Legal Profession Blog

Tell All

Inadequate disclosures of litigated matters doomed an application for admission in Georgia

Here, the record supports the Special Master’s findings and recommendation, which were adopted by the Board and formed the basis of its denial of Odion’s fitness application. Odion repeatedly failed to disclose numerous litigation matters to which he was a party, even after the Board gave him an opportunity to respond to the specifications for tentative denial and supplement his application. The Board was also authorized to determine that Odion’s proffered justifications for his lack of disclosure were inadequate or misleading. Such behavior on the part of a Bar applicant, especially in light of the Board’s efforts to allow Odion to amend and supplement his application on multiple occasions, “shows a complete lack of diligence and judgment, which goes to his fitness, and, at worst, a lack of candor, which goes to his character.”

(Mike Frisch)

A St. Valentine's Day From Hell

A reprimand by the Georgia Supreme Court involved a schedule oversight and a liquid lunch

On February 14, 2019, Kurz was scheduled to appear before the Gwinnett County Recorder’s Court at 1:30 p.m. to conclude a pre-negotiated plea in a driving-without-a-license case on behalf of a client. Kurz had failed to note the court date on his schedule, and believing that his schedule ended at noon that day, he had taken his then-fiancée (now wife) to a restaurant for a Valentine’s Day lunch. He had consumed a beer and some of a champagne toast by the time his paralegal called to inform him that she and the client were present in court. Kurz immediately drove to court because he did not think the client would be able to resolve the in his absence. Upon arriving at the courthouse, Kurz asked the clerk to look up his client’s name through the court’s computerized attorney directory. Kurz admitted to the clerk that he was unsure of his client’s name and was unaware of whether his client would need an interpreter. Kurz took the plea sheets given to him and followed the clerk’s directions to the courtroom, where he spoke with his client and paralegal. He also spoke with the assistant solicitor, who confirmed that the fine would be $705 as previously quoted.

After a few moments, the court took a brief recess, and while Kurz had stepped outside the courtroom to make a call, he was summoned over the loudspeaker to report to the judge’s chambers. In chambers, the judge told Kurz that it had been reported that Kurz had an odor of alcohol on his breath at check-in, and he asked Kurz, “What’s the occasion?” Kurz immediately apologized and explained what had happened. The judge asked whether Kurz was impaired, and Kurz responded that he did not think he was, acknowledged that he had made an extremely poor decision to come to court under the circumstances, and stated that he never would have appeared in court after consuming alcohol but for the scheduling issue and the circumstances of his client’s case. The judge said he would take Kurz at his word that this was a “one-time thing,” grant a continuance, and instruct the sheriff that Kurz was not allowed to drive his car home. Kurz thanked the judge, and about two weeks later, Kurz was permitted to close the case on his client’s behalf by a plea in absentia and a certified check. No evidence was presented that Kurz was actually impaired while driving or in court.

He also had commingled and had a nine cent overdraft on his trust account.

Sanction

Having considered the Special Master’s report and the record, we determine that a suspension is not warranted and that a public reprimand is the appropriate sanction, which is consistent with cases involving similar facts.

(Mike Frisch)

The Night The Lights Went Out In Georgia

The Georgia Supreme Court has disbarred an attorney unauthorized contact with a represented witness and false statements

In its formal complaint, the Bar asserted that, while representing a client, who had been charged in Muscogee County with murder, Eddings tape-recorded his July 22, 2017 interview with a material witness, who had been charged with making a false statement in connection with the victim’s death. Because the witness’s interview contained information exculpatory as to Eddings’s client and inculpatory as to the witness, Eddings provided a copy of the recording to the Assistant District Attorney in his client’s case, who subsequently indicted the witness as a codefendant in the murder case. Apparently the two co-defendants were tried separately, and both were acquitted. However, during the witness’s May 2018 trial on the murder charge, Eddings was called by the State to authenticate his recording of the witness’s statement to him, and Eddings testified under oath that he knew at the time he interviewed the witness that the witness was represented by attorney Stacey Jackson; that he was unsuccessful in his attempts to contact Jackson to obtain his consent to interview the witness; and that he conducted the interview anyway because he believed he did not need Jackson’s permission.

The very next day, however, on May 18, 2018, Eddings sent an email to the Judge who presided over the witness’s murder trial, and to the Chief Judge of the circuit, the Assistant District Attorney in the witness’s case, and Jackson. In that email, Eddings attempted to disavow his sworn trial testimony from the day before, asserting that he had “forgotten” that he actually had received consent from Jackson to interview the witness; that he obtained that consent in a June 30, 2017 telephone conversation with Jackson; that there had been witnesses to the consent because he had engaged in the conversation with Jackson via speakerphone while he was in a meeting with his client’s family; and that his wife, Cynthia Eddings, who was also his legal assistant, had reminded him of the meeting and Jackson’s consent immediately after he completed his testimony under oath at the witness’s trial. During the Bar’s investigation of this matter, Eddings presented to the State Disciplinary Board (“SDB”) sworn affidavits from his wife and from two men, both of whom are related to Eddings’s original client. In those affidavits, the witnesses supported the version of events laid out in Eddings’s email.

He had been held in contempt twice and fined for prior similar conduct.

The matter was vigorously litigation before a Special Master and the Court but

Ultimately, after a close review of the record in this case, we agree with the special master and the Review Board that the facts support a finding that Eddings violated Rules 3.3, 4.1, 4.2 (a), 8.1 (a), and 8.4 (a) (4) of the Georgia Rules of Professional Conduct. Further, we agree with the special master and the Review Board that disbarment is the only appropriate sanction for Eddings’s violation of those rules, particularly where this is Eddings’s third disciplinary infraction.

(Mike Frisch)

 

Clark Update

Orders have been entered in the Jeffrey Clark District of Columbia disciplinary prosecution.

The Hearing Committee order - entered by Chair Merril Hirsh - extends the time to answer the Specification of Charges as well as to file other "responsive pleadings" to September 1, 2022.

The Board on Professional Responsibility granted Respondent's motion to seal his motion for extension of time but requires a redacted motion within two days and Disciplinary Counsel's redacted response two days later.

The proceedings will be subject to a protective order with respect to the redacted information unless vacated.

New Board Chair Lucy Pittman signed the order.

The defense team  consists of Charles Burnham, Robert Destro and Harry W. MacDougald.

Link here and click on Cases of Public Interest.(Mike Frisch)

"Made in the USA"

An attorney has consented to license revocation by the Virginia State Bar Disciplinary Board in the wake of a tax conviction.

The Daily Press reported on the conviction

A Newport News attorney has agreed to pay the IRS $869,000 in back taxes after admitting to federal tax fraud.

Nosuk Pak Kim, 61, pleaded guilty Thursday to two counts of felony tax evasion in U.S. District Court in Richmond. She faces up to five years in prison and up to $250,000 in fines for each of the two counts, aside from the restitution to which she’s already agreed.

Kim, who’s been licensed as a Virginia lawyer for 31 years, is a founding partner at the Oyster Point law firm Cowardin & Kim, where she specialized in immigration law.

She’s been a substitute judge since 2014 in Newport News General District Court and Juvenile and Domestic Relations District Court, and has taught in recent years as an adjunct professor at the College of William & Mary Law School.

Her husband, Beyung Kim, 63 — now in federal prison in West Virginia — owned and operated a Hampton company, I-Tek, which provided clothing and various promotional materials to the military from 2011-18.

The company, on Executive Drive in Hampton’s Coliseum area, provided thousands of “West Point swim trunks” to the Army and various trinkets — coffee mugs, water bottles, mouse pads, foam balls, T-shirts and pencils — for the Marine Corps and various state National Guards. The company also provided wire rope for the Coast Guard operations.

But court documents say Beyung Kim and certain employees defrauded the government by attesting that the goods were “Made in the USA” when in fact they were manufactured in China or other low-cost sourcing locations.

“Beyung Kim and I-Tek sourced these products in cheaper, foreign markets like China to inflate their profit margins,” court documents say. “They concealed the fraud by, among other things, removing the labels reflecting the true country of origin.”

The scheme also involved providing the Department of Defense with fake supplier quotes and purchase orders. The conspiracy separately featured a retired disabled veteran falsely posing as the company’s “president and owner” in order to qualify for Small Business Administration set-asides.

Nosuk Kim wasn’t charged in the underlying fraud case involving her husband and I-Tek. But court documents say she worked to evade taxes on some of the proceeds that came in.

A statement of facts agreed to by prosecutors and the defense as part of Nosuk Kim’s guilty plea Thursday says I-Tek was paid more than $4 million under a Marine Corps contract — plus another $141,000 for 30,000 T-shirts to the Indiana National Guard — in 2015 and 2016.

But when I-Tek received those payments, it wired about $2.2 million to an overseas entity in China, Goldway International Trading LLC, which then wired the money back to Nosuk Kim’s attorney trust account at her Newport News law firm.

The lawyer then withdrew that money, spending most of the cash to pay down debt on the couple’s financial interests.

Kim took out four separate cashier’s checks — totaling about $1.2 million — to pay down a business loan for a company called BBK Enterprises LLC based at a Jefferson Avenue address.

She used $621,000 to pay down the balance on a home equity line of credit on the couple’s home on Ferguson Cove in Newport News.

She used the rest — about $415,000 — to buy out a partner and pay down a business loan involving a commercial property on J. Clyde Morris Boulevard.

The IRS said the Kims should have reported that $2.2 million as taxable income in 2015 and 2016. The failure to do so, the statement of facts said, cost the government about $869,000 in lost tax revenue.

Nosuk Kim’s web page at her law firm says she holds an undergraduate degree in accounting from William & Mary in 1983 and a law degree from Suffolk University School of Law in Boston in 1989.

“For over 25 years she has represented clients of all nationalities who wish to work and stay in America,” the website says.

In 2011, Kim co-founded the Peninsula School for Autism, the first school on the Peninsula specifically devoted to autistic children. She was a board member of the Hampton Roads International Montessori School and an advisor to the Peninsula Korean-American Association, among other groups.

Kim’s attorney, Timothy Clancy, said his client is doing all she can to make amends for what she did.

“I certainly think it’s fair to say that she is very well regarded in the community, both professionally and personally,” Clancy said. “She’s certainly accepting responsibility and is doing everything she can to remedy this situation, including paying the taxes.”

As of Thursday, the Virginia State Bar lists Kim as “an attorney in good standing” in Virginia, with no disciplinary actions to her name in 31 years of practicing law. Felony convictions are typically a bar to practicing law in the Commonwealth.

Clancy said Kim is no longer practicing law.

“She’s doing no more than wrapping up her practice and ensuring that her clients are protected,” he said.

She was accused of working to evade taxes on some of the millions of dollars the government paid to her husband’s company over the years.

(Mike Frisch)

A Date For Rudy

An order was entered yesterday setting the Giuliani disciplinary hearing from October 24 to 28, 2022.

Additional days are set if the hearing cannot be completed with in 5 days.

At present, the hearing will be conducted over Zoom.

Click here and go to the Cases of Public Interest link for documents in this and the Jeffrey Clark matter.

Unless the time is extended, I believe that Clark's answer is due this week. (Mike Frisch)

Suit Survives

A civil action filed by an attorney who had an employment offer revoked has survived in part in a Memorandum Opinion  of the United States District Court for the District of Columbia

Plaintiff Terri Lea had an offer for a General Counsel position in the D.C. government — until she didn’t. Two weeks after extending her that offer, the District revoked it based on a finding that Lea was not “suitable” for the position. Since then, she has applied for other legal jobs in the D.C. government but to no avail. She submits that the unsuitability determination, which is memorialized in her personnel file, is a scarlet letter that has and will continue to bar her from finding government employment. She has thus brought this suit against the District and individual government employees involved in her hiring process, alleging that they violated her constitutional right to due process by tarnishing her reputation without a proper hearing, and that they are liable for negligent misrepresentation in connection with her offer letter. Defendants now move to dismiss. As one of Plaintiff’s constitutional theories is infirm, the Court will grant the Motion in part, but permit the remainder of her suit to move forward.

The revocation of the offer was based on a disciplinary suspension with fitness.

She was reinstated in 2017.

The court found the lawsuit had been timely filed

That threshold question answered, the Court now moves to the more complicated issue of the merits of Lea’s federal causes of action. The factual basis for her § 1983 claims is easy to grasp: she submits that the District’s failure to hire her, coupled with its assessment that she was not “suitable” for the General Counsel role, besmirched her name and thus prevented her from securing any employment in the D.C. government. See Am. Compl., ¶¶ 51–67. The legal validity of her position that the District, in so doing, violated a constitutionally protected liberty interest is less straightforward. A review of the legal standards underpinning those causes of action is a good place to start.

She was not an employee

The Court thus concludes that because Lea has not alleged a discharge or at least a demotion in rank or pay, she has failed to state a due-process claim based on the reputation-plus theory. The Court will dismiss Counts I and II to the extent that they rely on that theory.

But not dealt out

Lea still has cards to play, as she also asserts a claim under the stigma-plus theory. Seeking dismissal of this basis for Counts I and II as well, Defendants point to two alleged deficiencies.

Points

Defendants’ first objection thus falls flat. It is enough, at least for purposes of the stigma plus claim, that Lea alleged a “certain adverse [government] action” — the refusal to hire her due to her unsuitability — that imposed a stigma on her. Campbell v. District of Columbia, 894 F.3d 281, 288 (D.C. Cir. 2018).

Second, Defendants suggest that because Lea faced nothing more than “difficulty in obtaining a job in a particular field,” she has failed to satisfy the second requirement of a stigma plus claim. See Def. MTD at 14. Defendants have the law correct: a stigma-plus claim cannot survive a motion to dismiss on the theory that a government action led to mere difficulty finding a job. The Complaint must allege that the plaintiff has been effectively “foreclosed” from some category of work. Campbell, 894 F.3d at 288–89.

This it sufficiently does, albeit in a rather conclusory fashion.

Negligent misrepresentation

Finally, Defendants contend that “Plaintiff appears to believe that her conditional job offer was irrevocable,” and that “[a]s a lawyer, Plaintiff of all people, should have known that ‘conditional’” meant the opposite of irrevocable. See MTD at 16–17. That argument talks right past Lea’s claim. She plainly concedes that her offer was revocable, but she also asserts that Defendants, by including certain contingencies in her offer letter but not others, led her to believe — mistakenly, it turned out — that her offer was revocable on more limited grounds than was ultimately the case. See Am. Compl., ¶ 73. A complete account of the grounds for revocation, and not the revocability itself, she submits, was the key omission.

As Defendants’ contentions largely leave Plaintiff’s negligent-misrepresentation claim untouched, the Court will deny the Motion as to Count III.

District Judge Boasberg has the matter. (Mike Frisch)

Braintree

An attorney who negotiated for employment with an opposing party's law firm - without telling his client - has been reprimanded by the Massachusetts Board of Bar Overseers

In 2018, the respondent was retained by the Board of Trustees of a condominium trust (the “Trustees”). The respondent consulted with the Trustees on a variety of matters, including disputes with the condominium Developer (the “Developer”) over alleged construction deficiencies and the parties’ respective liabilities for municipal taxes. The Developer was represented with respect to these disputes in part by a law firm located in Braintree (the “Braintree Firm”).

He filed a civil action for the trustees

 During the summer of 2019, while the Superior Court case was ongoing, the respondent and the Braintree firm began discussing the possibility of the respondent becoming employed as an attorney at the Braintree firm. The respondent did not inform the Trustees of these discussions. Also during the summer of 2019, the Trustees and the Developer, though their attorneys, engaged in settlement communications.

The matter settled

On April 1, 2020, the Braintree Firm publicly announced that the respondent had joined the Braintree Firm. The respondent did not inform the Trustees that he had joined the Braintree Firm until April 28, 2020, when he advised the Trustees that he had a conflict of interest. The Trustees were harmed by not being advised of the conflict earlier because they were deprived of the opportunity to secure unconflicted counsel for their disputes with the Developer.

He advised the client that it was a waivable conflict

The Trustees informed the respondent they would agree to waive the conflict and, through September 2020, the respondent continued to advise the Trustees with regard to their ongoing disputes with and potential further litigation against the Developer. In October 2020, after the Trustees obtained new counsel, the respondent withdrew from the representation.

(Mike Frisch)

Thy Partner's Keeper

A relatively rare public reprimand of the Massachusetts Board of Bar Overseers sanctioned an attorney who had failed to correct the misconduct of his law partner in a bankruptcy matter

Throughout the adversary proceeding, the respondent was on notice of the successive contempt orders and sanctions. Although the respondent at times discovered information after the fact, the respondent knew of the law partner’s conduct and consequences at a time when the consequences could have been avoided or mitigated but failed to take reasonable remedial action at the time on behalf of the firm or the firm’s client.

Where the respondent was a partner of a lawyer who violated the Rules of Professional Conduct and where the respondent knew of the conduct at a time when its consequences could have been avoided or mitigated but failed to take reasonable remediable action, the respondent violated Mass. R. Prof. C. 1.3 and 5.1(c)(2). Where the respondent knew or should have known of the second contempt order and did not take adequate steps to ensure that the attorney responsible complied, the respondent violated Mass. R. Prof. C. 3.4(c) and 8.4(d).

The parties stipulated to the misconduct and reprimand. (Mike Frisch)

No Bias, Just "Unhelpful" Observations

While rejecting claims of bias urged by Disciplinary Counsel, the District of Columbia Board on Professional Responsibility chided an attorney member of a hearing committee

While we find no bias reflected in the Hearing Committee’s report and recommendation, the concurring opinion’s discussion of personal views and extrajudicial facts is improper and wholly unhelpful. Discussion of facts outside of the record cannot be allowed to affect decisions in a disciplinary proceeding. Here, we do not find that the concurring opinion’s discussion of personal views and extrajudicial facts affected the Hearing Committee’s findings. But even such gratuitous discussion risks the perception and, as demonstrated here, invites express allegations of bias in favor of one party or another that can undermine confidence in the disciplinary system.

The BPR recommended a 30 day suspension for a number of Rule violations.

The "unhelpful" concurrence follows the Hearing Committee report  and quoted in part

While it may be presumptuous to say this, I know it to be a widely held view of members of our Bar that Disciplinary Counsel is difficult to deal with and overzealous in pursuit of minor transgressions and mere mistakes. The disciplinary system, in the opinion of this longtime member of the Bar and the Hearing Committee, should be designed to find the truth and to protect the public, but also to be respectful of the members of the Bar who come into its processes. In this regard I would hold Office of Disciplinary Counsel with its fuller understanding and experience with the system, to a higher standard of conduct in disciplinary proceedings, than Respondents who are at a disadvantage in navigating through the difficulties of defending themselves while conducting a separate workload on behalf of clients.

Disciplinary proceedings should not follow the model of civil litigation which is almost entirely based on winning and losing. In my experience on Hearing Committees and as a Contact Member reviewing Disciplinary Counsel’s files, many complaints come from disgruntled clients who expected more than was reasonable and use the disciplinary system to further their own unreasonable, or in some cases, unsavory objectives. The Complainant in this case fits that description, and to this Hearing Committee was neither credible nor a victim of any misconduct. Had Disciplinary Counsel conducted a more open-minded, interactive, and thorough investigation of the substance of the complaint subsumed by Count One, the charges would not have been brought.

In my experience. lawyers with attitudes like this have no business serving in an adjudicatory capacity in the disciplinary system.

The concurrence was signed by the attorney member and joined by the attorney chair. The public member did not join.

Perhaps a non-lawyer appreciates the necessarily prosecutorial role of Disciplinary Counsel more than the lawyers do.

Something about foxes and henhouses. (Mike Frisch)

Clarification Sought

The Ohio Supreme Court has remanded a disciplinary matter

Disciplinary Counsel v. Swencki. Sua sponte, matter remanded to the Board of Professional Conduct with instructions to clarify the consistency, if any, between its finding that respondent Ronald Clement Swencki’s “50 plus years of practicing law that is unblemished as a significant mitigating factor in this case” and its finding that respondent has been falsely claiming to have associates during that time.

Kennedy, DeWine, and Donnelly, JJ., dissent and would impose a conditionally stayed six-month suspension.

The docker entries are linked here. (Mike Frisch)

"Too Bad It's My Name On The Door"

An agreed 4 1/2 month suspension and additional conditions have been ordered by the British Columbia Law Society Hearing Panel 

The Respondent is faced with two citations.  Citation 1 alleges that at his firm, the Respondent engaged in sexual harassment of his employees through inappropriate conduct and remarks at the workplace.  Citation 2 also alleges that the Respondent created a hostile workplace by making unwanted remarks of a sexual, discourteous, discriminatory or offensive nature to several employees.

Admitted misconduct

Between approximately October 2018 and September 2019, you sexually harassed AB who was employed by your firm, when you did one or more of the following: (i) made comments or gestures of a sexual nature; (ii) engaged in unwelcome sexual advances; and, (iii) touched her without her consent, contrary to rule 6.3-3 of the Code of Professional Conduct for British Columbia.

And 

Between approximately January 2020 and January 2021, you sexually harassed your employee A, when you did one or both of the following: (a) made comments of a sexual nature; and, (b) engaged in unwelcome advances, contrary to one or both of rules 2.2-1 and 6.3-3 of the Code of Professional Conduct for British Columbia.

Finally

 Between approximately February 2020 and January 2021, in the course of communicating with your employees A and B, you made discourteous, offensive, or discriminatory remarks to them, that you knew or ought to have known were one or more of the following: (a) unwelcome; (b) intimidating; (c) humiliating; and, (d) would likely create a hostile work environment that would adversely affect individuals employed by your firm, contrary to one or more of rules 2.2-1, 6.3-4 and 6.3-5 of the Code of Professional Conduct for British Columbia

Particulars

Upon arriving at the office, it was the Respondent’s practice to greet everyone.  For most employees, that greeting involved a hug.  For a lesser number of both men and women, it included a kiss on the top of their head, forehead or cheek.  AB told the Respondent that she would only accept hugs from the side, and that she was not comfortable with him kissing her (the Respondent had on several occasions kissed her on the forehead or the top of the head).

There was also an unwanted neck massage and suggestive remarks laid out in the opinion.

Not just sex

One day at the Firm, the Respondent, in the presence of Witness 5 and other employees, referred to himself and others as “round eyed people”.  Witness 5 was the only person of South Asian descent in the group that the Respondent was speaking to.  At some point thereafter, the Respondent sent a text message to Witness 5 to the effect “I did not mean to offend you, sorry if you took it the wrong way.”

Witness 6 of the Firm attended a welcome pizza lunch for Witness 5 and Witness 7.  At the time, Witness 6 was dating a Caucasian man and Witness 7 was dating a man of South Asian descent.  The Respondent said something to Witness 6, Witness 7 and others to the effect of “all you brown people are stealing the white people.”

Conduct toward another employee

  Between approximately January 2020 and January 2021, the Respondent admits he made frequent comments to employee A about her appearance such as her hair, lipstick, clothing and “college girl look”, as well as greeted her with “hey sexy” and referred to her as his “work wife”.  At times, the Respondent stared at employee A from the doorway to her office while she worked.  On occasions when employee A would tell him to leave or stop, the Respondent said words to the effect “too bad it’s my name on the door.”

More

At some time during 2020, in the context of considering prospective candidates who applied to work at the Firm, the Respondent stated separately to each of employee A and Witness 1 that they were not to hire any brown people.   When employee A and Witness 1 questioned the Respondent about this statement, the Respondent told them words to the effect that he was “tired of the drama brown people bring to the office.”

Sanction

We also accept the parties’ proposed global disciplinary sanction.  Pursuant to Rule 5-6.5 we find that the proposed global disciplinary sanction of a four and one-half month suspension and practice conditions meets the public interest in the administration of justice.  In other words, the proposed sanction does not bring the administration of justice into disrepute nor is it contrary to the public interest.

Sexual harassment and racial discrimination have no place in the legal profession.  The proposed sanction reflects the primary importance of the protection of the public and public confidence in the disciplinary process.  We also find that racial discrimination is a serious offence that must attract serious sanction.

We find that the proposed sanction of a four and one-half month suspension and practice conditions fall within the range of sanctions previously imposed by other law societies for similar misconduct.

( Mike Frisch)

No Ace In The Hole

The Tennessee  Court of Appels affirmed the denial of a recusal motion in a contentious domestic relations matter

The incident giving rise to the recusal motion was an alleged conversation between Petitioner and Ms. Morgan, Mr. Baker’s counsel, that occurred on May 30, 2021; however, Petitioner took no action until her motion for recusal was filed on June 8, 2022. In her affidavit filed in support of the motion for recusal, Petitioner alleged that Ms. Morgan told
her that she had influence over the judge, that she had “pull” with the judge. In the affidavit Ms. Morgan filed in response to the allegations, she denied making any such statements to Petitioner or anyone else. Further, at the hearing on the motion for recusal, Judge Benningfield categorized Petitioner’s allegations as “outlandish.” He also stated, “Ms. Morgan has appealed any number of my cases over the years, so if we were in cahoots, that wouldn’t have been necessary.”

The salient fact before this court is that Petitioner failed to file her motion for recusal for more than one year after she learned of the facts forming the basis for the motion. Whether she did so to await a favorable decision from the trial court or to preserve the event as an “ace in the hole” is insignificant. See Gotwald, 768 S.W.2d at 694. What is significant is that the failure to assert those facts in a timely manner “results in a waiver of a party’s right to question a judge’s impartiality.” Kinard, 986 S.W.2d at 228. Based on the foregoing, we hold that Petitioner has waived the issue of bias.

(Mike Frisch)

When Positive Is a Bad Thing

The Indiana Supreme Court found that an attorney had violated disciplinary probation

On June 16, 2022, the Commission filed a “Verified Notice of Probation Violation,” pursuant to Admission and Discipline Rule 23(16)(c), asserting Respondent tested positive for methamphetamine in March 2022, a result verified by a confirmatory positive test in May 2022. Respondent has filed a response acknowledging his probation violation and requesting to continue his probationary period with additional requirements.

No second chance

Upon consideration of the materials before us, we conclude that revocation of probation is warranted and that the full balance of Respondent’s stayed suspension should be actively served without automatic reinstatement. Accordingly, Respondent’s probation is hereby revoked. Respondent shall be suspended from the practice of law for a period of not less than 275 days, without automatic reinstatement, beginning September 15, 2022.

(Mike Frisch)

Also Worthy Of Mention

The Kansas Supreme Court affirmed multiple findings of rule violations and ordered an attorney's one year suspension

The respondent failed to provide J.D. and C.D. with competent representation. The respondent recognized his lack of competence in J.D. and C.D.'s case, to some extent, stating that he felt 'overwhelmed' and believed that the arbitration and litigation with the home builder was 'monster litigation for a solo practitioner' like himself. The respondent testified, 'there's no way a sole practitioner could represent or go through that on his own. No way.' The respondent failed to timely and properly file appeals on behalf of J.D. and C.D. In addition, the respondent accepted assistance from J.D. and C.D. in the case that would ordinarily be expected to be provided by a lawyer or the lawyer's staff. Both the United States District Court for the District of Kansas and the Court of Appeals noted significant deficiencies in the respondent's filings. Six notices of appeal were filed on behalf of J.D. and C.D. between October 26, 2015 and September 1, 2016, in the Court of Appeals. Two of these notices were prematurely filed. Three of the notices were never docketed with the Court of Appeals. The respondent failed to appropriately respond to the Court of Appeals' show cause order regarding consolidation, filed a brief on behalf of J.D. and C.D. that contained 'convoluted arguments' and that was 'nearly impossible to square . . . with the record on appeal,' and ignored the Court of Appeals' order to address jurisdiction in the appellate brief and only briefly addressed jurisdiction in the reply brief.

The court overruled the hearing panel on the refund amount based on a rejected settlement offer

We reject the panel's reasoning and agree with the Disciplinary Administrator's recommendation regarding the amount respondent is required to refund J.D. and C.D. The refusal of a settlement offer, especially early in the litigation when the offer is substantially lower than the plaintiffs and counsel have valued their damages, should not be considered a triggering event that entitles consideration of an attorney fee owed to counsel. This is especially true in this instance when nearly all the litigation expenses were incurred following the failed settlement negotiations. The hearing panel found that J.D. and C.D. paid $46,910 to the respondent and contributed significant hours working on their own case. The case was complex. It involved three mediation sessions, an arbitration session, state court litigation, and federal litigation. The case also involved an appeal to the Court of Appeals and petition for review to the Kansas Supreme Court. Overall, the case lasted more than 10 years. The respondent represented J.D. and C.D. throughout the entire case at every level. Regarding this representation, the hearing panel found—and the respondent did not contest—that multiple serious rule violations occurred at nearly every phase of the litigation and caused most of the expenses incurred by J.D. and C.D. While the hearing panel recognized that the respondent expended a substantial amount of time to handle the case, this does not equate to money that the respondent is entitled to via the initial fee agreement. We conclude the amount owed to J.D. and C.D. is $46,910.

Blame shifting

Also worthy of mention is the troubling decision of both the respondent and counsel in this disciplinary action to cast blame on the complainants. Characterizations of the complainants as difficult and impossible permeated the hearings in this matter. Counsel also opined that the respondent should have "kicked them [complainants] to the side" during oral presentation to this court. Both respondent and counsel paradoxically took the position that the complainants should have filed a malpractice action or some sort of fee claim in a separate action to recoup their losses as a result of respondent's inept legal representation.

(Mike Frisch)

Removal Recommended

The Michigan Judicial Tenure Commission has recommended the removal of a judge for misconduct involving her abused grandsons and the investigation of the abuse

The totality of the evidence shows that Respondent was aware that her grandsons were being abused by her son, she covered it up, and she lied about knowing about it. Within two days after the boys were finally rescued in late June 2018, Respondent told the CPS investigator, Ms. Apple, that Respondent had not realized that “it” (meaning the abuse) was “this bad.” (Tr. pp 1305-1306.) Respondent’s statement to Ms. Apple revealed that Respondent knew her son was abusing her grandsons. Respondent now denies this. (Tr. p 2034.) She claims that, subjectively, she was referring only to civilized punishments her son imposed – banishing the boys to their rooms or prohibiting them from using their iPads. (Tr. pp. 20752076.) However, Respondent admits she did not say anything like that to Ms. Apple, (id. p. 2034/16-20), nor does she explain why she would regard such non-physical discipline as so “bad” in comparison to everything else she knew about. Again, her after-the-fact explanation is a thinly veiled attempt to escape a finding of misconduct in this proceeding.

Proposed sanction

The preponderance of evidence establishes that Respondent committed misconduct as alleged under Counts I and II of the Formal Complaint, as amended. That misconduct included multiple knowingly false statements under oath while she was a judge. The misconduct occurred before Respondent became a judge and continued after she became a judge. Brown observed that “[t]he most fundamental premise of the rule of law is that equivalent misconduct should be treated equivalently.” 461 Mich at 1292.

The precedent of the Michigan Supreme Court discussed above establishes that judges who lie under oath seeking to manipulate legal proceedings in their self-interested favor, which is exactly what Respondent did, must be removed.

(Mike frisch)

Their Unorthodox Litigation

A marriage that was not all that it appeared to be is the subject of a Delaware Court of Chancery opinion

Fashion designer Julia Haart and telecom billionaire Silvio Scaglia have a carefully curated public image supporting both their business partnership and their marriage. They met through work at a luxury fashion brand, and married in a lavish ceremony. Scaglia brought his new wife into the leadership of one of his businesses, a major model management company. Haart and Scaglia present as though they own and run that business as equals. In their free time, the couple maintains a glamorous lifestyle. They host friends and family in their sprawling Tribeca penthouse. They drive matching Bentleys. And television cameras follow their every move for Haart’s Netflix reality series, My Unorthodox Life. But their public image differs from their formal business arrangement. That tension is the central issue in this case.

Behind the cameras and bright lights is a pair of Delaware entities. The first is the holding company for the modeling business, Elite World Group, LLC (“EWG”). The second is the couple’s umbrella company, Freedom Holding, Inc. (“Freedom”), which holds EWG and the couple’s other personal and business investments. Haart and Scaglia are co-owners of Freedom; Haart was an EWG director and its CEO; and this opinion assumes Haart was a Freedom director. To the public, Haart and Scaglia presented a united front, telling potential investors, other third parties, and tax authorities that they owned Freedom equally. But behind
the scenes, Freedom’s internal documents told a different story.

Scaglia formed Freedom and initially held all one hundred shares of its common stock. In December 2018, anticipating his marriage to Haart, Scaglia caused Freedom to issue him 123,665 preferred shares of Freedom stock. After the couple married in June 2019, Scaglia transferred Haart fifty of Freedom’s common shares, but did not mention or transfer any preferred shares. In March 2020, Haart learned about the preferred shares, and demanded that the two be equal partners. In response, Scaglia executed a stock power, transferring 61,832, or 49.9995957%, of the preferred shares to Haart. Scaglia thus maintained a one-share voting advantage over Haart. Haart discovered this discrepancy as the couple’s marriage deteriorated, but continued to insist she was an equal owner.

In the final moments of their marriage, Scaglia used his control over Freedom to oust Haart from her positions at Freedom and EWG; a majority of EWG’s board, including Scaglia, also removed her from her positions at EWG. Haart argues that because she is an equal owner of all classes of Freedom stock, Scaglia could not unilaterally remove her from her Freedom directorship, Freedom is deadlocked, and neither Freedom nor EWG’s board could remove her from her EWG roles. She brings declaratory judgment claims to resolve who controls Freedom and EWG under 8 Del. C. § 225 and 6 Del. C. § 18-110, a claim to dissolve Freedom under 8 Del. C. § 226, and a breach of fiduciary duty claim. Scaglia brought reciprocal counterclaims for declaratory judgments.

This post-trial opinion on the declaratory judgment and dissolution claims finds that Haart does not own half of Freedom’s preferred shares, and so is not entitled to relief under any of her theories. Despite the appearance of an equal partnership, the evidence reveals that Haart never owned an equal stake of Freedom’s preferred stock. For the reasons that follow, judgment is entered for Scaglia on all those counts.

(Mike Frisch)

Disclosures Lead To Proposed Censure

An Illinois Hearing Board has recommended a public censure for an attorney's disclosure of confidential medical records

Respondent admits he provided two documents to his expert witness after the court had entered an order deeming them privileged and precluding their use in a medical negligence matter. The Hearing Board found Respondent acted knowingly and intentionally when he disobeyed the court’s order, and further found that his conduct prejudiced the administration of justice.

B. Admitted Facts and Evidence Considered

Respondent has been licensed to practice law in Illinois since 1979. (Tr. 77). His practice focuses on personal injury matters, primarily in the area of medical negligence. (Tr. 78-79). Respondent testified that he plans to retire in the next two years. (Tr. 114).

The charges in this matter pertain to Respondent’s representation of the estate of Eugene Wheat, who died in 2016 following a catheterization procedure performed by Patrick Murphy, M.D., at Advocate BroMenn Medical Center (Advocate). While investigating the matter at the request of Wheat’s family, Respondent learned that Advocate suspended Dr. Murphy’s staff privileges after Wheat’s death and Dr. Murphy filed a lawsuit challenging the suspension, Patrick Murphy v. Advocate BroMenn Medical Center, 2016 CH 122 (Circuit Court of McLean County). Respondent then sat in on a hearing in the 2016 CH 122 matter and learned it involved Dr. Murphy’s treatment of Wheat. On or around July 19, 2017, Respondent reviewed the court file for 2016 CH 122 and obtained copies of certain documents from the circuit clerk, including a peer review report generated by an Advocate Intraprofessional Conference Committee (ICC report), and a letter dated June 1, 2016 to Murphy from Advocate’s president of medical staff (June 1
letter). (Tr. 127; Resp. Ex. 3). In Respondent’s view, the ICC report “pretty well laid out what [Wheat’s] case against Murphy was”. (Tr. 128). The June 1 letter contained most of the same information as the ICC report. (Tr. 129).

In the Wheat litigation

the court entered an order denying the Motion for Judicial Notice and determining, in relevant part, that the ICC report was privileged and confidential under the Medical Studies Act, 735 ILCS 5/8-2101 et seq., because it contained recommendations arising from the peer review process. The court further determined that the June 1 letter was privileged in part because it contained the results of the peer review process and recommendations and conclusions arising from the peer review process.

Intent

Respondent understood the court’s order and understood he was not permitted to disclose the ICC report or unredacted June 1 letter. There was no testimony from Respondent that he forgot about or misunderstood the court’s ruling. On the contrary, Respondent’s own testimony established that he purposely provided the privileged information to Dr. Sanborn to focus Dr. Sanborn’s attention on a particular time period. Respondent also testified that the content of Dr. Sanborn’s written opinions, which Respondent helped draft, mirrored the language in the ICC report to a certain extent because Respondent wanted to make a record for purposes of appeal. The logical inference from this testimony is that Respondent disclosed the privileged documents with the intention that information contained therein would make its way into Dr. Sanborn’s opinions. Thus, the evidence clearly and convincingly established that Respondent’s conduct was not accidental or inadvertent.

The hearing board found substantial mitigation. (Mike Frisch)

The Five Required Disclosures

The District of Columbia Court of Appeals has affirmed a finding of reckless misappropriation and ordered disbarment.

The matter involves the obligations of disclosure for advanced fees

We agree with the Hearing Committee’s determination that Mr. Ponds’s misappropriation was at a minimum reckless. In re Mance is not clear in all respects. See In re Haar, 270 A.3d 286, 295 (D.C. 2022) (In re Mance is unclear about whether attorneys were required to apply its requirements retroactively to funds received from clients before In re Mance was decided). On the issues raised in this case, though, In re Mance is quite clear: (1) flat fees paid in advance are client property and must be treated accordingly unless the client gives informed consent to a different arrangement; (2) informed consent requires an attorney to discuss the “material risks of and reasonably available alternatives to the proposed course of conduct”; and (3) to obtain informed consent in this context, an attorney must “expressly communicate to the client verbally and in writing” five specific pieces of information. In re Mance, 980 A.2d at 1206-07 (internal quotation marks omitted); see also supra pp. 3-4 (listing five required disclosures).

Mr. Ponds’s fee agreement and his conduct in this case are fundamentally incompatible with the requirements of In re Mance. Rather than making clear that the unearned portion of a flat fee must be returned, the fee agreement indicated precisely the opposite. Rather than complying with the requirement to return unearned advance fees, Mr. Ponds refused, despite an arbitral award requiring him to comply. As the Hearing Committee explained, the fee agreement also omits other topics specifically required by In re Mance, and neither the fee agreement nor Mr. Ponds’s discussion with Mr. Young provided the information that would have been necessary for Mr. Young to have given informed consent.

We view it as quite implausible that an attorney who was trying in good faith to comply with the requirements of In re Mance would have drafted the fee agreement in this case or would have acted as Mr. Ponds has acted in this case. We need not rest, however, on a conclusion of subjective bad faith. Even assuming that Mr. Ponds may have subjectively believed that the fee agreement and his conduct were permissible, we think it quite clear that Mr. Ponds at a minimum demonstrated “conscious indifference” to the requirements of In re Mance. See, e.g., In re Gray, 224 A.3d at 1232 (“Reckless misconduct requires a conscious choice of a course of action, either with knowledge of the danger to others involved in it or with knowledge of facts that would disclose this danger to any reasonable person.” (internal quotation marks omitted); see also, e.g., In re Cloud, 939 A.2d 653, 661 (D.C. 2007) (holding that attorney’s failure to pay client “back within a reasonable time after discovering [attorney’s] error” supports finding of reckless misappropriation); In re Anderson, 778 A.2d 330, 339 (D.C. 2001) (reckless misappropriation may be shown by proof of “a pattern or course of conduct demonstrating an unacceptable disregard for the welfare of entrusted funds”).

(Mike Frisch)

Chief Judge Sanctioned

A stipulated sanction approved by the Colorado Presiding Disciplinary Judge involved misconduct by a judicial officer

The Presiding Disciplinary Judge approved the parties’ stipulation to discipline and suspended Mark Duncan Thompson (attorney registration number 22091) for six months, all stayed pending Thompson’s successful completion of a one-year period of probation. Thompson’s sanction, which takes into account significant mitigating factors, took effect on July 26, 2022. The order approving the stipulation sanctions Thompson in his capacity as a Colorado-licensed lawyer; the Colorado Commission on Judicial Discipline, which maintains concurrent jurisdiction, is charged with disciplining Thompson in his capacity as a judicial officer. Thompson’s discipline arises from his guilty plea to an amended count of disorderly conduct.

The plea was based on a heated verbal confrontation with his twenty-two year-old stepson in front of and inside Thompson’s home. At one point during the confrontation, Thompson recklessly displayed a firearm, alarming his stepson. His stepson left the house and called 911. At the time of the offense, Thompson was the sitting Chief Judge for Colorado’s Fifth Judicial District. The district attorney’s office and the judges for the district recused themselves and arranged for the appointment of a special prosecutor and judge.

Following his guilty plea, Thompson was sentenced to one year of unsupervised probation with standard probationary terms as well as the following special terms and conditions: he was required to remain in the anger management treatment he had been undergoing since the incident and provide a release to his current therapist and any successor or other treatment provider authorizing full disclosure of information to the special prosecutor and the court; he was required to satisfactorily complete requirements of disciplinary authorities resulting from his conviction; and he was required to timely provide to the special prosecutor and the judge proof that he had completed the probationary terms and conditions.

(Mike Frisch)