Tuesday, January 15, 2019

"They Don't Send The Lawyers To Jail Because We Run The Country"

An attorney has been censured by the New York Appellate Division for the First Judicial Department

The Attorney Grievance Committee commenced this disciplinary proceeding by a petition of charges (Judiciary Law § 90[2], Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.8), alleging that respondent was guilty of certain misconduct in violation of the Rules of Professional Conduct (22 NYCRR 1200.0) because he counseled a client to engage in conduct he knew was illegal or fraudulent and suggested to the client that lawyers in the United States can act with impunity. Specifically, respondent met with a potential client who represented himself as appearing on behalf of a West African minister. The individual stated that the minister desired to purchase real property in the form of a brownstone, an airplane, and a yacht in the United States. Respondent was under the impression that the money involved was in the tens of millions. The individual's explanation of the source of the money suggested that the money was questionable. The individual related that "companies are eager to get hold of rare earth or other minerals ... And so they pay some special money for it. I wouldn't name it bribe; I would say facilitation money." Respondent informed the individual that they would need to hide the true source of the money by setting up different corporations to own the properties the minister sought to purchase. Respondent also provided assurances regarding protection of the attorney-client privilege and stated that "[t]hey don't send the lawyers [in the United States] to jail because we run the country."

Sanction

 In light of the significant factors in mitigation, including respondent's cooperation, admitted conduct and acceptance of responsibility, and the fact that the misconduct was aberrational and occurred in the context of a single, open-ended conversation during a meeting with a potential client after which respondent took no further steps, the parties agree that a public censure is appropriate.

(Mike Frisch)

January 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Van Delay Industries

The New York Commission on Judicial Conduct admonished a Judge of the New York City Civil Court and an Acting Justice of the Supreme Court, 12th Judicial District, Bronx County

The Formal Written Complaint alleged that in August 2015 after respondent’s vehicle struck a police van, respondent asserted her judicial office to advance her private interests, pressured police officers not to complete an accident report and threatened a police officer who completed the report.

Sanction

In determining the appropriate sanction for respondent’s violation of the above-cited ethical standards, we reject respondent’s argument that public discipline is unwarranted because the "private interest" she was seeking to further during the incident was relatively minor. Although the police report itself may have been inconsequential to respondent except for the resulting delay, her desire to be allowed to leave the accident scene more quickly was clearly important enough to her to warrant invoking her judicial status repeatedly at each stage of her interactions with the police, in violation of Rule 100.2(C). In view of such behavior and the totality of the circumstances as set forth above, we conclude that a public admonition is required. In imposing this sanction, we remind every judge of the obligation to abide by this important ethical mandate

(Mike Frisch)

January 15, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, January 14, 2019

Former Judge Consents To Disbarment

An attorney who had "stabbed his wife multiple times" has consented to disbarment in Arizona. 

The crime took place on August 17 2017

during a domestic disturbance at Respondent's home. Respondent stabbed his wife several times. When initially questioned by the police at the hospital, Respondent and his wife said the attacker was unknown.

The wife told the truth about a month later. The attorney - a municipal judge at the time - admitted the crimes.

He also had "got[ten] rid" of the knife and bloody bedding.

He pleaded guilty to a Class 3 Felony Assault and a Domestic Violence offense and served four months incarceration. ( Mike Frisch)

January 14, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Halloween To Forget

A reprimand has been approved by the Arizona Presiding Disciplinary Judge

For purposes of the Agreement, the parties stipulate that on October 31, 2017, Ms. Oppenheim was intoxicated and argued with her husband about a divorce. Thereafter, she discharged her firearm into the bedroom door of their home while he was in the bedroom and destroyed walls and other objects with a hammer. Her husband called the police and upon their arrival, Ms. Oppenheim gave conflicting accounts of the events. In January 2018, Ms. Oppenheim pled guilty in CR2017-150211 to Disorderly Conduct, a Class 1 Misdemeanor and Domestic Violence Offense, Non Dangerous and Non-Repetitive. In February 2018, she was placed on two years of unsupervised probation and ordered to pay fines and restitution.

While the presumptive sanction is suspension

The parties stipulate that based on the mitigation present including ongoing treatment, the presumptive sanction of suspension should be reduced to reprimand and two years of probation (MAP).

The mitigation involves alcohol and other issues (Mike Frisch)

January 14, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Undue Pressure

An Illinois Hearing Board recommends that bar charges be dismissed as unproven

We found the Administrator failed to prove by clear and convincing evidence that Respondent knowingly made false statements in a motion to reopen his client's case and his testimony in relation to the motion. Specifically, the Administrator did not prove that Respondent's statements that his client had a strong desire to testify at trial since the inception of his case and that before trial and closing arguments his client wanted to testify were knowingly false. Rather, the evidence showed Respondent's client had a strong desire to testify throughout the pendency of his case but vacillated over the decision to testify after hearing the prosecution's case. Accordingly, we recommended the Administrator's Complaint be dismissed.

At issue was representations made regarding the client's decision to testify or not

The evidence demonstrates that Biles expressed a strong desire to testify at trial throughout his case. He often expressed a desire to tell his side of the story when communicating with Respondent. Then, when his trial commenced, he had planned to testify as evidenced by Respondent's opening statement.

We recognize, however, that despite Biles's intent to testify at trial, he was overwhelmed and conflicted about this decision during the recess. We agree with Respondent, who we found credible, that the situation was "unduly pressurized." The decision had to be made quickly and late in the trial day. Biles's brother had recently been killed and he was forced to think about this when his brother's case was dismissed that day. His motion for a directed finding was just denied while his co-defendant's was granted. Moreover, the decision whether to testify was significant in and of itself as the consequences of such a decision could radically change the trajectory of Biles's life as his college scholarship was at risk if he was convicted.

This pressure likely contributed to Biles's oscillation about testifying. He changed his mind repeatedly during a fairly short recess and even went back and forth about the decision in the seconds leading up to his case being recalled. We, however, find this oscillation, which, in large part, took place in a very short, highly pressured recess, insufficient to prove Respondent's statement that Biles had expressed a strong desire to testify throughout the pendency of his criminal case knowingly false.

Given Biles's initial decision to testify on the day of trial and subsequent oscillation, we believe it credible that Respondent initially concluded when drafting the motion to reopen that he put undue pressure on Biles to not testify. Respondent felt strongly that the prosecution's case was weak and Biles should not testify, and he conveyed this to Biles. While Respondent and Judge Porter told Biles the decision whether to testify was his to make, Respondent's encouragement to not testify at a time when Biles was vulnerable and highly stressed could have been perceived by Respondent as placing pressure on Biles to not testify. Accordingly, we find this statement when made by Respondent was not knowingly false in violation of Rule 3.3(a)(1).

Finally, Respondent's testimony at his sworn statement does not convince us that his statements in the motion to reopen and at the hearing on the motion were knowingly false. Respondent testified in his sworn statement that his subsequent statement that Biles had stated he wanted to testify immediately upon the defense resting was inaccurate. We credit Respondent's testimony that when he said this he was referring to the timing of the sequence of events. The evidence presented demonstrates that there was a lot going on in the very short time period between the recess and Biles being found guilty. The evidence suggests that the sequence of events was happening very rapidly and, in some instances, simultaneously. As a result, this contributed to Respondent's confusion regarding the timing of what transpired. Given how quickly everything happened and the continued oscillation of Biles, we are unconvinced by the evidence that Biles informed Respondent of his desire to testify only after being found guilty as the Administrator suggests.

While there were possible missteps made by Respondent in how he handled Biles's confusion about whether to testify, we do not believe these missteps rise to the level of an ethical violation. As Respondent testified, the pressure around this decision was unique and contributed to Respondent's confusion regarding his client's desire to testify and his level of involvement in helping his client make that decision. Accordingly, we find the Administrator failed to prove Respondent knowingly made false statements to the Court in violation of Rule 3.3(a)(1).

(Mike Frisch)

January 14, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Anti Trust

The United States Court of Appeals for the Fourth Circuit affirmed the district court in a law firm dispute

The dispute here is between two firms that represented plaintiffs in a large antitrust class action. The appellant, Criden & Love, seeks from the Saveri Law Firm a larger share of the award of attorneys’ fees in the action, asserting contentions sounding in contract, tort, and unjust enrichment. The district court rejected all of appellant’s claims. For the reasons that follow, we affirm.

The relationship between the two firms in this case is a product of the antitrust laws. The Supreme Court held decades ago that the only consumers who can challenge anticompetitive conduct are those who purchase goods or services directly from the supplier. See Ill. Brick Co. v. Illinois, 431 U.S. 720 (1977). Since many buyers may be unwilling to rock the boat with their business partners, the universe of potential antitrust plaintiffs is therefore relatively small. Firms like Criden & Love, the appellant here, step into the void, finding plaintiffs willing to sue and pairing them up with large antitrust specialists who can pursue their claim. They work for a fee, which can be substantial. In the case of Criden & Love, the typical referral fee is 12.5% of the larger firm’s total fee.

In February of 2010, Criden & Love identified a plaintiff who was willing to challenge anticompetitive conduct in the titanium dioxide market. It referred this client, Isaac Industries, to two law firms, Berger Montague and Lieff Cabraser, at the usual 12.5% rate. Isaac Industries then brought its antitrust claim, alleging price-fixing for titanium dioxide. This case was consolidated with a similar case brought by Haley Paint.

In April of 2011, Lieff Cabraser became co-lead counsel over the consolidated action, known as the “TiO2 Litigation.” A third firm, East Coast Colorants d/b/a/ Breen Color Concentrates (“Breen”), joined the case as a plaintiff a few months later. Breen had no connection with Criden & Love.

The trouble began in May of 2012, when an antitrust partner at Lieff Cabraser, Joseph Saveri, left to start his own enterprise, the Joseph Saveri Law Firm. Prior to starting his own firm, while still working at Lieff Cabraser, Saveri had filed a notice to appear on behalf of Isaac Industries. Saveri’s new firm soon took on Breen, Isaac Industries’ co plaintiff, as a client in the TiO2 litigation, entering an appearance on its behalf on June 1, 2012. Saveri’s firm never had an agreement with Isaac Industries, which was still represented by Lieff Cabraser.

Saveri thereafter sought the lucrative lead counsel role, which he obtained in August of 2012. No firms in the case objected to his motion to become lead. Ultimately, the class action was settled for a considerable sum of money. The attorneys’ fees in the case totaled more than $54 million. As co-lead counsel, the Saveri Law Firm was awarded approximately $10 million, based entirely on work performed after Saveri left Lieff Cabraser. The other firms representing the plaintiffs, including Lieff Cabraser, Berger Montague, and Criden & Love, were also compensated for their work on the case. In addition, Criden & Love was paid referral fees from Lieff Cabraser and Berger Montague, pursuant to the referral agreements for Isaac Industries. All told, Criden & Love was awarded $ 2.8 million for its role in the case, including more than $900,000 for its referral agreements.

The dispute in this case centers around what happened after Saveri left Lieff Cabraser to start his own firm. Saveri called Kevin Love, a Criden & Love partner, to notify him of his impending departure. On the call, Mr. Love alleges that he told Saveri he would still expect payment of the referral fee that Criden & Love entered into with Lieff Cabraser. Both parties acknowledge that at no point during the call did Saveri accept the request for a referral fee. After Saveri’s firm was added as co-lead counsel, Criden & Love sent two emails to Saveri attempting to confirm the referral agreement, but Saveri did not respond to either message. Once the case settled and the fees were distributed, Saveri communicated to Criden & Love that they had no agreement and no referral fee would be paid.

Saveri sued in Maryland federal court

the court held for Saveri on all counts. Joseph Saveri Law Firm, Inc. v. Michael E. Criden, PA, 2017 WL 3917003 (D. Md. Sept. 7, 2017). On Criden & Love’s contract theories, the court noted inter alia that the parties had never formed an express or implied contract. On the equitable claims, the court held that the “equity does not favor Criden & Love.” Id. Saveri was only compensated for work after leaving Lieff Cabraser, while Criden & Love was paid both for its own work on the case and for its referral of Isaac Industries. Finally, the court rejected Criden & Love’s fraud claim, finding the argument that Saveri’s failure to strike an appearance on behalf of Isaac Industries constituted fraud to be “unavailing.” Id. This appeal followed.

And led to affirmance

Both parties here are sophisticated actors and repeat players in the market for antitrust litigation. Both could have done more to clarify the terms of the relationship between them, and both failed to do so. It is not the job of the court to do this for them. In the absence of any sign that Saveri accepted the terms offered by Criden & Love, we must leave the negotiation where we found it. As such, we see nothing more than an offer that was never accepted. Since there are no disputed facts that would lead to a different conclusion, the district court was correct to resolve this question as a matter of law.

The curt also rejected equitable claims and quantum meruit as a basis to overturn the trial court. (Mike Frisch)

January 14, 2019 in Billable Hours, Economics | Permalink | Comments (0)

"Perhaps"

A proposed 60-day suspension from the California State Bar Court Review Department

Diddo Ruth Clark is charged with three counts of misconduct related to her representation of her brother in an appeal: appearing for a party without authority, seeking to mislead a judge, and misrepresentation. The gravamen of these charges is that Clark continued to submit documents to the court on behalf of her brother after he had filed an incomplete substitution of attorney form and told Clark that he no longer wanted her to represent him.

The hearing judge found Clark culpable of one count, appearing for a party without authority, and recommended that she be actually suspended for 60 days. Clark appeals the
judge’s discipline recommendation, maintaining that she is not culpable. The Office of Chief Trial Counsel of the State Bar (OCTC) does not appeal and asks this court to uphold the judge’s culpability finding and discipline recommendation.

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we reject Clark’s arguments and, like the hearing judge, find her culpable of appearing for a party without authority. We affirm the judge’s findings of facts and law, and her aggravation and mitigation findings, except for one, and agree that a 60-day actual suspension is appropriate discipline.

The attorney had represented her brother in litigation against four other siblings.

Clear and convincing evidence from the record supports the fact that Clark knew Peter did not want her to appear for him in the appellate court proceeding as of October 20, 2015, when Peter specifically told Clark that he wanted her to stop filing documents and pleadings on his behalf. Peter had the right to prevent Clark from doing that regardless of the legal status of the substitution of attorney he filed.

She had prior discipline

OCTC asserts that Clark’s prior misconduct involved dishonesty to a court and occurred four and one-half years prior to her current misconduct. OCTC submits that therefore her prior record of discipline is a “significant factor in aggravation because it involved serious misconduct and is not remote in time.” Clark argues that no aggravation should be found because the prior discipline was based on a “false confession,” which had been improperly coerced by OCTC. We reject her argument because Clark stipulated to this prior misconduct. That matter is final, and we will not revisit it here.

Clark’s prior misconduct was serious because it involved dishonesty. In addition, we find that her failure to accept responsibility for her past wrongdoing causes concern because it shows that she does not fully understand her professional duties nor appreciate the gravity of her prior misconduct. Thus, we conclude that Clark’s prior discipline merits substantial weight in aggravation.

State of mind

We agree with the hearing judge that Clark honestly believed that she remained Peter’s attorney because she did not consent to the change as required by Code of Civil Procedure section 284. Between the time the substitution was filed and the court issued its order, Clark’s actions concurred with her honest belief that Code of Civil Procedure section 284 permitted her to continue to act as she did. She designated herself as Peter’s attorney during this time, and the court did not correct her until it issued an order nine months later. After that order, she changed her designation to “perhaps” Peter’s attorney.

The attorney produced a number of favorable character witnesses.

The recommendation is for a one-year suspension with all but 60 days stayed on conditions. (Mike Frisch)

January 14, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Unrestrained Attorney Faces Sanction

The New Hampshire Professional Conduct Board recommends a two-year suspension of an attorney

The Attorney Discipline Office ("the ADO") filed a Notice of Charges ("Notice") alleging that the Respondent, James E. Michalik, violated Rules of Professional Conduct 8.1, 8.4(a), 8.4(b), and Supreme Court Rule 42(XIV). The Notice alleged that Mr. Michalik was twice convicted of the crime of violating a domestic violence restraining order involving the same victim, his wife Sharon. RSA 173-B:9, III. It further alleged that he failed to respond to the Notice. By virtue of his failure to respond, Mr. Michalik was deemed to have admitted to the charges. Sup. Ct. R. 37A(III)(b)(3)(A), and a Hearing Panel ("Panel") was convened to fix a sanction.

Mr. Michalik failed to appear for the sanction hearing. After the hearing, the Panel issued an order recommending that he be suspended from the practice of law for two years and be assessed the costs incurred by the ADO in the investigation and prosecution of the matter.

The New Hampshire Supreme Court will decide the matter. (Mike Frisch)

January 14, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Memories Of Judge Wald

The passing of Judge Patricia Wald brings back some reflections on events that took place 45 years ago. 

My time as a student at Georgetown Law (1971-74) was a period of extraordinary opportunities in the legal profession. 

The education provided a vehicle to engage with the issues of the times. My own stint as a research assistant for the Senate Watergate Committee gave me the chance to witness the testimony of John Dean and Alexander Butterfield and set my path on the course that led me back to Georgetown.

Of course, the opportunities could lead to a different destination as my first year section mate Paul Manafort can attest.

My first mentor in the law was Larry Schwartz, an adjunct professor who taught me Juvenile Justice. At the end of the first class, he asked if anyone was driving to Chevy Chase. As I was living at home, I was.

I drove Larry home after each class. He was the first professor I got a chance to know, wrote my first job recommendations and encouraged me to pursue criminal defense.

He introduced me to his then-colleague at the Mental Health Law Project Patricia Wald when I was a student editor for the (then brand new) American Criminal Law Review. 

I edited this article for them

 

A Symposium: Juveniles and the Law American Criminal Law Review, Vol. 12, Issue 1 (Summer 1974), pp. 125-164 Wald, Patricia M. (Cited 2530 times); Schwartz, Lawrence H. (Cited 15 times) 12 Am. Crim. L. Rev. 125 (1974-1975)

They also encouraged me to write a publish a case note in the ACLR on this decision.  

I later was (if fading memory serves) the first law clerk for Larry's  firm Stiller Adler & Schwartz. 

Of course, Judge Wald went on to a distinguished career on the appellate bench which is detailed elsewhere. 

I fondly remember her gentle encouragement of my efforts and the time that I was privileged to work for her.

One great disappointment was her opinion in United States v. Orson White ruling against my client's Fourth Amendment contention.

Close cases involving the exclusionary rule present difficult issues for courts as well as law enforcement officials. This close case  presents the question of whether narcotics squad officers acting on an anonymous tip "unreasonably" made an investigatory stop which culminated in an arrest and seizure of narcotics so as to violate the defendants' Fourth Amendment rights and require suppression of the narcotics. The trial court denied the suppression motion and we affirm its decision.

Circuit Judge Harry Edwards dissented

Pared to its essential facts, this case involves two police officers who, acting solely on an anonymous tip, blocked the appellants' car, approached the appellants with guns drawn, and ordered them out of their automobile at gunpoint. The police officers acted without probable cause; they acted without having observed any suspicious circumstances; and they acted without having any reliable information about the appellants, who were unknown to them. The police officers never had specific reasons to fear for their safety: they observed nothing that would indicate potential violence; the tipster had said nothing about weapons; the appellants were not suspected of committing any violent crime; the appellants were in plain view of the officers at all times; and the appellants never attempted to flee. Despite this, the officers asked no questions of the appellants before ordering them to get out of their car at gunpoint.

This case arose in the inner-city of Washington, D. C. One wonders whether police officers, acting on an anonymous tip, would accost well-to-do residents in one of the affluent suburbs near Washington (where drug peddling is known to be prevalent), in the same manner that they accosted the appellants here. It is doubtful.

The United States Supreme Court gave us 3 votes for certiorari with a published dissent from the denial by Justice White. 

Two Terms previous, I dissented from a denial of certiorari that left the state and lower federal courts in conflict and confusion over whether an anonymous tip may furnish reasonable suspicion for an investigatory detention. Jernigan v. Louisiana, 446 U.S. 958d 816 (1980). Because it remains apparent that this difficult issue of everyday importance to law enforcement officials and citizens on the street alike requires resolution here, I am again moved to note my dissent.

Justices Brennan and Marshall joined. (Mike Frisch)

January 14, 2019 | Permalink | Comments (0)

Sunday, January 13, 2019

Massage Misconduct Matter Concludes

The terms of a stayed suspension have been concluded by the Massachusetts Supreme Judicial Court. 

The 2017 order had stayed a three-month suspension on conditions for twelve months. 

From the summary of the misconduct on the web page of the Board of Bar Overseers

On January 11, 2016, the respondent, Gary R. Edwards, who was admitted to the bar of the Commonwealth on December 15, 1998, admitted in the Plymouth District Court to sufficient facts to one count of indecent assault and battery on a person fourteen or over, a felony, in violation of M.G.L. c. 265, § 13H. The matter was continued without a finding until January 11, 2017, with probationary terms. The circumstances supporting the admission to sufficient facts were as follows.

The respondent was employed as a massage therapist. During a massage, he asked a female customer, age 34, if she wanted her chest massaged. When she said yes, the respondent massaged her breasts and touched her nipples. She immediately told him to stop, and he did. The customer allowed the massage to continue but reported the incident to the owner of the facility later that day.

In mitigation, the respondent’s criminal conduct did not involve the practice of law. The respondent ceased his indecent assault and apologized when the victim objected. The respondent complied with the terms of his probation, including a mental health evaluation and counseling, as a result of which the charge was dismissed at the end of the continuance period. The respondent has surrendered his license as a Massage Therapist Practitioner.

(Mike Frisch)

January 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Stealing From His Widowed Mother Gets Attorney Disbarred

A summary of a recent disbarment from the web page of the Massachusetts Board of Bar Overseers

On July 21, 2015, Joseph P. Bernardo (respondent) was convicted after a bench trial in the Pittsfield District Court of larceny over $250 by a single scheme in violation of G.L. c. 266, § 30(1), a felony. He was sentenced to one year in the house of correction. His conviction was upheld by the Appeals Court on June 20, 2017.

The respondent’s conviction was based on the following facts. The respondent represented his elderly mother in obtaining Veterans Administration benefits to which she was entitled as the widow of a combat veteran. The respondent became the representative payee of his mother’s account into which the monthly benefit payments were deposited. From August of 2012 through January of 2013, the respondent wrote numerous checks from the account for his own benefit totaling at least $21,000 without his mother’s knowledge or consent.

Sanction

The parties waived hearing before the Court and assented to disbarment as recommended by the board. On December 14, 2018, the Supreme Judicial Court for Suffolk County (Lowy, J.) so ordered.

The Berkshire Eagle reported on the conviction.

 A Canton man has been sentenced to a year in jail for stealing more than $20,000 in Veterans Affairs benefits from his 97-year-old mother, who resided in assisted living facilities in the Berkshires until her death.

Joseph Bernardo, 67, was convicted on Tuesday after a three-day bench trial in Central Berkshire District Court.

Prosecutors accused him of abusing his role as his mother's attorney and representative payee for Veterans Affairs and Social Security benefits and taking $21,329 for his own use.

Bernardo testified that the payments were for his services as her attorney in applying for the Veterans Affairs benefits, and that she still reaped a net benefit thanks to his work. She has since died.

The investigation into Bernardo began in June 2013 when his mother, Lucy Bernardo, notified Elder Services that her son had not been paying for her care, resulting in her eviction from the Melbourne Place assisted living facility. Elder Services, in turn, notified the Pittsfield Police Department.

During her stay at Melbourne Place, Lucy Bernardo racked up about $23,000 in unpaid rent, according to the criminal complaint filed by Pittsfield Police. Her niece stepped in and helped her move to the Devonshire Estates assisted living facility in Lenox.

Assistant Berkshire District Attorney Dana Parsons portrayed Bernardo as a dispassionate son, going as far as to point out that he did not hold a funeral for his mother and did not claim her ashes for about a year after she died.

Parsons methodically pored over each of the duties Bernardo claimed to have performed on behalf of his mother, questioning why many of them — such as obtaining a copy of her birth certificate — required legal assistance at all.

Bernardo, an attorney in Massachusetts for 35 years, testified that he gave his mother a discount on his services, knocking down the price from $300 per hour to $150. He maintained there was a complexity to obtaining the benefits, including writing an essay on behalf of his mother.

In advocating for a one-year direct jail sentence, Parsons blasted Bernardo for abusing his position of trust both as the victim's son and as an attorney.

"He should be held to a higher level of ethical trust," Parsons said.

Parsons said that Lucy Bernardo has "spent her life saving and being frugal," but that Bernardo "squandered" her money to his own benefit.

In asking for probation, defense attorney Joseph G. Vosit argued that Bernardo's 35-year career as an attorney is "unblemished," and noted his client's efforts produced $40,000 in veterans benefits for his mother.

"I know in his heart he feels all he ever did was try to help his mother," he said.

Judge Michael Ripps ruled that Bernardo was guilty of a single count of larceny over $250 by a single scheme and sentenced him to a year in the Berkshire County Jail and House of Correction.

At Vosit's request, Ripps delayed the start of the sentence for two weeks while Bernardo sets his affairs in order.

Bernardo sat quietly after the verdict was read and did not appear to show emotion.

(Mike Frisch)

January 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, January 12, 2019

Every Brother 's Son

A conflict of interest in contentious family law litigation has drawn a reprimand from the Tribunal Hearing Division of the Upper Canada Law Society (David A. Wright)

The respondent Lawyer, Ronald Zaldin, practises family law. His twin brother, Donald Zaldin, is also a lawyer and was his employee, practising under his supervision. In 2013 and 2014, the Lawyer represented his nephew, Donald’s son, in family law proceedings.

The Lawyer admits that he engaged in professional misconduct by acting in a conflict of interest and by failing to treat the opposing party, opposing counsel and the Office of the Children’s Lawyer (OCL) honourably. He disclosed to the OCL the position taken by the opposing party in a closed mediation and deliberately failed to copy opposing counsel on an e-mail to the OCL. As a result, he was removed as counsel by Madam Justice Kiteley: See Zaldin v. Zaldin2014 ONSC 6504 (CanLII).

The misconduct

The litigation was high-conflict, and the parties could not agree on custody and access arrangements. In November 2013, following a consent order requesting its involvement, the OCL agreed to provide services to the parties. Around the same time, the parties participated in closed mediation. The mediation agreement provided that all information provided would be confidential.

On January 24, 2014, Sally Doulis, the OCL clinical investigator, phoned each of the parties’ counsel to introduce herself and arrange further discussions. When she phoned the Lawyer’s office, his brother Donald answered the telephone. Neither the Lawyer nor his assistant was available to speak with Ms. Doulis. His brother decided to speak to her about the case without the Lawyer’s knowledge or consent.

The Lawyer later told the Law Society that when he returned to the office and learned of the call, he asked his brother to give him details. The Lawyer said his brother told him only that Ms. Doulis said she was appointed to conduct the investigation and would contact the spouses directly. The Lawyer confirmed this version of the call at the time in a letter to Ms. Doulis and opposing counsel. However, it later became clear that there was much more to the call. In fact, Donald had spoken to Ms. Doulis about what had happened between the spouses since their separation.

 On April 2, 2014, Ms. Doulis had a meeting with the parties and their counsel in which she reviewed the contents of her written report and provided them copies. The Lawyer had some concerns with the access schedule it contained.

 On April 11, 2014, the Lawyer wrote to Ms. Doulis directly at 3:42 p.m., without copying counsel for the other side. That e-mail made reference to discussions that had happened in the closed mediation and attached a letter from opposing counsel to him that referenced the mediation. The Lawyer was explicit in the e‑mail that he intended that the information be kept from the other side:

For the record, I am NOT copying Ms. Israel with this letter in order not to make the central issue the mechanics of how the parties move forward with the substantive issue herein: the timely and cost-efficient resolution of the custody/access issues by way of a joint custody agreement (in the best interests of the children).

Instead, I will be requesting your formal Report and Recommendations at your earliest convenience) by a separate, stand-alone email, which will soon follow this email.

[emphasis in original]

At 3:47 the same day, the Lawyer sent a more limited e-mail that did copy opposing counsel, giving the impression to opposing counsel that the second e‑mail was the only one that had been sent.

The conflict

The close personal relationships between the Lawyer, his employee/brother and his nephew ran the risk of impairing his representation of the client. In fact, such impairment occurred when his brother became involved in discussions with the OCL, and when the Lawyer acted aggressively and dishonourably in the litigation.

Sanction

The parties jointly submitted that the penalty should be a reprimand. The Tribunal must accept a joint submission unless it is outside the reasonable range or would bring the professional discipline system into disrepute: Law Society of Upper Canada v. Cooper2009 ONLSAP 7 (CanLII). The parties worked very hard to reach a resolution they could agree on, during multiple pre-hearings. I agree this is a reasonable penalty in the circumstances.

This misconduct is clearly at the less serious end of the spectrum. In other cases, allegations of acting in a conflict of interest and/or disclosing information that should not be disclosed have led to a reprimand: see Law Society of Upper Canada v. Ghan2012 ONLSHP 199 (CanLII)Law Society of Upper Canada v. Guttman2012 ONLSHP 119 (CanLII); and Law Society of Upper Canada v. Anber2014 ONLSTH 143 (CanLII). The Lawyer has no discipline history, has admitted the misconduct and has shown remorse. This penalty will deter him from repeating the misconduct and also deter other lawyers from engaging in similar misconduct. It is clearly within the range of reasonableness.

(Mike Frisch)

January 12, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 11, 2019

Missing In Action

The Kansas Supreme Court has disbarred an attorney who accepted and neglected a personal injury claim.

He made himself unavailable to the clients, as reflected by the hearing committee findings

The respondent failed to inform W.D. that he moved his office to another location. On his own, W.D. learned that the respondent had moved his office to 810 Pennsylvania, Lawrence.

W.D. or K.D. called the respondent weekly, but were not able to make contact with him. At some point, the respondent's voicemail box was full.

During the fall of 2015, they left notes on the door of the respondent's office because when they would attempt to locate him in his office, he was never present. They contacted the manager of the building where the respondent's office was located, but they were not able to obtain information on how to get in touch with the respondent.

In February 2016, W.D. and K.D. sent a letter to the respondent via certified mail, return receipt requested. The letter eventually came back as unclaimed because it was not picked up by the respondent.

The complaint followed these efforts and response was not forthcoming

In June 2016, Special Investigator William Delaney contacted the respondent at his home. The respondent claimed that he had not received the complaint, but that he would respond. While the respondent provided Mr. Delaney with W.D.'s client file, respondent never provided a response to the complaint.

He had filed the civil case after the statute of limitations ran

The respondent's misconduct was motivated by dishonesty. The respondent failed to inform W.D. that he had not filed the case timely. The respondent falsely told W.D. and K.D. that the case was progressing. The respondent falsely told opposing counsel that the suit had been timely filed and that there was a 'glitch' in the clerk's office. Accordingly, the hearing panel concludes that the respondent's misconduct was motivated by dishonesty.

And had prior discipline leading to suspension

On December 23, 2016, the Supreme Court suspended the respondent's license to practice law for a period of one year for violating Rules 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safeguarding property), 1.16 (termination of representation), 8.1 (cooperation), 8.4 (professional misconduct), 207 (cooperation), and 211 (failure to file an answer to the formal complaint).

The court

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, the Disciplinary Administrator recommended disbarment. In its final hearing report, the panel agreed with the Disciplinary Administrator and recommended disbarment. At the hearing before this court, the Disciplinary Administrator continues to recommend disbarment. Respondent did not appear. We have previously held: "Certainly, the lack of an appearance at a hearing before this court qualifies as an additional aggravator." In re Barker, 302 Kan. 156, 163, 351 P.3d 1256 (2015); see Kansas Supreme Court Rule 212(d) (respondent shall appear in person in disciplinary proceedings before the Supreme Court).

Oral argument (a trifle one sided, as Major Strasser would say) linked here. (Mike Frisch)

January 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Ex-Judge Goes To Prison For "Violent Acts of BDSM"

Alexandra Mester of The Toledo Blade reported last November

 A former Monroe County district judge fidgeted with his fingers and twisted his wedding ring as officials read graphic victim-impact statements from several young women describing how he brutally whipped, beat, and electrocuted them for sexual gratification.

Jarod Calkins, 41, of Carleton, Mich., was sentenced Thursday in Monroe County Circuit Court to prison, with no alternative programs allowed, after pleading guilty in September to four felony counts of misconduct in office. Washtenaw County Circuit Court Judge Archie Brown heard the case after Monroe County judges recused themselves.

“If there ever comes a time when it’s easy to put somebody in a cage, then you’re in the wrong line of business,” Judge Brown told Calkins. “I’m doing that today, and you know that, Mr. Calkins.”

He sentenced Calkins to one to five years for each count, to be served concurrently. He must also complete a sex-offender treatment program and pay court fees and costs. He will not have to register as a sex offender upon his release.

WATCH: Judge Archie Brown addresses Jarod Calkins during sentencing

Andrea Bitely, spokesman for the Michigan Attorney General’s Office that tried the case, said Calkins is believed to be the first Michigan judge to go to prison. Following sentencing, the state bar will review his law license.

“When you’re a person in a position of power and you choose to use that power to the detriment of others, there are consequences,” she said. “Mr. Calkins is now aware of those consequences.”

According to a criminal complaint, Calkins used the alias Michael Collins on the dating app Tinder, dating website OkCupid, on Facebook, and other places online to meet women. He told them he wanted to be their “sugar daddy” and said he would provide gifts and money in exchange for sex.

Calkins resigned as a judge in April after he was initially charged with one felony count of transporting a person for the purposes of prostitution as well as four misdemeanor counts of hiring women for the purpose of prostitution following an investigation by the Michigan State Police. The investigation began in 2017 after state police were told of “prostitution-related activities” at a Monroe Township hotel, according to a news release.

In 2016, Calkins gave four women ages 19 to 22 $50 to $200 cash each encounter for several meetings over the course of a few months. He perpetrated violent acts of BDSM — bondage, dominance, sadism, and masochism — that sometimes ignored the victims’ boundaries and protests, according to the complaint.

Defense attorney William Godfroy argued the encounters were consensual and the victims knew of Calkins’ intent to engage in BDSM. Michael Frezza, assistant attorney general, said the women consented only to what they believed would be playful sexual experimentation and withdrew consent when things escalated.

Three of the victims provided detailed written statements while the fourth told officials she could not bear to relive what happened. The women said they were seeking a caring relationship, but Calkins was not interested beyond sex.

WATCH: Jarod Calkins addresses the court

The three described similar encounters in which they said Calkins used varying restraints to bind them in often painful positions so they were unable to move or resist, severely whipped and beat them with multiple objects, choked them, aggressively used sex toys on them, and electrocuted them.

“The only way I can describe this experience is torture,” one victim wrote, adding she has nerve damage after being electrocuted through her genitals. “He was dehumanizing me, treating me like a punching bag, like his property that he could do whatever he wanted to. I was just a sexual object to him that he possessed that couldn’t say no. I felt like his personal sex slave.”

Victims said Calkins wanted to hurt them, enjoyed making them cry, and liked to see the marks he left on their bodies and how their bruises changed over time. They said they were afraid of being hurt even more if they didn’t comply, sometimes afraid for their lives.

The women said they tried to refuse Calkins’ money, but he placed it in their purses or they accepted it out of fear.

Calkins apologized to the women, his family and friends, and the community that elected him, saying he was “in a very dark place” and “attempting to fill an emotional void” at the time. He said he has been in therapy for 2 1/2 years.

“I stand here before you today in a much different place than 30 months ago,” he told Judge Brown. “I am not the same man.”

Judge Brown said public officials are held to a higher standard.

“You took the same oath I did, both as a lawyer and as a judge, and that was the duty to serve the public and not misuse it,” Judge Brown said.

First Published November 29, 2018, 9:48am

The felony complaint may be found here. 

January 11, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, January 10, 2019

Harassment Leads To Resignation, Suspension Of Prosecutor

A 180-day suspension has been imposed by a hearing panel of the Michigan Attorney Discipline Board

 Based on respondent's admissions, plea of no contest and the stipulation of the parties, the panel found that respondent committed professional misconduct in his position as Branch County Prosecutor by sexually harassing and/or by failing to treat several employees of the Branch County Prosecutor's Office, Circuit Court and the Friend of the Court with courtesy and respect.

Specifically, the panel found that respondent engaged in conduct that violated a criminal law, MCL 750.520e (fourth-degree criminal sexual conduct), in violation of MCR 9.1 04(5); engaged in conduct that involved a violation of the criminal law where such conduct reflected adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, in violation of MRPC 8.4(b); and failed to treat with courtesy and respect all persons involved in the legal process and failed to take particular care to avoid treating such persons discourteously because of a person's race, gender, or other protected personal characteristic, in violation of MRPC 6.5(a). Respondent was also found to have violated MCR 9.104(2) and (3).

The story of his resignation from WWMT.com

In documents filed with the state's attorney disciplinary board, Kimble admits to six of the eight counts filed in the formal complaint against him. The prosecuting attorney's admissions include threatening, fat shaming, and sexually harassing staff, mostly women, at the Branch County Courthouse.

According to the documents, Kimble admitted to talking about the size of his penis to court employees on multiple occasions.

The Daily Reporter noted

Kimble said he will take the six month to work on his farm and with his trucking business, as well as snowmobile and relax with his children and step children.

The Detroit News had a story in March 2018

 A county prosecutor in southern Michigan has been barred from talking to certain women in the courthouse unless a male employee or a sheriff’s deputy is present.

It’s one of many conditions placed on Ralph Kimble by Branch County judges. He’s been accused of sexual harassment but firmly denies the allegations. There’s also a recall campaign against him.

A Feb. 22 order obtained by WWMT-TV says Kimble is barred from the second floor of the courthouse except for courtrooms or judges’ offices. He can’t speak alone to a female employee of the judiciary.

Kimble tells radio station WTVB that it’s “more dirty politics” by judges. He says he’s “not their team player.”

Another report from The Daily Reporter on the related civil suit.

A civil lawsuit against by former Branch County prosecutor’s office secretary Evon Staley against Branch County and Prosecutor Ralph Kimble has been settled.

The case was dismissed with prejudice and with all parties assuming their own costs and attorneys fees.

Staley, the senior secretary in the prosecutor’s office, filed for wrongful termination, intimidation, and for sexual harassment under the Michigan Elliot Larsen Civil Rights Act in October 2017.

Kimble would only comment under instructions from his attorney that the case “has been settled to the satisfaction of all parties.” No one from Branch County, nor Staley’s attorney was available for comment.

No settlement agreement was filed with the court and terms of the settlement were not disclosed. County commissioners held a 20-minute closed door session July 24 to discuss litigation with attorney Christopher Johnson, the county counsel in the case.

The dismissal was signed by Cass County Probate Judge Susan Dobrick Sept. 17 at the request of attorneys in the case. Dobrick had sent the case for “facilitative mediation” in June.

JDobrich, chief circuit judge in the 43rd circuit court of Cass County, replaced Branch County Circuit Judge Bill O’Grady after he recused himself.

Staley claimed she was fired after complaining about three years of sexual harassment working for Kimble. The nine-year employee of District Court who worked 16 years with the prosecutor’s office claimed the sexual harassment was not only toward her, but other women in the courthouse in15th Circuit, Probate, and 3-A District courts, as well as other county agencies.

Her attorney listed 76 witnesses for the civil trial who were employees or who worked around the courthouse who he said complained of or witnessed Kimble’s conduct.

Staley said the unwanted verbal misconduct of a sexual nature toward her was both offensive and unwelcome. Staley said individually Kimble made unwanted touches of her, rubbed himself against her, asked her to engage in sex, called her at home asking about her sex life, and asked her to engage in sex within days of her husband dying.

Kimble has denied each allegation. He said Staley was fired only after a large indoor marijuana grow operation was located on her Grass Lake Road property by agents from the SWET unit of Michigan State Police.

The investigation was turned over to Michigan State Police. They conducted an investigation against Kimble which looked into sexual harassment and conduct against the second-term prosecutor The investigation went to the attorney general who said there was only one misdemeanor charge possible, but the woman involved declined to move forward with the case.

Others claims of misconduct by Kimble were found to be rumors or false.

The same allegation are the basis of a grievance by the Michigan Bar Association against Kimble which had been set for hearing by a three attorney panel Oct. 2 in Kalamazoo. Kimble denied each of the claims against him and asked for a public hearing on all the claims.

That hearing has been cancelled and no further date set.

Originally in the suit, Staley had asked to return to her job. Later she amended it to drop that request and move forward only on the harassment claims seeking unspecified money damages.

Staley, 58, her daughter Stephanie, 35, and her son’s girlfriend, Patricia Moses, 35, entered pleas to misdemeanor “disorderly person – maintaining a drug house” in a plea bargain handled by the Kalamazoo County prosecutor.

All were given time served for the time it took to book and bond them out of jail, plus ordered to pay $625 in fines and court costs.

Her son, Blake Staley, 38, pleaded guilty to manufacture of marijuana in a large grow operation in the family barn. He was placed on 18 months probation and given one day jail.

(Mike Frisch)

January 10, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Cab Fare

An attorney has been suspended on an interim basis by the New York Appellate Division for the First Judicial Department

Respondent's repeated failure to comply with the subpoenas directing him to appear for a deposition, despite being granted multiple adjournments by the Committee over a five month period, constitutes willful noncompliance with a Committee investigation warranting an immediate suspension.

The response of the Grievance Committee to his protestations

In reply, the Committee maintains that respondent's prior correspondence, failure to provide documents, and three missed appearances evidence his categorical refusal to appear for a deposition; respondent's claim that he has practiced law for 67 years without incident is inaccurate in that he has been the subject of prior complaints, as have two law firms in which he was a named principal; and respondent's claim that he is willing to appear for a deposition in the future is belied by his prior conduct, which includes inadequate excuses for his failures to appear (e.g., the prohibitive cost of cab fare from Grand Central to the Committee's offices in lower Manhattan).

The complaint

In or about September 2017, a client of respondent's filed a complaint against him alleging that he failed to refund her $3,700 retainer after she discharged him as her counsel. By his December 12, 2017 answer, respondent denied the client's allegations and maintained that she was not entitled to any refund because the services rendered exceeded her $3,700 retainer.

In her reply, the client took issue with respondent's answer and attached a letter she had received from an attorney offering to defend her in a lawsuit brought against her.

Then

By March 28, 2018 letter, respondent requested that his deposition be adjourned to May 17, 2018 because of his advanced age (91-years-old), poor health, and need for additional time to collect the documents specified in the subpoena. The Committee agreed to this request and rescheduled respondent's deposition for the date he requested.

By May 3, 2018 letter, respondent requested that the Committee withdraw the subpoena pursuant to CPLR 2304 because he claimed to have already provided all his documents related to his representation of the client. Respondent further stated that the Committee's document request, insofar as it pertained to his lawsuit against the client, was "incomprehensible" and required clarification. In response to the subpoena's request for information about respondent's law firm, he enclosed only a copy of the certificate of incorporation, and maintained that only the named attorneys had worked on client matters; and "[i]n view of the foregoing" he would not appear on May 17, 2018 as directed.

The Committee declined to withdraw the subpoena and insisted that respondent appear for his deposition as directed. In a May 11, 2018 letter respondent reiterated his request for withdrawal of the subpoena, which the Committee denied, and he again advised the Committee that he would not appear for his deposition. Respondent did not appear on May 17, 2018 as directed. To date, respondent has not appeared for a deposition in connection with the September 2017 complaint.

In response to a 2016 complaint filed by a former client, the Committee commenced an investigation into whether respondent and other attorneys with whom he was associated brought frivolous and retaliatory lawsuits against clients and third parties who sought refund of legal fees or the return of monies, or who requested fee arbitration or filed disciplinary complaints, including the 2016 complaint by the former client. As a part of its investigation, the Committee questioned respondent's actions as plaintiff's counsel in a 2016 defamation action entitled Mertz, Bitelman & Associates Attorney at Law P.C. v Yuan Qian, John Doe and Jane Doe (Supreme Ct, NY County, Index No. 152761/2016) and, in April and May 2018, sought information and documents related thereto from respondent (which included tax forms and contracts/agreements for certain employees of the Mertz firm) by way of correspondence and judicial subpoena.

The committee granted postponement but patience eventually wore out

By August 8, 2018 letter, respondent requested that his deposition be adjourned until at least October 17, 2018 because in July he was involved in a car accident, and his driver's license had been "temporarily withdrawn," his home had been damaged by flooding and repairs were in progress, and his wife's health prevented him from leaving her alone as he was without family or other support. By August 13, 2018 letter, the Committee declined to adjourn respondent's deposition and again advised him that his failure to appear would be grounds for his interim suspension.

(Mike Frisch)

January 10, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Short Suspension With Conditions

A three-month suspension with reinstatement if certain directives are adhered to has been ordered by the New Jersey Supreme Court.

The Disciplinary Review Board majority describes the misconduct

This case involves respondent’s failure to cooperate with the OAE for more than one-and-one-half years. Following two overdrafts in her trust account, she failed to produce records she was required to maintain under R. 1:21-6, despite the OAE’S numerous requests, the granting of extensions, and scheduled audits. As mentioned above, respondent’s failure to cooperate eventually led to her temporary suspension. In the interim, she also failed to reply to an additional grievance.

And on sanction, a three-month suspension

We further determine that Respondent should not be permitted to apply for reinstatement until she has fully cooperated with the OAE; and upon reinstatement, that she practice under the supervision of an OAE-approved proctor for a two-year period; that she submit monthly reconciliations of her trust account to the OAE on a quarterly basis for that same period; and that she attend an OAE-approved trust and business accounting course, in addition to the mandatory continuing legal education credits that R. 1:42-I requires.

Dissent of member Gallipoli

I dissent from the majority and vote to recommend respondent’s disbarment. I do so not because of respondent’s disciplinary record, but because an attorney who fails to comply with an Order of the Court entered in an attorney discipline matter manifests a disdain for the disciplinary process and the responsibilities attendant to the privilege of being permitted to practice the profession of the law. If the Board were to recommend disbarment, respondent would be compelled to appear before the Court to explain why she has not complied with the Court’s Order requiring the filing of the R. 1:20-20 affidavit. I believe that this should occur.

(Mike Frisch)

January 10, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 9, 2019

Not Automatic

The New York Appellate Division for the First Judicial Department has held that automatic disbarment did not attach to an attorney's federal tax conviction.

The crime

On June 12, 2017, respondent was convicted, upon his plea of guilty, in the United States District Court for the Southern District of New York, of corruptly endeavoring to obstruct and impede the due administration of the Internal Revenue laws in violation of 26 USC § 7212(a) and tax evasion in violation of 26 USC § 7201, both federal felonies.

On October 11, 2017, respondent was sentenced to two years in prison, followed by three years of supervised release, and ordered to pay $1.5 million in restitution to the Internal Revenue Service (IRS) for his unpaid tax debt.

Respondent's convictions stemmed from his alleged participation in a tax evasion scheme involving his diversion of millions of dollars of tax shelter fee income from his law firm to himself, and his failure to declare these fees as income to the IRS.

The law

We find that automatic disbarment is not warranted in the present case as respondent's plea admissions, when read in conjunction with the indictment and other testimony, do not establish "essential similarity" between the federal felonies of which respondent was convicted and the New York State felony of scheme to defraud in the first degree. Respondent never admitted that he engaged in any scheme to defraud. His plea admissions were limited to his acknowledgment that he failed to report in excess of $10,000 in income for each of the six years at issue. Respondent did not admit to engaging in a "systematic ongoing course of conduct" by which he wrongfully obtained property "with a value in excess of one thousand dollars" from a defrauded party. Moreover, in his written plea agreement, respondent reserved his right to argue that his receipt of the unreported income did not warrant an upward adjustment in his sentence under the federal sentencing guidelines because, contrary to the government's position, it was not "income . . . from [a] criminal activity" and the court declined to make such an upward adjustment when it calculated respondent's sentence.

The Committee takes the position that there is an essential similarity between the federal felonies of which respondent was convicted and the New York State felony of scheme to defraud in the first degree based on the allegations in the indictment that respondent "secretly and unlawfully diverted from a major law firm" over $3 million in fraudulently obtained fee income from tax shelter and related transactions that he worked on while serving as a partner of the law firm, that respondent caused false statements to be made to the IRS, and that respondent evaded a substantial part of his income tax due and owing to the IRS by filing a false tax return which did not include the unlawfully diverted income. Additionally, the Committee relies on the statements made by the prosecutor at respondent's sentencing in which the prosecutor emphasized that respondent's crimes encompassed deceiving his law partners by hiding substantial fee income in blatant contravention of the terms of their partnership agreement, as well as the statements of the sentencing court when it highlighted the protracted and dishonest nature of respondent's actions, which deprived the federal government of significant tax revenue. Further, the Committee points to the fact that when the sentencing court gave respondent a chance to be heard in response to those statements, he did not dispute the prosecutor's recitation of respondent's deceit of his partners.

However, respondent never admitted to any of the allegations in the indictment that he engaged in a scheme to defraud his law partners. All that he admitted to was that he failed to report income to the IRS. Respondent reserved his right to argue that he should not receive an upward adjustment because he did not receive any income from a criminal activity, thereby disputing any statements made by the prosecution and sentencing court that he engaged in a scheme to defraud.

The attorney is directed to show cause why final discipline should not be imposed. (Mike Frisch)

January 9, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 8, 2019

Tennessee And Taxes

An oral argument scheduled tomorrow before the Tennessee Supreme Court

  • John O. Threadgill v. Board of Professional ResponsibilityThis case involves a disciplinary action against an attorney, Mr. John Threadgill.  Mr. Threadgill was found guilty of evading taxes. This Court referred the matter to the Board of Professional Responsibility to determine the extent of attorney discipline necessary as a result of the conviction.  Following a final hearing on the matter, the Hearing Panel in this case determined that disbarment was the appropriate discipline.  Mr. Threadgill appealed to the Chancery Court for Knox County which affirmed the Hearing Panel’s decision.  Mr. Threadgill now appeals that decision, arguing that the Hearing Panel and the trial court lacked the statutory authority and jurisdiction to impose discipline in this matter and that the judgment was unsupported by substantial and material evidence.  Furthermore, he argues that a sanction of disbarment is contrary to the intent of the American Bar Association Standards for Imposing Lawyer Sanctions.

(Mike Frisch)

January 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Rosebud

An announcement from the Pennsylvania Disciplinary Board

Paul Burgoyne, Deputy Chief Counsel, Retires

On December 31, 2018, Paul J. Burgoyne retired after 37 years with the Office of Disciplinary Counsel, 25 of those years as Deputy Chief Disciplinary Counsel, the second-ranking Disciplinary Counsel in the State.

Mr. Burgoyne graduated from La Salle University and the Rutgers School of Law at Camden. He clerked for a judge of the Court of Common Pleas in Philadelphia and worked in private practice and with the Legal Aid Society of Chester County before joining District I (Philadelphia) of the Office of Disciplinary Counsel as an Assistant Disciplinary Counsel in 1981.

He was named the Counsel-in-Charge of the District I office in May 1987. In April 1993, he became the Deputy to Chief Counsel John L. Doherty. He continued in that role when Paul J. Killion became Chief Disciplinary Counsel in 2002. As Deputy Chief Disciplinary Counsel, Mr. Burgoyne played an active role in a wide range of roles in the administration of the Office of Disciplinary Counsel.

He took a particularly active role in the National Organization of Bar Counsel (NOBC), through which he helped keep Pennsylvania’s disciplinary system moving forward and up to date with trends and issues experienced by peers in other states and countries. Mr. Burgoyne served two terms on the Board of Directors of NOBC, and as its President, President-Elect, Immediate Past President, Secretary, and Treasurer. In 2008, he received the NOBC President’s award for “lifetime achievement in the field of lawyer regulation and service to the National Organization of Bar Counsel.” He is pleased that Pennsylvania has evolved during this time from an isolated system to one which is considered a leader in lawyer regulation.

In 2016, he received the “John J. Finley Award” from the La Salle Alumni Association for service to the university and its alumni association.

Looking back on his 37 years in the disciplinary system, Mr. Burgoyne recalls many changes for the better. He is particularly pleased with the increased level of openness and transparency in the system, once so veiled in secrecy that even decisions for public discipline were published anonymously in the District and County Reporter. Other improvements he recalls include the institution of a system for investigative subpoenas; the promulgation of a rule specifying records lawyers are required to keep; revision of the hearing committee structure to streamline the hearing process; dramatic updates in technology and progress toward a paperless office structure; and a great expansion of public access to information about the disciplinary system through its website.

Asked whether he had any parting advice to the state’s legal community, he urges lawyers to always remember to put the interests of the client first. He recognized that sometimes the business of the practice of law makes this difficult, but he reminds lawyers of the primacy of fiduciary responsibility and maintaining faithfulness to the client.

(Mike Frisch)

January 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)