Legal Profession Blog

Wisconsin Revokes Convicted Attorney's License

The Wisconsin Supreme Court has revoked the license of a convicted attorney

The federal indictment alleged that from March 2007 until March 2011, Attorney Sweeney devised a scheme to defraud three limited liability companies in which he held a member's ownership interest. Attorney Sweeney approached the co-members of the companies and proposed that the companies loan $105,000 to $115,000 to a friend of Attorney Sweeney. The loan was purportedly secured by a home mortgage. Attorney Sweeney did not loan the money to his friend, but instead converted the funds to his own use.

The indictment alleged that Attorney Sweeney drew checks totaling approximately $420,000 on the companies' checking accounts. When asked for the original promissory note, Attorney Sweeney provided a false document bearing the forged signature of his friend. The indictment also alleged that on February 14, 2013, Sweeney made a false declaration in a bankruptcy matter when he submitted a sworn "List of Creditors" that falsely listed the embezzled funds as "loans to debtor" in an effort to obtain a discharge in bankruptcy of his obligation to repay the funds he had embezzled. Finally, the indictment alleged that in March 2011, Attorney Sweeney committed identity theft during and in relation to the alleged scheme to defraud.

He pleaded guilty to the bankruptcy matter and stipulated to the misconduct

Based upon our review of the record, we accept the referee's findings and conclusions of law in this matter and agree that Attorney Sweeney committed the five counts of professional misconduct, as alleged. We determine that the seriousness of Attorney Sweeney's misconduct demonstrates that his law license must be revoked to protect the public, courts, and legal system from the repetition of the misconduct; to impress upon Attorney Sweeney the seriousness of his misconduct; and to deter other attorneys from engaging in similar misconduct. We further accept the referee's recommendation that we order Attorney Sweeney to comply with the restitution order imposed on him in the federal court in the amount of $481,970, and we impose the full costs of this disciplinary proceeding on Attorney Sweeney.

(Mike Frisch)

The Tickfaw Area

The Louisiana Supreme Court has ordered judicial disqualification

IT IS ORDERED, ADJUDGED AND DECREED that Justice of the Peace Terri M. Crosby, Ward 6, Tangipahoa Parish, State of Louisiana, be and she hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const. art. V, § 25(C) and Supreme Court Rule XXIII, § 27. This order shall be effective immediately.

WBRZ 2 reported last December

 A Tangipahoa Parish justice of the peace was indicted this week on charges related to allegations she and another woman tried to illegally block an elderly woman's family from their inheritance upon the woman's death. 

In all, Terri Crosby, the justice of the peace in the Tickfaw area, was indicted on four different charges. When reached by phone Wednesday, Crosby refused to discuss the charges or the situation surrounding the allegations.

Crosby maintained she was never questioned and hasn’t had “so much as a speeding ticket” before the grand jury in Tangipahoa Parish indicted her Tuesday.

The WBRZ Investigative Unit learned Cosby faces a felony theft over $25,000 charge, cruelty to the infirmed, exploitation of the infirmed and one count of money laundering.

Crosby refused to elaborate when reached on the phone and referenced a prepared statement she gave to the Hammond newspaper: "This indictment has absolutely nothing— zero — to do with my duties as an elected justice of the peace. I am completely innocent of any wrongdoing.”

In the statement, Crosby said the criminal indictment comes after a civil issue, but she refused to explain herself.

She continued to complain about not being given an opportunity to be questioned ahead of a criminal indictment.

“I have never ever been asked one question by any law enforcement agency until the grand jury was set,” she wrote. “This has taken a toll on me and my family, especially this time of year.”

But, the state attorney general said the allegations are especially concerning.  Authorities said Crosby transferred property and finances of an 87-year-old woman with dementia into her control to claim ownership when the woman died.  Doing so would deny the victim's family the inheritance, a spokesperson for Louisiana Attorney Jeff Landry told WBRZ. 

The attorney general's office became involved when the district attorney in Tangipahoa Parish recused himself.

"...Elder fraud is an unlawful and immoral act and our office is committed to finding those who take advantage of our citizens," Landry said in a statement released to WBRZ.

Crosby’s attorney did not answer calls Wednesday.

Regina Raiford was also indicted in the case, the attorney general's office revealed. 

(Mike Frisch)

Cause Of Death

The Wyoming Supreme Court explains the historical role of a coroner in holding that it lacked subject matter jurisdiction over a report finding cause of death

Coroners originated in England around 1194. Id. at 280. They were, at that time, officers of the crown with multifaceted roles. Id. These roles encompassed the responsibilities of a modern-day sheriff, coroner, and judge. Id. From the beginning, the coroner’s most significant duty was the coroner’s inquest. Id. When notified of a dead body, the coroner would call a jury whose duty was to inquire into the death and determine the manner and cause of death. Id.

American colonists brought the institution of the coroner to the United States and coroner’s inquests were common through the nineteenth century. Id. at 281. They have, however, become relatively obscure in recent history. Id. In many states, the coroner has been replaced by a medical examiner or by a combination medical examiner-coroner. Id. at 282-83. Only eleven states, including Wyoming, still have a coroner-only process.

There were those who did not like the conclusions

The proceeding resulted in a Coroner’s Inquest Verdict of “Death due to Aspiration Secondary to Alcohol and 5-methoxy-DMT Ingestion.” The verdict listed contributing factors as failure to timely call 911 and failure to protect his head and airway when dragging Mr. Birkholz down the stairs. The Coroner’s Inquest Verdict was filed in the District Court of Teton County, Ninth Judicial District Agency No. 1701P-2322. Paul Cassidy and Dr. Hayse filed a W.R.C.P. Rule 60 motion to set aside the inquest verdict. The district court clerk opened a new civil action (Civil Action No. 17667) and filed the motion in that action...

A coroner’s inquest is an executive matter conducted outside of the courts. The Coroner’s Inquest Verdict is not a final order and has no probative effect. The filing of the Coroner’s Inquest Verdict and other associated documents with the district court is ministerial and does not confer jurisdiction on the district court. The district court properly dismissed Appellants’ W.R.C.P. Rule 60(b) motion for lack of subject matter jurisdiction. We affirm.

Buckroot had a detailed story of the inquest

The coroner’s investigation into the death of Anthony “Tony” Birkholz reconvened Wednesday afternoon with two scheduled witnesses—Penelope Salcido, who shared dinner with the deceased, and Dr. Bruce Hayse, at whose home Birkholz died in.

Birkholz died January 17 after a night out drinking with friends. A Bonneville County, Idaho coroner listed the cause of death as “natural” after Birkholz was transferred to the Idaho Regional Medical Center the same night he passed out at Hayse’s place and never woke. About a week after Birkholz died, county coroner Dr. Brent Blue became aware of additional circumstances surrounding the death—in particular, the possible use of a powerful hallucinogen 5-MeO-DMT, a chemically-altered Schedule 1 controlled substance modelled after the naturally-occurring neurotransmitter Dimethyltryptamine (DMT).

By the time Blue looked into things, it was all but too late. Birkholz’s body had been cremated and blood sample vials taken at the Idaho hospital had been disposed of. All but one. Blue had it tested. It came back positive for a high blood-alcohol content (.182), THC (the primary constituent in marijuana), and traces of cocaine.

Toxicology did not show any evidence of 5-DMT but Blue noted, after conferring with a national expert, that the drug is fast-acting (it produces a 45- to 60-minute high) and fast-dissipating (it’s gone form the body within 90-120 minutes of ingestion). Slightly different molecular strains also may not show up on a test looking for a specific compound, Blue added.

Salcido testifies

Salcido took the stand Wednesday—her testimony crucial in that she was likely the only sober one of foursome that had cocktails at The Wort and then more drinks at dinner at the Amangani. Salcido said she was on her fourth date with Noah Evans when he invited her to dinner with Birkholz and his friend Casey Hardison.

Salcido said Hardison drove Birkholz to Hayse’s house after the doctor suggested they stay the night rather than drive the pass in their condition. “They were pretty intoxicated,” Salcido, who was following with Evans, said. “At one point they went sideways on the road.”

Once back at Hayse’s the group started talking about hallucinogens and proposed doing some. Salcido said she thought that was a bad idea and so did Hayse, who was sitting at the table with them. Hayse would later deny this. The drug 5-DMT was produced and five lines of powder were cut on the table.

When asked where the drug came from, Salcido said she had no idea. ”Either Tony or Casey had it,” she said.

The group ingested the drug while Salcido said she began cleaning. “Dr. Hayse’s house is very dirty. There were mice running around. I thought I would clean up a little,” she said.

When she checked back in with the three men they were incoherent, mumbling to themselves, and moaning. They had all vomited some. Still, Salcido wasn’t too worried. She had read on the Internet they were typical reactions to be expected in the “experience.” She had also learned that the consumption of alcohol and meat were specifically discouraged when taking 5-DMT as the they could contribute to choking and blocked airways.

“But Tony had slipped off his chair and wiggled underneath it. He wasn’t moving at all,” Salcido said.

Hayse arrived and Salcido recalls him calling 911 at some point and instructing her to do CPR. She said she think she began chest compressions. She was too much in panic or shock to remember. She and Hayse attempted to move Birkholz down the stairs to the first floor. He was too heavy. They got a roommate of Hayse’s to help but still they could only get him to the top landing. Hayse pulled Birkholz down a some stairs by his feet as hit head bounced at each step, recalled Salcido.

When Salcido went to check on Evans, she found him face down in a “lot of vomit.” She began crying at this point in panic. Hayse roommate then announced Birkholz had sat up by himself. Hayse went to check his pulse and exclaimed, “Oh my God,” and started doing CPR on him, according to Salcido. He then asked Salcido to continue and called 911.

Salcido said she has no idea how long she did chest compressions on Birkholz but she said it felt like a very long time. She didn’t quit until she felt a paramedic’s hand on her shoulder.

Blue asked about the appearance of three tomatoes or tomato juice on the table. Salcido said it was just there at some point after she went to “check the boys and put blankets on them.”

Doctors Brent Blue (coroner) and Bruce Hayse have a disagreement at the federal court house.

911 tape

The original call came in to dispatch from Hayse’s residential landline at 12:36 am. After a 911 operator asks, “What is the nature of your emergency,” the line goes dead. A second call is placed where Hayse identifies himself and says he has a “drunk guy passed out at my place.”

“Is he breathing?” dispatch asks.

“I don’t think so,” Hayse responds.

Dispatch asks Hayse to check. The line goes dead again. The 911 operator calls Hayse back but gets a recording. Hayse finally calls 911 again and the operator asks him to use his cell phone next time.

“He doesn’t seem to be breathing,” Hayse tells the operator.

“Let me walk you through CPR,” the operator says.

The 911 recording lasts some 12 minutes while the efforts of chest compressions can be heard in the background as well as a woman’s sobbing—presumably Salcido.

“How we doing?” the operator asks.

No reply. Then a voice is heard, “No shock required.”

It’s the paramedic’s defibrillator unit. They have arrived at 12:48 am.

EMS spent an hour there trying to get an airway tube into Birkholz and stabilize him. He was transported to St. John’s at 1:48 am.

Hayse’s account

Dr. Bruce Hayse (SJMC)

A bench warrant was issued for Dr. Hayse after he initially appeared but refused to testify, saying he had patients waiting on him and was not given enough notice to clear his schedule. Hayse then left and was found later to be at the office of an attorney. He eventually arrived to be sworn in at 4:21 pm.

Hayse said he had agreed to go skiing with Hardison on January 17 but Hardison cancelled and instead invited the doctor to dinner at Amangani. When Hayse arrived around 9 pm, he saw the foursome “drinking very heavily” and decided to leave but not before suggesting they sleep it off at his place. He gave them directions and then headed to his office.

Once back home, Hayse greeted the four and said he was going to make up some beds for the night. When he returned, he said he saw all the guys pretty much unconscious…out of it. He checked their eyes. Finding no “pin-point” pupils, Hayse was satisfied it wasn’t a heroin overdose.

He left again and returned after a few minutes of making up beds. This time Birkholz was laying on the floor facedown. “I didn’t like the way he looked,” Hayse remembered for the jury. “He had a pulse but was not breathing very well.”

Hayse decided to take Birkholz to the hospital himself, believing it would be quicker than calling an ambulance. He struggled to get Birkholz down the stairs even with the help of a roommate. They made it to the first landing to rest. It was then Birkholz sat up, gasped, and turned immediately blue.

“That’s when I called 911 and began CPR. It seemed ages for them to get there. I assumed he aspirated and tried putting my fingers in his mouth and to clear his airway that way but couldn’t do it.”

“Are you still claiming a physician-patient relationship with him?” Blue asked

“Yes. I did have him as a patient of mine but did not know him very well. Obviously, there was a lot more to him that I did not know about.”

“You told law enforcement you did a Heimlich maneuver on him?” Blue said.

“Tried to, yeah,” Hayse responded.

“Why did you do that?”

“There was a possibility it would help to get him start breathing again. I tried everything I could,” Hayse answered.

“Why didn’t you call 911 earlier before moving him down the stairs?” inquired Blue.

“I was trying to get him to hospital myself because it’s two minutes to the hospital. 911 means loading him up, getting the ambulance up the driveway when there was a number of vehicles in it. Even getting up that driveway is pretty tough in the wintertime,” Hayse explained. “In retrospect, if I had known he was dying then, I would have called 911. But I don’t think in the end it would have made any difference. I assume I didn’t do any damage taking him downstairs. I suppose that’s a possibility.”

Hayse was further questioned as to whether he saw any drugs, and advised the group they shouldn’t be taking them. Hayse said he never saw any drugs or heard about talk of drugs. He did give Casey a standard general “rules of conduct” for staying at his place, which included the fact that there was no drugs or alcohol in the house and no one should be doing that.

“Is there any reason why you didn’t tell EMS that there might have been drugs onboard?” Blue asked.

“I didn’t know there were drugs onboard,” Hayse responded, believing everyone was just very drunk and maybe high on weed. In fact, he told a responding police officer everyone there seemed just pleasantly goofy. “It turned out that he had four different drugs in his system but he didn’t tell me that. There would be no reason for him to tell me that.”

Blue then turned to the moving of Birkholz down the stairs by Hayse and another mam staying at Hayse’s house.

“Did his head go thud, thud, thud down the steps?” Blue asked.

“No,” Hayse answered. “When he fell over on the landing there his head hit the wall.”

Hayse also testified that he did not go to the hospital after Birkholz was transported. He stayed with the remaining three guests at his house.

“I didn’t trust them. I had no idea what was going on. I wasn’t going to let them leave after that so I couldn’t really leave the house. I stayed up all night at the kitchen table and worked and watched over them,” Hayse said.

Hayse then further fleshed out his relationship with Hardison and Birkholz for the jury, whose members are allowed to ask direct questions of witnesses. Hardison and Birkholz were patients of his but he didn’t know them very well. Birkholz, in particular, he had not seen in a couple of years and did not recognize him all night until he overheard Hardison refer to the victim by last name during police questioning. That’s when it clicked with Hayse that Birkholz was the same man as his former patient.

You didn’t know it was Tony [Birkholz] at the Amangani?” a juror asked.

“I honestly didn’t. He had gained a lot of weight. He looked very puffy and very unhealthy,” Hayse explained. “He used to be a fit and vigorous sort of guy. Tony was a really energetic and on-top-of-it kind of guy, and this guy at the Amangani was a sort of obese, puffy guy.”

“Had all three in the kitchen (Birkholz, Hardison, and Evans) taken drugs or just two of them?” asked juror Diane Hazen.

“I don’t honestly know. I assumed they had,” Hayse said.

“Couldn’t you tell by how they were acting?” Hazen followed up.

“They were all somewhat goofy but they were all very drunk, too. It is hard to separate out being drunk from being on drugs. I’m not that skilled,” Hayse said. “If I see a young person who’s a heavy drinker in this town I assume they are also smoking pot. That’s almost automatic.”

Blue had repeatedly asked each witness about the presence of tomatoes or tomato sauce or juice without explaining the significance. It was again brought up to Hayse by a juror. Hayse admitted to hearing a lot of questioning about tomato juice or paste after the fact but he wasn’t sure why and didn’t know anything about it.

“The police asked me about tomato juice and I said I’ve never bought tomato juice in my life and I don’t know what I would use it for,” he said. “I really don’t know the significance of it. Maybe it has something to do with the drugs.”

Evans did not remember seeing any tomatoes or tomato juice that night. Salcido recalled three tomatoes suddenly appearing on the kitchen table at some point after she went to check on the condition of Hardison and Evans.

Hayse’s 34-minute testimony wrapped up with questions as to where and why his testimony conflicted with other witnesses. In particular, Blue wanted to know why he thought Salcido was too drunk to help with CPR or move Birkholz, and why there were claims that Hayse provided tomatoes and saw five lines of drugs spread on the kitchen table.

“Dr. Hayse, what would you say to the other witnesses that directly contradict your account of things?”

“I don’t know. Like the tomato thing where [I was seen setting out] three tomatoes on the table,” has pondered. “I don’t know what vision or what, uh, sort of idea was going on in their mind. I don’t know anything about the ability of whatever drug they did [to impair them]”

Jury comes back

County coroner Dr. Brent Blue

Blue then gave instructions to the three-person jury he hand-picked. They were Denny Emory, Wayne Grim, and Diane Hazen. Blue reminded the jury the inquest was not a civil or criminal investigation. The process does not assign blame but can assign accountability. Blue said he was looking at the cause and manner of death, with manner consisting of five possible outcomes­­—natural, accidental, suicide, homicide, cannot be determined.

After a half-hour of deliberation, the verdict of the jury in the case of Anthony Birkholz was death due to aspiration, second to alcohol and 5-DMT as contributing factors. There was also a “failure by witness to call 911 in a timely fashion,” and a “failure to protect head and airway in the dragging of Birkholz down stairs.”

The manner of death was ruled accidental.

The results of the inquiry will be filed in Teton County District Court. The findings of a Coroner’s Inquiry rarely result in a criminal case being opened but Blue said county attorney Keith Gingery and prosecutor Clark Allen will look the proceedings record over.

(Mike Frisch)

Filed Too Late

The Massachusetts Supreme Judicial Court has affirmed the dismissal of a suit for legal fees on statute of limitations grounds. 

An attorney had left the plaintiff law firm and taken the case with him

Grace, then an employee of HLO, performed most, if not all, of the legal work on the case, but neither he nor HLO recorded Grace's hours contemporaneously.

HLO terminated Grace on June 25, 2010, while Hicks's medical malpractice case was pending. Hicks, notified of Grace's departure, elected to have Grace continue to represent
him in the medical malpractice action. Grace and HLO were notified of Hicks's election in writing on July 1, 2010. On July 2, HLO transferred Hicks's file to Grace at his new firm, Denner Pellegrino, LLP (Pellegrino), and shortly thereafter Hicks entered into a second contingent fee agreement regarding his medical malpractice action with Pellegrino.

The retainer agreement with HLO allowed an hourly fee if discharged.

The pertinent discharge provision unmistakably provides that if the client discharges HLO, then the client will be liable to HLO for work performed by HLO at a prescribed rate. Therefore, whether we apply the usual rule restated in Jenney, 402 Mass. at 154, or confine our analysis to the plain language of HLO's fee agreement makes no meaningful difference -- HLO's cause of action against Hicks for legal services accrued no later than July 1, 2010, the date that HLO was notified that Hicks had elected to terminate HLO's services.

HLO's argument to extend the statute because Grace had not provided his hours failed. 

Grace's refusal to cooperate with HLO has no bearing on when HLO's cause of action for legal fees against [client] Hicks accrued.

...If HLO had conditioned its entitlement to fees on Hicks's recovery in the underlying medical malpractice suit, then Halstrom's argument that the statute of limitations began to run when Hicks received his settlement check might be persuasive; but HLO did not do that. It is to the terms of that provision that HLO is now bound.

In short, in accordance G. L. c. 260, § 2, Halstrom had until July 1, 2016, to bring his contract action against Hicks. That Halstrom missed the deadline "by a few days" is inconsequential -- his claim is time barred nevertheless.

Equitable claims also failed. (Mike Frisch)

Stephen King And The Necessities Of Life

Panel E of the Maine Board of Bar Overseers found no misconduct based on charges brought against an attorney who had advised a divorce client to move funds into a sole account

The heart of the Board’s complaint is that Attorney Libby counseled his client to violate the Preliminary Injunction and thus the law by having her withdraw funds from a joint bank account without permission from the court or opposing counsel so that she could pay his legal fees.

Charges dismissed

There is no dispute that the Preliminary Injunction applied to both parties in the divorce. Nor is there disagreement that Ms. Deutsch transferred marital funds from a joint account to her own personal account. The Board points out that the Stipulated Report of Findings and Order of Panel E of the Grievance Commission in Board v. Van Dyke, GCF-14-476, found that an attorney failed to properly counsel a divorce client, who transferred funds from the marital estate to herself and a third party without permission, which a court determined was a violation of the Preliminary Injunction. That matter is distinguishable from the present case because Ms. Deutsch did not transfer funds to herself and a third party, potentially putting the funds outside of the control of the divorce court, nor is there evidence that she failed to limit her spending to the necessities of life, nor did she lie in her discovery responses or fail to identify financial accounts. Similarly, the Board cites King v. King, 2013 ME 56, ¶6, ¶9, 66 A.3d 593, which the Panel finds is distinguishable from the present case because the transfer of marital assets was to a third party. In this case, Attorney Libby specifically advised his client, who was financially insecure because her husband controlled most of the finances and had stopped making payments to her, that she could transfer funds so that she could pay her legal fees as called for in a written contract.

Assuming without deciding that the transfer from the joint savings account to the sole personal checking account was a "transfer" for purposes of the Preliminary Injunction, the controlling question is whether this transfer was for the payment of the necessities of life, which is not defined in the statute and the case law. Hence, the Panel had to draw on common sense principles, which dictate that certain types of expenditures qualify as "necessities of life" such as food, shelter, and medical care. Even these categories, however, are not clear-cut because the statute does not indicate how much money one can spend on such a necessity. Depending on the circumstances of the party, a necessity of life may or may not involve eating a meal at a fine dining establishment such as Fore Street Restaurant in Portland’s Old Port, staying at boutique lodging such as the Black Point Inn at Prouts Neck in Scarborough, having elective medical procedure such as LASIK eye surgery as opposed to just buying prescription glasses at the Maine Mall, or visiting a child in Hawaii as Dr. Deutsch actually did during the pendency of the divorce. A necessity of life for Stephen King, the famous author of Carrie and other horror stories who lives in Bangor, might be a Waterman fountain pen hand assembled in France. Arguably, a necessity of life for Joan Benoit Samuelson, the first female gold medalist in the marathon event at the 1984 Summer Los Angeles Olympics who resides in Freeport, might be custom running shoes made by Nike. A person temporarily residing in the Oxford Street Shelter in Portland might need a pay-as-you-go cell phone plan from T-Mobile to survive and find a job.

Perhaps the legislature was wise not to define the term "necessities of life", because it would thwart the equitable nature of divorce proceedings and the ability of the court to balance those equities. The evidence shows that Dr. Deutsch, who had access to unrestricted funds for his legal fees, stopped making deposits to the bank account that Ms. Deutsch used to pay her legal fees and other living expenses. Expert Witness Kristin Gustafson, Esq., who has exclusively been practicing family law since 1992 and was a former member of the legislatively-created Maine Family Law Advisory Commission, opined at the hearing that Ms. Deutsch’s transfer did not violate the preliminary injunction

[b]ecause it was not a transfer that took the asset outside the jurisdiction of the marital estate. It was a transfer from a joint account of the marriage to an individual account of the marriage that would be fully accounted for in the ultimate distribution, much as Mr. Deutsch’s accounts that he was spending money out of if there was any issue about that there — that would have been fully accounted for.

In the Board’s closing argument, it conceded the following: "To the extent that the parties’ attorney’s fees may be considered as ’necessities of life’ in this case, the marital injunction would allow for their ’purchase’".

In the Deutsch divorce case, the court never reached the decision of whether or not Ms. Deutsch’s legal fees were a necessity of life, which places the onus on this Panel to make a determination based on the evidence presented by the parties. The Panel finds that Ms. Deutsch’s legal fees were a necessity of life for her. Ms. Deutsch was a real estate agent and not an attorney experienced with domestic relations law. Given the complexities of family law involving a $2 million dollar plus marital estate, Ms. Deutsch needed an experienced attorney, especially because her husband initially retained Robert Mittel, Esq., a highly respected family law attorney, to represent him. There is an old saying: you do not go to a potential gunfight without a gun.

Melvyn Zarr, a legendary professor of civil procedure at the University of Maine School of Law, taught generations of students the acronym LLDP, i.e., Law is a Lawyer Driven Process, meaning that it is up to the client's attorney to shape the law procedurally into something useful much as a potter takes clay and turns it into a vase. See Melvyn Zarr, Recollections of My Time in the Civil Rights Movement, 61 Me. L. Rev. 366, 369 (2009). In this case, it was Attorney Libby’s ethical duty to diligently solve his client’s very real quandary of having her access to funds throttled. See M.R. Prof. Conduct 1.7 cmt. (1) ("A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.").

Attorney Libby decided not to wait for the court to act upon his Motion Pending because he had a procedural tool, which allowed him to advise his client that she could transfer funds for the payment of the necessities of life. Professor Zarr lectured his students, including many future jurists, that a trial attorney’s job is to functionally define the law, i.e., in the present case, make the law favorably bend towards the client, of course, without stepping over any ethical lines. Expert witness Kristin Gustafson confirmed that waiting for the court to act would was not practical because the "the hearing time is so limited for these magistrates and judges who are doing back to back to back dealing with things a lot more important than people that have plenty of money, that it is very difficult to get any kind of hearing time to get this kind of — a request for attorney’s fees heard." In other words, in the real world, hearing dates set forth in court orders are not carved in Deer Isle-quarried granite, which is understandable given the court system’s limited budgetary resources. Under the circumstances, the facts show that the purpose of Ms. Deutsch’s transfer of funds from a joint account to her own account was to pay for her necessities of life, which did not run afoul of the Preliminary Injunction.

The Board further argued that Attorney Libby did not have the right to receive his fees in accordance with the terms of his fee agreement until the end of the divorce case. The Panel disagrees with this theory and finds it to violate the heart of Anglo-American contract law, i.e., I perform a service for you and in turn you agree to pay me in a timely fashion. Furthermore, while Rule 1.5 of the Maine Rules of Professional Conduct makes it unethical for an attorney to collect an unreasonable fee, it is silent about demanding prompt payment from a client. Practically speaking, Attorney Libby incurred his own costs such as support staff, not to mention more mundane ones such as electricity and internet to provide legal services to Ms. Deutsch. Attorney Libby would violate state and federal labor law by failing to pay his support staff. See, e.g., 26 M.R.S. § 621-A., regarding timely and full payment of wages. The legal industry would break down if the payment of a client’s legal fees was treated as something that could be deferred to an uncertain future date in spite of contractual terms.

In general, people and businesses have the right to be paid for their services or not provide them. Attorney Libby could have filed a motion with the court to withdraw from the case if he was not timely paid. See M.R. Prof. Conduct 1.16(b)(6), which allows an attorney to withdraw if the representation causes an unreasonable financial burden on the attorney. This would have forced Ms. Deutsch to hire new counsel, costing her even more money to bring another attorney up to speed. It is not for this Panel to second-guess Ms. Deutsch’s decision to hire Attorney Libby for her divorce and enter into a service for fee agreement with him. The Panel determined that Attorney Libby has no conflict by requesting that he be timely paid; if that were the case, most members of the bar would have an inherent conflict with their clients by demanding that they promptly pay their bills.

The Board also argued in closing that Attorney Libby improperly charged Ms. Deutsch for work done to defend himself against the bar complaint. See Formal Ethics Opinion #139, Charging Client for Defending Attorney Before Board of Overseers of the Bar issued June 1, 1994, which concluded that the charging of such fees is per se unreasonable. Attorney Libby testified billing his client for this work was an oversight and that he subsequently wrote off these fees. There appears to be a dispute about the timing of the write-off. The Panel did not consider this alleged violation of Rule 1.5 of the Maine Rules of Professional Conduct because the Board failed to put Attorney Libby on notice of any such violation in its Formal Disciplinary Charges Petition dated August 20, 2018. See M. Bar R. 13(e) detailing the process of a Formal Charges Hearing ("If a matter is to be resolved by a formal proceeding, Bar Counsel shall prepare formal charges in writing that give fair and adequate notice of the nature of the alleged misconduct.").

(Mike Frisch)

A Message From The Owner

The Arkansas Committee on Professional Conduct Panel B has issued two orders of discipline sanctioning an attorney for criminal conduct.

The attorney was suspended for 36 months for two class D felony drug possession convictions. 

She had been stopped for speeding and there was another attorney in the car. The passenger was on probation with a "search waiver on file." A canine search revealed illegal drugs.

On June 24, 2017, police were called to a storage facility. The attorney and another were found asleep inside the facility. Drugs were found in plain sight when they were removed.

A twelve month suspension was imposed for receiving stolen property. 

A residential burglary took place on February 20, 2017 in the Early home. Among the items stolen were some jewelry and an iPad. 

There was no evidence of the attorney's involvement in the burglary but, on March 6, 2017, she sold a stolen ring for the sum of $2.00. 

She also attempted to sell the iPad to the same buyer for $125.00. 

When the iPad was powered up, it displayed a message,

  "you are fucked"

The buyer contacted the victim and the attorney was arrested. (Mike Frisch)

Warsaw Pact

A story in The Indiana Lawyer

A Warsaw attorney with nearly 50 years’ experience has resigned from the Indiana bar after facing an investigation by the Indiana Supreme Court Disciplinary Commission.

In a Thursday order, the Indiana Supreme Court accepted the resignation of Larry D. Beeson, effective immediately. Beeson tendered his resignation pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that there is presently pending an investigation into allegations of misconduct against which Beeson could not have successfully defended himself. The order does not disclose the nature of the disciplinary investigation.

In 2013, Beeson was publicly reprimanded for notarizing the signature on a guardianship consent form even though he did not witness the signing. Beeson violated Ind. Professional Conduct Rules 8.4(c) and 8.4 (d).

As a result of his resignation, the investigation into Beeson’s alleged misconduct will be dismissed. Beeson, who was admitted to practice in 1970, will be ineligible to petition for reinstatement to the Indiana bar for five years, and if he petitions for reinstatement, his alleged misconduct may be addressed. However, his reinstatement is discretionary and will require evidence of his remorse, rehabilitation and fitness to practice law.

The costs of the proceedings will be assessed against him. 

(Mike Frisch)

Ring Of Disbarment

An Arizona Hearing Panel has ordered the disbarment of an attorney in a heavily-redacted report.

AZ Central reported

High-profile lawyer Scott Maasen tooled around in a Maserati when he wasn't buying million-dollar homes, leasing a beachfront condo or swearing to a federal judge he couldn't pay his bills, authorities said.

But it was a $90,000 engagement ring that will land Maasen in a federal prison for 18 months beginning in January. 

The former Maricopa County prosecutor, who transformed himself into a Scottsdale-based criminal-defense attorney and DUI specialist, was sentenced in federal court Tuesday for concealing the ring when he filed for bankruptcy in 2009.

That was 18 months more than Maasen said he deserved when he petitioned the judge for probation and no jail time last week.

"The facts surrounding this case are but a small blip on the radar of Scott Maasen's life," Maasen's lawyer wrote in a motion that stressed his public service, his devotion to his daughters and even cribbed a line from Spider-Man comics.

"He (Maasen) knew that with great power comes even greater responsibility, and his prosecutorial reputation was one of honesty and fairness," his lawyer wrote. "It cannot be overlooked that Mr. Maasen spent years helping hundreds and possibly even thousands of clients who were often experiencing the very worst stretch of their lives."

Judge David Campbell instead gave Maasen about two months before he must surrender himself to the Bureau of Prisons on Jan. 11. The judge also sentenced Maasen to three years' probation upon his release. 

Maasen, who admitted to concealing the ring as part of a plea deal in April, faced up to five years in prison. 

Neither Maasen nor his attorney could be reached for comment Wednesday.

MORE: High-profile Scottsdale lawyer admits to fraud, hiding a $90K ring in bankruptcy

Maasen, his father and his girlfriend were indicted last year on multiple charges, including conspiracy and concealment. They were accused of disguising assets and of lying to the court about who owned them.

Investigators with the Internal Revenue Service outlined a series of complex financial transactions they say Maasen orchestrated with his father, David Maasen, and his girlfriend, Heather Holm, to shield purchases from the court and creditors.

Days before filing for bankruptcy in 2009, Maasen arranged to buy a $1.1 million home on Camelback Mountain, which he put in his father's name, according to the indictment.

Authorities also said Maasen:

• • Falsely told creditors meeting about his bankruptcy that he had no interest in any property other than a piece of vacant land.
  • Negotiated a $450,000 settlement on a $1.5 million Small Business Administration loan in 2012 that he had used to purchase a Scottsdale condominium for his law firm. 
  • Applied for a $725,000 mortgage loan with Holm for a $1.2 million home in Scottsdale's Silverleaf community at the same time he claimed he couldn't repay the SBA loan.
  • Transferred the Silverleaf house into his father's name, then helped Holm and his father on a $1.8 million refinancing loan for the home by serving as their attorney
  • Used funds from his law firm to lease a Maserati Quattroporte in David Maasen's name. 
  • Used his law firm's business account and Holm's checking account to make $25,000 in lease payments on a beachfront condo in La Jolla, California, without disclosing it to the court.
  • Concealed his ownership interest in an investment group.
  • Hid hundreds of thousands of dollars he received while acting as a broker on a property sale.

Maasen was initially charged with 12 counts ranging from making false statements to the SBA and concealment of assets in a bankruptcy to fraudulent transfer of property and conspiracy. 

In exchange for Maasen's guilty plea, federal authorities agreed to drop charges against his father and girlfriend. Maasen also has to repay $1.4 million to the SBA.

Maasen admitted using his father to purchase a $90,000 engagement ring for Holm in 2012 from a California jeweler. In court filings last week, Holm was described as Maasen's former fiancée.

"This was done so it looked like my dad was the owner of the engagement ring, which he was not," Maasen said in his plea agreement. "Shortly thereafter, I proposed to my fiancée with the engagement ring."

He and Holm later insured the ring on their homeowner's policy.

Maasen's lawyers said in last week's motion that he was motivated by love and beseeched the court to consider the ring and not the related allegations, which remain unproven.

"Make no mistake, while in bankruptcy, Mr. Maasen devised a way to propose to the woman he loved with a magnificent ring that was not reported in his bankruptcy proceedings," the lawyer wrote. "He does not minimize that conduct or seek to avoid criminal responsibility for it. He simply asks this Court to focus on what is known beyond a reasonable doubt."

An Arizona Supreme Court judge overseeing discipline of lawyers suspended Maasen last month from practicing law.

The judge, citing past disciplines and Maasen's guilty plea in the bankruptcy case, suspended Maasen for six months and a day. The extra day means Maasen will have to reapply for his law license and show that he has been rehabilitated if he wants to go back to being a lawyer.

Scott Maasen graduated from ASU in 1993 with a bachelor's degree in political science and served as student-body president in 1992-93. He received his law degree from California Western School of Law in San Diego.

The State Bar of Arizona shows Maasen has been disciplined in multiple cases. He has received admonitions, a reprimand and has been placed on probation three times. 

A 2016 case involved a mentally disabled minor accused of sex crimes, who "contacted several 13-15-year-old girls on Facebook and engaged in explicit sex talk with them," according to state Bar records. Maasen allowed his client to plead guilty and avoid jail time without taking any steps to determine if his client was mentally competent.

A judge later threw out the guilty plea and the conviction.

The state Bar put Maasen on probation, citing several aggravating circumstances, including: "prior disciplinary offenses, selfish motive, refusal to acknowledge wrongful nature of conduct, vulnerability of victim, substantial experience in the practice of law, and indifference to making restitution."

(Mike Frisch)

Inappropriate Physical Contact

A reprimand has been accepted by the Arizona Presiding Disciplinary Judge

In December 2017, Mr. Foley had an initial consultation with a client in a bankruptcy matter. An attorney-client relationship was established at the consultation and immediately after the consultation, Mr. Foley made inappropriate physical contact with the client. Telephonic conversations followed, and the attorney-client relationship was terminated before any services were performed and no fees were charged.

He must serve 18 months probation. (Mike Fr isch)

What's In A Nickname? A Reprimand

The Indiana Supreme Court has publicly reprimanded an attorney

JB and KW committed various crimes, including burglary of a home. JB was arrested first and told police of KW’s involvement. Respondent was appointed as JB’s public defender. JB told Respondent a co-defendant was involved and that JB wanted to serve as a witness for the prosecution. Respondent did not read the probable cause affidavit in JB’s case (which identified JB and KW as co-defendants) or otherwise seek to identify JB’s codefendant.

KW was arrested about two months later and was appointed a public defender. However, Respondent agreed to privately represent KW and accepted $1,450 as a partial retainer. Respondent instructed his paralegal to file an appearance and other documents on KW’s behalf, but the paralegal did not do so and Respondent failed to supervise his paralegal to ensure the various documents were filed. KW did not mention a co-defendant during his initial meeting with Respondent, and the probable cause affidavit in KW’s case identified JB only by a nickname.

Following a pretrial conference in KW’s case, Respondent was confronted with the fact he was representing both JB and KW as co-defendants. Upon learning this, Respondent immediately sought to withdraw his representation of both JB and KW, refunded the partial retainer that had been paid on KW’s behalf, and apologized for the confusion.

JB, represented by new counsel, and KW, represented by his public defender, both eventually pled guilty.

(Mike Frisch)

Docu Beware: The Perils Of Vacation

The Illinois Administrator has charged an attorney with dishonest billing to clients for unperformed work

 Between April 2017 and September 2017, Respondent worked at the Carden & Sax law firm ("firm") in Chicago as a salaried associate attorney. During her employment at the firm, Respondent prepared records of the time she expended on behalf of clients. Respondent’s records, which included a description of services Respondent claimed to have provided and the amount of time she recorded were combined with records prepared by the firm’s other attorneys or staff relating to the time they expended on the firm’s clients’ behalf which, when considered with the hourly charges for the individual worker’s services, were submitted to the firm’s partners to determine what fee was due the firm. The firm’s partners oversaw Respondent’s work on the assignments they gave her and her billing.

Between April 2017 and September 2017, Respondent entered her records of the time she expended into "Docuware" a document management system used inter alia, by the firm for its billing system. Respondent could review a record of her billing entries and knew that the firm’s partners would review those entries in determining what amounts to charge the firm’s clients.

Between April 2017 and September 2017, the firm’s partners assigned Respondent to analyze medical records and prepare written summaries or reports regarding her review of those records in connection with the representation of at least ten of the firm’s clients in nursing home defense cases. All of the firm’s clients required that the firm prepare and provide such written summaries to them, and the firm’s supervising attorneys were to review all written summaries and reports Respondent prepared before the firm sent the reports to its clients.

Between April 2017 and September 2017, the firm charged its clients $180 for each hour of Respondent’s time that was billed to the client as having been spent on the client’s behalf. Respondent knew of the hourly rate at which the firm billed her services.

Between April 2017 and September 2017, Respondent knew that the firm required that each entry in her records of time expended should contain detail regarding the type of work she performed, the time she spent doing that work, and what client matter related to the work performed...

Upon receipt of the bills, the clients paid the firm approximately, $3,942 based on the entries described...above.

Respondent knew or should have known that the firm’s clients would pay the firm for her purported work described...above.

Of interest is the manner of her unmasking

In or about September 2017, while Respondent was on a vacation, another attorney in the firm attempted to review the work product Respondent claimed to have created and for which clients had been billed. When she could not locate the work product, the firm’s supervising attorneys initiated a search for it and discovered that Respondent’s purported work product could not be located in the firm’s computerized files, dictation logs, paper files, or on Respondent’s desktop computer’s hard drive.

The supervising attorneys contacted Respondent immediately and asked her to produce her work product to them but at no time did Respondent provide copies of her work product to the firm. Instead, Respondent resigned her position with the firm with no notice. As a result, Respondent’s firm assigned other lawyers to complete the work Respondent purported to have done and the clients were not billed for the services those attorneys provided.

(Mike Frisch)

Industry Standards

The Iowa Supreme Court has imposed a suspension of at least one year of an attorney convicted of overbilling in court-appointed matters. 

The attorney had sought a 90-day suspension.

An audit by the Iowa State Public Defender (SPD) revealed an Iowa attorney billed the state for services he did not perform and made excessive mileage claims. The attorney pled guilty to two counts of fourth-degree theft for billing for family team meetings he did not attend. The Iowa Supreme Court Attorney Disciplinary Board (Board) subsequently brought a complaint against the attorney alleging he violated numerous Iowa Rules of Professional Conduct while performing legal services for the SPD...

The commission found Noel violated rule 32:1.5(a) by claiming duplicate mileage and fees for family team meetings he did not attend, rule 32:8.4(b) for billing the SPD for family team meetings he did not attend and his criminal convictions for this billing, and rule 32:8.4(c) for intentionally making dishonest statements about his mileage and billing practices. The commission recommended we suspend Noel’s license for an indefinite period with no possibility of reinstatement for at least one year from the date of our decision in this matter.

The court held that issue preclusion was properly applied in light of the conviction as to the mileage and attendance issues

the Board satisfied all four requirements to invoke issue preclusion offensively. The issue of Noel’s conduct as to his billings for family team meetings in his disciplinary proceeding is identical to his criminal proceeding, which provided Noel with a full and fair opportunity to litigate the issue in his criminal case.

He got little mileage out of the argument

The auditor’s report revealed the SPD overpaid Noel for at least $12,333.45 in mileage expenses, which represented payment for more than 35,328 miles at thirty-five cents per mile. Approximately twenty percent of Noel’s total payments from the SPD each year of his contract came from his mileage claims.

Despite Noel’s claims that he was mistaken about how to properly bill for mileage due to his past billing practices as an electrician and the way his previous law firm incorrectly taught him to bill mileage, the minutes of testimony contradict his claim. In the minutes of testimony, the general manager for Noel’s former employer during his time as an electrician planned to testify “that their electricians do not get involved in billing mileage for work done.” He further planned to testify that “mileage would be divided up among the customers so that each paid their proportion of only the actual miles traveled” if an electrician drove to another city to do work for multiple customers, and that “he was not aware of any industry-wide standard that would allow more miles to be billed than were actually traveled.” Another electrician also planned to testify to the same information. Moreover, an attorney in Noel’s previous law firm planned to testify that Noel called him after the SPD terminated his contract due to billing problems and told the attorney, “I fucked up,” “I’m going to prison,” and “my children are not going to have a father.”

As to The Electrician's Tale

Noel also attempted to excuse his actions by claiming he was simply following the electrician industry standard of billing. This claim was rebutted. Despite Noel’s knowledge of his incorrect claims for mileage, he never contacted the SPD to remedy this issue and waited until Langholz informed him of the investigation into his practices to inform the SPD about his problems billing mileage. This level of deceit rises above mere negligence or incompetence and speaks to Noel’s intention “to mislead rather than to inform.” Id. Consequently, we find Noel violated rule 32:8.4(c) for claiming excessive mileage, in addition to his violation of rule 32:8.4(b) for billing for family team meetings he did not attend.

The court found he had violated several rules warranting a suspension of at least a year. (Mike Frisch )

Ohio Drops A Hot Potato

A staff report on the web page of the Ohio Supreme Court 

The Ohio Board of Professional Conduct has issued an advisory opinion concerning the representation of current or former clients in unrelated matters when the clients are directly opposed.

Advisory Opinion 2019-01 replaces a 1988 opinion concerning a lawyer’s representation of employers in workers’ compensation matters when the lawyer represents the claimant employee in unrelated matters.

The former opinion also addressed whether a lawyer may withdraw from the representation of the claimant employee in order to undertake the more profitable representation of the employer. The opinion analyzes the same questions previously posed to the board, but under the current Rules of Professional Conduct.

In the new opinion the board reiterates that absent informed written consent of the client, lawyers may not represent clients who will be directly adverse to another client the lawyer is representing in an unrelated matter.

The board finds that the situation creates a conflict of interest because there is a substantial risk that the lawyer’s duties to one client may be materially limited by the responsibilities to the adverse client or the lawyer’s own personal interests.

Ohio courts and other jurisdictions have historically declined to uphold a practice, known as the “hot potato” doctrine, in order that the lawyer or law firm may undertake the representation of a new client under a less-stringent conflict of interest analysis. The board consequently holds that a withdrawal from representation under the “hot potato” doctrine is not ethically appropriate and does not constitute “good cause” for withdrawal under the conduct rules.

The opinion also addresses questions concerning the representation of clients involving former clients in matters that are not substantially related and the ability of lawyers to recommend other lawyers to prospective clients when the lawyer is unable to undertake representation due to a conflict of interest.

(Mike Frisch)

No Empty Nest

A recent opinion from the Florida Judicial Ethics Advisory Committee

ISSUE

Whether a judge may allow an adult child living in the judge's home to be employed part-time by a local criminal defense attorney.

 

ANSWER: Yes.

FACTS

The inquiring judge's eighteen-year-old child, who is a senior in high school, has been offered a short-term, part-time position with a criminal defense attorney who practices in the same county as the inquiring judge. The precise nature of the work is unspecified, but the inquiring judge informs us that it will likely be administrative or clerical. Moreover, the hiring attorney has indicated to the inquiring judge that the child would not be allowed to work in any way on any cases that the judge presides over or attend court when the judge is presiding.

Reason

The commentary to Canon 3E(1) further states:

[A] judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific rules in Section 3E(1) apply. . . . A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. The fact that the judge conveys this information does not automatically require the judge to be disqualified upon a request by either party, but the issue should be resolved on a case-by-case basis.

"[I]ssues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm." Fla. JEAC Op. 07-16. Here, the short-term, part-time, administrative position described by the inquiring judge would not appear to reflect any more than a de minimis interest in the firm and any proceedings involving the firm. And the inquiring judge has indicated that the child's employment will not entail any participation at all in cases before the inquiring judge. Accordingly, disqualification would not automatically be triggered unless the judge's impartiality might otherwise be reasonably questioned. See Fla. JEAC Ops. 07-16, 07-11, 02-15. However, the inquiring judge should remain vigilant to the possibility that the child might participate indirectly in cases over which the judge is presiding. As we stated in Fla. JEAC Op. 07-11, "disclosure is not necessary unless the judge believes that the judge's impartiality might reasonably be questioned. . . . This would appear to be the case only if" the judge's relative "was directly or indirectly involved" in a case pending before the judge. See also Fla. JEAC Op. 07-16, 12-02.

(Mike Frisch)

Drug Convictions Draw Five-Year Suspension

Consent discipline of a five-year suspension has been imposed by the Kentucky Supreme Court for two drug offenses

The first of the two-count KBA charge relates to a 2011 Harrison County, Indiana, criminal case. On August 15, 2011, a confidential informant working for the local Sheriffs Department conducted a controlled drug buy from Jeremy Ripperdan, Fink’s then-boyfriend, which took place at Fink’s house. After the transaction, a search warrant was executed on Fink’s house, and equipment used in the manufacture of methamphetamine was discovered. Both Fink and Ripperdan were arrested.

Fink was charged in Harrison County, Indiana with dealing methamphetamine, a Class B felony; possession of methamphetamine, a Class D felony; maintaining a common nuisance, a Class D felony; unlawful possession of syringe, a Class D felony; possession of two or more pre-cursors, a Class D felony, and possession of drug paraphernalia and possession of marijuana, both Class A misdemeanors.

On August 20, 2015, Fink was found guilty of all counts by a jury and was sentenced to serve eight years in the Indiana Department of corrections. Fink exhausted the appeals process and her conviction was upheld. Fink’s sentence was modified in December of 2016 so that the remaining balance would be served on home detention, which concluded on February 21, 2018. Fink remains on probation, which will conclude on February 21, 2020.

The second count relates to a 2014 Clark County, Indiana, criminal case in which Fink was indicted for drug-related offenses while she was awaiting trial on the Harrison County charges. In June of 2014, the Jeffersonville Police Department executed a search warrant on a house in which Ripperdan, who had recently reconnected with Fink, was temporarily living. After discovering what was believed to be an active meth lab in a detached garage, officers were informed by a neighbor that a cooler in the backyard contained additional methamphetamine making materials and that the materials had exploded in the trunk of a car located in the driveway which belonged to Fink. Officers searched the trunk and discovered numerous items used to manufacture methamphetamine.

Fink acknowledged that she should not have had contact with Ripperdan, given the conditions of her bond in the Harrison County case. She maintains, however, that she was letting Ripperdan borrow her car at the time the items were discovered and that she was unaware that Ripperdan was using her car to transport drug-related items.

On June 17, 2014, Fink was indicted on charges of manufacturing methamphetamine, a Class B felony; possession of methamphetamine precursors, a Class D felony; and Maintaining a Common Nuisance, a Class D felony. However, Fink pleaded guilty to one count of maintaining a common nuisance, and the remaining counts were dismissed by agreement. Fink was sentenced to one and one-half years’ incarceration, which was later modified to nine months of home incarceration, set to conclude in November of 2018.

The suspension is retroactive to the date of an interim suspension. (Mike Frisch)

An Unnamed Attorney In The Revolving Door

The Kentucky Supreme Court publicly disclosed a private reprimand of an attorney as a means of educating the Bar

Though the reprimand is private, the parties and the Court believe other members of the bar will benefit from a published redacted opinion addressing application of SCR 3.130(1.9) and SCR 3.130(1.11) since scant precedent exists regarding the latter. Upon review of the record, we approve of the negotiated sanction.

The story

While in law school and upon graduation, Unnamed Attorney worked in various civil legal capacities for the government of a city in the Commonwealth (“City”). When Unnamed Attorney left the full-time employment of City for private practice he still contractually represented City in some matters. In late 2015, a client retained Unnamed Attorney to represent her in a civil claim involving City. Thereafter, Unnamed Attorney reached out to his former employer in an attempt to gain written consent to represent the woman in a dispute over a zoning permit in which City could potentially be sued. City originally consented to Unnamed Attorney’s representation but withdrew its consent and filed a motion to disqualify Unnamed Attorney when he filed a lengthy complaint against City with issues extending well beyond the original zoning permit dispute.

The trial court conducted a hearing on the motion to disqualify and issued a Memorandum Order disqualifying Unnamed Attorney for violating SCR 3.130(1.1 l)(a). The trial court held that Unnamed Attorney “substantially and personally participated” on behalf of City in matters substantially similar to those he was now litigating for his private client. Unnamed Attorney appealed the order, which was affirmed. Subsequently, the Inquiry Commission issued charges against Unnamed Attorney for violating SCR 3.130(1.9)(c) and SCR 3.130(1.1 l)(a). Pursuant to SCR 3.480(2), the parties agreed to a negotiated sanction. This Motion for Private Reprimand With Conditions followed.

The lesson

Unnamed Attorney did not receive proper informed consent when, after his former employer consented to allow him to represent his client in a simple zoning permit dispute with the potential for a lawsuit, he filed a thirty-seven-page complaint2 alleging City violated the Americans with Disabilities Act, the Fair Housing Act and several other nonzoning issues. Prior to filing his complaint, Unnamed Attorney should have contacted City and again requested informed consent, confirmed in writing, to represent his client in this new endeavor. Ultimately, City likely would have denied his request, and Unnamed Attorney would have needed to withdraw as counsel for the client. However, he would have been in compliance with the Rules in that scenario.

(Mike Frisch)

Is An Attorney A Significant Individual?

The New York Court of Appeals has held that counsel for a committed offender may be barred from an interview and opportunity to participate in the treatment regime

On this appeal, we are asked to determine whether Mental Hygiene Law articles 10, 29, and 47 mandate, upon a respondent’s request, the presence of assigned Mental Hygiene Legal Service (MHLS) counsel at treatment planning meetings for article 10 respondents placed in a Sex Offender Treatment Program at a secure treatment facility. We hold that MHLS counsel is not entitled to be given an interview and an opportunity to participate in treatment planning simply by virtue of an attorney-client relationship with an article 10 respondent...

Petitioners argue, and the dissent agrees, that MHLS counsel comes within the meaning of the statutory phrase “significant individual to the patient, including any . ..individual otherwise concerned with the welfare of the patient” (Mental Hygiene Law § 29.13 [b]), because the purpose of the 1993 amendment was to “allow a patient in a facility to have a friend or advocate of his or her choice to be present at the meeting when facility staff develop the treatment or discharge plan” (Sponsor’s Mem, Bill Jacket, L 1993, ch 135, at 6 [emphasis added]), and MHLS provides “advocacy” services. However, the language on which petitioners rely is cherry-picked from the Sponsor’s Memorandum in support of the bill, which also states that the amendment arose out of a study “suggest[ing] that there is a need for facility staff to be attentive in nurturing and developing informal supports for individuals while they are hospitalized in order to promote the delay or avoidance of the need for rehospitalization” (id.). The Sponsor’s Memorandum explains that, “[o]ften, individuals receiving services do not have an available family member who can participate,” and that “[t]his bill will promote the inclusion of significant others in the planning process” (id. [emphasis added]). The legislative history makes clear that the term “significant individual” refers to family, friends, significant others and similar individuals who have a personal relationship with a patient that would enable such individuals to act as a patient advocate during the clinical activity of treatment planning, rather than counsel providing legal advocacy as part of a traditional attorney-client relationship.

Justice Wilson dissented

The majority’s decision deprives individuals in secure treatment facilities of one of the few, and perhaps only, external sources of support in the treatment planning process.
D.J. has cognitive disabilities and is on a specialized treatment track. D.J. requested his MHLS attorney be involved in treatment planning to accompany him and advocate for him. D.J.’s request is both reasonable and understandable given what we know of life for those committed to secure treatment facilities. It is also completely in line with the vision the Legislature had for “significant individuals” who could participate and “advocate” for patients in treatment planning. The Court’s decision ignores the Legislature’s clear command and further isolates D.J. One can only hope OMH appreciates the Legislature’s decision and exercises its new Court-created discretion liberally to allow MHLS attorney participation when requested by a patient.

For the reasons above, I dissent.

He also has a pointed response to the "cherry picking" remark. (Mike Frisch)

A Polite Reprimand For Offensive Remarks To Potential Client

The Law Society of Alberta reprimanded an attorney on these facts

 In November 2016, Austin Nguyen had a preliminary meeting with V.N. regarding providing independent legal advice on a marriage contract. When Mr. Nguyen discovered that V.N. was in a same sex relationship with another woman, he asked V.N. unprofessional and offensive questions, and made unprofessional and offensive comments about her private relations with her wife.

Subsequently, Mr. Nguyen was interviewed by two Law Society investigators on March 28, 2017. In that interview, Mr. Nguyen denied that he had asked the unprofessional and offensive questions, or made the unprofessional and offensive comments about V.N.’s private relations with her wife.

 The Law Society of Alberta (LSA) and Mr. Nguyen entered into an Agreed Statement of Facts and admission of guilt (the Agreed Statement) in relation to Mr. Nguyen’s conduct. The Conduct Committee found the Agreement Statement acceptable. The Agreement Statement is appended to this report for reference.

The text of the reprimand

Members of the public depend on lawyers to provide impartial and ethical legal advice in times of need. When lawyers make unprofessional or offensive comments in the context of a solicitor-client relationship, or a potential solicitor-client relationship, it erodes the public’s confidence in the legal profession. It also erodes the trust of the client or potential client, and trivializes the legal problem or issue the client, or potential client, was seeking advice on. By making offensive comments and by not conducting yourself with the proper tone of professional communications, you breached an obligation to the profession, V.N. and the public. Lawyers belong to an independently regulated profession, and with the privilege and independence we have an obligation to be accurate in all our communications with the Law Society. Your failure to be candid with the Law Society investigators reflects poorly on you and the profession. By failing to be candid, you breached your obligation as a professional.

However your efforts since are a sign that you have learned from this incident. I also trust that this incident and these proceedings will serve to make you a better lawyer in the future. In making these comments today, I urge you to constantly remember what is required by you as a member of the legal profession.

Sir, I wish you the best as you move forward from this incident and thank you for your attendance today

He was also fined and ordered to pay costs. (Mike Frisch)

No Pulpit For A Bully

A former judge has been disbarred by the New York Appellate Division for the Second Judicial Department, which concluded that his judicial misconduct warranted his removal from the legal profession. 

Charge one alleges that the respondent, a former justice, inter alia, of the Village Court of the Village of Spring Valley, was removed from the bench, based on the factual findings made by the Commission, which were sustained by the New York Court of Appeals, that the respondent engaged in judicial misconduct, and that by virtue of that judicial misconduct, the respondent engaged in conduct prejudicial to the administration of justice, in violation of rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0).

By per curiam opinion and order dated October 20, 2016, the Court of Appeals sustained the Commission’s factual determinations and accepted its recommendation that the respondent be removed from the bench. The Court of Appeals held:

“The record reflects that, among other things, [the respondent] used a sanction—a tool meant to ‘shield’ from frivolous conduct—as a ‘sword’ to punish a legal services organization for a perceived slight in an inexcusable and patently improper way. The record is also replete with instances in which [the respondent] used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that [the respondent] engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker.” “Those actions are representative of an even more serious problem. [The respondent]—in what allegedly was a grossly misguided attempt to motivate—repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats ‘exceeded all measure of acceptable judicial conduct’ (Matter of Blackburne [State Commn. on Jud. Conduct, 7 NY3d 213, 221 [2006]), and we are particularly troubled by the testimony of one court officer, who suggested that
[the respondent’s] threats were so common that they became ‘a joke.’ The matter may have been a laughing one to that officer, but it was not to others.” “Significantly, too, [the respondent’s] hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co judge and an apparent political adversary, [the respondent] willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against [the respondent’s] assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench. [The respondent’s] misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct—all of which renders suspect his guarantees of better behavior” (Matter of Simon [State Commn. on Jud. Conduct], 28 NY3d at 39-40 [citation omitted]).

Sanction

Based on the findings of the Court of Appeals that the respondent “used his office and standing as a platform from which to bully and to intimidate, . . . engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker, . . . repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process, . . . [and] injected himself into the political process involving the election of an office other than his own” (id. at 39),—misconduct qualifying as “truly egregious” (id. [internal quotation marks omitted]), we find that a disbarment is warranted (see Matter of Mogil, 250 AD2d 343). Most disturbing, notwithstanding the passage of time, the respondent continues to lack insight into the effect of his behavior, and continues to fail to recognize the inappropriateness of his actions or attitudes. The respondent’s misconduct, inappropriate and unacceptable as a judge, is equally inappropriate and unacceptable as an attorney and counselor-at-law.

(Mike Frisch)

The Requisite Moral Change

The Minnesota Supreme Court has reinstated a suspended attorney with probationary conditions notwithstanding the concerns of the OLR

The Director of the Office of Lawyers Professional Responsibility challenges a number of the panel’s findings and disagrees with the panel’s recommendation.

The court summarized the misconduct

Severson was admitted to practice law in Minnesota in 1975. On February 18, 2015, we indefinitely suspended Severson, with no right to petition for reinstatement for a minimum of 1 year, for improper business dealings with a client and misrepresentation. In re Severson, 860 N.W.2d 658, 662–63, 674–75 (Minn. 2015). The misconduct for which Severson was disciplined centered on his dealings with D.S., a young woman whose parents had died when she was an infant and who lived with Severson’s family as a teenager. Id. at 663. D.S. was the beneficiary of insurance proceeds following her parents’ deaths, and her inheritance was placed in a conservatorship. Id. After her eighteenth birthday in April 1996, D.S. received approximately $500,000, the funds that had been in the conservatorship. Id.

Severson offered to invest the $500,000 that D.S. had received from the conservatorship, and in June 1996, the two entered into an investment agreement. Id. At that time, an attorney-client relationship existed between D.S. and Severson. Id. at 667.

The investment agreement created a conflict of interest, and Severson’s failure to obtain the consent of D.S. was a violation of Minn. R. Prof. Conduct. 1.7(b) (1996). Severson, 860 N.W.2d at 668. Severson also violated Minn. R. Prof. Conduct. 1.8(a) (1996), when he entered into the investment agreement with D.S. Severson, 860 N.W.2d at 668. The terms of the investment agreement were unfair and unreasonable because they did not provide “security for D.S.’s investment, limit the types of investments Severson could make, or provide for a penalty, or the recovery of her funds if Severson did not comply with the agreement.” Id. Severson also “did not adequately explain the transaction to D.S. or advise her to seek independent counsel.” Id. at 672.

In 2007, D.S. asked Severson to return the $500,000. Id. at 664. Severson did not repay D.S., and by 2008, Severson “was in serious financial trouble.” Id. In 2007, Severson acquired an equine facility that he later sold on a contract for deed. Id. The purchasers defaulted on the contract for deed and Severson then assigned his seller’s interest in the facility to D.S. as security for what he owed her “and had D.S. sign a $250,000 mortgage regarding their interest in the equine center.” Id. Severson once again violated Minn. R. Prof. Conduct 1.7(a)(2), 1.7(b), and 1.8(a), when he assigned his seller’s interest to D.S. Severson, 860 N.W.2d at 665, 666 n.5. He also acted dishonestly, in violation of Minn. R. Prof. Conduct 8.4(c) (2008), by having D.S. assign and mortgage her interest in the equine center to his creditors without telling D.S. that his financial insecurity necessitated the assignments and that her funds could be at risk. Severson, 860 N.W.2d at 669.

D.S. eventually hired an attorney to help her recover the $500,000 principal. Id. at 664. She sued Severson, and the parties reached a settlement in December 2010. Id. After paying her attorney fees, D.S. recovered just $300,000 of the original $500,000 that she had given to Severson to invest. Id.

Severson made misrepresentations to D.S. during the course of their legal dispute and to the Director during the disciplinary investigation, in violation of Minn. R. Prof. Conduct 8.1(a)–(b), 8.4(c)–(d). Severson, 860 N.W.2d at 664–65, 669, 672. Severson gave the attorney for D.S. misleading invoices for purported past legal services he had provided to D.S., in an attempt to reduce the amount he owed her. Id. at 664–65, 672. Severson also made a number of misrepresentations to the Director regarding where the funds of D.S. were invested and the legitimacy of his invoices for legal services. Id.

As Sam Cooke might sing, a change is gonna come

The requisite moral change “must be such that if the petitioner were reinstated, ‘clients could submit their most intimate and important affairs to him with complete confidence in both his competence and fidelity.’ ” Kadrie, 602 N.W.2d at 870 (quoting In re Herman, 197 N.W.2d 241, 244 (Minn. 1972)). In general, “to prove moral change a lawyer must show remorse and acceptance of responsibility for the misconduct, a change in the lawyer’s conduct and state of mind that corrects the underlying misconduct that led to the suspension, and a renewed commitment to the ethical practice of law.” Mose, 843 N.W.2d at 575. The evidence of this moral change “ ‘must come not only from an observed record of appropriate conduct, but from the petitioner’s own state of mind and his values.’ ” Id. (quoting In re Swanson, 405 N.W.2d 892, 893 (Minn. 1987)).

The court found that he had demonstrated remorse (a finding OLR challenged) and had accepted responsibility for the misconduct

With respect to this factor, the panel relied primarily on the testimony of Severson’s therapist, K.A., and her notes from her therapy sessions with Severson. The panel found that while Severson “continued to be defensive and to deflect responsibility” in his initial sessions with K.A., “after working with her regularly for several months, he began to change.” Although Severson’s progress has been inconsistent, K.A. believed that he was “sincere in his efforts to understand what he did wrong and sincere in his desire to accept responsibility.”

In sum, based on our independent review of the record, we hold that the panel’s findings and conclusions that Severson has proven that he has undergone the requisite moral change are not clearly erroneous. Severson met his burden of showing by clear and convincing evidence that he satisfied each of the requirements for reinstatement to the practice of law. We reinstate Severson, order him to complete payment of his annual registration fee within 30 days of the filing of this decision, and place him on probation for a period of 2 years, subject to certain conditions...

The conditions include mental health treatment, practice supervision and denial of access to entrusted funds with safeguards. (Mike Frisch)