Legal Profession Blog

A Matter Of Opinion

The Delaware Supreme Court affirmed the dismissal of a defamation action

This appeal presents difficult questions concerning the actionability of speech that is defamatory—that is, injurious to a person’s reputation—but that is defended on the ground that it is an expression of opinion and not of fact. We are asked to decide whether the First Amendment bars claims for defamation and tortious interference with contract against a defendant who, in an email to a law firm, described as “shockingly racist” a lawsuit filed by one of the firm’s partners in his personal capacity. The suit aimed to preserve a nearby high school’s “Indian” mascot.

The partner, who claims to have lost his position with the law firm because of the email, sued his detractor, contending that the characterization of his lawsuit is demonstrably false and pleading four causes of action, including defamation and tortious interference with contract. The partner’s detractor, in response, contends that her statements about the partner are opinions protected by the First Amendment’s Free Speech Clause. The Superior Court agreed with the detractor and dismissed the partner’s tort action.

For the reasons that follow, we affirm the judgment of the Superior Court. The statements at issue do not on their face contain demonstrably false statements of fact, nor do they imply defamatory and provably false facts. As statements concerning an issue of public concern, moreover, they are entitled to heightened First Amendment protection and cannot form the predicate of the plaintiff’s tort claims.

(Mike Frisch)

Subway Crimes Draw Suspension

A three-year suspension was imposed by the New York Appellate Division for the Second Judicial Department

On June 28, 2018, the respondent was arrested and charged with committing assault in the third degree against two passengers on a New York City subway car by spraying them with a chemical liquid, causing irritation and burning to their eyes and faces, in violation of Penal Law § 120.00, a class A misdemeanor.

On December 11, 2018, the respondent was arrested and charged with assault in the second degree, in violation of Penal Law § 120.05(1), a class D felony. The incident underlying this charge, which occurred on a crowded New York City subway car, was captured on video. Initially, the respondent repeatedly cursed at the victim. The respondent then methodically took off her sunglasses, placed them in her pocketbook, tied her hair back, and took her keys and umbrella from her pocketbook. The respondent used her legs and umbrella to strike the victim. Although a bystander tried to block the respondent, the respondent continued striking the victim.

After charged were filed

On November 20, 2019, in the Supreme Court, Kings County, the respondent was convicted, upon a plea of guilty, of menacing in the second degree, in violation of Penal Law § 120.14(1), a class A misdemeanor, in full satisfaction of the indictment.

In the bar proceeding

In determining an appropriate measure of discipline to impose, we have considered that at the prehearing conference, the respondent was indifferent, lacked decorum, and showed no remorse or acceptance of responsibility. The Court has also considered, inter alia, the nature of the criminal conduct in this matter and the respondent’s failure to attend the hearing and failure to submit any mitigating evidence. Notwithstanding the respondent’s lack of a disciplinary history, we conclude that the respondent’s conduct warrants her suspension from the practice of law for a period of three years.

Coverage from Above the Law.(Mike Frisch)

Back To The Future

A plaintiff in an action that in part involves allegations of legal malpractice may claim loss of future profits according to a decision of the New Jersey Supreme Court

Reiterating the general rule under New Jersey law that lost profits may be recoverable if they can be established with a reasonable degree of certainty, but anticipated profits that are remote, uncertain or speculative are not recoverable, the
Court concurs with the majority of courts that reject a per se rule barring any new business’s claim for lost profits damages. To the extent that Weiss can be read to adopt such a per se bar, the Court departs from the test prescribed in that case. The Court does not view a new business to be in the same position as an established business with respect to damages claims, however. Consistent with the Restatement and the New York and Illinois decisions discussed in the opinion, the Court recognizes that it is substantially more difficult for a new business than for an experienced business to prove lost profits with reasonable certainty. A trial court should carefully scrutinize a new business’s claim that, but for the conduct of the defendant, it would have gained substantial profit in a venture in which it had no experience. If a new business seeks lost profits that are remote, uncertain, or speculative, the trial court should bar the evidence supporting that claim and enter summary judgment. The trial court here applied a per se ban on lost profits claims by a new business pursuant to Weiss. The Court remands so that these matters can be decided under the correct standard and provides relevant guidance.

The court reversed the Appellate Division's affirmance of dismissal.

Reasonably Plain

The Louisiana Attorney Disciplinary Board agreed with a hearing committee that a Super Lawyers ad did not violate ethics rules

On July 26, 2021, ODC filed its brief to the Board. ODC contended that the item which was publicized in Super Lawyers was an advertisement and that Respondent violated Rule 7.7(c) by failing to file the advertisement with the LSBA. ODC acknowledged that the content of the advertisement was compliant with the Rules, but argued that the fact that an advertisement may be compliant does not relieve the lawyer from the requirement of filing it with the LSBA. ODC disagreed with the Committee’s conclusion that the background of the photo could reasonably be considered to be plain. ODC additionally argued that the advertisement goes beyond the “safe harbor” provisions for reasons unrelated to the photograph and that the Committee should not have limited its review to the photograph. ODC further submitted that Respondent should be publicly reprimanded.

Nope

Having reviewed and considered all of the evidence presented in this matter and for the reasons outlined above, the Board finds that ODC has failed to carry its burden of proof by clear and convincing evidence that Respondent violated the Rules of Professional Conduct as charged. Therefore, the Board orders that the charges filed against Respondent be dismissed.

Radio Days

A transcript of the prehearing conference in the Giuliani bar discipline matter has been posted on the web page of District of Columbia Bar.

The proceeding was conducted on August 4. 

Jay Brozost is identified as the attorney member of the Hearing Committee.

Respondent asked for hearing schedule accommodations in light of his 3 pm radio program, identified by counsel as his sole source of income. 

Disciplinary Counsel advised the committee that it has secured two expert reports of 40 and almost 70 pages respectively as well aa a file with 1,527 pages of discovery "graciously" provided by Disciplinary Counsel. Further, subpoenas have been issued to Respondent and "the other lawyers in the Pennsylvania case" for the evidence that supported their claims.

The expert that the prosecutors intend to call is identified as Professor Ortiz. (Mike Frisch)

Death Leads To Consent Disbarment

An attorney admitted to practice in 1979 has filed a motion for consent disbarment with the Illinois Supreme Court.

The statement of charges describes an incident that took place on June 2, 2020.

The attorney ad left a tavern for a restaurant. He collided with a jeep that crossed the center line and killed a motorcyclist who was heading in the opposite direction.

His tested blood alcohol concentration was .297, "more than triple " the legal limit in Illinois.

He pleaded guilty to felony charges and was sentenced to five years imprisonment. (Mike Frisch)

Bill Padding Draws Suspension

An nine-month suspension has been ordered by a justice of the Massachusetts Supreme Judicial Court for billing misconduct in custom and international trade matters.

From the BBO summary

In 2016, the firm hired a junior associate who had no prior experience with international trade law or customs work. Throughout 2018 and 2019, the respondent adjusted the associate’s billing entries for several client matters to bill for time she had not included. He made two types of adjustments: he increased her entries to reflect time that he had spent conferencing with her about the client’s matter, time he had not included in his own entries; and he increased time where he thought she had underbilled, including failing to bill in fifteen-minute increments. At no point did he consult with the associate about these adjustments.

In 2018, the respondent increased the associate’s hours for a total additional time value of approximately $16, 575. In 2019, he increased her hours by a total additional time value of approximately $31,229. The 2018 and 2019 invoices were inaccurate in two respects: the respondent failed to identify accurately the attorney who performed the work; and, because he did not consult with the associate about the accuracy of the time changes, he failed to ensure that the invoices were indeed accurate. This conduct violated Mass. R. Prof. C. 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and 8.4(h) (conduct reflecting adversely on fitness to practice).

The parties had jointly proposed the sanction. (Mike Frisch)

Deemed Admitted

The Maryland Court of Appeals has disbarred an attorney and, in doing so, found no abuse of discretion by the trial court in accepting as proven extensive requests for admissions

In sum, Petitioner served Respondent with 37 pages of Requests for Admissions and attached 125 exhibits totaling 2,087 pages. The Request for Admissions asked that Respondent admit the truthfulness of 391 factual representations and the genuineness of 125 documents—516 requests for admissions in total. Although we recognize that serving requests for admission can be a useful tool to streamline a trial by enabling the parties to stipulate to undisputed facts and the admission of documents, the requests should be reasonable under the circumstances. Here, the Request for Admissions seemed to anticipate that Respondent might fail to respond and, thereby, be deemed to have admitted facts that he otherwise would not have admitted and that otherwise might not have been admissible at the disciplinary hearing. Asking Respondent to admit to the factual averments that we describe specifically in footnote 18, and many other requests for admissions not detailed here and otherwise served on Respondent, was unreasonable. Nonetheless, for the reasons explained below, we do not sustain this exception.

Because

the hearing judge in this case—in an exercise of judicial restraint and good judgment—afforded Respondent numerous opportunities to respond to the request for admissions and permitted Respondent the opportunity to present evidence to rebut the facts deemed admitted. See id. at 478–79. Thus, practically speaking, Respondent did not suffer any real prejudice when the facts contained in the request for admissions were deemed admitted by straightforward application of Maryland Rule 2-424. This exception, therefore, is overruled.

Aggravation

We recognize that not all the conduct cited by the hearing judge qualifies as an aggravating factor. For example, Respondent’s poor decorum when responding to Bar Counsel—while unbecoming—is not conduct that falls under any aggravating factor that this Court recognizes. See Keating, 471 Md. at 639. The remainder of conduct cited by the hearing judge squarely is encompassed by three aggravating factors: multiple MARPC violations, Respondent’s refusal to acknowledge the misconduct’s wrongful nature, and the likelihood that he would repeat his misconduct.

Thus disbarment.

Oral argument linked here. (Mike Frisch)

Caribbean Cruise

The Colorado Presiding Disciplinary Judge approved a stayed 30-day suspension and probation

Martin is the managing lawyer in the Denver office of a Utah-based law firm. A client who was charged with driving under the influence in Mesa County, Colorado, hired Martin for representation during only the pretrial phase of the client’s criminal case. On May 28, 2021, Martin and his client appeared remotely before the trial court, setting the matter for a pretrial conference on September 10, 2021, and for trial on September 14, 2021.

In early August 2021, Martin booked a seven-day Caribbean cruise to begin on September 5, 2021. Soon thereafter, Martin booked a second seven-day cruise to begin immediately after the first cruise on the same ship. His vacation was set to occur during the client’s trial.

Twice in August 2021, the court issued separate orders indicating that it was prepared to go forward with the trial. On August 30, 2021, Martin moved to withdraw from the client’s matter, citing the client’s failure to meet his financial obligations. The court reserved ruling on Martin’s withdrawal motion, which was filed fifteen days before trial. The court advised the parties that it would address the withdrawal motion at the pretrial conference, granting the parties leave to appear virtually. On September 2, 2021, the court again granted Martin leave to appear virtually.

Neither Martin nor his client appeared at the pretrial conference on September 10, 2021. The court denied Martin’s motion to withdraw and maintained the scheduled trial date of September 14, 2021. On September 12, 2021, Martin’s second cruise departed from Miami. On September 14, 2021, the court called the client’s matter for trial. Martin’s ship was docked in Honduras on that date. Neither Martin nor his client appeared. The court issued a bench warrant for the client’s arrest due to his failure to appear. The court also issued an order directing Martin to show cause at an in-person hearing why he should not be held in contempt of court for failing to appear at the prehearing conference and at trial.

Even though the court ordered Martin to appear at the show cause hearing in person, he appeared remotely. At the hearing, Martin apologized to the court and explained that he expected the motion to withdraw to be granted and the trial date to be vacated when his client did not appear at the pretrial conference.

(Mike Frisch)

You Are Not A Loan

The Maryland Court of Appeals answered a question certified by the federal district court

This case comes to us from the United States District Court for the District of  Maryland (the “federal court”) pursuant to a certification order requesting that we answer the following question, which we have rephrased:

Is a law firm that engages in debt collection activities on behalf of a client, including the preparation of a promissory note containing a confessed judgment clause and filing of a confessed judgment complaint to collect a consumer debt, subject to the provisions of the Maryland Consumer Loan Law, Md. Code, Commercial Law Article § 12-301, et seq.?

As we explain below, the answer to that question is “no.”

Posture

This case arises from debt collection activity by Nagle & Zaller, P.C. (“Nagle & Zaller”), a law firm, on behalf of its clients. The clients are homeowners associations and condominium regimes (collectively, “HOAs”) that retain Nagle & Zaller to undertake collection efforts against lot owners in HOAs and unit owners in condominium regimes (collectively, “homeowners”) seeking to recover delinquent assessments. The HOAs retained Nagle & Zaller to represent them in negotiating and drafting promissory notes with homeowners that memorialized the repayment terms of the delinquent assessments. The promissory notes drafted by Nagle & Zaller included confessed judgment clauses. When homeowners defaulted on their obligations, Nagle & Zaller filed confessed judgment complaints against them.

In February 2018, Jahmal E. Delegall and others filed a putative class action against Nagle & Zaller in the Circuit Court for Montgomery County challenging the law firm’s above-described debt collection practices. After the plaintiffs filed an amended complaint adding the HOA clients of the law firms as defendants, the defendants removed the case to the federal court.

Majority holding

we hold that a law firm that prepares promissory notes or undertakes debt collection activity on behalf of a HOA client is not subject to the MCLL because it is not a “lender” that is “engaged in the business of making loans” under the provisions of the MCLL. Rather, a law firm is in the business of providing legal or debt collection services to its clients. Although a law firm’s conduct is subject to regulations under the Fair Debt Collection Act and similar statutes, when the law firm engages in debt collection activities,  such activities are not synonymous with consumer lending activities that require a license under the MCLL. We similarly conclude that a HOA that extends a payment plan for the repayment of delinquent HOA assessments is not “in the business of making loans” and, therefore, not subject to the MCLL. Any extension of credit by a HOA under these circumstances is an ancillary function of the HOA’s operations associated with the protection and maintenance of common areas and community-related infrastructure. Offering a payment plan to a homeowner for the payment of delinquent HOA fees does not transform the HOA into a consumer lender that must be licensed under the MCLL.

Dissent by Judge Watts

Respectfully, I dissent. I would answer the certified question of law “yes” and hold that, based on the facts set forth in the operative complaint, which was incorporated into the federal court’s certification order, Nagle & Zaller, P.C. (“Nagle & Zaller”), a law firm, is subject to the provisions of the Maryland Consumer Loan Law, Md. Code Ann., Comm. Law (1975, 2013 Repl. Vol.) (“CL”) §§ 12-301 to 12-317 (Credit Provisions), and Md. Code Ann., Fin. Inst. (1980, 2011 Repl. Vol.) (“FI”) §§ 11-201 to 11-223 (Licensing Provisions)...

Based on the facts alleged in the operative complaint, Nagle & Zaller was engaged in the business of making loans subject to the Credit Provisions. According to the complaint, in hundreds, if not thousands, of instances, while representing homeowner associations, Nagle & Zaller drafted promissory notes with confessed judgment clauses to be signed by people who typically owed up to $25,000 in allegedly delinquent homeowner association assessments. The amounts owed under the promissory notes were higher than the alleged principal amounts owed. Nagle & Zaller contacted people, convinced them to sign the promissory notes, sent them the promissory notes, received the signed copies, collected payments, kept at least a portion of the payments for itself as attorney’s fees, and sued the people based on confessed judgment clauses in the promissory notes.

Under the circumstances described in the complaint, which we accept as true, Nagle & Zaller used the promissory notes it drafted to create new advances of credit—i.e., loans—with new terms of repayment and new consequences of nonpayment, namely confessed judgments. In other words, Nagle & Zaller did not simply attempt to collect, or arrange for the deferment of, existing debts owed to homeowner associations. As such, Nagle & Zaller did not merely act as an attorney or an agent of the homeowner associations. Rather, Nagle & Zaller created new loan obligations with new terms, including a provision for confessed judgments, and obtained attorney’s fees for itself by operation of the confessed judgment clauses.

Loophole

To conclude that the Maryland Consumer Loan Law does not apply in this case is to essentially create a loophole allowing law firms, like Nagle & Zaller, to engage in the business of making loans, i.e., creating new extensions of credit with confessed judgment clauses. It is clear that the General Assembly expressly intended to prohibit confessed judgment clauses in contracts for loans subject to the Credit Provisions. See CL § 12- 311(b)(1). From my perspective, this prohibition cannot and should not be circumvented by permitting the outsourcing of responsibility for collecting a debt to a law firm that would, as Nagle & Zaller does, engage in the business of making loans. Such a practice would create a gap in the Maryland Consumer Loan Law that the General Assembly did not intend.

(Mike Frisch)

Anonymously Denied

The New York Appellate Division for the Third Judicial Department denied admission to an otherwise qualified applicant on character and fitness grounds

Applicant, a 48-year-old resident of Maryland, graduated from law school in 2008 and passed the Uniform Bar Examination in the District of Columbia in February 2018. He transferred his Uniform Bar Examination score to New York and the State Board of Law Examiners certified him for admission to this Court.

But

It is applicant's burden to demonstrate that he possesses the character and general fitness requisite for admission (see Matter of Anonymous, 97 NY2d 332, 334 [2002]; Matter of Anonymous, 172 AD3d 1522, 1523 [2019]). The record before us demonstrates that, while in law school, applicant engaged in the unauthorized practice of law when he established a law firm, which firm was to include his father – a licensed Maryland attorney – and thereafter proceeded to forge his father's signature on a cease and desist letter issued on the firm letterhead and further provided legal advice to an individual. His unauthorized practice of law in this regard is aggravated by the fact that, despite being made aware of this misconduct, he nevertheless continued to misrepresent the status of his licensure as an attorney in Maryland. Based on the foregoing, and his demonstrated lack of candor on his Maryland bar application, applicant was denied admission to the bar in that state.

Applicant has continued his troubling pattern of dishonesty and a lack of candor during the instant investigation by this Court's Committee on Character and Fitness.m Significantly, we agree with the Committee's conclusion that applicant knowingly made a false statement of material fact to this Court regarding the present location of his residence in order to gain a procedural benefit; namely, avoiding the temporary deferment of his application for admission while his reapplication for admission to the bar in Maryland, his home state, was pending. Such a deliberate misrepresentation, standing alone, is a sufficient basis to deny applicant's petition. Accordingly, we conclude that applicant has failed to demonstrate that he presently possesses the character and general fitness requisite for an attorney and counselor-at-law and, therefore, his petition is denied (see Judiciary Law § 90 [1] [a]; Matter of Anonymous, 172 AD3d at 1523)

The Bourne Sanction

The Arkansas Supreme Court ordered sanctions of a judge

Judge Bourne has served as a district judge since 2001. Recently, several complaints have been filed against Judge Bourne involving his conduct toward unrepresented litigants. This conduct includes demeaning comments toward Spanish-speaking defendants and negative comments to defendants who are not from Pope County (Count 1). Other complaints concerned Judge Bourne’s failure to conduct proper indigency determinations and failure to keep adequate records (Count 2)

The conduct was conceded

We suspend Judge Don Bourne from the bench without pay for ninety days, with seventy-five of those days held in abeyance if he completes or adheres to the agreed remedial measures, including, but not limited to:

• Spend the two-week suspension attending and observing other district court judges and write reflective reports on each visit;

• Obtain and maintain a digital-audio recorder in his courtrooms prior to the end of his suspension and preserve audio recordings of court proceedings;

• Allow the Commission to monitor his courtroom and allow access to staff and documents as needed;

• Attend an approved online judicial-ethics class; and

• Read a report and complete online training about bullying and harassment in the legal profession.

Additionally, Judge Don Bourne shall never again hold a judicial office after his current term expires. This court notes that in addition to the public signal that a suspension without pay sends, the suspension also imposes a financial penalty of several thousands of dollars in lost pay. The suspension will begin on August 16, 2022. The mandate shall issue immediately. Expedited petition granted; order of suspension without pay imposed; mandate to issue immediately.

(Mike Frisch)

Tell All

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

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

(Mike Frisch)

A St. Valentine's Day From Hell

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

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

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

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

Sanction

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

(Mike Frisch)

The Night The Lights Went Out In Georgia

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

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

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

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

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

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

(Mike Frisch)

 

Clark Update

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

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

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

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

New Board Chair Lucy Pittman signed the order.

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

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

"Made in the USA"

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

The Daily Press reported on the conviction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Clancy said Kim is no longer practicing law.

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

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

(Mike Frisch)

A Date For Rudy

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

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

At present, the hearing will be conducted over Zoom.

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

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

Suit Survives

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

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

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

She was reinstated in 2017.

The court found the lawsuit had been timely filed

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

She was not an employee

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

But not dealt out

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

Points

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

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

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

Negligent misrepresentation

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

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

District Judge Boasberg has the matter. (Mike Frisch)

Braintree

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

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

He filed a civil action for the trustees

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

The matter settled

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

He advised the client that it was a waivable conflict

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

(Mike Frisch)