Monday, August 2, 2021

Pawn Star

A guilty plea to federal conspiracy to transport goods in interstate commerce charges has led to an interim suspension by the Virginia State Bar Disciplinary Board.

The Virginian-Pilot reported on the charges

A Chesapeake attorney faces federal charges he used a pawn shop he owned in Portsmouth to buy shoplifted goods and then resell them for a profit online, according to recently unsealed court documents.

Morris Andrew Bander was indicted last week on one count of conspiracy. He was arrested Tuesday and released on a bond. The charge is a felony punishable by up to five years in prison and a $250,000 fine.

Bander could not be reached for comment Wednesday. No lawyer was listed for him in court records.

Bander has been a licensed attorney in Virginia since 2001, according to the Virginia State Bar. The website martindale.com, an information services company for the legal profession, lists him as a graduate of Regent University School of Law specializing in cases involving personal injury, medical malpractice, domestic relations, traffic violations and workman’s compensation.

While the website states that he works as an associate for a personal injury law firm in Virginia Beach, an attorney there said he hasn’t worked for the firm in years. State bar records had a Chesapeake address listed for him.

In addition to his legal practice, Bander also owned Portsmouth Pawn, a shop on County Street that shut down last year. The closing came shortly before the store’s manager and assistant manager were arrested and charged with similar crimes.

Bander’s indictment alleges that between January 2014 and May 2018 the two pawnshop managers used cash provided by Bander to buy goods they knew had been shoplifted from stores such as Walmart and Sam’s Club.

The items — which included things like power tools, pet supplies, printer cartridges, personal electronics, and computer routers and hard drives — were then resold for a profit on eBay. On multiple occasions, the store manager told the thieves what items he was interested in buying.

The shoplifters typically were paid half the retail price for each, according to court documents in the managers' cases.

The shop collected more than $1 million from the illegal transactions, the indictment said.

The store’s manager, Joseph Poling, and the assistant manager, Raisa Ison, both pleaded guilty last year to one count of conspiracy. Poling was sentenced to four years in prison and Ison to two years of home confinement. Both also were ordered to serve three years of probation and pay restitution.

Jane Harper, 757-222-5097, jane.harper@pilotonline.com

(Mike Frisch)

August 2, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Divorce Misconduct Draws Agreed Suspension

A Michigan Tri-County Hearing Panel has ordered a 180 day suspension for an attorney's misconduct in his own divorce

Based on the parties’ stipulation that contains respondent’s admissions and no contest plea, the panel found that respondent committed professional misconduct by knowingly filing a false certificate of marriage with the Oakland County Register of Deeds, stealing a notebook which contained his soon-to-be ex-wife’s notes regarding strategy and privileged discussions she had with her attorney, surreptitiously recording his son’s therapy sessions with a clinical psychologist, knowingly and repeatedly disobeying court orders with regard to his son’s therapy, parenting time, use of a private investigator, and the release of his son’s information, and, providing knowingly false testimony during a hearing held in an action initiated by his ex-wife’s romantic partner to obtain a personal protection order against respondent.

(Mike Frisch)

August 2, 2021 in Bar Discipline & Process | Permalink | Comments (0)

New Jersey Today: Reading License Plates And Recreational Marijuana Use In Custody Matters

The New Jersey Supreme Court decided two criminal cases in a single opinion, both dealing with potential criminal exposure for a partially-covered license plate.

From the court's headnote

if even a part of a single registration letter or number on a license plate is covered and not legible, the statute would apply because each of those characters is a separate marking. If “Garden State,” “New Jersey,” or some other phrase is covered to the point that the phrase cannot be identified, the law would likewise apply. But if those phrases were partly covered yet still recognizable, there would be no violation. When applying the above test, trial courts will be asked to evaluate whether license plate markings are legible or identifiable from the perspective of an objectively reasonable person. That judgment can be based on still photos or videos. (pp. 29-30)

Applying the above test here, Roman-Rosado did not violate the statute. In Carter’s case, however, it is undisputed that “Garden State” was entirely covered. As a result, the plate violated the statute, and law enforcement officers had the right to stop Carter. The Court does not find persuasive Carter’s argument that the statute violated his rights under the First Amendment by requiring him to display the state motto, “Garden State.” The case on which Carter bases his argument, Wooley v. Maynard, involved two components: (1) compelled speech by the government; and (2) content a party disagreed with. See 430 U.S. 705, 715 (1977). Unlike in Wooley, the record before this Court does not include any statement or certification that Carter disagrees with the expression “Garden State” or finds it “morally objectionable."

The Appellate Division had this holding in a custody matter decided today

We hold that a parent's status as a recreational marijuana user cannot suffice as the sole or primary reason to terminate that parent's rights under Title 30, unless the Division proves with competent, case-specific evidence that the marijuana usage endangers the child or children.

But

In this case, the parents each admitted they had used marijuana on several occasions while caring for their preschool child, and the Division presented unrebutted expert testimony explaining the risks of harm associated with that conduct. Beyond that, the trial judge had substantial other evidence to further support his finding that all four prongs for termination under N.J.S.A. 30:4C15.1(a) had been proven by clear and convincing evidence. Hence, the judgment is affirmed.

(Mike Frisch)

August 2, 2021 | Permalink | Comments (0)

Thursday, July 29, 2021

Earned On Receipt

The Oregon Supreme Court sustained findings of a plethora of ethics rule violations and disbarred an attorney

Respondent graduated from law school and became a member of the Oregon State Bar in 2003. He worked for a small law firm in Roseburg until leaving Oregon in 2004 to begin graduate legal studies. After completing his graduate degree and clerking, respondent worked as a law professor specializing in environmental law. In 2015, respondent moved back to Oregon to begin practicing law. He started at a small firm in November 2015 and then opened a solo practice in January 2016. At around the same time, respondent was going through a difficult divorce and custody dispute with his wife, who resided in Florida with their children.

At the heart of the problem were Respondent's financial struggles and use of "earned on receipt" fees

Although respondent’s handling of those advance fees did not itself violate a Rule of Professional Conduct, it nevertheless left respondent’s clients vulnerable. “Earned on receipt” fee agreements shift the risk of loss to the client. If the client relationship ends before the lawyer has performed the services needed to keep the advance fees, then the lawyer is required to return the fees for the uncompleted work. If the lawyer has already spent the advance fees and has no other financial resources upon which to draw, then the lawyer may be unable to provide the client with the required refund.

That is what happened to many of respondent’s clients. The client provided respondent with advance fees that were designated as “earned on receipt.” The client then terminated respondent’s service before respondent performed the services needed to permit him to retain the advance fees. And respondent failed to provide the required refund of the advance fees that respondent had not, in fact, earned by performing legal services. For that conduct, the Bar alleged that respondent repeatedly violated RPC 1.5(a) (charging excessive fee) and RPC 1.16(d) (failing to refund unearned fees).

And multiple counts of failure to respond

He maintains, however, that his failure did not violate RPC 8.1(a)(2) because he believed that the Bar’s inquiries were not a “lawful demand for information.” According to respondent, he believed in good faith that the Bar’s inquiries “exceeded the Bar’s authority and/or [were] being used to advance illegal and unethical conduct.”

There is no merit to respondent’s defense.  A Bar inquiry is lawful if it is based on “an arguable complaint of misconduct, one that the Bar [has] legal authority to investigate.”

The most serious findings involved intentional conversion of entrusted settlement funds.

Respondent’s misconduct caused extensive injuries, which were not merely financial. Many of respondent’s clients had limited financial means and needed their advance fees returned before they could afford to hire new attorneys. When respondent failed to return those advance fees, some clients simply went without legal representation. Stone, for example, is a painting subcontractor who saved up money during his busy season of the year to hire a lawyer so that he could see his son again. At that time, his son was about to start high school. When respondent took Stone’s money without providing him any legal services, Stone’s effort to see his son was set back another year. Other clients reported emotional distress from respondent’s neglect and failure to keep them informed. Charpentier testified that, between not hearing back from respondent during the engagement and then having to repeatedly follow up with respondent to get her money back, “[i]t was two months of just pure hell.” Grotz, who for months tried unsuccessfully to get substantive responses from respondent on the status of his case, reported health problems as the result of anxiety from not knowing whether his legal interests were being protected.
 
(Mike Frisch)
 

July 29, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Knowingly

The Utah Supreme Court sustained misconduct findings and a one-year suspension and rejected the contention that the conduct at issue was not "knowingly" committed

In summary, Ms. Santana‟s own testimony indicates she was aware of the circumstances surrounding each instance of misconduct. She knew about the deadlines for initial disclosures but failed to act within those deadlines. She knew that Ms. Venegas‟s case was headed towards dismissal, but she did not tell her or respond to the motion to dismiss. When Ms. Venegas asked for her file, Ms. Santana failed to give it to her. And Ms. Santana knew the OPC had requested information from her, but she did not timely respond. So although the court never used the word “knowing” in its findings of fact, it clearly had sufficient evidence to conclude that Ms. Santana knowingly violated the rules of professional conduct.

The court sustained findings of several aggravating factors

After reviewing the record, we reject Ms. Santana's argument that the court's discussion of aggravating factors is not supported in the record. Each factor the court discussed is either directly supported by the evidence or reasonably inferred from the record. So we affirm the court's imposition of a one-year suspension.

(Mike Frisch)

July 29, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 28, 2021

Gag Order Violations Constitute Civil Contempt

The Delaware Supreme Court affirmed a civil contempt for an attorney's out-of-court comments to media

This appeal regards a civil contempt order. Appellant Joseph A. Hurley represents Clay Conaway, a former college athlete charged with raping six women. After the case attracted media attention, the Superior Court entered an order prohibiting counsel from making public comments except to the extent permitted under Rule 3.6 of the Delaware Lawyers Rules of Professional Conduct (“DLRPC”). Hurley twice spoke to reporters while the order was in force. The court held that both sets of comments violated the order and found Hurley in civil contempt of court.

On appeal, Hurley argues that the Superior Court erred by holding that there was a substantial likelihood his comments would materially prejudice pending proceedings. For the reasons that follow, this Court affirms the Superior Court’s contempt order and denies Hurley’s motion for judicial notice.

When the statements were made

In July 2019, the Superior Court granted a motion to sever the charges against Conaway, resulting in six separate proceedings. The first trial was held in September 2019. Conaway was convicted of Rape in the Fourth Degree. After the conviction but before sentencing, the Superior Court entered an order(the “Gag Order”) in each of the six criminal cases...

The gag order limited out-of-court statements to those permitted by RPC 3.6

After the sentencing hearing, Hurley gave an interview with a reporter from the News Journal. As reported by the News Journal, Hurley said he was “horrified” by the prosecutor’s statements:

After the hearing, Conaway’s attorney Joe Hurley strongly criticized arguments made by [the] state prosecutor. . . in which she pointed to comments made by Conaway and his parents. . . to demonstrate what the state saw as a lack of remorse and possibly learned attitudes.

“Arguing that the defendant is so attractive that girls flock to him and he can’t help it . . . This is not a defense to rape. It’s an excuse,” [the prosecutor] said.

Hurley said he was “horrified” that [the prosecutor] implicitly blamed Conaway’s parents for his actions. “There’s no excuse for that,” Hurley said. “Why would you do that to a parent?

Then

In February 2020, the jury in the second criminal case found Conaway guilty of Unlawful Sexual Contact. Shortly afterwards, Hurley gave a videotaped interview with a reporter from the News Journal. During the interview, the reporter asked Hurley how he felt about Conaway being convicted of a misdemeanor charge. Hurley responded, “There was a reasonable basis for it, even though she put herself there.”

The prosecution alleged that both statements violated the gag order.

Below

The court held that both of Hurley’s statements violated the Gag Order. Regarding the first interview, the court found that Hurley knew or should have known that disparaging the prosecutor weeks before the second trial was scheduled to begin had a substantial likelihood of prejudicing that proceeding:

[T]his is something that was done close in time to the trial of December 2nd . . . . [T]his would have a substantial likelihood of material[ly] prejudicing a judicial proceeding by creating the impression publicly that the state prosecutor was off the rails and was doing something so horrific to make the prosecutor look really in a terribly demeaning way.


Regarding the second interview, the court found that Hurley knew or should have known that attacking the victim’s credibility had a substantial likelihood of prejudicing the four remaining cases...

The court here affirmed the contempts, concluding that the statements were not protected by the "Self Help Safe Harbor."

Hurley argues that his ["horrified"] comment qualified for the Self-Help Safe Harbor. This argument also fails. It was not reasonably necessary for Hurley to express “horror” to set the record straight. Hurley could have given a narrower denial focusing on the facts the prosecutor supposedly got wrong. Further, Hurley did not make his comment in response to adverse “publicity.” Rather, he made his comment in response to the prosecutor’s statements in the courtroom. The Self-Help Safe Harbor is not designed to give lawyers an alternative to making timely objections. It is designed to allow lawyers to exercise self-help in response to comments made outside the courtroom. Hurley also places undue emphasis on protecting the parents’ reputation. Setting aside whether the prosecutor’s statements were advisable, the Self-Help Safe Harbor allows a lawyer to make public comments to protect their client, not third-parties. Thus, much of Hurley’s argument misses the mark.

The trial court had ordered a $5,000 payment.

Delaware Online had a lengthy story about the attorney in 2018

Joseph A. Hurley, a prominent Wilmington defense attorney known for his bravado and courtroom theatrics, was disciplined by the Delaware Supreme Court on Wednesday for making sexually explicit remarks to state prosecutors and for disparaging a former client who had lodged a complaint against him.

Hurley, 75, was ordered by the court to enroll in and pay for a professional training program within six months dealing with "respectful treatment of colleagues and opposing counsel" and "the need to refrain generally from inappropriate discussions of a sexual or religious nature" in his law practice. He also must pay the costs associated with an Office of Disciplinary Counsel investigation against him, which led to the public reprimand.

(Mike Frisch)

July 28, 2021 | Permalink | Comments (0)

No Oral Argument Unless Disbarment At Issue

An attorney admitted in 1977 has been suspended for two years by the Pennsylvania Supreme Court in a matter that was initiated by a trust account overdraft.

The court denied the attorney's request for oral argument

Respondent’s request for oral argument and Petition for Review are DENIED. See Pa.R.D.E. 208(e)(4) (providing that an attorney has no right to oral argument in disciplinary matters unless the recommendation is for disbarment).

From the Disciplinary Review Board report

The disciplinary precedent supports the imposition of a two year period of suspension in this matter to impress upon Respondent that this Board and the Court will not countenance his continued wrongful conduct. Respondent is an unrepentant recidivist whose attitude throughout these proceedings has been one of condescension and indignation. His demeanor and testimony reflected no contrition or regret for his misconduct, now or in the past. Respondent's checkered history shows that he is unwilling to conform his practice to the standards expected of Pennsylvania attorneys. Despite Respondent's attempts to persuade the Board otherwise, his repeated transgressions are not meaningless or insignificant. Given Respondent's extensive history of discipline for similar infractions and because we find no evidence of record to demonstrate that Respondent's misconduct will cease, a lengthy suspension is warranted to protect the public and preserve the reputation of the legal profession.

(Mike Frisch)

July 28, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 26, 2021

Fee Dispute May Proceed

A convicted defendant cannot pursue a malpractice claim against his post-conviction attorney so long as the underlying conviction remains in force and effect.

Absent reversal, such claims are unripe, according to a decision of the Connecticut Appellate Court.

However, the defendant may pursue a claim involving fees

We are persuaded that the policy and practical considerations behind the requirement that an action that necessarily implies the invalidity of a conviction must be dismissed if the underlying conviction has not been invalidated do not apply to the fee dispute allegations in the present case. As the court in Bird noted, in a fee dispute, the criminally convicted plaintiff is not seeking to shift the responsibility for and consequences of his criminal acts to his former counsel, nor is the client’s own criminal act the ultimate source of his predicament. Id., 428. Moreover, a judgment for a criminally convicted plaintiff in a fee dispute is not inconsistent with the judgment of his criminal conviction. Id. If a criminally convicted plaintiff could challenge defense counsel’s excessive or unlawful fees only if he or she is able to prove the invalidity of the underlying conviction, then ‘‘guilty clients could never seek redress against even the most unscrupulous attorneys.’’ (Internal quotation marks omitted.) Id., 431. We agree with the court in Bird that there is ‘‘no rational basis for affording criminal defense attorneys a virtually impregnable shield against suits to recover excessive or unlawful fees. Nor can we find any rational basis for affording civil litigants, no matter how morally blameworthy they may be, a remedy for exactly the same unlawful conduct, double-billing, inflating hours, etc., for which most criminal litigants are denied a remedy.’’ Id. Accordingly, we conclude that the allegations that the plaintiff makes in support of his fraud claim that merely constitute a fee dispute and that do not implicate the validity of his underlying conviction are not controlled by Taylor, and that dismissal of his fraud claim was unwarranted.

(Mike Frisch)

July 26, 2021 in Billable Hours, Clients | Permalink | Comments (0)

Sunday, July 25, 2021

"There Are Not Two Truths, But Only One"

The New Mexico Supreme Court has censured an attorney

William Ferguson, an Albuquerque personal injury lawyer, purchased a Ferrari for his personal use that he registered to his company, Motiva Performance Engineering, LLC. In a suit for damages to the Ferrari, he represented to the court and the parties that the Ferrari belonged to Motiva. But when he thought that he could evade a judgment against Motiva by claiming that the Ferrari belonged to him, he told another court the opposite: that the Ferrari belonged solely to him and never belonged to Motiva. These contradictory representations became the subject of disciplinary proceedings. Mr. Ferguson attempted to justify the contradictory statements by telling the disciplinary board that there are “two truths” about ownership. There are not two truths, but only one: Mr. Ferguson misrepresented facts before a court of law. We issue this public censure to admonish Mr. Ferguson for his misconduct and to caution him against engaging in similar unprofessional conduct in the future.

Mr. Ferguson owned and operated five companies relevant to this disciplinary proceeding: Motiva; Avatar Recoveries, LLC; DealerBank, LLC; Armageddon Tool & Die, LTD (Tool & Die); and Armageddon High Performance Systems d/b/a Armageddon Turbo Systems (Turbo Systems). Mr. Ferguson was the sole owner of three of those companies—Avatar, DealerBank, and Tool & Die—and the majority owner of Motiva and Turbo Systems. In addition to being the majority owner, Mr. Ferguson was the managing member of Motiva.

Motiva was a high-end car dealership and automotive shop that specialized in performance-enhancing vehicle modification. As a car dealership, Motiva was exempt from paying excise tax on vehicles that it acquired for resale. Vehicles that it acquired for resale were eligible for special “demonstrator” license plates. The demonstrator plates are available solely for use on vehicles that are part of a dealer’s inventory, and Motiva was issued five demonstrator plates.

In 2014, Mr. Ferguson purchased a $200,000 Ferrari which he intended to use as his personal vehicle, but he titled and dealer-registered it to Motiva. Mr. Ferguson affixed a Motiva demonstrator plate to the Ferrari expressly to avoid paying $6,000 in excise taxes that he would have owed had he put the Ferrari in his own name. Doing so was justified, in Mr. Ferguson’s view, because “That’s the way the business works.” Mr. Ferguson used the Ferrari, titled and registered to Motiva, as his personal vehicle.

In 2016, the Ferrari was damaged in the parking lot of Mr. Ferguson’s law firm when one of Mr. Ferguson’s tenants accidentally drove into it. Mr. Ferguson brought suit for damages, including punitive damages, on behalf of Motiva. He later claimed that he sued in Motiva’s name rather than his own because the person he was suing was disabled: “A personal injury attorney suing a paraplegic lady wouldn’t have been my first choice.” In that lawsuit, Mr. Ferguson consistently and exclusively represented to the court and to the other driver’s insurance company that Motiva owned the Ferrari.

When Mr. Ferguson won that suit on behalf of Motiva, he executed a Property Damage Only Release in exchange for $9,051.51 for repairs to the Ferrari and $40,984.49 for loss of its use and its diminished value. Mr. Ferguson did not deposit those funds into his trust account for the benefit of Motiva, but into his personal account.

Motiva was sued in an unrelated matter and was subject to a $200,000 adverse verdict

Four days after the jury returned its verdict against Motiva, Mr. Ferguson transferred the Ferrari out of Motiva’s name and into the name of DealerBank, another company over which he maintained control. At that time, the Ferrari was valued at $135,000 to $140,000. Mr. Ferguson freely admitted that he transferred title in an attempt to avoid execution of the judgment in the Butler lawsuit. He also began transferring other assets out of Motiva’s name, closed down Motiva’s business operations, and declared Motiva bankrupt.

The plaintiff in the Butler lawsuit, unable to collect on the judgment against Motiva, moved for a declaration of ownership of the Ferrari and other assets. In the ensuing litigation, Mr. Ferguson strenuously argued that he was the sole and exclusive owner of the Ferrari and that Motiva never owned the Ferrari. Mr. Ferguson testified under oath that it was never his intent to make the Ferrari part of Motiva’s inventory. Despite Mr. Ferguson’s arguments to the contrary, the district court found that the Ferrari belonged to Motiva. Accordingly, the district court enjoined Mr. Ferguson from selling the Ferrari or causing it to leave the state. Despite that injunction, Mr. Ferguson pledged the Ferrari as collateral on a $120,000 bank loan; it is still encumbered.

The court noted the inconsistent positions

The sanction we impose today is solely in response to the lack of candor to the court regarding Mr. Ferguson’s contradictory representations about the ownership of the Ferrari. We do not reach other questions that naturally arise from these facts because the record is not fully developed and the issues are not squarely presented. For example, we do not reach the question of whether Mr. Ferguson violated his professional duties by dealer-registering a vehicle that he intended for personal use in order to evade excise tax. Nor do we reach the question of whether Mr. Ferguson violated his professional duties by pledging the Ferrari as collateral on a loan while knowing that the Ferrari was subject to a preliminary injunction. However, should these, or other issues become ripe for our review in a future disciplinary proceeding we will not hesitate to impose further sanctions as may be appropriate. No member of the bar should understand this censure to in any way condone or encourage similar conduct.

This public censure shall be published in the Bar Bulletin. Pursuant to our Order of May 6, 2021, Mr. Ferguson is suspended from the practice of law for a period of ninety (90) days. Mr. Ferguson’s reinstatement is conditioned on his taking the Multistate Professional Responsibility Examination no later than August 31, 2021, and receiving a scaled score of at least eighty percent (80%). Mr. Ferguson’s reinstatement is also conditioned on a showing that no additional disciplinary charges have been filed against him for the conduct at issue in the Butler lawsuit. Ferguson shall pay costs as set forth in our May 6 Order.

(Mike Frisch)

July 25, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, July 24, 2021

Attorney's Judgment Prevails In Disagreement with Child Client

The South Dakota Supreme Court dealt with a significant issue of client autonomy where an attorney had allegedly disregarded the wishes of her minor client in a termination of parental rights proceeding.

The [Oglala Sioux] Tribe argues that a conflict of interest existed between C.R.W. and her attorney when the attorney argued for what the attorney believed was in C.R.W.’s best interest rather than advocating for C.R.W.’s expressed wishes. In particular, the Tribe points to C.R.W.’s attorney joining in DSS’s request to terminate parental rights, while indicating that C.R.W. still desired to be reunited with her parents. The Tribe argues that C.R.W.’s attorney violated Rule [of Professional Conduct] 1.2 by failing to comply with the directives of her client in advocating for C.R.W.

We review a circuit court’s ruling on a motion to disqualify an attorney under an abuse of discretion standard. Harter v. Plains Ins. Co., Inc, 1998 S.D. 59,¶ 21, 579 N.W.2d 625, 631. In denying the motion to disqualify, the court concluded that the record did not demonstrate that a conflict of interest existed between C.R.W. and her attorney. Even if the views of C.R.W. and her attorney differed to some degree at the time of the January permanency hearing, the court found that C.R.W. expressed a desire to terminate parental rights and be adopted at the final dispositional hearing in March. Further, the court determined that the attorney appropriately advocated for what she believed was in the best interest of C.R.W. as required by SDCL 26-8A-18 and that the “Tribe did not present any authority for the proposition that a Court should disqualify an attorney because another party believes the attorney is not properly abiding by their client’s decisions.”

The court also concluded that, contrary to the Tribe’s assertions, C.R.W.’s attorney did not violate Rule 1.2 in her representation of C.R.W. The court noted that C.R.W.’s attorney had obtained an opinion from the South Dakota State Bar Ethics Committee that “recently made clear that Counsel has not violated ethical obligations to her client.” Moreover, the court concluded that “little or nothing in the record supports the Tribe’s interpretation that [C.R.W.] ever directed her attorney to argue against termination.” The court’s factual determinations that a conflict did not exist between C.R.W. and her attorney are supported by the record.

The court noted the special issues relating to representing a child

Ethical considerations can no doubt arise from “best interests” representation. See Wassenaar, 56 S.D. L. Rev. at 205. However, in addressing possible conflicts, several states have reconciled an attorney’s separate obligations to protect a child’s best interest and to advocate for a child’s wishes by requiring the attorney to present both views to the court. See Clark v. Alexander, 953 P.2d 145, 153 (Wyo. 1998); In re K.H., 2012 M.T. 175, 285 P.3d 474; Interest of J.P.B., 419 N.W.2d 387 (Iowa 1988). These courts recognize the unique role of an attorney appointed to represent a child and how the relationship differs from the usual attorney-client relationship.

A Montana precedent persuaded

We adopt this approach as it relates to a child’s attorney appointed in abuse and neglect proceedings pursuant to SDCL 26-8A-18. The child’s attorney appointed pursuant to the statute is required to advocate for the child’s best interest. However, when the attorney’s determination of what constitutes the child’s best interest conflicts with the child’s expressed wishes, the ethical obligations of the attorney require consultation with the child to insure that the child’s objectives are presented to the court, along with the basis for the attorney’s determination of the child’s best interest. This approach “gives priority to the paramount goal of discerning the child’s best interest while enabling the lawyer to advocate an opposing viewpoint without fear of ethical violation.” J.P.B., 419 N.W.2d at 392.

The Tribe had standing to raise the issue. (Mike Frisch)

July 24, 2021 | Permalink | Comments (0)

Friday, July 23, 2021

No Disciplinary Jurisdiction For National Cable Ads

The Nevada Supreme Court granted a writ of prohibition and concluded that its Disciplinary Board lacked jurisdiction

Petitioners are the named partners of Weitz & Luxenberg, P.C., a New York based law firm. Between January 16 and August 20, 2017,  petitioners firm contracted with Consumer Attorney Marketing Group (CAMG) to place an advertisement on national cable television that offered the firm's legal services to parties who suffered injuries from defective hernia mesh products. Petitioners' firm provided the screening staff at CAMG's call center with criteria to use to identify potential clients from those who called in response to the advertisement.

Jonnie Carruth, a Nevada resident who suffered injuries he alleged occurred from a hernia mesh surgery, responded to petitioners' firm's advertisement. CAMG sent him a client intake package, which included a retainer agreement, questionnaire, and medical release forms, with instructions to immediately sign and return them. Without any phone or in person contact from petitioners or an attorney at their firm to explain the retainer agreement, Carruth signed the agreement on August 17, 2017, authorizing the firm to investigate "damages arising from personal injuries sustained by the Client through the wrongful conduct of defendant(s) involved in the manufacture, sale and distribution of [hernia mesh] used during a surgical procedure." The agreement explicitly stated that "the Law Firm is NOT being engaged to evaluate or file any medical malpractice claims." On October 2, 2018, the firm sent Carruth written notice, stating that his claim did not meet the criteria for a products liability case against the manufacturer and declining representation on that basis.

Carruth filed a grievance with the State bar of Nevada because by the time petitioners firm sent notice declining representation, the statute of limitations had expired on any medical malpractice claim he may have had.

A disciplinary board screening panel imposed a reprimand. Respondents appealed and moved to dismiss the charges.

In opposing petitioners motion to dismiss, the State Bar presented evidence of petitioners' firm's contacts with Nevada but did not provide any evidence that petitioners themselves crafted the national advertisement, directed it to be aired in Nevada, established the procedures for evaluating hernia mesh claims or communicating with potential clients, or were otherwise involved in Carruth's case. Accordingly, we conclude that the State Bar did not present prima facie evidence that Nevada has personal jurisdiction over petitioners for purposes of this attorney discipline matter.

The case is PERRY WEITZ, ESQ., NEW YORK BAR NO. 1961002; AND ARTHUR LUXENBERG, ESQ., NEW YORK BAR NO. 2008209, Petitioners, vs. RUSSELL E. MARSH, ESQ., VICE CHAIR, SOUTHERN NEVADA DISCIPLINARY BOARD, Respondent, and STATE BAR OF NEVADA, Real Party in Interest. (Mike Frisch)

July 23, 2021 in Bar Discipline & Process | Permalink | Comments (2)

With Malice Toward None

The Maryland Court of Appeals quoted our 16th President in imposing lawyer discipline

The leading rule for the lawyer, as for the [person] of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind.
Abraham Lincoln, Collected Works of Abraham Lincoln.

Then a humble prairie lawyer, Abraham Lincoln shared this bit of wisdom to illustrate the habits every attorney and professional ought to practice. In his journal, President Lincoln stressed the importance of timeliness, of not taking client money until it has been earned, and of promoting honesty in the legal profession. Id. Today, Lincoln’s adages continue to bear a unique importance, as they are practices which are not only recommended, but are required of all attorneys under the Maryland Attorneys’ Rules of Professional Conduct.

Although we commend her considerable pro bono work, the Respondent in this case, Mitzi Elaine Dailey, neglected her client’s case for nearly a year and failed to maintain communication with him. The fee Ms. Dailey received from her client related to this matter was never placed into an attorney trust account, nor was it ever returned to her client despite her failure to earn it. Throughout Bar Counsel’s investigation, Ms. Dailey made several serious mistakes. Ms. Dailey failed to comply with Bar Counsel’s investigation. Ms. Dailey failed to provide requested documents or attend her scheduled deposition and circuit court hearing. Finally, to compound all of this, Ms. Dailey made false and misleading statements to Bar Counsel, including the fabrication of evidence to conceal her rule violations. Had Ms. Dailey been responsive, she may have avoided the most significant rule violations described below, and we may have reached a different conclusion. However, because of the serious misconduct outlined in the findings of the hearing judge, disbarment is the appropriate sanction for Ms. Dailey.

The circuit court conducted a Skype  hearing

The hearing judge noted that there was a person present at the Skype hearing who was identified on the screen only as “Unidentified Caller.” The court asked several times if the person was, in fact, Ms. Dailey, and invited her to present mitigation if it was, but the court received no response. The only individuals the court shared the Skype link with were Bar Counsel, the hearing judge’s staff, and Ms. Dailey.

The underlying representation involved estate administration.

Respondent filed exceptions to 40 findings of fact.

Sanction

Bar Counsel recommends that we disbar Ms. Dailey because of “her intentional misappropriation of client funds, abandonment of a client, and intentional misrepresentations to Bar Counsel.” On the other hand, Ms. Dailey argues that we should dismiss her case with no sanction as she excepts to all the hearing judge’s conclusions, and because her pro bono work and lack of prior discipline should militate against disbarment.

...Although Ms. Dailey has no prior discipline, as we have noted in the past, “[t]he presence of one mitigating factor cannot overcome the aggregation of [Ms. Dailey’s] many transgressions along with several aggravating factors.” Karambelas, 473 Md. at 177. Ms. Dailey’s misappropriation of client funds alone is enough to warrant disbarment. See id. (citing Attorney Grievance Comm’n v. Sullivan, 369 Md. 650, 655–56 (2002)). Additionally, she has shown no willingness to take responsibility for her actions, failed to pay restitution to her client, and failed to cooperate with Bar Counsel. Ms. Dailey even went so far as to submit fabricated documents to Bar Counsel to conceal her rule violations.

(Mike Frisch)

July 23, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Scheme To Extort Payment With Rabbi Launderer Draws Suspension

A criminal conviction drew a three-year suspension from the New York Appellate Division for the First Judicial Department

The stipulation of facts confirms that, as alluded to above, this Court determined in July 2020 that respondent had been convicted of a "serious crime," immediately suspended him from the practice of law, and directed a sanction hearing be held. The conviction was based on respondent's plea of guilty in June 2019 in the United States District Court for the Eastern District of New York to conspiracy to obstruct an official proceeding in violation of 18 USC §§ 1512(c)(2) and 1512(k), a felony. On January 29, 2020, he was sentenced to four years' probation, 300 hours of community service, and fined $45,000. Respondent has paid the fine and completed his community service. As further stipulated, respondent's conviction stemmed from his efforts to assist a childhood friend, who had been convicted of, inter alia, securities fraud, in extorting money from the friend's convicted codefendant, who happened to be respondent's relative through marriage. In or about February 2017, the friend asked respondent to convey to his former codefendant that he wanted a sum of money to avoid getting the codefendant in unspecified trouble. Respondent conveyed the message to the codefendant, and, in a subsequent March 2017 communication, respondent told the codefendant that his friend demanded $5 million from him.

The codefendant repeated what respondent said to him to the FBI, and then began acting with the knowledge and at the direction of FBI case agents. In March 2018, respondent informed the codefendant that his friend had identified a rabbi who would allow any funds paid by the codefendant to be paid through the rabbi's charity. At a subsequent meeting, also in March 2018, respondent and the codefendant discussed that any funds destined for the friend could not be paid in the friend's name because of the friend's outstanding restitution obligations stemming from his conviction. In April 2018, respondent and the codefendant discussed that a rabbi would serve as an intermediary and take possession of any incriminating documents that the friend might possess relating to his codefendant, and would destroy those documents once the codefendant paid $6 million. In May 2018, respondent arranged a meeting between the codefendant and the rabbi, who had agreed to allow the use of his charity to facilitate transfer of the funds and took further steps to facilitate such transfer.

In late May 2018, respondent sent messages to the codefendant indicating that he no longer wanted to be involved in the transaction and asking that the codefendant contact the rabbi directly. In June 2018, respondent was arrested. Subsequent to his arrest, respondent cooperated with the government and, through counsel, provided information relevant to the codefendant to assist the government in its efforts to obtain restitution. Respondent conditionally admits that his conduct, as set forth above, violated the New York Rules of Professional Conduct.

The parties agree that respondent's conduct was aggravated by his undermining and interfering with the court's restitution order in a case where there were millions of dollars that were lost by victims of the underlying securities fraud, and that his scheme sought to interfere with the victims' efforts to recover that money pursuant to a restitution order issued by the United States District Court for the Eastern District of New York.

In terms of mitigation, the parties jointly note that respondent fully cooperated with the criminal justice system. In addition to pleading guilty, he cooperated with the government in providing information that he learned about his friend's codefendant's finances in hopes that additional funds could be uncovered for purposes of repaying innocent victims of the underlying fraud. They agree that respondent's misconduct was highly aberrational and isolated in an otherwise law-abiding life; that he promptly notified the Court and the AGC of his conviction; that he fully cooperated with the AGC's investigation and consented to an interim suspension; that he promptly accepted full responsibility for his criminal conduct and never attempted to blame anyone or anything for his misconduct; and that he expressed his sincere remorse and contrition for his misconduct. Additionally, respondent's misconduct was not motivated by personal financial gain but rather by the desire to mediate a long festering hostility between two people with whom he had deep and close connections. It is further noted that respondent voluntarily withdrew from the developing scheme; that his misconduct was not related to the practice of law; that he is well regarded in the legal community and has an excellent reputation for the character traits of honesty and integrity; that 69 individuals wrote letters to the sentencing judge attesting to respondent's reputation for good character, which reflect, among other things, his excellent reputation and his numerous, selfless acts on behalf of family, friends, and people he only knew tangentially, and which confirm that respondent has a long-standing reputation as a well-respected husband, father, friend, and community member. Finally, the parties have stipulated that respondent has taken steps to internalize the criminality of his conduct, and has used his hard-learned wisdom to help others avoid his fate, including by taking a personal ethics course and undergoing spiritual therapy sessions with a rabbi.

According to this press release of the United States Attorney for the Eastern District of New York, the rabbi also was arrested. 

Credit was given for the period of interim suspension. (Mike Frisch)

July 23, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 22, 2021

Application For Admission Denied

The Ohio Supreme Court declined to certify an applicant for bar admission

Two members of the Toledo Bar Association’s admissions committee interviewed Heckman in January 2020 and recommended that his application be denied. The bar association’s seven-member review committee then conducted a second interview of Heckman. Citing its concerns regarding Heckman’s emotional instability, alcohol usage, and lack of candor regarding his unsuccessful applications for admission to the Michigan and Indiana bars, the admissions committee recommended that Heckman’s application be disapproved. Heckman appealed that recommendation to the Board of Commissioners on Character and Fitness. See Gov.Bar R. I(14).

the Board also recommended against admission.

The issues

In 1990, Heckman was arrested in Arizona for driving while under the influence of alcohol. The following year, he was convicted in Florida for public consumption of alcohol. Several years later, he was charged in Michigan with driving while having a suspended driver’s license, although the reason for the license suspension is not clear from the record.

In 2014, Heckman was charged in Arizona with felony aggravated assault and misdemeanor disorderly conduct/domestic violence for striking his teenaged son during a social gathering at his sister’s home. The police report stated that Heckman had been drinking alcohol before the incident and had to be restrained by his relatives. He pleaded guilty to disorderly conduct/domestic violence, for which the court imposed a 60-day jail sentence (which, according to Heckman, was suspended) and 30 months of probation. He was released from probation after approximately 21 months. Heckman was also charged in Michigan with assault in 2016 for allegedly striking a phone out of the hand of his other teenaged son. No finding of guilt was entered regarding that charge because Heckman successfully completed probation and 26 weeks of classes concerning domestic violence.

 In addition to those criminal matters, Heckman’s ex-wife, who is a Michigan attorney, obtained four civil protection orders against Heckman following their 2007 divorce. One of those orders required Heckman to refrain from consuming alcohol when his children were in his care.

The court acknowledged favorable evidence but

The board acknowledged that Heckman has made strides in understanding some of the factors that contributed to his past behavior and has worked to maintain a loving relationship with his children. Heckman also submitted a favorable report from a counselor whom he had seen about 15 times in the previous five years, and a report following a March 2020 substance-abuse disorder assessment stating that he did not meet the criteria for a diagnosis under the DSM-5 (Diagnosis and Statistical Manual of Mental Disorders (5th Ed.2013)) and that no treatment was recommended. However, Heckman did not persuade the board that he had meaningfully addressed the negative role of alcohol in his life, because he presented no evidence that he had entered into a monitoring program or had otherwise followed the recommendations made by the LJAP evaluator and he continued to deny that his alcohol use was a problem.

There were also candor issues related to the d isclosures on his law school application.

Ultimately

we adopt the board’s report and disapprove Heckman’s pending registration application. Heckman shall be permitted to reapply for admission to the Ohio bar no earlier than January 15, 2023, and before then shall be required to submit proof that he has obtained an OLAP evaluation and successfully completed any treatment program recommended as a result of that evaluation.

(Mike Frisch)

July 22, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 21, 2021

Conflicted Advice Can Constitute Legal Malpractice

The New Jersey Supreme Court reversed and remanded an order granting the defendant summary judgment in a legal malpractice claim

In 2006, plaintiff divorced her husband, Monroe Gilbert, who acquired sole possession of the family’s vehicle, which was still registered in plaintiff’s name. In April 2014, Monroe informed plaintiff that he had to report to the Woodland Park Municipal Court (WPMC) regarding many outstanding traffic tickets; the court summonses were issued in plaintiff’s name. On April 15, 2014, plaintiff met Monroe and his attorney, defendant Kenyatta Stewart, at WPMC.

The matter was adjourned, and plaintiff, defendant, and Monroe discussed the best way to resolve the outstanding summonses. Plaintiff did not retain defendant as her attorney or request that he represent her; nor did defendant bill plaintiff or enter into a fee agreement with her. Nevertheless, he indicated to plaintiff that the optimal resolution would be for her to plead guilty to the charges because Monroe was at greater risk of license suspension due to his poor driving record.

While the nature of their discussions was disputed

On May 6, 2014, defendant entered an appearance on behalf of both plaintiff and Monroe. Plaintiff entered a guilty plea. The municipal court agreed not to suspend plaintiff’s driver’s license, and instead imposed fines and community service. Plaintiff, defendant, and the court then discussed the order of community service. Defendant told the court that plaintiff worked for probation, and the court asked, “Can you put yourself in a church?” Plaintiff confirmed that she could. The court observed that plaintiff “[fell] on the sword here,” and subsequently dismissed all charges against Monroe.

The plea led to disciplinary action by her employer, which was the probation department

In August 2014, plaintiff entered into a settlement agreement and, in doing so, admitted to the disciplinary charges of conduct unbecoming, neglect of duty, and other sufficient cause, which included the failure to report involvement in litigation; the remaining charges were dismissed. The settlement agreement also required plaintiff to accept her fifty days of suspension without pay; accept a demotion; release the Judiciary from claims arising out of the matter and her employment; and waive any right to appeal.

Plaintiff filed an ethics complaint against defendant, on whom an admonition was imposed for failing to provide plaintiff with a written fee agreement and for providing representation involving a conflict of interest without written informed consent.

Editor's note: Ho Hum, New Jersey imposes an admonition for a conflict of interest that involved pleading one client guilty to charges that she was innocent of to benefit another client.

This suit ensued.

The court here reversed summary judgment to the defendant

There are facts that support plaintiff’s claim that, had defendant not breached his duty by advising her to accept a guilty plea for offenses she did not commit, there would have been (1) no conviction to report, which would mean (2) no failure to report the conviction, which would mean (3) no inquiry leading to the discovery of prior failures to report, which, in turn, would mean (4) no imposition of disciplinary charges or the other adverse consequences plaintiff asserts as damages. Under the circumstances presented here, a reasonable jury could find that defendant’s breach of his professional duty was a substantial factor in -- and thus a proximate cause of -- plaintiff’s harm.

Oral argument linked here.

After listening to the argument, it appears that causation - whether the advice caused her termination - will be a hotly contested issue.

Above quotes from the court's summary. (Mike Frisch)

July 21, 2021 | Permalink | Comments (0)

"A Disturbing Tendency To Blame Others"

The Ohio Supreme Court disapproved an application for bar admission of a person who had graduated from law school in 1995 and sought admission in 2017

Citing concerns regarding Steinberg’s employment history, a domestic violence charge in 2018, and multiple traffic violations, the Board of Commissioners on Character and Fitness exercised its sua sponte investigatory authority pursuant to Gov.Bar R. I(12)(B)(2)(e).

A three-member panel of the board conducted a hearing on December 9, 2020. After considering the evidence, including the testimony of Steinberg and two character witnesses, the panel issued a report concluding that Steinberg had failed to present clear and convincing evidence that he currently possesses the requisite character, fitness, and moral qualifications to practice law in Ohio. The panel recommended that his pending applications be denied and that he be permitted to reapply no earlier than August 15, 2022. The board adopted the panel’s report and recommendation.

He was admitted in Massachusetts in 1975 but never practiced law and was administratively suspended in 1997.

The court noted his spotty employment history and a 2018 domestic violence incident that led to criminal charges and a restraining order.

Also

In addition, the board noted that Steinberg has an extensive traffic record consisting of 17 violations—most of which were for speeding. The board was troubled by Steinberg’s explanation that his issues with speeding were “nebulous” because people routinely violate speed limits and the police have wide discretion regarding when to enforce the speed-limit laws. The board did note that Steinberg has attempted to remedy the issue by using cruise control settings, even when driving on city streets.

Student loans

The board also had grave concerns related to Steinberg’s neglect of his financial responsibilities. Steinberg testified that when he graduated from law school in 1995, his student-loan debt was approximately $50,000. In the 25 years since Steinberg graduated, however, that debt has increased and is now over $80,000. Although Steinberg testified that his payments on the loan were current, he did not provide any documentation to show that he was current with any given payment plan or offer any explanation as to why the balance was increasing.

There were other financial issues.

The Court

Here, Steinberg has neglected his professional obligations in Massachusetts, resulting in the suspension of his license to practice law in that state since 1997. He has demonstrated a pattern of disregard for the traffic laws of several states, and his recent criminal-mischief conviction and related civil protection order reflect a disregard for the health, safety, and welfare of others. His 2011 state tax lien, 2015 bankruptcy filing, and the significant increase in his student-loan obligations suggest that he has also neglected his financial responsibilities. But he has failed to provide complete and accurate information about those matters that would allow this court to determine both the extent of that neglect and whether he has taken sufficient action to remedy it. Steinberg has also exhibited a disturbing tendency to blame others—including his ex-wife, a former girlfriend, and the police—for his behavior. On these facts, we agree that Steinberg has failed to prove that he currently possesses the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio.

(Mike Frisch)

July 21, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Speculative Damages Doom Malpractice Suit

The Montana Supreme Court affirmed the dismissal of a legal malpractice claim in a matter involving injuries sustained in a boating accident.

The plaintiff had suffered severe injuries when thrown overboard and struck by the outboard motor.

On July 12, 2007, the Plaintiffs were passengers in the boat and Wurth was the driver. The boat encountered a wave, and Wurth and Young were thrown from the boat. The propeller from the outboard motor struck Young several times and she was severely and permanently injured. Rose, who was a child at the time, witnessed her mother’s injuries and also suffered compensable injuries as a result of the boating accident. It is undisputed that the boat was outfitted with an 85-horsepower Evinrude outboard motor at the time of the accident that was not the same outboard motor attached to the boat when Rod Wurth [defendant's father] purchased and titled the boat in 1994.

The defendant boat owner in the underlying litigation (who had taken the boat when his father died) was serving a sentence for money laundering.

The defendant (here) law firm secured a $1.3 million judgment but were unable to collect.

Plaintiff secured new counsel who discovered a Travelers insurance policy for $500,000 of the defendant's mother

Some years later, the Plaintiffs hired new counsel, Evan Danno, to collect on the judgment. Danno discovered Wurth’s mother, Carolyn Jenson, had a homeowners insurance policy (the “Policy”) through Travelers Insurance Company with a $500,000 policy limit. The Policy was in effect on July 12, 2007, and provided coverage for certain liabilities incurred by resident relatives. Wurth resided in his mother’s home on the date of the boating accident and as a resident relative qualified as an insured.

Travelers paid $100,000 as a "costs of litigation" settlement; plaintiffs sued the first law firm for failure to discover the policy and collect policy limits .

Unfortunately, the policy did not cover

Here, the Plaintiffs alleged they were injured by HHJF’s failure to discover the Policy and make a claim for damages under it. HHJF has established there was no coverage under the Policy for the Plaintiffs’ losses incurred from the boating accident and a claim against the Policy would not have survived a motion for summary judgment in a declaratory judgment action. “[A] claim completely devoid of merit is truly no loss at all.” Labair I, ¶ 33. While the Plaintiffs argue and submitted affidavits from experts who opined Travelers may have settled for policy limits regardless of actual coverage had HHJF submitted a claim in 2007 or 2008, the District Court correctly concluded such alleged injury was too speculative to survive summary judgment.

(Mike Frisch)

July 21, 2021 | Permalink | Comments (0)

Monday, July 19, 2021

Negotiated Sanctions Receive Boost In DC

Two significant recommendations of the District of Columbia Board on Professional Responsibility propose acceptance of a negotiated sanction of a three-year suspension with fitness for otherwise disbarment-worthy reckless misappropriation.

These matters were remanded from the Court of Appeals for the board's input.

The recommendation in the Mensah matter is unanimous; there were dissents from the Agwumezie recommendation.

How different is three years versus five and the shame of the D word?

From the Mensah report

We begin with Disciplinary Counsel’s argument that, in essence, the difference between three years with fitness and disbarment is outweighed by the advantages to the disciplinary system and the profession as a whole in resolving this case quickly. Broadly speaking, we agree, but that does not fully resolve the issue.

The practical effect between a three-year suspension with fitness and disbarment is that the former permits the lawyer to petition to rejoin the Bar two years earlier than the latter. See D.C. Bar R. XI, § 16(a) (a disbarred attorney “may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment”). But two years is not the entire difference between the two sanctions. There is an additional public statement that comes from disbarment that is not captured by the mere amount of time the lawyer is unable to practice law.

...we do think the difference between the sanction under Addams and the sanction agreed on here is qualitatively greater than Disciplinary Counsel described. Though we do agree that the practical effect is the same.

Nonetheless

We recommend that the Court accept the three-year suspension with fitness for reckless misappropriation because it protects the public and the courts, safeguards the integrity of the profession, deters Respondent and other attorneys from engaging in similar misconduct, and is not unduly lenient.

Should this acceptance be a signal going forward?

Our concurring colleagues disagree with us only in that they would find that a sanction of three years with fitness could be justified – and is so in this case – but would not be justified in all negotiated discipline cases involving reckless misappropriation. Much of the difference between the views of this majority and the concurring members turns on whether a three-year suspension is appropriate on the facts of the other case issued today, In re Agwumezie, Board Docket No. 20-ND005 (BPR July 19, 2021). For the reasons set out there, our conclusion is that for all cases of reckless misappropriation in which Disciplinary Counsel agrees to reach a negotiated disposition, a sanction of three years with fitness is a justified sanction under both the law involving negotiated discipline and for sound policy reasons. Though this is set out in more detail in that Report.

Chair Matthew Kaiser authored the majority reports in both matters.

A concurrence of Member Hora is joined by two colleagues in Mensah

we believe that the seriousness of the misconduct and mitigating and aggravating factors must be analyzed in each case.

The same three members dissented in the Agwumezie matters

the stipulated facts involve reckless misappropriations as did Mensah, but the serious nature of the overall misconduct and the limited mitigating circumstances well distinguish it – sufficiently so that we find that the agreed-upon sanction of a three-year suspension with fitness is unduly lenient.

These members favor a sometimes yes, sometimes no approach.

An approach that fails to consider a hearing committee’s important role in differentiating the seriousness of the misconduct (e.g., number of reckless misappropriations over a protracted period and additional rule violations, the existence of significant aggravating factors and limited mitigating factors) potentially gives Disciplinary Counsel an unfettered role because a negotiated three year’s suspension with fitness would always be approved as justified and not unduly lenient. Even if the majority’s policy arguments had merit, the majority’s proposed default sanction of a three-year suspension with fitness for reckless misappropriation cases brought through negotiated discipline is inconsistent with current negotiated case law and Rule XI, Section 12.1. See also Board Rule 17.5(a)(iii).

The Agwumezie dissents do tee up the question whether the benefit of a prompt public-protecting resolution invariably outweigh the serious nature of the stipulated misconduct.

But in my opinion this point in Agwumezie majority should carry the day

Our acceptance of the proposed disposition reflects sound policy as it presents the combined benefits of more quickly removing Respondent from practice while conserving disciplinary resources. The disciplinary system as a whole is better when the disciplinary system’s scarce resources (Disciplinary Counsel, Hearing Committees, the Board and the Court) are allocated prudently. If a lawyer who recklessly mishandles client money can be removed from practice relatively quickly, with an admission of misconduct and fewer resources from those involved in the prosecution and adjudication of disciplinary cases, the public is protected sooner, and the discipline system is able to focus on other cases – further protecting the public. We disagree with the dissent that permitting Respondent to petition for reinstatement two years sooner is too high a price to pay for the other benefits present here.

I agree that some cases may be sufficiently egregious to merit full-blown prosecution. I also trust Disciplinary Counsel to know the difference.

we can trust Disciplinary Counsel with this decision because it’s not meaningfully different than other decisions we trust Disciplinary Counsel with. Indeed, when it comes to whether a lawyer who needs to show fitness has done so, we already do trust Disciplinary Counsel with that initial determination. The Court permits Disciplinary Counsel, if it agrees that the lawyer has shown that fitness is appropriate, to bypass a hearing and simply tell the Court why it thinks the lawyer should be readmitted.

The question whether such a negotiated disposition would be available in an intentional misappropriation case remains unanswered.

And, to make it more complicated, sometimes it's hard to determine whether misappropriation is intentional, reckless or negligent.

These are hugely consequential recommendations that have the potential to loosen the shackles off of negotiated dispositions.

The board gets the result exactly right.

Note that if the attorneys here stipulated to the misconduct but took their case through the normal processes, they would be able to continue to practice for at least three and likely five more years. (Mike Frisch)

July 19, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 16, 2021

"Generally Biological Mothers Often Lie"

An attorney's misconduct in two adoption matters drew disbarment from the Kansas Supreme Court.

In one matter the attorney filed false papers without adequate investigation. 

The biological mother testified at the hearing that she learned she was pregnant the morning she gave birth and that she never told anyone, including the biological father, that she was pregnant before that day. She also stated that she did not inform the biological father of C.L.'s birth.

At issue was an effort to terminate the biological rights through an adoption proceeding premised on a misrepresentation concerning the biological father's pre-birth awareness of the pregnancy. 

The trial court terminated his rights and the Court of Appeals affirmed.

The biological father secured reversal from the Supreme Court

The tactical move by the prospective adoptive parents had the desired result, but they admittedly got there by filing a lawsuit without appropriate factual investigation and by alleging false grounds for terminating Father's parental rights. They claimed, for example, that Father had failed to support Mother during the six months prior to C.L.'s birth and abandoned her after having knowledge of the pregnancy, even though he did not learn of the pregnancy and birth until two days after the fact. Worse yet, the prospective adoptive parents, under oath, verified these false accusations as being true. As Judge Malone observed in his concurrence, "these allegations obviously were untrue" given the fact that no one—not even Mother—was aware of the pregnancy.

There was a second similar incident in an adoption matter.

He self-reported after the Supreme Court reversal and explained

In his response and at the hearing on the formal complaint, the respondent indicated that generally biological mothers often lie and that he was skeptical about the biological mother's claim that she was unaware she was pregnant until giving birth to C.L. and that his skepticism was 'warranted.'

The respondent stated:

'After having read about the Supreme Court's decision in a Topeka newspaper, [the girlfriend of the biological mother's father] sent me the enclosed email . . . [and] it appears that the birth mother may have known she was pregnant before she delivered the child.'

The information the respondent received after the Supreme Court opinion was released was never investigated nor cross-examined. Because the information was not investigated, it is difficult to say whether the information was true or false. The receipt of this information does not make the false statements in the adoption petition true, nor does it mitigate the respondent's misconduct. At the time the respondent filed the adoption petition, he had no factual basis for the assertions made in the petition.

The court

In effect, respondent used the legal process to traffic children. It is not hyperbole to put the matter this starkly, and we can think of no breach of trust more significant or damaging than this. Our legal system depends on the highest standards of professionalism, integrity, truthfulness, and trustworthiness of our lawyers. Without this, we cannot be said to have a system of law, only a corrupt game of power and manipulation with a façade of lawfulness. A lawyer cannot come back from a breach of trust so grave. The confidence of the public and the sanctity of the rule of law can only be protected and preserved by meting out the most serious sanction available to us— disbarment.

Disbarment is the appropriate sanction when "a lawyer, with the intent to deceive the court, makes a false statement . . . and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding." ABA Standards for Imposing Lawyer Sanctions, § 6.11 (1992). The harm respondent caused can hardly be understated—to his own clients (who were forced to suffer the heartbreaking judicial reversal of the adoptions of their children); to the fathers (who lost years of crucial parenting time with their children); to the children (who doubtless will suffer early childhood trauma which may reverberate through their lives); and to the people of Kansas (whose confidence in our legal system's ability to arrive at just and equitable resolutions to such disputes is seriously undermined by such misconduct). In the past, we have dealt similarly with other cases of fraud and dishonesty.

The Rule 3.1 violation found for failure to investigate representations made in pleadings is a timely subject. (Mike Frisch)

July 16, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 15, 2021

No Right Of Response

The Oregon Supreme Court has reprimanded an attorney for violating the duty of confidentiality in response to negative online reviews

A dissatisfied former client of respondent Brian Conry posted three negative online reviews about him. Respondent posted online responses to all three reviews, disclosing that client had been convicted of two crimes, which he specifically identified. As to one review, respondent also disclosed client’s full name. The Oregon State Bar charged respondent with violating Rule of Professional Conduct (RPC) 1.6, for disclosing information relating to the representation of a client. A trial panel of the Disciplinary Board agreed, rejecting respondent’s assertions either that the information was not within the scope of the rule, or that he was privileged to disclose it under one of the rule’s exceptions. The trial panel concluded that respondent should be suspended for 30 days, and respondent sought review from this court. We agree with the trial panel in part, but we conclude that respondent should be publicly reprimanded rather than suspended.

The attorney had represented the client in an immigration matter. The client retained successor counsel, claimed ineffective assistance and filed bar complaints

At roughly the same time that that first Bar complaint was pending, client posted negative reviews of respondent on the internet. Two of those reviews were posted before the Bar dismissed the first Bar complaint; the third was posted approximately three weeks afterwards. The reviews were posted on Yelp, Google, and Avvo.

Respondent posted responses to those reviews, and it is the content of those responses that are at issue here. All of respondent’s responses were posted in June 2016.

At the end of one lengthy response

[The client] should be thanking his lucky stars instead of posting. He does not know the law or just how lucky he has been. "Please visit my website at brianpatrickconry.com for a list of ‘wins’ over the years that more accurately display my zealousness for my clients. Thank you."

The court

The online world has created opportunities for attorneys to engage in marketing through social media. At the same time, however, it also “provide[s] a platform for unsatisfied clients to post content that could harm a lawyer’s reputation or practice.”

...it appears that negative online reviews may have a dramatic impact on an attorney’s income.

The disclosures involve protected information and was not justified by the "self defense" exception

As applied here, the question is whether the circumstances were such that it was objectively reasonable for respondent to believe that disclosing client’s full name and specific criminal convictions was necessary (e.g., essential or indispensable) for him to establish a claim or defense to client’s allegations.

...We therefore conclude that respondent was not objectively reasonable in his belief that it necessary to reveal client’s name in the Avvo review. By revealing client’s name, respondent violated RPC 1.6(a), and he would not qualify for any self-defense exception under RPC 1.6(b)(4).

Sanction

the presumptive sanction here is a suspension. In light of the difficult issues presented in this case—one of first impression before this court—and the aggravating and mitigating factors, we conclude that such a result would be too harsh. We hold that respondent should be publicly reprimanded.

(Mike Frisch)

July 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)