Legal Profession Blog

Suspension Ordered

The Louisiana Supreme Court imposed a two-year suspension of a previously-disciplined attorney for misconduct in two matters

In September 2016, complainants, Kimberly Stewart McDuffie and Mark Crocklen, Sr., retained respondent to represent their son, Mark Crocklen, Jr., in a criminal case in Jefferson Parish. Respondent agreed to represent Mark Jr. through trial for a flat fee of $20,000. Ms. McDuffie paid respondent $10,000 via cashier’s check, and Mr. Crocklen, Sr. paid the remaining $10,000 balance in bi-monthly payments of $150.

In May 2018, while the representation was still ongoing, respondent was suspended from the practice of law in Burns I. Respondent failed to notify Mark Jr. of his suspension, as required by Supreme Court Rule XIX, § 26. He also failed to
return Mark Jr.’s client file or timely refund the unearned portion of the fee complainants paid. Indeed, respondent accepted 24 separate payments of attorney’s fees from Mr. Crocklen, Sr. after he was suspended. Furthermore, respondent failed to withdraw from the representation of Mark Jr. and “appointed” another attorney to handle the criminal case without Mark Jr.’s knowledge or prior consent.

Upon learning of respondent’s suspension, complainants attempted to communicate with respondent, to no avail. Complainants then attempted to secure new counsel for their son, but their efforts were unsuccessful due to a pending trial date. In October 2018, Mark Jr. pleaded guilty and was sentenced to serve forty years in prison.

Another matter

In December 2021, Chadsidy Blackstone paid respondent $3,500 to represent her in a disciplinary action brought against her by her employer. By June 2022, Ms. Blackstone had become dissatisfied with the progress of the case. She terminated respondent and requested that he return the fee she paid. In response, respondent provided Ms. Blackstone with a “detailed bill” purporting to detail over $9,050 worth of legal work performed in the case. In July 2022, Ms. Blackstone filed a complaint against respondent with the ODC.

Proposed sanction

Turning to the issue of appropriate sanction, the board agreed with the committee that a two-year suspension is reasonable for respondent’s misconduct. Respondent’s unauthorized practice of law did not involve the active performance of any legal services, and as such, does not warrant disbarment or the most severe suspension. However, respondent also engaged in additional misconduct, and he has a prior disciplinary history.

The court accepted the sanction. (Mike Frisch)

The Education Of A Judge

The North Dakota Supreme Court has admonished a municipal court judge

This is a disciplinary proceeding against Paul Hagen, municipal judge of the McClusky Municipal Court. We conclude Hagen violated the North Dakota Code of Judicial Conduct. We impose an admonition with conditions.

On July 16, 2024, Hagen and and disciplinary counsel entered into an agreement for discipline by consent under R. Jud. Conduct Comm. 14, which includes Judge Hagen’s affidavit acknowledging his misconduct and consenting to an admonition with conditions. On July 26, 2024, the Hearing Panel referred the matter to this Court under R. Jud. Cond. Comm. 14. Hagen admitted that he failed to obtain 18 hours of continuing education credits within the reporting period from July 1, 2020 through June 30, 2023. Hagen admitted this failure violated N.D. Code Jud. Conduct 1.1, N.D. Sup. Admin. R. 36 and N.D.C.C. § 4018-22; and violated N.D. Code Jud. Conduct Rules 2.1 by not prioritizing the completion of his judicial education over his personal and extrajudicial activities.

Paul Hagen agreed to completed the balance of 5.75 continuing education credits for the previous reporting period prior to the date of the hearing scheduled in this matter on July 17, 2024. The Court has not been advised Paul Hagen did not obtain the credits, and we note the matter was referred to us by the Hearing Panel after the date Paul Hagen’s compliance with the agreement was due.

(Mike Frisch)

Tied With Beyonce: I Care A Lot

In a memorandum opinion, the Delaware Court of Chancery found a breach of the duty of loyalty on the part of a highly successful home health care entrepreneur 

In 1998, April Anthony founded a Dallas, Texas-based home health and hospice firm called Encompass Home Health & Hospice (“Encompass Home Health”). It was her second home health venture. Her first—Liberty Health Services—began as a small business with about 25 employees serving 50 in-home patients. It was sold for $40 million in 1996.

Anthony used the $3 million she made from the Liberty sale to buy 17 struggling Texas home healthcare providers. She combined the companies to form Encompass Home Health. After early struggles, the new business made remarkable strides. Anthony became a driving force in the home healthcare industry.

Today, Anthony is #45 on Forbes’s list of America’s Richest Self-Made Women, tied with Beyonce Knowles.

Opinion summary

Delaware law demands that corporate officers act with the utmost loyalty to the entity they serve. They must avoid advantaging themselves at the corporation’s expense. They cannot compete with the corporation or divert corporate opportunities from it without its consent. And they must undertake good faith efforts to advance the corporation’s best interests.

The former officers at issue here lost sight of this enduring duty.

April Anthony is the wildly successful founder of Encompass Home Health & Hospice and its former CEO. She became disillusioned after her business was bought by a large public healthcare company. She and two of her fellow officers— Luke James and Chris Walker—secretly partnered with two private equity firms to forge another path.

Anthony first tried to buy back her business. When she failed, she and her partners decided to form a new home health and hospice company instead.

Anthony and her co-venturers identified three acquisition targets to form the base of their enterprise. Their scheme was kept from Encompass. They took opportunities, resources, and information belonging to Encompass to set themselves up for success. After the new company was formed, Anthony induced Encompass employees to join her.

Anthony’s private equity partners were active participants in the fiduciaries’ misconduct. They undertook stunning efforts to conceal their actions. Documents were exchanged on the golf course or through webs of lawyers. Code names like “Voldemort” referred to Anthony in written correspondence. A sham employee recruitment process was used to create a paper trail. Records showing Anthony’s involvement were deleted or scrubbed.

The result of this deceit is VitalCaring Group, which provides home-based healthcare services in the Southern United States and plans to expand nationwide. Anthony is its CEO, James its President, and Walker its CFO. Anthony and the two private equity firms are each one-third partners.

Encompass sued to right these wrongs. After trial, the defendants are liable for breaches of the duty of loyalty or aiding and abetting such breaches. This is an easy call.

The remedy proves more challenging. VitalCaring has yet to turn a profit and there is nothing for it to disgorge.

Still, equity cannot grant the defendants a pass. The private equity firms remain years away from their anticipated exit. They may do so at a considerable profit—as they have in prior investments that initially faltered.

Encompass is entitled to an equitable payment stream from any such future gains. It is also awarded certain mitigation damages and attorneys’ fees. To deny it any recovery on these egregious facts would bless a willful campaign of disloyalty.

(Mike Frisch)

Creative Defense Firms Fail To Revise Decision In Musk Litigation

The Delaware Court of Chancery rejected an effort to revise the decision in litigation that had challenged the compensation award to Elon Musk

This decision marks the trial-level denouement in a derivative suit asserting fiduciary challenges to the largest executive compensation award in the history of public markets—Tesla, Inc.’s 2018 award to Elon Musk.

In January 2024, the court issued a post-trial opinion finding that the award was subject to review under the entire fairness standard, the defendants bore the burden of proving entire fairness, they failed to meet their burden, and the plaintiff is entitled to rescission. The plaintiff’s attorneys then petitioned for fees and expenses, which is typical in a derivative suit when the plaintiff prevails. Atypically for this court, the defendants responded by putting the rescinded compensation plan—the exact same plan that the post-trial opinion deemed a breach of the duty of loyalty—to a stockholder vote for the stated purpose of “ratifying” it. The defendants then moved to “revise” the post-trial opinion based on the stockholder vote, asking the court to flip its decision and enter judgment in their favor. This decision resolves the motion to revise and the fee petition.

The motion to revise is denied. The large and talented group of defense firms got creative with the ratification argument, but their unprecedented theories go against multiple strains of settled law. There are at least four fatal flaws. First, the defendants have no procedural ground for flipping the outcome of an adverse posttrial decision based on evidence they created after trial. Second, common-law ratification is an affirmative defense that must be timely raised, which means that, at a minimum, it cannot be raised for the first time after the post-trial opinion. Third, what the defendants call “common law ratification” has no basis in the common law—a stockholder vote standing alone cannot ratify a conflicted-controller transaction. Fourth, even if a stockholder vote could have a ratifying effect, it could not do so here due to multiple, material misstatements in the proxy statement. Each of these defects standing alone defeats the motion to revise.

The fee petition is granted in part. The plaintiff’s attorneys asked for $5.6 billion in freely tradeable Tesla shares. In a case about excessive compensation, that was a bold ask. To be sure, their methodology for calculating this figure is sound. Delaware courts award fees based on a percentage of the value of the benefit achieved, scaled to reflect the stage of the case, and adjusted for other factors. Applying this approach to rescission of a $55.8 billion compensation award results in an eyepopping figure. Yet, as the Delaware Supreme Court cautioned in In re Dell Technologies Inc. Class V Stockholders Litigation, a fee award “can be so large that typical yardsticks, like stage of the case percentages, must yield to the greater policy concern of preventing windfalls to counsel.” The fee award here must yield in this way, because $5.6 billion is a windfall no matter the methodology used to justify it. To reach a reasonable number, this decision adopts the defendants’ approach and uses the $2.3 billion grant date fair value to value the benefit achieved. Applying a conservative 15% to that figure results in a fee award of $345 million—an appropriate sum to reward a total victory. The defendants may elect to pay the fee award in cash or freely tradable shares.

At the end of 101 pages

Defendants make other arguments too, but this decision is already long enough. Perhaps there is a case in which requiring a defendant to pay attorney’s fees in shares over the defendant’s objection is appropriate and just. But Defendants win on this point for a simple reason: Plaintiff’s most compelling argument for payment in shares is that this form of payment benefits Tesla. Tesla does not see it as a benefit. So, the court will not force it. It is up to Defendants. They may elect to pay the fee award in freely tradeable shares or in cash.

(Mike Frisch)

Over The Threshold

An attorney's misconduct drew disbarment from the New Jersey Supreme Court.

The attorney's history of discipline and present misconduct led the Disciplinary Review Board to conclude

In sum, we find that respondent violated RPC 1.1(a) (Leigh and Barbarisi matters); RPC 1.3 (Leigh, Barbarisi and Poth matters); RPC 1.4(b) (Leigh; Barbarisi; Cruz; Fonseca; Marfitsin; and Poth matters); RPC 1.15(b) (Cruz, Gutierrez, and Marfitsin matters); RPC 5.1(b) (D.K. matter); RPC 5.5(a)(1) (D.K.; Fonseca; Gutierrez; and Marfitsin matters); RPC 8.1(b) (Leigh; Barbarisi; Cruz; D.K.; Gutierrez; Fonseca; Marfitsin; and Poth matters plus the three defaults); RPC 8.4(b) (D.K.; Fonseca; Gutierrez; and Marfitsin matters); and RPC 8.4(c) (Marfitsin matter).

However, we determine to dismiss the charged violations of RPC 8.4(d) in the D.K.; Gutierrez; Fonesca; and Marfitsin matters. Those charges are based solely on respondent’s failure to comply with the Court’s Order of suspension in Kassem II, which required that he refrain from practicing law. However, respondent’s violation of that Order is fully encompassed by the charged violations of RPC 5.5(a)(1). We further determine to dismiss, for the reasons set forth above, the charged violations of RPC 3.2 and RPC 8.4(c) in the Poth matter.

Sanction

An attorney’s cooperation with the disciplinary system (and discipline for failing to do so) serves as the cornerstone for the public’s confidence that it will be protected from unethical attorneys. Respondent’s ongoing behavior reflects a complete disregard for his clients and utter disdain for New Jersey’s disciplinary system. Such behavior by an attorney cannot be tolerated. Through this fifth disciplinary matter, respondent has established a penchant for breaching his duties to his clients. In our view, respondent’s egregious mistreatment of his clients, coupled with his unauthorized practice of law while suspended, in addition to his growing disciplinary history, places him over the threshold of disbarment.

(Mike Frisch)

Monumental

A recent sanction summarized on the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ stipulation to discipline and publicly censured Grant David Van Der Jagt (attorney registration number 42029), effective November 26, 2024.

In November 2022, the town of Monument voted to adopt a home rule charter. During the leadup to the election, concerns arose about whether the town could properly reimburse election expenses incurred by a group advocating for the charter. In December 2022, the Monument Town Council met to discuss whether to pursue an investigation; a majority of the council members authorized the investigation. Several council members whose terms were set to expire at the end of 2022 asked Van Der Jagt to conduct the investigation. At their request, he submitted a resume, a draft fee agreement, and an engagement letter. On December 16, 2022, the council voted to hire Van Der Jagt; the mayor and the then-town manager immediately signed his engagement letter. Though Van Der Jagt believed that he was being retained as an investigator for some select council members, he concedes he should have memorialized in an amended engagement agreement who his client was and the specific scope of his services. His failure to do so resulted in imprecision about who was retaining him and about the scope of his investigation.

In late December 2022, Van Der Jagt investigated the expenses issue and discovered information about the conduct of government officials that concerned him as a citizen. The report he drafted was marked as privileged and confidential and an attorney-client communication, and it cautioned recipients not to publish or disseminate publicly. Before the council could meet to review and discuss the report, a council member sent a copy to members of the media. The council then waived any privilege or confidentiality restrictions attached to the report.

On January 3, 2023, the newly elected town council directed Van Der Jagt to hand over all the materials he collected during the investigation without redactions. He acceded but did not provide the name of one anonymous witness. Thereafter, Van Der Jagt came to believe that the mayor and certain council members were attacking his work, character, and reputation. To defend himself and to exercise what he believed was his civic duty to reveal information about elected officials, he made several social media posts that were critical of the mayor and the council, some of a derogatory nature. Some posts were based on information he learned in the course of his investigation.

Through this negligent conduct, Van Der Jagt violated Colo. RPC 1.9(c)(1) (a lawyer who has formerly represented a client in a matter must not use information relating to the representation to the disadvantage of the former client); and Colo. RPC 1.9(c)(2) (a lawyer who has formerly represented a client in a matter must not reveal information relating to the representation except as the Rules of Professional Conduct permit).

(Mike Frisch)

"A Short, Tight, Black Dress"

A Pennsylvania Hearing Committee recommends a year and a day suspension of an attorney

As Lazear’s court-appointed attorney, Attorney Furmanek had the privilege of court-approved contact visits with Lazear at the [Washington County Correctional Facility]. When her relationship status expanded from professional to romantic, she continued with the contact visits, without disclosing to the WCCF, or her employer, that she was romantically involved with this client. Attorney Furmanek proactively pursued a relationship with Lazear, despite her position as his attorney.

Throughout this disciplinary process, Attorney Furmanek maintained her position that her relationship with Lazear did not violate the Rules of Professional Conduct because she had previously been romantically involved with him, which had occurred years prior to her representation of him. Attorney Furmanek was involved in the romantic relationship at issue while she was representing Lazear in her capacity as Conflict Counsel for Washington County and she failed to withdraw from the representation. Attorney Furmanek testified that she was able to separate her romantic relationship from her professional relationship.

The romantic relationship might not have been discovered because, during the representation, Attorney Furmanek did not communicate with Lazear through any means that revealed her identity, other than through in person visits at the WCCF. This allowed Attorney Furmanek to circumvent security at the WCCF. She had Lazear contact her through phone numbers that either reflected no identifying name on the Caller ID, or indicated the name of his mother, Robin Ware.

On November 18, 2021, Lazear’s birthday, Attorney Furmanek wore a short, tight, black dress for a contact visit with Lazear. Respondent’s manner of dress caught the attention of WCCF staff. It was during this visit that Attorney Furmanek proceeded to intimately hug and kiss Lazear. The physical contact was in violation of WCCF policy and procedures. Because of Attorney Furmanek’s violation of the WCCF Policy and Procedures, Warden Fewell contacted District Court Administrator Patrick Grimm. An investigation was triggered, resulting in the revelation of the romantic relationship between Attorney Furmanek and Lazear.

Prior to beginning a romantic relationship with Lazear in August 2020, Attorney Furmanek had been warned by ODC about maintaining independent and unbiased relationships with clients after she self-reported inappropriate sexual communications with a criminal client she represented while serving as Conflict Counsel. Despite this warning, and the discipline that was imposed by her employer for inappropriate sexual communication with a client, Attorney Furmanek failed to withdraw from the representation, ignored the potential consequences, disregarded her ethical responsibilities, and pursued her relationship with Lazear. 

After her termination

After her termination from employment as Conflict Counsel on December 7, 2021, Attorney Furmanek immediately attempted to see Lazear at the WCCF. After she was denied access to Lazear, Attorney Furmanek wrote him a letter, stating in part, “[Y]ou are being denied your constitutional right to access to legal counsel.” and “Rest assured that the injustice which is now occurring is being reported to the necessary agencies and is being documented by my legal team.” Attorney Furmanek’s legal representation of Lazear ended when she was terminated as Conflict Counsel. Mr. Grimm’s office promptly took the necessary steps to have new counsel appointed for Lazear within three days of Attorney Furmanek’s termination.

Attorney Furmanek continued her involvement with Lazear’s cases by establishing contact with Attorney Jeffries after she learned that he had been appointed as successor counsel for Lazear. Attorney Jeffries extended professional courtesy to Attorney Furmanek, 6 as Lazear’s former counsel, and discussed Lazear’s cases with her. Despite her knowledge that Attorney Jeffries was counsel of record, Attorney Furmanek continued to advise Lazear about his cases.

ODC presented evidence of Attorney Furmanek’s criminal conviction of Disorderly Conduct, which proves that Attorney Furmanek’s misconduct continued beyond the conclusion of her representation of him.

The Herald-Standard reported on the conviction

A lawyer accused of conspiring to have an inmate at the Washington County jail eavesdrop on another attorney during what was supposed to be a private phone call pleaded guilty Wednesday to lesser charges.

Kimberly Ann Furmanek, who was facing felony wiretapping charges in connection with the May 2022 incident, pleaded guilty to two misdemeanor counts of disorderly conduct and was immediately sentenced by Judge Brandon Neuman to serve 12 months on probation as part of the plea bargain.

Furmanek, 35, of Richhill Township, appeared briefly in Neuman’s courtroom in the Washington County Courthouse to announce her plea, which her defense attorney, Adam Yarussi, said will hopefully allow her to move forward more than a year after being charged.

“It’s been kind of going on for a while and she just wanted to put this behind her and move on with her life,” Yarussi said.

Furmanek had developed a romantic relationship with John Quentin Lazear, who was an inmate at the jail, while she was representing him on drug charges in late 2021. But after Furmanek was removed from his case, she and Lazear hatched a plan so the inmate could eavesdrop on a private phone call she was having with his new defense attorney, James Jeffries.

In the May 6, 2022, conversation, Furmanek used two cellphones – one to call Lazear in the jail and the other to speak with Jeffries – and placed them next to each other so he could listen to the conversation. Since the jail audio records all phone calls with inmates when speaking with anyone who isn’t their attorney, the conversation was recorded without Jeffries’ knowledge.

Furmanek and Lazear were charged the following month after investigators reviewed the phone call and spoke to Jeffries, who told them he did not know Lazear was on the other line or that the conversation was recorded on the jail line. Lazear, who is now serving 15 to 40 years in state prison after pleading guilty earlier this year to multiple felony drug charges in three unrelated cases, pleaded guilty to one count of terroristic threats in April for threatening Jeffries and his law firm’s secretary in a different phone call. He was sentenced by Neuman to serve probation while  incarcerated.

When contacted by a reporter Wednesday afternoon, Jeffries said he was unaware of the plea deal, but happy that the court case is now over.

“I’m glad that she put this episode behind her and I hope she moves on and makes better choices, both professionally and personally,” Jeffries said.

The case documents can be accessed here. (Mike Frisch)

Tampering With A Corpse

From the December 2024 posted disciplinary actions on the web page of the Florida Bar

Nina Tamar Beltran, PO Box 140652, Dallas, TX, disciplinary revocation with leave to apply for readmission effective 30 days following a November 14 court order. (Admitted to practice: 2012) On June 12, 2024, Beltran plead guilty to one count of tampering with a corpse, in violation of 17.09(C) of the Texas Penal Code, a second-degree felony. Beltran was sentenced to eight years in prison. (Case No. SC24-1430)

Details from the Miami Herald

Prosecutors proved at trial that after Botello left a bar in Dallas’ Deep Ellum section with Charles Beltran, with whom Dykes and Marano were in a three-way relationship, Dykes stabbed Botello to death. Marano and Beltran helped hide Botello’s body, which wasn’t found until months later. Police say they traced Marano and Dykes cellphones to woods near a cement plant in the suburb of Hutchens.

By that point, Marano, Dykes and Beltran skedaddled. Marano wound up in Miami, where she’d be arrested on March 25, 2021. Dykes would be arrested up in Orange County around the same time. Eventually, Beltran was arrested, also.

Marano and Dykes posted bond and were under house arrest in Dallas. Trial testimony by the house arrest supervisor said on Christmas morning, 2021, Marano and Dykes cut off their ankle monitors to skip town and country, boarding a flight at Dallas-Fort Worth International Airport to Seoul, South Korea. The holiday falling on a Saturday gave them two days before the inactivity in their monitors was discovered. They would be recaptured in Cambodia.

Murder charges would be dropped against Marano and Beltran, who also pleaded guilty to tampering with evidence. He testified against Dykes and, with an unrelated robbery conviction, is scheduled to be in prison until April 21, 2027.

Dykes got sentenced to life after being convicted of murder and tampering with evidence. Marano didn’t testify against her. “She just chose not to testify against her spouse,”

Marano’s attorney, Valerie Baston said to Dallas’ Fox4News. “They’re still legally married… They’re not in communication with each other. I don’t believe there’s any animosity between the two.”

(Mike Frisch)

Father's Day

An attorney who had previously been convicted of involuntary manslaughter was disbarred by the New Jersey Supreme Court for a criminal conviction.

The report and recommendation of the Disciplinary Review Board described the conduct

In or around July 2016, respondent’s father, Gerald Rohrman, moved into a continuing care facility following the death of his wife, Marjorie Rohrman, who was respondent’s mother. During the marriage, Marjorie handled the couple’s finances. At the time of Marjorie’s death, Mr. Rohrman was seventy-seven and did not know how to write a check, use a computer, or conduct electronic banking.

In August 2016, Mr. Rohrman granted respondent power of attorney (POA) to handle his financial affairs. Mr. Rohrman testified – during the criminal trial underlying this matter – that he chose respondent over his two other daughters because “she knew a . . . lot about business and [he] thought she was the one [he] should choose . . . and she was an attorney . . . .” In connection with granting respondent a POA, Mr. Rohrman testified that he gave her permission to use his money for his benefit.

A fateful choice

Three years after respondent was granted the POA, in August 2019, and following her guilty plea to manslaughter, Mr. Rohrman and his two other daughters discovered that a significant amount of money was missing from his accounts. As a result, Mr. Rohrman went to the police to report the theft.

An investigation revealed

Specifically, between December 2016 and February 2019, respondent wrote seventy-four checks, totaling $58,750, from Mr. Rohrman’s Wells Fargo accounts, which she deposited in her PNC bank account. On at least five occasions when respondent deposited checks from Mr. Rohrman’s Wells Fargo accounts in her PNC bank account, her account balance was less than $100. A review of the withdrawals and expenditures from respondent’s PNC bank account revealed that most of the transactions took place in Chester County, near respondent’s home, and did not relate to Mr. Rohrman’s care.

Between August 2016 and August 2019, respondent cashed sixty additional checks from Mr. Rohrman’s Wells Fargo accounts, totaling $34,010. Between December 2018 and February 2019, respondent wrote five additional checks, totaling $3,221.45, from the Wells Fargo accounts to third parties for expenditures related solely to respondent, including payments to contractors working on her home, and payments for her court fees.

Between November 2016 and August 2019, respondent made fourteen counter withdrawals, totaling $35,645, from Mr. Rohrman’s Wells Fargo accounts. Further, in 2019, respondent made two bank to bank Zelle transfers, totaling $950, from Mr. Rohrman’s Wells Fargo account to her PNC bank account.

In addition, between March 2017 and July 2019, respondent added four telephone lines to Mr. Rohrman’s Verizon Wireless account, thus, increasing his monthly charges from $133, in 2016, to $485, by August 2019.10 The added Verizon lines resulted in additional charges of $7,397.31, which were paid from Mr. Rohrman’s Wells Fargo accounts.

On August 21, 2019, respondent used $12,100 from Mr. Rohrman’s accounts to pay down the balances of three of her credit cards, including two Capital One accounts and one Citadel account.  All but one of the charges on respondent’s Citadel credit card had been incurred in Chester County, where respondent resided.

Respondent also illegally utilized Mr. Rohrman’s Wells Fargo credit card. From August 2016 through August 2019, she made thirty-five payments from Mr. Rohrman’s bank account to his Wells Fargo credit card accounts, totaling $17,405. The credit card records revealed that all but one of the purchases made with Mr. Rohrman’s credit card occurred in Chester County, PA, where respondent resided.

The investigation further revealed that, between August 2016 and August 2019, respondent replenished the Wells Fargo accounts with $88,294.02, via thirty-three transfers of funds from Mr. Rohrman’s American Funds investment account.

Initially, the printed checks for the Wells Fargo accounts reflected the names Gerald A. Rohrman and Marjorie L. Rohrman, at their home address in Feasterville, PA. At some point in time, however, respondent executed a change of address with Wells Fargo and the address for the accounts was changed to respondent’s address in Downingtown, Pennsylvania, and not the care facility where Mr. Rohrman resided.

Respondent was convicted by a jury

Respondent did not testify at trial. However, during her closing argument, she asserted that the evidence established her innocence. Specifically, she argued that she had incurred substantial expenses related to remodeling Mr. Rohrman’s home, moving Mr. Rohrman to the care facility, paying the funeral expenses for Marjorie, and covering other expenses for Mr. Rohrman. She maintained that she legitimately reimbursed herself.

Sanction

We conclude that this matter represents a clear and unmistakable example of the type of attorney who lacks sufficient moral fiber to be a member of the New Jersey bar. It is evident that respondent did not exhibit an iota of care or concern for her father following the death of her mother and, instead, she willingly and without hesitation victimized her father solely for her own gain. In our view, she presents a danger to the public and, therefore, recommend to the Court that she be disbarred in order to protect the public and preserve confidence in the bar.

Daily Local News reported on the manslaughter conviction 

According to court records, police said they were called to the home around 6:45 p.m. on Aug. 17, 2019, by Rohrman, who said she had found her husband dead in their living room of an apparent drug overdose. But Rohrman’s account of how her husband — who was on house arrest for a parole violation at the time of his death — could have gotten ahold of the heroin that killed him changed over time as she spoke with the investigating officer, state Trooper Aaron Botts.

An addict, Nwadiora had passed a drug screen on Aug. 15 at a meeting with his parole officer, Rohrman told the trooper.

Initially, she said that Nwadiora had not left the house for two days because of his house arrest, but that he may have arranged to have the heroin he took delivered to him surreptitiously by her through a friend. Rohrman said Nwadiora had asked her to meet someone in Delaware County, where the couple had previously lived, who wanted to give him a pair of shoes to add to his sneaker collection.

She said she picked the shoebox up from the unnamed friend, and that when returning home with it her husband “became distant” and went to a separate portion of the house. Rohrman told Botts that the shoes might have had the heroin inside them without her knowing.

But when Botts asked to see the shoes Rohrman said she had brought home with her, she was unable to identify the pair or the empty box. As the trooper went with Rohrman through the home looking for the shoe box, he wrote, he noticed several wax bags that are typical packaging for heroin — many still full.

At some point, Rohrman showed Botts a video of Nwadiora in the throes of his overdose that she said she had recorded so she could show him how he acted towards her when he was high on heroin. In it, the trooper saw Nwadiora slide off the couch and slump to the floor after telling Rohrman he had used seven or eight bags of heroin.

The video showed Rohrman leaving the room, returning with cocaine, which she applied to his mouth in order to revive him. She said Nwadiora had told her to do so in the past, and that she “had also seen it done on television.”

But later, after Botts arranged for her to be interviewed in a patrol car outside her home, Rohrman allegedly acknowledged that she had knowingly delivered the heroin to Nwadiora after he threatened to assault her if she did not. She said she drove to a shopping center in Delaware County where she purchased $400 worth of heroin and cocaine, and which she then brought home.

According to her story, Nwadiora used some of the heroin, then fell asleep and became unresponsive. In addition to trying to wake him with the cocaine, Rohrman also used cold compresses to try to revive him and “even rocked him gently a few times in an effort to wake him up,” according to Botts’ affidavit.

When he eventually stopped breathing, she said, she called 9-1-1 and began CPR until emergency medical personnel arrived.

(Mike Frisch)

Unsupervised Probation Questioned

The Minnesota Supreme Court accepted a proposed minimum 60-day suspension and unsupervised probation

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent William H. Henney has committed professional misconduct warranting public discipline—namely, representing clients with conflicts of interest in one matter; entering into a business transaction without providing required disclosure under the rules; and making knowingly false and misleading statements to the court, opposing counsel, and the Director. See Minn. R. Prof. Conduct 1.7(a)(1), 1.7(a)(2), 1.8(a), 3.3(a), 4.1, 8.1(a), and 8.4(c).

Respondent and the Director have entered into a stipulation for discipline. In it, respondent waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and unconditionally admits the allegations of the petition. The parties jointly recommend that the appropriate discipline is a minimum 60-day suspension followed by two years of unsupervised probation.

McKEIG, Justice (dissenting).

Because William H. Henney’s long history of discipline and continued misconduct warrant a more serious penalty than a 60-day suspension and two years of unsupervised probation, I respectfully dissent.

Henney was first disciplined, by private admonition, in 1986, just four years after he was admitted to practice law in Minnesota. Since then, Henney has received five additional admonitions, dating from 1991 until 2014. Henney’s present misconduct is an escalation of his prior actions. Henney represented two clients with adverse interests to one another for over a year after it was clear that he could not competently and diligently represent both. During the same time, he obtained an ownership interest in land directly adverse to one of these clients without informing that client of his interest. When the situation eventually turned litigious, see Mittelstaedt v. Henney, 969 N.W.2d 634 (Minn. 2022), Henney falsely represented to the court that he did not know the owner of the  client-company at the time these transactions occurred. He also represented the owner of the client-company in his divorce proceedings. In this representation, Henney falsely told the client that he had filed an answer in the dissolution proceedings and that the $500 the client had paid him was for a filing a fee. When confronted by the Office of Lawyers Professional Responsibility, he made false and misleading statements about his involvement in the divorce proceedings to try to minimize his responsibility.

Not only did Henney commit misconduct that included more than one conflict of interest, but he also engaged in dishonest conduct, including to the courts. I am willing to accept the 60-day suspension as stipulated by the parties. I disagree, however, that two years of unsupervised probation is appropriate. I would impose two years of supervised, rather than unsupervised, probation. Over his four decades-long career, Henney has time and time again shown a lack of respect for the ethical obligations that come with the legal profession. His misconduct in this instance is unacceptable. Henney is not new to the practice of law; he knew exactly what he was doing when he continued to represent both clients after it was clear there was a nonwaivable conflict of interest and when he made false statements in subsequent litigation. What Henney has already shown us is that he chooses to follow his own rules without regard for what is proper or appropriate under the rules that govern our profession. Henney has had over 40 years to prove he can comply with the Rules of Professional Conduct. His six previous admonitions and current suspension show that he cannot be trusted to do so on his own. Henney should be subject to more oversight than will be provided by his period of unsupervised probation

Because I would impose a 60-day suspension and two years of supervised probation, I dissent.

THISSEN, Justice (dissenting).

I join in the dissent of Justice McKeig.

(Mike Frisch)

Interview Notes At Issue In Bar Charges

The North Carolina State Bar has filed a complaint alleging misconduct on the part of an attorney in representations he made in responding to a bar investigation.

The allegations arising from a consultation of a potential client who did not retain the attorney for a bed and board divorce case. She filed a bar complaint alleging that the attorney had advised her to falsely report domestic violence by her husband.

The complaint here alleges that Respondent submitted a Clio note in response to the bar investigation; the Clio note stated that the client had repeatedly denied being a victim of domestic violence.

The allegation is that the Clio note was not created contemporaneously with the interview but had been written on the day before he had submitted his response to the Bar and had misrepresented the note as being created at the time of the interview.  

Further, it is alleged that Respondent falsely claimed that his spouse had created the Clio note without his knowledge, which he allegedly later admitted was a "complete and utter lie."

He had contended that his wife worked as his office assistant and that he had suspended her after learning of the Clio note. (Mike Frisch)

No More Than Virginia

The District of Columbia Court of Appeals declined to increase a six-month suspension imposed in Virginia, rejecting an invitation by Disciplinary Counsel to order more severe discipline

We decline to impose substantially different discipline in the form of either a longer suspension or fitness requirement, because Disciplinary Counsel failed to establish that the Virginia sanction does not fall within the range of sanctions that respondent would have received in the District or that there are serious concerns about respondent’s ability to act ethically in the future. See In re Jacoby, 945 A.2d 1193, 1199-1200 (D.C. 2008) (describing the two-step No. 24-BG 0796 inquiry for concluding whether the “substantially different discipline” exception applies as determining whether the misconduct would have resulted in the same punishment and if the discipline would be different, whether the difference is “substantial”); id. (defining “same punishment” as a sanction that falls within the range of sanctions that would be imposed in the District)...

(Mike Frisch)

A Case For Disbarment

The Ohio Supreme Court has disbarred an attorney for misconduct in four matters.

In September 2018, Port was appointed administrator for the estate of Jean VanPelt. Estate of VanPelt, Monroe C.P. No. 10465. While acting as administrator, Port wrote 15 checks to himself, executed 18 wire transfers to himself, withdrew $40,000 in cash, and made multiple transfers to an unrelated estate. These transactions totaled $307,869. Subsequently, Leona Young, VanPelt’s sister, replaced Port as the administrator of her sister’s estate. Port gave Young a $260,055.65 cashier’s check that allegedly constituted the entirety of the estate’s funds, but he did not provide an accounting, so there was no information from which to check the legitimacy of any of the transactions he had made. Young then requested the bank statements for the estate. Port fabricated bank records to conceal his misappropriation of estate funds. On June 3, 2023—after realizing his deception had been discovered—Port self-reported his misconduct to disciplinary counsel.

Another matter

On March 4, 2019, a probate court appointed Port as administrator of the estate of Stephen K. Renz. Estate of Renz, Franklin C.P. No. 596320. The estate’s primary asset was real property located on Miller Avenue in Columbus, Ohio. Port, acting as the estate’s administrator, paid Estate Restoration Services, L.L.C.—a company owned by Port’s wife—$6,500 to clean the Miller Avenue property. On March 8, Port’s wife formed another limited-liability company— Wedgewood Holdings, L.L.C. In October, Port, again acting as the estate’s administrator, sold the Miller Avenue property to Wedgewood Holdings for $21,600. In early December, Wedgewood Holdings resold the Miller Avenue property for $195,000. On December 26, Port moved the probate court to approve an appraisal value for the property and to order its sale. Port did not bring to the probate court’s attention that he had already sold the property to his wife’s company or that her company had resold it. The probate court held a hearing on Port’s motion on February 10, 2020. Under oath, Port disclosed the two sales of the property and that his wife owned Wedgewood Holdings and Estate Restoration Services. The probate court removed Port as the administrator of the estate.

And a third

Nichelle Ennis contacted Port to locate and protect inheritances she believed her aunt, Anne Sink, could claim. Port found a total of $28,885.13 in inheritances from three different deceased relatives, and he purportedly intended to put that money in a trust. However, Sink passed away before a trust was formed, and the money became part of her estate. Port used that money to pay $14,100.62 in funeral expenses, but he falsely represented to Ennis, and later, to disciplinary counsel, that he had paid $14,784.51. Port kept the remaining estate balance, which was $437.88 after deducting the $14,346.63 he billed for legal work.

Regarding the trust, Port claimed in his initial response to disciplinary counsel’s inquiry that he had been unable to create the trust before Sink died but that he had intended to put $20,000 into a special-needs trust. But by statute, Sink was too old to create such a trust. Nonetheless, Port billed the estate $325 an hour for working 13.6 hours on the trust (for a total of $4,420)

Number four

In 2021, Esther Imhoff and her granddaughter, Katelyn Neil, hired Port and paid him $9,400 to create a Medicaid Asset Protection Trust and/or a Qualified Income Trust for Imhoff. Several months later, after realizing that little to no progress was being made in the case, Neil demanded a meeting with Port. She subsequently attended a meeting with Port in which she felt he was talking in circles and was unable to answer basic questions. After another month passed
 any progress in the case, Neil terminated the representation. During the representation, Port did not create a trust for Imhoff and did not refund any portion of the $9,400 fee.

Sanction

Like the attorney in Magee, Port used a position of trust to misappropriate client funds and assets and engage in unethical transactions. Additionally, Port similarly fabricated statements to conceal his misconduct, made misrepresentations to the court, failed to make restitution, and failed to fully participate in the disciplinary process. But the conduct in this case is more egregious than that in Magee. Port’s misconduct affected more clients, and Port took fees from clients for work that he did not do (Imhoff) and for work that he should have known was futile (Sink and Ennis), and failed to refund their money, which is tantamount to theft, see Disciplinary Counsel v. Sigall, 14 Ohio St.3d 15, 17 (1984). Moreover, Port previously received an indefinite suspension for similar misconduct. Port’s repeated theft from clients and his dishonesty with clients and tribunals show that he lacks the character and integrity required of a member of the bar. We conclude that disbarment is warranted in this case.

(Mike Frisch)

F-Bombs And Out Like Flynn

The Florida Supreme Court has issued opinions in two judicial misconduct matters.

A 60-day suspension and reprimand was imposed for intemperate conduct

On February 9, Samuel Perez appeared before Judge Culver at a hearing to determine whether Perez had violated an injunction requiring him to complete a “batterer’s intervention program.” The Commission found that Perez “was polite and respectful at the hearing, and apologetic for failing to complete the [program] earlier.” Judge Culver “nevertheless found him in direct criminal contempt based on failure to complete the [program], sentenced him to the maximum 179 days in jail, and had Mr. Perez summarily taken into custody.” Judge Culver cut off Perez when the latter asked to address the court. A woman seated in the gallery stood up and began to address the court, but within a few seconds Judge Culver told her: “Ma’am, sit down or you’re going to go into custody as well.” The Fifth District Court of Appeal later concluded that Judge Culver’s handling of the contempt proceeding violated the governing rules of procedure, in part by failing to offer Perez a meaningful opportunity to present mitigation testimony. Perez v. State, 334 So. 3d 742, 742 (Fla. 5th DCA 2022). After Perez had already spent more than a month in jail, the district court granted an emergency habeas petition for his release.

The day after the hearing in the Perez case, Kevin Newton was scheduled to appear before Judge Culver. Newton entered the courtroom while a different hearing was underway, and he could not find a seat. According to the Commission, “Judge Culver noticed him, and yelled in a loud, aggressive voice, ‘Sir, I’m doing something here. Could you shut up and sit down.’ ” Newton responded that he was trying to find a seat. To which Judge Culver replied: “That’s not shutting up. You want to be held in contempt and go to jail? I asked you a f*****g question, a*****e.” Newton answered, “No, Sir,” and Judge Culver said, “Then shut up.” The Commission tells us that, at his disciplinary hearing, “Judge Culver admitted shocking himself by his use of profanity, and that members of the public would rightly be appalled.”

The other matter involved campaign misconduct

During a successful 2022 race for Polk County Judge, John B. Flynn and his campaign repeatedly signaled support for law enforcement agencies in a way that could cast doubt on his impartiality. The Judicial Qualifications Commission and Judge Flynn have filed in this Court an Amended Stipulation and Amended Findings and Recommendation of Discipline agreeing that Flynn’s conduct violated Canons 7A(3)(a), 7A(3)(b), 7A(3)(c), and 7A(3)(e)(i) of the Code of Judicial Conduct. The parties further agree that Judge Flynn should be disciplined by the imposition of a 25- day suspension without pay and a public reprimand. We accept the stipulation and findings and will impose the recommended discipline.

Promises, promises

According to the parties’ stipulation, Judge Flynn made or approved the following statements during his 2022 judicial campaign: “Support law enforcement”; “Support our law enforcement agencies”; “Criminals won’t be happy to see me on the bench[.] I am tough[;] if someone is found guilty the punishment should sting enough for the person to learn criminal behavior won’t be tolerated”; and “I will sentence based on history because that is the best indication of future behavior and if they have a history Grady’s Hotel (aka the jail) is open 24*7 365 days a year.” Because of these statements, when Judge Flynn took office, his chief judge had to make administrative adjustments to ensure that Flynn was not assigned to a criminal docket. Consistent with our precedents, we treat these stipulated facts as supported by clear and convincing evidence. In re Bailey, 267 So. 3d 992, 995 (Fla. 2019).

We agree with the Commission and Judge Flynn that these statements, viewed in their totality, constitute “very serious” misconduct.

Sanction

In fashioning its recommended discipline, the Commission noted Judge Flynn’s immediate acceptance of responsibility, his remorse, and his cooperation with the panel investigating his case. The Commission also considered Flynn’s newness to the bench and his clean disciplinary record as a lawyer and judge. We agree with the Commission that these are mitigating circumstances.

For all these reasons, we approve the Amended Stipulation and Amended Findings and Recommendation of Discipline in this matter. Judge Flynn is hereby suspended from his judicial duties  for 25 days, without pay, effective on a date within 30 days of the issuance of this opinion and as determined by the Chief Judge of the Tenth Judicial Circuit. We further order Judge Flynn to appear before this Court for the administration of a public reprimand at a time to be established by the Clerk of this Court.

(Mike Frisch)

False Affidavits, Statements Draw Sanction

An Ohio Supreme Court decision is summarized by Kathleen Maloney

The Supreme Court of Ohio today suspended a Cleveland attorney for one year, with six months stayed, based on actions while representing parents in child-neglect cases.

In a per curiam opinion, the Supreme Court found that Tyresha Brown-O’Neal violated ethics rules by filing falsely notarized affidavits in the juvenile court cases, making false statements to the court, failing to appear at hearings, inducing another attorney to violate professional conduct rules, and other misconduct.

Brown-O’Neal’s misconduct occurred during representation that began in 2021 in cases involving the alleged neglect of two minors. She was hired to represent the children’s mother and the father of one child. A court had ordered that the children be placed in the custody of others besides Brown-O’Neal’s clients.

As the cases progressed, Brown-O’Neal, who is also a part-time magistrate, did not appear at several court hearings on the matters. When filing a motion, Brown-O’Neal claimed to have notarized affidavits, even though she was not commissioned as a notary public.

She persuaded one child’s father, who had been given custody and had an attorney, to sign an affidavit stating that he made up allegations against her clients. She also failed to share the document with his attorney before the father signed it. She then convinced a colleague to notarize the affidavit, falsely saying that she had witnessed the man’s signature, which she had not.

Justices R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the opinion. Chief Justice Sharon L. Kennedy and Justice Patrick F. Fischer would have declined to stay part of the suspension. Justice Jennifer Brunner did not participate in the case.

Disciplinary Charges Filed, Parties Agree to Facts and Misconduct
The Office of Disciplinary Counsel filed a complaint against Brown-O’Neal in January 2024. The professional misconduct charges also included communicating directly with someone she knew had legal representation and failing to serve counsel with written motions.

The disciplinary counsel and Brown-O’Neal agreed to certain facts, misconduct, and mitigating and aggravating factors. After holding a hearing, the Board of Professional Conduct found Brown-O’Neal’s pattern of misconduct, multiple offenses, and harm to vulnerable people were aggravating circumstances, which could increase her sanction. Mitigating factors, which could lessen the sanction, were that she had no prior discipline, cooperated in the disciplinary proceedings, and submitted evidence of good character.

The board recommended to the Supreme Court that Brown-O’Neal be suspended for one year with six-months stayed with the condition that she commit no further misconduct. Neither party filed objections to the board report.

Supreme Court Highlights Inducing Colleague’s Misconduct and Magistrate Role
The Supreme Court opinion today noted that Brown-O’Neal made misrepresentations to the juvenile court and repeated them over time. She also involved her colleague – an attorney who worked for her – in her misconduct, and she falsely notarized documents.

The Court noted that an actual suspension is appropriate when an attorney causes another to violate ethics rules. In addition, a more serious sanction is justified when an attorney commits professional misconduct while holding a position of trust, as Brown-O’Neal does as a part-time magistrate.

“[W]e conclude that an actual suspension protects the public and demonstrates that this type of behavior, especially from those in a position of trust, is not acceptable,” the opinion stated.

2024-1109. Disciplinary Counsel v. Brown-O’Neal, Slip Opinion No. 2024-Ohio-5571.

(Mike Frisch)

False Affidavits, Statements Draw Sanction

An Ohio Supreme Court decision is summarized by Kathleen Maloney

The Supreme Court of Ohio today suspended a Cleveland attorney for one year, with six months stayed, based on actions while representing parents in child-neglect cases.

In a per curiam opinion, the Supreme Court found that Tyresha Brown-O’Neal violated ethics rules by filing falsely notarized affidavits in the juvenile court cases, making false statements to the court, failing to appear at hearings, inducing another attorney to violate professional conduct rules, and other misconduct.

Brown-O’Neal’s misconduct occurred during representation that began in 2021 in cases involving the alleged neglect of two minors. She was hired to represent the children’s mother and the father of one child. A court had ordered that the children be placed in the custody of others besides Brown-O’Neal’s clients.

As the cases progressed, Brown-O’Neal, who is also a part-time magistrate, did not appear at several court hearings on the matters. When filing a motion, Brown-O’Neal claimed to have notarized affidavits, even though she was not commissioned as a notary public.

She persuaded one child’s father, who had been given custody and had an attorney, to sign an affidavit stating that he made up allegations against her clients. She also failed to share the document with his attorney before the father signed it. She then convinced a colleague to notarize the affidavit, falsely saying that she had witnessed the man’s signature, which she had not.

Justices R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the opinion. Chief Justice Sharon L. Kennedy and Justice Patrick F. Fischer would have declined to stay part of the suspension. Justice Jennifer Brunner did not participate in the case.

Disciplinary Charges Filed, Parties Agree to Facts and Misconduct
The Office of Disciplinary Counsel filed a complaint against Brown-O’Neal in January 2024. The professional misconduct charges also included communicating directly with someone she knew had legal representation and failing to serve counsel with written motions.

The disciplinary counsel and Brown-O’Neal agreed to certain facts, misconduct, and mitigating and aggravating factors. After holding a hearing, the Board of Professional Conduct found Brown-O’Neal’s pattern of misconduct, multiple offenses, and harm to vulnerable people were aggravating circumstances, which could increase her sanction. Mitigating factors, which could lessen the sanction, were that she had no prior discipline, cooperated in the disciplinary proceedings, and submitted evidence of good character.

The board recommended to the Supreme Court that Brown-O’Neal be suspended for one year with six-months stayed with the condition that she commit no further misconduct. Neither party filed objections to the board report.

Supreme Court Highlights Inducing Colleague’s Misconduct and Magistrate Role
The Supreme Court opinion today noted that Brown-O’Neal made misrepresentations to the juvenile court and repeated them over time. She also involved her colleague – an attorney who worked for her – in her misconduct, and she falsely notarized documents.

The Court noted that an actual suspension is appropriate when an attorney causes another to violate ethics rules. In addition, a more serious sanction is justified when an attorney commits professional misconduct while holding a position of trust, as Brown-O’Neal does as a part-time magistrate.

“[W]e conclude that an actual suspension protects the public and demonstrates that this type of behavior, especially from those in a position of trust, is not acceptable,” the opinion stated.

2024-1109. Disciplinary Counsel v. Brown-O’Neal, Slip Opinion No. 2024-Ohio-5571.

(Mike Frisch)

No Right To Regrade Failed Bar Exam

The Massachusetts Supreme Judicial Court affirmed the denial of a regrading request of a bar applicant

The petitioner, Guy-Serge Semionov Douzan, appeals from a judgment of the county court denying relief from a report of non-qualification for admission to the Massachusetts bar. We affirm.

Douzan filed a petition for admission to the bar in December 2022. He sat for the bar examination in February 2023
and did not achieve a passing score. His score also did not entitle him to a "reread" of his written answers. The Board of
Bar Examiners (board) accordingly filed a report of non-qualification. This court dismissed his petition for admission to the bar pursuant to S.J.C. Rule 3:01, § 5.3, as appearing in 478 Mass. 1301 (2018). Douzan filed a petition seeking relief from the report of non-qualification. He alleged that his answers to three essay questions had been graded incorrectly, that he was entitled to either full or partial credit as to each answer, and that if these answers had been graded correctly, he would have received a passing score on the examination. The dismissal of Douzan's petition was stayed, and his request for relief was referred to the single justice. The single justice, after reviewing the materials submitted by Douzan and by the board, denied relief without a hearing. There was no error.

As an applicant for the Massachusetts bar, Douzan "is entitled to due process of law in the testing of his qualifications." Mead, petitioner, 372 Mass. 253, 256, cert. denied, 434 U.S. 858 (1977). However, he is not entitled to a rereading or a regrading of his examination. Id. "Nor is [he] entitled, in an attempt to show that his examination was wrongly graded, to the due process provided by an adversary hearing with the right to introduce evidence before an impartial fact finder." Id. "Courts have consistently refused to regrade examinations, usually on the premise that the right of
reexamination is a sufficient guaranty of fairness." Id. Douzan has an "unqualified right" to be reexamined. Id.

Accordingly, the single justice neither committed an error of law nor otherwise abused his discretion by denying relief.

(Mike Frisch)

In The Shadow Of John Lennon

The New York Court of Appeals reversed an Appellate Division decision regarding a lien for unpaid legal fees

On this appeal, we must determine whether a lienholder nonparty to an action that resulted in a fee award against a debtor may challenge the legal basis of the judgment in a separate proceeding to recover those fees. We conclude that because the nonparty was neither joined nor required to intervene in the action against the debtor, it had no prior opportunity to challenge the award and thus is not barred from doing so in this proceeding. Therefore, we reverse the contrary order of the Appellate Division and remit to that Court for further proceedings.

The litigation 

In 2001, Alphonse Fletcher, Jr. acquired certain property associated with two apartment units in a residential cooperative corporation, controlled by The Dakota, Inc. (“The Dakota”). The Dakota holds a perfected lien against that property. In 2008, JP Morgan Chase Bank, N.A. (“Chase”) approved a multimillion-dollar loan to Fletcher, which he secured by immediately assigning to Chase his rights, title, and interest in the property. Shortly thereafter, Fletcher, Chase, and The Dakota entered into an agreement whereby Chase recognized The Dakota’s priority to the proceeds of any sale or subletting of Fletcher’s apartments (“the Agreement”).

In 2011, Fletcher sued The Dakota for, among other things, alleged racial discrimination (“the Fletcher action”). The Dakota counterclaimed for legal fees and costs...

The lienholder

While the Fletcher action was pending, and before Supreme Court issued its fee award on The Dakota’s counterclaim against Fletcher’s former law firm, petitioner Kasowitz, Benson, Torres & Friedman, LLP (“Kasowitz”), commenced this CPLR 5225 proceeding against Chase, The Dakota and Fletcher that is the subject of this appeal. Kasowitz sought the seizure and sale of Fletcher’s apartments to satisfy a judgment against Fletcher for unpaid legal fees. The Dakota answered, claiming, first, that it held an interest in Fletcher’s property arising from the fee judgment in the Fletcher action and, second, that this interest was superior to that held by Chase. Chase countered that The Dakota did not hold a superior lien because Paragraph Fifteenth authorized attorneys’ fees only in actions against The Dakota initiated by lessees in default and Fletcher was not in default when he sued The Dakota. In the alternative, Chase argued that if Paragraph Fifteenth were to apply to actions initiated by lessees not in default, the provision would be unconscionable.

In 2021, Supreme Court granted summary judgment to The Dakota, concluding that Paragraph Fifteenth “clearly and unambiguously” allowed The Dakota to recover attorneys’ fees from Fletcher. The Appellate Division affirmed (209 AD3d 529 [1st Dept 2022]). The Appellate Division concluded, in relevant part, that Chase’s contentions amounted to an “impermissible collateral attack on the Dakota’s judgment” in the Fletcher action (id. at 530-531). The Court further stated that “[i]f Chase wants to vacate the Dakota’s judgment, it must move before ‘the court which rendered the judgment’ ” (id. at 530, quoting CPLR 5015 [a]).

Intervention

To the extent that the Appellate Division suggested that Chase was required to intervene in the Fletcher action to protect its interests, we disagree. Such requirement is inconsistent with New York’s Civil Practice Law and Rules and with federal due-process principles.

(Mike Frisch)

No Hearing In Reciprocal Discipline Matter

The Michigan Attorney Discipline Board ordered reciprocal disbarment based on a sanction imposed in California, described by the California State Bar Court Review Department

This is respondent Lenore LuAnn Albert’s third discipline matter since she obtained her law license in December 2000. Her first discipline occurred in 2018 and resulted in a 30-day actual suspension. The second discipline matter resulted in a six-month actual suspension issued in 2019. Both suspensions continued until April 2021, once all costs associated with each suspension were paid. The instant matter involves Albert’s actions, while suspended by the California Supreme Court, in two cases pending in the United States District Court (USDC) for the Eastern District of California (EDCA). Albert was charged in six counts that alleged failure to comply with the EDCA Local Rules, the unauthorized practice of law (UPL) in both California and the EDCA, and UPL as moral turpitude. The hearing judge found culpability on all counts, except moral turpitude. The hearing judge further determined that even though this is Albert’s third discipline matter with disbarment presumed, disbarment was not warranted as Albert presented sufficiently compelling mitigation that clearly predominated. (Rules Proc. of State Bar, tit. 4, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.8(b).) The hearing judge recommended an actual suspension of 18 months.

Both Albert and the Office of Chief Trial Counsel of the State Bar (OCTC) appeal the hearing judge’s decision. OCTC seeks disbarment. Albert argues for a dismissal of all counts or, in the alternative, no actual suspension and a probationary period of six months. Alternatively, she seeks a reproval or an admonition. Both parties challenge various
determinations regarding aggravating and mitigating circumstances. After an independent review of the record (Cal. Rules of Court, rule 9.12), we find Albert culpable on all six counts, and that mitigation does not substantially outweigh aggravation. We find Albert’s disbarment is called for under our disciplinary standards and applicable case law, and we so recommend.

Here

The panel denied respondent’s motion to expand the record and request for a hearing finding that respondent was afforded due process in the disciplinary proceedings conducted by the California State Bar, and that it would not be clearly inappropriate to impose comparable discipline in Michigan.

(Mike Frisch)

Mischief Maker: Khaki Pants And That Black Shirt

The Missouri Supreme Court is scheduled hear argument on January 7, 2025 in a matter in which a prosecutor had accessed the computer of an assistant public defender without authorization and sent an email to the elected sheriff.

The computer was left in a jury room unattended while the public defender was in the courtroom "to do a felony plea"

From the brief of Chief Disciplinary Counsel quoting Respondent's testimony in part

Prior to June 9, 2023, Respondent had the idea of playing a prank on an unsuspecting lawyer by sending an email from their unattended computer to the elected sheriff of Jefferson County (“the sheriff”):

The idea of sending such an email to the sheriff from a lawyer’s computer had occurred to me months before, the idea of doing it. Now, whether it was going to be from [CA]’s or a public defender’s laptop, in fact, I had a couple other targets picked out, but I never did have the opportunity to do it. (Tr. 90-91)...

Respondent testified that he “intentionally” accessed CA’s computer without permission. (Tr. 93). He sat down in between “[PS] and [TG]” and saw the open email screen. (Tr. 93-94). Respondent stated that knew what he was going to type: “It would be both surprising, shocking and amusing.” (Tr. 92)

The email

The “sent” email at 9:40 a.m., with CA’s Missouri State Public Defender Office’s signature block, read:

[First name of the sheriff],

You look sooooo good in Khaki pants and that black shirt.

Warm Regards,
[CA’s first and last name] (R. 15, Ex. 1).

According to Respondent, “the black shirt in question is a black polo shirt that the sheriff had instituted shortly after he became the sheriff as part of their informal uniform. The sheriff’s black polo shirt has a badge together with the name [last name of the sheriff] and Sheriff.” (Tr. 96)...

Respondent testified that he had been waiting for an opportunity to send a flirtatious email to the sheriff from an  unsuspecting attorney’s unattended computer. He confessed to intentionally accessing CA’s computer and sending the email. He narrated his actions aloud to the two young attorneys who were present. (Tr. 91-5). His deliberate actions were rewarded with “Schadenfreude” and laughter from the attorneys present and others who heard about it, enhancing his self-described reputation in the legal community as a “mischief maker.” (Tr. 95-7, 100).

Additionally, Respondent knew that when he was accessing CA’s computer, he was bound by the Jefferson County Personnel Administration Program, which required him to maintain good relations and abide by internet rules prohibiting the sending of: “Hate mail, harassment, discriminatory remarks, and other antisocial behaviors using the internet.” (R. 17-21, Ex. 3).

Moreover, Respondent knew that he was accessing the public defender’s computer system via the Wi-Fi connection, which gave him access to confidential client information. (Tr. 93-4).

Furthermore, Respondent, an experienced prosecutor, knew the criminal justice system holds him to an appearance of impropriety standard. See Boyd, 560 S.W.2d at 297. He admitted that his actions created an impropriety. (Tr. 110-11). A seasoned prosecutor cannot credibly complain surprise if a defendant, aware of a prosecutor’s appearance of impropriety, files a motion to disqualify.

Proposed sanction

Informant also asks the Court to suspend Respondent’s license indefinitely. He should not be eligible for reinstatement for at least six months.

Finally, Informant asks the Court to tax all costs in this matter to Respondent, including a $1,000.00 fee pursuant to Rule 5.19(k).

Respondent's brief is linked here.

I am accused of harassment based on sex or sexual orientation. I deny violating that rule, partially because I had no client. I did comment on the sheriff looking good in certain clothes. I admit the comment, taken without context or nuance, was flirtatious. It was also clearly impossible and was not taken as true by anyone.

Informant likens my behavior to that of (then) assistant prosecutor Ambry Nicole Schuessler. Schuessler lied during the investigation into criminal misconduct by other prosecutors and a policeman. She compared the forcing of that policeman’s pistol into a man’s mouth to an act of fellatio. The difference is not one of degree, but of kind. Schuessler’s  conduct shocks the conscience. Mine causes heads to shake.

Conclusion

I deeply regret my conduct and the trouble other people have been put to on account of it. I should not have done it. I have been punished by my employer, I have expressed contrition here and elsewhere and I wish to continue to serve the public in the role I have filled for 17 years.

Given that I admit breaking the rules of professional conduct, it seems inappropriate to ask this court for no discipline, as recommended by the lone dissenting voice on the hearing panel. Because Informant has rejected the decision of the disciplinary hearing panel, an admonition is not possible. Under Rule 5.17(a)(1), this court may impose a reprimand. As to the Informant’s request to suspend my law license, Rule 5.175(a) allows for probation with or without a stayed suspension...

(Mike Frisch)