Legal Profession Blog

Restitution And Reinstatement

The Michigan Attorney Discipline Board affirmed a hearing panel's denial of a reinstatement petition

Forced or compelled restitution is not mitigating in a discipline case. ABA Standard 9.4(a). And we have “warned against an overemphasis on restitution as mitigation in misappropriation cases”  because not every lawyer will have the means to make restitution and such ability may come and go. The ability to make restitution neither establishes the character requisite to hold a law license or provides assurance to the public that only those fit to act as repositories of their funds will be able to practice law. Our sanctions must not result in clients having to gamble on the financial health of their attorneys when they entrust funds to them. By analogy, making restitution for theft of client or third party funds does not entitle a disciplined attorney to reinstatement. It is but one indicator of rehabilitation and fitness, and it is certainly not enough by itself to earn the proclamation of fitness contemplated by MCR 9.123(B).

As the case law referenced above repeatedly underscores, whether an attorney who deliberately violated the fundamental fiduciary responsibility to not steal client funds should be reinstated to the practice of law will depend upon a truly compelling showing of change and rehabilitation. Here, no evidence of moral rehabilitation is in the record. Petitioner’s conduct since disbarment and the activity leading to it does not evidence a genuine transformation in any respect and there is nothing in the record to support a conclusion that petitioner could now be safely recommended to the public as a fiduciary in light of his misconduct. This is so even before considering petitioner's failure to pay one dime to reimburse the Illinois Client Protection Program for the compensation it paid to the victims of his theft (or towards his IRS obligations) despite having the ability to do so. When the panels and this Board reference these failures, the point is not that payment will result in reinstatement. Rather, the point is that the failure even to comprehend the importance of righting the egregious wrong of theft from a client while having substantial resources to do so is evidence that petitioner has not changed his ways or his character. Again, petitioner’s failure to meet the burden imposed by MCR 9.123(B) is about so much more than payment or nonpayment. His failure to grasp this has likely contributed to his inability to meet that burden.

(Mike Frisch)

Third Time's A Disbarment

The Georgia Supreme Court has disbarred an attorney

This is the third appearance of this disciplinary matter before the Court, following the rejection of the petition for voluntary discipline filed by Willie George Davis, Jr. (State Bar No. 213371) after a formal complaint was filed against him. See In the Matter of Willie George Davis, Jr., 311 Ga. 67 (855 SE2d 643) (2021) (“Davis II”).  This matter is now before the Court on the report and recommendation of the State Disciplinary Review Board (the “Review Board”) which recommends that Davis, a member of the State Bar since 1996, be disbarred based on his violations of Rules 1.7 (a) and (b), 1.15 (I) (a) and (c), 1.15 (II) (a) and (b), 3.4 (a), 3.5 (d), 8.1 (b), and 8.4 (a) (5) of the Georgia Rules of Professional Conduct (“GRPC”) found in Bar Rule 4-102 (d), which stem from Davis’s mishandling of his sister’s estate and his nephew’s conservatorship as well as his repeated failure to comply with orders of the Cobb County Probate Court. After considering the record and Davis’s exceptions to the Review Board’s report and recommendation, this Court finds that given the circumstances of this case, disbarment is appropriate.

(Mike Frisch)

A Full Bottle Of Champagne

The Oklahoma Supreme Court has imposed an interim suspension of a former judge for a misdemeanor driving under the influence offense.

The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), forwarded to this Court certified copies of the Sentence Order, Order: Report to Court, County Court Plea Agreement, and Information, in the criminal matter of State of Colorado v. McCoy, Kassie Nicole, Case No. 2022T966, in the District Court of Mesa County, State of Colorado. On August 30, 2022, Kassie Nicole McCoy entered a plea of Guilty to the misdemeanor crime of Driving Under the Influence (1^st), Colorado Code 42-4-1301(1)(a), committed on the 8^th day of April, 2022. The Colorado Court accepted Respondent's Guilty plea and sentenced Respondent to a 14 day suspended jail sentence, 12 months of probation, 48 hours of public service, an alcohol evaluation, restitution to the Grand Junction Police Department, and participation in MADD Victim Impact Panel. The OBA received certified copies of the papers and Exhibits 1-4 from the Mesa County District Court on February 21, 2023.

News on 6 reported on the arrest

Claremore Police have released the body cam video of officers arresting a Rogers County Judge.

Police said they found Judge Kassie McCoy with her head slumped down behind the wheel of her parked car.

“I would like to administer some standard field sobriety tests to ensure that you are safe to be operating a motor vehicle,” an officer said to McCoy.

Police say McCoy admitted to drinking a full bottle of champagne and had a blood alcohol content of 0.35.

Related Story: Rogers County Judge Arrested, Accused Of Being In Control Of Car While Intoxicated

She was booked into jail on a misdemeanor charge for being in control of the vehicle.

She said she is "embarrassed both personally and professionally" and will get treatment for alcohol dependency.

(Mike Frisch)

No Associates

The Massachusetts Supreme Judicial Court has suspended an attorney for charging and collecting excessive fees

This matter came before me on an Information and Record of Proceedings filed by the Board of Bar Overseers (board) in January, 2023, under S.J.C. Rule 4:01, § 8 (6), as appearing in 453 Mass. 1310 (2009). The respondent, Daniel G. Ruggiero, was charged with participating in a scheme with nonlawyers to charge and collect illegal and excessive fees from fifteen clients – homeowners in Massachusetts and Rhode Island seeking mortgage assistance relief work. The respondent also was charged with failing to supervise nonlawyers with whom he worked, using a misleading law firm name, and sharing fees with nonlawyers. Count I of the petition regards the respondent's activities generally, while Count II focuses on one particular Rhode Island client.

A hearing was held on March 2, 2023, attended by assistant bar counsel and the respondent, and, on consideration thereof and for the reasons set forth below, it is ordered that the respondent's license to practice law is suspended for a period of one year and one day.

As to the allegations

The record supports the hearing committee's conclusion that the respondent violated each of these rules. As an initial matter, the fee agreement represented that the respondent would negotiate personally with lenders. There is substantial evidence in the record that this promise was "illusory and false." Similarly, substantial evidence supported the committee's conclusion that the representation that nonlegal services "may be provided by outside servicing Agents, all of whom shall be engaged, compensated, and supervised by Daniel Ruggiero, Esq. and Associates" was false. The nonlawyer agents all were hired and paid by NVA or ND. To the extent that the respondent occasionally may have supervised agents, the record supports the committee's finding that there were no "Associates." Indeed, the respondent conceded as much. See Mass. R. Prof. C. 8.4 (c), (h).

Four areas of violations

In determining its recommended sanction, the board sorted the respondent's rule violations into four categories. The first area of misconduct concerns the respondent's fee agreement and fee collection practices. This arrangement allowed the respondent to collect fees every month, even if no work was performed, in violation of rules 1.5, 8.4 (c), and 8.4 (h)...

The second area of misconduct related to the respondent's failure to communicate with his clients, as well as his delegation of work to unsupervised nonlawyers and subsequent ratification of their conduct. This conduct encompassed the respondent's violations of rules 1.1 and 1.4...

The third area of misconduct concerned the respondent's sharing fees with nonlawyers in violation of rule 5.4. The board noted that the typical sanction for a rule 5.4 violation is an admonition...

The fourth area of misconduct, which the respondent conceded, was his misrepresentation that he was part of a legal organization as opposed to a solo practitioner.

(Mike Frisch)

Insider Trade Draws Suspension For Former Cozen O'Conner Conflicts Attorney

A former conflicts counsel at Cozen O'Connor has accepted a one-year suspension from the Pennsylvania Supreme Court.

As part of his employment role, Respondent learned confidential information about a proposed merger and purchased stock based on that information.

Respondent then sold the stock for a $10,000 profit.

The sales led to an inquiry from FINRA and the Securities & Exchange Commission and an administrative settlement with the SEC.

The settlement involved a penalty payment of over $20,000 to the SEC.

The SEC findings are linked here.

Further from the SEC on the civil settlement

The Securities and Exchange Commission today announced settled charges against William E. Gericke, an attorney formerly employed by a large international law firm, for improperly trading on confidential information that he learned in connection with running a conflicts check.

According to the SEC's order, on or before October 7, 2019, Gericke, in his capacity as conflicts counsel, ran a "confidential" conflicts check related to a potential merger involving the firm's client, Liberty Property Trust (NYSE: LPT). Gericke understood that the information about the potential merger was confidential, but the next day, he purchased 1,000 shares of LPT. After the merger was announced, LPT's stock price increased 13.7%, and Gericke subsequently sold his shares for a profit of $10,002.

The order charges Gericke with violating the antifraud provisions of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder and finds that Gericke engaged in conduct within the meaning of Section 4C(a)(3) of the Exchange Act and Rule 102(e)(1)(iii) of the Commission's Rules of Practice. Gericke consented, on a neither admit nor deny basis, to pay a penalty in the amount of $20,004 and to the entry of a cease-and-desist order. Gericke also agreed to the entry of an order permanently denying him the privilege of appearing and practicing before the SEC as an attorney, which prohibits Gericke from representing clients in SEC matters, including investigations, litigation, or examinations, and from advising clients about SEC filing obligations or content.

(Mike Frisch)

The Dangers Of Discipline

The Colorado Presiding Disciplinary Judge approved a year and a day suspension by consent of an attorney for ethics violations in the representation of a criminal defendant.

The problem involved, in part, a six-month suspension imposed during the pendency of the criminal matter.

The Denver Post reported on her participation in the Discovery Channel series "Naked and Afraid" in a 2019 story 

In addition to running her own law firm (Molly Jansen Law Group) and practicing criminal defense, the Denver native is a longtime morning DJ on hard-rock station KBPI 107.9-FM (Mondays 8:30-9:30 a.m.), a mountaineer, a ski instructor at Beaver Creek, a licensed real estate broker (Falk Ryan LLC), a yoga instructor, a former candidate for Denver district attorney, and a single mother of three who hails from a prominent Denver family known for its philanthropy.

Now Jansen can add “Naked and Afraid” survivalist to the list — a title that seems impossibly distant from her debutante past. Teasers for her episode advertise her as a “super fan” of the series, and one who was paired with “Naked and Afraid” veteran and Lakewood-based Wright. (A fan-favorite “all-star,” Wright counts the equivalent of more than three months of filming for the show.)

The “super fan” tag is true now for Jansen, having watched every episode twice. But it wasn’t when she started.

“There’s a part of me that has a lot of adrenaline because I like to do unique things, like heli-skiing in Iceland or running marathons,” she said. “So when I got back from an 18-day climb in Nepal last April (part of her training for a May 2020 attempt to summit Mount Everest), I saw a random message on Facebook asking if I wanted to apply.”

(Mike Frisch)

Giuliani Post-Hearing Briefs Filed

Counsel for Rudy Giuliani have filed his post-hearing brief in the District of Columbia bar discipline case.

Follow the links to the document by clicking on cases of public interest.

The Brief contends that Disciplinary Counsel has failed to establish any ethics violations by clear and convincing evidence.

As to sanction, the Brief contends that an informal admonition or reprimand should be the sanction if the Hearing Committee finds a violation. If a more severe sanction is imposed, it should be no more than a 30-day suspension.

Disciplinary Counsel filed its reply brief yesterday that reasserted its call for disbarment.

One would have to be insentient to ignore the societal damage to which Mr. Giuliani has made a substantial contribution. Mr. Giuliani's public service, while alluded to in his testimony, is not part of the record in this case, but he urges it as mitigation. Equally relevant, although as aggravation, are the consequences of his misconduct: the loss of faith in the integrity of elections by a substantial portion of the citizenship, an unfounded belief that President Biden was not elected legally, the consequential claim of illegitimacy of his administration - all culmination [sic] in the events of January 6, 2021. Mr. Giuliani objects to being compared to a lawyer who spied against her country, but he did a great deal more harm to his country than Ms. Squillacote.

It must be clear that lawyers cannot use their law licenses illegitimately to undermine the constitutional system they are sworn to uphold. Rudolph W. Giuliani must be disbarred.

It appears that the reply brief was filed one minute after Respondent's brief. (Mike Frisch)

Cert Not Filed

An attorney who was on disciplinary probation has been suspended for one year by the Indiana Supreme Court for a probation violation involving his failure to file a certiorari petition

The material facts are not in dispute. The petition for certiorari was due on March 3, 2022. Pursuant to United States Supreme Court Rule 13(5), an application for extension of this deadline could be granted for good cause and “must be filed . . . at least 10 days before the date the petition is due, except in extraordinary circumstances.” Despite timely reminders from Mother, including one in which Mother specifically identified for Respondent the 10-day deadline for the extension request, Respondent failed to file an extension request by that deadline. Respondent did not file an extension request until March 3, the date the certiorari petition was due and the last date an extension request could be made based on “extraordinary circumstances.” The extension request was denied, and no certiorari petition was filed on the client’s behalf.

Mother texted Respondent on February 18 and February 24 asking for a copy of the extension request Respondent had indicated he would file. Respondent did not respond to either of these inquiries. Mother twice texted Respondent on March 8, once in the morning and once in the evening, asking that Respondent call her and expressing concern that she had not heard from Respondent. Respondent likewise did not respond to either of these inquiries. Respondent asserts he finally contacted Mother on March 10 to advise her the extension request was denied and no certiorari petition was filed. Respondent claims he offered to refund the $7,500 retainer Mother had paid once he could obtain the funds, but Respondent makes no claim that he has actually refunded that money.

Respondent’s characterization of this as a “single calendar error” ignores the litany of similar appellate errors and pattern of misconduct giving rise to his suspension and probation. See Matter of Small, 167 N.E.3d 1160 (Ind. 2021). Simply put, Respondent was placed on probation for the precise purpose of ensuring that his neglect of appellate matters would not continue. Respondent’s attempted diminution of Mother’s requests for information is similarly
unavailing. The requests were reasonable under the circumstances, even if made by text message (a medium of communication Respondent apparently invited), and Respondent’s failure to respond in any manner whatsoever during this critical three-week window—even simply to acknowledge receipt of the requests and advise when a response would be forthcoming—fell short of what our professional conduct rules require. Accordingly, the Court finds Respondent violated Professional Conduct Rules 1.3 and 1.4 and, hence, has violated the terms of his probation.

Reinstatement is not automatic. (Mike Frisch)

"Probably Impaired"

Ohio Disciplinary Counsel has filed a complaint alleging that an attorney had fled the scene after stopping for a police officer who had witnessed him making an illegal U-turn.

A high speed chase led to an accident that damaged but did not disable the attorney's car. 

The attorney was able to elude the officer. He allegedly then rented a car and took the damaged vehicle to a local body shop.

The police officer did get the license plate.

The attorney was convicted of a third degree felony of failing to comply with the officer and found not guilty of tampering with evidence.

He admitted that he had "been drinking" and was "probably impaired" in the presentence investigation.

The attorney is on an interim suspension for the conviction. 

Right To Respond To Internet Reviews Expanded In Florida

Some highlights of amendments to ethics rules adopted by the Florida Supreme Court

in rule 4-1.6, subdivision (b)(2), regarding when a lawyer must reveal information, is amended to make clear that confidential information must be disclosed to prevent death or substantial bodily harm to anyone, including a client. Additionally, a new subdivision (c)(7) is added to rule 4-1.6 to permit a lawyer to reveal confidential information to the extent the lawyer reasonably believes necessary to “respond to specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law.

And

rule 19-1.5 is deleted, as the Supreme Court Commission on Professionalism and Civility was disbanded in In re Florida Supreme Court Commission on Professionalism and Civility, Florida Administrative Order No. AOSC19-12 (Mar. 12, 2019).

(Mike Frisch)

For Judges Only

The Georgia Supreme Court has ordered a remand in a judicial misconduct matter where the Judicial Qualifications Committee had proposed removal from office

the JQC - both the Director and the Hearing Panel — made two critical legal errors that prevent us from resolving this matter now. First, both the Director and the Hearing Panel determined that the JQC has “jurisdiction” over conduct that occurs before a person becomes a judge or judicial candidate, and thus could pursue counts against Judge Coomer regarding prejudicial conduct. That is wrong. The Code of Judicial Conduct plainly applies only to conduct by judges and judicial candidates while they are judges or judicial candidates — indeed, the JQC acknowledged as much in two separate filings with this Court, not long before filing formal charges against Judge Coomer. Inexplicably, however, neither the Director’s argument to the Hearing Panel nor the Hearing Panel’s conclusion even acknowledges the JQC’s previous position; the Director’s only acknowledgement of that position came after Judge Coomer raised the issue last week, and still fails to engage with the relevant text. The Code of Judicial Conduct simply has no application to conduct by people who are not yet judges or judicial candidates, even if they later become a judge or judicial candidate.

Second, both the Director and the Hearing Panel failed to understand the circumstances in which the Constitution and our case law permits judicial discipline. Longstanding precedent makes clear that although actions taken in a judicial capacity — acting as a judge, not merely while a judge — can warrant discipline regardless of good faith, actions taken outside a judicial capacity can warrant discipline only when taken in bad faith. None of the counts against Judge Coomer allege any actions taken in a judicial capacity, and so, in order to prevail on those counts, the Director would need to prove bad faith by clear and convincing evidence. But the Director instead argued that even mere negligence would warrant discipline, without acknowledging our case law to the contrary. And the Hearing Panel accepted that argument, recommending removal based on an apparent assumption that it did not matter whether Judge Coomer violated the law knowingly or in ignorance. But bad faith requires more than ignorance, and because the Hearing Panel’s report and recommendation was ambiguous as to whether it found that Judge Coomer acted with bad faith, without clearer findings we cannot determine what, if any, discipline is appropriate.

(Mike Frisch)

Non-Participation In Trial After Defendant Fled No Ethical Violation

A Louisiana Hearing Committee recommends a partially-stayed suspension in a matter involving two counts of alleged misconduct.

Count One involves the attorney's failure to file state income taxes for two years.

Count Two involves the attorney's handling of a criminal trial on charges of first degree murder of a police officer

After the prosecution and the judge examined the first panel of jurors on voir dire a restroom break was taken. [Defendant] Zarius Brown, after the break, did not return to the courtroom. Efforts made to locate Mr. Brown were unsuccessful.

Respondent sought a continuance but did not seek to withdraw when that motion was denied

The trial for Zarius Brown in his absence took two days, and the jury found Mr. Brown guilty on all counts. Respondent could not recall whether he sought advice during the two trial days from other attorneys as to how to proceed while the client was absent. Respondent was present in the courtroom during the entire trial, but did not question any witnesses, did not make any arguments, and did not enter any evidentiary objections. The verdict was appealed, and the Court of Appeal, First Circuit of Louisiana, reversed the conviction and remanded it for further proceedings for ineffective assistance of counsel that included an improper jury charge to which Respondent did not object. Respondent credibly testified that he was not trying to disrespect the court and was open with the court as to what he was doing. Neither Judge Burris nor the prosecutor in the district court reported Respondent to the ODC. The appellate attorney for the district attorney’s office reported Respondent to the ODC after the First Circuit published its opinion.

The committee rejected ethics charges relating to Respondent's conduct (or lack thereof) at the criminal trial

Respondent moved for a mistrial and remained in the courtroom during the two days of trial. Respondent made the strategic decision as Mr. Brown’s attorney to do what Respondent thought was in the best interests of his client. There was no credible evidence introduced at the Committee hearing that Respondent’s decision to not further participate in the trial was to benefit himself or was made because Respondent was not prepared for trial.

...The Committee finds that Respondent acted in what he believed at the time was in the best interests of his client. He had not faced this situation of a client absenting himself during a trial and neither had the presiding judge nor prosecutor. The decision  was made during the heat of the trial. Respondent was not ordered by the court to participate in the trial. Balanced against Respondent’s actions that he believed were in the best interests of his client is the potential adverse impact on the system of justice. The precedential effect of no ethical violation for an attorney’s unwillingness to actively participate on behalf of his absent client during a trial is a potential adverse impact on the administration of justice that concerns the Committee. However, there was no credible evidence presented in this specific case that Respondent was complicit in any way with his client’s absence. To the contrary, Judge Burris testified at the hearing that Respondent was agitated and visibly upset after he learned that his client left the premises. Respondent was open with the Court about why he felt he could not continue to participate in the trial without his client. Furthermore, the evidence showed that Respondent was prepared for trial, and his decision to not participate in the trial was not self-serving.

The decision of the Louisiana Court of Appeals in the criminal case is linked here.

Proposed sanction

Considering all of the facts of this case, the Committee recommends a six month suspension from the practice of law with all but two months deferred as the appropriate sanction for Respondent’s misconduct.

(Mike Frisch)

To Preserve Life And Health

The North Dakota Supreme Court has upheld the right to abortion to preserve the life and health of a pregnant woman

The North Dakota Constitution guarantees North Dakota citizens the right to enjoy and defend life and the right to pursue and obtain safety, which necessarily includes a pregnant woman has a fundamental right to obtain an abortion to preserve her life or her health. Thus, strict scrutiny analysis applies, and RRWC has a substantial likelihood of demonstrating N.D.C.C. § 12.1-31-12 is not narrowly tailored to achieve a compelling government interest, at least in the limited instances of life-saving and health-preserving circumstances. The district court did not abuse its discretion in granting the preliminary injunction. We deny the requested relief and leave the preliminary injunction in place.

(Mike Frisch)

Defendant May Discover Discharged Lawyer's Social Media Posts And Cell Phone Records

The New Jersey Appellate Division affirmed discovery orders for information sought by defendant Disability Rights in an action brought by a discharged senior staff attorney

In A-0269-22, the trial court order (cell phone record order) granted in part and denied in part plaintiff's motion to quash defendants' subpoena to her cellular provider seeking her cell phone records. Plaintiff used her cell phone to perform her work duties while allowed to work from home. The order required plaintiff: (1) to produce a redacted copy of her personal cell phone records indicating work-related calls and texts made and received during her normal workday from January 1, 2018 to January 31, 2020; and (2) to submit to the court a copy of the redacted records provided to defendants, as well as a Vaughn index of an unredacted copy of the records showing all calls and texts made and received during that period. National Employment Lawyers Association/New Jersey (NELA) filed an amicus brief in support of plaintiff.

In A-0270-22, the trial court order (social media posts order) granted in part and denied in part defendants' motion to compel plaintiff to provide copies of her private social media posts, profiles, and comments (collectively "social media posts" or "social media content") from January 1, 2020 to August 29, 2022, depicting an emotion, attaching a picture of herself, or mentioning: Disability Rights or her lawsuit's allegations; her vacations or celebrations; her being ill or worrying about being ill; and her work. NELA and New Jersey Association of Justice (NJAJ) filed amicus briefs in support of plaintiff.

We are unpersuaded by plaintiff's and amici's arguments that the trial judge abused his discretion in entering orders which abridged her privacy interests. We conclude the judge appropriately considered plaintiff's privacy interests in her social media posts and cell phone bills and did not err in allowing defendants' discovery of limited private social media posts and cell phone bills to defend against her claims that her termination violated the LAD, causing her emotional distress. We, however, remand for the judge to add the requirement in the social media posts order –– similar to the cell phone record order –– that plaintiff submit a redacted copy of her private social media posts to defendants and the trial court as well as an unredacted copy of the posts with a Vaughn index to the trial court.

The litigation

In January 2020, Orlowski and Catanese terminated plaintiff's employment as a senior staff attorney with Disability Rights. Seeking redress, plaintiff filed a LAD complaint against defendants alleging she was terminated because she needed disability accommodations relating to her lupus condition and cancer diagnosis. Plaintiff claimed "defendants have caused [her] to suffer personal hardships, including economic loss, physical and emotional distress, anxiety, pain and suffering, humiliation, [and] career, family and social disruption[.]" In response to defendants' interrogatory questions, plaintiff asserted she suffers "ongoing" emotional distress due to defendants' discrimination which has led to physical manifestations, including "terrible migraines, insomnia, worsening of her diabetes, [and] worsening blood pressure.

Social media posts

The social media posts order is not overbroad or burdensome. The order is limited to private posts made during a three-year timeframe and permits plaintiff to review the posts to determine which ones are responsive to the order without requiring her to provide unfettered access to her accounts. We appreciate plaintiff's counsel's contention at oral argument that plaintiff made daily private social media posts, thereby making the collection of her posts arduous. However, plaintiff's avid use of social media should not be a bar to defendants' legitimate discovery request given that her posts may be a window into her emotional state, which is in dispute.

Cell phone records

Considering the same liberal discovery rules applied to the social media posts order, we likewise conclude the judge did not abuse his discretion in entering the cell phone records order. We see no fault with the judge's assessment that records of plaintiff's work-related phone calls are relevant to defendants' claim that she was terminated because she was not performing her job duties by maintaining phone contact with her clients. The judge did not determine defendants' claim would succeed at trial but that the cell phone records could lead to admissible evidence concerning plaintiff's job performance. The order valued plaintiff's privacy rights by allowing her to redact the records of personal calls and texts made and received during workdays and non-workdays. Moreover, the order dictates that plaintiff provide a Vaughn index to justify her claim that certain redacted calls should not be disclosed to defendants.

(Mike Frisch)

Suspension For Drug Charges

The New York Appellate Division for the Third Judicial Department affirmed a default on disciplinary charges and imposed a two-year suspension with conditions for reinstatement.

we find that respondent should be suspended from the practice of law for a period of two years, effective immediately. Moreover, considering the facts and circumstances presented by the parties, we deem it appropriate to condition respondent's future reinstatement on certain prerequisites, which are in addition to the requirements contained in Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.16.

Among the conditions are successful completion of treatment programs. 

The Times Union reported on her guilty plea

An attorney who was accused of selling heroin from her Cohoes office pleaded guilty to a misdemeanor drug count Wednesday as part of a plea deal that spares her from incarceration.

Instead, Danielle Barker-Lange, 39, will undergo drug treatment as part of her sentencing.

She also be put on probation for three years and ordered to perform 60 hours of community service when she is sentenced June 18.

"Based on a thorough review of the facts and circumstances surrounding this matter by our felony Street Crimes Unit, including the status of this defendant's addition and treatment history, along with lack of criminal history, the felony counts were reduced for an ultimate disposition in local court," the district attorney's office said in a written statement.

Barker-Lange was accused last year of selling heroin out of her home and law office, at 184 Remsen St. She was arrested after an investigation and then search by Albany County deputies of both locations.

At the time, Barker-Lange was charged with three counts of felony criminal sale of a controlled substance, two counts of felony criminal possession of a controlled substance and eight counts of misdemeanor criminal possession of a controlled substance.

She also was charged with driving a vehicle without an ignition interlock device and aggravated unlicensed operation, both misdemeanors, due to a previous DWAI conviction and driving on a suspended license.

During the probe into Barker-Lange, investigators said they were able to buy heroin from her on multiple occasions. She was found with 38 bags of heroin, 20 strips of Suboxone as well as Xanax, oxycodone and amphetamine pills, deputies said.

It is likely that Barker-Lange's case will be investigated by the state's Attorney Grievance Committee, a panel in state Supreme Court that handles complaints about lawyers.

(Mike Frisch)

Strict Rule Ups Ante

Enforcing its strict rule concerning sanctions for intentional or reckless misappropriation, the District of Columbia Court of Appeals converted a six months and a day Nevada suspension into a reciprocal disbarment

Although respondent asserts that he was not found to have intentionally misappropriated client funds, the Nevada Supreme Court affirmed the disciplinary panel’s findings that he “knowingly converted client funds to benefit himself.” The court’s determination that respondent had that state of mind precludes a determination that disbarment is unwarranted because the misappropriation “was inadvertent or the result of simple negligence.” See In re Pierson, 690 A.2d 941, 949 (D.C. 1997); see also In re Addams, 579 A.2d at 191 (“reaffirm[ing] that in virtually all cases of misappropriation, disbarment will be the only appropriate action unless it appears that the misconduct resulted from nothing more than simple negligence”). Lastly, while there is no dispute that respondent paid his clients and their lienholders, this mitigating factor “of the usual sort” is not “especially strong” nor does it “substantially outweigh any aggravating factors,” namely respondent’s prior discipline in Nevada for the same misconduct and commitment of the underlying acts during the earlier disciplinary investigation.

The per curiam opinion was issued by a panel consisting of  Easterly and Howard, Associate Judges, and Thompson, Senior Judge. (Mike Frisch)

Delay Dooms Rape Conviction

The New York Court of Appeals has reversed a first-degree rape conviction on pre-indictment delay grounds.

On the morning of August 9, 2009, a woman reported to the police that she had been raped a few hours earlier by someone she knew well, whom she identified to the police. That same day, she submitted to a sexual assault examination that included DNA samples. Also that day, the police questioned the named assailant—defendant herein—who denied any sexual contact with the woman and refused to provide a DNA sample. Defendant’s assertion could have been (and years later was) refuted by obtaining a sample of his DNA via a swab of his inner cheek.

Despite the above facts, the People took over four years to file an indictment. Because of the substantial delay—as to most of which the People offer no explanation whatsoever—the constitutional right to prompt prosecution, embodied in the due process clause of our state constitution, was violated. We must reverse.

Judge Singas dissented

Despite years of progress by lawmakers and courts, including this Court, to dismantle unreasonable barriers to rape prosecutions, women who report sexual violence  continue to face an uphill battle to hold those who rape them accountable. It is a harder fight after today. With the majority decision, the scales, once again, weigh against women’s voices. While the majority aims to punish the People for the pre-accusatory delay in securing DNA evidence—a delay that had no discernible impact on defendant’s ability to defend himself—the result is a stunning nullification of a jury’s first-degree rape conviction and the reinforcement of the bleak history of the treatment of sexual assault victims. Because there was no due process violation, today’s decision serves only to undermine New York’s recent gains in ensuring that sexual assault victims are treated fairly by the criminal justice system. Accordingly, I must dissent.

The harm caused by the reversal

In creating a rule that will systemically bar countless victims from obtaining justice in the event law enforcement fails “to recognize the seriousness of sexual assault,” (majority op at 17), the majority has only reaffirmed rape culture’s pernicious grasp on our criminal justice system. Its opinion will not deter this type of behavior by law enforcement, but instead be weaponized against victims and used in hindsight to rationalize closing long running rape investigations and dismissing prosecutions. The majority, dubiously asserting that reversing the rape conviction here will benefit future rape victims and the public (majority op at 19), fails to appreciate the practical implications of the precedent that they are creating: if law enforcement negligently delays rape investigations, women’s voices will continue to be stifled, rapists held unaccountable, and jury verdicts discarded. It is difficult to comprehend how that result protects victims or our communities. Moreover, it is no comfort to this victim to hear the old refrain that next time it will be different; next time, your voice will be heard.

Using the long-standing sensitive balancing test as required by our precedent, due process does not require the drastic remedy of dismissing this case. Where the crime is of the utmost severity, defendant was not incarcerated, there was no public accusation, and defendant has shown no actual prejudice from the delay, dismissal of the accusatory instrument is unwarranted. The legislature’s clear assertion of the strong societal interest in prosecuting rape cases, compounded with the heightened importance of rape victims having their day in court, cannot be undervalued in our balancing analysis. Overzealous dismissal of accusatory instruments for the delay in bringing those instruments improperly infringes on the public interest in bringing accused persons to trial (cf. United States v Ewell, 383 US 116, 121 [1966]), particularly where those crimes present the most consequential, heinous threats to the safety and health of our society. Despite much progress, and a cultural reckoning surrounding sexual violence and power dynamics, it is clear from today’s decision that there is much work to be done.

(Mike Frisch)

Tax Crimes Draw Suspension

Income tax crimes led to a 90-day suspension by the South Carolina Supreme Court

On July 30, 2021, Respondent was charged with four misdemeanor counts of failing to pay state income tax and file state income tax returns for the 2015, 2016, 2017, and 2018 tax years. Respondent timely self-reported his misconduct to ODC. The total unpaid tax amount was $14,165. Following his arrest, Respondent filed all outstanding tax returns and paid the taxes owed. On January 18, 2023, Respondent entered a guilty plea to one misdemeanor count of failing to pay state income tax and file a return.

Mitigation

In his affidavit in mitigation, Respondent explains that beginning in 2012, his mother's mental and physical health began to deteriorate as her Alzheimer's disease progressed. Respondent became healthcare power of attorney for both his aging parents and cared for their needs as best he could while maintaining a busy legal practice. Respondent admits he turned to alcohol "as an escape" and that he had become dependent on alcohol during the period of time in which he neglected his tax responsibilities. Respondent's mother passed away in 2018.

Respondent has been sober since October 29, 2019, when he entered a six-week inpatient treatment program in Texas. Since completing inpatient treatment, Respondent continues to regularly attend AA meetings and entered into a one-year monitoring contract with LHL in August 2021. Respondent also serves as a mentor to others in recovery, including through AA and speaking to others not only at events in South Carolina but also at the facility in Texas where he received inpatient treatment. Respondent has also developed a faith-based approach to overcoming conflict and enhancing mental and emotional well-being, and he has attended a program focused on restorative practices to resolve conflict.

(Mike Frisch)

Signage

A public reprimand by the South Carolina Supreme Court

On July 12-13, 2022, during a trial before a family court judge (Judge), Respondent's former client testified that her signature was not the signature purportedly sworn by notary seal on the financial declaration filed with the court. After the trial, Judge reviewed several cases currently pending before the court wherein Respondent was counsel of record. Of the cases reviewed, Judge observed at least four documents attested by either Respondent or her non-lawyer employee as notary publics that appeared to be fraudulent. Thereafter, Judge met with Respondent and presented the documents of concern. Respondent was candid and remorseful about her actions once approached by Judge.

Respondent promptly self-reported the misconduct, admitting that on more than one occasion, she signed legal documents on behalf of her client(s) and notarized the signature purportedly attesting that her client(s) signed the document. Respondent also admitted that she allowed her employee, a non-lawyer under her direct supervision, to notarize Respondent's signature on behalf of her client(s). Opposing counsel submitted a complaint about the same misconduct. In addition, opposing counsel reported three documents in another case in which Respondent allowed her assistant to notarize signatures that were not of the client.

(Mike Frisch)

Employment Of Suspended Lawyer Draws Two Sanctions

An attorney who had employed a suspended lawyer and was himself suspended for 18 months in New York as a consequence received a six-month reciprocal sanction in New Jersey.

The Disciplinary Review Board noted in its report and recommendation that the employed attorney was disbarred for unauthorized practice.

As to Respondent, the New York First Department had concluded

Following its review of the Referee’s Report and Recommendation, the New York court agreed with the Referee’s findings that respondent committed misconduct with respect to Gonchar’s continued use of his Gmail address. However, the court determined that the Referee erred in concluding that respondent had not aided Gonchar in the unauthorized practice of law. The New York court noted that “activities like preparing memoranda and documents to be filed in court – even if subscribed to by an admitted attorney – or conducting interviews with clients are forbidden to a suspended or disbarred attorney.” It is for this reason that orders issued in New York suspending or disbarring attorneys are statutorily required to insert language that an attorney must “desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another,” and that the disciplined attorney is prohibited from “giving to another of an opinion as to the law or its application, or of any advice in relation thereto.” N.Y. CLS Jud § 90 (2).5.

The New York court found that Gonchar operated “as a ‘paralegal’ dispensing advice through the intermediaries of attorneys who interacted directly with clients,” possessed superior legal knowledge, and “functioned as a senior attorney . . . by the exercise of his experience and acumen . . . not his services as a paralegal, [and] made major contributions to the resolution of many of the firm’s cases.”

The New York court rejected as not credible respondent’s belief that Gonchar could work as a paralegal so long as he was prohibited from contact with anyone outside the Firm. In so finding, the New York court highlighted the misleading job description respondent and Friedberg had prepared and their failure to seek independent legal counsel before hiring Gonchar.

In New Jersey, Respondent sought a backdated six-month suspension.

Here

Although it does not appear that respondent had malicious motives when he determined to employ Gonchar, there is no question that he assisted Gonchar in the unauthorized practice of law. Knowing Gonchar faced suspension, respondent offered him employment at the Firm and assisted in the preparation of a job description, in which his Firm would grant Gonchar the title of “Administrative, Clerical and File Assistant.” Respondent claimed to have spent a significant amount of time researching whether Gonchar could work at the Firm and, if so, what job functions Gonchar could perform. Although respondent consulted with Gonchar’s ethics counsel – rather than independent and neutral
counsel – and researched the issue on the internet (since the Firm did not have a LexisNexis or Westlaw account), respondent wholly failed to appreciate the language of the New York court rules (which are substantially the same as the relevant New Jersey Rule), as mirrored in Gonchar’s suspension order, which read that Gonchar was required to “desist and refrain from the practice of law in any form, either as principal or as agent, clerk or employee of another,” and that he was prohibited from “giving to another of an opinion as to the law or its application, or of any advice in relation thereto.” Additionally, although respondent appears to have offered Gonchar employment at the Firm for benevolent reasons, respondent accepted the fruits of Gonchar’s unauthorized practice of law and took no steps during Gonchar’s employment to ensure Gonchar conformed his duties to the job description so carefully constructed prior to his employment.

The DRB proposed a six-month prospective suspension. (Mike Frisch)