a false report, and pleaded guilty in February 2014 to criminal mischief, a misdemeanor. Under a negotiated plea, she received a year of nonreporting probation and was ordered to pay Chandler $884 in towing fees.

Since the suspension was retroactive to July 2014, Nichols was credited with 29 months served. To resume her career, she must prove in a reinstatement hearing that she is competent and "morally qualified" to resume practicing law.

(Mike Frisch)

November 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Split Sanction For "Alcohol-Related Offensive Conduct"

The Louisiana Supreme Court has accepted a consent sanction in a bar discipline matter.

The court's order describes the misconduct

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent pleaded no contest to multiple misdemeanors arising from alcohol-related, offensive conduct, in violation of Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline.

The court ordered that the attorney 

be suspended from the practice of law for a period of one year and one day. It is further ordered that all but six months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be subject to a period of probation to coincide with the remaining term of his monitoring agreement with the Judges and Lawyers Assistance Program. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

Justice Crichton dissented

I would reject the petition for consent discipline in this matter, as I find it unduly harsh. The Louisiana Constitution vests this Court with original jurisdiction  in all “disciplinary proceedings against a member of the bar.” La. Const. art. V, §5(B). Notwithstanding the fact that petitioner and the Office of Disciplinary Counsel have submitted this matter as a joint petition for consent discipline, I believe– as our Constitution provides – that the seven justices determine if violations of the Rules of Professional Conduct have been proven by clear and convincing evidence and, if so, the appropriate punishment after consideration of applicable aggravating and mitigating circumstances. While I do not condone Mr. Hardee’s conduct in any form, in my view, he has satisfied all requirements imposed upon him as a result of these proceedings. Considering the lack of any previous disciplinary record and the positive contributions by Mr. Hardee to his community, I find that in this particular instance, as I have in others, the consent discipline is too severe in light of petitioner’s misconduct...

I  would instead order a lesser punishment tailored to fit the circumstances surrounding the violations of Rules of Professional Conduct 8.4(a) and (b).

Justice Genovese joined the dissent. (Mike Frisch)

November 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 15, 2018

Defamation Defense SLAPPED Down

An attorney's web page summary of a dental malpractice case in which she represented the plaintiff led to a defamation action by a defendant that was not dismissed on anti-SLAPP grounds, according to a decision of the Nevada Supreme Court

At some point between when the jury's verdict was entered and when this court directed the district court to reinstate the jury's verdict, Patin posted on her law firm's website the following statement:

DENTAL MALPRACTICE/WRONGFUL DEATH - PLAINTIFF'S VERDICT $3.4M, 2014 Description: Singletary v. Ton Vinh Lee, DDS, etal.

A dental malpractice-based wrongful death action that arose out of the death of Decedent Reginald Singletary following the extraction of the No. 32 wisdom tooth by Defendants on or about April 16, 2011. Plaintiff sued the dental office, Summerlin Smiles, the owner, Ton Vinh Lee, DDS, and the treating dentists, Florida Traivai, DMD and Jai Park, DDS, on behalf of the Estate, herself and minor son.

In fact

the jury determined that Summerlin Smiles and Dr. Traivai had been negligent but that Dr. Lee had not been negligent.

The issue 

resolution of this appeal implicates a single issue of statutory interpretation: whether Patin's statement regarding the jury verdict in the dental malpractice case is a "statement  made in direct connection with an issue under consideration by a. . judicial body" under NRS 41.637(3). Because no Nevada precedent is instructive on this issue, we look to California precedent for guidance...

We are persuaded by the Neville court's analysis and conclude that in order for a statement to be protected under NRS 41.637(3), which requires a statement to be "in direct connection with an issue under consideration by a. . . judicial body" (emphasis added), the statement must (1) relate to the substantive issues in the litigation and (2) be directed to persons having some interest in the litigation. If we were to accept Patin's argument that simply referencing a jury verdict in a court case is sufficient to be in direct connection with an issue under consideration by a judicial body, we would essentially be providing anti-SLAPP protection to "any act having any connection, however remote, with [a judicial] proceeding." Paul, 117 Cal. Rptr. 2d at 92. Doing so would not further the anti-SLAPP statute's purpose of "protect [ing1 the right of litigants to the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions." 3 Neville, 73 Cal. Rptr. 3d at 389 (internal quotation marks and alterations omitted).

Having adopted the Neville court's standard for what qualifies for protection under NRS 41.637(3), it is clear that Patin's statement fails to meet that standard.

The case is Patin v. Lee. (Mike Frisch)

November 15, 2018 | Permalink | Comments (0)

With Friends Like These: Florida Rejects Judge-Lawyer Facebook Friendship As Basis To Disqualify

The Florida Supreme Court has resolved a district court of appeal split on the disqualification implications of a lawyer-judge Facebook friendship 

In this case, we consider an issue regarding the legal sufficiency of a motion to disqualify a trial court judge on the basis of a Facebook “friendship.” This Court granted jurisdiction to review the decision of the Third District Court of Appeal in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), which held that the existence of a Facebook “friendship” was not a sufficient basis for disqualification and which expressly and directly conflicts with the decision of the Fourth District Court of Appeal in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We hold that an allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. We therefore approve the decision of the Third District in Herssein and disapprove the decision of the Fourth District in Domville on the conflict issue.

Chief Justice Canady authored the majority opinion

We now come to the crux of the matter: what is the nature of Facebook “friendship?” “The word ‘friend’ on Facebook is a term of art.” Chace, 170 So. 3d at 803. In its most basic sense, a Facebook “friend” is a person digitally connected to another person by virtue of their Facebook “friendship.” See, e.g., Power Ventures, 844 F.3d at 1063; Ehling, 961 F. Supp. 2d at 662.

A Facebook “friend” may or may not be a “friend” in the traditional sense of the word. But Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.” Today it is commonly understood that Facebook “friendship” exists on an even broader spectrum than traditional “friendship.” Traditional “friendship” varies in degree from greatest intimacy to casual acquaintance; Facebook “friendship” varies in degree from greatest intimacy to “virtual stranger” or “complete stranger.”

Bottom line

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification.

LABARGA, J., concurring.

I concur with the majority opinion. However, I write to strongly urge judges not to participate in Facebook. For newly elected or appointed judges who have existing Facebook accounts, I encourage deactivation of those accounts. As explained by the majority, “friendship” on Facebook, without more, does not create a legally sufficient basis for disqualification. Rather, the unique facts and circumstances of each case, in addition to the base fact of “friendship,” are what will determine whether disqualification is required.

Nevertheless, as noted by the dissent, participation in Facebook by members of the judiciary “is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.” Dissenting op. at 24. This is deeply concerning because judges are to decide cases solely upon the facts presented to them and the law. The public and the parties expect nothing less. Therefore, judges must avoid situations that could suggest or imply that a ruling is based upon anything else. Facebook “friendships” fall across a broad spectrum, from virtual stranger to close, personal friend. Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems. 

Justice Pariente, J., dissented joined by two colleagues.

She quoted the 2012 lower court decision in Domville

Judges do not have the unfettered social freedom of teenagers. Central to the public’s confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in given case. The existence of a judge’s Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.

And "wholeheartedly agree[s]"

While Facebook and other social media sites have become more sophisticated, recent history has shown that a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter. For these reasons, I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them. This rule does little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics...

The premise of the majority opinion is that Facebook friendships and traditional friendships are analogous. But, equating friendships in the real world with friendships in cyberspace is a false equivalency. The existence of a Facebook “friendship” may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it. For example, as the majority explains, once a person becomes “friends” with another Facebook user, that person gains access to all of the personal information on the user’s profile page—including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information—even when the user opts to make all of his or her information private to the general public. [cites omitted]  Additionally, the ease of access to the “friend’s” information allows Facebook “friends” to be privy to considerably more information, including potentially personal information, on an almost daily basis.

The bottom line

The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted. Under this rule, the opposing litigant would not be required to delve into how close the Facebook friendship may be, the judge avoids any appearance of impropriety, and Florida’s courts are spared from any unnecessary questions regarding the integrity of our judiciary. Regardless, in this case, the judge was required to recuse herself because of binding precedent. Thus, I would quash the Third District Court of Appeal’s decision in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), and approve the Fourth District’s decision in Domville.

Accordingly, I dissent.

(Mike Frisch)

November 15, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Letter Of The Law

The Florida Supreme Court has reprimanded a Miami-Dade County Court Judge.

we approve the parties’ stipulation to the allegation that Judge White-Labora improperly provided a character reference letter, on her official court stationery, on behalf of a criminal defendant awaiting sentencing in federal court, as well as the JQC’s finding that this misconduct violated two canons of the Code of Judicial Conduct. We also approve the stipulated discipline of a public reprimand.

The court quoted the Judicial Qualifications Commission

The Investigative Panel of the Commission has now entered into a Stipulation with Judge White-Labora in which Judge WhiteLabora admits that her conduct, in writing and sending a letter of reference to a sentencing judge, on behalf of a criminal defendant awaiting sentencing in federal court[,] was inappropriate. This conduct violated Canons 1 and 2 of the Code of Judicial Conduct, as set forth in the Stipulation and Notice of Formal Charges submitted herewith.

Judge White-Labora has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. She has cooperated fully with the JQC.

The court approved the sanction proposed by the JDC. (Mike Frisch)

The Judicial Qualifications Commission has concluded that while the judge did not intend to violate the Canons, she did not take appropriate steps to inform herself about the propriety of sending such a letter. Additionally, the Commission is mindful of the fact that her action in writing the letter, while inappropriate, was not motivated by selfish interests or motives. The JQC also notes Judge WhiteLabora’s lengthy and heretofore unblemished service as a judicial officer.

November 15, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Drug Addiction Recovery Merits Mitigation

An attorney who stipulated to misappropriation was suspended for five years by the New York Appellate Division for the First Judicial Department

Respondent's misconduct, which involved the intentional conversion of client funds on two occasions over a four-month period in 2015 at a time when he was suffering from narcotics addiction, is quite serious. However, the parties have stipulated to several mitigating factors, including respondent's acceptance of responsibility, unblemished disciplinary history, full cooperation with the Committee, full payment of restitution to the affected clients, expression of remorse and willingness to present substantial evidence of good character at a sanction hearing.

Respondent has also suffered from narcotics addiction for which he voluntarily sought treatment that included inpatient treatment at a residential drug and alcohol treatment facility from May to December 2016 and subsequent outpatient therapy involving attendance at a Narcotics Anonymous program of which he remains a member and for which he attends meetings at least five times each week. Respondent has remained drug-free since May 2016. Since May 2017, he has retained full-time employment and he maintains that his drug dependency has been arrested and that recurrence of his misconduct is highly unlikely. In light of the extraordinary factors in mitigation, the Committee and respondent agree that a five-year suspension is appropriate (see e.g. Matter of Hazelhurst, 144 AD3d 31 [1st Dept 2016]; Matter of Albanese, 274 AD2d 284 [1st Dept 2000]; Matter of Fishbein, 167 AD2d 85 [1st Dept 1991].

Accordingly, the parties' joint motion for discipline by consent should be granted and respondent is suspended from the practice of law in the State of New York for a period of five years, effective nunc pro tunc to October 31, 2017. Any application for reinstatement should include proof of respondent's continued rehabilitation and submission of medical and psychiatric reports attesting that respondent is physically and mentally capable of resuming the practice of law (see Matter of Linn, 190 AD2d 155 [1st Dept 1993]; Matter of Fishbein, 167 AD2d at 88.

(Mike Frisch)

November 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 14, 2018

"We Have No Defense"

A stipulated reprimand has been accepted by an Illinois Hearing Board for misconduct in a bankruptcy matter.

By December 1, 2015, Respondent calculated that, in addition to producing copies of their tax returns, the Stantons needed to increase their monthly payments to the bankruptcy trustee from $125 to $455, in order for the Stantons to repay the bankruptcy trustee for past-due payments and avoid the dismissal of their Chapter 13 plan. On that date, Respondent's paralegal, Awilda Munoz ("Munoz"), called and discussed this with the Stantons.

On December 2, 2015, Respondent requested that the Stantons' case be continued, Judge Hollis granted the motion and continued the trustee's motion to dismiss to December 9, 2015.

On December 3, 2015, Mr. Stanton called Respondent three times leaving messages each time, requesting that Respondent contact him to discuss his case. Respondent did not return Stanton's call or communicate with the Stantons regarding their case. Later that day, after Respondent had not responded, Mr. Stanton advised Munoz that he would accept the hypothetical payment plan that Respondent suggested (but that Respondent had never submitted to the trustee or to the bankruptcy court, and which had never been implemented). Shortly thereafter, Respondent received Mr. Stanton's regarding his willingness to accept a $455 monthly payment plan, but Respondent did not contact Stanton in response to that message.

On December 9, 2015, Respondent appeared in bankruptcy court regarding the Stantons' case. On that date, Respondent stated he would discuss a repayment plan with the Stantons for the unpaid tax refunds. Judge Hollis continued the matter to January 20, 2016.

Between December 15, 2015 and January 20, 2016, Mr. Stanton called Respondent on at least three more occasions, leaving telephone messages each time, and asking Respondent to contact him regarding the status of the couple's bankruptcy case. As of January 11, 2016, Respondent had not returned Mr. Stanton's calls or responded to his requests for information.

On January 11, 2016, having not heard from Respondent, and in an effort to avoid a dismissal of the couple's Chapter 13 plan, Mr. Stanton sent the bankruptcy trustee a money order for what he believed was the increased monthly payment amount of $455. Sometime shortly thereafter, the trustee acknowledged receipt of the Stantons' payment.

On January 20, 2016, Respondent appeared on behalf of the Stantons before Judge Hollis. At that time, having not discussed his intended course of action, and not having obtained his clients' approval to pursue it, Respondent stated the following:

"Your Honor, we have no defense to the dismissal in this case. There is no way to save it."

On that day, Judge Hollis granted the trustee's motion and dismissed the Stantons' bankruptcy plan, which was originally set to be completed in May 2017. Shortly thereafter, the Stantons received a written notice of the dismissal from their bankruptcy plan, but Respondent did not contact them about it.

The bankruptcy was re-filed by new counsel.

The Illinois Supreme Court must approve the stipulated sanction. (Mike Frisch)

November 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Reciprocal Interim Suspension Imposed In D.C.

An attorney convicted on her guilty plea has been suspended on an interim basis in the District of Columbia in light of the earlier-imposed Virginia license revocation. 

The court will consider any response before imposing final discipline. 

From WTFR CBS 6 Richmond

 Virginia lawyer Dana Tapper will spend about three months in jail after accepting a guilty plea deal to three felony charges in Prince George County Circuit Court Thursday. Her charges include conspiring to provide a cell phone to an inmate, providing a cell phone to an inmate, and conspiring to deliver a controlled substance to an inmate.

The same source reported on the charges

When University of Virginia law student Dana Tapper appeared on the Ellen Degeneres show in 2013, she talked about being the first person in her family to go to college, and how she did not want to work at a big corporate law firm when she graduated.

Instead, she said, she hoped to help those in the juvenile justice system.

"The only reason I went to law school was to work with kids," Tapper told Degeneres on national TV.

Degeneres rewarded Tapper for her passion by giving her $20,000 courtesy of Shutterfly.

Now, roughly five years later, Tapper was charged for allegedly giving an inmate at the Riverside Regional Jail a cell phone and drugs.

The Commonwealth's Attorney in Price George said the alleged incident happened in December 2017, and that the case remained under investigation.

While nearly all documents related to the case remain sealed, and the prosecutor declined to name the inmate, Crime Insider sources told CBS 6 that Tapper visited one inmate hundreds of times in jail, smuggled him drugs, and even had sex with him behind bars.

Although we don't know the name of that particular inmate, we uncovered records that showed what CBS 6 legal analyst Todd Stone called Tapper's "unusual" history of appearing in court for inmates she was not representing.

"It's understandable why there is an investigation, because investigations often begin when they see smoke, and they look for the fire," Stone said.

The first involved Karon Porter, who last year was found guilty of leading state police on a 2013 high speed chase.

That chase ended when Porter crashed into a car and killed a 73-year-old Marine veteran.

CBS 6 obtained a log from Riverside Regional Jail that showed Tapper made 38 professional visits to Porter over a year and a half.

Also uncovered, a November 2016 transcript from what was scheduled to be the first day of Porter's re-trial in Chesterfield. It showed Tapper showed up that day and asked to address the court, even though she was not Porter's attorney.

She said she had spent several hundred hours on Porter's case, many of them with Porter, and called his current counsel ineffective. She did not, however, request to become his attorney.

"I can usually meet with someone in an hour, and I get everything done, so we're talking several hundred visits on my timetable," Stone said.

Stone called spending so many hours with an inmate "highly unusual" outside of a capital murder case.

"And she's not even representing him, which is what makes it so odd," Stone said.

We also learned that Tapper raised some eyebrows in Henrico when she spoke as a witness on behalf of convicted felon and gang member Damian King.

King was in court for a bond hearing in September 2016 on charges he broke into a man's home and shot him.

Prosecutors said King's blood was found at the scene.

We listened to an audio recording of Tapper's testimony at his bond hearing.

She said she had met King through a friend that ran the Legal Aid Justice Center's RISE for Youth program.

Tapper said King worked for her at her law practice in Richmond, and described King as her right hand saying he was tapped into the juvenile network and gave her access to those clients.

King's attorney asked Tapper if she had any concerns about working with King going forward considering his current charges related to the shooting and Tapper answered: "absolutely not."

"There's nothing wrong with it, but it's not something you see very commonly," Stone said when asked if defense attorneys typically appear as witnesses for inmates.

He also said hiring a convicted gang member to work in your law office raised some concerns.

"It could be a potential danger zone to have someone like that working in the office," Stone said.

The judge ended up not granting King bond. King ultimately pleaded guilty in the case.

He now faces gun trafficking charges out of Brooklyn.

We contacted the Legal Aid Justice Center to find out if the organization had, in fact, introduced Tapper to King.

They said "no," and to their knowledge King had never been involved with their organization.

Henrico Deputy Commonwealth's Attorney Mike Feinmel said his office was aware of the apparent misrepresentation of facts to the court, and they are conducting an investigation.

Tapper is scheduled to go in trial in Prince George County in August.

(Mike Frisch)

November 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Cut In Half

The Nevada Supreme Court affirmed findings of misconduct but halved the proposed sanction of the Northern Nevada Disciplinary Board hearing panel

The admitted facts establish that Novi violated the above referenced rules by engaging in the following conduct. Novi failed to perform legal services on behalf of two clients, communicate with them, or refund the fees they had paid. Additionally, Novi failed to submit a proposed order to the district court after he was ordered to do so and after he was ordered to show cause why he should not be held in contempt for failing to do so. At the contempt hearing, Novi was late and he asserted that he did not submit the proposed order because of a disagreement with opposing counsel on the language of the order, but opposing counsel testified at the disciplinary hearing that Novi never provided a proposed order to him. Additionally, Novi failed to appear on behalf of a criminal client on two occasions and was unreachable, causing the district court to appoint a public defender for Novi's client. Lastly, Novi failed to respond to the State Bar's requests for information regarding the grievances.

While noting significant client harm

Considering all the factors, we agree with the hearing panel that Novi's misconduct warrants suspension, but we disagree that it warrants a four-year suspension. We conclude that a two-year suspension is sufficient to serve the purpose of attorney discipline—to protect the public, the courts, and the legal profession, not to punish the attorney.

The court has de novo review authority of proposed sanctions.

The case is Matter of Discipline of Michael Novi. (Mike Frisch)

November 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 13, 2018

No Need To Wait For Sentencing

A plea of guilty was sufficient to warrant disbarment from the New York Appellate Division for the First Judicial Department

On May 17, 2017, respondent was convicted, upon her plea of guilty, in the United States District Court for the District of New Jersey, of making false entries to deceive the Federal Deposit Insurance Corporation (FDIC) and First State Bank (FSB) in violation of 18 USC § 1005, and conspiracy to deceive the FDIC and FSB and to influence the FDIC in violation of 18 USC §§ 371, 1005, and 1007, both federal felonies.

Final discipline may be imposed

Even though respondent has not yet been sentenced, the [Attorney Grievance Committee]'s application is timely because, for purposes of automatic disbarment, a conviction occurs at the time of plea or verdict (see Matter of Ravelo, 163 AD3d 98, 102 [1st Dept 2018]; Matter of Lin, 110 AD3d 186, 188 [1st Dept 2013]; Matter of Armenakis, 86 AD3d 205, 207 [1st Dept 2011]).

The criminal case

During her plea allocution, respondent acknowledged the details of the overall scheme as contained in the information. Specifically, respondent admitted that she and her co-conspirators attempted to conceal the misuse of FSB's own funds to generate the $7 million capital infusion by causing FSB to make three fraudulent loans to the FSB stock purchasers, to which end respondent drafted a business plan for one of the purported borrowers in which she purposely misstated, among other things, the purpose of the loan, the intended use of the loan proceeds, and how the loan would be repaid.

Respondent also admitted that she and her co-conspirators sought to hinder the FDIC's and FSB's inquiries by preventing them from obtaining accurate information concerning the criminal conduct at issue, to which end respondent, among other things, affirmatively concealed from the FDIC and an officer of FSB that the 1.4 million FSB shares through which the improper capital infusion was financed were used to collateralize the fraudulent loans discussed above.

Also, as part of her written plea agreement, respondent consented to entry of a forfeiture money judgment against her for $37,500, which she acknowledged represented the proceeds of her criminal conduct in violation of 18 USC § 1005.

We find that respondent's plea admissions, read in conjunction with the information to which she pled guilty, satisfy the elements of scheme to defraud in the first degree (Penal Law § 190.65[1][b]) in that respondent admittedly engaged in a "systematic ongoing course of conduct" by which she misled the FDIC and her client FSB by which she wrongfully obtained the $37,500 she agreed to forfeit. While it does not appear that this Court has previously found conspiracy convictions under 18 USC §§ 371, 1005 and 1007 to be analogous to Penal Law § 190.65(1)(b), it has found other federal convictions for conspiracy to be "essentially similar" to this New York felony based on plea admissions, read in conjunction with the information/indictment, and there is no reason not to do so in this case (see e.g. Matter of Boden, 146 AD3d 69 [1st Dept 2017]; Matter of Merker, 140 AD3d 1 [1st Dept 2016]; Matter of Harnisch, 7 AD3d 58 [1st Dept 2004]; Matter of Kim, 209 AD2d 127, 130-131 [1st Dept 1995].

Accordingly, the AGC's motion should be granted to the extent of striking respondent's name from the roll of attorneys and counselors-at-law in the State of New York, and respondent is disbarred effective nunc pro tunc to May 17, 2017.

The respondent sought to defer final action until her criminal sentencing and the completion of disciplinary proceedings in New Jersey, where she is presently suspended. reported on the criminal case and respondent's nomination by Chris Christie to a state board

Conroy, a Cranford attorney who lives in Middletown, was nominated by the governor in May 2010 to serve on the state Banking Advisory Board, an advisory panel. Her nomination was withdrawn that October – when, according to court documents, a conspiracy to defraud the Federal Deposit Insurance Corp. was in full swing.

Conroy thanked the governor and withdrew as a candidate in an Oct. 13, 2010, letter forwarded by the Governor's Office.

(Mike Frisch)

November 13, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 12, 2018

Reciprocal Reprimand Vacated

The United States Court of Appeals for the Fourth Circuit vacated a reciprocal reprimand imposed as a result of an action of the Maryland Court of Appeals.

The underlying Maryland case is quite a story as we recount here. 

From the Fourth Circuit opinion

Appellant, Allen Ray Dyer, an attorney licensed to practice law in Maryland, was reprimanded by the Maryland Court of Appeals for failing to comply with the bar counsel’s request for information in response to a complaint that had been filed against Dyer. See Md. R. Attorneys, Rule 19-308.1(b). Dyer had refused to respond substantively to the complaint, instead asserting that Maryland’s rule requiring confidentiality in attorney grievance proceedings violated the First Amendment’s Free Speech Clause and, thus, refusing to participate in any confidential proceedings. After Dyer disclosed the state court’s order of reprimand to the district court, that court ordered Dyer to show cause why it should not take reciprocal disciplinary action. See D. Md. Adm. R., Rule 705.3(a), (b)(iii) ("LAR"). In his response to the show cause order, Dyer again asserted his free speech challenge to the state confidentiality rule. The district court issued an order of reciprocal reprimand against Dyer, and Dyer now appeals. For the reasons that follow, we vacate and remand to the district court.

Pursuant to the district court’s local rules, the court was required to impose identical discipline to that imposed by the Maryland court unless Dyer demonstrated clearly that: (1) the state court’s procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was an infirmity of proof establishing the misconduct such that the district court could not accept the final conclusion of the Maryland court on the matter; (3) the imposition of the same discipline would result in grave injustice; or (4) the misconduct warrants substantially different discipline than that imposed by the state court. LAR 705.3(d); see also In re Fallin, 255  F.3d 195, 197 (4th Cir. 2001) (stating factors for consideration in imposing reciprocal discipline). On appeal, Dyer argues that the confidentiality of Maryland’s attorney grievance procedures violates the First Amendment and, therefore, imposition of reciprocal discipline for partial refusal to participate in the investigative process was a grave injustice. The district court, however, did not provide any explanation for its finding that a reciprocal reprimand was warranted or explicitly address Dyer’s constitutional claim such that this court could conduct meaningful appellate review. See U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 823 (4th Cir. 1992). For instance, it is not apparent from the district court’s order whether it rejected Dyer’s First Amendment challenge to the state rule, or merely determined that even if Dyer’s challenge was meritorious, he had failed to demonstrate that the imposition of reciprocal discipline would result in a grave injustice.

Accordingly, we vacate the district court’s order and remand for further proceedings consistent with this opinion.

(Mike Frisch)

November 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Relaxed Sanction

The Wisconsin Supreme Court has publicly reprimanded an attorney, rejecting both his attack on the findings below and the proposed sanction

Attorney Gonzalez acknowledges that aspects of the record reflect poorly on him, but he says that to the extent he is to be disciplined, the discipline should be on the basis of legally and factually correct determinations and should be proportional to the degree of misconduct actually proved. He says given his "otherwise untroubled history" the sanction "should be relaxed." In his reply brief, Attorney Gonzalez suggests that a private reprimand would be an appropriate sanction.


With respect to the appropriate level of discipline, we also agree with the referee that a public reprimand is an appropriate sanction. Although Attorney Gonzalez has no disciplinary history, and even though the referee found that the OLR did not meet its burden of proof on all counts alleged in the complaint, the counts that were proven are serious enough to warrant public discipline. We find the misconduct at issue here somewhat analogous to the Public Reprimand of Sarah Clemment, No. 2011-6 (electronic copy available at, in which an attorney was publicly reprimanded for giving a client an incorrect date for a removal hearing, making a misrepresentation in a motion to reopen an order denying an asylum petition and ordering the client's deportation, failing to follow statutory requirements in pursuing an appeal, and lying to the client.

 (Mike Frisch)

November 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, November 11, 2018

Accreditation Issue Decided In Applicant's Favor In Virgin Islands

The Supreme Court of the Virgin Islands has granted an applicant's petition to sit for the bae examination

This matter comes before the Court pursuant to a June 11, 2018 motion filed by Eddy G. Robert, an applicant for regular admission, which requests that this Court permit him to sit for the July 2018 administration of the Virgin Islands Bar Examination notwithstanding the Committee of Bar Examiners’ May 16, 2018 decision that he is not “a graduate of an accredited law school approved by the American Bar Association.” V.I.S.CT.R. 204(d)(5). Because we conclude that Robert is a graduate of such a law school, we reinstate Robert’s application for regular admission, and shall permit him to sit for the July 2018 administration of the Virgin Islands Bar Examination.

The issue

On May 1, 2018, Robert filed an application for regular admission to the Virgin Islands Bar. As part of his application, Robert submitted a Dean Certificate executed by the University of Massachusetts Dartmouth School of Law, along with an official transcript. The Dean Certificate stated that Robert attended the Southern New England School of Law from August 2006 through May 2010 and graduated with a Juris Doctor degree. However, the University of Massachusetts also provided a statement explaining that Southern New England School of Law ceased operations on July 1, 2010, and that the University of Massachusetts assumed control of the school at that time. Although the University of Massachusetts obtained accreditation by the American Bar Association in June 2012, the former Southern New England School of Law had never obtained
such accreditation. However, the University of Massachusetts further stated that “[t]he only significant changes to the curriculum [Robert] completed and our current approved ABA curriculum is a Pro-Bono 30 hour requirement and a 90 credit degree requirement versus 89 credits.

The committee denied him on accreditation grounds.

Robert filed a motion with this Court on June 11, 2018, requesting that this Court permit him to sit for the Virgin Islands Bar Examination by equitably waiving the requirements of Supreme Court Rule 204(d)(5). To support his request, he emphasizes that the University of Massachusetts Dartmouth School of Law is the successor to Southern New England School of Law, that the school obtained accreditation from the American Bar Association two years after his graduation with only minimal changes to the curriculum, and that he was admitted to the Massachusetts Bar after successfully passing the Massachusetts Bar Exam in 2014.

The court

While the Committee focused on whether the former Southern New England School of Law was accredited at the precise moment that Robert graduated, the plain text of Rule 204(d)(5) contains no such requirement. Rather, the rule requires only that one be “[a] graduate of an accredited law school approved by the American Bar Association.” It is undisputed that Southern New England School of Law and the University of Massachusetts Dartmouth School of Law are the same law school, with the University of Massachusetts assuming control of the Southern New England School of Law as a result of a negotiated merger and changing its name...

Because Robert earned his Juris Doctor from the Southern New England School of Law, and that institution is now accredited by the American Bar Association, he has satisfied the educational requirement set forth in Supreme Court Rule 204(d)(5). Therefore, we direct that Robert be permitted to sit for the July 2018 administration of the Virgin Islands Bar Examination. Because Robert satisfies the requirements of Rule 204(d)(5), an equitable waiver of the rule is not necessary, and his motion for equitable waiver shall therefore be denied as moot. We emphasize to both Robert and the Committee of Bar Examiners that our decision herein is limited solely to whether Robert has satisfied the requirements of Rule 204(d)(5) and should not be construed as a holding that Robert has satisfied any other requirement for admission, including that he demonstrate that he is a person of good moral character. See V.I.S.CT.R. 204(d)(3).

(Mike Frisch)

November 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Buck And A Bed Leads To A Legal Malpractice Matter Of First Impression In Idaho

A disinherited son lost his legal malpractice case in the Idaho Supreme Court which affirmed the grant of summary judgment by the district court.

The court considered a matter of first impression: the problem of a "hypothetical appeal." 

Thomas Lanham (Thomas) appeals from the district court’s dismissal of his legal malpractice action against his former attorney, Douglas Fleenor (Fleenor). Fleenor represented Thomas in a will contest regarding the will of Gordon Lanham (Gordon), Thomas’s father. After the magistrate court ruled against Thomas at the summary judgment stage, Fleenor filed an untimely appeal, which was rejected on that basis.

Because the appeal brought by Fleenor was untimely, Thomas brought a legal malpractice action against Fleenor in district court. Thomas alleged that the failure to timely appeal the magistrate’s ruling proximately caused him financial loss because he had a meritorious appeal that he never got to pursue due to Fleenor’s negligence.

The will

The facts in this case are largely undisputed. On November 16, 2010, Gordon began dictating his Will via an audio recording device. Gordon recorded his Will intermittently on nine separate days, concluding on January 7, 2011. On January 19, 2011, the ten dictated paragraphs were transcribed into his written Will. On February 19, 2011, the Will was signed, witnessed, and notarized. Thomas has not contested the validity of the Will.

In his Will, Gordon explicitly limited the inheritance of Thomas and Thomas’s brother Keith Lanham to one dollar and one wooden bed each.

After Gordon died

Thomas later retained Fleenor to challenge certain portions of the Will. Fleenor filed a motion for summary judgment arguing that the Will failed to properly dispose of the residue of Gordon’s estate (including the subject properties); the effect of which would mean any property not specifically devised would pass to Thomas and Keith as Gordon’s intestate heirs. In response, Judd, acting on behalf of Gordon’s estate, filed a cross-motion for summary judgment arguing Thomas’s claim should be dismissed because Gordon’s intent to disinherit his sons was clear and the Will fully and properly disposed of all of Gordon’s property.

When Thomas lost

Fleenor filed a notice of appeal to the district court on August 13, 2014, forty-nine days after the magistrate’s written judgment was filed. (The time for filing an appeal is forty-two days. I.R.C.P. 83(b)(1)(A).) The district court dismissed the appeal as untimely and found that the June 20, 2014 motion to reconsider did not toll the period for appeal, because the magistrate’s written decision was filed after the motion for reconsideration was filed.

At issue 

the district court ruled that a determination of whether an underlying, unperfected appeal would have been successful, if pursued in a timely way, was a question of law for the court to decide. (An unperfected appeal giving rise to a legal malpractice suit will be referred to in this decision as a “hypothetical appeal.”)

The court here found that the attorney was properly awarded summary judgment by the district court

Although this Court has decided many legal malpractice cases, it does not appear to have decided one in which the basis for the legal malpractice claim was an unperfected appeal. Consequently, we must decide, as a matter of first impression, if the potential success of a hypothetical appeal is an issue of fact to be decided by a jury, or rather is it a question of law for the court to decide. We conclude, as have twenty-eight other jurisdictions (twenty-seven states and the District of Columbia, 4 RONALD E. MALLEN, LEGAL MALPRACTICE § 33:118 at n.9 (2018 ed.)), that it is a question of law to be decided by the court. 

An appeal would have lost

In reviewing the tripartite test set out in Krokowsky each component has been met. Gordon intended to create an unfettered power allowing Judd to distribute his estate “in any way he sees fit”; he granted the authority to his “friend and cousin” Judd Lanham; and he specified the property over which the power existed: “all my personal and real property” not bequeathed in the Will.

The fact that Gordon also clearly and unequivocally disinherited Thomas in the Will supports the conclusion that Gordon intended to convey a general power of appointment to Judd and that he did not want the residue go to Thomas. As Gordon wrote in his Will:

Thanksgiving is over and I just wanted to add to this program that my son, Thomas Everett Lanham, 48 years old, has already been given all he needs to have and that I am going to leave $1 more dollar [sic] against whatever is legal to him and then he is going to be on his own.

Giving Gordon’s Will the technical interpretation Thomas suggests would only frustrate Gordon’s intent.

Thomas is not obligated to pay attorney's fees

In this case, Thomas is not asking this Court to second-guess evidence or findings of fact. The core issue turns on an unsettled question of law. The issue before this Court is a matter of first impression. The Will did not include the phrase “power of appointment.” It was therefore reasonable for Thomas to appeal in order to have an unsettled question of law answered.

Consequently, Fleenor’s request for attorney’s fees is denied.

Shout out to Mike Oths and Concordia Law students who make up our Idaho readership. (Mike Frisch)

November 11, 2018 in Clients | Permalink | Comments (0)

Sanction Increased For "Sexually-Based Misconduct"

Reciprocal discipline of a two-year suspension has been imposed by the New York Appellate Division f or the Third Judicial Department in a matter where New Jersey had imposed a three-month suspension on a revoked attorney

In 2013, respondent's license to practice law in New Jersey was revoked owing to his failure to pay the required fees to the New Jersey Lawyers' Fund for Client Protection for seven consecutive years (see NJ Court Rule 1:28-2 [c]). Subsequently, by May 2017 order, the Supreme Court of New Jersey suspended respondent for a three-month term based upon his 2010 conviction of the offense of lewdness (see NJSA 2C:14-4 [a]) and lengthy record of inappropriate sexual conduct (Matter of Sicklinger, 228 NJ 525, 159 A3d 371 [2017]). According to that order, respondent's suspension was set to take effect upon his application for readmission from his 2013 revocation, which readmission would be conditioned on respondent submitting proof of his sobriety and fitness to practice law as attested to by a mental health professional.

As to sanction

The sexually-based misconduct underlying respondent's conviction in New Jersey warrants a significant sanction as it "diminishes the public's trust in the legal profession and 'evidenc[es] a disregard of the high standards imposed upon members of the bar'" (Matter of Walter, 160 AD3d 1335, 1337 [2018], quoting Matter of Rothschild, 127 AD3d 178, 180 [2015]; see also Matter of Swedick, 81 AD3d at 1033-1034; Matter of McCallig, 79 AD3d at 1360). In aggravation of the misconduct resulting in his conviction, we note that respondent's actions were not isolated to a single incident, as the decision of the Disciplinary Review Board in New Jersey outlines a pattern of inappropriate sexual conduct detailing four separate arrests stemming from respondent masturbating in public (see generally Matter of Walter, 160 AD3d at 1336; see also ABA Standards for Imposing Lawyer Sanctions § 9.22 [c]). Further aggravating respondent's misconduct is his failure to advise this Court and AGC of his New Jersey suspension (see Matter of Graham, 164 AD3d 1520, 1521 n [2018]; Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.13 [d]) and his persistent registration delinquency spanning the last four registration periods.

Our post on the New Jersey proceedings is linked here.

Here, we determine to assess the sanction for respondent’s misconduct solely on the 2010 Bradley Beach lewdness conviction for masturbating in a Quick Chek parking lot. We considered the remaining three matters as aggravating factors, as follows.

The Lake Como lewdness conviction occurred in 2015, long after respondent’s New Jersey license to practice law already had been revoked. The Point Pleasant Beach and Belmar Borouqh incidents did not constitute criminal convictions. Because these matters involved violations of local ordinances, they cannot serve as a basis for imposing a sanction in a motion for final discipline.

We consider, however, in aggravation, that respondent has engaged in a pattern of inappropriate sexual behavior, as demonstrated by the Lake Como, Point Pleasant Beach, and Belmar Borouqh matters...

 The four incidents here span a period of eight years, the last one occurring as recently as last summer. For respondent’s years-long pattern of inappropriate sexual conduct, and based on respondent’s seeming indifference to the seriousness of his actions, we determine that a three-month suspension is warranted.

Finally, we are mindful that the sanction imposed on respondent will not become effective unless and until he is reinstated to practice law in New Jersey. Nevertheless, should respondent ever seek reinstatement, we require him to provide proof of both sobriety and fitness to practice law, as attested by a mental health professional approved by the OAE.

Member Gallipoli voted for a one-year suspension with the above conditions. Member Singer voted to censure respondent, with the above conditions. Vice-Chair Baugh and Member Zmirich did not participate.

(Mike Frisch)

November 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)