Legal Profession Blog

Attempt Felony Draws Interim Suspension

The Michigan Attorney Discipline Board has ordered an interim suspension for an attorney's felony conviction

On December 3, 2021, respondent was convicted by guilty plea of Attempted Failure to Pay Child Support, in violation of MCL 750.92, in the matter titled People v John Robertson, 44th Circuit Court Case No. 21-026886-FH. In accordance with MCR 9.120(B)(1), respondent’s license to practice law in Michigan was automatically suspended on the date of his felony conviction.

(Mike Frisch)

Recklessness Equals Disbarment

Applying the rule articulated in its en banc decision in In re Addams, the District of Columbia Court of Appeals disbarred an attorney who had engaged in reckless misappropriation

We conclude there is substantial evidence to support the Board’s finding that Ekekwe-Kaufmann recklessly misappropriated client funds and we therefore adopt that finding. Disbarment is the presumptive sanction for reckless misappropriation. In re Addams, 579 A.2d 190, 191 (D.C. 1990) (en banc). This case involves no “extraordinary circumstances” meriting departure from the presumptive sanction, id., and none of Ekekwe-Kauffman’s other challenges alter the conclusion that disbarment is warranted here. We therefore adopt the Board’s recommended sanction and disbar Ekekwe-Kauffman from the practice of law in the District of Columbia.

The court noted

This is not Ekekwe-Kauffman’s first time through the disciplinary process. In 2008, Disciplinary Counsel opened an investigation into Ekekwe-Kauffman in response to a former client’s complaint. See In re Ekekwe-Kauffman, 210 A.3d 775, 782-83 (D.C. 2019). In that case, like this one, the Board ultimately recommended we disbar Ekekwe-Kauffman based on her reckless misappropriation of client funds. We rejected that recommendation because we concluded the evidence did not support the conclusion that Ekekwe-Kauffman had in fact misappropriated client funds; although the evidence showed that she commingled client funds with her own, the evidence was lacking as to the “more egregious” conduct of misappropriation.

However

We nonetheless suspended her from the practice of law in the District for three years for a host of other violations.

Here

Substantial evidence supports the Board’s finding that there was misappropriation in all four instances. First, Ekekwe-Kauffman testified that none of the four clients authorized her to use their money, or to use money set aside to pay third parties on their behalf, for any purpose aside from paying the amounts due. Yet, in all four cases the record establishes that, at least temporarily, EkekweKauffman used entrusted funds by letting her trust account dip below the amounts owed to clients and to third parties on their behalf. Her misappropriations were not always of substantial sums, and were not always for protracted periods, but in each case the evidence shows that some misappropriation occurred.

Intent

Ekekwe-Kauffman’s handling of entrusted funds evinces practically all of the hallmarks of reckless misappropriation. She commingled funds between her trust and operating accounts repeatedly and indiscriminately. She likewise moved money among her personal, business, and trust accounts, haphazardly covering shortfalls in each account by drawing on the balance of the others.

Associate Judge Deahl authored the unanimous opinion. (Mike Frisch)

Admitted With Conditions

The Louisiana Supreme Court has admitted a bar application subject to conditions

Upon passing the bar exam, and on petitioner’s application to this court, we remanded this matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. During the hearing before the commissioner, evidence was introduced pertaining to petitioner’s record of criminal offenses, his failure to disclose these offenses when he applied to law school, and the neglect of his financial responsibilities. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. Neither party objected to this recommendation.

Conditions imposed for two years including

During the period of this conditional admission, petitioner shall provide evidence to the ODC, on at least a quarterly basis, demonstrating that he is making a good faith effort to satisfy his financial obligations.

(Mike Frisch)

Ode To Ohio

As readers may know, I believe that maximum transparency is the best way to provide reasonable assurance that bar discipline is imposed fairly and absent the influence of what the American Bar Association's Model Rules Preamble calls the "parochial or self-interested concerns of the bar."

At the top of the list of the most transparency discipline systems is Ohio. The responsible administrators seem to have mastered the technology required to deliver a full picture of the arc of every bar discipline case.

Mastery of technology seems to have expanded to the admissions process as described by Csaba Sukosd

It’s a new year and a convenient, new beginning for prospective Ohio attorneys.

Starting today, the administrative process for admittance into the state’s bar will be completed online.

The Supreme Court of Ohio’s Office of Bar Admissions finished a transition, which began before the pandemic, from a paper-only system to an electronic one.

“This new format makes us more efficient, freeing us up to be more available and pay attention to other things,” Attorney Services Director Gina Palmer said.

The digital transition allows applicants to submit the required documents electronically, and gives them the convenience of paying fees by credit card, debit card, or an electronic bank transfer. Previously, the Supreme Court only accepted cashier’s checks or money orders.

The procedure to determine whether candidates are eligible to pursue an Ohio law license takes months. During that time, the Court investigates and assesses if a person’s character, fitness, and moral qualifications to practice in the state are met.

If approved, those seeking to become attorneys must take, and pass, the Ohio Bar Examination – administered every February and July.

(Mike Frisch)

Task Force Not Approved To Study Minnesota Admissions

The Minnesota Supreme Court has denied a State Bar petition to create a Task Force to study bar admissions

On October 6, 2021, the Minnesota State Bar Association (MSBA) filed a petition asking that we appoint a task force to study attorney licensing methods, the efficacy and fairness of the written examination, changes to the examination, and other approaches to attorney licensure. Petition for Task Force at 1, No. ADMl0-8008 (filed Oct. 6, 2021). As an alternative to a task force, the MSBA asks that we appoint representatives from a range of stakeholders to the committee of the Board that is responsible for the Board's study. Id. Recognizing that an extensive study is required and the importance of a broad range of views and ideas to a diverse, equitable, and inclusive legal profession, the MSBA urges us to ensure that an "independent, cross-functional" group that can draw on "a broad set of expertise and resources" undertakes this critically important work.  Id. at 26.

We have carefully considered the MSBA's petition. We agree with the MSBA that the Board's study is of the utmost importance and that a diversity of viewpoints, perspectives, and experiences must inform the Board's work. Determining the standards by which we fulfill our responsibility for ensuring the competency of those admitted to practice in Minnesota must account for diversity in the age, race, ethnicity, gender, geographic location, and practices of the applicants and the clients who rely on Minnesota lawyers for their legal needs. In addition, the Board's study should be informed by the work undertaken by other jurisdictions in recent years, as well as the different measures used by some jurisdictions to evaluate competency to be admitted to the practice of law.

The Board and the MSBA have identified the same groups and sectors from whom stakeholder input is needed. The Board has also established a public process that will allow for broad participation in this study. Thus, in response to the petition of the MSBA, we expect the Board to seek out and consider a broad and robust range of viewpoints, to study barriers to entry to Minnesota's legal profession, and to thoughtfully evaluate alternatives to licensure in Minnesota. Our analysis of the Board's study will include consideration of the input provided to the Board, the responsiveness of the Board to that input and public concern, the steps taken to ensure broad and easy access to and participation in Board deliberations, and the transparency of the process.

Given these elements and the fact that the Board's work and study is underway, it is unnecessary for our court to appoint a separate task force to study this critically important issue. We also believe the more efficient strategy is to allow the Board to complete its work with its current members; thus, we do not see a need to expand the size of the Board to complete the study. We therefore decline to grant the MSBA's petition.

But to be clear: Nothing we have said here, nor our decision to deny the petition of the MSBA, should discourage the MSBA or other interested bar associations and legal practice organizations from separately evaluating Minnesota's methods for licensure or alternative pathways to licensure. Nor should anything we say here limit the scope of the Board's study or that of any other interested organization. We expect and encourage the deepest and broadest look at these issues, whether that work is done by the Board or by another interested organization.

(Mike Frisch)

No Forced Arbitration Of Structured Settlement Transfers Of Rights

The Maryland Court of Special Appeals declined to enforce arbitration agreements between lead paint victims who had settled claims and a company that purchased the resulting income stream

Crystal Linton and Dimeca D. Johnson, and other putative class members, had obtained structured settlements, and the resulting stream of payments, after resolving their lead paint exposure claims. Ms. Linton, Ms. Johnson, and the others (“Plaintiffs”) later signed Purchase and Sale Agreements(“Agreements”) that purported to transfer their rights to those income streams to Access Funding LLC and/or affiliated entities (“Access”) in exchange for discounted lump sum cash payments. Ms. Linton and Ms. Johnson filed this action in July 2016, alleging claims of negligence, misrepresentation, fraud, and conspiracy in connection with those Agreements.

The Agreements contained arbitration clauses, and the Defendants filed petitions to compel arbitration in August 2016.

Holding

Compelling arbitration in this case effectively would allow the Defendants to circumvent the court authorization process mandated by the Structured Settlement Protection Act. Put another way, allowing the dispute about the validity of the court’s authorization to be decided by the arbitrator would be the same as allowing Access to avoid the court at the very stage in the process where the General Assembly required the court’s approval. CJ § 5-1102. Indeed, the arbitration clause states expressly that it is not to be used for that purpose: “[t]his arbitration provision cannot be used to bypass state and federal laws requiring court approval of this transaction.” And other courts have held that companies seeking to avoid the statutorily-required court authorization process via arbitration cannot do so.

Judge Nazarian authored the opinion. (Mike Frisch)

Domestic Violence Suspension

A stipulated six-month suspension was approved by the Colorado Presiding Disciplinary Judge

In May 2021, Throssel pleaded guilty to criminal mischief as an act of domestic violence. He separately pleaded guilty to a third-degree assault as an act of domestic violence and received a deferred judgment.

The conviction for criminal mischief was premised on Throssel’s destruction of his ex-wife’s phone during an argument with her, after which she attempted to call 911 on a second phone before Throssel took it away. Throssel’s ex-wife placed another call to 911 while sheltering in a bedroom with one of the children she shared with Throssel. After law enforcement responded, Throssel’s ex-wife reported a separate incident, telling police officers that Throssel had grabbed her by her hair during a recent argument, dragged her down a set of stairs, and strangled her until she lost consciousness. Throssel was separately charged for the strangulation, leading to the deferred judgment.

(Mike Frisch)

Reduced Web Traffic Does Not Confer Standing

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of a lawsuit against Rep. Adam Schiff

The Association of American Physicians and Surgeons appeals the dismissal of its complaint for lack of Article III standing. The Association, joined by an individual, sued a Member of Congress who wrote to several technology and social media companies before and during the COVID-19 pandemic expressing concern about vaccine related misinformation on their platforms and inquiring about the companies’ policies for handling such misinformation. The Association, which purveys vaccine-related information online, alleged that the inquiries prompted the technology companies to disfavor and deprioritize its vaccine content, thereby reducing traffic to its web page and making the information more difficult to access. Because appellants have not established that they have standing, the court affirms the dismissal of the complaint.

Causation on reduced web traffic

Yet appellants’ allegations have not presented a plausible account of causation. Even assuming the Association’s content was indeed demoted in search results and on social media platforms, the technology companies may have taken those actions for any number of reasons unrelated to Representative Schiff. Appellants offer no causal link that suggests it was an isolated inquiry by a single Member of Congress that prompted policy changes across multiple unrelated social media platforms. The timeline of events in the amended complaint also undermines any possibility that the companies acted at Representative Schiff’s behest in particular.

Circuit Judge Rogers authored the opinion. (Mike Frisch)

All Is Forgiven - With A Dissent: "This Is The Way It Works"

The Oklahoma Supreme Court has reinstated an attorney who had been convicted of bribery and allowed to resign in 2013.

The United States Court of Appeals affirmed the conviction but remanded for resentencing and portrayed the offense like an episode of Ozark, set in the Petitioner's Senate office dealing with the concerns of the Oklahoma Assisted Living Association

In May 2006, [OKALA part owner] Crosby hired lobbyist Benny Vanatta to promote Silver Oak's position with the legislature. Vanatta immediately arranged a meeting with Crosby and [Senator] Morgan in Morgan's office at the Capitol. According to Crosby's testimony, they met for "about an hour to an hour and a half." (Morgan's App'x, Vol. 5 at 1904.) His testimony continued as follows. I told "them all my troubles and the fights with the [ODH] and everything and that I needed some help. I didn't care whether it was a phone call, legislation, meetings, whatever, I just needed some help to get them off my back." (Id.) About forty-five minutes into the meeting, Vanatta left to get coffee. While Vanatta was gone, Morgan told Crosby, "This is the way it works. You pay me a $1,000 a month retainer." (Id.) Morgan assured Crosby the arrangement was legal. Crosby asked, "Well, do I maybe get some traffic tickets or something for that [amount]?" (Id.) Morgan told Crosby to call his law firm and it will "help you with [the traffic tickets]."  (Id.) In the end, even though it "[d]idn't sound right" to Crosby, Silver Oak made twelve $1,000 payments to Morgan from July 2006 until July 2007. 

...The retainer agreement between Morgan and Crosby was made at a meeting at Morgan's office in the Capitol. The meeting was  brokered by a lobbyist hired to promote Silver Oak's governmental relations. Crosby told Morgan "[he] didn't care whether it was a phone call, legislation, meetings," he just needed "help" in getting the ODH "off [his] back." (Morgan's App'x, Vol. 5 at 1905.) Morgan insisted on a monthly retainer, even though he could not represent Silver Oak before the ODH. See supra n.10. Shortly thereafter, Huser learned that "a legislator" requested a meeting between the ODH and Silver Oak representatives to take place at the Capitol. (Id. at 1949.) Seven and a half months later, Morgan introduced a bill favorably addressing Silver Oak's problems.

Panel finding

"that the Petitioner possesses the moral character which would entitle him to be admitted to the OBA" in light of the "clear and convincing evidence" that his efforts to be reinstated are supported by a wide array of people who have known him for decades--including former Governor Brad Henry, retired Oklahoma Supreme Court Justice Joseph Watt, former Oklahoma State Senator Glenn Coffee, District Judge Phillip Corley (Payne County), retired District Judge Donald Worthington (Payne County), District Attorney Laura Thomas (Logan and Payne Counties), and his current co-workers at Cactus Drilling Company--and that he has consistently sought "to make positive contributions . . . to the general community as well as the legal community," particularly as demonstrated by the testimony of District Attorney Laura Thomas about Petitioner's help with a juvenile delinquent program being developed in Payne County..."

It was not unanimous per Justice Rowe

...the seriousness of Petitioner's misconduct weighs most heavily against reinstatement. Bribery is a conscious, well-thought-out crime. Petitioner made a calculated decision to accept a bribe under the guise of a legal fee. In addition to the intentionality, the notoriety of Petitioner's misconduct exacerbated the harm to our profession. Petitioner's deception reflected poorly on the character of the legal profession as a whole and undermined the ability of honest, hard-working, and well-intentioned members of the Bar to overcome public mistrust of lawyers when running for public office.

Petitioner served as the President pro tempore of the Oklahoma Senate from 2005 to 2008, making him one of the highest-ranking, most powerful, and most well-known elected officials in state government. His misconduct and criminal conviction were the focus of significant public discourse, which reflected poorly on our State and the Bar.

The uniqueness of Petitioner's misconduct begs the question of what potential deleterious effect his reinstatement might have on the public's perception of the Bar, which is of utmost importance to us in disciplinary matters. See State ex rel. Okla. Bar Ass'n v. Kinsey, 2009 OK 31, ¶ 15, 212 P.3d 1186, 1192. The answer to that question seems quite clear: Reinstatement of Petitioner's law license would signal to the public that this Court takes lightly incidents of public corruption by attorneys at the highest levels of our most vital institutions.

We must remain ever-vigilant of the harm bribery inflicts upon a democracy--and we must take seriously our duty to ensure that the integrity of our profession endures for future generations.

In summary, this crime committed by Petitioner--a lawyer-legislator using his law degree--is profoundly damaging to our profession. Thus, I respectfully cannot assent to reinstatement of his law license.

Justice Kuehn joined the dissent. (Mike Frisch)

The Veil Of Suspicion

Decisions in two criminal matters before the New Jersey Supreme Court hold

The only information the officer possessed at the time of the stop was the race and sex of the suspects, with no further descriptors. That information, which effectively placed every single Black male in the area under the veil of suspicion, was insufficient to justify the stop of the vehicle and therefore does not withstand constitutional scrutiny.

(Mike Frisch)

Tan Lines

The New Jersey Supreme Court has entered an order dismissing an ethics complaint.

A majority of the Disciplinary Review Board has found that the attorney engaged in dishonest conduct and Rule 1.15 violations and has proposed a public censure.

The representation

In late 2014, Blanche Ryder retained the grievant, Keith N. Biebelberg, Esq., in connection with contemplated divorce proceedings against her husband, Christopher Ryder.  Christopher was the sole member of Beach Bum Tanning, LLC, which he had acquired during the marriage. On December 1, 2014, Biebelberg wrote to Christopher, identified himself as counsel for Blanche, and remarked that “the tanning salon in East Hanover which the two of you own as members of [BBT] is for sale.” Biebelberg informed Christopher that Blanche was in favor of the sale, but lacked details to which she had a right, and stated that there was a “substantial amount of money at stake.” Biebelberg further asked Christopher to provide contact information for any attorney representing BBT. He closed his letter by informing Christopher that, if Blanche’s efforts to ascertain information were “delayed or thwarted,” he would be forced to seek restraints in New Jersey Superior Court via an Order to Show Cause. On December 4, 2014, Christopher called Biebelberg and informed him that the sale had fallen through and that he had not yet retained an attorney to represent BBT. That same date, Biebelberg memorialized the telephone conversation in a letter to Christopher.

The sale later occurred

Respondent argued that, at this point, he was “confronted with a fundamental problem. My client disclosed something he wanted kept confidential. Under the law he had a right to sell that business, to receive the money, and to pay legitimate debts.” Respondent maintained that, if he had informed Biebelberg of the impending sale, he “would have violated the attorney-client privilege.”

Respondent then advised Christopher to open a new bank account for the purpose of depositing the net proceeds of the BBT sale. Respondent denied that he gave that advice to assist Christopher in concealing the sale of BBT or its sale proceeds from Blanche. Rather, he contended that a separate bank account would simplify the accounting for the disbursement of the sale proceeds. Moreover, respondent maintained that a client with financial problems, such as Christopher, may be unaware of liens or lawsuits that could interfere with the disbursement of funds. When asked whether the family court had mechanisms available, on an emergent basis, for Christopher to receive and disburse such sale proceeds, respondent answered in the negative.

The adverse findings

Nevertheless, despite knowing that BBT was a marital asset subject to equitable distribution, and despite knowing that Biebelberg had requested to be informed about the status of the business, respondent deliberately failed to disclose his firm’s representation of Christopher in the sale of BBT; the impending sale of the business; the deposit of the net sale proceeds into his firm’s trust account; and the disbursement of the entirety of those proceeds to Christopher. As an aside, respondent’s deposit of Christopher’s funds in his business account, rather than his trust account, raises concerns about his intent to conceal those funds.

A DRB dissent would dismiss as had been recommended by a Special Master

Because the business was solely owned by Christopher at the time of the sale, Blanche had no interest in the business and no interest in the proceeds of its sale. At best, she had a potential, unlitigated claim of right to equitable distribution of a portion of the proceeds.

The error in applying Rule 1.15

The critical mistake made by the majority here in deciding that respondent violated RPC 1.15(b) is its confusing the concept of a marital asset that may be subject to eventual distribution by a court in a divorce proceeding with an actual present interest in property.

And dishonesty

we agree with the Special Master that respondent made no promises to grievant and did not falsely misrepresent any fact to grievant. The fact that grievant asked to be updated regarding the sale of the business does not, in and of itself, create a legal or ethical duty on the part of respondent to do so. To hold otherwise would be to invite attorneys to write self-serving letters making requests and demands and argue, later, that the failure to respond specifically to each and every one constitutes an enforceable agreement. That is not the law, nor should it be the law, and the Rules of Professional Conduct do not support a violation under such circumstances.

Interesting case. (Mike Frisch)

Sanction Issue Before Ohio Supreme Court

An oral argument scheduled today before the Ohio Supreme Court

Medina County Bar Association v. Russell A. Buzzelli, Case No. 2021-1233
Medina County

The Board of Professional Conduct recommends a two-year suspension for Wadsworth attorney Russell Buzzelli, concluding that he violated 18 attorney ethics rules.

Buzzelli objects only to the proposed sanction. He asks the Ohio Supreme Court to stay one year of the suspension. The Medina County Bar Association, which submitted the disciplinary complaint against Buzzelli, disagrees. The “extreme nature” of the attorney’s misconduct supports a suspension with no stay to protect the public, the association’s brief maintains.

Because Buzzelli objected to the board’s recommendation, the Supreme Court must hear oral argument in the case.

Client Helps Attorney with Office Work
Buzzelli states that Mary Beth Foster approached him in summer 2017 to represent her in a divorce. Foster began doing work at Buzzelli’s law office, but not as a paid employee, starting in fall 2017 until the late summer of 2018. During part of this time, Buzzelli was estranged from his wife and lived with Foster.

Foster answered the telephone, had an office key, and was in the office with clients. She had access to Buzzelli’s computer, client files, and bank accounts. Buzzelli provided no training or supervision to Foster.

Attorney Threatens Client, Commits Other Misconduct
In September 2018, Foster recorded part of a conversation she and Buzzelli had in his office. The attorney touched Foster against her will – which he referred to in the recording – and threatened to kill her. Buzzelli stated that he wanted to intimidate Foster because she had threatened to murder his wife. However, no evidence to support Buzzelli’s claim was admitted at his disciplinary hearing.

Buzzelli also acted as his wife’s attorney in filing a request for a civil stalking protection order against Foster. At the final hearing, Buzzelli cross-examined Foster using information he gathered while representing her in her cases.

Among his ethical violations, the professional conduct board found Buzzelli failed to take measures to ensure that Foster’s conduct in his law office abided by ethical rules; committed an illegal act – menacing – by threatening Foster; and used information obtained while representing Foster against her in a later legal matter.

The board also determined that Buzzelli neglected the case of a client who paid a $15,000 retainer to him to handle a divorce and then overcharged her, and that he didn’t act diligently while representing a client in the appeal of a conviction.

Professional Conduct Board Rejects Any Stay of Suspension
The board’s three-member panel that conducted the disciplinary hearing suggested a two-year suspension with six months stayed. However, the full board voted to recommend a two-year suspension with no stay, citing Buzzelli’s violence toward Foster and misrepresentations he made in a federal court filing for Foster.

The board recommends that the attorney pay restitution of $7,869 in the overcharging case within 60 days of the final order, pay the costs of the disciplinary proceedings, and complete six hours of legal education on sexual harassment and employee management.

Attorney Advocates for Partial Stay
Buzzelli states in his objections that he acknowledges his ethical misconduct and accepts the proposed conditions of a suspension. Noting his wife’s ongoing medical conditions, he maintains he and his wife are dependent on his ability to earn an income. He asks the Court to stay one year of his suspension, pointing to other similar disciplinary cases with lesser sanctions and stating he has had no other disciplinary actions in 34 years of practicing law.

Bar Association Argues Full Suspension Necessary
The bar association responds in its brief that Buzzelli “has not learned that his actions undermined his clients and the public.” It supports the board’s proposed sanction and conditions.

– Kathleen Maloney

Now And Forever

The Kentucky Supreme Court imposed permanent disbarment of an attorney for misconduct in multiple matters

a number of aggravating circumstances are present in this case. First, there was a pattern of misconduct that resulted in a total of eighteen disciplinary Charges. This pattern included, almost invariably: accepting fees from a client, performing little to no work on the case, blatantly lying to the client about the status of the case, and then refusing to refund the client’s fee or release the client’s file. And, each Charge resulted in numerous violations of the rules of professional conduct. Grayson was also convicted of a criminal charge that reflected her dishonesty and unfitness to practice law. She pled guilty to second-degree criminal possession of a forged instrument, a Class D felony. That conviction stemmed from her forging a judge’s signature on a Custody Order, which she then gave to a client. Grayson also engaged in bad faith obstruction in the disciplinary proceedings by failing to respond to six Inquiry Commission Charges and by failing to attend the March 16 hearing before the trial commissioner. Finally, we consider the vulnerability of the victims and the financial and legal hardships they endured due to Grayson’s misconduct as aggravating circumstances.

Standing alone, any of the foregoing aggravating circumstances could arguably warrant a five-year suspension. However, when considering them together, this Court can justify nothing less than permanent disbarment.

Mountain News WYMT covered the criminal matter. 

(Mike Frisch)

Transparent Discipline Promotes Public Confidence

The web page of the Ontario Law Society is an excellent example of discipline transparency.

Among the features is a weekly update of pending proceedings and decisions.

From today's update

The Law Society initiated both a capacity and a conduct application against Mr. Phillips after he, in separate incidents in the fall of 2017, assaulted a man in a parking lot with a baseball bat and threatened to go “thermo nuclear” on a shopping centre. After a number of assessments of Mr. Phillips by forensic psychiatrists, the parties agreed that he had been incapacitated due to illness from January 2018 to December 2020, during a which a further incident of vandalism and threatening behaviour had taken place. The parties jointly proposed a detailed treatment plan with strict conditions that would allow Mr. Phillips to resume practice, which the panel accepted. As to the misconduct application, the Law Society argued that Mr. Phillips was not incapacitated in the fall of 2017, in that his delusional behaviour had been caused by voluntary marijuana use, and therefore a finding of misconduct was justified in relation to the earlier incidents. The panel, reviewing the medical evidence, found that although Mr. Phillips’ delusional behaviour was exacerbated by substance use, it stemmed from psychosis, a recognized mental illness and therefore he was incapacitated during the earlier incidents as well. It therefore dismissed the conduct application.

Also

Mr. King entered an agreed statement of facts and acknowledged that he engaged in professional misconduct and conduct unbecoming by: i) failing to record cash payments and in doing so depriving his law partner of her share of firm profits; ii) pre-taking and taking excessive and unauthorized fees for executor compensation; iii) committing sexual assault against a client and failing to report the criminal charge to the Law Society. The panel accepted the parties’ joint submission that Mr. King be permitted to surrender his licence.

(Mike Frisch)

No To Stoned Judges

An opinion issued last year by the Maryland Judicial Ethics Committee

Issue: May a judicial appointee obtain and use medical marijuana?

Answer: No

The committee considered ethics opinions from other states, particularly California on a judge's proposed grow license as well as its own prior opinion

The Committee concluded that as long as “federal laws make the possession, use, manufacturing and/or distribution of marijuana (cannabis) illegal, a judicial [employee] may not participate in the growing, processing, or dispensing of the substance regardless of the purpose.”

The California Committee on Judicial Ethics Opinions reached a similar result in California Judicial Ethics Formal Opinion 2017-010, citing this Committee’s Opinion No. 2016-09 and the Washington Judicial Ethics Advisory Committee Opinion 15-02.

Just say no

In short, the applicable legal landscape on which that opinion was based has not significantly changed since 2016. The facts here differ only in that the Requestor would be a user rather than a grower, processor, or dispenser of medical cannabis. We are not persuaded that that difference supports a different result.

(Mike Frisch)

Spouse May Appear But Not As Judge

A recent opinion of the Maryland Judicial Ethics Committee permits the use of a family photograph with the judge-spouse of a political candidate so long as no judicial connotation derives therefrom

In balancing the requirements of the Code and the candidate spouse’s interest in mounting an effective campaign, we believe that the Requestor’s photograph may be used in family photographs so long as the Requestor’s title or office is not mentioned, there are no visual elements identifying the Requestor as a judge, and no explicit endorsement is featured. We
recognize that family photographs are important fixtures in political campaigns and the absence of a spouse in such a photograph would invite speculation and misrepresent to voters the candidate spouse’s family situation.

(Mike Frisch)

Jade Helm

The Louisiana Supreme Court has disbarred an attorney for dishonesty and related misconduct in his handling of insurance proceeds due to his client.

He claimed to have paid for the client's home repairs in cash and submitted forged "proof" of those purported payments.

He also claimed that a fictitious burglary theft of his computer delayed his bar response.

And

Finally, the ODC alleges that respondent engaged in dishonest conduct in connection with the service of a subpoena upon him for a sworn statement. On March 20, 2018, the ODC’s investigator, Robert Harrison, traveled to respondent’s law office in Lafayette to serve him with the subpoena. Respondent’s office is located in a building that he shares with his identical twin brother, Jade Andrus, who is also an attorney. Upon his arrival, Investigator Harrison encountered respondent in the parking lot. After introducing himself to respondent and giving him a business card, Investigator Harrison informed respondent he was there to serve him with a subpoena. In response, respondent stated that he was not Brad Andrus, but was Jade Andrus, Brad’s twin brother.

Following his conversation with “Jade,” Investigator Harrison went inside the building and asked to see respondent. The receptionist informed Investigator Harrison that respondent had just left the office moments before. Respondent was ultimately served with the subpoena on April 4, 2018, and he appeared for a sworn statement on April 10, 2018.

The court

Respondent initially took a portion of the proceeds as attorney’s fees and did not maintain the balance owed to Mr. Harmon in his trust account, thereby converting funds. In the end, it appears that although repairs were delayed, Mr. Harmon’s house was repaired and that most and possibly all of the insurance proceeds were eventually paid by respondent toward the repairs. However, it is unknown whether the same outcome would have occurred had Mr. Harmon not filed a complaint with the ODC. Respondent’s mishandling of his trust account also created the potential for harm to clients other than Mr. Harmon. Respondent’s lack of candor and failure to cooperate with the ODC caused additional expenditures of resources and potential delay in the resolution of the investigation...

Turning to the issue of an appropriate sanction, we agree that respondent should be disbarred. While we do not minimize the seriousness of his misconduct as it relates to his client, Mr. Harmon, we suggest that respondent’s numerous instances of deceptive behavior are the most disturbing aspect of this matter. From the incredible tale of a vehicle burglary offered as justification for failing to timely respond to the disciplinary complaint, to his attempt to evade service of a subpoena by claiming to be his identical twin brother, and finally to submitting fabricated receipts and invoices to the ODC, respondent has violated the most fundamental duty of an officer of the court. The utter absence of candor respondent has demonstrated in these proceedings calls his good moral character into serious question and warrants disbarment.

(Mike Frisch)

Silver Linings Playbook

It remains possible to get disbarred in New Jersey as the Supreme Court imposed that sanction for an attorney's wire fraud conviction arising from the misappropriation of estate funds.

The Disciplinary Review Board had recommended disbarment.

Lehigh Valley Live had the story

Angelo Perrucci’s neighbors said they hired him to handle their late father’s estate because he was a trusted friend.

The Easton-based attorney repaid that trust by taking more than $300,000 and using it on personal expenses, including tickets to see the Philadelphia Eagles in the Super Bowl, according to court records.

Perrucci’s attorney maintains his client’s fraud was “not premeditated nor purposeful” but resulted from negligent and poor accounting. The Lower Mount Bethel Township resident and Washington, New Jersey, native maintains he took less than $250,000. He pleaded guilty to five counts of wire fraud.

He was sentenced Wednesday to three years in federal prison and ordered to pay back $300,000 by U.S. District Judge Joseph F. Leeson Jr., according to Assistant U.S. Attorney Christopher S. Mannion.

 

In his sentencing memorandum, Mannion said Perrucci did little as an attorney other than file a document naming himself administrator of the estate. This gave him free rein to take what he wanted.

 

He used funds from the estate between 2016 and 2019 to pay his credit card bills, his business expenses, his mortgage, his law firm’s payroll, restaurant bills and the Super Bowl tickets, Mannion wrote.

 

“These were serious crimes,” Mannion wrote. “Perrucci abused the trust that his friends and former neighbors placed in him during their time of need. And, he perpetrated the fraud for years.”

 

Perrucci’s attorney Erv McLain said in his memorandum that Perrucci’s firm provided more than 30 hours of legal work.

 

Mannion said Perrucci failed to sell the decedent’s home during that three-year period, but McLain wrote that the decedent was a “hoarder” and Perrucci was forced to bring in dumpsters and helpers to attempt to clean out the home.

 

McLain said Perrucci was trying to close his law practice at the time and opened a farm to save animals from being slaughtered. McLain disclosed a long list of volunteer and civic experience for Perrucci which includes youth sports coaching, Big Brothers and the Lions Club.

 

“Angelo has spent the majority of his life attempting to help others through his law practice and his volunteer work,” McLain wrote.

 

Perrucci was a lawyer and as such had an obligation to represent his clients ethically and morally, Mannion wrote. Perrucci’s law license is suspended and it’s unlikely he’ll ever practice again.

 

“Even if he is right that this was a one-time mistake, it was among the most serious and consequential aberrations that Perrucci, as an attorney, could have committed, and it deserves punishment as such,” Mannion wrote.

 

Perrucci had practiced law for close to 30 years and had a net worth of $700,000, Mannion wrote. So there was no need for him to defraud his friends, Mannion wrote.

 

“This was not a crime of necessity, but instead a crime motivated by greed,” Mannion wrote.

 

Rudy Miller may be reached at rmiller@lehighvalleylive.com. If there’s anything about this story that needs attention, please email him. Follow him on Twitter @RudyMillerLV. Find Easton area news on Facebook.

 

(Mike Frisch)

Agreed Suspension For Sex With Client

An agreed sanction for sex with a domestic relations client was accepted by the New York Appellate Division for the Third Judicial Department

Having considered the parties' joint affirmation, the parties' stipulation of facts, respondent's conditional admissions, the parties' summation of aggravating and relevant mitigating circumstances and the recitation of the parties' agreed-upon disciplinary sanction, we grant the joint motion. Moreover, upon review of the stipulated misconduct and relevant circumstances, we find that, while the charges of professional misconduct are serious, the maximum recommended sanction is appropriate under the circumstances and is not inconsistent with prior precedent... Accordingly, we hold that, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, respondent is suspended from the practice of law for a six-month period, effective 30 days from the date of this decision.

(Mike Frisch)

Hearing Board Opposes Reinstatement

An Illinois Hearing Board has made an unfavorable recommendation on a petition for reinstatement

Petitioner sought reinstatement after being disbarred on consent based on his participation in a conspiracy involving sham marriages arranged to circumvent immigration laws. Petitioner’s role entailed preparing and submitting false documents to immigration authorities and advising the couples how to make their marriages appear legitimate when interviewed by immigration officials. Petitioner engaged in additional, unrelated misconduct involving neglect of client matters and failure to refund unearned fees. He also failed to properly notify clients when he was disbarred. Despite his otherwise good conduct since disbarment, the Hearing Board concluded that Petitioner did not prove that he should be reinstated and recommended that reinstatement be denied.

The conduct was serious

The seriousness of Petitioner’s misconduct does not preclude reinstatement, but weighs heavily against reinstatement.

He had demonstrated good post-disbarment/prison conduct

Ultimately, Petitioner did not demonstrate that he has identified and sufficiently addressed whatever issues led him to violate the law and abandon his clients. See, e.g., In re Magafas, 2019PR00063, M.R. 029993 (Sept. 23, 2021) (Hearing Bd. at 13-14). His very general testimony that he now appreciates his law license and realizes the importance of his responsibilities to clients is not enough to persuade us that he possesses the self-awareness and good judgment necessary to return to the practice of law. Petitioner’s conduct since disbarment includes many positive factors. However, given the concerns expressed above, we find that this factor does not favor reinstatement.

(Mike Frisch)