Saturday, September 25, 2021

"A Lawyer Did It, So It's Done"

The Law Society of Alberta Hearing Committee has found misconduct in an attorney's assistance in her client's dishonesty

 Margaret Wheat (Wheat) is an experienced senior Alberta lawyer practicing in Vermillion, Alberta. She represented her client, RM, respecting estate planning and matrimonial matters in 2018 and 2019. As at November 2018, RM had been married to his wife, MM, for over thirty years; however, their relationship was deteriorating. RM had a brain tumour and a physical disability. In late 2018, RM sought advice and representation from Wheat. RM wanted to preserve for himself and his eldest son, JM, farmland jointly owned by the couple, including the matrimonial home. After exploring options with Wheat, RM instructed Wheat to prepare a lease agreement to lease the farmland to JM.

Wheat knew by February 2019 that MM would not consent to the lease of lands she owned jointly with her husband to their son. Wheat also knew that MM’s agreement and consent was required to lawfully make the disposition. Wheat’s initial draft of the lease agreement had a blank signature line for MM as a party to the lease. RM did not sign that version of the agreement. Instead, he instructed Wheat to revise the agreement drafted to remove MM’s signature line and to show that RM was signing the lease agreement on MM’s behalf. Despite multiple documented concerns on executing the agreement without MM’s involvement or knowledge, Wheat changed the draft agreement to show that RM was signing the lease to JM on his own behalf and on MM’s behalf as well.

 Wheat then acted as witness while JM and RM executed the agreement. Wheat, RM, and JM knew well that MM had not agreed to the lease and would not agree to the lease. They likewise knew that MM had given RM no authority to sign any such document on her behalf.

Notably in aid of understanding the story and the attorney's role

Wheat’s legal practice style included the commendable practice habit of papering her file with memoranda to document instructions from her client, thoughts on the file, and instructions to her staff. Her counsel described the memo style as “stream of consciousness” dictation.

The report sets out the attorney's various efforts to achieve the client's objective

Throughout this time, MM did not know that RM was taking steps to lease the Farmland to JM without MM’s consent.

On or around March 19, 2019, MM saw an envelope from Wheat’s law firm at the matrimonial home. She asked her husband what it was. He said it was nothing. She recognized the “LLP” from Wheat’s firm as a legal term. The next morning, MM saw the open letter on a stool and opened it. She confronted her husband on the contents and he asserted to MM that he had leased the Farmland to their son JM.

 MM immediately disputed the validity of the document. MM’s evidence was that she told her husband there’s no way a lease could be done without her being present. She said his response was, “Yeah, it can be.” He said, “A lawyer did it, so it's done."

Wishful thinking on RM's part

After the events of March 2019, MM and RM proceeded to litigation. MM stated that she lost significant sums because, although both actions ultimately settled, she incurred $139,000 in legal fees, including $74,000 in fees for the action against Wheat, RM, and JM. The $74,000 was separate and apart from her fees in the divorce itself. MM’s view was that she was financially compromised both because of the divorce and because of the conduct of Wheat, her husband, and her son. She testified she had mental distress, physical fatigue, and financial distress.

It must be noted that relations between MM and her husband and son were unravelling before Wheat was ever retained. MM stated that JM prevented his children from seeing their grandmother in 2018. MM said that JM was not attending to proper payment of a loan from his parents and that, as early as 2017, JM redirected funds payable to his parents for himself. She said that after the lease agreement was signed, JM stopped repayment of the loan from his parents altogether. Neither RM nor JM gave evidence at the hearing. Wheat’s understanding from RM and JM was that the marriage was beyond repair prior to the preparation of the lease agreement. Her understanding preceded any issue with the matter under consideration for this hearing.

As to the attorney's lawful options presented to the client

Unfortunately, Wheat’s client instructed none of these options. At the critical moment of execution on March 11, 2019, the client instructed something Wheat knew he had no authority to do, something that would render the putative executed agreement to be a misrepresentation at its core. Unfortunately, Wheat capitulated to her client’s request. She put in place an agreement that she knew was false on its face to advance her client’s dishonest intent.

We agree with Wheat that the memos reflect her intent leading up to the execution of the agreement on March 11, 2019. Unfortunately, her actions on March 11, 2019 betrayed and contradicted that intent. Her intent was no longer to find an ethical solution to a thorny problem. Wheat’s file history showed she was aware of multiple legitimate paths forward, and instead, at her client’s insistence, she took the path that facilitated dishonesty on the face of the agreement to her certain knowledge.

A hearing on sanction will follow

In revising the agreement to ostensibly depict an agreement that Wheat knew did not exist, in falsely reflecting that RM had MM’s authority to execute the agreement, and then in executing it as witness with RM and JM, she assisted her client in dishonest conduct. It is not necessary to consider the continuum of misconduct in this matter as was considered in Shah. The Committee finds Wheat had actual knowledge of her client’s dishonest conduct. We find the LSA has proven the citation on a balance of probabilities. Dishonest conduct and deprivation have been established as has been Wheat’s integrity breach in assisting it. Wheat’s conduct is worthy of sanction.

(Mike Frisch)

September 25, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 24, 2021

Good Deeds, Voluntary Cessation Of Practice Mitigates Sanction

A nine month suspension has been imposed by the New York Appellate Division for the First Judicial Department

We turn first to the stipulated facts of respondent's misconduct. Shortly after her admission to the bar, respondent established a not-for-profit organization to work with New York City youth. While respondent was the organization's sole employee during its first years, the organization grew to have over 15 employees and a $2,000,000 operating budget. From the organization's founding until 2018, respondent served as executive director.

Between 2016 and 2018, respondent's principal role as executive director was administrative and involved overall office management and fundraising. Respondent was authorized to set the salary of other staff members. Her salary, however, was set by the organization's board of directors.

Between 2016 and 2018, respondent, who oversaw the organization's finances, increased her compensation without board approval. Respondent did this by distributing organization funds to herself without authorization.

In 2018, representatives of the organization questioned respondent following a review of the organization's financial records. Respondent admitted that she made unauthorized distributions to herself. She agreed to repay $51,984, the full amount that the organization sought. Respondent stepped down as executive director on March 1, 2019. The organization's programming was not prejudiced by respondent's conduct.

Respondent repaid the organization a total of $11,984, and the organization's insurance covered the remaining $40,000 balance. Respondent has signed an agreement with the insurer and is currently in repayment.

Mitigation

In mitigation, the parties note that respondent has devoted her career to public service. Before attending law school, respondent worked at a not-for-profit organization serving a vulnerable population primarily from South America. In 2004, while employed by another not-for-profit organization, respondent established a youth program. This experience led to her founding the organization for which she would serve as executive director.

Between 2016 and 2018, respondent and her family experienced significant financial distress stemming from debt incurred, in part, because of her husband's disability. Respondent borrowed fully against her retirement account, was unable to obtain a bank loan, and risked being evicted from her apartment.

Respondent has expressed remorse, immediately accepted responsibility, and has fully cooperated with the Committee's investigation. She left all of her positions in the legal profession to avoid embarrassing others.

In February 2021, respondent voluntarily ceased the practice of law. Until that time, she was engaged in a small amount of pro bono work in immigration matters. Respondent has never engaged in the private practice of law; her only work as an attorney has been with non-paying, low-income clients.

Sanction

As to the appropriate sanction, the parties request that respondent be suspended from the practice of law for nine months. We agree that a nine-month suspension is appropriate, since it adequately balances respondent's misappropriation of her organization's funds over a three-year period with the factors in mitigation and is consistent with our prior decisions (see Matter of Lerner, 112 AD3d 144 [1st Dept 2013]; Matter of Vasquez, 1 AD3d 16 [1st Dept 2003]).

(Mike Frisch)

September 24, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Extension Of Conditions Did Not Void Consent Discipline

The Michigan Attorney Discipline Board affirmed an order modifying conditions imposed with a consent reprimand.

The misconduct 

The formal complaint filed by the Grievance Administrator alleged that respondent committed professional misconduct by engaging in conduct involving a violation of a criminal law. The complaint contained factual allegations that indicated that on or about August 3, 2018, the Grosse Pointe Farms Department of Public Safety (the police) responded to a disturbance near respondent's home. The police obtained a warrant, searched respondent's home, and discovered four small baggies with residue powder of cocaine, three charred glass crack pipes, a pink straw with white powder residue on it, one Xanax bar, and one Xanax pill. (Formal Complaint ¶¶ 5-8.)

The Wayne County Prosecutor's Office filed a complaint against respondent in Grosse Pointe Woods Municipal Court, People v Donald Michael Cherry, Case No. 18-71583601, for felony possession of cocaine. On or about October 24, 2018, respondent entered a no contest plea to attempted possession of an analogue, in violation of MCL 333.7402(2)(b), a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000 or both. On or about November 14, 2018, respondent was sentenced and he requested, and received, a
deferred sentence of 18 months of probation pursuant to MCL 333.7411. (Formal Complaint ¶¶ 9-11.) The complaint alleged violations of MCR 9.104(2)-(5); and MRPC 8.4(a) and (b). (Formal Complaint ¶¶ 12(a)-(e)).

The modification extended supervision beyond the 18 months agreed to in the consent to discipline.

Respondent contended that the modification was a breach of the consent 

On review, respondent argues that the Administrator materially breached the terms of the parties' stipulation by later advocating for terms longer than the 18 months agreed to by the parties. Respondent further argues that this material breach essentially voids the conditions entirely. The Administrator argues that respondent did not meet his burden, to establish by clear and convincing evidence, that he made a good faith effort to meet the LJAP monitoring condition imposed in the panel's order but that it was impractical to fulfill the condition, so as to be entitled to abatement or modification of the conditions.4 However, the Administrator's counsel conceded to the panel, and now on review, that modification was warranted.

The board

We conclude that the modified conditions, namely that for 22 months respondent attend psychotherapy/cognitive behavioral therapy twice a month, receive treatment once per month from a psychiatrist, and submit to random drug testing once per month, are relevant to the established misconduct, as contemplated in MCR 9.106(3). Furthermore, given respondent’s displeasure with LJAP’s recommendations for monitoring and his specific request that his LJAP clinical case manager be replaced, the Board is not persuaded that the hearing panel's decision to modify the  conditions in this matter was inappropriate.

(Mike Frisch)

September 24, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Pre-Approval Required

The Mississippi Supreme Court affirmed a reduced award of attorneys fees sought in an estate matter

To collect attorney’s fees from an estate, court approval is required.  So if an attorney is paid from an estate without court approval, he “takes the fee subject to the peril of having it disapproved later by the chancellor.”  That is what happened here. Obert Law Group collected more than $180,000 in attorney’s fees from Dr. Edwin Holt’s estate. But it did so without first seeking court approval. After a two-day hearing, the chancellor determined only $96,951 of the attorney’s fees in the estate matter were reasonable. So he ordered Obert Law Group reimburse the estate $84,945.

The story

At the time of his death, Dr. Holt was finalizing a divorce in Texas and seeking to have his dental license reinstated in Mississippi. Dr. Holt had hired first-year attorney Joshua Stretch to represent him in the dental-licensure matter. Due to his inexperience, Stretch associated more seasoned attorneys at Obert Law Group, Keith Obert and William Brown. When Dr. Holt died, Stretch still held $73,000 as a yet-to-be-earned retainer on the licensure issue.

Dr. Holt died tragically by his own hand at age forty-five. He left five minor children. Stretch drove Dr. Holt’s mother, Janet Holt, to the funeral. According to Janet, on the way back from the funeral, Stretch approached her “about the estate.” Two days later, Stretch emailed Janet, who became the estate’s executrix. He told her he wanted to handle the matter but he would need to bring in Obert for his expertise in estate matters. Stretch, Obert, and occasionally Brown began working immediately on estate matters. Their efforts included locating and protecting estate assets and dealing with Dr. Holt’s ex-wife, who strenuously asserted the divorce was never finalized so she was Dr. Holt’s heir and not her five minor children.

Stretch did not return the remainder of the prior dental-licensure retainer to Dr. Holt’s estate. Instead, he submitted this money to Obert Law Group, which in turn used this money to pay its first $73,000 in bills to the estate. After exhausting this money, Obert Law Group billed the executrix. The attorneys did not seek prior court approval of their attorney’s fees. Nor did they advise the executrix the bills should be court-approved before she paid them. Instead, because Janet believed she had no reason to question the invoices, she simply wrote checks from the estate to pay the invoices submitted to her—totaling $110,800. In seventeen months of representing the estate, Obert Law Group collected $181,896 in attorney’s fees.

Their representation of the estate ended when Janet petitioned the court to replace Stretch, Obert, and Brown with new counsel. At this point, their motion for final accounting and attorney’s fees had yet to be approved by the court. And before approval, the trustee of the revocable trust established by Dr. Holt, to which he had bequeathed the residuary of his estate for the benefit of his family, petitioned the court for the return of all the fees they had collected. The trustee asserted Obert Law Group had never sought preapproval of its attorney’s fees and had never advised Janet of her duty to first seek court approval before paying Obert Law Group with estate assets. The trustee also alleged Obert Law Group padded its bills and mismanaged the estate.

The court found that the trial court had fairly evaluated the reasonableness of the fees under Rule 1.5.

The chancellor entered a detailed order in which he considered the factors set forth in Mississippi Rule of Professional Conduct 1.5 for reasonable attorney’s fees.

Advice

Had Obert Law Group’s bills been submitted to the court for prior approval, this fight would have without question been largely tempered. The lawyers would have discovered quickly that the chancellor took a much more frugal view as to the time and labor required and the reasonableness of the charged fees than the attorneys did.

Dissent

Because I find the chancellor has not made this award with clarity and consistency with the lodestar method, I respectfully dissent. The chancellor’s order should clearly set forth and allow this Court to discern the chancellor’s rationale that $96,951 was a reasonable amount for attorneys’ fees and that $84,945 was unreasonable. It did not.

(Mike Frisch)

September 24, 2021 in Billable Hours | Permalink | Comments (0)

Thursday, September 23, 2021

"Judicial Economy Is Not Served By Kicking The Can Down The Road"

A plea for delay in imposing final discipline after a felony conviction fell on deaf ears at the Mississippi Supreme Court

Richard L. Reynolds, a Mississippi licensed attorney, pled guilty to a felony on December 15, 2020, in a Texas federal court. The Mississippi Bar has filed its formal complaint seeking disbarment. Louisiana and Texas, where Reynolds is also barred, have disciplinary actions pending. Reynolds suggests that judicial economy dictates Mississippi await another jurisdiction’s decision. He asks that Mississippi defer until a final decision is made in Louisiana and that his discipline would be dependent upon what Louisiana decides. We decline and instead disbar Reynolds and revoke his license to practice law in this state.

...Reynolds is facing disciplinary action in Louisiana, Mississippi, Tennessee, and possibly Texas. Reynolds argues that judicial economy would best be served by suspending these proceedings to allow Louisiana to determine the extent of his punishment related to a crime committed in Texas. This Court finds his argument not well taken

This Court applies Mississippi rules to the breach of Mississippi rules and imposes appropriate discipline based on Mississippi rules and procedure. M.R.D. 1. By asking this Court to delay action while awaiting another state’s decision only delays the inevitable. Our rules require disbarment. The discipline of disbarment “serves to help to preserve the dignity and reputation of the legal profession and also ensures protection of the public from such conduct.” Murphy, 675 So. 2d at 845 (internal quotation marks omitted) (quoting In re Reinstatement of Baker, 649 So. 2d 850, 853 (Miss. 1995)). Judicial economy is not served by kicking the can down the road. Judicial economy and the people of this state would best be served by Reynolds’s immediate disbarment.

NBC DFW 5 reported on the crime

A federal judge in Dallas has sentenced an attorney to six months in federal prison for his role in the bribery scandal that spelled the end of Dallas County Schools, the agency that used to operate the school buses for Dallas ISD and a number of other local school districts. 

New Orleans lawyer Richard Reynolds is the sixth person to be sentenced in connection with an FBI investigation into the financial collapse of DCS, a scandal first uncovered in a months-long NBC 5 investigation.

Reynolds admitted he used his law firm to help facilitate and conceal some of the bribe payments made by school bus camera company owner Robert Leonard to Dallas County schools superintendent Rick Sorrells. Leonard and Sorrells are currently serving seven-year terms in federal prison, for their roles in the scheme which involved more than $3 million dollars in bribes and kickbacks which Sorrells spent on items including a Maserati, jewelry, and a luxury New Orleans vacation apartment, where NBC 5 Investigates found Sorrells in 2017.

The scandal at DCS stretched all the way to Dallas City Hall, where Mayor Pro Tem Dwaine Caraway admitted taking $450,000 in bribes, some of that in exchange for a vote that allowed the DCS bus camera program to continue operating. Caraway is serving a four and a half year sentence.

(Mike Frisch)

September 23, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Qualified Immunity No Bar To Bar Discipline

The Nevada Supreme Court has held that the doctrine of qualified immunity does not preclude the State Bar from seeking and the court imposing professional discipline on an elected official.

The matter involves the duly elected District Attorney of Nye County, who was the subject of a disciplinary complaint alleging a conflict of interest in dealing with the complaint of a dismissed subordinate.

The accused attorney had terminated an assistant district attorney allegedly for poor performance.  The assistant appealed the termination and claimed it was retaliation for an attempt to unionize the ADAs.

A scheduled hearing on the termination was cancelled after he gave the county resources director ex parte legal advice that the assistant was an "at will" employee.

The terminated assistant filed the bar complaint.

The alleged misconduct involved the accused attorney's conflict of interest in giving that advice.

A disciplinary hearing panel found the violation by a 2-1 vote and recommended a reprimand.

The court affirmed the reprimand.

Justice Pickering concurred on the qualified immunity issue but dissented on the sanction.

The case is In the Matter of Discipline of Christopher Arabia. (Mike Frisch)

September 23, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 22, 2021

PAC Man

The Colorado Presiding Discipline Judge approved a conditional admission of misconduct and imposed disbarment

In June 2016, Call’s law firm entered into an agreement to represent a political action committee (“PAC”); as part of that agreement, Call agreed to act as the PAC’s treasurer. In January 2017, Call contracted with the PAC in his personal capacity to provide strategy and fundraising services for a monthly flat fee of $5,000.00. Call authorized the contract on behalf of the PAC and signed for both parties. He did not obtain the PAC’s written informed consent concerning possible conflicts of interest arising from transacting with the organization for personal business while acting as its treasurer, nor did he advise the PAC in writing that the advice of independent counsel would be desirable. Call also did not obtain the PAC’s written informed consent to the essential terms of the contract, including whether he was representing the organization in the matter. He never disclosed the contract to his law firm.

In October 2016, the PAC received a $1,000,000.00 contribution from a donor who had previously contributed the same amount. A fundraising consultant deposited the money directly into the PAC’s account. Call did not include the donation in federal reports in 2016 and 2017. He says that he realized he had made a mistake in 2018 during a review of the PAC’s federal reports, after which he submitted an amended federal report that included the donation. From September 2016 to January 2019, Call withdrew or wired to himself PAC funds, some of which he mistakenly withdrew and later reimbursed. He also disbursed to himself PAC funds and reported to federal authorities that the funds were paid to his firm, even though the firm did not receive the payments. In June 2019, the PAC fired Call after discovering the discrepancies between its disbursements and the federal reports he filed. Afterward, Call did not return all of the PAC’s papers and property in his possession. In addition, he misled his law firm about the disbursements and concealed from its partners and the PAC’s counsel information about the disbursements he had made to himself. He resigned from the law firm in August 2019.

The conditional admission does not concede a violation of Rules 1.15 (misappropriation) or 8.4(c)(criminal conduct) but admits dishonesty, conflict of interest, false statement to a third party and business transaction with a client.

The Colorado Sun reported

The funds allegedly were taken from Rebuilding America Now PAC, created in 2016 by former Trump campaign chair Paul Manafort and Tom Barrack, a real estate investor.

The complaint was filed before the state Supreme Court’s presiding disciplinary judge. It alleges that Call failed to report a $1 million contribution to the PAC for more than two years.

Editor's note: Who better to allegedly steal from?

Colorado Newsline also had a story that included his initial denial of the allegations

In Call’s response to the OARC’s disciplinary complaint, Call’s attorney, Nancy Cohen, provides a variety of explanations for the alleged $280,000 in “misappropriated” funds. Regarding several large payments that Call had falsely reported to the FEC as being made to his employer, the law firm Hale Westfall, the response claims that he accidentally failed to report the payee as himself “c/o” Hale Westfall. “His omission of ‘c/o’ was inadvertent and immaterial,” the response states.

A $10,000 payment Call made to himself in December 2016 is characterized as a “bonus for the election win,” similar to bonuses received by several other officers of the PAC. Call’s response admits that he entered into a $5,000-per-month consulting contract with RAN, signing the contract both as RAN’s treasurer and for himself in his personal capacity, but it claims that the contract was legitimate and that other individuals involved with RAN were aware of the contract.

“Respondent had lawful authority, explicit and implicit, to make payments to himself for the consulting work performed by him,” the response states. “Respondent provided consulting services that had value to RAN and it would be an unjust enrichment to RAN if RAN did not pay for those services.”

Jessica Yates, head of the Office of Attorney Regulation Counsel, told Newsline that her office’s investigation originated from a report made in May 2020 by Allan Hale, Call’s former partner at Hale Westfall. Hale confirmed that he had made the referral, pursuant to Colorado Bar Association rules that require the reporting of professional misconduct.

“These circumstances are very rare, in my experience,” Hale, who has practiced law in Colorado for more than 30 years, told Newsline in an interview. “The Office of Attorney Regulation (Counsel) is very capable of doing the investigation, and so that’s why — that’s what our job is, to turn it over to them. We’ve taken the steps that we thought were necessary to make the referral, and fire Ryan.”

(Mike Frisch)

September 22, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Assistance To A Friend

A fully stayed one year suspension has been ordered by the Ohio Supreme Court based on findings of incompetence and a business transaction with a client

Polly-Murphy was an associate with the firm of Cooke Demers, L.L.C., from December 2014 until April 25, 2019. She performed creditors’ rights work for institutional-lender clients.

During her tenure with Cooke Demers, Polly-Murphy provided legal assistance to a friend in connection with the creation of Advanced Health Brands (“AHB”), a company that was developing transdermal patches. Polly-Murphy had a 1 percent ownership interest in and was an officer of AHB. She also provided legal services to Nutriband, Inc., a health and pharmaceutical company focused on transdermal and topical technologies for product development that entered into an agreement to acquire AHB. Polly-Murphy prepared a share exchange agreement on behalf of AHB in connection with that acquisition, and based on the terms of the acquisition, she acquired an ownership interest in Nutriband. Although it was Polly-Murphy’s responsibility to inform Cooke Demers of any clients that she undertook to represent, she did not inform the firm that she was performing legal services for those companies. Nor did she employ the firm’s standard practices for establishing those companies as new clients.

Before Nutriband acquired AHB, Nutriband’s CEO asked PollyMurphy to furnish a legal opinion in response to an inquiry from the United States Securities and Exchange Commission (“SEC”). The applicability of United States Food and Drug Administration (“FDA”) regulations to AHB’s transdermal patches was central to the SEC inquiry. On April 24, 2017, Polly-Murphy furnished a legal opinion to Nutriband stating that AHB’s transdermal patches did not require approval from, and were not otherwise regulated by, the FDA—but her opinion was legally wrong.

In May 2017, shortly after Nutriband’s acquisition of AHB closed, an SEC attorney e-mailed Polly-Murphy regarding its investigation of Nutriband. In December 2017, the SEC issued a subpoena to Polly-Murphy directing her to produce documents related to the Nutriband investigation. Polly-Murphy cooperated, providing the SEC with documents and two sworn declarations regarding the legal opinion that she had provided to Nutriband about the FDA’s regulation of its transdermal patches.

 In addition to her April 2017 legal opinion, from the fall of 2017 through the spring of 2018, Polly-Murphy prepared 10 to 12 “144 letters” for  Nutriband on Cooke Demers letterhead, authorizing Nutriband shareholders to sell their restricted shares. See Securities Act Rule 144, 17 C.F.R. 230.144. In early May 2018, Nutriband’s CEO sent a text message to Polly-Murphy indicating that she would be receiving a payment for her past legal work, and on May 29, he made a direct deposit of $5,000 into Polly-Murphy’s personal bank account. Polly-Murphy did not inform Cooke Demers that she had received that payment.

On December 31, 2018, an attorney representing Nutriband wrote to Polly-Murphy and Cooke Demers seeking the preservation of documents in anticipation of a malpractice suit based in part on Polly-Murphy’s faulty opinion regarding FDA regulation of transdermal patches. Prior to receiving that letter, Cooke Demers had no knowledge of Polly-Murphy’s activities on behalf of AHB or Nutriband—or her cooperation in the SEC investigation.

On April 25, 2019, Cooke Demers terminated Polly-Murphy’s employment after conducting a detailed investigation. Nutriband commenced litigation against Polly-Murphy and AHB shareholders in Florida and New York, alleging fraud and seeking a return of its shares, in part because AHB’s transdermal patch “does not work and has failed to get FDA approval.”

On December 26, 2018, the SEC issued a cease-and-desist order, finding that Nutriband had made misleading statements regarding the FDA’s jurisdiction over its products in six public filings and imposing fines of $25,000 against Nutriband’s CEO and CFO. Cooke Demers and its partners entered into a nconfidential agreement with Polly-Murphy, settling all of their claims arising from the legal work that she had performed for AHB and Nutriband.

A dissent favors an 18 month stayed suspension with conditions. (Mike Frisch)

September 22, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 21, 2021

A Mighty Fortress

A majority of the Illinois Review Board has recommended a three-year suspension for false expense charges

Respondent began working at Vedder Price P.C., a large international law firm, as a summer associate in 2005. After being licensed to practice law, he remained at Vedder Price, became a shareholder in 2014, and continued practicing until his termination in October 2019. One of his clients was Fortress Investment Group, which provides finance and leasing services to airlines. Under its contracts with its customers, Fortress could pass its expenses, including legal fees, onto its customers.

Between January 2018 and September 2019, Respondent created and sent nine invoices to Fortress customers, including Azur Havaciliki A.S. (“Azur”) (a company that leased airplanes and had leasing agreements with Fortress), while knowing that those invoices sought payment for services in which Fortress already had paid. Based on those invoices, Fortress customers remitted almost $109,000 to Vedder Price. Those funds, Respondent admitted, belonged to Fortress.

As a part of his scheme, Respondent instructed the Vedder Price accounting department to reactivate a dormant account that had been assigned to his former client, the L. Martinez Construction Company; and he further instructed the accounting department to credit the payments made on the false invoices to the Martinez Construction account, which was done.

Around the same time, Respondent prepared a false invoice in the amount of $7,488 directed to another client, GA Tellesis, using the Martinez Construction account number on the invoice, which caused payment on the false invoice to be credited to that account.

As Respondent was creating and submitting false invoices, he sent requests to Vedder Price’s accounting department seeking payment from the reactivated Martinez Construction account purportedly to reimburse him for expenses. For example, he requested reimbursement of $2,140.18 for fees related to a “client event” and a “race day” event (Adm. Ex. 5); $2,599.99 for the purchase of a crossbow, purportedly as a gift for someone with whom he had gone on a hunting trip (Adm. Ex. 10; R. 52); $13,772.43 for airfare (Adm. Ex. 13); and $16,986.46 for first-class plane tickets to Moscow, which he did not use and for which he received a credit to his personal credit card. (Adm. Ex. 12; R. 60-61.)2 The reimbursement requests were fraudulent.

Based on those false reimbursement requests, Respondent personally received at least $79,790.43 in funds that belonged to Fortress and GA Tellesis.

The Hearing Board had proposed a 20-month suspension which the Review Board found insufficient

In short, we believe that the 20-month suspension recommended by the Hearing Board is clearly insufficient. Respondent’s misconduct, which spanned 18 months, was calculated and deliberate, and resulted in him converting almost $80,000 of his clients’ funds. Conversion is an egregious breach of an attorney’s duties.

...Furthermore, Respondent undertook his fraudulent scheme as a handsomely compensated attorney and shareholder of a large international law firm, with an expertise in aircraft financing, a unique practice.

A dissent would impose 20 months and cites a notable instance of prior leniency in an earlier case of some notoriety

In In re Smolen, 2013PR00060 (Hearing Bd., Jan. 7, 2015), approved and confirmed, M.R. 27199 (March 12, 2015), over a five-year period, the attorney submitted over 800receipts for cab rides he did not take, and received almost $70,000 in reimbursement from his firm for the falsified expenses. In addition, a forensic accounting consultant hired by the firm identified $379,000 of additional reimbursed expenses for which it could not identify a sufficient underlying basis, including restaurant gift cards, country club meals, air fare, and other entertainment expenses. The firm paid the forensic accounting consultant $258,000 to perform its investigation.

The Hearing Board found Respondent’s conduct to be purposeful and intentional, and did not find credible his claim that he did not realize he was doing anything wrong. It also found other aspects of his testimony inconsistent and not credible. In aggravation, it found he engaged in a lengthy, systematic pattern of dishonest conduct from which he profited financially, and harmed his firm. In mitigation, it found he did not charge false expenses to clients, and paid $400,000 in restitution to his firm. It also found he admitted wrongdoing when confronted by his firm, cooperated in his disciplinary proceeding, had no prior discipline, presented positive character testimony, and engaged in volunteer and pro bono work. In observing his demeanor, it stated that he was genuinely remorseful, accepted responsibility for his misconduct, and did not present a risk of repeating his misconduct. He was suspended for one year and until he completed 12 months of psychiatric treatment.

(Mike Frisch)

September 21, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 20, 2021

Reduced Suspension For Former Judge

A Michigan judge's relationship with an attorney - demonstrated through voluminous texts - led to findings of misconduct and a sanction.

The Attorney Discipline Board  found misconduct but reduced the hearing panel's one-year suspension to a 180-day suspension

The complaint alleged that respondent engaged in misconduct by participating in ex parte communications via text messages involving “scheduling favors,” sentencing in certain cases, and other matters. The complaint also alleged that respondent should have disclosed his personal friendship with Mr. Nassif to litigants between 2010 and 2013 and that his failure to do so  violated various rules of conduct and judicial canons. In another count, the complaint alleged that respondent disclosed certain information regarding Ann Arbor’s contract negotiations with Mr. Nassif’s firm for indigent representation and, at least, gave Mr. Nassif the impression that he could influence the Ann Arbor City Council's renewal of the indigent defense contract and award of back billings to Mr. Nassif's law firm. The complaint further alleged that respondent failed to accurately respond to an Attorney Grievance Commission subpoena, and made a false statement regarding the subpoena in his sworn statement given during the Commission's underlying investigation of respondent's actions.

Texts

While most of the text messages involved here did not deal with substantive matters or issues on the merits, the fact remains that some clearly did. Furthermore, the colorful, and at times offensive language of some of the messages supports the panel’s finding that respondent failed in his duty to exercise good judgment, and avoid impropriety.

Relations

Count Two charged that respondent committed misconduct by failing to disclose to litigants the extent of his relationship with Mr. Nassif between 2010 and 2013, during which time, the two went on a cruise with each other, traveled to Chicago together, and respondent used Mr. Nassif as a cover and used his apartment in order to meet with a woman who was not his girlfriend.

Those charges were sustained.

Respondent's position has been, both before the panel and now on review, that disclosure was unnecessary as it was common knowledge within the legal community in which he and Mr. Nassif worked, that they were friends. However, it soon became clear that the extent of the friendship was not “common knowledge” within the legal community. For example, Washtenaw County Prosecutor Brian Mackie testified that his prosecutors knew respondent and Mr. Nassif had a close friendship, however, they were all unaware of the extent of the relationship until the contents of the text messages were revealed.

Thus

we find that the record establishes that respondent violated Canon 2.A, B, and C of the Code of Judicial Conduct, as he failed to “avoid impropriety and the appearance of impropriety in all activities,” and to “promote public confidence in the integrity and impartiality of the judiciary,” MCR 9.104(1) and (4), and MRPC 8.4(a) and (c). We further find that violations of Canon 3B; MRPC 3.5(b), 8.3; 8.4(b); and, MCR 9.104(3), as charged in Count Two of the formal complaint, are not supported by the record.

Sanction

We agree with the panel that a suspension, rather than a reprimand, will serve the purpose of protecting the public’s confidence in the judiciary and the legal profession and will hopefully serve to deter others from engaging in similar conduct. However, given that respondent did not adjust a decision or base a ruling on his friendship with Mr. Nassif, we reduce the suspension imposed by the hearing panel from one year to 180 days.

Michigan Live reported on his resignation from judicial office

The messages reveal a jocular relationship between Easthope, now 48, and the young attorney, now 31, whose firm had a contract to represent indigent defendants with Easthope's court. They discuss drug use, women, Nassif's firm's city contract and requests Nassif made for special consideration as an attorney in Easthope's courtroom.

In his statement, Easthope denies showing any favoritism in the courtroom.
 
At 9:54 p.m. on Dec. 23, 2012, Easthope texted Nassif: "Oh lord. Getting stoned with the lawyer who appears before you more than anyone? Of course I suppose (redacted) appears before you too. Oh well. We have to make sure (redacted) doesn't bail. (Redacted) says he's getting cold feet! I'm thinking 8:30? And I don't think it's rolled meaning we need rolling paper or a pipe."
 
The next morning, Christmas Eve, the two exchanged these messages starting at 10:11 a.m. while Easthope was at work:
  • NN: Enjoy last night? Lol.
  • CE: Tired today?
  • NN: Nah I'm alright. U?
  • CE: Tired.
  • NN: Hope you enjoyed it.
  • CE: Oh ya-
  • NN: Haha. It was awesome. Dude ur arm thing was hilarious lol
  • CE: I was so stoned I kept watching the movie - my arm felt great! At work waiting for transport. I was carrying on a long stoner conversation with you and didn't know you were asleep.
  • NN: Haha awesome. I like passed out. Woke up and didn't realize u left lol. Hahahahhaha. Wednesday night is gonna be hilarious.
  • CE: I know!
  • NN: We're gonna rip on (redacted) so bad lol
There are seemingly more references to drugs between the two a few days later. At 10:25 a.m. on Dec. 26, Easthope texts Nassif: "Me u (redacted) said bring some pot."
 
At 11:33 a.m., Nassif texts Easthope: "Gotcha"
 
Later that day, the two exchange this text thread between 1:30 p.m. and 1:44 p.m.:
  • CE: (Redacted) and (redacted) acting like scared little girls so I'm out tonight - not worth their drama - let's get a drink later instead -
  • NN: Why the drama. It's gonna be a snow out at (redacted) house. Homos
  • CE: They're worried we'll tell someone and to promise we won't I told him that they were way over thinking it and not worth my time -
  • NN: (Redacted) just texted me
  • CE: I texted him said I'm out
  • NN: If ur out I'm out
  • CE: I'm out - not in mood for drama - Jesus (expletive)
The text messages also show Easthope and Nassif discussing the contract Nassif's firm had with the city.
 
(Mike Frisch)

September 20, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Lobbying In The Dominican Republic

A notice of license revocation from the web page of the Law Society of Ontario

The Law Society alleged that Matys Rapoport, 1984, of Brooklin, engaged in professional misconduct.

The panel determined that the following allegations were established:

  • The respondent charged excessive and unreasonable fees to clients that were not disclosed in a timely fashion, contrary to then Rule 2.08(1) of the Rules of Professional Conduct.
  • The respondent failed to serve clients, contrary to then Rule 2.02(2) of the Rules of Professional Conduct.
  • The respondent breached then Rule 2.03(1) of the Rules of Professional Conduct in that he, while vacationing in the Dominican Republic, worked on a client’s physical file in a hotel lobby, and showed photographs from the file to strangers.
  • The respondent communicated in a manner that was abusive, offensive or otherwise inconsistent with the proper tone of professional communication from a lawyer, contrary to then Rule 6.03(1) of the Rules of Professional Conduct

It looks like the web page has a user-friendly updated look. (Mike Frisch)

September 20, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Don't Fence Me In

The New Jersey Supreme Court found no right of privacy in certain dog licensing records

The Court considers whether owning a dog creates an objectively reasonable expectation of privacy such that the owner’s personal information in the dog licensing record might be exempt from disclosure under the Open Public Records Act (OPRA).

Plaintiff Ernest Bozzi requested copies of defendant Jersey City’s most recent dog license records pursuant to OPRA and the common law right of access. Plaintiff, a licensed home improvement contractor, sought the information on behalf of his invisible fence installation business. Plaintiff noted that Jersey City may redact information relating to the breed of the dog, the purpose of the dog, and any phone numbers associated with the records. He sought only the names and addresses of the dog owners.

Jersey City opposed disclosure but

Owners and their dogs are regularly exposed to the public during daily walks, grooming sessions, and veterinarian visits. Dog owners who continually expose their dogs to the public cannot claim that dog ownership is a private undertaking...

While plaintiff here has requested only the names and addresses of dog owners, the Court stresses that there are other parts of the dog licensing records that would give rise to security concerns. Any similar disclosure of dog records should not include breed information or the purpose of the animal, and the names of dogs may need to be excluded. 

Because Jersey City has not established a colorable claim that public access to the names and addresses of dog owners would violate a reasonable expectation of privacy, the Court need not conduct an extended Doe analysis. The Court agrees with the evaluation of the trial court that the factors collectively favor disclosure. The Court continues to abide by the plain language of OPRA and its fundamental policy favoring disclosure.

Dissent

In Justice Pierre-Louis’s view, that reasonable expectation of privacy should recognize every citizen’s right not to have each and every piece of information provided to the government divulged for reasons that do not further the purpose of OPRA, and the fact that information may be available elsewhere does not eliminate a person’s reasonable expectation of privacy altogether. Noting that the information sought here -- name, address, and dog ownership -- taken together, is not public, Justice Pierre-Louis finds it reasonable that dog owners would have expected that the information they provided to Jersey City for the sole purpose of complying with the law by obtaining a dog license would remain private. Justice Pierre-Louis reviews the Doe privacy factors and finds that five out of seven factors also militate against disclosure.

The quoted portions come from the court's headnotes. (Mike Frisch)

September 20, 2021 | Permalink | Comments (0)

Claim Of Fiduciary Breach Survives

The United States District Court for the District of Columbia (Judge Contreras) denied defendant's motions in a legal malpractice case

Rothschild Broadcasting, LLC (“Plaintiff” or “RBLLC”) brings this action against Evan D. Carb (“Carb”) and The Law Offices of Evan D. Carb, PLLC, (collectively, “Defendants”) for legal malpractice, breach of fiduciary duty, and fraud resulting from Carb’s representation of Plaintiff regarding sales of radio stations. Plaintiff alleges, among other things, that Carb undertook legal representation of Plaintiff despite Carb co-owning a company that was actively negotiating a contract with Plaintiff, and that Carb made false representations to Plaintiff that intentionally resulted in a better position for Carb at the expense of Plaintiff. Defendants move to dismiss the complaint on four grounds: (1) Plaintiff did not adequately plead a claim for legal malpractice, (2) the claim for breach of fiduciary duty is duplicative of the legal-malpractice claim, (3) fraud is not pleaded with particularity, and (4) the punitive damages request fails as a matter of law. For the reasons given below, Defendants’ motion is denied.

As to the fiduciary breach claim

But here, Plaintiff’s fiduciary-duty claim does not merely restate a claim for malpractice. Although Plaintiff’s complaint references the same facts to support the two claims, the facts alleged include conduct uniquely relevant to a fiduciary-duty claim, such as allegations of divided loyalty and self-serving. This does not appear to be an example of a plaintiff adding a claim for breach of fiduciary duty premised on factual allegations already covered by other claims. If anything, the issue here seems to be that Plaintiff included additional factual allegations to support its malpractice claim that are more naturally suited to a claim for breach of fiduciary duty. That does not justify dismissal of Plaintiff’s fiduciary-duty claim as duplicative.

Punitive damages

The Court will not grant Defendants’ motion to dismiss Plaintiff’s request for punitive damages. Defendants present limited analysis attempting to show that Plaintiff’s request for punitive damages cannot succeed as a matter of law. They do not grapple with the allegations discussed above—and accepted as true for purposes of this motion to dismiss—that Defendants entered into representation of Plaintiff despite knowledge of conflicts of interest, and then used their representation of Plaintiff to benefit themselves. Accordingly, Defendants have not demonstrated that, as a matter of law, Plaintiff’s request for punitive damages cannot succeed.

(Mike Frisch)

September 20, 2021 | Permalink | Comments (0)

Oral Argument In Bar Discipline Matter

An oral argument tomorrow before the Ohio Supreme Court

Disciplinary Counsel v. Samuel R. Smith II, Case No. 2021-0448
Cuyahoga County

The Board of Professional Conduct suggests the Ohio Supreme Court suspend a Cuyahoga County lawyer for committing ethical violations, some that occurred while he was under suspension for previous misconduct.

The board recommends Samuel Smith II, a Cleveland solo practitioner, be suspended for two years with six months stayed with conditions, including that he reimburses a client $445 for court costs assessed against the client for Smith having filed a lawsuit then not pursuing it.

Smith is accused of several ethical violations related to a criminal case in which he signed his name to a client’s change-of-plea form without the client’s consent, and mishandling three other civil matters. Smith objects to the claim that he changed the plea without his client’s consent, and maintains that his actions warrant a fully stayed suspension.

Smith’s objections triggered an oral argument before the Supreme Court.

Lengthy Jail Sentence Issued After Lawyers Changes Client’s Plea
Smith represented Stacey Lattimore on several charges against her in Shaker Heights Municipal Court related to a department store theft. At the time her charges were pending, Lattimore was in the Cuyahoga County jail serving time for an unrelated theft conviction.

In June 2017, Smith presented Lattimore with a “in absentia” plea agreement form, which would change her pleas from not guilty to no contest. Lattimore stated that she refused to sign the forms because she was unhappy that the plea agreement didn’t contain any measures to address her mental health issues.

Smith signed Lattimore’s name to the form and executed the notary public attestation, swearing he witnessed her signing the form. He then filed it with the court. The in absentia form can be signed by an attorney rather than the client if the lawyer indicates that the client verbally granted authority. Smith didn’t indicate he had Lattimore’s authority when he submitted the form, and he didn’t appear in court when the judge considered the change of plea.

The judge sentenced Lattimore to 18 months in jail and fined her $2,870. When Smith learned about Lattimore’s sentence, he didn’t contact her, seek to reduce or modify the sentence, or file an appeal.

Attorney, Client Provide Conflicting Accounts
Lattimore told a three-member hearing panel at the Board of Professional Conduct that she learned about her sentence when it was mailed to her at the jail, and she claimed she was shocked and confused because she didn’t agree to change her plea. Lattimore was able to obtain assistance from the county public defender’s office, which produced a copy of the plea form. Lattimore told the public defender that wasn’t her signature, and her name was misspelled on the form. The office sought to reinstate her not guilty plea, and more than three years later, the matter hadn’t yet been resolved.

Smith told the hearing panel he signed the form because he was unable to slide it under the glass to Lattimore during the jail visit, and was “adamant” that he obtained her authorization to sign her name. Lattimore insisted she didn’t want to plead guilty, and noted that she was able to sign other forms during jail visits that were slipped under the glass.

The panel found, and the full board agreed, that Smith knowingly made a false statement to the trial court when he signed the form without his client’s consent and lied about witnessing her signature. The board also found he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Prior Discipline Impacts Clients
In December 2017, the Court suspended Smith for 18 months, with 12 months stayed on the condition that he engage in no further misconduct. Part of the suspension required notifying clients by certified letter of the suspension and aiding the clients in efforts to find other representation if they need it.

Based on Smith’s handling of Lattimore’s case and three civil matters, which began before Smith was suspended, the Office of Disciplinary Counsel filed a complaint against Smith noting that he neglected three civil clients, leading to unnecessary delays in their cases or dismissals. Some of the issues relate to Smith’s attempt to transfer 25 of his pending cases to another lawyer he trusted and assumed the attorney had agreed to work on all the cases. The substitute attorney told the board he agreed to handle eight cases and understood that Smith told the clients whose cases he wasn’t taking that they had to make other arrangements.

The board found several violations, including Smith’s failure to place advanced fees clients paid him into his client trust account and for using the fees before proving he completed the work to earn the money. He also failed to give proper notice of his suspension to clients, to promptly refund any money to clients that he didn’t earn, and to competently represent a client.

Attorney Challenges Board Finding
Smith contends he may have made mistakes in his interactions with his clients, but his conduct doesn’t warrant a two-year suspension with six months stayed. Smith maintains he had Lattimore’s consent to change the plea and that he made a mistake by not indicating to the trial court that he had her consent. He notes that the public defender was able to vacate the plea agreement.

Regarding two of his civil case clients, he believed the substitute attorney had agreed to handle their cases and was pursuing them. Any failure to formally notify the clients of his suspension was mitigated by the ongoing communications he had with his client who were made aware by text messages or phone calls that he was suspended.

His fourth client paid advanced fees to file three lawsuits against government agencies, and the client proposed further litigation against family members and others. Smith states that he notified his client that she might not have viable cases, and in some, the statute of limitations had expired. Smith told the board he was researching theories that could extend the time to file the lawsuits against the government agencies based on the harm his client suffered. While he may have made an error while attempting to find a solution for his client, that isn’t an ethical violation, he argues.

He also maintains he has returned all client fees and expenses paid to him except the court costs for the lawsuit that he and the substitute attorney failed to pursue.

Disciplinary Counsel Supports Suspension
The disciplinary counsel supports the board’s recommendation because Smith violated the same ethical rules he was accused of in his first disciplinary case. Those violations occurred while his disciplinary case was pending and then while he was suspended.

Smith had a chance to “right his wrongs, serve his previous suspension, and demonstrate integrity and reliability,” the office notes. Instead, he engaged in more dishonest conduct, didn’t safeguard his clients’ funds, neglected client matters, and “shirked his responsibility” to notify his clients of his suspension.

Because Smith didn’t change his behaviors after an 18-month suspension, a longer suspension is warranted for his current misconduct, the office concludes.

 Dan Trevas

(Mike Frisch)

September 20, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 17, 2021

Violations Of Protection Order Draw Proposed Suspension

An Illinois Hearing Board recommends a two-year suspension with fitness for an attorney's post-divorce conduct

An emergency order of protection, entered following the dissolution of Respondent’s marriage, prohibited Respondent from contacting his ex-wife or entering their former home. Even though Respondent was personally served with that order, he sent his ex-wife multiple text messages. After being arrested for violating the order of protection, Respondent sent his ex-wife additional text messages. Those messages included false claims, which Respondent reiterated to police and medical personnel, that he had been raped. He was arrested again. Subsequently, Respondent entered and removed property from the marital house and then drove to his ex-wife’s residence, conduct for which Respondent was arrested a third time. Respondent pled guilty to violating the order of protection and was placed on probation. Probation was revoked after Respondent violated probation by continuing to use alcohol and failing to report.

In aggravation, Panel considered the fact that Respondent violated court orders knowingly, repeatedly and over time. His false claims of rape included racial slurs. Respondent’s minimal participation in his own disciplinary proceedings is a serious aggravating factor. Although he participated the first prehearing, thereafter Respondent ignored these proceedings.

The complaint in the matter is attached and provides details as to the racially-tinged false rape allegation. (Mike Frisch)

September 17, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Jumping The Gun

The Maine Supreme Judicial Court affirmed misconduct findings and sanctions imposed for disclosures made to a potential opposing party without the authorization of the putative client.

After an initial meeting with the client to discuss domestic violence and a possible divorce, the complainant did not appear for a second meeting to sign a retainer agreement.

Nonetheless

Ms. Doe had second thoughts about the divorce and failed to appear at that meeting. A day later, she contacted Attorney Rhoda and told him she changed her mind and did not need his services. During that conversation, Attorney Rhoda informed Ms. Doe that he had seen her estranged husband in the courthouse the day before and asked him if he had retained counsel so he could serve him with divorce papers. He talked only about service and not substance of the divorce, thinking he could save his client the costs of service by sheriff.

Ms. Doe contends that disclosure put her at risk of harm. She never returned to see Attorney Rhoda and he did not charge her for his time spent on the matter. About two weeks later, on February 15, 2019, she filed a bar complaint alleging he failed to maintain her confidentiality about the potential divorce matter. Attorney Rhoda responded he did not know she did not want her husband to know of the impending divorce. She contends that he should know domestic violence survivors are concerned with safety of their information, He maintains he was not aware of Ms. Doe's concern about disclosure of her information.

The court agreed with the panel below that the conduct violated the obligations of communication and confidentiality

While this conduct is clearly not violent or dishonest it does include a breach of trust at a minimum. Attorney Rhoda may have had good intentions when he spoke with Ms. Doe's husband, but as an experienced practitioner he should have understood his obligations, the sensitive nature of his presumed representation, the need for confidentiality until he obtains his client's consents and, in this case, most notably, the presence of a history of domestic abuse sufficient to warrant issuance of a protective order, His lack of sensitivity and lack of understanding of his obligations as an attorney rise to the level of a breach of trust sufficient for this Court to conclude that the Panel's Findings in this regard were not clearly erroneous and are affirmed.

The court accepted the sanction of reprimand and probation with conditions.

I use this Indiana decision to make a point to my students about the dangers of speaking without the client's authority. 

Respondent represented an organization that employed "AB." Respondent became acquainted with AB though this connection. In December 2007, AB and her husband were involved in an altercation to which the police were called, during which, AB's husband asserted, she threatened to harm him. In January 2008, AB phoned Respondent and told her about her husband's allegation and that she and her husband had separated. In a second phone call that month, AB asked Respondent for a referral to a family law attorney. Respondent gave AB the name of an attorney in Respondent's firm.  Respondent then called this attorney to inform her of the referral and to give her AB's phone number. The attorney called AB that same day and arranged a meeting the following day, when AB retained the attorney. AB told the attorney about the December 2007 incident and directed her to file a divorce petition. Respondent was aware that AB had retained the attorney from her firm and had filed for divorce. AB and her husband soon reconciled, however, and, at AB's request, the divorce petition was dismissed and the firm's representation of AB ended.

In March or April 2008, Respondent was socializing with two friends, one of whom was also a friend of AB's. Unaware of AB's reconciliation with her husband, Respondent told her two friends about AB's filing for divorce and about her husband's accusation. Respondent encouraged AB's friend to contact AB because the friend expressed concern for her. When AB's friend called AB and told her what Respondent had told him, AB became upset about the revelation of the information and filed a grievance against Respondent.

(Mike Frisch)

September 17, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 16, 2021

Podcasts And Linked In

The Florida Judicial Ethics Advisory Committee opines

Opinion Number: 2021-14
Date of Issue: September 1, 2021

ISSUES

1. May a family division judge participate in a podcast presented by the judge’s spouse, for which the spouse receives compensation, to speak on subjects related to family law?

ANSWER: Yes, provided the participation is on a limited basis and the judge’s comments are purely informational, do not constitute legal advice, and do not include commentary on pending cases or legal controversies.

2. May a judge post a congratulatory message on the web site LinkedIn when a book written by the judge’s spouse is released?

ANSWER: No.

Analysis

The first question raised in this inquiry falls squarely at the intersection of two provisions in the Code of Judicial Conduct that may seem to point in different directions. Canon 4 encourages Florida’s judges to “engage in activities to improve the law, the legal system, and the administration of justice.” More specifically, Canon 4B permits judges to “speak, write, lecture [and] teach” about these subjects as well as on “the role of the judiciary as an independent branch within our system of government.”

The activities authorized in general terms by Canon 4 are, however, circumscribed by Canon 4A. For example, they must not be of such a nature as to cast reasonable doubt upon the judge’s capability of ruling impartially, demean the judge’s office, lead to frequent disqualification, or interfere with the performance of the judge’s duties – that is, consume an inordinate amount of the judge’s time. In Fla. JEAC Op. 2019-02, this Committee provided a “laundry list” of eight factors that a judge should consider before agreeing to speak publicly:

1. Whether the activity will detract from full time duties. Since this judge contemplates infrequent appearances on the podcast, there should be no likelihood that the judge’s professional duties will be overlooked.

2. Whether the activity will call into question the judge’s impartiality, either because of comments reflecting on a pending matter or comments construed as legal advice. The inquiring judge clearly understands this restriction, and does not plan to comment on pending cases or offer legal advice.

3. Whether the activity will appear to trade on judicial office for the judge’s personal advantage. The judge does not plan to receive compensation for the proposed appearances on the podcast, nor are the appearances connected in any way with a campaign for re-election or other efforts to advance the judge’s career. While it is certainly possible that listeners may come away with a favorable opinion of the judge, this is inherent in any situation wherein a judge’s talents are exposed to members of the public at large. It is an inescapable fact that judges can do well when they do good;

4. Whether the activity will appear to place the judge in a position to wield or succumb to undue influence in judicial matters. If the judge merely provides neutral, factual, non-case specific information there should arise no danger of other judges being improperly influenced by it, nor should it open the judge to possible undue influence in cases the judge will be handling.

5. Whether the activity will lend the prestige of judicial office to the gain of another with whom the judge is involved or from whom the judge is receiving compensation. We discuss this question in greater detail below.

6. Whether the activity will create any other conflict of interest for the judge. Given the judge’s understanding of the limitations upon what can be discussed in the podcast, there appears to be no potential for meaningful conflicts of interest. The judge could not oversee legal matters involving the spouse in any event, and the potential for litigation involving the sponsor of the podcast should be minimal, particularly if the judge remains assigned to the family law division.

7. Whether the activity will cause an entanglement with an entity or enterprise that appears frequently before the court. The inquiry does not lead the Committee to suspect that the sponsor engages in, or is potentially likely to engage in, frequent litigation. Further, since the judge plans to speak only on factual matters, and neutrally, we see no chance of the judge’s remarks being parroted back to the judge in some future family law setting.

8. Whether the activity will lack dignity or demean judicial office in any way. This consideration should not be implicated by discussing the nuts and bolts of family law. Again, as noted, the judge does not plan to discuss specific cases that might involve salacious details.

In sum, the subject matter about which the judge envisions speaking appears to be purely informative, so long as the judge does not go beyond explaining statutory family law procedures by attempting to apply those procedures to specific factual situations. Were the judge to do so, this might to intrude into giving legal advice, which judges are not permitted to do. See Canon 5G. Cf. Fla. JEAC Op. 2018-23, which approved a judge’s plan to write “an informative article about the divorce process” to be published on a for-profit web site, so long as the judge did not “comment on pending cases . . . answer hypothetical questions in a way that appears to commit to a particular position, [or] make any other remarks that could lead to the Judge’s disqualification, or be construed as an indication as to how the Judge would rule in a particular case.”

We now turn to the second provision of the Code that could impact the judge’s ability to appear on the podcasts. Canon 2B prohibits judges from “lend[ing] the prestige of judicial office to advance the private interests of the judge or others.” In the context of personal media appearances, we addressed this provision most recently in Fla. JEAC Op. 2021-10, in which the inquiring judge was a regular guest on a local public radio station’s talk show. The judge’s appearances were brief and informative in nature, and involved neither questions from the public, pending cases, nor the giving of legal advice. Additionally, the judge did not receive compensation for these appearances, an area the Committee described as “often problematic.”

Having dispensed with any significant concern that the judge’s personal interests were advanced by the radio appearances, the Committee then turned to the potential effect of the Canon 2B language “or others.” In the context of Fla. JEAC Op. 2021-10, the “other” was the radio station that frequently hosted the inquiring judge. In the present case, the judge’s proposed conduct would implicate not only the broadcaster, but the judge’s spouse as well.

With regard to the radio station, the Committee found that “[s]everal variables could potentially inform that question’s resolution, including how the station receives financial support, whether it advertises the judicial officer’s appearance and in what manner [and] whether the judge’s appearance is considered a public service/informative aspect of the station’s operation or whether it is a potential source of advertising funding for the station.” Fla. JEAC Op. 2021-10 was not unanimous in concluding that the judge’s continued radio appearances were not violative of Canon 2B. The dissent relied upon Fla. JEAC Op. 1996-25, which in turn placed great reliance upon In re the Inquiry of Evan W. Broadbelt, J.M.C., 146 N.J. 501, 683 A. 2d 543 (1996), cert. denied, 520 U.S. 1118 (1997).2

The judge’s activities in Broadbelt would certainly have caused concern if they had involved a Florida judge. Judge Broadbelt regularly appeared on commercial television programs such as Geraldo Live and Court TV to provide “guest commentary” on high-profile cases, even though, more innocently, he also appeared on a local program “to discuss generally the jurisdiction and procedures of the municipal courts.” He did not receive compensation for any of these appearances. Even so, Judge Broadbelt was found in violation of several canons, the language of which is similar to Florida’s Code of Judicial Conduct. First, the New Jersey court found that judges should not comment on cases in any jurisdiction, and not solely those likely to come before their courts. Second, and more to the point of our discussion, the judge’s regular television appearances “allowed the prestige of his judicial office to advance the private interests of commercial television.”

Broadbelt discussed in some detail two 1961 opinions by the American Bar Association, the first of which “barr[ed] judges from appearing on commercial television programs that simulate or recreate judicial proceedings,” but “did not consider whether other programs such as panel discussions or interviews would be improper.” The second opinion “approved of a judge's appearance on Meet the Press because it was ‘distinctly . . . a public service type [of show]’ similar to a news report dealing with matters of general public interest.” Notably, in the second opinion the ABA committee stated that “the nature of the program and the nature of the appearance of the lawyer or judge on it is the important thing and whether or not it is commercially sponsored is secondary.” This suggests that purely informational, neutral contributions by judges are likely to satisfy ethical standards even if delivered via a commercial medium.3

Fla. JEAC Op. 1996-25, which cites other authorities in addition to Broadbelt, offered several explanations why a judge’s regular participation in a commercial talk show could run afoul of the Code of Judicial Conduct. Canon 5A concerns itself directly with extrajudicial activities. Under this rule, “a judge's extrajudicial activities must be conducted in such a manner so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3) interfere with the proper performance of judicial duties.” The Committee finds reason for concern that each of these considerations under Canon 5A is implicated by the present inquiry.

“A judge must ensure that extrajudicial activities do not cast reasonable doubt on the judge's capacity to act impartially as a judge. Here the inquiring judge proposes to comment extensively on issues arising, and have actually arisen in other courts around the United States. In this context, it would be nearly impossible for the judge to avoid injecting his own legal opinion or foreshadowing how he might rule on a contested legal issue. On the question of demeaning the judicial office, the Committee recognizes that, in view of many, television news is largely a commercial endeavor. As recent experience with several high publicity legal proceedings has demonstrated, issues that come before courts are often not conducive to exposition in the ‘soundbyte’ format of television news. Unfortunately, the extremely limited time available to a commentator on a television news show is not conducive to full and fair explanation of complex legal proceedings. Accordingly, the Committee has serious concerns that the commercial and entertainment aspects of a regular judicial appearance on a television news show might well outweigh the legitimate public information aspects.

“Finally, with regard to the third consideration under Canon 5A, an extrajudicial activity must not interfere with the proper performance of judicial duties. Here, the judge proposes regular appearances on a local television news broadcast. Such an arrangement could well lead to a public perception that the judge has priorities other than proper performance of judicial duties. Moreover, Article V, Section 13 of the Florida Constitution mandates that all judges shall devote full time to their judicial duties. Again, the very real risk is the perception that the inquiring judge would be viewed as devoting a substantial amount of their productive time to a very public commercial endeavor unrelated to judicial duties.”

“In addition to the canons discussed above, Canon 5D(1)(b) may well be implicated. Members of the electronic media are frequently litigants in the courts of this state. Under this portion of the Code of Judicial Conduct a judge must avoid engaging in continuing business relationships with persons likely to come before the court.”

Our impression is that a judge’s infrequent appearances on a podcast, limited to providing nonjudgmental information about the family court system, is a situation qualitatively different than the practices engaged in by the judge in Broadbelt and contemplated by the inquiring judge in Fla JEAC Op. 1996-25. However, this does not end the inquiry. While it may be that sporadic appearances on the podcast may have little effect on the broadcaster’s bottom line, we must not overlook the fact that the inquiring judge’s proposal will necessarily provide some benefit to the judge’s spouse, who, as noted, receives compensation for the podcasts. “A judge shall not allow family â€¦ relationships to influence the judge’s judicial conduct” (emphasis added). The Commentary to Canon 2B provides only a single example of what this provision seeks to avoid: “[A] judge must not use the judge’s judicial position to gain advantage in a civil suit involving a member of the judge’s family.” In addition to making rulings that might benefit a family member, other examples would include judges hiring a relative or lobbying law firms or court administration to do so. 4

The question posed in the current inquiry appears to be unique in this Committee’s history. For one thing, podcasts are a recent innovation, though it would not surprise us to learn of judges whose spouses may have performed on radio talk shows or worked as reporters seeking an interesting story for the newspapers or magazines that employed them. We just have not been asked, until now, to consider whether or to what extent judges may lend their time and experience when it is a spouse, and not a stranger, who wishes to elicit comment that a judge otherwise would be within the graces of the Canons to furnish.

An analogy perhaps may be drawn to books, articles, and scholarly papers written by judges. While this Committee has often written on such questions as the content of writings and how extensively their judicial authors may promote them, even though writing is often a collaborative effort we have less frequently addressed the question whether a judge may partner with someone else – colleague, fellow lawyer, friend – to write something and then advertise it. To do so inures to the benefit of not only the judge, but the other author as well. Fla. JEAC Op. 1998-1 is not directly on point – it involved a judge who wished to write a crime novel with assistance from an Assistant State Attorney, but did not contemplate co-authorship – but the opinion also includes a review of earlier opinions including some wherein judges contemplated joint projects. While the trend is generally favorable to co-authorships, many of our prior opinions focus on disqualification/disclosure more so than lending judicial prestige to the co-authors. Most directly on point is Fla. JEAC Op. 1978-12, in which three Committee members dissented, believing the proposal to co-author a procedure manual with a lawyer would intrude into lending judicial prestige, while the majority concluded the joint authorship was ethically permissible.

Though the distinction may be a fine one, the Committee finds it relevant that the judge’s spouse is already involved in the process of recording and airing the podcasts, and would continue to do so regardless of whether the judge made an occasional contribution – that is, we are not dealing with the situation where the judge is intervening with a broadcaster in order to obtain a position, contract, or extra compensation for the spouse. Thus, we do not believe the inquiring judge would run afoul of the Code by occasionally appearing on the podcast to provide non-case-specific information about the family court system.

It must be noted that two members of the Committee dissent from this conclusion, expressing their belief that the judge’s proposed activity would lend the prestige of office to the podcast.

Issue 2

As for the inquiring judge’s second question, we begin our discussion by excerpting the following information from the web site LinkedIn.com itself: LinkedIn is “the world's largest professional network with 756 million members in more than 200 countries and territories worldwide.” Its vision is to “[c]reate economic opportunity for every member of the global workforce” by “connect[ing] the world’s professionals to make them more productive and successful.” The site, which is a subsidiary of Microsoft, “leads a diversified business with revenues from membership subscriptions, advertising sales and recruitment solutions.” 5

As indicated above, this Committee has received many inquiries from judges who have written books. In Fla. JEAC Op. 2020-21, we acknowledged that a judge who had written a biography of a noted attorney should be allowed to promote the book, including on web sites like Facebook, provided the judge operated within guidelines established by the Code of Judicial Conduct (essentially those discussed in this opinion under Issue 1). But see Fla. JEAC Op. 2019-18, cautioning against “endorsement of any products, persons, services, or materials.” The Committee has not addressed such issues as whether a judge may publish a review of a book written by someone else, even if intended as a scholarly criticism.

Similar to the position this Committee has taken on vetting judicial candidates’ campaign literature, we have not asked the inquiring judge to provide the exact language of the proposed congratulatory message. We believe that it is enough that the message will draw readers’ attention to the book’s publication, which is likely to be perceived as an endorsement and promotion of the book. Moreover, there is a substantial likelihood that the judge’s posting will come to the attention of attorneys, court staff, fellow judges, and other persons whom the judge is in a position to influence. There is also potential for persons desirous of currying favor with the judge to purchase the book and make it known that they did so. This is particularly so given the nature of the LinkedIn web site – designed for networking among professional people such as lawyers - and the uses to which it is put. We conclude that the judge should err on the side of caution and let the book – and its author – speak for themselves. We trust that the judge’s spouse is already aware of the judge’s pride in this achievement.

One member of the Committee disagrees with this conclusion, having the opinion that the proposed activity is permissible under the Code.

(Mike Frisch)

September 16, 2021 in Judicial Ethics and the Courts | Permalink | Comments (0)

Guidance, Please: A Missed Opportunity

I was a bit disappointed to see a one-page order of the Maryland Court of Appeals admitting an applicant to practice

ORDERED, by the Court of Appeals of Maryland, a majority of the court concurring, that the favorable recommendations of the Character Committee for the Fifth Appellate Judicial Circuit and State Board of Law Examiners be, and they are hereby, accepted, and it is further

ORDERED, that the applicant be admitted to the Bar, conditioned upon satisfaction of the requirements of Maryland Rules 19-212 (Maryland Law Component) and 19-213 (Qualifying MPRE Score Required), and upon taking the oath prescribed by the statute.

I have no issue with the result.

As in my favorite lawyer movie Body Heat, the problem lies elsewhere.

I had listened to the oral argument in the matter and understood that the issues involved the applicant's history of alcoholism, behavior while drinking, and the status of his sobriety.

The court missed an opportunity to provide useful guidance to applicants concerning the standards that it applies in considering such circumstances.

This is particularly important in light of the fact that only "a majority of the court" concur in the result.

I have made the same argument about opaque admission orders in Louisiana. 

Law school is expensive and time-consuming.

While I do understand protecting the applicant's identity, a far more helpful opinion can be written without violating confidentiality. 

Courts have an obligation to provide a clear roadmap to those who struggle with addiction issues of the standards applied to their applications for admission.  (Mike Frisch)

September 16, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Circuit Court Turf War Won By Court Clerk

The Missouri Supreme Court has sided with a Circuit Court Clerk in a dispute with a Circuit Court judge, holding that the judge lacked the power to essentially dethrone the clerk

Both Judge Flynn and [circuit clerk] Allsberry were elected to their respective positions in the 2018 general election and took office in January 2019. Intense conflict between the two began immediately and escalated over the weeks and months. There was considerable evidence at trial about the parties’ acrimonious power struggle, the rift this discord created among the staff at the Lincoln County courthouse, and the disruption their dysfunctional professional relationship caused – the details of which are largely irrelevant to the legal questions presented in this appeal.

The judge's actions

Judge Flynn’s suspension of Allsberry has been kept in effect continuously since May 2019; at this point, she has been suspended more than half of her four-year term in office. In March 2020, she filed a petition seeking a declaration that Judge Flynn was not authorized under any of the cited statutory provisions to place her on indefinite administrative leave and bar her from performing her duties as circuit clerk or entering the courthouse. She also sought...injunctive relief...

The circuit court correctly concluded that the judge had exceeding his authority

the circuit court did not err in concluding that Judge Flynn had no authority to take the action he did against Allsberry.

But erred in denying injunctive relief

the circuit court erred in concluding that it had no power to order injunctive relief solely because the defendant was another circuit judge.

(Mike Frisch)

September 16, 2021 | Permalink | Comments (0)

Wednesday, September 15, 2021

Felonies Lead To Interim Suspension

A criminal conviction has drawn an interim suspension from the Oklahoma Supreme Court

The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), has forwarded to this Court certified copies of the Information, Plea of Guilty, and Order of Deferred Sentence, in which Amber Ann Sweet entered pleas of guilty to one count of Grand Larceny, a felony, in violation of 21 O.S. Supp. 2018, § 1705, and one count of False Declaration of Ownership in Pawn Shop, a felony, in violation of 59 O.S. Supp. 2018, § 1512(C)(2). On June 18, 2021, the district court deferred sentencing for three years, until June 3, 2024.

RGDP 7.3 provides: "Upon receipt of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and the judgment and sentence, the Supreme Court may by order immediately suspend the lawyer from the practice of law until further order of the Court." Having received certified copies of the papers and orders under RGDP 7.3, this Court orders that Amber Ann Sweet is immediately suspended from the practice of law. Amber Ann Sweet is directed to show cause, if any, no later than September 28, 2021, why this order of interim suspension should be set aside. See RGDP 7.3. The OBA has until October 13, 2021, to respond.

(Mike Frisch)

September 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)