Legal Profession Blog

From Deepwater To Hot Water

The Louisiana Attorney Disciplinary Board recommends that an attorney be permanently disbarred on findings derived from these allegations

The Deepwater Horizon Claim Center sent an eligibility notice to Complainants, who were pleased with the settlement amount ($505,882.94) and did not wish to seek further appeal. Respondent received the settlement funds from British Petroleum on March 7, 2017. However, when asked, Respondent denied to [Complainants] that she had received the funds. Complainants consulted the online BP Claims Status Report, which revealed that Respondent had already received the funds but had failed to disburse them. Complainants said they confronted Respondent, but Respondent continued to deny that she had already received the settlement funds from British Petroleum.

Rather than disburse the funds, Respondent attempted to renegotiate the employment contract with Complainants. Respondent sought to receive a higher percentage of the recovery as her fee. Complainants refused to agree to alter the contract. Respondent then advised Complainants that she had already spent a significant portion of their settlement funds, but was willing to disburse the remaining portion to them, approximately $303,000. Complainants agreed to allow Respondent 90 days in which to disburse the remaining $128,000 to them.

However, the 90-day delay expired and Respondent failed to disburse the remaining funds owed and due to Complainants. On August 24, 2017, Complainants advised counsel for Respondent that they were hiring an attorney to collect the remaining funds owed.

Respondent submitted a sworn statement to the ODC. She admitted that she had disbursed a large portion of $128,000 of Complainants' funds to another individual as a referral fee. Respondent was unable to completely recall how she used the remaining missing funds. Respondent conceded that she did this without the authorization, or knowledge, of Complainants. Respondent converted $128,000 of Complainants' settlement funds and, on information and belief, Respondent has still not paid to Complainants any part of these converted settlement funds owed.

(Mike Frisch)

Runners In The Third Degree

A one-year suspension has been imposed by the New Jersey Supreme Court for a conviction described in the recommendation of the Disciplinary Review Board

On January 27, 2016, before the Honorable Peter V. Ryan, J.S.C., respondent entered a guilty plea, via an accusation, to third-degree criminal use of runners, in violation of N.J.S.A. 2C:21-22.1(b). During his plea allocution before the court, respondent admitted that, from 2010 to 2015, Philip Potacco, a doctor and former client, referred cases to him through the illegal use of runners. Respondent would pay the runners, many of whom had been sourced by Potacco, fees ranging from $100 to $800, in return for clients from South Orange Trauma and Rehab, LLC. Potacco identified the amount of the fee respondent was to pay each runner and provided him with the medical reports for each patient referred. Those medical reports usually were written by a doctor other than Potacco, and respondent did not know whether the reports were genuine or fraudulent. Respondent paid the runners a fee only if he obtained a monetary recovery in their associated case.

There was a second plea

On January 13, 2017, almost one year after his first guilty plea, and once again before Judge Ryan, respondent entered a second guilty plea, via an accusation, to third-degree criminal use of runners, in respect of the Park Avenue Chiropractic case. During his plea allocution before the court, respondent admitted that, between 2010 and 2015, he paid Park Avenue Chiropractic to refer cases to him, through the use of approximately thirty runners. Respondent would pay the runners a fee of $300 to bring him clients from Park Avenue Chiropractic and had paid approximately $9,000 for the referrals. Respondent further admitted that his criminal conduct in respect of Park Avenue Chiropractic occurred contemporaneously with his illegal use of runners for South Orange Trauma and Rehab, LLC cases.

The Office of Attorney Ethics had sought an 18-month suspension. (Mike Frisch)

Gender Slur Violated Anti-Bias Rule

A one year suspension with all but four months stayed has been ordered by the Colorado Presiding Disciplinary Judge

In one client matter, Frazier failed to appear in person at a hearing and did not communicate with his client that her case had therefore been dismissed. In a second client matter, Frazier was compensated for his services by the mother and step-father of his client without obtaining informed consent from his client. Frazier also disclosed confidential information to his client’s parents. Further, Frazier called his client’s mother a “c**t” in a text message. Finally, Frazier did not maintain a business or operating account until May 2019, took cash withdrawals out of his trust account, and deposited into his trust account monetary gifts from his father.

The c-word violated

Colo. RPC 8.4(g) (in representing a client, a lawyer shall not engage in conduct that exhibits or is intended to appeal to or engender bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process)

The sanction was based on a conditional admission of misconduct and includes a two-year probation. (MIke Frisch)

The Elusive Jessica Wells

An attorney's conversion of entrusted funds and false statements made in the disciplinary process has led to disbarment by the Indiana Supreme Court

From 2014 through 2018, Respondent engaged in pervasive financial misconduct, including multiple overdrafts of her trust account, commingling of personal and client funds, use of trust account funds to pay personal or business expenses, failing to deposit client funds into a trust account, and conversion of client funds.

She denied converting client funds

Respondent...told the Commission that two checks totaling about $7,800 drawn from settlement proceeds in that case were written to a church’s building and scholarship funds pursuant to the terms of settlement, when in fact those checks were payments for Respondent’s children’s private school tuition. (Comm’n Ex. 29, Ex. Vol. 2 at 46-48; Comm’n Ex. 55, Ex. Vol. 4 at 238; Comm’n Ex. 60, Ex. Vol. 6 at 56). Finally, Respondent’s series of overdrafts (eight in all, including four totaling about $1,000 committed after Respondent had completed two remedial financial education courses) and her elaborate pattern of deception regarding those overdrafts provide substantial additional support for the hearing officer’s finding of conversion. 

Making matters worse

Respondent lied at innumerable junctures to the Commission and during sworn testimony, forged an affidavit containing false statements of material fact, falsified a personal check, and even invented a fictitious bank manager – all in an effort to extricate herself from various investigations and proceedings that began as simple overdraft inquiries. Put simply, the criminal and dishonest nature of Respondent’s pattern of misconduct demonstrates that she cannot be safely recommended to the public as a person fit to practice law. Further, Respondent’s total lack of insight during these proceedings into the wrongfulness of failing to account for client funds and using those funds to pay personal expenses, and her utterly inexplicable decisions during the progression of this case to double and even triple down on her demonstrably false statements, persuade us that her fitness to practice law is not capable of being restored.

The forged affidavit was something less than a masterpiece

the evidence overwhelmingly supports the findings that Respondent, in an attempt to shift blame for one of the overdrafts onto a former paralegal, knowingly provided the Commission with a forged and false affidavit purportedly from her former paralegal. In the affidavit, the paralegal’s name was misspelled, her address and telephone number were incorrect, and her signature differed from the paralegal’s signature on other documents executed while in Respondent’s employ. Similarly, the notary’s signature on the affidavit differed from the signature the notary provided to the Commission, and the notary’s commission expiration date on the affidavit was inaccurate.

The bank manager

The evidence also overwhelmingly supports the findings that Respondent made a series of false statements to the Commission regarding an “extensive accounting” of her trust account allegedly performed by a bank manager at Respondent’s request. Respondent identified this manager as “Jessica Wells,” a person with whom Respondent indicated she was personally acquainted through her daughter’s soccer team. Respondent also provided the Commission with an address and phone number for “Jessica Wells” she indicated she had obtained through a soccer team list containing the names and contact information of the parents. However, the bank has never employed anyone by the name “Jessica Wells,” the address provided by Respondent is a heavily-wooded and vacant lot, and the phone number provided by Respondent belonged to one of Respondent’s clients, M.B., a fact Respondent attempted to conceal by omitting M.B. from the list of clients she provided to the Commission. Notwithstanding Respondent’s
reiteration of this “Jessica Wells” narrative during her final hearing testimony, Respondent’s counsel expressly stipulated at the hearing that “we’re in agreement there was no Jessica Wells” and that “this person doesn’t exist.”

(Mike Frisch)

Renaissance Man

Dan Trevas reports on the Ohio Supreme Court web page

A previously suspended Youngstown attorney involved in Mahoning County’s “Oakhill scandal” received a second suspension from the Ohio Supreme Court today, but will be allowed to continue practicing law if he abides by conditions imposed on him.

In a unanimous per curiam opinion, the Supreme Court imposed a two-year suspension on Martin E. Yavorcik based on charges of campaign finance law violations related to his 2008 run for Mahoning County prosecutor and mishandling client funds. In 2016, the Court suspended Yavorcik for an interim period after his conviction of multiple felonies arising from his role in an alleged attempt to stop Mahoning County from moving government offices out of space leased from the Cafaro Company and into the county-owned Oakhill Renaissance Place.

Yavorcik’s law license was effectively suspended for 32 months on an interim basis until his conviction was vacated and his license reinstated in January 2019. Today the Court granted 18 months of time served under the previous suspension and stayed the remaining six months of the new suspension with conditions, which included one-year of monitored probation.

Second Complaint Arose from Cafaro Campaign Donation
After his conviction and suspension for his involvement in the Oakhill matter, the Mahoning County Bar Association filed a second complaint against Yavorcik with the Board of Professional Conduct. The bar association charged that Yavorcik violated several of the rules governing the conduct of Ohio attorneys based on false statements and omissions on his 2008 campaign-finance statements, and for neglecting a client matter around the time of his own criminal trial.

When running for county prosecutor, Yavorcik was advised to conduct a poll to evaluate his chances. He received a $15,000 check from Flora Cafaro, and issued a receipt to her labeled “William M. Carfaro/American Gladiator Fitness Center” and represented it as “payment for services rendered.” He then used to money to hire a political polling firm.

In his general election campaign finance report, Yavorcik misrepresented the $15,000 from Carfaro by falsely reporting that it was an in-kind contribution he made to his own campaign. He also failed to report the Carfaro payment as income on his 2008 federal tax return, and failed to report two other cash contributions on his campaign finance report.

The Ohio Elections Commission found Yavorcik violated campaign-finance laws and fined him $200. In 2014, Yavorcik amended his federal tax returns and attempted to pay tax on the Carfaro payment, but the federal government declined to assess any tax because of the passage of time.

The bar association and Yavorcik stipulated that his actions constituted an illegal act that reflects on Yavorcik’s honesty and trustworthiness.

Client’s Settlement Check Held Three Years
Robert E. Yambar hired Yavorcik in 2013 to pursue a personal-injury claim on behalf of himself and his minor son who were injured in an auto accident. Yambar agreed to settle his son’s claim for $10,000, but asked Yavorcik to file a lawsuit against the driver who caused the accident and his insurance company. In September 2015, the insurer sent Yavorcik a $10,000 check payable to Yambar for his son’s claim, and Yavorcik deposited it in his client trust account.

Payment to Yambar required probate court approval and Yavorcik prepared an application, but Yambar never signed it and Yavorcik never submitted it to the court. As Yavorcik prepared for his own criminal trial, he transferred Yambar’s case file to another attorney.

In 2016, Yambar filed a grievance against Yavorcik. During the investigation of the complaint, the bar association told Yavorcik the bank had closed his client trust account and that Yavorcik was issued a check for $4,552, which was less than the amount Yavorcik should have held in trust for Yambar’s son. In April 2018, Yavorcik paid Yambar $10,931.

Yavorcik admitted he failed to keep Yambar reasonably informed about the status of his legal matters and failed to follow the rules for retaining funds in a client trust account. He also acknowledged he failed to inform Yambar that he did not carry adequate professional liability insurance and did not comply with his client’s request for information in a reasonable amount of time.

Board Considers Recommended Sanction, Court Agrees
When the board considers a sanction to recommend to the Court, it considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction. 

The board found Yavorcik committed multiple offenses and noted that he “damaged the integrity of and the public’s confidence in the election system by failing to identify an actual source of his campaign funds.”

The board also found he made a good-faith attempt to rectify his misconduct by paying restitution to Yambar before his disciplinary hearing and that he demonstrated a cooperative attitude toward the disciplinary proceedings. The board also credited Yavorcik for the other penalties and sanctions he received, including the criminal sanctions he served until his sentence was vacated. Yavorcik spent one year under house arrest, was subject to continuous monitoring of his whereabouts and alcohol consumption, and performed 200 hours of community service.

As part of his community control, Yavorcik was required to attend Alcoholic Anonymous meetings and subject himself to random drug-testing. The board expressed concern about Yavorcik’s alcohol use, including his drinking the night before his disciplinary hearing.

The board proposed Yavorcik be suspended for two-years, with 18 months credited for time served under the prior suspension, and the remaining six months stayed.

The Court’s opinion stated that based on Yavorcik’s long suspension for felony convictions that were ultimately vacated, his acknowledgment of his wrongdoing, and his sincere remorse, it would adopt the board’s recommended sanction.

The Court stayed the final six months of his suspension with the conditions that he submit to an Ohio Lawyer’s Assistance Program assessment or one by a chemical-dependency professional within 90 days; comply with any recommendations from the assessment; complete one year of monitored probation focused on law-office management, including the management of his client trust account; complete six hours of continuing legal education related to managing a law office and client trust accounts; and not commit any further misconduct.

2019-1086. Mahoning Cty. Bar Assn. v. Yavorcik, Slip Opinion No. 2020-Ohio-123.

(Mike Frisch)

Illinois Sanctions Imposed

The Illinois Supreme Court announced dispositions of a number of bar discipline decisions including

In re GARY BRUCE FRIEDMAN, Attorney Number 883204
200 North LaSalle Street, Suite 2750
Chicago, Illinois 60601-1053

File Information: M.R. 30145, 2018PR00101

Mr. Friedman, who was licensed in 1973, was censured. After learning of his personal injury client’s death in June 2016, Mr. Friedman negotiated a settlement with the other party’s insurance company without disclosing that his client had died. Respondent then directed the deceased client’s grandson to sign the client’s name to a release and submitted it to the insurance company.

In re ANTHONY RAY JOHNSON, Attorney Number 6211234
101 1st Avenue, West
Newton, Iowa 50208-3744

File Information: M.R. 30091, 2019PR00090

Mr. Johnson was licensed in Illinois in 1992 and in Iowa in 2007. The Supreme Court of Iowa revoked his license for embezzling $26,247.93 from his employer. The Supreme Court of Illinois imposed reciprocal discipline and disbarred him.

In re DURWARD JAMIESON LONG, JR.,
Attorney Number 3124587
3302 41st Street
Moline, Illinois 61265-7830

File Information: M.R. 30074, 2017PR00083

Mr. Long, who was licensed in 1979, was suspended for 60 days and until he makes restitution of $13,500 to a client’s heirs. He agreed to represent five clients in applying for Medicaid benefits and had those clients’ agents sign promissory notes agreeing to pay his fee upon the future sale of his clients’ homes, along with mortgages on the clients’ homes to secure payment of the promissory notes, without advising his clients or their agents of their right to obtain independent legal advice about the transactions. He also represented two clients’ estates in probate proceedings despite holding mortgages on the clients’ homes, and he collected a $15,000 fee from one client who died before he performed any significant legal services for her. The suspension is effective on February 7, 2020. 

In re GUY NORMAN MARAS, Attorney Number 6229776
140 South Dearborn Street, 7th Floor
Chicago, Illinois 60603-5225

File Information: M.R. 30135, 2019PR00037

Mr. Maras, who was licensed in 1995, was suspended from the practice of law for three years and until further order of the Court, with the suspension stayed after six months by a three-year period of probation subject to conditions, arising out of his conviction of homicide by intoxicated use of a vehicle. His criminal conduct involved his consuming alcohol, driving his vehicle at a high rate of speed, and driving off the roadway and hitting a tree stump, causing the ejection and death of his passenger in Michigan.  The suspension is on February 7, 2020.

In re WILLIAM LEONARD MILLER, Attorney Number 6212228
818 Olive Street, Suite 1230
St. Louis, Missouri 63101-1504

File Information: M.R. 30095, 2019PR00092

Mr. Miller was licensed in Missouri in 1992 and in Illinois in 1993. The Supreme Court of Missouri disbarred him following his plea of guilty in federal court to the offense of aiding and abetting another in devising and participating in a scheme to defraud the citizens of St. Louis County, Missouri, of their right to honest services. Mr. Miller used his position as Chief of Staff to the St. Louis County Executive to aid and abet that executive in enriching himself through soliciting and accepting political donations from individuals and companies in exchange for favorable action. The Supreme Court of Illinois imposed reciprocal discipline and disbarred him in Illinois. The County Executive, who was also an attorney in both Illinois and Missouri, was also disbarred in both States.

(Mike Frisch)

The $5,000 Initial Meeting

Reciprocal discipline has been imposed by the New York Appellate Division for the First Judicial Department for sanctions ordered in Colorado on an attorney who practiced immigration law in Colorado without a local license

The [Colorado] Presiding Disciplinary Judge (PDJ) of the Colorado Supreme Court granted the OARC partial summary judgment sustaining six of the alleged violations, and directed a hearing be held before a three-member Hearing Board (which included the PDJ) for a determination as to liability on the remaining charge and sanction. Respondent appeared pro se and testified at the hearing.

The factual and judicial findings in this matter are as follows. On June 30, 2016, Hennadiy Zhakyavichyus and Iuliia Vyshniavska retained respondent to apply for adjustments of their respective immigration statuses, for which they paid him the full agreed upon fee of $6,000 to handle both matters, but they discharged him on August 4 and August 9, 2016, respectively, because both of them were dissatisfied with the pace at which their matters were being handled. At the time of his August 9 termination, respondent told Zhakyavichyus that he had filed his citizenship application on August 4, however, records showed that the earliest date it could have been filed was August 9. Further, respondent, who did not keep contemporaneous time records for his work, billed the couple a total of over $5,000 for their joint, initial two-hour meeting with him. He claimed that the fee was justified under the terms of their retainer agreements.

The PDJ granted the OARC partial summary judgment finding that the fees respondent charged violated Colorado RPC 1.5(a) (a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses); he failed to deposit $5,000 of the advance fee paid to him by Zhakyavichyus into an attorney trust account in violation of Colorado RPC 1.5(f) (advances of unearned fees are the property of the client and shall be deposited in the lawyer's trust account) and Colorado RPC 1.15(a) (a lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property); by including a nonrefundable "case evaluation fee" of $1,000 in his retainer agreements he violated Colorado RPC 1.5(g) (nonrefundable fees and nonrefundable retainers are prohibited [and] any agreement that purports to restrict a client's right to terminate the representation, or that unreasonably restricts a client's right to obtain a refund of unearned or unreasonable fees, is prohibited); upon termination of his services by the clients, he failed to promptly return unearned fees and thereby failed to take steps reasonably practicable to protect the clients' interests in violation of Col. RPC 1.16(d); and by misrepresenting the filing date of Zhakyavichyus's application he engaged in dishonest conduct in violation of Colorado RPC 8.4(c).

Colorado sanction

the Colorado Hearing Board majority imposed a suspension of one year and one day, with three months to be served (subject to his successful completion of a two-year probationary period and certain conditions imposed), while the PDJ would have imposed an actual nine-month suspension with the remainder of the one year and one day stayed.

Also

By order dated March 21, 2019, the Board of Immigration Appeals (BIA) immediately suspended respondent from practice before the Board, the Immigration Courts, and the U.S. Department of Homeland Security based on his discipline in Colorado.

His objections to reciprocal discipline failed

Contrary to respondent's arguments, none of the defenses to reciprocal discipline apply herein. Respondent received notice of the charges against him and vigorously defended himself at the trial (disciplinary hearing) and appellate levels which, as noted, included a federal lawsuit against the OARC. In addition, the record amply supports the Colorado Supreme Court's misconduct findings. Further, respondent's misconduct in Colorado would constitute misconduct in New York in violation of the Rules of Professional Conduct (22 NYCRR § 1200) rules 1.5(a), 1.5(d), 1.16(e), and 8.4(c). Respondent has also not demonstrated that it would be unjust under 22 NYCRR 1240.13(c) for this Court to impose reciprocal discipline, nor do his arguments in support of his motion to strike the Committee's reply papers have any merit.

A suspension for six months and until further order was imposed. (Mike Frisch)

"I Saw It. It Was Right There" Prosecutor's Argument Draws New Trial

A new trial has been granted to a defendant in a child sex abuse case in light of the prosecutor's closing argument. 

The Rhode Island Supreme Court held that a curative instruction was insufficient

During closing argument, the prosecutor stated:

“This man, Henry Bozzo, molested that young girl. It wasn’t a mistake. He did it intentionally. He stared at her as she was walking out of the courtroom. He stared her down. I saw it. It was right there. That is no mistake there.” (Emphasis added.)

The defendant immediately objected. The trial justice reserved ruling on the objection. The prosecutor continued: “You know there is no mistake there. He knew what he was doing.” After the prosecutor concluded his closing argument, the trial justice called for a sidebar, and defendant moved to pass the case, arguing that the prosecutor was “basically testifying[,]” and making an “absolutely a hundred percent improper argument.” The defendant contended that the prosecutor improperly referred to that which he had personally observed, rather than to facts that were in the trial record. The defendant also argued that the prejudice caused by the statements was so significant that it could not be cured by an instruction. The state responded that the prosecutor’s remarks stemmed from defendant’s conduct and demeanor when Veronica left the stand—all of which occurred in the presence of the jury. The state further argued that, even if the remarks were inappropriate: “It’s only argument. I think the [c]ourt can instruct on that. I think a curative instruction would be fine. The [c]ourt is going to give an instruction that it’s only an argument. It’s not to be considered as evidence.”

The trial court held the remark and gave a curative instruction, to which the defendant did not object.

The court

We are of the opinion that the prosecutor’s statements exceeded the “considerable latitude” he was allowed because his statements were not based on evidence or testimony adduced at trial, were extraneous to the issues in the case, and had the potential for unfair prejudice. Lastarza, 203 A.3d at 1166. We are also satisfied that a curative instruction could not  overcome the prejudice in this case. Thus, we conclude that the trial justice erred in denying defendant’s motion to pass the case.

An issue involving the presence of Bikers Against Child Abuse at the trial

We need not reach the merits of defendant’s BACA-related contentions, because these claims are procedurally infirm. The defendant did not object to the presence of BACA members in the courtroom during Veronica’s testimony, nor to Veronica wearing a BACA vest, until after Veronica testified. And defendant declined the trial justice’s offer to give a curative instruction to the jury about the presence of the BACA members in the gallery. The defendant did not move for a mistrial, propose an alternative curative instruction, or provide any substantive feedback on the proposed instruction.

Warwick Post reported on the sentencing.

During the trial, the State proved that on Aug. 4, 2015, Bozzo molested a seven-year-old female known to him.  The victim disclosed the abuse to her mother and grandmother, who in turn reported the abuse to the police in early September.

On Sept. 2, 2015, Bozzo was arrested by the Rhode Island State Police for possession of child pornography. He pleaded no contest to the charge on May 9, 2016 and was sentenced to four years suspended with probation plus additional conditions prohibiting access to computers and the Internet as well as being ordered to have no contact with children.

(Mike Frisch)

Prior Discipline Leads To Suspension

The Iowa Supreme Court rejected a proposed reprimand and suspended an attorney

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against attorney T.J. Hier charging her with violating Iowa disciplinary rules in connection with her handling of a disputed attorney fee payment in what she aptly describes as a “hotly contested, emotional family law matter.” A division of the Iowa Supreme Court Grievance Commission found that Hier violated several rules but that the Board failed to prove several other rule violations. The commission recommends a public reprimand. The Board seeks a suspension. Hier requests a private admonition. We agree with the commission’s findings as to Hier’s rule violations, but we disagree with the commission’s recommended sanction. In light of Hier’s prior disciplinary history, we suspend her license to practice law for thirty days.

Background of the attorney

Hier obtained her Iowa law license in 1997. She began her career in private practice in Newton, and she served as an assistant county attorney in Jasper County. She had an inactive law license from 2001 to 2005. She resumed practicing law solo out of her home in Baxter in 2006. She now practices in the areas of criminal, juvenile, and family law. Hier is under contract with the state public defender’s office for criminal and juvenile court appointments. She represents many clients pro bono and serves other low-income clients. She volunteers as a mock trial coach and for domestic violence victim groups, her church, and the Special Olympics. Hier is legally blind, having lived nearly her entire life with Stargardt disease, a rare macular degeneration that requires her to use magnification techniques and devices to read documents.

The attorney had been subject to discipline on five prior occasions.

Here she deposited an unearned $750 fee in her operating account

We reject Hier’s claim that the $750 was hers to keep upon receipt  as a fee payment in settlement of the contempt action.

Sanction

We must decide the appropriate sanction for Hier’s failure to place the disputed funds in her CTA pending resolution of Van Dorn’s claim. The commission recommended a public reprimand. The Board argues for a suspension. Hier requests a private admonition. If this were Hier’s first disciplinary transgression, no suspension would be warranted. But Hier already has had four prior public reprimands and a suspension...

Hier’s most recent public reprimand in December 2017 was for violating some of the same trust account rules she violated here, and yet for the next six months, Hier persisted in refusing to place the disputed funds in her CTA. We consider the December 2017 public reprimand to be prior discipline because Van Dorn’s counsel renewed his demands for return of the disputed funds in January and March 2018. Hier paid back half of the disputed amount but neglected to place the balance in her CTA.

Thus

After considering all of the relevant mitigating and aggravating factors here, we return to the most significant aggravating factor, Hier’s disciplinary history, and we determine that a thirty-day suspension is appropriate.

(Mike Frisch)

A Rich History Of Comparable Prior Cases Leads To Disbarment Of Former New Jersey Judge

The New Jersey Supreme Court has disbarred an attorney for misconduct as a judge.

The order also permanently disqualifies from holding judicial office.

The Disciplinary Review Board described the criminal matter that eventually led to the attorney's completed of a pretrial intervention program and his future disqualification from judicial office

During his guilty plea allocution, respondent admitted that, from January 2010 through October 2015, while serving in public office as a municipal court judge in nine jurisdictions, he had systematically falsified official court records in motor vehicle cases. Specifically, respondent admitted that he routinely suspended mandatory motor vehicle fines in cases and, instead, substituted phony, baseless contempt of court charges in their place, knowing that his criminal scheme would steer one hundred percent of the contempt proceeds to the towns over which he presided. In contrast, mandatory motor vehicle fines were required to be divided between the respective towns and Monmouth County. Respondent further admitted that, if challenged by a defendant, he often would revert contempt charges to mandatory fines, but, on one occasion, threatened jail time for a defendant who had raised such a challenge. Moreover, respondent admitted that he would improperly apply defendants’ bail money toward the phony contempt charges, without notice or due process for those defendants.

Respondent further admitted that the purpose of his criminal scheme was to use his authority, in his public office, to direct maximum revenue to the towns where he presided as a municipal court judge, and that, to conceal his wrongdoing, he typically falsified the contempt charges outside of the presence of the defendants and their counsel.

Respondent admitted that his scheme was successful and, thus, deprived Monmouth County of its fair share of motor vehicle fine revenue. Finally, respondent admitted that he continued his scheme, even after a March 7, 2014 meeting with his superiors to discuss his contempt of court practices. Although he began assessing smaller phony contempt fines, he continued to steer funds to his preferred jurisdictions, until his suspension from the bench, on October 23, 2015.

What struck me most about the 30-page DRB recommendation was the plethora of prior cases involving ticket-fixing New Jersey judges.

The discipline imposed in cases involving similar misconduct in connection with municipal court proceedings has ranged from a reprimand to disbarment, depending on the facts of the offense, the presence of other unethical conduct, and the analysis of aggravating and mitigating factors.

The attorney sought a lesser sanction but

respondent argues that, given the widespread abuse of contempt of court fines by municipal court judges in New Jersey, it would not be fair to "single [him] out" and impose disbarment for his conduct...

Despite respondent’s protestations of being singled out, the evidence clearly and convincingly illustrates that he engaged in an egregious, systematic scheme of criminal conduct, while serving in public office.

(Mike Frisch)

Lawyer-Landlord Sanctioned For Collection Efforts

The Ohio Supreme Court has ordered a conditionally-stayed suspension of an attorney for conduct as a landlord who was attempting to collect unpaid rent

Following the sale of the property, Bruce began to e-mail and call the Zettses regarding their outstanding rent payments. On June 12, 2017, having received no response, Bruce sent Laura an e-mail to inform her that he would file a civil action against her if he did not receive payment by June 19. The e-mail further stated: “As I’m sure you are aware, under Ohio law, it is a felony to pass bad checks in the amount you have bounced in my accounts over the last six months. * [Y]ou have failed to deposit good funds to remedy. If you fail to make the payment described above, I will be forced to file a police report with the Medina Police Department.”

On June 19, Bruce followed up with a text informing Laura that if she did not deposit $3,010 into his account that day, he would file a lawsuit and a police report against her and Greg. That same day, Laura’s employer, attorney Vincent Stafford, called Bruce to discuss the matter, thereby putting Bruce on notice that the Zettses were represented by counsel.

On June 20, Bruce e-mailed Stafford demanding a payment of $4,515 to avoid civil and criminal litigation. Stafford informed Bruce that the Zettses contested his allegations and cautioned him that his threats to have the Zettses prosecuted while he pursued his civil claims were “grossly inappropriate.” Bruce replied to Stafford, stating that his comments about filing a police report were not threats and that he had “very clearly and explicitly laid out exactly what I intend to do if the Zetts[es] do not pay me what they owe me.” He also reiterated that Laura had committed a felony.

On July 21, Bruce filed a civil complaint against the Zettses in the Medina County Municipal Court. He continued to communicate directly with the Zettses after filing the complaint—even after September 1, when attorneys Mark Owens and Natalie Grubb entered an appearance on behalf of the Zettses and filed a motion for leave to plead. In responding to a request for information from Owens and Grubb, Bruce renewed his threat to file criminal charges against the Zettses. And he reiterated that threat during a November 8 pretrial conference, maintaining that such a threat was “only impermissible if you have no basis.”

The Zettses answered Bruce’s civil complaint and asserted several counterclaims against him, and in January 2018, Bruce e-mailed their counsel an offer to settle the matter for $2,000. The Zettses rejected the offer.

On February 1, Bruce filed a criminal complaint against Greg Zetts. He e-mailed a copy of the complaint to Laura and the Zettses’ counsel and offered to drop the criminal charges in exchange for a payment of $4,000 and a mutual release of all claims. The following week, he sent Laura and the Zettses’ counsel a letter stating, “I just received the attached letter from the Supreme Court of Ohio Disciplinary Counsel’s office. It appears Ms. Zetts filed a grievance against me. Of course, the grievance was dismissed, but I demand to know immediately the basis for Ms. Zetts’ grievance. I do not take kindly to meritless grievances * * *.”

The day before Greg Zetts’s arraignment, his criminal-defense counsel sent Bruce an e-mail offering $3,150 to settle the matter. Bruce replied, stating that he would accept the offer provided that the Zettses agreed to release all claims against him. He sent a copy of his response directly to Laura without Owens and Grubb’s permission. After Owens and Grubb attempted to negotiate an additional matter to settle the civil action, Bruce informed them that he and Laura had already verbally agreed to resolve the dispute. That same day, he asked Laura to confirm by text message that she and Greg had agreed to pay $3,150 in monthly payments of $500 in exchange for a full mutual release of all claims that they had against each other.

 Several days later, Owens and Grubb informed Bruce that the Zettses were willing to settle Bruce’s civil and criminal claims for $3,150 but that they were unwilling to withdraw their counterclaims against him. They also advised him that attorneys are not permitted to threaten criminal prosecution to gain an advantage in a civil matter. Bruce replied that his actions were permissible and that he planned to enforce the agreement that he had negotiated directly with Laura without Owens and Grubb’s knowledge.

The criminal charges against Greg Zetts were dismissed on March 27, 2018. That day, Bruce entered into a confidential settlement agreement and release with the Zettses in which they represented that they had not filed any claims, complaints, charges, or lawsuits against Bruce with any governmental agency, this court, or any other court and that they would immediately withdraw any claims they may have filed against Bruce. The next day, Laura e-mailed relator and asked to withdraw the grievance that she and Greg had filed against Bruce.

The violations

The parties stipulated and the board found that Bruce’s conduct violated Prof.Cond.R. 1.2(e) (prohibiting a lawyer from presenting, participating in presenting, or threatening to present criminal charges solely to obtain an advantage in a civil matter) and 4.2 (prohibiting a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or a court order). They also agreed that his inclusion of a provision in the settlement agreement that prevented the Zettses from filing a grievance with a disciplinary authority and required them to withdraw any pending disciplinary grievances violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). We adopt these findings of misconduct and, in accord with the parties’ stipulations, dismiss one remaining alleged rule violation. 

Sanction

Having reviewed the record and considered the unique combination of ethical violations and aggravating and mitigating factors present in this case in light of our precedent, we accept the board’s analysis and agree that a conditionally stayed one-year suspension is the appropriate sanction in this case.

(Mike Frisch)

The Ins And Outs Of Leining In

Dan Trevas summarizes a decision issued today by the Ohio Supreme Court

An insurer that settles a personal-injury claim with a victim who discharged his lawyers before a lawsuit is filed has no obligation to distribute a portion of the settlement to the lawyers for their prior work. Instead, the law firm must take legal action against its former client to get paid, the Ohio Supreme Court ruled today.

In a unanimous opinion, the Supreme Court ruled that lawyers can obtain the help of a court to enforce their ability to get paid for legal work through a “charging lien” — an attorney’s lien on a claim that the attorney has helped the client perfect — when a case is [filed]. But when no case is filed, the lawyers cannot successfully bring a separate action to make the opposing party deduct money from the settlement to pay the lawyer’s claim for services.

Writing for the Court, Justice Sharon L. Kennedy wrote that a charging lien “follows the fund,” not the entity that paid it.  When Progressive Insurance paid a former client of law firm Kisling, Nestico & Redick (KNR) before a case was filed against Progressive, the money transferred to the former client. Progressive had no obligation to ensure the firm received any portion of it, she concluded

The Court’s opinion stated that for well over a century Ohio courts have recognized the ability of attorneys to use charging liens to ensure payment from clients after a court case concludes. But unlike the majority of states, Ohio has no statute that guides the enforcement of charging liens, and instead relies on common law. Under common law, the lawyer can seek “equitable relief” from the client.

Today’s decision reversed an Eighth District Court of Appeals decision, which found that since Progressive was “on notice” that KNR was seeking payment for its work on the matter even before any lawsuit was filed, KNR could file a lawsuit against Progressive for its share of the out-of-court settlement.

Accident Victim Signs Law Firm’s Fee Agreement
Darvale Thomas was injured in an auto accident caused by a man who was insured by a subsidiary of Progressive. In July 2014, Thomas entered into a contingent-fee agreement with KNR that entitled the firm to 25 percent of all amounts recovered and, in order to secure payment for its services, gave the firm “a charging lien upon the proceeds of insurance proceeds, settlement, judgment, verdict award, or property obtained” for Thomas.

KNR and Progressive began negotiating, and the insurer offered to settle for $12,500. Thomas fired KNR, and in July 2015, Thomas settled the claim himself with Progressive for $13,044. A week before the settlement, KNR informed Progressive that Thomas discharged the firm, and that it was claiming a lien against any settlement funds paid to Thomas. Progressive made no promise to KNR to protect the lien.

Progressive paid the settlement to Thomas. Thomas did not pay KNR its attorney fees or expenses KNR said it incurred. KNR sued Thomas, Progressive, and the driver who caused the accident. The Cuyahoga County Common Pleas Court granted a default judgment against Thomas to KNR and dismissed the case against the driver.

The court ruled that Progressive failed to protect KNR’s charging lien. Because the firm and the insurer were negotiating, and KNR informed Progressive about the lien, Progressive had a duty to protect KNR’s interest. The parties agreed KNR was owed about $3,400, and the trial court granted KNR summary judgment for the amount it was owed.

Progressive appealed the decision to the Eighth District, which affirmed the trial court’s decision. The Eighth District ruled that under Ohio law, the charging lien KNR had against Thomas became binding on Progressive because Progressive had notice of its existence.

Progressive appealed the decision to the Supreme Court, which agreed to hear the case.

Liens Long Recognized by Courts
The Court’s opinion explained that the philosophy behind charging liens is that “an attorney who has not been paid for his or her legal services is entitled to receive payment for those services from a judgment or fund that was created through his or her efforts.” Charging liens have long been supported by courts to insure that lawyers are paid “out of the fund to be distributed” when there is a final judgment or decree in a case. To enforce a lien, an attorney must have a contract with the client and there must be funds recovered by the attorney. The attorney must provide notice of an intent to enforce the lien and seek to enforce it in a timely manner.

Because a lien is filed against the “fund” and not a person, the nature of any lawsuit is to obtain money from an identifiable fund created by a judgment or settlement, the opinion stated. Typically, the “fund” is created while a case is under the jurisdiction of the court after a lawsuit has been filed and the parties work toward a settlement, or litigate the case until there is a judgment, the Court explained.

In contrast, KNR and Progressive were never involved in a lawsuit regarding Thomas.

“Thomas never filed a personal-injury lawsuit, and therefore, there was no involvement by a court and there was no existing action in which KNR could pursue its claim to a portion of the fund created by the settlement,” the opinion stated.

KNR filed its lawsuit after the fund was created, and the Court considered whether Progressive controlled that fund. The Court ruled the fund was created when Progressive paid Thomas and Thomas agreed not to sue Progressive for additional payment.  The money was out of Progressive’s hands when KNR attempted to assert its charging lien, and KNR had no right to seek relief from the insurer, the Court concluded.

The Court remanded the case to the trial court for further proceedings.

2018-0682. Kisling, Nestico & Redick LLC v. Progressive Max Ins. Co., Slip Opinion No. 2020-Ohio-82.

View oral argument video of this case

(Mike Frisch)

The Buck Includes Fitness

A 48-page per curiam opinion of the District of Columbia Court of Appeals suspends an attorney for 60 days with fitness, notwithstanding a "no fitness" recommendation of its Board on Professional Responsibility

In a report consolidating disciplinary cases heard by two Hearing Committees, the Board on Professional Responsibility (the "Board") concluded that respondent, Gregory L. Lattimer, committed multiple violations of the District of Columbia Rule of Professional Conduct 1.4(a) (communication with client) in the course of representing two clients in the District of Columbia, as well as violations of the Virginia Rules of Professional Conduct 1.1 (competence), 1.3(a) (diligence), and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), in the course of representing a third client in Virginia. The Board recommended Mr. Lattimer be suspended for sixty days, with the requirement that Mr. Lattimer pay restitution with interest to the family of one of his clients and provide proof of payment prior to reinstatement. We agree with the Board’s conclusions that Mr. Lattimer’s conduct violated the District of Columbia and Virginia Rules and adopt the Board’s recommendation as to sanction, except that we additionally impose a fitness requirement.

As to the Court's sanction responsibilities

Ultimately, "the buck stops here."

Why the board got the fitness issue wrong

Three broad concerns lead us to conclude that imposition of a fitness requirement is necessary in this case: (1) Mr. Lattimer’s adamant refusal to accept responsibility and his corresponding willingness to blame any deficiencies in his representation on his clients; (2) his decision to file a patently frivolous lawsuit against a former client; and (3) his repeated practice before multiple tribunals of presenting a revisionist narrative of his actions.

First, Mr. Lattimer’s failure to acknowledge wrongdoing and accept responsibility pervades his arguments to this court. He asserts he committed no rule violations and that the determinations by the Board to the contrary are without foundation. Specifically, Mr. Lattimer argues "[t]here was no evidence to support  a finding that [he] improperly exercised his judgment in prosecuting the claim of Denise Wilkins"; "[t]here was no evidence to support a determination that [he] engaged in dishonesty with respect to an argument made to a tribunal" in the Wilkins case; the Board and the Hearing Committee’s determination that he failed to adequately investigate the Wilkins case "is not supported by any evidence of any kind"; the "contention" that he failed to engage an expert in the Wilkins case in a timely manner "has no basis in fact, law[,] or logic"; and that "[t]he Hearing Committee had no basis upon which to find that [he] failed to communicate" with either Ms. Cooper or Mr. Strange. (emphasis added).

Instead of accepting responsibility for his misconduct, Mr. Lattimer seeks to blame others, most frequently his clients. He blames Mr. Strange, who was indigent and incarcerated, for only calling collect instead of using other means of communication. See supra note 4. He asserts Ms. Cooper was a difficult client, while ignoring the root cause of the problem: his failure to adequately communicate with her. Most shocking, Mr. Lattimer now claims that the Wilkins case was flawed from its inception because (1) his client, Ms. Wilkins, “had caused [her son, Mr. Davis,] to be at Central State Hospital,” and (2) Mr. Davis was an unstable and violent individual.

We are extremely concerned that Mr. Lattimer would insinuate that Ms. Wilkins was in some part responsible for her son’s killing by another patient simply because she called the authorities when her son was in crisis, which eventually led to his hospitalization. With Mr. Davis in its custody, Central State Hospital was responsible for his care and protection; and, as Mr. Lattimer well knows, an official state report concluded that his death was the result of “substantiated” “staff neglect.” We are similarly dismayed by Mr. Lattimer’s graphic description of Mr. Davis’s behavior while in the throes of mental illness and his insinuation that Mr. Davis’s violent behavior precipitated his death. As a society, we commit individuals to psychiatric facilities when mental illness has rendered them a danger to themselves or others; and, for the duration of their commitment, it is the responsibility of the facility to keep them and others safe. Mr. Lattimer’s arguments about Ms. Wilkins and her son are denigrating as well as diversionary. We cannot say if Ms. Wilkins could have ultimately won her case. But we know why she lost: Mr. Lattimer failed to timely name as a defendant the individual who was the director of the hospital at the time of Mr. Davis’s death as required by his own theory of the case, and he failed to timely file his expert report. In short, the faults apparent in Mr. Lattimer’s representation are his alone, and his refusal to accept responsibility and his inappropriate blame-shifting are grounds to question his fitness.

He also had sued a client for defamation for statements made to the client security fund.

Such statements are immune

In addition to his failure to accept responsibility, his efforts to shift blame for his shortcomings to his clients, and his decision to bring a patently frivolous lawsuit against client, we add one more consideration: Mr. Lattimer’s persistent willingness to revise history and take whatever position best suits his needs at that particular time, as evidenced by his litigation of this disciplinary matter.

(Mike Frisch)

Permanent Resignation Accepted In Louisiana

The Louisiana Supreme Court accepted an attorney's permanent resignation.

The Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent, alleging that he engaged in the unauthorized practice of law. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Shreveport Times reported  last June

A local political blogger and occasional columnist was sentenced in late May to pay a $300 fine and court costs on a solicit for prostitution charge.

John Settle was arrested in March after he reportedly gave an undercover officer $200 to have sex with him at a Shreveport hotel located in the 1400 block of East 70th Street, according to a previous report which references an arrest report published by radio station KEEL News.

Settle withdrew his former plea of not guilty “and pled guilty to the charge,” read Caddo Parish Court minutes for Thursday, May 30.

Settle was sentenced to pay the fine and court costs. Execution of the sentence was deferred to Nov. 15, according to the court minutes.

Settle previously told The Times that the arrest was part of a sting operation.

The Louisiana Record had a June 2019  story on prior disciplinary matters involving the attorney.

Suspended Bossier City attorney John E. Settle Jr. could receive no further sanctions following a recent recommendation by a Louisiana Attorney Disciplinary Board (LADB) hearing committee regarding allegations that Settle practiced law while suspended.

In its four-page recommendation issued issued June 6, LADB Hearing Committee No. 18 concluded that though Settle "may have acted a bit carelessly" and he "came dangerously close to the boundary line" of violating professional conduct rules, his alleged misconduct caused "no actual harm to any of the parties or participants." 

The recommendation also said Settle "should be cautioned that the filing of these charges by the office of disciplinary counsel were not unreasonable considering the circumstances."

Settle had been charged with engaging in unauthorized practice of law and engaging in conduct that involves dishonesty, fraud, deceit or misrepresentation.

While the committee found that the testimony and evidence in the matter "does not exonerate" Settle, it concluded that the evidence presented "did not reach the clear and convincing standard" to show Settle violated professional conduct rules.

The recommendation was signed by committee Attorney Member W. David Hammett. Committee Chair Barry W. Dowd and Public Member James D. Myers concurred in the recommendation.

Settle was admitted to the bar in Louisiana on April 26, 2012, according to his profile on the Louisiana State Bar Association’s website.

Settle's disciplinary history indicates that in February 2015, the Louisiana Supreme Court accepted a joint petition for consent discipline reached between Settle and the office of disciplinary counsel and publicly reprimanded the attorney. In that matter, Settled acknowledged he "disrupted the courts of two judges and compromised the confidentiality of a Judiciary Commission investigation."

In October 2016, Settle was placed on a fully deferred year-and-a-day suspension for violating a recovery agreement and testing positive for alcohol.

(Mike Frisch)

Was Disbarment Necessary?

The Oklahoma Supreme Court rejected a proposed lesser sanction and disbarred an attorney 

The Complainant, Oklahoma Bar Association, charged the Respondent, Laurie Jean Miller, with three counts of professional misconduct that included failure to competently represent her clients, failure to be diligent in her representation of her clients and failure to communicate effectively with her clients. In addition, the Complainant charged the Respondent with mishandling of client funds, violating rules of professional conduct and the commission of an act contrary to prescribed standards of conduct. Having found clear and convincing evidence to support all three counts, the Trial Panel recommended the Respondent be suspended for eighteen months. We hold there is clear and convincing evidence that the totality of the Respondent's conduct warrants disbarment. The Respondent is ordered to pay the costs as herein provided within ninety days after this opinion becomes final.

The attorney

 The Respondent is an active member of the Oklahoma Bar Association and is currently in good standing with the Association. For most of her career she has been a sole practitioner but has also shared offices with other attorneys. She left private practice in 2017 and took a position with an insurance company where she is currently employed.  The Complainant's allegations arise from the Respondents conduct towards several of her clients she had while in private practice. The matters involved are related to three separate governmental tort claims actions.

The most serious charges involved the mishandling of entrusted cash that she testified she had put in a safe for safekeeping.

The funds were not used to pay the client's medical bills as was intended

The Trial Panel members also questioned the Respondent about the $4,600.00 she put into her safe and why she did not just pay Murcia when she first met with the OBA. The Respondent testified, "[w]ell, obviously, I mean, there--there was no money in the safe. I mean I don't know what happened to the money during this period. I just don't know."  She could not even remember when she first discovered the money was missing.  She also testified she did not inform Murcia that the money was no longer in her safe.  The record does not reflect she reported the missing money as stolen.

Sanction

The Respondent has offered evidence to mitigate her discipline. She ultimately paid the $4,600.00 to Murcia after the grievance was filed. She was the primary care giver to her ailing father prior to his death during the time she represented Murcia, Sanders and Solis. Her father-in-law also died sometime during this period. She testified to having physical and emotional problems during this period which included back surgery, anxiety and depression. The Trial Panel reviewed these mitigating factors but believed the one year suspension recommended by the Complainant was not enough. It recommended she be suspended for eighteen months.

We agree with the Trial Panel that the Complainant's recommendation does not provide adequate discipline. However, we disagree with its recommendation. Even considering the Respondent's mitigation evidence as well as the fact that the record is devoid of any previous discipline, the totality of her misconduct is disturbing. It is our difficult duty to withdraw a license to practice law but we shall if necessary to protect the interest of the public and the legal profession as a whole. The record is laden with inconsistent statements and unbelievable explanations. Most disturbing of which is the Respondent's difficulty in discerning the truth. Her testimony that the false statements she made to her client were somehow true at the time she made them is incredulous. A mistaken statement may be made; however, truth is not malleable. Honesty in the performance of a lawyer's professional activities is the foundation upon which his or her license stands. We hold the sum of the Respondent's misconduct warrants disbarment. Accordingly, it is ordered by this Court that the Respondent be disbarred and her name be stricken from the roll of attorneys licensed to practice law in this state.

Three justices dissented

This court must impose discipline in a manner consistent with that imposed on other attorneys whose actions are similar to avoid disparate treatment.  Mitigating circumstances are also considered in assessing the appropriate discipline.  There are mitigating circumstances in the third and most extensive complaint, the Murcia complaint. The respondent moved her office three times, had major back surgery, was suffering from depression, and lost family members during the tenure of both the Murcia matter and during the investigation by the Bar of the complaints. She did not take a fee for her work in obtaining money from the original counsel in the matter who failed to timely file the original case. The monies received were in cash, and the respondent placed the monies in her office safe for safekeeping. There is no evidence of the conversion of funds by Miller. In the other two matters, there was another attorney involved who was involved in the legal work, with respondent involved in the administrative work of the cases. Avenues of legal redress remain for the complainants in these matters...

The Court's responsibility in an attorney discipline proceeding is not to punish, but to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, the courts, and the legal profession. Discipline is imposed to maintain these goals, rather than as punishment for the lawyer's misconduct. Every disciplinary proceeding presents unique issues. However, based on the history of at least somewhat comparable matters, the discipline imposed by the majority appears erratic and inconsistent.

(Mike Frisch)

Less Than Disbarment For Attorney Who Resigned In Massachusetts

An attorney who had resigned with charges pending in Massachusetts was suspended for three years as reciprocal discipline by the New York Appellate Division for the First Judicial Department

The Massachusetts Board of Bar Overseers (BBO) filed a statement of disciplinary charges alleging that respondent had committed various acts of professional misconduct, including negligent (i.e., non-venal) misappropriation of client funds and failure to maintain required escrow account records. Specifically, the statement asserted that, between October 2012 and February 2015, respondent billed a client, a wealthy London resident formerly married to a billionaire hedge fund financier, over $1.4 million for respondent's non-legal investigative services, including an investigation of the ex-husband's alleged market abuse and other alleged financial misconduct. The fee was excessive because the investigation produced no benefit to the client, and respondent billed at her regular rate of $700 per hour for 150 hours of a paralegal's work, and for respondent's time responding to 4,000 text messages from the client that were not material to the representation, and which totaled approximately $300,000 in violation of the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.)1.5(a) (prohibition against charging and/or collecting an excessive legal fee).

The statement further averred that, between December 1, 2012 and July 31, 2013, respondent, who periodically received retainer payments from the client, withdrew from her escrow account $170,236.57 more toward the client's fees than had been deposited, in violation of Mass. R. Prof. C. 1.15(b) and 1.15(c) (negligent misuse of client funds). In September 2013, respondent facilitated a financial investment by the same client in a pharmaceutical company in which respondent was an executive and board member, but respondent failed to disclose that a portion of the client's investment funds might be used to pay respondent's compensation as a board member and that respondent's representation could be materially limited by her personal interests, constituting a conflict of interest in violation of Mass. R. Prof. C. 1.7(b) and 1.8(a)(l) (entering into business transaction with client without obtaining adequate informed consent in writing from client as to conflict of interest).

The statement additionally focused on respondent's representation, beginning in 2011, of multiple clients in federal court litigation related to a massive Ponzi investment scheme by Stanford International Bank, Ltd. Respondent's fee agreements with those clients provided for an excessive contingent fee of the awards received by the clients (for respondent merely filing out a two-page claim form), in violation of Mass. R. Prof. C. 1.5(a). As to some of these clients, respondent also failed to maintain adequate individual client ledgers, failed to credit retainers paid, and negligently debited from her escrow account amounts in excess of the retainers then on deposit (after the retainers had been exhausted), thereby misusing the funds of other clients in violation of Mass. R. Prof. C. 1.15(b) and 1.15(c). The statement acknowledged, however, that none of these clients was deprived of any funds.

The statement further outlined how, in 2015, respondent executed a settlement agreement of a fee dispute with a former client which contained an explicit provision that, as a condition of settlement, the former client was prohibited from filing a complaint with bar counsel. Both parties were represented by counsel but, in executing a clause in a settlement agreement requiring a party to refrain from filing a complaint with bar counsel, respondent violated Mass. R. Prof. C. 8.4(g) (failure without good cause to cooperate with disciplinary authorities), 8.4(h) (other [*2]conduct that adversely reflects on fitness as a lawyer), and MA S.J.C. Rule 4:01 § 10 (improperly conditioning settlement on not filing disciplinary complaint).

Finally, the statement alleged that, from December 2012 until September 2017, respondent maintained an IOLTA account for which she failed to keep: (1) required records, namely, timely or contemporaneous individual client ledgers reporting each receipt of funds, the dates thereof, and the amounts; (2) a ledger of bank fees and charges; and (3) a prompt or contemporaneous record in check register or clients ledgers of receipts and disbursements on behalf of clients, which resulted in inaccurate and unbalanced three-way reconciliations in violation of Mass. R. Prof. C. 1.15(f)(1)(B)-(E) (failure to maintain required bookkeeping records).

In response to the statement of charges, respondent, represented by counsel, tendered an affidavit in which she stated that she desired to resign from the practice of law in Massachusetts as a disciplinary sanction for the misconduct set forth by the BBO, waived her right to a hearing, and agreed not to contest the facts underlying the charges, the rule violations charged therein, nor the resulting discipline in Massachusetts or "in any other jurisdiction." The Massachusetts Office of Bar Counsel and the BBO recommended that respondent's resignation be accepted and, by order entered October 26, 2018, the Supreme Judicial Court of Massachusetts accepted respondent's affidavit of resignation as a disciplinary sanction and her name was stricken from the roll of attorneys.

The Attorney Grievance Committee sought disbarment

Respondent opposes the imposition of reciprocal discipline, emphasizing that her discipline in Massachusetts was the result of settlement. She asserts that many of the charges would not necessarily have been provable, and that, had the matter been litigated, any discipline would not have been greater than an admonition or censure for inadequate record keeping which would have allowed her to continue to practice law. She further claims that the Massachusetts disciplinary proceeding was largely the result of complaints from dissident shareholders in the pharmaceutical company in which she was an executive/shareholder, the goal of which was to gain advantage in a federal lawsuit they brought against her, which was ultimately dismissed with prejudice at the election of the plaintiff and without any finding of wrongdoing on her part.

Respondent also outlines certain mitigating circumstances. She claims that she spent over a year responding to the Massachusetts Bar Counsel's "dense requests for information on an almost monthly basis" which, in conjunction with the closing of her law practice and an IRS [*3]audit, reawakened traumatic childhood memories of the India-Pakistan War and, while she submits no medical evidence, caused her to develop post-traumatic stress disorder. Additionally, during the period at issue, respondent was in a state of grief and shock because her mother (for whom she was the primary caretaker) succumbed to brain cancer and passed away, and three weeks later her ex-husband suddenly died.

Here

Regarding respondent's substantive defenses, they are irrelevant in a reciprocal disciplinary proceeding, as noted above. Further, as a general rule, in reciprocal disciplinary matters, this Court gives significant weight to the sanction imposed by the jurisdiction in which the charges were initially brought (see Matter of Peters, 127 AD3d 103, 108-109 [1st Dept 2015]; Matter of Cardillo, 123 AD3d 147, 150 [1st Dept 2014]; Matter of Jaffe, 78 AD3d 152, 158 [1st Dept 2010]).

But

Turning to the allegations here, disbarment is not a sanction that would ordinarily be imposed under the circumstances. This Court has imposed sanctions ranging from public censure to suspensions of varying length for misconduct of the same general nature as that at issue here (see e.g. Matter of Peskin, 173 AD3d 47 [1st Dept 2019]; Matter of Teichberg, 121 AD3d 319 [1st Dept 2014]; Matter of Novins, 119 AD3d 37 [1st Dept 2014]; Matter of Edelman, 86 AD3d 96 [1st Dept 2011]; Matter of Fong, 308 AD2d 19 [1st Dept 2003]).

Notwithstanding respondent's decision to resign as a disciplinary sanction in Massachusetts, we find that, under all of the circumstances, including respondent's mitigation evidence, a suspension of three years is the appropriate sanction.

I dealt with a similar situation as disciplinary counsel in a hotly contested (all the way to cert denied) matter involving an attorney who resigned in Florida and failed to report it to the District of Columbia.

We learned of the Florida action through a report from the ABA National Lawyer Regulatory Data Bank. 

That report kept me mighty busy for several years. 

Reciprocal disbarment was imposed.

We conclude that because Day's resignation from the Florida Bar while a disciplinary proceeding was pending against her constituted “discipline,” and none of the exceptions to reciprocal discipline apply to her case, the Rules of the District of Columbia Bar require the imposition of reciprocal discipline.   We also conclude that Day's due process rights are not violated by the imposition of reciprocal discipline.

(Mike Frisch)

The Dormant Season

A complaint recently filed by the Illinois Administrator

 Respondent was employed at the Chicago law firm of Vedder Price, P.C., from 2005 (when he was hired to work as a summer associate) through October 2, 2019 (when his employment was terminated as a result of the events described in this complaint). During his time at the firm, Respondent was involved in the representation of a financial institution ("the client") in various finance and leasing matters involving other companies. The client's agreements with its lessees allowed for the firm's fees for services it provided the client to be billed to the lessees (i.e., the client's customers) under certain circumstances.

In 2009, the firm performed services for a separate client (a construction company) in connection with a contract dispute. The firm assigned that matter an internal number that it used for billing purposes, and Respondent was aware of that number because he was the billing attorney responsible for the matter. That billing number became dormant in 2011, about two years after the firm's involvement in the contract dispute ended.

Prior to January 17, 2018, attorneys and others at the firm performed services having a value of $23,782.50 for the client in connection with the novation of a lease from one lessee to another lessee (an affiliate of the original lessee). Around that time, Respondent instructed the firm's accounting department to reactivate the formerly dormant billing number associated with the matter referred to in paragraph two, above, and he fabricated a billing invoice addressed to the client's customer that asked the customer to pay the firm $23,782.50. Respondent later caused that fabricated invoice to be sent to the client's customer, which paid the full amount listed in the invoice to the firm.

When the firm received the $23,782.50 payment in response to the fabricated invoice, Respondent directed the firm's accounting department apply that payment as a credit to the formerly dormant billing account, which he controlled.

Respondent also caused the client to be billed separately for the legal services the firm provided in connection with the novation of the lease, using the client's actual billing number. When the firm received payment from the client, it applied that payment to the client's account.

Between January 31, 2018 and September 27, 2019, Respondent fabricated an additional eight invoices to the client's customers, each of which used the formerly dormant billing account number rather than the client's actual billing number. At least some of those invoices asked that payment be sent to Respondent's home rather than to the firm. As payments totaling $108,674 were received in connection with those invoices, Respondent caused those amounts to be transferred to the dormant account that he controlled. At the same time, Respondent continued to bill the client for the same legal services, and to apply any payments resulting from those invoices to the client's account.

Respondent did not tell anyone associated with the client or with the firm about the fact that he was billing both the client and its customers for certain legal services, or that he was using a formerly dormant billing number to receive payments resulting from the fabricated invoices.

In 2018 and 2019, Respondent caused business and personal expenses that he incurred (including golf fees, dining and travel expenses) to be charged against the formerly dormant account, and requested and received payment of at least $79,790.43 from that account. Respondent knew that neither the firm nor the client were aware that he was charging those expenses to the formerly dormant account, and that neither the firm nor the client had authorized him to use those funds or that account to pay for his business and personal expenses. Respondent's receipt and use of those funds constitutes conversion.

(Mike Frisch)

A Parents Of Impropriety

The New York Commission on Judicial Conduct has censured a full-time judge

notwithstanding that, as a full-time City Court judge, he was prohibited from practicing law, respondent appeared and acted as his daughter's attorney in a Family Court matter on three occasions and lent the prestige of his judicial office to advance the private interests of another by invoking his judicial title in several instances during his court appearances on November 5, 2015 and March 2, 2016.

In one appearance

During his appearance in court on March 2, 2016, respondent invoked his judicial office in two instances, stating:

1. "Now I'm her father as well as an attorney but I'm actually a judge. I can't practice law except in my own family cases."
2. "Now as a parent I learned one thing, and as a judge, when you say stay away to a young person, they often don't stay away."

Respondent's daughter was granted an order of protection and the matter was adjourned to April 7, 2016.

Sanction

While we believe that respondent's misconduct comes close to warranting removal, in accepting the jointly recommended sanction of censure, we have taken into consideration that respondent has admitted that his conduct warrants public discipline. We trust that respondent has learned from this experience and in the future will act in strict accordance with his obligation to abide by all the Rules Governing Judicial Conduct.

Dissent on sanction from Member Raskin

I concur with the majority determination and respectfully dissent as to the sanction. The facts in this case are akin to the knowing and tactical misconduct in Matter of Ayres, 30 N.Y.3d 59 (2017). I find unavailing respondent's assertion that he was unaware his representation contravened established prohibitions. Respondent's conduct was neither inadvertent nor miscalculated. Rather, it was purposeful and strategic. I would recommend removal based upon the principles established in Ayres. 

(Mike Frisch)

Short Suspension Required "To Deter Others"

A recent report and recommendation from the Illinois Review Board

The Administrator charged Respondent with misconduct arising out of her representation, in a criminal case, of a man with whom she had a decades-long close personal relationship.

The Hearing Board found that Respondent had committed some but not all of the charged misconduct. It found that she made false statements to a court by misrepresenting her client's monthly income in connection with bond proceedings, in violation of Rules 3.3(a)(1) and 8.4(c); and communicated with and gave legal advice to an unrepresented person whose interests were potentially adverse to those of her client, in violation of Rule 4.3. It recommended that she be reprimanded for her conduct.

The Administrator appealed, challenging the Hearing Board's sanction recommendation and asking that she be suspended for 90 days.

The Review Board recommended that Respondent be suspended for 30 days for her misconduct. It recognized the unique circumstances involved in the matter, which, like the Hearing Board, it found mitigating. However, it determined that Respondent's actions in making false statements to a court on three separate occasions warranted more than a reprimand. It found that a 30-day suspension would recognize the seriousness of Respondent's misconduct but would not be so harsh as to constitute punishment.

The client was charged with telephone harassment for allegedly making threats against three individuals

The charges against Respondent arose out of her representation of Danny French, with whom Respondent had a close personal relationship. Respondent began dating French in 1993, when she was 17 years old. They lived together from 2002 until French's death in 2017.

Sanction

The misconduct in the present matter is similar to the misconduct in the cases cited by the Hearing Board, as well as the additional authority noted above, in that the false statements occurred during the course of a single representation and over a short period of time; did not extend, delay, or cause additional judicial proceedings; and did not involve false statements to the ARDC. As in most of those cases, Respondent's conduct was not self-serving.

And while the mitigation in those cases is arguably stronger than that in this matter, the Hearing Board clearly was struck by the unique circumstances of this matter, and considered those circumstances to be strongly mitigating and indicative of the fact that Respondent is not likely to commit misconduct in the future.

We, too, are struck by the unique circumstances in this matter, and are convinced that Respondent will not engage in misconduct again and poses no risk whatsoever to clients. However, we believe that her actions in making false statements to a court warrant more than reprimand, regardless of her reasons for making them and irrespective of the fact that her false statements did not appear to affect the court's decisions. We simply cannot countenance an attorney being anything less than entirely honest and forthcoming with a tribunal, no matter the reason for or context of the lack of candor.

We believe that a short suspension would recognize the seriousness of Respondent's misconduct, which included deliberately misrepresenting material facts to the court on three occasions, including once in a brief, on the subject of her arguments before the court, but would not be so harsh as to constitute punishment.

Accordingly, we recommend that Respondent be suspended for 30 days for deliberately making false statements to a court on three occasions. We find that this sanction is commensurate with Respondent's misconduct, consistent with discipline that has been imposed for comparable misconduct, and necessary to serve the goals of attorney discipline and deter others from committing similar misconduct.

(Mike Frisch)

No Conversion In Handling Entrusted Funds; New Jersey Rejects Non-Client Claims

The New Jersey Supreme Court rejected claims arising from Fox Rothschild's handing of entrusted funds per the court's head note

This appeal involves claims of conversion and breach of fiduciary responsibility leveled at an attorney, Anthony Argiropoulos, Esq., and his then-law firm, Fox Rothschild LLP (collectively, “the firm”), regarding funds wire-transferred to the firm’s trust account.

As alleged in this matter, an intermediary entity wired funds for plaintiff Moshe Meisels, a London-based real estate investor, to the firm’s trust account in connection with a real estate deal in which Eliyahu Weinstein, the firm’s client, was engaged. Prior to the commencement of this litigation, the firm was admittedly unaware of Meisels’s  existence. It is undisputed that Meisels did not speak to, or otherwise communicate with, Argiropoulos or Fox Rothschild.

In his pleadings, Meisels alleges that he had Rightmatch Ltd., an entity located in London, transfer over $2.4 million to the attorney trust account of Fox Rothschild, Weinstein’s attorneys at the time. Rightmatch wired the money in two transfers, executed by Cambridge Mercantile Group. Confirmations for each transfer were sent, “[f]or and on behalf of Cambridge Mercantile Corp.,” to Rightmatch, with a single line indicating “Attn: Moshe Meisels.” The transfers themselves did not identify plaintiff as the funds’ owner or include any instructions regarding limitations or conditions.

Defendants distributed the funds as their client directed. Meisels alleges that Weinstein instructed the firm to distribute the funds for purposes other than the agreed upon real estate transaction. According to Meisels, the purchase of the Irvington property was never consummated; Weinstein defrauded Meisels and his related co-plaintiffs.

Plaintiff commenced this action in 2012 and, after discovery and the filing of an amended complaint, defendants sought summary judgment on the grounds that (1) plaintiff did not produce evidence to support ownership of the funds that Rightmatch wired to Fox Rothschild and therefore lacked standing to sue; and (2) plaintiff had no contact with anyone from Fox Rothschild and, therefore, could not establish the essential elements of any of the claims.

The motion court granted summary judgment to the firm and dismissed the amended complaint with prejudice. The Appellate Division affirmed as to the fiduciary duty claim but reversed as to the conversion claim, rejecting defendants’ argument “that Meisels was required to show that he demanded the return of his property.”

The Court granted defendants’ petition for certification, seeking review of the Appellate Division’s judgment reinstating the conversion claim. 236 N.J. 67 (2018). The Court also granted plaintiff’s cross-petition, seeking review of the Appellate Division’s judgment dismissing the breach of fiduciary duty claim. 236 N.J. 44 (2018).

HELD: The firm did not breach any fiduciary duty where the firm was not made aware, nor did it have any basis on which it reasonably should have been aware, of plaintiff or of a claim by plaintiff to the funds. As such, there was no relationship between the firm and plaintiff on which a fiduciary duty was owed. On that issue, the Court affirms the judgment of the Appellate Division. However, defendants cannot be found to have engaged in conversion in this matter. Where, as here, a law firm lawfully holds in trust wired funds for its client’s real estate transaction, which funds are received with no limiting direction or instruction and for which the firm receives no demand from the nonclient, the firm’s disposition of the trust funds in accordance with the client’s instructions does not give rise to a claim for conversion. The Court rejects the reasoning that under these circumstances the obligation to make a demand is excused and reverses as to the conversion claim.

1. As officers of the courts, attorneys owe a duty of care that finds helpful benchmarks in the Rules of Professional Conduct (RPCs). Standing alone, a violation of the RPCs does not create a cause of action for damages in favor of a person allegedly aggrieved by that violation. In this matter, the RPCs provide relevant information for assessing the claimed violation of a fiduciary duty with which the firm is charged. RPC 1.15 addresses an attorney’s obligation to safeguard property in his or her possession, including property received from a non-client third party. (pp. 12-14)
2. Here, RPC 1.15 does not provide a pathway for finding a fiduciary duty that was breached by the firm. Meisels maintains that an attorney “owes a fiduciary duty to persons, though not strictly clients, who he knows or should know rely on him in his professional capacity.” However, case law extending an attorney’s duty to a third party not in privity with the attorney has been approached with care so as to be fair to all; generally stated, it is cabined by considerations of reasonableness. Meisels admits that defendants had no knowledge of his existence, had no contact with him, possessed no knowledge about any purported agreement between him and Weinstein, and made no representations to Meisels. It is simply not reasonable to expect a lawyer to have fiduciary obligations to an individual under such circumstances. Meisels produced no evidence to show that he relied upon defendants in their professional capacity. The circumstances of this case, moreover, offer no indicia that defendants endeavored to induce Meisels to rely on the firm. Inducement of reliance cannot be ascribed to the firm simply because the funds for its client’s commercial real estate transaction were permitted to be wired to and held in the firm’s trust account. In these circumstances, the firm’s disposition of the funds held in its trust account in compliance with the client’s instructions, as required by RPC 1.2, was not a breach of fiduciary duty. No fiduciary duty was owed by the firm to Meisels. (pp. 14-18)
   3. The Court traces the history of the tort of conversion. To determine whether a conversion has occurred, there must first be an assessment into whether defendant has independent dominion and control over the subject property. Additionally, where the defendant lawfully acquired plaintiff’s property, the plaintiff must show that he demanded the return of the property and that the defendant refused compliance. The demand is the linchpin that transforms an initial lawful possession into a setting of tortious conduct, if the demand is refused. Accordingly, in such circumstances, a demand is essential; a claimant must make a demand at a time and place and under such circumstances as defendant is able to comply with if he is so disposed, and the refusal must be wrongful. There are circumstances, to be sure, where demand may be futile, but that is and must be viewed as an exception. (pp. 18-22)
   4. Funds held in an attorney’s trust account for its client are the client’s funds, not the firm’s. Here, with no knowledge of a competing claim to the funds -- and, indeed, no knowledge whatsoever about Meisels and his role in the transaction -- the firm acted appropriately in adhering to the client’s directions. Meisels cannot prove that the firm itself exercised independent dominion and control over his funds. That requirement for a conversion claim is lacking in this matter. The lack of independent dominion and control, moreover, renders more serious the lack of demand here. The demand would have been the means to alert the firm that a competing claim existed and would have triggered the firm’s obligation to reasonably inquire further, and perhaps seek judicial assistance, before embarking on fulfillment of a client’s direction. Violation of the demand might then create the tort of conversion. Only when an attorney misdirects or misappropriates funds, or when an attorney has acted contrary to a known, competing claim -- or a competing claim that reasonably should have been known -- can there be an independent dominion or control over the funds by the firm to the repudiation of the rights of the proper owner. (pp. 23-25)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the Court orders the conversion claim DISMISSED. CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.

Oral argument linked here. (Mike Frisch)