Tuesday, May 28, 2024

Oh Sweet Blindness

A Hearing Report majority in a matter before the Massachusetts Board of Bar Overseers proposes a six-month suspension over a dissent favoring two years.

The fighting issue involved the Respondent's contention that he had not read a fee petition he had signed under oath.

The issue was uncovered in reporting of The Boston Globe.

This matter arises out of the fee petition submitted by the class action counsel in the State Street Bank litigation (the “Class Action”), captioned as Arkansas Teacher Retirement System v. State Street Bank and Trust Co., civil action 11-cv-10230-MLW, in the U.S. District Court for the District of Massachusetts. The Class Action case arose from alleged overcharges of clients by State Street Bank and Trust Co. (“State Street” or the “Bank”) through hidden mark-ups and the use of foreign exchange transactions. The law firm in which the respondent, Garrett J. Bradley, was then a partner represented the plaintiff class as co-counsel with other firms.

On November 30, 2021, bar counsel filed a petition for discipline against Bradley. An amended petition for discipline was filed on December 27, 2021. The amended petition for discipline charged that the respondent’s declaration in support of his law firm’s motion for the award of attorneys’ fees and expenses (Ex. 8) in the Class Action, which he signed under oath, contained knowingly false statements of fact and therefore was a violation of Fed. R. Civ. P. 11.  If, instead, the respondent had failed to read his declaration, bar counsel charged that the respondent violated Mass. R. Prof. C. 1.3 (lack of diligence). To the extent that he knowingly made the false statements and failed to correct them or take other remedial measures in a timely manner, the amended petition charged that he violated rules 3.3(a)(1), 3.3(a)(3), 3.4(c), 8.4(c), 8.4(d) and 8.4(h). To the extent that he failed to inform the District Court in an ex parte hearing of all material facts known to him that would enable the court to make an informed decision with respect to the lodestar cross-check method of the fee-approval process, the amended petition charged that the respondent violated Mass. R. Prof. C. 3.3(d).

Majority conclusions

The majority of the committee finds that had the respondent read the declaration carefully, he would have been aware that some or all the above statements were not accurate or, in the context of the proceeding, at least misleading. However, the majority of the committee credits his testimony that he did not read the declaration carefully enough to understand what he was signing was not accurate or was misleading. Bar counsel failed to introduce any evidence to the contrary...

The respondent admitted that he failed to do anything to verify the accuracy of the information contained in his declaration. (Tr. 84-85). Although the respondent testified that he relied on those who prepared the declaration to ensure that it was accurate, he agreed that, as the signer of the document and Thornton’s managing partner, “the buck stops with me. It’s my mistake.” (Tr. 86). We find that the respondent was therefore responsible for any errors in the declaration he signed and submitted to the District Court.

As a result

Relying on the truthfulness of the sworn declarations provided by the respondent and other counsel, the District Court approved the $75,000,000 fee request.

The respondent testified that, as a result of a Boston Globe investigation, he became aware, sometime between November 2 and November 10, 2016, that the firms of Labaton and Lieff Cabraser had also included, in aggregate, all the Staff Attorneys on their firms’ fee declarations. He therefore compared the three Exhibit As of the three firms side-byside and saw the duplication. (Tr. 101-105; Ex. 16). 12 The respondent said that he “saw right away that there [were] the same names with different rates at different firms, and [he] knew that something wasn't right.” (Tr. 103).

On November 10, 2016 (about a week after the District Court issued an order approving the $75,000,000 fee award), a Labaton attorney informed the District Court by a letter (“the Labaton Letter”) that inquiries from the media had caused class counsel to realize that they had inadvertently double-counted the hours of the Staff Attorneys. (Ex. 16 at p.1 ¶1). Labaton submitted this letter on behalf of itself, the Thornton firm, and Lieff Cabraser to explain this particular error. (Id.) This error inflated what had been represented to be their collective lodestar by more than 9,300 hours and more than $4,000,000. (Ex. 16; Ex. 1, Timeline at 002; Ex. 42C).

When the respondent compared the Thornton “Exhibit A” to his declaration against the others in November 2016, he must also have observed his declaration’s exhibit identifies these individuals (plus Michael Bradley) with the designation for their “Status” as “SA”. That stands for “Staff Attorney.” Neither Exhibit A nor the body of the declaration states any of these individuals actually were employed by or contracted to one of the other lead class counsel and that the Thornton firm at most reimbursed one or the other firm for some or all of the expenses associated with these lawyers. To the contrary, the body of the declaration states the persons on Exhibit A either were or had been employed by (or contracted to) Thornton such that it was responsible for their compensation and accordingly could “claim” the value of their time in its lodestar calculation. Respondent failed to correct these misrepresentations in November 2016.

Finding

Given the respondent’s testimony and the contemporaneous Labaton Letter submitted to the District Court on behalf of Labaton, the Thornton firm, and Lieff Cabraser, the majority of the committee credits the respondent’s testimony concerning how the cost-sharing arrangement worked in connection with the Staff Attorneys. Bar counsel introduced no evidence, at least that was made clear to the majority of the committee, demonstrating the representation in the letter from Lead Counsel to that effect was not accurate. That does not, however, excuse the respondent’s declaration represented to (or was understood by) the District Court as affirming the identified attorneys were “employees” of the Thornton firm. Whatever were the details of the cost-sharing arrangement, none of these people were employees of the Thornton firm.

After further revelations by The Boston Globe, a special master was appointed

Thornton and the other class counsel agreed to the appointment of Judge Rosen as master. (Ex. 42G). After an extensive investigation, Judge Rosen filed, on May 14, 2018, a 377- page “Report and Recommendations.” (Ex. 42K). After receiving the master’s report and recommendations, the court vacated the original $75,000,000 fee award. (Ex. 42I). 

In June 2019, the District Court conducted a three-day evidentiary hearing on objections to the report that had been filed by Thornton and other Class Counsel. (Ex. 42K). Following this hearing, the District Court reduced the original fee award from approximately $75,000,000 to $60,000,000 and reallocated the amount each of the participating law firms would receive of that reduced total. (Ex. 42L)

Sanction

the majority of the hearing committee credits the respondent’s testimony that he did not knowingly make a misrepresentation of fact to the Federal Court because he did not read his declaration in its entirety before signing it. Accordingly, while he violated rules 3.3(a)(3), 3.3(d) and 8.4(d) and (h), he did not violate rules 3.3(a)(1) and 8.4(c), the latter to the extent that it was not intentional misrepresentation, but negligent misrepresentation, thus warranting a lesser sanction.

The majority recommends a six-month suspension.

Dissent

A majority of my colleagues on this hearing committee credit the respondent’s testimony that he did not read his sworn “declaration” in its entirety before signing it. However, I find this credibility determination to be inconsistent with the evidence in this case. Under our case law, a naked, unsupported credibility determination will not suffice, especially if it is inconsistent with other evidence. Therefore, I must respectfully disagree with the majority's decision in this matter.

Oath sworn

Here, the respondent signed the declaration and “declare[d] under penalty of perjury that the foregoing is true and correct.” (Ex. 8 at A-000157). Perforce, like Diviacchi, the respondent is held to have had actual knowledge and, therefore, knowingly made a false statement of fact to the federal court.

Further, I do not credit the respondent’s testimony that he did not read all of his declaration supporting the motion to award attorneys’ fees and expenses. (Ex. 8). The sworn declaration is two double-spaced pages of text (the other two pages are a caption and a signature line), so any reasonable attorney—particularly a managing partner—who was even mildly interested in the firm’s support for a request for a multi-million-dollar fee that his firm was seeking to be awarded, would have read it. I also note that the respondent was announced in early September 2016 as Thornton’s new managing partner. (Ex. 1, Timeline). Less than two weeks later, he signed the declaration. (Ex. 8). I do not believe that one of the respondent’s first acts as managing partner of his firm would be to sign a short affidavit, where his firm sought a multi-million-dollar fee, without reading all of it. I, therefore, do not credit that the respondent did not read the entirety of the two pages of content.

If not, willful blindness

To me, this case presents classic willful blindness. Among other things, the respondent knew the fee petition would include hourly rates when he knew his firm had never charged a client by the hour and when he assisted in the fabrication of a $500/hour rate for his brother, which he knew was not Michael’s usual hourly rate. This is actual knowledge, even without reading the entirety of the sworn declaration. He could have read it but did not; it was not so lengthy or complicated that it would have been entirely unreasonable for him to do so. Therefore, assuming arguendo, the respondent did not read it, but he did so, knowing it contained false information that would be submitted to the Court. In sum: (1) if the respondent did not read the declaration, that constituted willful blindness and a lack of diligence; (2) even if he did not read it, he had reason to know it contained false information because he knew it listed his brother as an employee and a “usual hourly rate” that he knew his brother had never charged; and (3) I do not believe he did not read it, because it is unreasonable not to have done so, given the brevity and importance of the declaration and his having sworn to it under oath.

Since willful blindness is the equivalent of actual knowledge, it follows ineluctably that the respondent knowingly engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. He told the federal court that twenty-three people who did not work at his firm were employees, and he submitted an array of false “usual hourly rates,” including that for his brother Michael, which the respondent himself helped to fabricate. As in Diviacchi, supra, and other cases, this conduct violated Mass. R. Prof. C. 8.4(c).

Sanction dissent

Given that willful blindness is the equivalent of actual knowledge, and in light of the other rules violations and the factors in aggravation, I see nothing to justify a downward departure from the presumptive sanction of a two-year suspension.

Respondent formerly served in the Massachusetts House of Representatives as assistant majority leader. (Mike Frisch)

May 28, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Out On A Limb

A Hearing Report in a Massachusetts bar discipline matter involves allegations against a prominent bankruptcy attorney finds misconduct in multiple matters and proposes a three-year suspension.

The respondent called to our attention that he was twice selected by Boston Magazine as one of Boston’s top bankruptcy lawyers, in 2021 (Ex. 56 (543)) and 2022 (Ex. 57 (545)). He has represented a client before the United States Supreme Court. Tr. 1:122 (Respondent). He claims to have had “ a number of cases in the [F]irst [C]ircuit and in the trial courts . . . that have had favorable results and made a substantial change in bankruptcy practice.” Id. He described his “underlying approach” as “to ask why are things the way they are,” and told us that he believes that “sometimes we have to . . . go out on a limb representing our clients to effect a necessary change in the law . . . .” Tr. 1:122-123 (Respondent).

Findings

We agree that the claim in the Motion for Sanctions was frivolous. As detailed at length above, the respondent’s argument as to the Bank’s alleged misconduct was not supported by authority and, as phrased, cannot be construed to be a request for a change in existing law. It was a stark misrepresentation to elide the fact that there was no authority for the respondent’s position, and it was, therefore, frivolous.

False statement

In addition to finding the respondent’s explanation not credible, we rely on the following. First is the misleading nature of the respondent’s pleadings – citing, respectively, a statute and case law allegedly in support of his position when, in fact, neither supported his point.

As noted, the cases cited in support of the Motion for Sanctions did not support the respondent’s argument, and in fact undermined it. In his cash collateral argument, we find that he eviscerated the statute, deliberately removing from it the section that did not help him.

We note additionally the absence, in the respondent’s motion papers or argument before Judge Hoffman, of language recognizing the force of authority, but advocating for a change to existing law. This was not an example of the respondent “go[ing] out on a limb representing [a client] to effect a necessary change in the law . . . .” See Tr. 1:123 (Respondent). Instead, the respondent simply and intentionally mischaracterized the law and argued, disingenuously, that his claims were supported.

Our conclusion that this was an intentional strategy and not an innocent mistake is underscored by our reference above...to the respondent’s earlier conduct in the bankruptcy court for strikingly similar behavior. Manifestly, as described by the First Circuit, the respondent “marshalled artifice” in apparent support of unsound and unsupported arguments.

The hearing report also found he had violated the court order.

In another bankruptcy matterc, he denied making a knowing false statement

We disagree. We do not credit the respondent’s claim that he had simply made a mistake. The exchange quoted above in full...shows the respondent actively misrepresenting his activities to the Court, and intentionally sowing confusion about interrogatories that were not at issue. This approach is uncomfortably similar to the shenanigans we described above in Count One, although we find that this lie was sharper and more explicit...

We are particularly troubled by the respondent’s breathtakingly audacious claim that if he did make a misrepresentation, he corrected it and therefore was not in violation of Rule 3.3(a)(1). See Respondent’s PTB, p. 9. We conclude that the respondent corrected nothing. Rather, when cornered, he finally stopped lying and admitted defeat, as he had to do. The First Circuit described this well: “After some prying by the court, and obfuscation by Baker, he ultimately conceded that he had failed to serve a response compliant with the order.” Ex. 29, n.14 (373).12 The First Circuit’s finding underscores the words of the BAP, which had found that the respondent’s misconduct “was deliberate and lack[ed] a legitimate excuse.” Ex. 28 (359). We agree and, in light of this and our own analysis, conclude that the respondent violated Rule 3.3(a)(1).

In a third matter, the report would find he charged an excessive fee but that was not alleged

We conclude that bar counsel has proved a technical violation of Rule 1.7(b). However, we will not increase our recommended sanction as the result of this particular misconduct. (In our Recommended Disposition discussion, we note the sanction range for this misconduct should our decision not to include it be rejected).

But

We find that the respondent intentionally misrepresented himself to the Probate Court as both the attorney for Sonya and the estate’s fiduciary. He did this knowingly and with a single purpose in mind: to get paid from the excess proceeds.

As indicated, we make no finding as to what if anything the respondent’s services to Sonya were worth. In this regard, we note that there were other avenues available to him to seek compensation that would not have involved lying and misrepresenting his status.

We find deeply troubling the respondent’s brazen misrepresentations to the tribunal in the service of his own financial interests. He was not Sonya’s attorney in any matter when he filed the Unauthorized Pleadings, and had never represented her in the Probate Court. He was never the estate fiduciary. We are especially struck by the fact of the respondent’s timing: he seems to have timed his filings to follow the withdrawal of the probate estate’s attorney, who could have explained to Sonya and Jewel what he was doing.

Sanction

Bar counsel recommends a two-year suspension. The respondent recommends that the petition be “denied,” or that we impose only “de minimus” discipline. We recommend a threeyear suspension...

On balance, considering the serious, intentional misconduct and the numerous aggravating factors we have found, we recollllllend a three-year suspension. We are mindful of the fact that this is indeed a heavy sanction, but it is justified in our view by the gravity of the respondent's misconduct, including without limitation, serial violations over several years; multiple attempts to mislead several Comts; flouting of the Bankrnptcy Comt's order to take an in-person ethics class; disservice to clients; lack of self-awareness of the consequences of his actions; and an anogant, steadfast refusal to admit the wrongdoing which resulted in the pending matter. We take seriously our duty to protect the public from dishonest lawyers, and conclude that a three-year suspension is the appropriate sanction here. In the event that the respondent's suspension is reduced to a suspension of less than a year-and-a-day, we strnngly recollllllend that he be ordered to undergo a reinstatement hearing before he is readmitted to practice.

(Mike Frisch)

May 28, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Reinstatement Granted

The Pennsylvania Supreme Court has granted reinstatement of an attorney suspended for a year and a da for criminal conduct unrelated to the practice of law..

The misconduct

In the summer of 2008, Petitioner was involved in an ongoing controversy with a neighbor, which culminated in an incident on August 22, 2008, where Petitioner drove approximately 4/10th of a mile down the neighborhood road with the neighbor clinging to the windshield of Petitioner’s vehicle. Petitioner’s vehicle struck the front end of a police vehicle that was responding to the scene.

On November 20, 2008, a seven count Information was filed in the Cumberland County Court of Common Pleas charging Petitioner with aggravated assault, recklessly endangering another person, disorderly conduct, criminal mischief, driving on roadways laned for traffic, careless driving, and reckless driving. 

On November 8, 2009, following a jury trial in the Cumberland County Court of Common Pleas, Petitioner was convicted of recklessly endangering another person, disorderly conduct, criminal mischief, driving on roadways laned for traffic and careless driving. Petitioner was acquitted of aggravated assault and reckless driving. (citations to record omitted).

After the incident

Petitioner was diagnosed by her treating psychiatrist with major depression, post traumatic stress disorder, and the effects of family estrangement.

Although insurance issues interfered with treatment, she has been employed as an unpaid intern with a law firm. 

She also accepted responsibility and demonstrated remorse

The Committee weighed the evidence, concluded that Petitioner met her stringent burden of proof, and recommended that Petitioner be reinstated. ODC does not oppose reinstatement. Upon our independent review of the record, we conclude that Petitioner met her reinstatement burden and we recommend that the Petition for Reinstatement be granted. Petitioner credibly testified on her own behalf and presented testimony from six credible character witnesses: former Judge J. Wesley Oler, Jr.; Taylor Andrews, Esquire; Jason Davies; Beverly Doorly; Sheri Romano; Virginia Hostetter; and Teresa Stephens, LCSW. Petitioner also submitted into evidence character letters from her employer, her landlord, a coworker, and student testimonials. The totality of this testimony and evidence demonstrates that Petitioner has the moral qualifications, competence and learning to practice law and that the resumption of her practice will be neither detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest.

And

As further evidence of rehabilitation, Petitioner demonstrated her interest in giving back to her community by volunteering for the Central Pennsylvania Youth Ballet and the ESC. She rejoined her temple, and became active in the issue of parental alienation by organizing a local support group and speaking at conferences.

(Mike Frisch)

May 28, 2024 in Bar Discipline & Process | Permalink | Comments (0)

A Judge In the Dark

The Tennessee Court of Appeals has affirmed the dismissal of a legal malpractice case.

This is a legal malpractice suit filed by John Doe Corporation (“Plaintiff”) against its former counsel, Kennerly, Montgomery & Finley, P.C. (“Defendant”). The case arises from the expiration of a judgment obtained by Plaintiff against a defendant (“the third party”) in a suit that concluded more than a decade ago, and Defendant’s alleged failure to advise Plaintiff of the judgment’s impending expiration. The legal malpractice action was before Judge William T. Ailor, who had represented the third party in the underlying suit before becoming a judge. Judge Ailor granted Defendant’s motion to dismiss based on Plaintiff’s failure to bring the action within the time set by the relevant statute of limitations. After becoming aware of Plaintiff’s and the third party’s identities, Judge Ailor recused himself while Plaintiff’s motion to alter or amend the judgment was pending. Plaintiff sought to void the judgment dismissing the case. Chancellor Christopher D. Heagerty was assigned to sit by interchange over the case and denied Plaintiff’s motion. Plaintiff appealed. Discerning no reversible error, we affirm.

The role of Judge Ailor

We, like Chancellor Heagerty, are unconvinced that the prior case between Plaintiff and the third party constitutes the same case as the one between Plaintiff and Defendant. By the time Plaintiff filed its action against Defendant, the case involving Judge Ailor’s former client had concluded over ten years ago and the judgment against his former client had expired. The case before Judge Ailor was between Defendant and Plaintiff and was based on Defendant’s alleged inaction after the prior case had concluded. The prior case was only tangentially related to the legal malpractice suit and was not the same case.

Why the issue went undetected

It was the Plaintiff’s decision to file its complaint under a pseudonym, “John Doe Corporation,” and to file redacted exhibits for the purpose of not alerting the third party that the judgment had expired. The purpose of filing suit in this manner was so that no one would be able to determine the identities of Plaintiff or the third party. Plaintiff was successful in keeping Judge Ailor in the dark. As Judge Ailor noted in his order of recusal, “there was nothing in the record to identify who the John Doe Corporation was or who the third-party debtor was that Defendant was collecting from and therefore the Court could not have had any knowledge of who these unidentified entities/individuals were when it ruled on the Defendant’s Motion to Dismiss.” Given that the standard is whether “a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality”, there was no reasonable basis for questioning Judge Ailor’s impartiality, given that he knew of no facts that would alert him to any potential impropriety when he dismissed the case.

(Mike Frisch) 

May 28, 2024 | Permalink | Comments (0)

Not Good Hands

A stipulation to the discipline of disbarment has been approved by the Colorado Presiding Disciplinary Judge

Adams is the owner of the Allstate Law Center, P.C., a law firm specializing in bankruptcy matters. In one client matter, Adams agreed to prepare and file a Chapter 7 bankruptcy petition. He had the client sign a flat-fee agreement providing that the client’s retainer was nonreturnable and earned on receipt. Into his operating account he placed all but $200.00 of the client’s fee. Thereafter, he failed to prepare and file a bankruptcy petition, and he abandoned the client and her legal matter by failing to complete tasks for which he was hired. Though Adams did not earn any of the funds the client paid, he failed to promptly return to the client her unearned fees, thereby knowingly converting her funds.

In a second client matter, Adams signed a flat-fee agreement with a client in early 2020 to handle a Chapter 7 bankruptcy. The fee agreement set forth benchmarks. The client asked Adams to place the case on hold until March 2022, when the client attempted to contact him to ask him to file a petition. The client also visited the firm’s physical office space, which she discovered was vacant. In June 2022, Adams and the client spoke on the phone. He informed her that his license was suspended but nonetheless volunteered to file her case. The client asked for her money back. Adams did not communicate any further with the client and did not complete the benchmarks in the fee agreement. Adams has not issued a refund, even though he knew he had not earned a substantial amount of the client’s advance fee.

In a third client matter, a client retained Adams to prepare, file, and assist with a Chapter 13 bankruptcy. The agreement provided that a “base portion of the fee” was a flat fee, which the agreement described as “nonreturnable” and “earned on receipt.” The fee agreement provided that fees would not be deposited into the firm’s trust account; Adams indeed placed the client’s money—including money to cover filing fees—in his operating account, even though he had not completed work required to earn the fees. The client scheduled two calls for updates on his case, but no one at the firm called the client at the scheduled times. The client also emailed Adams asking for communication, but the client never heard anything further. Adams never filed a bankruptcy petition for the client and never paid a filing fee to file a bankruptcy petition, but Adams did not refund the client any money.

(Mike Frisch)

May 28, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Absolutely Privileged

Lawyers who has participated in challenges to the 2016 election for Governor are entitled to an absolute privilege from defamation claims, according to a decision of the North Carolina Supreme Court in reversing the Court of Appeals

In this case we decide the breadth of protections afforded to individuals engaged in the pursuit of an election protest. Applying long-settled, bedrock principles, we hold that the absolute privilege broadly protects all individuals involved in any aspect of election protests from defamation claims. This includes, but is not limited to, those who research, assess, strategize, approve, facilitate, direct, prepare, file, or prosecute election protests. In so doing, we reiterate what this Court has long held: the absolute privilege attaches by virtue of the proceeding in which the statement is published. We therefore reject plaintiffs’ baseless attempt to constrict the absolute privilege’s protections. Accordingly, plaintiff’s lawsuit, which seeks to impose civil defamation liability for statements contained in election protests, thereby discouraging citizens from guarding the integrity of their elections, is absolutely barred. The Court of Appeals’ decision as to the issue before this Court is therefore reversed, and the matter is remanded to the Court of Appeals with instructions to further remand to the trial court to dismiss the matter with prejudice.

The defendants included law firm associates who had participated in the election protest litigation

The record indicates that the associate attorneys were not licensed or authorized to practice law in North Carolina at the time of the events of this case. They insist, however, that they did not need to be because their conduct in this case did not amount to the practice of law. Because their status as attorneys is irrelevant to the consideration of this matter, we do not resolve this question.

After receiving adverse publicity

plaintiffs filed an amended complaint on 9 November 2017, adding Golden as a plaintiff and law-firm defendants and the Defense Fund as defendants. The amended complaint reiterated the original claims for libel and punitive damages. Plaintiffs also asserted that defendants conspired to commit the “overt and wrongful acts” of “mak[ing] the statements and tak[ing] the actions described above . . . to delay certification of the election and suggest that voter fraud affected the election results.”

(Mike Frisch)

May 28, 2024 in Current Affairs | Permalink | Comments (0)

North Dakota Orders Reciprocal Discipline

The North Dakota Supreme Court has imposed reciprocal discipline for a sanction imposed in Minnesota

The record reflects that the State of Minnesota filed an order suspending Bruggeman for indefinitely with no right to petition for reinstatement for 90 days for representing clients with a conflict of interest, providing incompetent representation and failing to properly serve defendants with the complaint, neglecting the matter, failing to communicate with clients, forging a client’s electronic signature on an affidavit and filing it with the court, making knowingly false statements to the clients, failing to timely withdraw from representation, failing to provide clients with a copy of the file upon termination of the representation, failing to inform the clients of costs they would be responsible for, and fabricating documents and making knowingly false statements to the Director during a disciplinary investigation.

In this matter

Assistant Disciplinary Counsel filed an affidavit outlining unsuccessful efforts to serve Bruggeman in this disciplinary matter. Therefore, service in this matter was made on the Clerk of the Supreme Court under Admission to Practice R. 1. Bruggeman failed to respond. On April 4, 2024, the Disciplinary Board filed its recommendation that Bruggeman be disbarred.

But

The Court considered the matter, and

ORDERED that Julie L. Bruggeman is SUSPENDED from the practice of law in North Dakota for six months and one day, effective upon entry of judgment in this matter.

DL-Online noted that the attorney had held public office

Mahnomen County Attorney Julie L. Bruggeman was indefinitely suspended from practicing law by the Minnesota Supreme Court on June 23.

She can apply for reinstatement after 90 days, according to the order signed by Associate Justice Natalie E. Hudson.

In Mahnomen County, Bruggeman oversees a staff of four or five attorneys, legal secretaries and victims advocates, Mahnomen County Administrator C.J. Holl said in a brief interview.

As county attorney, Bruggeman handles a wide variety of cases, including felony and other criminal prosecutions, child support enforcement, juvenile and family matters, and she provides legal counsel for county administration.

(Mike Frisch)

May 28, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Unfortunate Remark

The Quebec Discipline Council found that an attorney engaged in sanctionable conduct during a civil proceeding for injunction and damages and has directed that a hearing on sanction be convened.

The complaint was brought by an opposing client involved in a dispute with Respondent's client.

The respondent's client is a young man who, in 2014 and at the age of 19, met and maintained a romantic, friendly and sexual relationship with the complainant more than 30 years his senior who initiated it to homosexuality.

 This relationship deteriorates when the respondent's client adopts fetishistic sexual activities and practices which fascinate him, but which considerably shock the complainant who sees them as illegal, perverse and morally reprehensible activities. 

The complainant obtains pornographic photos of the respondent's client from websites and follows his involvement in fetish groups, watches his profile on the Onlyfans site and inquires about the relationships of the respondent's client who work in the field of pornography and/or sexual fetish parties.

The complainant is in dismay at the behavior of the respondent's client, revolted and shocked.

The respondent's client feels harassed and stalked by the complainant and therefore decides to mandate the respondent to initiate proceedings for injunction and damages.

  The respondent's client asks the respondent to review a book on a fetishistic sexual practice, which the respondent agrees to do. The respondent's client includes the respondent's name, without his professional title, in the acknowledgments of his book noting his assistance with the French revision.

The complainant is outraged that the respondent, a member of the Quebec Bar, participates in such work, and explains it in the complaint document. He also includes, in the complaint, the sentences “Birds of a feather flock together.” and “Tell me who you’re dating and I’ll tell you who you are.” », insinuating that the respondent shares the same sexual interests as his client. In the rejected counts of the complaint, he accuses the respondent of having lied to the Court of Appeal and to the assistant of a judge of the Superior Court.

The conduct at issue

 He points out that on page 254, in the context of the exchanges between the respondent and the complainant's lawyer on the amount of $125,000 claimed from the complainant by the respondent's client, which the latter considers to be “not much”, the respondent said to the plaintiff’s lawyer: “As for me, he would have had my fist in his mouth too. 

The complainant testifies that this sentence was aimed at him personally. He deplores the words used by the respondent and the violent and aggressive context. He argues that a lawyer cannot afford to treat an opposing party in this way, in any situation.

 He adds that the respondent, at the end of the interrogation and after making his violent comment, apologizes to his lawyer, but knowingly refuses to present them to him:

Me Marc Michaud

Attorney for the plaintiff:

No, don't finish. I would like to apologize for my attitude earlier. I got out...I got a little...I got a little out of control. The fist in the face story was very inappropriate. But that's the attitude I would have if he [the respondent's client] had been my son. But I don't think that was necessary, so I apologize. But, I don't apologize to the gentleman there. I apologize to my colleague .

Respondent

The respondent testified that when he made his unfortunate remarks, the interrogation came to an end after more than three hours. The respondent explains that he is tired and exhausted and that his client is feverish and anxious. He wants to intervene to reassure him. He admits: “I may have gotten a little carried away” and “I was the first to start” in the context of his exchanges with the complainant's ex-lawyer FP.

 He also adds that because of his involvement as a lawyer on file, he is the victim of sustained harassment from the complainant. He acknowledges, however, that the harassment began after the preliminary interrogation.

He provides evidence of numerous documents which, according to him, demonstrate the complainant's relentlessness towards him and against his client. The complainant files a Request for declaration of disqualification which targets the respondent and which alleges the same reasons as the heads of the complaint, including that the respondent associates with people who promote perverse illegal practices and illegal commercial activities.  This request is rejected.

The Council noted

The practice of law is difficult. That's an understatement. It is full of situations and examples during which practicing lawyers found themselves, through their gestures, actions or words, or those of their peers, towards each other, having to take a step back in due time. , at the risk of sinking into the unacceptable and thus crossing the established and known ethical limit. It is the privilege and the duty to exercise the right vested in every lawyer, who must, at all times, maintain the honor and dignity of the profession by acting with the control and mastery expected of him in order to to prevent emotionality, irritation and exasperation from taking hold of him and leading him to transgress the ethical values ​​of which he is the guardian and active representative on a daily basis, especially in the most acrimonious cases.

It is therefore by judging the respondent's behavior in light of the public's reasonable expectations regarding the professionalism that a lawyer must demonstrate that the Council concludes that he did not respect his obligations and essential duties under the terms of articles 4 and 129 of the Code of Ethics and article 59. 2 of the Professional Code .

  Due to the principle of the prohibition of multiple convictions, as taught by the Supreme Court of Canada in the Kienapple decision , the conviction under section 4 of the Code of Ethics for Lawyers and Article 59.2 of the Professional Code is the subject of an order for conditional suspension of proceedings, as more fully described in the operative part of this decision.

(Mike Frisch)

May 28, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Monday, May 27, 2024

Present Character Warrants Admission

The Ontario Law Society Tribunal Hearing Division has found that an applicant for admission presently has the good character to admit

On his application for licensing, he disclosed that in 2013, he had been charged with various child pornography and luring offences and in 2017 he was convicted of seven of those offences. He also disclosed that his motion for a stay of proceedings based on unreasonable delay was dismissed at first instance but allowed on appeal, such that his convictions were set aside, and a stay was entered. Consequently, he has no criminal record.

Applicant's background

The Applicant also describes a very devout, Catholic upbringing. This included attending mass every Sunday as well as a private, Catholic education which was academically rigorous and had a strong focus on self-discipline. Adherence to the Catholic faith was a core aspect of the Applicant’s education and upbringing.

The Applicant describes his involvement in youth basketball as an integral part of his adolescence. He described himself as a nerdy kid, participating in extracurricular activities like debating and chess club, but with a growing interest in sports. While in the sixth grade, the Applicant’s mother registered him to play with the Etobicoke Basketball Association (EBA), a community and volunteer-based recreational league outside of his school. His involvement in the EBA proved to be a very positive and transformative experience for the Applicant. He enjoyed playing basketball, but more importantly, he enjoyed the opportunity for social engagement that the EBA offered. His involvement enabled him to meet new people outside of his school – people who had backgrounds that differed substantially from his own.

The Applicant played in the EBA throughout high school, and when he was in grade 12, he began coaching. At the time of his involvement as a coach, he was among the youngest in his league to occupy this position. He received no formal training either prior to or while occupying this role. The Applicant continued his involvement with basketball after he completed his high school education. While an undergraduate student at the University of Toronto, he volunteered as a coach and later as a referee with the EBA and the Toronto Association of Basketball Referees. Following his undergraduate degree, the Applicant pursued a one-year master’s degree in criminology, also in Toronto. During this period, he continued coaching basketball at both recreational and competitive levels.

He then attended University of Ottawa law school.

 Despite the distance between the two cities, the Applicant was determined to maintain his intensive involvement in Toronto basketball while living in Ottawa. To that end, he maintained an exhausting schedule that involved commuting from Ottawa to Toronto every Friday night by train, spending Saturday and Sunday refereeing and coaching basketball, and returning to Ottawa by train late Sunday night, to start law school on Monday morning.

The Applicant maintained this commuting schedule for his entire first year of law school. He testified that during his first year of law school, the social connections that the Applicant maintained through his continued involvement in Toronto basketball became a sort of a “safe space” or refuge for him. Like many law students, he found his first year of law school to be academically challenging, mentally exhausting, and socially isolating. It is in this context that the Applicant committed the misconduct that gives rise to this hearing.

The misconduct took place during law school

At trial, the Applicant did not deny the actus reus of the offences. He admitted that he had conversations with three complainants in which he asked them to send him images of their penises. That was also the case for the ten similar fact witnesses, who recounted comparable exchanges with the accused during trial, but who were over the age of 18 years when the conversations took place. His defence at trial was that these conversations were not for a sexual purpose. Instead, he characterized them as “locker room” talk and activity. This defence was rejected. On March 3, 2017, Justice McWatt found the Applicant guilty of seven offenses in relation to two complainants (anonymized as AP and MM) and not guilty on five charges.

 In her reasons for judgment, Justice McWatt found that the Applicant texted with two males under the age of 18, asking them to send him photos and videos of their penises and/or of them masturbating. The Applicant paid AP for some of the videos he had sent. There was also a brief contact offence involving the complainant, AP, in relation to whom Justice McWatt determined the Applicant was in a position of trust or authority. Finally, Justice McWatt acquitted the Applicant in relation to a third complainant because there was no evidence that he was under 18 at the relevant time. The findings of guilt included child luring, sexual exploitation, and making, possessing, and accessing child pornography.

The opinion details Applicant's therapy and treatment.

The seriousness of the Applicant’s misconduct is magnified by the number of victims impacted as well as by the duration of his misconduct. Misconduct over a period of time is more serious than isolated misconduct.[6] While the Applicant was criminally charged only in relation to three minors (but convicted only in relation to AP and MM), a total of 13 young basketball players were solicited by the Applicant for sexual photographs. These incidents cannot be characterized as momentary lapses or isolated incidents. His misconduct not only included multiple incidents with multiple young people over a period of a year, it was also characterized by escalating attempts to obtain photos over time. He persisted in approaching the victims repeatedly even if they initially refused and obtained dozens of nude photos from a significant number of youthful victims over which he was in a position of power, trust and authority.

Present attitude

The Applicant now admits, without reservation or excuse, that his misconduct, which gave rise to this hearing, was wrong and inexcusable. He describes his conduct as “absolutely wrong,” “reprehensible,” and “wildly inappropriate.” Both Dr. Lessard, Stephanie Swain as well as those who submitted letters of support on the Applicant’s behalf all confirm the consistency, sincerity and the depth of his remorse.

Admission

 Twelve years ago, the Applicant made a series of serious mistakes, but he is not the same person he was when he made those mistakes. The evidence before us shows an individual who takes accountability and responsibility for his actions, including the consequences of his actions, and has faced his past with great insight, deep remorse and effective rehabilitation.

We are asked to look at the character of the person before us today. The Armstrong factors beyond the seriousness of the misconduct all unequivocally favour a finding of good character. While initially concerned about the Applicant’s late access to targeted rehabilitation, he adequately explained the reason for this late timing, which involved him voluntarily submitting to a psychiatric assessment which led to him confronting, accept and ultimately act up on the truth that his behavior was sexually motivated. His insight may have developed incrementally, but the overwhelming evidence is that it is authentic.

 We accept the Applicant’s explanation and find that he is presently of good character. The application for a licence to practise is allowed.

(Mike Frisch)

May 27, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 24, 2024

Marty McFly DDS: Extracted Tooth While Riding A Hoverboard

The Alaska Supreme Court affirmed the revocation of a dental license as ordered by the Superior Court

The Board of Dental Examiners revoked Seth Lookhart’s dental license after he was convicted of dozens of crimes perpetrated in furtherance of a fraudulent scheme of staggering proportions that jeopardized the health and safety of his patients. Lookhart appealed the Board’s revocation of his license, arguing that his punishment was inconsistent with past Board decisions. On appeal, the superior court concluded that the Board properly exercised its discretion by revoking Lookhart’s dental license.

We conclude that the Board did not abuse its discretion by revoking Lookhart’s license. None of the Board’s prior licensing cases involved misconduct of the scope and severity in this case, so there was no applicable precedent to limit the Board’s exercise of its discretion. We affirm the decision of the superior court.

The misconduct

The facts in this appeal are undisputed. Lookhart was issued an Alaska dental license in June 2014 and a parenteral sedation permit in May 2015. Between May 2016 and March 2017, Lookhart systematically and unnecessarily sedated his patients in a manner that allowed him to fraudulently bill the maximum amount covered by Alaska’s Medicaid program, overcharging Medicaid by more than $1.6 million. Lookhart routinely billed Medicaid for sedation that was not performed, billed Medicaid at higher rates than other insurers, and created false dates of service to maximize his wrongful reimbursements. During this same period Lookhart also stole an additional $412,500 from a business partner.

In order to maximize his billings to Medicaid, Lookhart engaged in a series of standard-of-care violations: He sedated patients beyond the scope of his training and permit, sedated multiple patients simultaneously, billed Medicaid for sedation during routine cleanings, and sedated patients with underlying chronic diseases that made sedation dangerous. He allowed his unlicensed office manager to sedate patients, pressured patients into unwanted sedation, and left sedated patients to drive themselves home.

On two occasions, Lookhart’s patients nearly lost their lives as a direct consequence of his reckless sedation practices: One displayed vital signs “inconsistent with signs of life,” while another’s heart rate dropped to 19 beats per minute with what Lookhart described as a “crazy high” blood pressure. Lookhart also extracted one deeply sedated patient’s tooth while riding a hoverboard, and then sent a video of the unsafe extraction to his friends and family members without the patient’s consent.

Lookhart was fully aware that his conduct was reckless and illegal, but declared that the Dental Board “would literally have to be there watching me do it” to catch him.

Lookhart was arrested in April 2017. After a six-week bench trial ending in January 2020, he was convicted on 46 charges, including 11 felony counts of medical assistance fraud, three felony counts of scheming to defraud, one count of felony theft, three class A misdemeanor counts of reckless endangerment, one class B misdemeanor count of failure to meet minimal standards of dentistry, and 27 additional  misdemeanors. The trial court also issued an order finding that the State had proven 13 sentencing aggravators beyond a reasonable doubt. The trial court found that the evidence against Lookhart was “overwhelming.” He was ultimately sentenced to 20 years in prison with eight years suspended.

Sanction

Lookhart stole millions of dollars from Medicaid. In furtherance of this massive fraud, he repeatedly subjected his patients to great risk of harm. There are no cases in the Board’s history comparable to Lookhart’s. In light of the lack of any cases presenting similar facts or circumstances, the Board’s conclusion that revocation was the “clear and obvious sanction” given the “sheer magnitude of admitted misconduct” was not an abuse of discretion.

From Alaska News Source

A 25-second video shows Dr. Seth Lookhart floating into an exam room. He appears to remove a tooth from a sedated patient, then pivots and rides away on a hoverboard, tossing his gloves in the air, removing his mask and flashing a smile at the camera.

The video, which appears to have been shot on a cell phone, was just a shred of the evidence presented in the 35-year-old dentist’s weeks-long trial.

CBS 17 has the hoverboard video.

The case is SETH LOOKHART, Appellant, v. STATE OF ALASKA, DIVISION OF CORPORATIONS, BUSINESS, & PROFESSIONAL LICENSING, BOARD OF DENTAL EXAMINERS, Appellee  (Mike Frisch)

May 24, 2024 in Comparative Professions | Permalink | Comments (0)

Not With The Program

The Indiana Supreme Court has ordered service of a stayed portion of a sanction.

On April 11, 2024, the Commission filed a verified motion to revoke Respondent’s probation, averring that Respondent declined to sign a JLAP monitoring agreement and was not participating in JLAP services. Respondent has filed no response to the Commission’s motion, and her failure to do so is deemed an admission of the Commission’s allegations. See Admis. Disc. R. 23(16)(c)(2).

Being duly advised, the Court GRANTS the Commission’s motion and revokes Respondent’s probation. Respondent shall be suspended from the practice of law for a period of not less than 60 days, without automatic reinstatement, beginning July 5, 2024.

The misconduct was described in a January 2024 order

 In July 2021, Respondent was convicted of operating a vehicle while intoxicated with endangerment and leaving the scene of an accident, both misdemeanors. In September 2022, Respondent pled guilty to two separate misdemeanor counts of criminal trespass. A little over two weeks after her guilty plea, Respondent was charged with a probation violation for failing to report to the probation office, and she was arrested after she failed to appear for a hearing on that charge. Respondent's BAC was 0.354 at the time of booking. The next day, a second probation violation notice was filed alleging Respondent had failed to schedule a required substance abuse evaluation and had consumed alcohol on at least two occasions. Respondent was found to have committed the probation violations after an evidentiary hearing in March 2023, and Respondent's probation was extended to December 2023.

(Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Sword Of Damocles

The West Virginia Supreme Court of Appeals declined to end an investigation into a dentist's treatment of a patient

Petitioner Jose Ravelo, DDS (hereinafter “Petitioner”), seeks a writ of prohibition directing the West Virginia Board of Dentistry (hereinafter “the Board”) to cease its current investigation of him and to prohibit the Board from taking any further disciplinary action against him based upon his treatment of a patient in 2021. Petitioner asserts that the Board violated the statutory time limitation for resolution of disciplinary actions and violated his due process rights.

After careful consideration of the parties’ arguments, legal authorities, and the appendix record, this Court finds that the Board complied with West Virginia Code §30-1-5(c), which permits an extension of time for the Board to issue a final ruling. Because the extended time period had not yet expired when Petitioner filed the instant petition, we deny his request for a writ of prohibition.

Petitioner had performed oral surgery on a 74 year old man who was subsequently hospitalized

Petitioner informed the Board, among other things, that F.S. had a “bleeding complication and hematoma requiring precautionary emergency room care.” Further, Petitioner indicated that F.S. “remained in the hospital for a few days and was discharged in good condition.”

An investigation was then initiated

On July 19, 2023, Petitioner filed the petition for a writ of prohibition that is the subject of this action.

Basis to investigate

In the instant case, the Board properly conducted an initial investigation of Dr. Ravelo’s treatment of F.S. in order to determine whether the information it received was “credible” and thus warranted the filing of a complaint. By  investigating, the Board determined that F.S. had been hospitalized for nine days with five of those days on a ventilator, not for a “few days” as Petitioner indicated in his self-report. In addition, the investigation assisted the Complaint Committee in forming its belief that Dr. Ravelo had nicked an artery during F.S.’s surgery which, combined with F.S.’s continuing use of Plavix at a therapeutic level, caused bleeding and swelling that resulted in his nine-day hospital stay. For these reasons, among others, the Complaint Committee disagreed with Dr. Ravelo’s characterization contained in his self-report and instead deemed the incident as a “life threatening occurrence” and “serious injury.”

The court concludes that the investation had not exceeded statutory time limits or denied Petitioner due process.

Justice Bunn concurred

While I agree with the majority that the facts of this case do not rise to a violation of Dr. Ravelo’s constitutional due process rights, the Board must be reminded that it cannot grant extension after extension to a complainant, especially when it is itself the complainant, nor can it give unreasonably lengthy extensions.

Wooton, Justice, with whom Judge Howard joins, dissenting:

I respectfully dissent from the Court’s denial of Jose Ravelo, DDS’s (“Dr. Ravelo”) petition for a writ of prohibition to halt proceedings against him instituted by the West Virginia Board of Dentistry (“the Board”). In my view, the Board’s purposeful delay in bringing this matter to a conclusion, a delay resulting in the proverbial sword of Damocles hanging over Dr. Ravelo for three years rather than the eighteen-month period set forth in the relevant statutes, denied him due process of law. Because the Board’s delay clearly violated the relevant statutory framework for disciplinary proceedings against a dental professional, and further because the resultant damage and prejudice to Dr. Ravelo is not correctible on appeal, extraordinary relief is appropriate.

Time limits

In this case, all of the delay has been attributable to the Board, not to Dr. Ravelo, despite the Board’s attempt to characterize a routine FOIA request as some sort of “procedural delay or obstructive action.” See supra note 8. Further, the Board’s action in asking itself for, and then granting itself, a full twelve-month extension of time –with Dr. Ravelo having no opportunity to object – smacks of unfairness. Finally, it cannot be gainsaid that the unwarranted delay in this case has caused prejudice; having the aforementioned sword of Damocles hanging over him for more than three years has caused Dr. Ravelo severe emotional distress, and he informs us that his expansion plans have been cast into limbo as he waits for a decision that will affect his professional future.

This is precisely the type of outcome that the Legislature sought to avoid when it set strict time limits on the investigation and prosecution of licensed professionals for alleged violations of the standard of care. In my view, those time limits should be enforced, not winked at.

(Mike Frisch)

May 24, 2024 in Comparative Professions | Permalink | Comments (0)

Jeffrey Clark Responds

Jeffrey Clark has filed his post-hearing brief in the District of Columbia bar disciplinary case

This is an ethics case. To decide whether Respondent violated Rule 8.4, the Hearing Committee must first determine that Mr. Clark’s conduct on behalf of his client, including the draft letter proposed but never sent on behalf of that client, breached a duty to the client or to a court.

This case arises from a factual and policy dispute among the highest-ranking lawyers in the Justice Department (“DOJ”). The Attorney General, and those  appointed as Assistant Attorneys General “shall give [their] advice and opinion on questions of law when required by the President.” 28 U.S.C. §511, 506. The only person with authority to resolve the policy dispute was President Trump, and he did so in a meeting in the Oval Office. The President never complained about Mr. Clark’s advice or conduct.

The Rules are explicit: “A lawyer shall abide by a client’s decision concerning the objectives of the representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued.” Rule 1.2(a). Under Rule 1.2(d): “A government lawyer’s authority and control over decisions concerning the representation may, by statute or regulation, be expanded beyond the limits imposed by paragraphs (a) and (c).”

Here the client was the President of the United States in his official capacity, who, pursuant to U.S. Const. Article II §1 is the Executive Branch. President Trump was therefore “the highest authority [in the Executive Branch] that [could] act on behalf of the [United States] as determined by applicable law.” Rule 1.13(b). Clark,  Tr. 527.

Since the President was the client, ODC has no case against Respondent. Mr. Clark sought “zealously and diligently within the bounds of the law,” Rule 1.3, to keep the President informed during a time when there were major disagreements over the facts and over the wisdom of using powers vested in the DOJ. Rule 1.4. It is undisputed that the President asked for Mr. Clark’s advice. In providing it, Mr. Clark consistently sought to “exercise independent professional judgment and render candid advice.” Rule 2.1. Reviewing all cases in the D.C. Court of Appeals (“DCCA”) applying Rule 8.4, we find none where ethics charges were brought over a rancorous policy dispute within an organization. Nor have we found any case of “attempted dishonesty” in any document, much less a draft, that laid bare the essence of that policy dispute. Nor have we found any case in which ODC sought to penalize an attorney for doing what is required by Rule 1.13 when such disputes arise.

I expect that Disciplinary Counsel will reply challenging the premise that a junior officer (or any officer) of the Department of Justice functions as an attorney who represents a President as a client.

I also expect them to challenge the premise that this was a "policy dispute" and not an attempt to subvert democracy.

There is no comparable prior case because nothing remotely like this has ever occured in the past. (Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Illinois Sanctions Attorneys

The Illinois Supreme Court has released summaries of recent decisions in a bar discipline cases.

High (or low) lights

Ms. Hale was licensed in Nevada in 2000 and in Illinois in 2013. Nevada disciplinary authorities publicly reprimanded her for a conflict of interest arising from her personal relationship with a physician she employed as an expert in three personal injury cases and for paying that physician for services from her trust account even though she did not have the appropriate clients' funds in the account. The Supreme Court of Illinois suspended Ms. Hale for 30 days in light of her two prior instances of reciprocal discipline in Illinois. The suspension is effective on June 13, 2024.

Mr. Goldblatt was licensed in California in 1979 and in Illinois in 1980. The Supreme Court of California suspended him for one year, with the suspension stayed after 120 days by an eight- month term of probation after he was convicted of creating a public nuisance and using offensive words. Mr. Goldblatt was arrested for masturbating in his yard in view of a neighbor. Because Mr. Goldblatt is currently suspended from the practice of law in Illinois for prior misconduct, the Supreme Court of Illinois imposed reciprocal discipline and required him to demonstrate that he has successfully completed the terms of his California probation before seeking reinstatement to the practice of law in Illinois.

Mr. Caraway, who was licensed in 2007, was disbarred. He misappropriated more than $375,000 belonging to six different clients, including funds that were to be used for the benefit of a disabled adult and minor children. He also failed to refund a $3,500 unearned fee and made misrepresentations to a client in a separate breach of contract matter.

Mr. Zaba, who was licensed in 2010, was suspended for 60 days. He incorporated a mortgage company in 2015, which required him to submit annual financial statements to the Illinois Department of Financial and Professional Regulation. For the years 2017 through 2022, he submitted financial statements that he falsely claimed had been prepared or audited by an accountant. The suspension is effective on June 13, 2024.

Mr. Kehoskie, who was licensed in 2006, was suspended for six months, with the suspension stayed in its entirety by a two-year period of conditional probation. Between 2015 and 2019, Mr. Kehoskie was involved in three incidents in which he was charged with domestic battery and other offenses. One of the criminal charges was dismissed after completion of a diversion program. In the other two matters, Mr. Kehoskie pled guilty to a reduced charge of disorderly conduct and was placed on probation.

Mr. Azhari, who was licensed in 2007, was censured by the Court. He represented a client who was charged with telephone harassment in a criminal case and, while the representation was ongoing, he engaged in a sexual relationship with the client.

Mr. Messner, who was licensed in 1978, was disbarred. Over a period of more than five years, he assisted his corporate client and its owner in committing tax fraud by hiding his clients’ taxable income from taxing authorities. He also hid his clients’ income from the attorney who represented the client’s wife in the owner’s ongoing dissolution of marriage case.

(Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Not Strikingly Inconsistent

Reciprocal discipline was imposed by the New York Appellate Division for the First Judicial Department for a sanction imposed in New Jersey for misconduct in a matter involving Respondent's child

Here, respondent, among other things, (1) removed his two or three-year old daughter from Kentucky to New Jersey without the mother’s consent, requiring the mother to file an emergency motion in Kentucky and retain counsel in two jurisdictions; (2) filed an amended complaint in a previously dismissed New Jersey proceeding without first seeking leave from the court; (3) issued three subpoenas, captioned under the dismissed proceeding, on the mother’s former and current employers and failed to serve the mother or her counsel with a copy of the subpoenas; (4) entered into an agreement with the mother requiring her to withdraw her disciplinary complaints against him; and (5) refused to withdraw the improper subpoenas and appeal in New Jersey.

Under the circumstances, reciprocal discipline consistent with that imposed by the New Jersey Supreme Court, i.e., a one-month suspension from the practice of law, is not “strikingly inconsistent with this Court’s own precedent involving similar misconduct” (Matter of Jauregui, 175 AD3d 34, 38 [1st Dept 2019]).

(Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

A Rare Occasion

A reciprocal discipline matter involving a Tennessee public censure drew a more severe sanction from the New York Appellate Division for the First Judicial Department

The AGC and respondent, however, fail to fully acknowledge the gravity of respondent’s misconduct. Respondent’s client retained him to prevent the loss of her home to foreclosure. Respondent then negligently mishandled the matter by taking no action, respondent’s client lost ownership of her home, and respondent then told her that she should remit a further fee so that respondent could fix his own mistake. Furthermore, even after she paid the further fee, respondent still did nothing to fix the situation, ultimately telling her that she could simply try to lease her home from its new owner. This Court has previously suspended an attorney for such misconduct (Matter of McHale, 162 AD3d 117 [1st Dept 2018] [in reciprocal discipline matter, suspending attorney for three months after she practiced in federal Bankruptcy court without authorization, and noting that “the flagrant mishandling of [the debtor’s] bankruptcy case lost her the opportunity to try and save her home where she lived with her four children and grandchild, which was her stated goal in filing for bankruptcy relief”]). In view of the aggravating circumstances described, this matter presents the rare occasion wherein the sanction of the original jurisdiction ought to be departed from.

Accordingly, the AGC’s motion for reciprocal discipline predicated on discipline imposed by the Supreme Court of Tennessee should be granted to the extent that respondent is suspended from the practice of law in the State of New York for a period of three months and until further order of this Court, effective June 24, 2024.

(Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Pillow Talk At Fox Privileged

The New York Appellate Division for the First Judicial Department sustained a claim of marital privilege in the Smartmatic v. Fox Corporation & Giuliani litigation

This appeal concerns defendants’ inadvertent production of certain text messages between Fox television host Jesse Watters and his wife, Emma Watters, who are not named defendants in this action. Defendants contend that while engaging in discovery, they inadvertently produced eight documents that were subject to New York’s marital privilege under CPLR 4502(b), including the text messages. Defendants demanded that plaintiff destroy these documents. Plaintiffs agreed to destroy two of the eight documents, but maintained that the text messages were not protected by the spousal privilege because they were nonconfidential, business-related communications that had been relayed on a device issued by defendants Fox Corporation and Fox News Network LLC, and that Mr. Watters could not have reasonably expected that they would remain private.

Supreme Court did not abuse its discretion in determining that the text messages were protected by the spousal privilege (see e.g. Abe v New York Univ., 139 AD3d 416, 416 [1st Dept 2016]). “A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage” (CPLR 4502[b]; see also Matter of Vanderbilt [Rosner-Hickey], 57 NY2d 66, 73 [1982]). While not all spousal communications are privileged, “confidential” communications “induced by the marital relation and prompted by the affection, confidence and loyalty engendered” by the relationship clearly are (see Matter of Vanderbilt, 57 NY2d at 73; see also Poppe v Poppe, 3 NY2d 312, 315 [1957]). In making this determination, spousal communications are “presumed to have been conducted under the mantle of confidentiality,” and the burden is on the party seeking to overcome the privilege to demonstrate that the communications were not made in confidence (People v Fields, 38 AD2d 231, 233 [1st Dept 1972], affd 31 NY2d 713 [1972]).

Supreme Court providently found that plaintiffs did not meet this burden. A review of the text messages reveals that they were confidential communications between spouses, induced by the marital relationship, that would not have been relayed to outsiders voluntarily. Nor is there a legal or practical basis for finding that one spouse’s discussion of what was happening at work would automatically destroy the spousal privilege. Indeed, many “conversations about business matters [are] only had because of the husband-wife relationship” (Atlantic Richfield C0. v Triad Petroleum, Inc., 113 FRD 686, 687-688 [SD NY 1987])

May 24, 2024 in Privilege | Permalink | Comments (0)

Iowa Stubborn

The Iowa Supreme Court remanded some aspects of sentencing in a criminal matter involving a confrontation outside a city hall

On November 29, 2021, the defendant, Amy Rasmussen, confronted Victim 1 while she was talking with Victims 2 and 3 on the steps outside of Boone City Hall following a city council forum. Victim 1 declined the defendant’s request to speak privately, but the defendant continued to yell and make threats, telling Victim 1 that she would be “hog chow” the next time she posted about the defendant’s son or husband on social media. As the defendant continued to invade Victim 1’s space, Victim 3 attempted to defuse the situation by placing her hand on the defendant’s shoulder and asking her to stop. The defendant responded, “Don’t you fucking touch me,” and elbowed Victim 3 in the head to get her out of the way.

In the meantime, Victim 2 took out her cell phone, thinking she might record the incident or need to call for help. Upon seeing this, the defendant told her, “Go ahead[,] record me,” and then pushed Victim 2 over a retaining wall. She proceeded to attack Victim 1, causing her to fall to the ground. As Victim 1 was on the ground, the defendant jumped on top of her and struck her multiple times before kicking her. When police arrived, the defendant indicated that she had a personal feud with Victim 1 and admitted to “kicking her ass.”

Sentence

The defendant’s confrontation of three women outside of Boone City Hall turned physical, resulting in various injuries to all three. The defendant entered an Alford guilty plea to two counts of assault causing bodily injury for her attack on two of the three victims. In exchange, the State dismissed a related simple misdemeanor charge against the defendant involving the third victim under a separate case number. The district court rejected both parties’ sentencing recommendations and sentenced the defendant to consecutive one-year sentences for each count. Additionally, in this case, it entered no-contact orders prohibiting the defendant’s contact with the two victims of assault causing bodily injury. It also entered a no-contact order protecting the victim in the separate simple misdemeanor case just before dismissing said case.

The court

We affirm the defendant’s conviction, prison sentence, and the no-contact orders involving Victims 1 and 2. We remand to the district court with the following instructions: (1) the district court shall strike the provision in the sentencing order that a no-contact order be entered in the dismissed simple misdemeanor case, (2) the district court shall vacate the no-contact order entered in the simple misdemeanor case, and (3) the district court shall hold a hearing to determine whether a no-contact order involving Victim 3 as the protected party should be entered in this serious misdemeanor case.

Ames Tribune reports that the defendant and her victims were city commissioners

The victims of the assaults were fellow Boone arts commissioner Laura Hutchcroft; April Burch, a Boone parks commissioner and a cousin of Rasmussen; and fellow arts commissioner Holly Stecker who was also a city council member at the time.

(Mike Frisch)

May 24, 2024 | Permalink | Comments (0)

Thursday, May 23, 2024

Resignation Accepted

The Alberta Law Society Resignation Committee accepted an attorney's resignation

Greg Lintz is a 67-year-old lawyer who practiced in Edmonton. He was admitted to the Alberta bar in 1981. Over a period of approximately four to five years, Mr. Lintz collaborated with Shawn Beaver, an Edmonton lawyer who was suspended by the LSA in 2015 and subsequently disbarred in 2017. Between 2015 and 2020, their collaboration involved Mr. Beaver referring nine clients to Mr. Lintz who then facilitated Mr. Beaver retaining some significant involvements in the files. Upon being contacted by the LSA about this collaboration in December 2020, Mr. Lintz ceased the collaboration and thereafter cooperated with the LSA in its investigation. A hearing on this matter was initially set for November 2023, but at that time Mr. Lintz, who is dealing with a medical condition, determined to resign and close his practice by the end of the year, resulting in this proceeding. Mr. Lintz entered into undertakings with the LSA covering a number of related matters, including that he would not re-apply to the LSA for admission to the LSA (Undertaking). 

Respondent is an inactive attorney with no prior discipline.

Facts

Mr. Lintz executed a Statement of Admitted Facts (Statement) on October 31, 2023. In the Statement, Mr. Lintz acknowledged that he facilitated legal work being done by Mr. Beaver while he was suspended or disbarred by granting access to his firm's resources and the support of his legal assistant. This included allowing Mr. Beaver to, inter alia, prepare arguments, pleadings and legal briefs, meet with clients and provide legal advice and opinions, take instructions from clients, review disclosure and other client documents, and script emails and letters to other counsel with the intent that Mr. Lintz's name be inserted. 

The Statement also confirmed that, while Mr. Lintz did not pay Mr. Beaver, he also made no effort to inquire as to what Mr. Beaver's arrangements were with the clients. It also confirmed that Mr. Lintz and Mr. Beaver discussed fees, client files, litigation strategy, pleadings and other documents and exchanged disclosure materials. It appears that all of the nine clients were aware of Mr. Beaver's ongoing involvement in their matters. 

Resignation

Based on the evidence established by the Statement, and taking into account that even if the citation had been proved, it would be unlikely that the conduct would attract disbarment, the Committee determined that it was in the best interests of the public to accept the application of Mr. Lintz to resign pursuant to section 32, effective as of March 12, 2024, the date of the confirmation by the Trust Safety department that the outstanding conditions (referenced in paragraph 4) were fulfilled by Mr. Lintz.

(Mike Frisch)

May 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Colorado Sanctions Attorney

A stipulated six-month suspension with proof of rehabilitation has been approved by the Colorado Presiding Disciplinary Judge

Peterson represented a pregnant client in a personal injury suit arising from the client’s fall in a local store. They signed a contingency fee agreement, and the client agreed to settle the case. Peterson and the client also discussed the possibility of representing the client’s newborn son; Peterson eventually sent the defendant’s insurer a demand letter on the son’s behalf, even though Peterson never entered into a separate fee agreement to represent the son. During the representation, Peterson sent the client settlement correspondence from an entirely unrelated matter. Later, Peterson sent the client a letter encouraging her to seek opinions from other counsel. While the letter did not explicitly terminate the attorney-client relationship, both Peterson and the client understood the letter to do so. But Peterson did not notify the defendant’s insurance agent about the termination, and the agent refused to speak to the client.

When Peterson sent disciplinary authorities information about his trust account during the investigation of the matter, he failed to redact checks and information regarding other clients.

In another client matter, Peterson represented a landlord in an eviction matter, but he did not give the client a fee agreement. Peterson has not been able to produce an accounting of the client’s payments or any trust account reconciliation records from the period of the representation. The client ultimately terminated the attorney-client relationship.

Disciplinary authorities also received an insufficient funds notice in November 2023 regarding Peterson’s trust account. Peterson blamed his bank for inaccurately reporting to him how much money he held in his trust account. Disciplinary authorities asked Peterson for his internal accounting records, checks, and reconciliations from the relevant timeframe, but Peterson refused to provide them, invoking the Fifth Amendment.

Finally, during the disciplinary investigation of these matters, Peterson copied a lawyer for disciplinary authorities on an email chain with a client; the emails were entirely unrelated to the matters under investigation and revealed information related to the representation of that client.

(Mike Frisch)

May 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)