Legal Profession Blog

Jade Helm

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

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

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

And

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

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

The court

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

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

(Mike Frisch)

Silver Linings Playbook

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

The Disciplinary Review Board had recommended disbarment.

Lehigh Valley Live had the story

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(Mike Frisch)

Agreed Suspension For Sex With Client

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

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

(Mike Frisch)

Hearing Board Opposes Reinstatement

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

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

The conduct was serious

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

He had demonstrated good post-disbarment/prison conduct

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

(Mike Frisch)

Revenge Porn Statute Constitutional

The Indiana Supreme Court reversed and remanded the dismissal of criminal charges

On March 12, Katz took a video of his then girlfriend R.S. performing oral sex on him without her knowledge. This occurred at Katz’s college fraternity house in Angola, Indiana. Katz sent the video to his ex-girlfriend, C.H., via Snapchat. C.H. thought R.S. was aware of the video, but a few days later, Katz told C.H. not to mention “anything about the video he sent through Snapchat” to R.S. Appellee’s App. Vol. II, p.6. C.H. then contacted R.S. to let her know what Katz sent. After C.H. informed her about the video, R.S. confronted Katz via text message. Katz admitted to sending the video and was apologetic, stating he knew it was wrong to send the video and should not have sent it without her knowledge. On March 26, R.S.’s lawyer reported the incident to the Angola Police Department. A detective spoke to both R.S. and C.H. later that day. R.S. provided the detective with the text messages of her conversations with C.H. and Katz. C.H. provided additional details, including that the video showed Katz “holding a female’s hair while her head went up and down towards [his] penis.” Id. She also told the detective that the female was clothed, and she “could not see the female’s face in the video but assumed it was [R.S.]” Id.

After charges were filed

The trial court dismissed the case because it concluded the statute was unconstitutional under Article 1, Section 9 and the First Amendment.

The court here squarely rejects the reasoning in dealing with "revenge porn"

In the face of this unique and pervasive crime, the “overwhelming majority of state legislatures have enacted laws criminalizing the nonconsensual dissemination of private sexual images.” 

Even under a strict scrutiny constitutional analysis, the statute passes muster

Faced with the widespread and growing problem of nonconsensual pornography, the legislature acted within its authority to safeguard the health and safety of its citizens from this unique and serious crime by passing Indiana Code section 35-45-4-8. The State properly charged Katz with violating the statute. And the statute does not violate either the free interchange clause of the Indiana Constitution, or the First Amendment to the United States Constitution. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

(Mike Frisch)

Confidentiality Crimes Draw Disbarment

The South Carolina Supreme Court has disbarred an attorney who had consented and stipulated to multiple ethical violations.

In addition to client-representation related charges

On February 15, 2019, Respondent was arrested on two counts of forgery under state law. On March 1, 2019, this Court issued an order placing Respondent on interim suspension. In re Misocky, 425 S.C. 614, 825 S.E.2d 48 (2019). Respondent was subsequently indicted on numerous federal criminal charges involving conspiracy, forgery, counterfeiting, and identity theft, and the state charges were eventually dismissed in favor of federal prosecution.

The basis for the federal charges was that Respondent conveyed personal client information to two other individuals who used that information to make and pass counterfeit and forged securities in the names of the clients. These two other individuals deposited the money from the forged securities into a designated account from which Respondent paid them a percentage of the fraudulently obtained proceeds. Additionally, Respondent endorsed stolen checks; attempted to use another person's identity to facilitate a vehicle trade; possessed a fake driver's license and social security card and attempted to use them to purchase a car; purchased a different vehicle using a false identity; and possessed and passed two counterfeit checks with the intent to defraud a car dealership.

On July 6, 2021, Respondent entered into a plea agreement in which she agreed to plead guilty to a single count of conspiracy in exchange for the dismissal of the remaining five federal charges. Her guilty plea was entered on August 2, 2021. Respondent has not yet been sentenced.

Respondent is also admitted in North Carolina, where she is suspended. 

The court granted credit for time served on interim suspension. (Mike Frisch)

Too Late To Sue

The Tennessee Court of Appeals affirmed the dismissal of a legal malpractice complaint on statute of limitations grounds

In its September 17, 2019 Complaint, the plaintiff county alleged that its trial counsel in an underlying Public Employee Political Freedom Act (“PEPFA”) action committed malpractice by failing to object to the jury verdict form in conjunction with agreeing to bifurcate the issue of damage. The defendant attorney and his law firm moved to dismiss the complaint as time-barred under § 28-3-104(c)(1), asserting that the county’s claim accrued no later than July 7, 2017—the date on which the court entered the final judgment against the county in the underlying PEPFA case. The county opposed the Motion, asserting that its claim did not accrue until September 18, 2018—the date on which the Court of Appeals issued its opinion in the PEPFA case—because it was on that date the county first reasonably became aware of the alleged malpractice. The trial court granted the Motion to Dismiss on the ground the county knew it had been injured and had sufficient constructive knowledge to trigger accrual of the action more than one year prior to its commencement. This appeal followed. We affirm.

(Mike Frisch)

Essentially Similar

Automatic disbarment flowed from a sex offense conviction according to a decision of the New York Appellate Division for the Second Judicial Department

We conclude that the respondent’s conviction of the New Jersey felony of aggravated sexual assault of a victim less than 13 years old, in violation of NJ Stat Ann 2C:14-2(a)(1), is essentially similar to the New York felony of rape in the first degree, a class B felony, in violation of Penal Law § 130.35(4). Although the New York statute requires the perpetrating actor to be at least 18 years of age or more, it is undisputed that the respondent, at the time of his criminal behavior, was over the age of 18.

By virtue of his felony conviction of the New Jersey felony of aggravated sexual assault of a victim less than 13 years old, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

(Mike Frisch)

Use Of Unearned Retainers Draws Proposed Disbarment

The District of Columbia Board on Professional Responsibility has adopted findings of fact and conclusions of law of a hearing committee and recommended disbarment for intentional misappropriation

Hearing Committee Number Eight has recommended that Respondent be disbarred for repeated intentional misappropriation of fee advances, and other misconduct arising out of Respondent’s representation of seven different clients. The Hearing Committee found that Respondent accepted fee advances from his clients and then knowingly used those advanced funds as his own before he had earned them, even though he did not attempt to obtain client consent to do so. The Hearing Committee Report also describes Respondent’s consistent and intentional neglect of client matters, failure to communicate with his clients, failure to return client files and unearned fees, knowingly dishonest statements to Disciplinary Counsel during its disciplinary investigation, failure to respond to Board and Court orders, and failure to provide an engagement letter to one client.

Neither Respondent or Disciplinary Counsel noted an exception to the hearing committee report. (Mike Frisch)

Disbarred By Default

Disbarment has been imposed by the Minnesota Supreme Court

Lennington’s alleged professional misconduct included misappropriation of client funds in two matters, as well as a pattern of neglect and abandonment of five client matters. The Director also alleged that Lennington committed professional misconduct by holding himself out to practice law while suspended, failing to comply with the terms of the suspension order, and failing to cooperate in four disciplinary investigations. Lennington did not file answers to the petitions. We granted the Director’s motion for summary relief, deemed the allegations admitted, and allowed the parties to submit written proposals regarding the discipline to be imposed. Lennington did not file a memorandum or appear at oral argument. The Director asks us to disbar Lennington. We agree that the appropriate discipline is disbarment.

The attorney was admitted in 1991 and was the subject of a prior six month suspension.

Reprimand and probation was imposed in an unrelated matter involving reciprocal discipline from Arizona

Respondent was disciplined in Arizona for, in his capacity as a prosecutor in 2019, negligently failing to disclose portable breath test (PBT)/horizontal gaze nystagmus (HGN) test results of a testifying witness during a criminal trial. See Rule 42, Ariz. R. Sup. Ct., and in particular Ethical Rules (ERs) 1.1 (competence), 1.3 (diligence), 3.8(d) (special responsibilities of a prosecutor), and 8.4(d) (conduct prejudicial to the administration of justice). As a result of respondent’s misconduct, which the defense discovered after defendant was convicted, the criminal matter was dismissed with prejudice as a sanction.

(Mike Frisch)

The Law Of Lost Bats

The Wyoming Supreme Court reversed the grant of summary judgment in a case involving a lost bat 

On September 12, 2016, Ms. Cornella found a bat in her sons’ bedroom and called the Animal Control Division of the Lander Police Department. Officer Fred Cox responded to the Cornella’s home. He found the bat inside the home, captured it with a net, and put the net in the bed of his pickup truck to transport the bat to the Wyoming Game and Fish Department office so it could be tested for rabies. Shortly thereafter, Officer Cox called Ms. Cornella to let her know that the bat had escaped from the net during transport and could not be tested.

Ms. Cornella reached out to Game and Fish and was told to call the public health office. The public health office referred her to State Veterinarian, Karl Musgraves. Dr. Musgraves told Ms. Cornella that seven bats in the area had recently tested positive for rabies. He advised her to have her sons checked by a doctor for bite marks but cautioned that bat bite marks were not always visible. He recommended that the whole family get rabies vaccines even if they had no visible bite marks.

Plaintiff took her three children to a doctor who found no visible bites but nonetheless recommended treatment for all three

The medical bills for their vaccines totaled $83,007.60.

Summary judgment should not be awarded to defendants

once the court sua sponte changed the dispositive summary judgment issue from “the existence of a duty” to “whether governmental immunity was waived,” W.R.C.P. 56(f)(2) required it to give the parties notice of its intent to rule on that newly identified issue and afford them reasonable time to respond.

Because neither party raised, nor had an opportunity to argue, whether § 15-1-103(a)(l) afforded the City immunity, the district court violated W.R.C.P. 56 when it granted summary judgment on this ground.

And on the negligence claim

Because the undisputed facts of this case show that Officer Cox and Chief Cecrle were peace officers acting within the scope of their duties, see supra ¶¶ 19–22, we conclude that Officer Cox and Chief Cecrle each owed a common law duty to the Cornellas to act as reasonable peace officers under the circumstances. As a result, the City is not entitled to summary judgment as a matter of law and we must reverse the district court’s ruling and remand for further proceedings. The remaining elements of the Cornellas’ negligence claim, and any defenses the City may raise, are questions to be addressed upon remand.

Back to the trial court, same bat-time, same bat-channel. (Mike Frisch)

Substantial Harm

An interim suspension has been ordered by the Oklahoma Supreme Court in the wake of recent complaint filed by the state Bar Association

The complaint alleges that Respondent failed to transfer settlement funds when ordered to do so by the Lincoln County District Court. The complaint also alleges Respondent failed to appear, to respond, to produce records, or to file an application for reimbursement of fees, when directed by the court. According to the complaint, as of the date of the filing of the complaint, the Respondent has not tendered the remaining settlement funds to the Lincoln County District Court, and has ceased communicating with or responding to the OBA. The complaint also alleges significant irregularities with respect to Respondent's client trust account and personal bank account, and diminishing funds in the client trust account. The OBA seeks an Emergency Order of Interim Suspension of Respondent due to alleged substantial harm posed by her continued practice of law and access to the remaining funds in her client trust account. The OBA requests an Order directing Respondent to preserve all remaining funds in her client trust until a complete audit may be accomplished.

On December 10, 2021, this Court ordered Respondent to show cause why an Order of Immediate Interim Suspension should not be entered, and to show cause why an Order should not be entered prohibiting her from withdrawing funds from her client trust account until an audit. Respondent did not respond.

Upon consideration of the verified complaint and application for immediate interim suspension, and the Respondent's failure to respond to this Court's Order to Show Cause, the Court finds that Respondent has committed conduct in violation of the Oklahoma Rules of Professional Conduct and that Respondent's conduct poses an immediate threat of substantial and irreparable public harm, namely harm to her clients' legal and financial interests.

(Mike Frisch)

Page Defamation Suit Dismissal Affirmed; Trial Court Mishandled Lin Wood Pro Hac Matter

The Delaware Supreme Court has affirmed the dismissal of Carter Page's defamation suit against Oath Inc.

Dr. Carter Page, a public figure with ties to President Trump’s 2016 campaign, claimed that Oath Inc.’s online news organizations published eleven defamatory articles about him in 2016 and 2017. Michael Isikoff authored a Yahoo! News article that forms the backbone of the amended complaint (the “Isikoff Article”). Three other articles were written by employees at TheHuffingtonPost.com (“HuffPost”) and refer to the Isikoff Article (the “Employee Articles”). The remaining seven articles were written by HuffPost non-employee “contributors” (the “Contributor Articles”). The articles discuss an “intelligence report” from a “well-placed Western intelligence source” with information that Page met with senior Russian officials and discussed potential benefits to Russia if Donald Trump won the presidential election.

The Superior Court granted Oath’s motion to dismiss. It found that the Isikoff Articles and Employee Articles were either true or substantially true; Page was at least a limited purpose public figure, meaning he was required to plead actual malice by the individuals responsible for publication, and he failed to meet that standard; the fair report privilege for government proceedings applied; and Oath was protected for the Contributor Articles under the federal Communications Decency Act. Page appeals the Superior Court’s judgment except the Superior Court’s ruling that the Employee Articles were true.

We affirm the Superior Court’s judgment. The Isikoff Article describes a federal investigation into a report about Page—an investigation that existed and was being pursued by the FBI. At a minimum, the article is substantially true, and as such, Page did not state a claim for defamation based on that article. Page also fails to state a claim for defamation with respect to the remaining articles. At oral argument, Page conceded that if the Isikoff Article is not defamatory, he loses on his remaining claims. Page also failed to allege that the individuals responsible for publication of those articles acted with actual malice. Finally, Page does not contest the Superior Court’s holding that the Employee Articles were true. Because these grounds dispose of Page’s defamation claims, we do not address any of the Superior Court’s other grounds for dismissal.

The court entered a separate order chiding the trial court for its handling of l'affaire Lin Wood

Both the tone and the explicit language of the Superior Court’s memorandum opinion and order suggest that the court’s interest extended beyond the mere propriety and advisability of Wood’s continued involvement in the case before it. In fact, one cannot read the court’s order without concluding that the court intended to cast aspersions on Wood’s character, referring to him as “either mendacious or incompetent” and determining that he was not “of sufficient character” to practice in the courts of our State. We offer no opinion on the accuracy of these characterizations, but we see no evidence in the Superior Court’s record that supports them. Similarly, the court’s foray into the events of January 6 and its unequivocal finding that “[n]o doubt [Wood’s] tweets . . . incited the [] riots,” was not justified given the scope of the Rule to Show Cause and the record.

 Because the Superior Court’s revocation order is based on factual findings for which there is no support in the record and because the court failed to explain why Wood’s withdrawal would not moot the court’s concerns about the appropriateness or advisability of Wood’s continued admission, we find that the court’s revocation order was an abuse of discretion.

To be clear, when a lawyer admitted pro hac vice to practice in a trial court of this state is accused of serious misconduct in another state, the admitting trial court is not powerless to act. It might be appropriate to issue—as the court did in this case—a rule to show cause why the out-of-state lawyer’s pro hac vice status should not be revoked, and to act upon that rule if cause is not shown. But when, as here, the allegations of misconduct in another state have not yet been adjudicated, there is no assertion that the alleged misconduct has disrupted or adversely affected the proceedings in this State, and the lawyer agrees to withdraw his appearance and pro hac vice admission, it is an abuse of discretion to preclude the lawyer’s motion to withdraw in favor of an involuntary revocation of the lawyer’s admission

(Mike Frisch)

Waiting For PayPal

The Georgia Supreme Court has accepted and imposed a public reprimand on an attorney who was the subject of three complaints.

One matter involved neglect; the other two were escrow account issues

Woodward admits that, at all relevant times, he maintained an IOLTA trust account; that on July 23, 2018, when implementing a one-time transfer of $500 in earned fees from that account into his operating account, he “inadvertently set the transfer to be a recurring weekly transfer”; that the following week, the inadvertent recurring transfer caused an overdraft in his trust account; and that he later deposited money to resolve the overdraft. The following year, in April 2019, a check was presented for payment against his trust account, but the account balance was insufficient to cover the check. With regard to the 2019 incident, Woodward asserts that he “believed that [a] PayPal transaction payment from the client had already processed,” whereas the “PayPal transaction did not process until after the check was presented.” Woodward once again deposited funds into the trust account to resolve the overdraft.

Mitigation

He explains that, during his representation of those clients, he was “called away for military obligations,” which caused some delays in the trial.

He was censured in 2019 in Tennessee 

Finally, Woodward generally asserts that he is currently deployed abroad as part of his military service; that he has “proudly served” in the Army for 23 years; that he “overwhelmingly” has been able to “manage the demands of the military with [his] law practice”; that he understands the “seriousness of this situation”; and that he will “take steps to improve [his] ability to meet the demands of both the military and the legal profession.”

The court

We have reviewed the record in this case, and we agree to accept Woodward’s petition for voluntary discipline. Our conclusion likely would have been different if there was any evidence of additional violations or misconduct on Woodward’s part, but given the specific circumstances of this case, we believe that a public reprimand is an adequate discipline to impose.

(Mike Frisch)

Reinstatement Granted In Case Argued this Week

The Maryland Court of Appels just entered an order reinstating the attorney whose 60 day definite suspension lasted over 800 days.

We covered the oral argument that was held on Monday of this week.

The attorney now faces charges

this Order is without prejudice to Bar Counsel establishing the violations alleged in the Petition for Disciplinary and Remedial Action in Misc. Docket AG No. 17 (Sept. 2021 Term) by clear and convincing evidence pursuant to Maryland Rule 19-727(c);

Presumably the court does not intend to follow this order with an opinion explaining its decision. (Mike Frisch)

Jewelry Prohibition Not Discriminatory

The dismissal of a complaint filed against a daycare center has been affirmed by the New York Appellate Division for the First Judicial Department

The complaint alleges that defendant Bright Minds Center refused to allow plaintiff's son to wear a Star of David necklace to daycare in violation of New York State Human Rights Law and article 47 of the New York City Health Code. The complaint asserts causes of action for breach of contract, religious persecution, child assault and endangerment, limiting access to his child, and improper handling of personal information.

As a threshold matter, plaintiff failed to demonstrate the existence of an injury upon which relief could be granted (see Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 NY3d 377, 384 [2017]). At the time that he commenced this action, his children no longer attended the daycare center. Moreover, while plaintiff claims that defendants' actions caused him emotional harm, he provided no evidence of treatment for emotional distress or of monetary loss.

Even if plaintiff had standing to bring this action, it would have to be dismissed. The religious persecution claim is predicated on defendants' blanket policy prohibiting children ages two to five from wearing jewelry. Defendants provided a nondiscriminatory reason for the policy, i.e., that it is dangerous for young children at daycare to wear jewelry because it can be a choking hazard, both to themselves and to other children at the center. Indeed, plaintiff previously was reminded of the policy after his daughter, while at daycare, was found with a nonreligious necklace in her mouth. Plaintiff failed to submit evidence that his son's religion played any role in defendants' decision to remove his necklace (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 39 [1st Dept 2011], lv denied 18 NY3d 811 [2012]). To the contrary, defendants informed plaintiff that his son was free to express his faith in other ways, such as the wearing of religious garb.

(Mike Frisch)

Runaway

The New Jersey Supreme Court has entered two orders suspending an attorney, one for one year and until further order and another for six months.

The one year sanction involved his dilatory handling of an urgently-desired divorce as described by the Disciplinary Review Board

[Client] Hogancamp’s frustration with respondent’s conduct was warranted, especially given the fact that [spouse] Gary was willing to work with respondent; did not contest the divorce; signed the PSA; and consented to a default. The divorce, which should have taken no more than a few months to, at most, a year, lingered for two years and two months, from August 2016 to November 2018.

Harm to client

Here, respondent’s misconduct caused significant harm to Hogancamp. Respondent was aware of the exigency of Hogancamp’s need for a divorce, as evidenced by her living and financial situation, yet her complaint was dismissed as a direct result of respondent’s misconduct. Respondent’s decision to represent Hogancamp in her divorce complaint for a reduced fee should not have impacted the urgency of his actions taken in her behalf and did not diminish his duty to provide competent representation. His claim that communications were confused due to his use of social media to confer with clients lacks support, as it is clear that respondent failed to communicate with Hogancamp in any other manner.

Although respondent categorizes his actions as “mistakes” and not ethics violations, we find that, in the aggregate, respondent’s treatment of Hogancamp and of her divorce matter certainly supports the ethics violations charged and warrants a significant quantum of discipline.

It being New Jersey, "significant quantum" is a relative term

Considering respondent’s failure to learn from his past mistakes, his significant disciplinary history, and the danger that he clearly is posing to his clients, over a prolonged period of time, we conclude that a one-year suspension is the quantum of discipline necessary to protect the public and preserve confidence in the bar.

The DRB described the two matters involved in the six-month recommendation

On November 6, 2012, grievant Michael Salazar sustained significant personal injuries while on the premises of his condominium complex, which was owned by Runaway Beach Community Association (Runaway). Following Hurricane Sandy, Salazar had been evacuated from his residence, but was allowed to return to retrieve his belongings. Upon his return, Salazar tripped over a damaged railing, which impaled his ribs, resulting in his hospitalization for almost a month.

The attorney filed the complaint on the last day and it was dismissed for want of prosecution when service was not obtained

Following the court’s dismissal of Salazar’s complaint, respondent failed to make any efforts to reinstate the case, despite having a year, pursuant to Court Rule, to file such a motion following an administrative dismissal.

There was a second civil matter in which the attorney violated multiple rules and failed to cooperate in the bar investigation. (Mike Frisch)

Forced Arbitration Of Fee Dispute In Retainers Unenforceable

The New Jersey Appellate Division affirmed a decision that  declined to enforce an arbitration provision in a law firm's retainer agreements.

In these ten one-sided appeals, which we consider back-to-back and have consolidated for the purpose of writing a single opinion, appellant Weinberger Divorce & Family Law Group LLC (the firm), challenges the denial of its motions to enforce the terms of its retainer agreement (RA) to obtain a judgment against its former clients for unpaid fees, or alternatively, to compel the former clients to submit to binding arbitration to resolve the parties' fee disputes. We affirm.

There were detailed retainer agreements in each matter

Once a fee dispute arose in each of the ten cases before us, the firm mailed the client a pre-action notice (PAN) via regular and certified mail pursuant to Rule 1:20A-6. The PAN stated that the client owed the firm legal fees and that the firm would "place [the] account into suit" unless the client complied with the RA and paid the "total outstanding balance."

The notice advised each former client of the Bar's fee arbitration services; none opted to pursue that option.

None of the ten clients requested fee arbitration with the District Fee Arbitration Committee. Consequently, in lieu of filing a complaint, the firm filed motions to enforce the RAs in the underlying matrimonial matters and sought entry of a judgment for the unpaid fees. Alternatively, the firm sought an order requiring it and the client "to attend binding arbitration governed by the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:24-1 et. seq., with an Arbitrator to be selected by the [c]ourt from the listed options provided by [the firm] respecting the parties' fee dispute, in accordance with paragraph 17 of the" RAs. The firm also sought an award of counsel fees.

The facts of each case and the trial court actions are set out at length.

A recent decision does not impact the analysis

when determining the enforceability of the arbitration provisions contained in the firm's RA, the ordinary contract principles applicable to arbitration provisions in consumer and employment contracts apply, and the heightened Delaney standard does not.

But the fees must be reasonable

Here, we are satisfied the firm's certifications in support of its motions did not adequately address the factors under RPC 1.5(a). For example, the firm included one paragraph in each certification that generally explained the nature of the work performed and, in some cases, noted the results obtained, e.g., a final judgment of divorce. The certifications did not inform the court of the outcome of every motion filed. Moreover, the certifications did not address the fee customarily charged in the locality for similar legal services or offer any information regarding the experience, reputation and ability of the lawyer or lawyers who performed the services.

And as to compelled arbitration

Similarly, we cannot conclude the judges erred in denying the firm the alternate relief it requested in its motions, i.e., to enforce the binding arbitration provision in the firm's RA.

...the plain language of Rule 1:20A-6 makes clear that it is the client who has the right to initiate fee arbitration proceedings conducted under Rule 1:20A. Stated differently, "[w]hether or not a fee dispute will be arbitrated" pursuant to Rule 1:20A "is a matter within the exclusive control of the client" and "[t]he lawyer may not unilaterally invoke the binding arbitration technique of this rule." Pressler & Verniero, cmt. 1 on R. 1:20A-6. Therefore, the language in Paragraph Seventeen of the firm's RA, mandating that its clients initiate fee arbitration pursuant to Rule 1:20A-6, is contrary to the Rule itself, and is unenforceable.

The provision of the RA that the law firm sought to enforce was confusing and contradictory

Given the confusing, contradictory and improper language included in Paragraph Seventeen, we are convinced the judges did not err in declining to compel the firm's former clients to submit to binding arbitration. We hasten to add, however, that although Paragraph Seventeen of the RA is unenforceable, the balance of the RA is not rendered a nullity. Thus, striking Paragraph Seventeen's binding arbitration provision does not "defeat[] the primary purpose of the contract," Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 33 (1992), i.e., the firm's provision of legal representation to the client in exchange for payment of reasonable fees and costs.

(Mike Frisch)

A Marijuana-Related Disbarment

The Oklahoma Supreme Court has disbarred an attorney for misconduct in the representation of clients in two matters.

The clients in each matter had paid a $5,000 retainer for assistance in setting up medical marijuana businesses. Each client did not receive the services, sought a refund and complained to the State Bar.

There was no response

Respondent's failure to participate in the disciplinary proceedings to any extent has left us without any evidence to consider in mitigation. Respondent is not presently in good standing with the Oklahoma Bar Association. His license is currently suspended for failure to pay dues and failure to comply with the rules for Mandatory Continuing Legal Education. Furthermore, by failing to cooperate with these disciplinary proceedings, Respondent has shown a flagrant disregard for his obligations as an attorney and disrespect for his clients and the Court. His actions demonstrate a clear indifference as to whether he maintains his ability to practice law in Oklahoma and reflect his inability to do so in a manner consistent with the standards of the Bar...

Kane, V.C.J., with whom Darby, C.J., and Kauger, J., join, concurring in part and dissenting in part:

I would follow the recommendation of the Bar Association and suspend Respondent's license for two years and one day.

(Mike Frisch)

Almost Went The Distance

The New Jersey Appellate Division dealt with a divorce involving parties that had ended a 67-year marriage, finding "no merit" to the husband's appeal contentions but remanding on the wife's attorneys fees.

After all that time, the marriage foundered on irreconcilable differences

The judge found that Sylvia sustained her burden of demonstrating irreconcilable differences without a reasonable prospect of reconciliation. The judge rejected David's argument that a reasonable prospect of reconciliation was demonstrated by evidence that Sylvia assisted David with medical care (before being enjoined from doing so), that the parties attended social gatherings together, that they made joint charitable donations, and that they continued to reside in the same household and, until June 2020, slept in the same bed.

Background

The parties were married in 1955. Sylvia is now in her mid-eighties, and David is over ninety. They have four children: Ellen, Nancy, Douglas, and Jane, who were born in 1956, 1958, 1960, and 1964, respectively. The parties became extremely wealthy during their lengthy marriage, primarily through David's efforts as a real estate developer; Sylvia never worked outside the home. The parties' son Douglas works with David in his various businesses; the parties’ three daughters did not.

Sylvia alleged that the parties' marital assets – exceeding $130 million in value – were controlled solely by David, providing as an example, that their West Orange home is titled in David's name. Sylvia, however, now has sole control over approximately $25 million in assets, including $14 million formerly held by the Sylvia Steiner Trust, which was transferred to her alone by agreement after commencement of this action.

In June 2018, Sylvia filed her complaint seeking a divorce from David. Over a year later, she moved to bifurcate the issues so that the court might first address whether there were grounds for divorce, which David disputed, before tackling their equitable distribution issues. On November 22, 2019, the Family Part's presiding judge granted the motion, and we soon after denied David's motion for leave to appeal that order.

The trial judge denied the parties' summary judgment cross-motions, which addressed whether there were grounds for divorce. Over the course of four nonconsecutive trial days starting in August and ending in December 2020, the judge heard testimony and, on January 19, 2021, rendered a written opinion and entered a judgment of divorce. Nine days later, the judge certified the judgment as a final appealable order, and David filed this appeal.

The court

We find no merit in David's arguments, except we will vacate the counsel fee award and remand for further proceedings about Sylvia's entitlement to fees from David.

(Mike Frisch)