Friday, February 15, 2019

Ring Of Disbarment

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

AZ Central reported

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

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

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

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

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

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

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

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

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

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

 

Lawyer's father, girlfriend indicted

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

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

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

Authorities also said Maasen:

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

Charges dropped in plea deal

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

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

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

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

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

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

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

Suspended from legal practice

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

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

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

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

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

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

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

(Mike Frisch)

February 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Inappropriate Physical Contact

A reprimand has been accepted by the Arizona Presiding Disciplinary Judge

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

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

February 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

What's In A Nickname? A Reprimand

The Indiana Supreme Court has publicly reprimanded an attorney

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

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

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

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

(Mike Frisch)

February 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Docu Beware: The Perils Of Vacation

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

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

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

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

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

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

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

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

Of interest is the manner of her unmasking

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

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

(Mike Frisch)

February 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Industry Standards

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

The attorney had sought a 90-day suspension.

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

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

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

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

He got little mileage out of the argument

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

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

As to The Electrician's Tale

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

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

February 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 14, 2019

Ohio Drops A Hot Potato

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

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

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

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

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

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

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

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

(Mike Frisch)

February 14, 2019 in Clients, Law & Business | Permalink | Comments (0)

No Empty Nest

A recent opinion from the Florida Judicial Ethics Advisory Committee

ISSUE

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

 

ANSWER: Yes.

FACTS

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

Reason

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

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

"[I]ssues of disqualification involving law firms employing relatives of a judge should be resolved on a case-by-case basis with careful consideration given to the relationship between the relative and the law firm." Fla. JEAC Op. 07-16. Here, the short-term, part-time, administrative position described by the inquiring judge would not appear to reflect any more than a de minimis interest in the firm and any proceedings involving the firm. And the inquiring judge has indicated that the child's employment will not entail any participation at all in cases before the inquiring judge. Accordingly, disqualification would not automatically be triggered unless the judge's impartiality might otherwise be reasonably questioned. See Fla. JEAC Ops. 07-1607-1102-15. However, the inquiring judge should remain vigilant to the possibility that the child might participate indirectly in cases over which the judge is presiding. As we stated in Fla. JEAC Op. 07-11, "disclosure is not necessary unless the judge believes that the judge's impartiality might reasonably be questioned. . . . This would appear to be the case only if" the judge's relative "was directly or indirectly involved" in a case pending before the judge. See also Fla. JEAC Op. 07-1612-02.

(Mike Frisch)

February 14, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Drug Convictions Draw Five-Year Suspension

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

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

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

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

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

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

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

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

February 14, 2019 in Bar Discipline & Process | Permalink | Comments (0)

An Unnamed Attorney In The Revolving Door

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

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

The story

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

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

The lesson

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

(Mike Frisch)

February 14, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Is An Attorney A Significant Individual?

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

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

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

Justice Wilson dissented

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

For the reasons above, I dissent.

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

February 14, 2019 | Permalink | Comments (0)

Wednesday, February 13, 2019

A Polite Reprimand For Offensive Remarks To Potential Client

The Law Society of Alberta reprimanded an attorney on these facts

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

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

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

The text of the reprimand

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

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

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

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

February 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

No Pulpit For A Bully

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

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

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

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

Sanction

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

(Mike Frisch)

February 13, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

The Requisite Moral Change

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

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

The court summarized the misconduct

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

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

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

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

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

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

As Sam Cooke might sing, a change is gonna come

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

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

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

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

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

February 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, February 12, 2019

Stayed Judicial Suspension

The Ohio Supreme Court imposed a fully-stayed one-year suspension of a judge who previously had been reprimanded for criticizing in open court a jury's not guilty verdict.

In a complaint certified to the Board of Professional Conduct on December 4, 2017, relator, disciplinary counsel, alleged that Salerno’s conduct in two criminal cases she presided over violated the Code of Judicial Conduct. The parties stipulated to the admission of facts, aggravating and mitigating factors, and 11 exhibits. Salerno agreed that she failed to act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and avoids the appearance of impropriety; failed to uphold and apply the law and perform the duties of her judicial office in a fair and impartial manner; and engaged in ex parte communications.

In a felony case

Based on [defense counsel] Brehm’s ex parte communications, Salerno reconsidered Mendoza’s bail and then telephoned the clerk’s office and lowered the amount from $350,000 to $85,000. Mendoza posted bond and was released from custody later that day. But Salerno never informed the prosecutor of Brehm’s ex parte communications or the fact that she had reduced Mendoza’s bond; instead, the prosecutor learned of Mendoza’s release through the media.

In a traffic case

At her disciplinary hearing, Salerno testified that after her efforts to assist the parties in reaching a plea deal proved unsuccessful, she tried the improper-turn case. She explained that she attempted to achieve what she believed was a “fair” result by finding Toe guilty of that offense, in the hope that the prosecutor would then agree to dismiss the slow-speed case. She candidly admitted that she became frustrated when the prosecutor—whom she described as “brand new,” “overzealous,” “abrupt,” and “rude”—rejected her proposed resolution and that that frustration probably led her to change her guilty finding in Toe’s improper turn case. Noting that there was no dispute that Salerno’s frustration and loss of her temper changed the outcome of that case, the board agreed that her conduct violated Jud.Cond.R. 1.2 and 2.2 (requiring a judge to uphold and apply the law and to perform all duties of the judicial office fairly and impartially).

Sanction

the board concluded that the appropriate sanction for Salerno’s misconduct is a one-year suspension, stayed in its entirety on the conditions that she (1) complete a minimum of six hours of CLE focused on judicial ethics that includes training specifically related to proper judicial demeanor, civility, and professionalism, in addition to the CLE requirements of Gov.Bar R. X and Gov.Jud.R. IV, (2) engage in no further misconduct, and (3) pay the costs of this proceeding. We agree.

(Mike Frisch)

February 12, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, February 11, 2019

Taxi Driver

The taxi cab sex, lies and videotape saga has resulted in a year and a day suspension from the Louisiana Supreme Court

On April 6, 2012, respondent was a passenger in a taxi cab driven by Hervey Farrell. Respondent was highly intoxicated. At some point, Mr. Farrell and respondent had a sexual encounter in the vehicle. Mr. Farrell then used his cell phone to take a sexually explicit video of respondent.

Following the encounter, Mr. Farrell called 911 to report that he had been sexually assaulted by respondent. As a result, respondent was charged in New Orleans Municipal Court with simple battery. Mr. Farrell also filed a civil suit against respondent on March 1, 2013, alleging that he suffered tort damages as a result of her sexual advances in the cab.

On April 5, 2013, one year after the incident, respondent went to the Third District Station of the New Orleans Police Department to report that she was the victim of the crimes of extortion and video voyeurism perpetrated by Mr. Farrell.

According to the police report, respondent claimed that her friend and attorney, Brigid Collins, flagged down a cab in the French Quarter and told the driver, Mr. Farrell, to take respondent to an address in Lakeview. Respondent admitted that she was intoxicated during the ride and got into the front seat and began kissing Mr. Farrell. Mr. Farrell later stopped the cab in the Lakeview area and used his cell phone to record a video of respondent, during which she exposed her genitalia.

Respondent claimed that Ms. Collins received a copy of the video via e-mail and that Mr. Farrell indicated that if he received $1,000, the video and the charges he filed would “go away.”

Mr. Farrell was later arrested on charges of video voyeurism and extortion. As a result of his arrest, Mr. Farrell spent about thirty hours in jail.

Following an investigation of respondent’s complaint against Mr. Farrell, on October 1, 2013, the state charged respondent with one count of false swearing for the purposes of denying a constitutional right, a felony, in violation of La. R.S. 14:126.2. Respondent was arraigned and pleaded not guilty. She subsequently elected a bench trial.

On April 2, 2014, while the state charges were pending, respondent was tried in Municipal Court on the simple battery charge brought by Mr. Farrell. She was found guilty of that offense and fined costs. Following the denial of respondent’s motion for new trial, her conviction of simple battery became final.

On June 13, 2014, the state amended the bill of information to charge respondent with one count of false swearing for the purposes of violating public health or safety, a felony, in violation of La. R.S. 14:126.1. On the same day, respondent pleaded not guilty to that charge.

On January 16, 2015, a one-day bench trial was held in Criminal District Court before Judge Arthur Hunter. The state called two witnesses: Ms. Collins and the police officer who took respondent’s criminal complaint. Ms. Collins testified that she never received an e-mail or any other communication from Mr. Farrell or his attorney requesting $1,000 for the charges and the video to “go away.” She stated that she did receive a copy of the video and that she received a demand for between $50,000 and $60,000 in connection with the settlement negotiations of the civil suit.

At the close of the state’s case, respondent moved for a judgment of acquittal. Judge Hunter deferred his ruling. Respondent then called several witnesses who testified to seeing the sexual encounter in the cab. The witnesses denied having any knowledge of the extortion attempt. Respondent also testified on her own behalf.

At the end of the trial, Judge Hunter denied respondent’s motion for a judgment of acquittal. Finding no evidence that Mr. Farrell or his attorney ever made a demand for $1,000 and crediting Ms. Collins’ testimony that the $60,000 demand was in connection with the civil suit, Judge Hunter found respondent guilty of the lesser included offense of criminal mischief, a misdemeanor, based on her false report of extortion. On February 25, 2015, Judge Hunter denied respondent’s motions for new trial and post-verdict judgment of acquittal. Judge Hunter sentenced respondent to serve one day in parish prison, suspended; one day of inactive probation with the condition that she not purchase or possess a gun during probation; and ordered her to pay costs.

The conviction was affirmed on appeal.

Sanction

Respondent was convicted of simple battery and criminal mischief, thereby violating Rule 8.4(b) of the Rules of Professional Conduct. By her convictions, respondent violated duties owed to the legal profession, causing substantial actual injury to the public and to Mr. Farrell, who spent about thirty hours in jail as a result of respondent’s false accusations of video voyeurism and extortion. These crimes, by definition, involve intentional acts. The baseline sanction in this case is suspension. The record supports the aggravating and mitigating factors as found by the disciplinary board... we agree that the one year and one day suspension recommended by the board is appropriate. 

Justice Crichton concurred

I agree with the Court’s imposition of a one year and one day suspension in this matter. I write separately to point out, as I have in the past, that I consider it troublesome when
attorney respondents fail to participate meaningfully in the proceedings against them. See In re: Klaila, 18-0093 (La. 3/23/18), 239 So. 3d 949 (Crichton, J., additionally concurring); In re: Reid, 18-0849 (La. 12/5/18), --- So. 3d --- (Crichton., J., dissenting) (noting that “lack of cooperation with ODC, the Hearing Committee, the Disciplinary Board, and this Court demonstrates [a] stunning indifference to this noble profession”). In my view, respondent’s disdain for the disciplinary process and her disregard for the Rules of Professional Conduct warrant the suspension imposed.

(Mike Frisch)

February 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Travelin' Man

The West Virginia Supreme Court of Appeals agreed with its Board of Bar Examiners to decline admission without examination to an applicant 

The petitioner is a graduate of the Cumberland School of Law of Samford University. In November of 1988, the petitioner was admitted to the practice of law by successful bar examination in the State of Texas. In April of 1990, the petitioner was admitted to the practice of law by successful bar examination in the State of Florida. The petitioner’s law practice in both Texas and Florida was primarily focused on various types of litigation. The petitioner’s Texas law license was suspended as a result of nonpayment of bar dues on September 1, 2001.

On April 26, 2002, the Supreme Court of Florida entered an emergency suspension of the petitioner’s license to practice law following an allegation that the petitioner misappropriated client funds while serving as an escrow agent. Following the emergency suspension, a formal disciplinary complaint was filed against the petitioner. The Supreme Court of Florida then suspended the petitioner’s license to practice law for three years, to be followed by a three-year probationary period. Following his suspension, the petitioner did not apply for reinstatement of his Florida law license.

While suspended from the practice of law in Florida, the petitioner was admitted to the practice of law by successful bar examination in the State of Tennessee in October of 2010. Following his admission to the Tennessee Bar, the petitioner again primarily focused his law practice on various types of litigation.

He applied for West Virginia admission in 2017.

The Board reviewed the hearing examiner’s report, together with the transcript of the hearing, the briefs filed by both parties, and the petitioner’s application file. The Board voted to deny the petitioner’s application for admission without examination based upon his failure to satisfy the provisions of Rule 4.2(a). He could not produce a certificate of good standing from each state in which he has been admitted to the practice of law as required by Rule 4.2(a).

The applicant had argued that he was eligible as he was in good standing in Tennessee, the only place where he is in active practice

The court interpreted the rule otherwise

our focus turns to whether the Board correctly concluded that the petitioner failed to satisfy the provisions of Rule 4.2(a). We conclude that it did. By failing to be able to provide a certificate of good standing from two of the three jurisdictions in which the petitioner has been previously admitted to the practice of law, the petitioner has failed to satisfy the requirements for admission without examination to the practice of law set forth in Rule 4.2(a). In order to be admitted to the practice of law in West Virginia, an applicant must satisfy the requirements set forth in Rule 4.2(a). Because the petitioner has failed to submit certificates of good standing from each jurisdiction in which he was previously admitted, he is ineligible for admission without examination to the practice of law in West Virginia. Id.

(Mike Frisch)

February 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Run Of Bad Luck

The Illinois Administrator has filed an amended complaint alleging that the attorney made false  statements in several venues

Respondent received a bachelor of arts degree in history and political science from McGill University in May, 1998.

In October, 2005, Respondent registered to take the Law School Admission Test ("LSAT") but cancelled taking the test. In December, 2005, Respondent took the LSAT and scored 158. In September, 2006, Respondent retook the LSAT and scored 173.1

In late 2005, Respondent applied for admission to the University of Chicago Law School, but was denied admission to the 2006 entering class.

 On or about December 4, 2006, Respondent submitted a second application for admission to the Juris Doctor program at the University of Chicago Law School. The application requested that Respondent submit, among other things, a resume and candidate statement as part of the application process. Respondent submitted his personal statement and an addendum which purportedly addressed gaps in Respondent’s academic record.

In his personal statement addendum, Respondent stated that in 1999 he had been diagnosed with a leiomyosarcoma (a form of stomach cancer) that he had undergone four separate surgeries to have tumors removed from his stomach, as well as radiation therapy and what he referred to as "countless" minor procedures to stop gastric bleeding. Respondent stated that the disease delayed completion of his MA degree, stalled work in the McGill University Ph.D program, and forced his withdrawal from the University of Michigan, where he had taken courses as a visiting scholar toward completion of a doctoral degree.

 In his personal statement addendum, Respondent further stated that although he had just undergone surgery in September, 2005 and was still receiving radiation therapy, he had sat for the October and December 2005 LSAT exams. Respondent explained that he was not healthy enough to have sat for the exams, but that in January, 2006, for the first time in six years, Respondent had been given a clean bill of health by his oncologist. As a result, he scored well on the LSAT, with a score of 173, and was finishing course work at the University of Michigan.

Respondent’s statements that he had been diagnosed with and received treatment for leiomyosarcoma were false.

Respondent knew the statements that he had been diagnosed with and received treatment for leiomyosarcoma were false because at no time prior to submission of his application to the law school had Respondent been diagnosed with or received treatment for leiomyosarcoma or any other cancer, nor did Respondent have an illness that affected his LSAT performance, and did not take the LSAT exam in October, 2005.

At the time Respondent submitted the false information in his application for admission to the University of Chicago Law School, Respondent knew the information was false and intended to mislead the law school in order to advance his chances for admission to the Law School.

Based upon Respondent’s false application to the University of Chicago Law School, Respondent was admitted to the school. At no time prior to the time he commenced his studies or since completion of his studies at the Law School did Respondent amend his application to provide truthful information to the Law School.

And in his Illinois bar admission

At no time prior to the February 21, 2018 voting of a complaint by the members of Panel C of the Inquiry Board, did Respondent advise the Committee on Character and Fitness that he had submitted a false information in his application for admission to the University of Chicago Law School. At no time prior to his admission to the Bar in the State of Illinois did Respondent amend or change his answer to question 53 of the questionnaire to provide the Committee on Character and Fitness information about the false information he included in his application for admission to the University of Chicago Law School.

He was admitted in 2011.

In a federal matter the illness that allegedly wasn't resurfaced

On December 15, 2015, Respondent sent an email to Assistant United States Attorney (AUSA) Gerard Brost, who represented the defendants in the Sulemani case, describing Respondent’s intention to file a motion for an extension of time to complete fact discovery, stating in part the following:

"...I know we had a lengthy fact discovery period in this case to begin with but I have been away from the office for most of the 4 months dealing with a serious medical issue (having tumors removed from my abdomen and stomach).

Respondent’s statement to AUSA Brost...that he had been away from the office for most of the previous four months dealing with a serious medical issue involving the removal of tumors from his abdomen and stomach was false.

Respondent knew the statement...that he had been away from the office for most of the previous four months dealing with a serious medical issue involving the removal of tumors from his abdomen and stomach was false, because Respondent was not ill with a serious medical issue involving removal of tumors from his abdomen.

And became infectious in a federal criminal matter

Respondent’s statement to AUSAs Hancock and Brock...that he had a child about to have surgery, was false.

Respondent knew his statement to AUSAs Hancock and Brock...that he had a child about to have surgery, was false because Respondent had no children, nor any child about to have surgery.

In a federal civil matter

On August 12, 2013 at 11:21 a.m., Respondent sent the following email message, in part, to defense counsel ASA Emmert and Lou Varchetto ("Varchetto") related to Respondent’s delay in completing discovery matters in the Johnson case:

"I apologize for not getting back to you sooner regarding the above captioned case. Unfortunately, I have been out of the office most of the last two months dealing with a serious medical issue that necessitated twice having surgery to have tumors removed from my stomach. While still receiving treatment, I am back in the office near full time. I realize that fact discovery in this case closes on August 31 but at this point I feel I have no choice but to file for a short extension of that deadline. ...Please let me know if you agree to allow me to file this motion as unopposed."

Respondent’s statement to ASA Emmert and Varchetto...regarding Respondent’s alleged absence from the office for the last two months due to a serious medical illness requiring Respondent to have surgery on two occasions, as the reason for delay in engaging in discovery is false.

And 

On November 9, 2014, at 7:07 p.m., Respondent sent an email to defense counsel ASA Emmert and Jasinski, the following message related to Respondent’s purported reason for requesting an extension to file plaintiff’s response to defendants motion for summary judgment in the Johnson case:

"I unexpectedly have to return home to Montreal for a funeral this week. I will be gone for 2 days and would like to ask the Court to extend my deadline to respond by the two days that I will miss. Please let me know if I can represent to the Court that you either agree.do not oppose the request."

Respondent’s statements to defense counsel...that Respondent had to return home to Montreal to attend a funeral was false.

 Respondent knew his statements to the defense counsel...that Respondent had to return home to Montreal to attend a funeral was false because Respondent did not need to travel to Montreal to attend a funeral, as none of his family or acquaintances had died and no funeral was scheduled at which Respondent’s appearance was necessary in Montreal.

The amended complaint also alleges false statements in the bar investigation. 

The attorney's Answer is linked here.  (Mike Frisch)

February 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, February 9, 2019

Like A Virgin (Islands Attorney)

As we previously had reported, the Supreme Court of the Virgin Islands is concerned about unauthorized practice by attorneys not admitted in the jurisdiction

This matter comes before this Court pursuant to the response of Karin A. Bentz, Esq. and Applicant Anne Elder Kershaw to this Court’s January 18, 2019 order, which required them to show cause, in writing, as to whether pro hac vice admission should be denied in light of an allegation that Kershaw has engaged in the unauthorized practice of law in the Virgin Islands. For the reasons that follow, we deny pro hac vice admission, and refer this matter to the appropriate authorities.

The story

Bentz moved for the pro hac vice admission of Kershaw—a New York attorney—in early 2018 to represent the defendants in De Leon v. Bentz, Super. Ct. Civ. No. 182/2015 (STX). Although this Court granted the motion in a January 14, 2019 order, it stated that Kershaw’s pro hac vice admission would only take into effect “upon execution of the Oath with the Clerk of the Court.” On January 15, 2019, a representative from Bentz’s law office arranged for the Clerk to administer the pro hac vice oath of office on January 25, 2019.

On January 17, 2019, Lee J. Rohn, Esq., counsel for the plaintiff in the De Leon matter, filed an emergency motion for this Court to reconsider Kershaw’s pro hac vice admission because Kershaw had purportedly engaged in the unauthorized practice of law. The motion was accompanied by an affidavit in which Rohn swore, under penalty of perjury, that Kershaw had appeared as counsel for the defendants at a mediation that occurred on January 17, 2019, even though she had not taken the pro hac vice oath of office.

The court entered a show cause order

Bentz and Kershaw filed a joint response with this Court on January 23, 2019. In that response, they concede that Kershaw appeared as counsel for the defendants at the January 17, 2019 mediation, despite not having been administered the pro hac vice oath. However, they maintain that Kershaw was authorized to do so pursuant to American Bar Association Model Rule of Professional Conduct 5.5(c).

The court rejected reliance on the ABA Rule

Bentz and Kershaw’s reliance on the ABA Model Rules is misplaced. Although former Supreme Court Rule 203 did at one point provide that the ABA Model Rules governed the conduct of Virgin Islands attorneys, this provision was repealed effective February 1, 2014, and replaced with the Virgin Islands Rules of Professional Conduct. In re Adoption of the Virgin Islands Rules of Professional Conduct, S. Ct. Prom. No. 2013-001, slip op. at 1 (V.I. Dec. 23, 2013). Significantly, this Court expressly declined to adopt ABA Model Rule 5.5(c) when it enacted the Virgin Islands Rules of Professional Conduct...

Moreover, ABA Model Rule 5.5(c) was never applicable to the Virgin Islands in the first place. In its first unauthorized practice of law decision involving a bar applicant, this Court held that the statutory definition of the unauthorized practice of law codified in section 443 governed to the exclusion of the ABA Model Rules of Professional Conduct. In re Campbell, 59 V.I. 701, 711 (V.I. 2013) (“By its own terms, [former] Rule 203 establishes that the Model Rules govern the conduct of individuals who have actually been admitted to the Virgin Islands Bar, and makes no reference to extending the Model Rules to govern the conduct of nonmembers . . . . More importantly, Rule 203 expressly states that the Model Rules only supersede previously promulgated court rules ‘pertaining to disciplinary enforcement,’ and does not purport to modify the statutory definition of unauthorized practice of law found in section 443.”) (emphases in original). Since then, this Court has repeatedly held that incorrect reliance on ABA Model Rule 5.5 is not a defense to the unauthorized practice of law in the Virgin Islands.

The mediation appearance was unauthorized practice

Accordingly, we deny the petition to admit Kershaw pro hac vice. Since the underlying conduct may potentially warrant action beyond the denial of pro hac vice admission, we also refer this matter to the Office of Disciplinary Counsel, the Board on Professional Responsibility, the Board on Unauthorized Practice of Law, and the Virgin Islands Attorney General, for the purpose of taking any additional action which they may find appropriate with respect to Bentz and Kershaw’s conduct in this matter.

As admission had been granted and awaited only administration of an oath, I find this response disproportionate to the conduct. (Mike Frisch)

February 9, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, February 8, 2019

No Interlocutory Suspension For Child Pornography Charges

The Tribunal Hearing Division of the Upper Canada Law Society denied a motion for interlocutory suspension

Mr. Rooney (“the Licensee”) has been charged with making, distributing, possessing and accessing child pornography. At the time of the hearing, he had not yet received disclosure of the prosecution’s case  against him, although his bail had been set and conditions imposed.

The Law Society submitted that this case was different from other cases in which criminal charges such as these have been laid and interlocutory suspension denied. The Licensee submitted that this case does not differ from previous cases dealing with such charges, where there has been no allegation of physical contact, and where the licensee’s client base does not include minors.

The situation

The Licensee was called to the Bar in 2015. He was an associate at a law firm doing primarily tax, wills and estates work. The Licensee is no longer employed. He has no criminal record and no discipline history.

On October 12, 2018, the Law Society learned that the Licensee had been charged with a number of criminal child pornography offences. The Information lists two counts of making child pornography, one count of distributing child pornography, one count of possessing child pornography and one count of accessing child pornography, all on or about September 18, 2018.

The Crown synopsis indicates that the charges arise from chats between the Licensee and the complainant, supplemented by pictures. There is no suggestion that the Licensee has carried out any of the acts referred to during the chats.

The Licensee was granted bail with a $10,000 surety and a number of terms...

He is presumed innocent

We note that the Licensee reported the charges immediately, and requested that his counsel ensure he was in compliance with the Law Society’s rules. There is no connection between the misconduct and the Licensee’s practice as his type of practice would rarely, if ever, bring him into contact with minors. In addition, the Licensee is no longer employed in a practice, and his bail conditions would make it difficult, if not impossible, for him to be so employed. There has been some media coverage but as of the date of the hearing, it had not been extensive.

As to potential penalty, we note this is not an offence that would normally lead to presumptive revocation of licence. The presumptive penalty of revocation is imposed in cases of fraud or theft, or the sexual assault of a minor, which is not alleged here.

Motion to suspend denied. (Mike Frisch)

February 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)

When No Response Is The Correct Response

A public reprimand summarized on the web page of the Massachusetts Board of Bar Overseers

The respondent, who was admitted to practice in 1977, received a public reprimand for sending multiple emails to an opposing party, who she knew was represented, concerning the subject of the representation, when she was handling the matter for a client.

In 2015, the respondent represented a husband in a divorce. At one point during the divorce, the wife emailed the respondent and blamed the respondent personally for causing the proceeding to become protracted. The respondent knew that the wife was represented by counsel but replied to the wife with a copy to the wife’s attorney to refute the wife’s allegation. Counsel for the wife responded promptly telling the respondent that he disapproved of the respondent contacting his client. Thereafter, the respondent sent two more emails to the wife about the divorce with copies to the wife’s counsel.

The wife terminated the representation of her prior counsel and hired a new lawyer. Although the respondent knew that the wife was represented by new counsel, the respondent sent an email directly to the wife concerning property that was a subject of the divorce. Counsel for the wife replied promptly objecting to the respondent’s communication.

By contacting a person that she knew was represented by counsel, on behalf of her client, concerning the subject of the representation, the respondent violated Mass. R. Prof. C. 4.2.

(Mike Frisch)

February 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)