Legal Profession Blog

Annulled Conviction Renders Campaign Statement False

The New Hampshire Supreme Court has reinstated a dismissed defamation action and reversed summary judgment in an action brought for statements contained in a flyer in a political campaign

The record supports the following facts. At all times relevant to this appeal, the plaintiff was an attorney in the State of New Hampshire. In 2009, the plaintiff was convicted of theft by extortion, which was later annulled pursuant to RSA 651:5, X. As a result of the conviction, the plaintiff was temporarily suspended from the practice of law, but he was not disbarred.

In 2018, the plaintiff was “the Republican nominee for New Hampshire State Senate District 9.” During the course of the plaintiff’s campaign, the defendants “contracted with Bridge Communications to prepare mail pieces for certain state senate candidates,” including the plaintiff’s opponent for the state senate seat. Bridge Communications, with the aid of an NHDP staffer, prepared a political message that was distributed by mail (the mailer or flyer). The mailer contained the message:

THE WRONG KIND OF CONVICTIONS.

[The plaintiff] targeted woman-owned businesses for extortion. [He] was charged by Republican Attorney General Kelly Ayotte, convicted by the state of New Hampshire for “theft by extortion” and disbarred.

Defamation

we conclude that the trial court erred in finding that the statement on the flyer was true. As a matter of New Hampshire law, a true and accurate characterization of the conviction had to include the fact of the conviction’s annulment. Thus, failure to include the fact of the conviction’s annulment renders the statement false as a matter of law. See RSA 651:5. Accordingly, we reverse the trial court’s dismissal of the plaintiff’s defamation claim.

Disbarred v. suspended

The trial court found that the term “disbarred” was substantially true, because “it is not apparent that Plaintiff’s reputation would have fared better if Defendants had used the word ‘suspended’ as opposed to ‘disbarred,’ as the reader’s takeaway remains the same.” We disagree. The difference between the terms “suspended” and “disbarred” is significant.

A concurrence and dissent in part

The legislature cannot alter the metaphysical truth of the plaintiff’s past — for purposes of the First Amendment, the statement that the plaintiff was convicted for theft by extortion both was, and is, true.

Materiality

it is the plaintiff’s burden to show that a statement is not only false, but “materially false.” Brokers’ Choice of America, 861 F.3d at 1107. “To be material, an alleged falsehood must be likely to cause reasonable people to think significantly less favorably about the plaintiff than they would if they knew the truth.” Id. (emphasis added; quotation omitted). Here, the misstatement, which used the wrong label in referring to the degree of one of the consequences of the plaintiff’s criminal conduct, was not materially false.

The underlying criminal case involved litigation threats relating to the disparate age and gender pricing of haircuts.

Plaintiff's demand letter

I demand that you immediately cease your unlawful practice of charging for haircuts based upon age and gender.   Should you not comply I will be forced to file a complaint with the State Commission for Human Rights while reserving all rights to remove and file in Superior Court.   In addition, I demand payment in the amount of $1000 in order to avoid litigation․  I believe $1000 is a fair amount as it is the minimum that would be awarded for an unfair trade practice alone.   You have ten (10) days to comply․  Should you fail to comply additional steps will be taken including filing with the State Commission for Human Rights and potential removal to Superior Court.   If such action is necessary I will seek all remedies available including but not limited to an injunction, damages for discrimination, damages for the unfair trade practice, ill-gotten gains, punitive damages, attorney fees and costs.   If you object or otherwise wish to discuss the above matter you may have your attorney contact me.

The spouse of the owner of Claudia's Signature Salon had responded to plaintiff's demand letter

Nardi subsequently contacted the New Hampshire Attorney General's Office, and it was determined that an investigator would attend the settlement meeting posing as [owner] Lambert's business partner.   At the settlement meeting, the defendant again stated that he did not have a client.   He further indicated that he, personally, would keep the $500 he received from Nardi, and that he was currently in negotiations with other attorneys in response to similar letters he had sent out.   The investigator executed the settlement agreement, providing $500 to the defendant.   After taking possession of the $500, the defendant was arrested and charged with theft by extortion.

The appellate decision is linked here.

From the recommendation of the Professional Conduct Committee (issued while the criminal appeal was pending)

At the trial, Mr. Hynes conceded that, in addition to the letter to Claudia's Hair Salon, he had forwarded 18 other similar "cease and desist/demand" letters, with demands ranging from $1,000.00 -$2,500.00, to hair salons in New Hampshire. The aforementioned letters to Salon Aquavit and Bellaviso Salon and Spa are two such other letters.

The New Hampshire Attorney Discipline web page does not reflect any final discipline was imposed.

Search by: Attorney Name (dan hynes) 0 Records Found

(Mike Frisch)

An Argument Over The Weather Benefits A Law Firm Defendant

A majority of the Wisconsin Supreme Court affirmed a defense victory in a legal malpractice case, rejecting the contention that evidence of settling co-defendants and references to that fact by defense counsel denied plaintiffs a fair trial

This is a review of certain evidentiary determinations and other related issues following a jury verdict in a legal malpractice trial. This matter arose when a media company entered into a seemingly tax-friendly sale—dubbed a "midco transaction"——with the assistance of three entities: a tax law firm, an accounting firm, and corporate law firm Murphy Desmond SC (Murphy Desmond). The deal closed and the shareholders received their payout, but the favorable arrangement fell apart when the IRS came after the shareholders for taxes and penalties. Three shareholders (collectively the Shockleys) intervened in litigation against all three assisting entities and brought their own claims of legal malpractice, negligence, and fraud. The Shockleys later settled with the tax and accounting firms, signed a Pierringer release, and amended their complaint to remove the allegations against them. All that remained were legal malpractice-related claims against Murphy Desmond.

At trial, Murphy Desmond was found negligent in part, but the circuit court concluded it was entitled to indemnification from the other two entities who had already settled, leaving the Shockleys with no additional recovery. The Shockleys appealed, lost, and now present four issues for our review.

Pierringer release defined

"A Pierringer release operates as a satisfaction of that portion of the plaintiff's cause of action for which the settling joint tortfeasor is responsible, while at the same time reserving the balance of the plaintiff's cause of action against a nonsettling joint tortfeasor."

Plaintiffs

In 1985, Terry and Sandy Shockley bought a radio station in Madison and rebranded it to oldies, a move that proved wildly successful. That success encouraged them to start a media company, Shockley Communications Corporation (SCC). Over the years, SCC amassed nine radio stations and six TV stations. Terry and Sandy Shockley eventually became minority shareholders and sat on SCC's board of directors. During that time, SCC began working with law firm Murphy Desmond. 

At trial

the jury found that RSM, Curtis Mallet, and Murphy Desmond were negligent, as was plaintiff-shareholder Terry Shockley. The jury also determined that RSM and Curtis Mallet committed intentional misrepresentations.

Neither admission of the settlement evidence or an improper defense comment in closing argument merited a new trial

Murphy Desmond's improper comment amounted to a single dark cloud on an otherwise sunny day. The statement comprised two sentences in almost 80 pages of closing argument transcript.

Indemnification saves the law firm

Here's how all of this works in this case. The jury found Murphy Desmond negligent, so it is entitled to indemnification from liability that is joint with any intentional tortfeasors. The jury also found that RSM and Curtis Mallet committed intentional torts. Therefore, under Fleming, RSM and Curtis Mallet bear the full responsibility of any joint liability arising out of their intentional conduct, including the negligent conduct by Murphy Desmond. But both RSM and Curtis Mallet signed a Pierringer release with the Shockleys. That means that, per Fleming, any indemnity RSM and Curtis Mallet owe Murphy Desmond is imputed onto Sandy Shockley and Shockley Holdings. In short, so long as the liability is joint, Murphy Desmond is entitled to indemnification from RSM and Curtis Mallet. But Sandy Shockley and Shockley Holdings, by virtue of the Pierringer release, now stand in the shoes of RSM and Curtis Mallet. So Murphy Desmond owes nothing further to them.

ZIEGLER, C.J., filed a dissenting opinion in which ROGGENSACK and REBECCA GRASSL BRADLEY, JJ., joined.

The majority vastly undersells the extent to which Murphy Desmond's counsel exploited the settlement evidence at trial.

The dissenters would not admit the settlement evidence and would grant relief for improper closing argument

In any event, the majority concludes the circuit court properly denied the request for a new trial because the "improper comment amounted to a single dark cloud on an otherwise sunny day." Majority op., ¶34. Not so. The improper comment was instead the last jolting lightning bolt at the end of a long storm. The circuit court and the majority examined the improper comment from the perspective of a person who listened to the closing arguments and nothing else. But the jury sat through a ten-day-long trial, during which defense counsel referenced the settlement agreement relentlessly. He promised the jury during opening statements that the settlement evidence would be "important" for determining who was really at fault, and he brought it full circle in closing argument. In context, the majority's characterization of the comment as a "single dark cloud" is purely fanciful.

Dissent conclusion

Parties attempting to resolve their disputes without turning to the judicial process need assurance that those attempts will not later be used against them. This is especially true for plaintiffs entering Pierringer releases in multi-defendant litigation, as they expect to go to trial with other nonsettling defendants. The majority reduces the assurance in Wis. Stat. § 904.08 to nothing more than a parchment barrier, permitting settlement evidence in this case to be admitted for the very purposes the statute prohibits under the guise of demonstrating a "significant change in posture." The majority compounds this error by minimizing the improper comments during closing argument and ignoring their context.

(Mike Frisch)

Applicant Practiced For A Decade Without Taking Bar Exam; Admission Denied

The New York Appellate Division for the Third Judicial Department denied admission to an unnamed applicant

Applicant, a 47-year-old resident of New York, graduated from law school in 2000 and passed the bar examination in New York in February 2018. Following a hearing, this Court's Committee on Character and Fitness issued a decision recommending that applicant be admitted to the practice of law subject to certain conditions. The Committee's recommendation has now been referred to the Court for determination.

The character and fitness issues

After graduating law school, from 2001 to 2011, applicant engaged in the unauthorized practice of law in New York for nearly ten years. At that time, applicant, who had not yet taken the bar examination and was not licensed to practice law in any jurisdiction, applied for and was subsequently hired as an attorney, working for two different law firms in New York during the relevant time period. For nearly a decade, therefore, he held himself out as a licensed attorney to his employers and the general public and practiced law, ultimately becoming a partner in one of the law firms.

Applicant's malfeasance was ultimately discovered by one of his employers after he intentionally misrepresented the status of a pending matter to one of his direct supervisors and was asked to resign from the firm. Shortly thereafter, it was discovered that applicant was also not licensed to practice law in New York. In turn, applicant was subsequently indicted for various charges, including grand larceny in the second degree, practicing or appearing as an attorney-at-law without being admitted and registered and offering a false instrument for filing in the second degree. He ultimately pleaded guilty to grand larceny in the second degree, a class C felony, and was sentenced to five years of probation.

The court rejected the favorable recommendation

Contrary to the conclusion of the Committee, given the serious nature of applicant's prior illegal conduct, we find that he has failed to proffer sufficient evidence of rehabilitation to warrant his conditional admission to the practice of law at this time. Although the record indicates that applicant's illegal conduct was attributable, at least in part, to depression and alcohol abuse, he admittedly has not engaged in any mental health or substance abuse treatment since such time. His failure to take any meaningful action to address the underlying issues that he claims contributed to his decade-long saga of practicing law without a license provides little assurance that he will not engage in similar misconduct in the future. Our concern in this regard is exacerbated by the fact that, despite his prior felony conviction and the fact that he is not presently admitted to practice law in any jurisdiction, the biography page on his present employer's website nevertheless represented that he was employed as "Senior Counsel," suggesting that, to date, applicant still does not appreciate the gravity of misrepresenting his attorney licensure status.

We are also troubled by applicant's lack of candor during the admissions process. Applicant failed to disclose on his application questionnaire that his resignation from one of the law firms where he engaged in the unauthorized practice of law was precipitated, in part, by his fabrication of a court order – a deliberate attempt to deceive both his employer and his client regarding the status of a pending matter. Additionally, on his application, applicant only disclosed that he engaged in the unauthorized practice of law at a single law firm in New York from 2005 to 2011. It was only upon questioning at his hearing that he disclosed that he had also interviewed and been hired for another attorney position with a separate law firm in New York, where he was employed from 2001 to 2005. Accordingly, applicant's engagement in the unauthorized practice of law in this State commenced four years earlier than what he represented on his application.

(Mike Frisch)

Fight With Client Draws Consent Sanction

The Louisiana Supreme Court ordered a suspension by consent for a simple battery conviction.

Corey J. Orgeron, Louisiana Bar Roll number 20316, be and he hereby is suspended from the practice of law for a period of one year and one day. All but thirty days of this suspension shall be deferred, followed by respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate.

Two justices would reject the consent sanction as unduly severe.

WAFB 9 reported on the criminal case

Ascension Parish Councilman Corey Orgeron and one of his former law clients, Roydall Lumar, were both found guilty of misdemeanor simple battery Wednesday, May 18.

Parish Court Judge Erin Lanoux handed both men 60-day jail sentences that were suspended and 90 days of supervised probation. They must both complete anger management classes and cannot come into contact with each other or engage in any criminal activity. They must also pay a $100 fine and court costs.

Orgeron and Lumar were each charged with simple battery following an October 2021 altercation between the two inside Orgeron’s law office located in Prairieville.

Judge Lanoux questioned if that would be a problem for the men saying, “we can’t be nice enough to do that?”

Orgeron’s testimony largely focused on painting Lumar as a disgruntled client who had become paranoid about Orgeron’s legal services and lashed out.

Lumar became agitated at that portrayal, going so far as to object at one point on the basis that, “Um, he’s lying.”

Judge Lanoux overruled the objection, drawing chuckles from spectators in the courtroom and even from the judge herself.

Orgeron seemed to take being called a liar personally. He referenced the remark at several points during the trial.

“The thing that hurts the most is being called a liar,” he said. “I’m not a liar. I’m not an aggressor.”

Body camera footage aired by WAFB and shown in the courtroom Wednesday showed the aftermath of that fight.

Both men were preoccupied with continuing the finger-pointing in court Wednesday, allowing state prosecutors to make the winning argument. That being, it did not matter who hit first or who hit the hardest because both of them had committed battery.

During the procedurally jumbled trial, both men chose to act as their own lawyers, meaning they both had the opportunity to question each other on the stand and had to sit just feet away from each other at the same defense table.

Orgeron told the court that the fight left his ego more bruised than his body and made him question certain aspects of his work as an attorney.

“I haven’t figured out if I want to continue helping people,” he said.

Lumar told the court he hired Oregon for a personal injury case, after being attracted by an online advertisement that touted Oregon as the top legal representative, “when character counts.”

However, when the relationship went south on the day of the fight, Lumar testified, Orgeron had “pure hatred in his eyes.”

During sentencing, Lanoux reminded Orgeron that higher expectations had been placed upon him because he was a public figure.

The judge told Orgeron she “did have a problem with the way he acted that day.'

“Our jobs are to counsel as lawyers and stay our level heads,” she stated.

She asked Orgeron if he had been disciplined by the Louisiana State Bar Association and he said he had not.

Speaking after being sentenced, Orgeron told WAFB that he was disappointed in the judge and felt she jumped to conclusions. He even went so far as to call the judgment, “politically motivated.”

Lumar did not comment.

When explaining why both men received the exact same sentence, Judge Ladoux pointed to the lack of a clear aggressor on the body camera footage.

That footage shows an Ascension Parish Sheriff’s deputy arriving and finding Lumar waiting in the parking lot of Orgeron’s law office on Post Office Road.

The footage shows the deputy interviewing Lumar, who tells him he arrived at the law office to pick up a check from Orgeron when the two started arguing. “He got mad and he ripped the check up and told me to get out,” Lumar told the deputy.

Lumar says when he refused to leave and asked that police be called, Orgeron physically attacked him. “He was like, if you ain’t gonna get out, I’m gonna make you get out. And, that’s when he went to swinging at me and grabbing my hair,” Lumar said.

The same deputy then went inside the law office to interview Orgeron.

Orgeron told a completely different story, claiming Lumar acted first by knocking him to the ground.

“And when he came at me, I knew he was going to start kicking me, so I got up as quickly as I could and my forearm hit him in the face a couple of times,” the councilman told the deputy.

The deputy eventually offered both men the opportunity to drop the matter and move on with no one being charged. However, Lumar said he wanted to press charges against Orgeron.

At that point, unable to determine who was being truthful, the deputy charged both men with simple battery.

In trial Wednesday, Judge Ladoux praised that deputy, Corporal Andrew Shugart, for his judgment at the scene.

Leaving the courthouse Wednesday, Shugart’s only comment on the outcome of the case was that both men “had their day in court.”

The conviction is not expected to impact Orgeron’s ability to remain on the parish council.

(Mike Frisch)

Admission Granted

I am pleased to report that the Maryland Supreme Court has granted bar admission to an applicant 

The Court having considered the favorable recommendations of the Character Committee for the Seventh Appellate Judicial Circuit and the State Board of Law Examiners concerning the application of Neo Kamohelo Moneri for admission to the Bar of Maryland, it is this 31st day of May 2023, by the Supreme Court of Maryland, a majority of the Court concurring,

ORDERED that the favorable recommendations of the Character Committee for the Seventh Appellate Judicial Circuit and State Board of Law Examiners are accepted, and it is further

ORDERED that the applicant shall be admitted to the Bar upon taking the oath prescribed by the statute.

My post from the oral argument

I highly recommend this video of a pro se applicant seeking admission before the Maryland Supreme Court.

The applicant was the President of Howard Law's Black Law Students Association who addresses issues relating to his misuse of funds in that capacity as well as his failures to appear in traffic matters.

He passed the state bar examination in 2020.

The State Board of Bar Examiners has recommended his admission and noted his candor with respect to the disclosure of the misconduct.

I have rarely seen such an articulate and thoughtful presentation, acknowledging past lapses and providing reasonable assurances of lessons learned and present good character.

(Mike Frisch)

A Month In Florida

From the June 2023 Florida Bar discipline summaries

Stephen Matthew Bander, 121 NE 46th St., Miami, disbarred, effective 30 days following a May 11 court order. (Admitted to practice: 1999) Following an SEC investigation, Bander was put on notice and reminded that commissions or kickbacks to a law firm are prohibited when representing clients in EB-5 immigration applications. After being put on notice, Bander accepted monies from a local regional center to which he referred three EB-5 clients for investment. Bander testified before the SEC that those monies belonged to the clients as a reimbursement for legal fees. However, Bander failed to notify his clients of receipt of the funds, placed them in his operating account rather than his trust account, and used the funds to pay firm expenses, rather than timely reimburse his clients. During the disciplinary proceedings, Bander changed his position and claimed the funds were direct payments to him for legal fees. (Case No: SC21-11)

Alex S. Barnett, P.O. Box 2890, Silver Spring, Maryland, suspended, effective immediately following a May 11 court order. (Admitted to practice: 2018) Barnett entered a plea of nolo contendere to the charge of written threats to conduct a mass shooting or act of terrorism, in violation of Florida Statute 836.10(2)(b), a second degree felony, and the court withheld adjudication. (Case No: SC23-0667)

Tallahassee Democrat reported on this matter

A one-time assistant public defender in the midst of a Florida Bar disciplinary hearing was arrested for allegedly emailing and tweeting violent threats to a state attorney, a lawyer and the Florida Bar.

Alex Barnett, 34, was charged Tuesday with making a written or electronic threat to kill or do bodily harm or conduct an act of terrorism, according to Leon Circuit Court records.

On Friday, a series of tweets purportedly written by Barnett in May were sent to the Florida Department of Law Enforcement. According to a probable cause affidavit, he wrote, "I want to ... blow up the courthouse," in reference to his bar hearings in Tallahassee.

The initial communications also included "a pattern of threatening communications to multiple members" of State Attorney Dave Aronberg's office. For example, on Dec. 29, he tweeted "I got my gun aronberg."

Mark Alan Kamilar, 2921 SW 27th Ave., Miami, public reprimand, effective immediately following a May 25 court order. (Admitted to practice: 1980) Kamilar consented to a public reprimand for a conflict of interest between two clients: the law firm and its employee, the latter also subject of two separate Bar grievances. Kamilar served as Bar defense counsel for various attorneys from the law firm; authored the confidential termination agreement by which the employee left the law firm; and sent a letter to same employee threatening legal action on behalf of the law firm. Kamilar has withdrawn representation in the two Bar matters. (Case No: SC23-0683)

Kathleen Lynn Smades, 217 Earl St., Tarpon Springs, suspended for three years nunc pro tunc December 4, 2021 (the date of respondent’s suspension from the practice of law after the filing of a felony determination), two years of probation upon application for reinstatement, and, prior to application for reinstatement, must complete the Multistate Professional Responsibilities Examination, obtain a determination from Florida Lawyer’s Assistance, Inc., that respondent is fit to practice and comply with medical and substance abuse treatment. (Admitted to practice: 1998) In 2013, Smades was arrested on three separate occasions for Driving Under the Influence (DUI) in Pinellas County. In each of these criminal cases, Smades was adjudicated guilty for first-degree misdemeanor offenses. In 2019, Smades was arrested on two separate occasions for DUI and Refusal to Submit to Testing in Pinellas County. She was adjudicated guilty for a third-degree felony offence in each of the 2019 criminal cases. Smades failed to inform The Florida Bar of any of the arrests or convictions. She argued that at the time of arrest she was suffering from Auto Brewery Syndrome. The referee found that respondent did not suffer from Auto Brewery Syndrome but rather alcohol use disorder. (Case No: SC21-1521)

Auto-brewery syndrome is defined here by the National Library of Medicine.

Because of the production of significant alcohol levels, people can test over the legal driving limit without consuming any alcohol. The randomness of intoxication episodes can result in difficulties for the patient, including injuries from falls, legal difficulties following driving citations, and strain on social relationships.

(Mike Frisch)

Unearned Fee

An attorney has been suspended for six months by the New Jersey Supreme Court.

The Disciplinary Review Board reviewed his history of prior discipline and described the matter at issue

On February 23, 2018, Denise Funnell met with respondent at a restaurant in Wayne Township, New Jersey and retained him to defend her son in connection with a municipal court matter. While at the restaurant, Funnell provided respondent with a $1,000 check toward his legal fee. Respondent, in turn, provided Funnell with a receipt, which indicated that his fee had been “Pd in full.”

Following their meeting at the restaurant, respondent failed to appear at the municipal court hearing to defend Funnell’s son. Rather, on the date of the scheduled hearing, respondent sent Funnell a text message, claiming that he had been in a “car crash.” At oral argument before us, respondent conceded that he had neither arranged for an attorney from his law firm to cover his court appearance nor contacted the municipal court to re-schedule Funnell’s son’s matter.

She could not reach him and he missed a second court appearance but

Funnell discovered that, on March 22, 2018, respondent had negotiated her $1,000 legal fee check, further endorsing the instrument with the notation “payable to Edward Hubinger” directly below respondent’s signature on the back of the check. Consequently, on April 6, 2018, Funnell went to the Wayne Township Police Department (the WTPD) to report that her $1,000 check had been negotiated, despite respondent’s failure to perform any legal services on behalf of her son.

The police learned that Mr. Hubinger was Respondent's residential landlord and that he was facing eviction.

He pled guilty to disorderly persons theft by deception

Judge Katz accepted respondent’s guilty plea and imposed a conditional dismissal, pursuant to N.J.S.A. 2C:43-13.1,4 with the requirements that respondent: (1) pay Funnell $1,000 in restitution, within thirty days; (2) pay $339 in court costs, within sixty days; and (3) successfully complete one year of probation. Judge Katz advised respondent that, if he complied with each of the conditions, his matter would be dismissed in one year.

Despite "unsatisfactory" compliance

Despite respondent’s failure to comply with the terms of his probation, Judge Katz dismissed respondent’s disorderly persons theft matter because “restitution ha[d] been paid[.]”

The Office of Attorney Ethics sought a censure but

At oral argument and in his submissions to us, respondent did not attempt to dispute the specific facts underlying his conviction but, rather, criticized the municipal prosecutor’s and the WTMC’s procedures in connection with his guilty plea. Specifically, he claimed that the WTMC did not elicit a sufficient “factual basis” for his guilty plea.

The DRB concluded that the guilty plea foreclosed relitigation of the conviction.

Sanction

Respondent’s continued indifference toward his clients and court orders clearly warrants enhanced discipline. Specifically, respondent not only failed to perform any legal work on behalf of Funnell’s son, but also failed to pay Funnell’s court-ordered restitution for at least one year. Worse still, respondent refused to report to his court-ordered probation and falsely claimed, in his submissions to us and during his June 2020 municipal court appearance, that he was not required to do so. Finally, respondent altogether failed to pay any portion of the court-ordered $339 in costs in connection with his conditional dismissal.

Thus, considering respondent’s failure to learn from his past mistakes and his penchant for disregarding client matters and court orders, including the Court’s 2021 Order to Show Cause, we determine that a six-month suspension is the appropriate quantum of discipline necessary to protect the public and preserve confidence in the bar.

(Mike Friisch)

Run Aground

A grand larceny conviction drew disbarment from the New York Appellate Division for the Second Judicial Department.

AbovetheLaw reported on her unusual exit strategy

Imagine that you’ve been working on an estate matter for several years, but you’ve allegedly been siphoning off some of the estate funds for your own personal use, to the tune of about $850,000. Now, imagine that your client catches on to your alleged behavior and goes to the police.

What do you do now?

You try to sail away, sail away, sail away.

According to court filings, Tara Boyle Fallon, a 2003 graduate of Brooklyn Law School, turned over a misleading accounting of the estate and then evaded police for months after learning that an arrest warrant has been issued in her name for grand larceny. She and her husband allegedly “sold their Brooklyn home, changed their phone numbers, and adopted aliases.” They even bought a boat and tried to sail away to St. Croix to escape, but as it turns out, they didn’t really know how to operate a boat, so they couldn’t keep their plans afloat.

Here are some additional details from the New York Law Journal:

 

 

The couple were “not experienced sailors,” and their boat ran aground in New Jersey, according to the filings.

Fallon was arrested [in early February] in the Atlantic City area while trying to repair their boat and continue to flee, according to the filings.

The big house always wins in Atlantic City, but thanks to New York’s new bail laws, Fallon is now out on supervised release and is not allowed to travel outside New York and Connecticut. This really put an anchor on her tropical beach plans.

(Mike Frisch)

Hindsight Criticism Does Not Establish Legal Malpractice

Dismissal of a legal malpractice claim was affirmed by the New York Appellate Division for the Second Judicial Department

Here, the plaintiffs failed to plead that, but for the defendants’ negligence, they would have prevailed in the underlying action (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813). To the contrary, as noted by the Supreme Court, it is uncontroverted that the plaintiffs settled the underlying action in order to avoid potential criminal liability for fraud. To the extent that the complaint alleged that the plaintiffs would have fared better at trial or in the settlement, the allegations in the complaint were conclusory and lacked factual support (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506). The plaintiffs’ “hindsight criticism of counsels’ reasonable course of action . . . does not rise to the level of legal malpractice” (Schiller v Bender, Burrows &Rosenthal, LLP, 116 AD3d at 758 [citation and internal quotation marks omitted]).

With respect to so much of the cause of action alleging legal malpractice as it relates to Jinder’s disability insurance claim matter, the plaintiffs also failed to set out the elements of a legal malpractice cause of action, including omitting certain basic factual information such as any allegations that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by any member of the legal profession and damages (see Keness v Feldman, Kramer &Monaco, P.C., 105 AD3d at 812). Moreover, the defendants established that, to the extent that the cause of action alleging legal malpractice was predicated upon Jindra’s disability insurance claim matter, it was barred by the applicable statute of limitations (see Webster v Sherman, 165 AD3d 738, 741; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735)

(Mike Frisch)

Junior Partner

A junior attorney who became embroiled in his senior partner conflicts of interest and business transactions with his client drew a reprimand from the New Jersey Supreme Court for reasons explained by the Disciplinary Review Board

In short, respondent’s involvement in the conflicted representation and improper business ventures was comparatively limited to that of Bonfiglio, the senior attorney, who was solely in charge of all business and legal matters, who rarely included respondent in business meetings, and who embroiled respondent in egregious conflicts of interest.

Like the admonished attorney in [Aaron Scott] Gilbert, respondent performed the various legal services for [client]] Cameron and the entities at Bonfiglio’s direction and supervision. However, unlike Gilbert, who had been admitted to the bar for just three years before he was entangled in the conflicted representation, which involved one transaction that spanned less than one year, respondent had between five and thirteen years of experience at the bar when he engaged in the conflicted representation, which spanned eight years, between 2004 and 2012, and encompassed multiple matters. During that timeframe, respondent failed to ensure his compliance with RPC 1.7. Additionally, despite his comparatively limited role in Bonfiglio’s businesses, respondent still acquired an ownership interest in CMG and, throughout his protracted involvement in that business venture from 2004 through 2010, failed to comply with the safeguards of RPC 1.8.

Nevertheless, like Gilbert, nearly a decade has elapsed since respondent’s misconduct ended and, in that time, respondent has had no additional discipline. See In re Alum, 162 N.J. 313 (2000) (after passage of eleven years with no further ethics infractions, discipline was tempered based on “considerations of remoteness”). Indeed, this matter represents respondent’s first brush with the disciplinary system in his twenty-three-year career at the bar.

Consequently, weighing the significant passage of time since the underlying conduct and respondent’s subordinate status to Bonfiglio against the protracted nature of respondent’s conflicts of interest, we, thus, determine that a reprimand is the appropriate quantum of discipline to protect the public and to preserve confidence in the bar.

The major players

Bonfiglio and Andrew Cameron, a successful businessman, had an ongoing personal friendship and attorney-client relationship from 1992 through December 2012, when their relationship deteriorated. During that timeframe, Cameron became “a regular fixture” in B&A’s Staten Island law office, where he would spend “many hours” talking to office staff regarding his “business and personal matters.” Additionally, Bonfiglio and respondent handled Cameron’s personal legal matters.

The intertwined business relations are set out at length in the DRB report and include investments in real estate and a number a pizza restaurants. (Mike Frisch)

Failure To Insure

An attorney with a prior record of discipline and defaults was suspended for three months by the New Jersey Supreme Court for failure to have liability insurance and t o respond to the allegations.

The Disciplinary Review Board report

Here, respondent incorporated as a professional corporation – Kendal Coleman, P.C. – on July 21, 2004. Consequently, respondent was required, by Court Rule, to maintain professional liability insurance and to file certificates of insurance with the Clerk. Respondent did neither and, consequently, violated RPC 5.5(a)(1), which prohibits a lawyer from practicing “law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.”

Respondent also violated RPC 8.1(b), which requires an attorney to “respond to a lawful demand for information from . . . [a] disciplinary authority.” Here, respondent violated this Rule by failing to file a verified answer to the formal ethics complaint and allowing this matter to proceed as a default.

Reasons for suspension

In aggravation, we accord significant weight to respondent’s disciplinary history. This matter represents respondent’s fourth encounter with the disciplinary system in five years, albeit our third decision as the result of the consolidation of two matters in Coleman I. The Court has signaled an inclination toward progressive discipline and the stern treatment of repeat offenders. In such scenarios, enhanced discipline is appropriate...

Thus, respondent was on notice that his failure to comply with R. 1:21-1A would, and indeed did, result in discipline. Yet, to date, respondent has neither obtained the required liability insurance nor filed a certificate of insurance with the Clerk.

It is worth noting that respondent also had a heightened awareness of his obligation to insure his corporation as a result of the four administrative contacts from the Supreme Court, occurring between April 16 and July 6, 2021. His failure to follow the Clerk’s explicit direction ultimately necessitated the disciplinary referral.

Thus, respondent’s failure to conform his conduct to the Rules, despite his heightened awareness of this obligation, reflects a willful decision on his part to ignore our previous decision and the Court’s disciplinary Order, and to place his own financial interests above those of his clients.

Equally concerning is respondent’s prior representation to us in Coleman I wherein, in his motion to vacate default, he claimed to have obtained liability insurance in 2017. Given the instant complaint, however, respondent’s earlier representation to us was either false at the time it was made or, alternatively, respondent allowed his insurance coverage to lapse, in violation of the Rule. Either alarming scenario is indicative of respondent’s disregard of the professional standards to which he is obligated to adhere. Moreover, respondent never provided the Clerk with his certificate of insurance, also in violation of the Rule, despite having been disciplined for his failure to do so.

(Mike Frisch)

The White Knight

An (appealable) recommendation of the Massachusetts Board of Bar Overseers

For the respondent’s serial neglect and frivolous litigation in a single, protracted matter, a hearing committee has recommended a suspension of his law license for 18 months. The underlying matter involved a dispute between the respondent’s client and her step-children, who evicted her from her home after the death of her husband. After failing to file an appeal brief in the original case and the entry of a final judgment against his client, the respondent engaged in a multi-front attack on the judgment in state and federal courts, repeating the same arguments that he was precluded from making. He continued to litigate on behalf of his erstwhile client even after she terminated him. The committee concluded that the respondent violated Rules 1.1, 1.4, 3.1, 3.4(c), 1.16, and 8.4(d) and (h). He also violated Rule 1.5 due to the absence of a written fee agreement with the client. The salient facts were established by the board chair’s allowance of bar counsel’s Motion for Issue Preclusion. The committee found several aggravating factors and none in mitigation. In their entirety, we adopt the hearing committee’s findings, conclusions, and recommendation.

The deceased had deeded his home to his daughters by a prior marriage by joint tenancy with rights of survivorship; his wife was unaware of the transfer

There apparently was no love lost between Teodora Caraker and her late husband’s four daughters. At the end of his life, Edward was hospitalized and then discharged to the care of one of his daughters, with no notice to his wife. Teodora was not told of her husband’s death until about one week after he died and after the funeral. At the same time as she learned this news, she was ordered to vacate the home she had lived in with Edward for three decades. The hearing committee found that the daughters harassed Teodora physically and tried to intimidate her.

In the midst of this trauma, Teodora turned to the respondent, who lived on her street in Wayland. The respondent had been a member of the Massachusetts bar since 1974 and the federal courts in Massachusetts since 1975. Teodora saw the respondent as her “white knight.” The respondent agreed to represent Teodora, but did not provide a written fee agreement. According to the hearing committee’s findings, the respondent advised Teodora that he would charge her one-third of any recovery above the value of her interest in the home.

The Board recounts the extensive litigation and finds both neglect and frivolous claims

Turning to the second category of misconduct, there is no doubt that the respondent abused the court system through myriad frivolous litigations, in violation of Rules 3.1, 8.4(d) and 8.4(h). The misconduct is narrated above and need not be repeated ad nauseum. We do not disparage the respondent’s zealous advocacy on behalf of a client whom he viewed (rightly or not) as the victim of her step-daughters’ cruelty and mistreatment. However, the line between zealous advocacy and irresponsibility is not difficult to draw. Once the Massachusetts Appeals Court dismissed the consolidated appeals, the opportunity to argue that the Framingham District Court judgment was “void” for “want of subject matter jurisdiction” was over and done. It was finished. This was true not just for the federal Bankruptcy Court, Federal District Court and U.S. Court of Appeals, but the further litigation in Superior Court concerning Teodora’s contempt and the daughters’ petitions for legal fees and costs. Continuing to advance arguments that were clearly barred by issue preclusion is frivolous and abusive.

Proposed sanction

We agree with the hearing committee’s recommendation of a suspension of the respondent’s law license for eighteen months. A suspension of that length is consistent with the sanctions described in the prior paragraphs. It is on the longer end of the scale, which is appropriate in light of the exhaustive and exhausting nature of the misconduct. Like the hearing committee, we recommend that, whatever sanction the Court imposes, the respondent be required to petition for reinstatement pursuant to S.J.C. Rule 4:01, § 18.

(Mike Frisch)

Retired To Florida

Dan Trevas reports on a bar discipline decision issued today by the Ohio Supreme Court

The Supreme Court of Ohio today issued a six-month suspension to a former Lake County attorney now residing in a Florida assisted living community. The attorney charged an excessive fee and misused his client trust account.

In a unanimous per curiam opinion, the Supreme Court suspended Albert Purola, who in 2021 registered an as inactive attorney. The Court ruled that the suspension would begin if Purola attempted to return to active status. He would not be allowed to practice until he reimbursed the Lawyers’ Fund for Client Protection $7,500, which was the amount the fund awarded to Purola’s former client.

Purola, formerly of Willoughby, has been under suspension since March 2022 when he failed to respond to an Office of Disciplinary Counsel complaint sent to the Board of Professional Conduct charging Purola with violating ethics rules.

Attorney Accepted Advance Cash Fee 

In October 2020, Ronnie Dykes was charged with felonious assault and other offenses in Lake County Common Pleas Court. A week after the assault charges were filed, Dykes faced additional charges of drug possession and trafficking.

Dykes was previously represented by another attorney but in mid-October hired Purola. Purola agreed to represent Dykes in the assault case, including defending him in a trial, for a flat fee of $10,000. Lakeisha Jackson, a friend of Dykes, paid the fee in cash. The day after receiving the cash, Purola deposited only $7,950 into his client trust account, keeping $2,050.

Under the rules governing the conduct of Ohio attorneys, client money is to be placed in a trust account that is separate from an attorney’s personal bank account. The money is not to be withdrawn from the client trust account until legal work is performed for the client.

Purola also agreed to represent Dykes in the drug case. However, he agreed to represent Dykes only for the purpose of filing a motion to suppress the evidence used against Dykes. Jackson paid Purola $2,500 in cash for the limited representation on the motion. Purola only deposited $1,700 of it in the client trust account. He did not give Jackson any receipts for the payments.

Frustrated Clients Seek Refund
Nearly two months after Purola agreed to represent Dykes, Jackson sent Purola a text message stating that Purola had “done nothing” for Dykes and she wanted to fire him from representing Dykes. Jackson requested a refund.

“Since your unilateral decision to prevent me from performing my part of the agreement you are entitled to no refund and will get none from me,” Purola wrote to Jackson.

The disciplinary counsel’s complaint to the Board of Professional Conduct alleged that Purola did little work for Dykes between October and December. The board found that Purola did not document the tasks he performed for Dykes or the time he spent on matters related to Dykes’ case.

The board noted that in November 2020, Purola asked the trial court to continue both the assault case and the drug case, asserting he did not have enough time to prepare. A trial for the assault case was scheduled for January 2021.

Also in November 2020, an assistant Lake County prosecutor emailed Purola a plea offer for both of Dykes’ cases. Three weeks later, Dykes responded to the assistant prosecutor, stating the assault case should be dismissed. A week later, Jackson fired Purola, claiming he had done nothing for Dykes.

The board noted that between October and December, Purola met with Dykes six times in the county jail. Dykes told Purola he wanted the assault charges dismissed or to be heard by a jury. The board found that while Purola agreed to represent Dykes if the case went to trial, he never interviewed witnesses , requested additional discovery , or engaged in any investigative activities.

In the drug case, Purola had not filed the motion to suppress by the time he was fired, even though that was the one act he agreed to do in Dykes’ drug case, the board noted.

The board found that Purola charged a clearly excessive fee based on minimal work. He also violated the rule requiring that an advanced fee not be withdrawn from the client trust account until the fee is earned, and he did not promptly return an unearned fee.

Jackson and Dykes requested that the Lawyers’ Fund for Client Protection pay them $12,500 based on Purola’s failure to provide any representation to Dykes. The protection fund determined that the two were entitled to a $7,500 refund, and that Purola was responsible for reimbursing the fund.

The disciplinary counsel also alleged that Purola failed to comply with federal tax law by accepting $12,500 in cash from Jackson without reporting the transactions to the IRS. That board found that Purola’s failure to report constituted engaging in conduct that adversely reflects on his fitness to practice law.

Court Considered Sanction Recommendation
When considering the sanction in a disciplinary case, the Court considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.

The board found Purola acted with a selfish motive, committed multiple offenses, engaged in a pattern of misconduct, did not cooperate in the disciplinary process, refused to acknowledge his wrongful conduct, failed to pay restitution, and harmed a vulnerable client.

The board noted that even after arranging for Purola to conduct his disciplinary hearing via a teleconference from Florida, the attorney did not participate. When assessing the risk Purola posed to the public, the board noted Purola was 79 years old at the time of the board completed its report, and that his registration to practice law was inactive. The board suggested, and the Court adopted, the six-month suspension.

The Court also required Purola to pay the costs of the disciplinary proceedings.

2022-0350. Disciplinary Counsel v. Purola, Slip Opinion No. 2023-Ohio-1768.

(Mike Frisch)

Blame Shifting Dooms Reinstatement Petition

The Georgia Supreme Court denied reinstatement to a petitioner disbarred in 2001

In his answer to the State Bar’s specifications, Roberson admitted paying himself and his co-counsel approximately $2,333,000 from the client’s $3,325,000 cash settlement.

The court had ordered "full restitution" as a condition of reinstatement.

Adverse findings

ample evidence supported the Board’s conclusion that Roberson was not sufficiently rehabilitated to be reinstated to practice law. Although Roberson made blanket statements throughout the proceedings that he “blamed” himself for his disbarment, he failed to demonstrate that he has taken responsibility for his actions and appreciates the harm his conduct caused and why it raised fitness concerns. Roberson repeatedly mischaracterized the circumstances leading to his disbarment as an issue with co-counsel over calculating appropriate attorney’s fees without adequately addressing his own unethical and dishonest conduct and how the client and her children were harmed by his behavior. “This Court does not countenance such dishonesty and blame shifting in those who seek to practice law in the State of Georgia.” Davis, 307 Ga. at 280 (affirming the Board’s decision to deny reinstatement where the applicant showed an “inability to take responsibility for her prior misdeeds” by shifting the blame for her misconduct to her clients). See also Robbins, 295 Ga. at 67 (2) (affirming the Board’s decision to deny reinstatement where the applicant “was equivocal with respect to demonstrating a recognition of the wrongdoing that resulted in disbarment”); In re Lee, 275 Ga. 763, 764 (571 SE2d 720) (2002) (affirming the Board’s decision to deny reinstatement, concluding that the applicant “has shown no remorse for his conduct and continues to justify, minimize, or blame others,” which “does not add up to a showing of rehabilitation by clear and convincing evidence”). Moreover, although Roberson argues that any misstatements he made during the proceedings were due to a lapse in his memory, rather than a lack of candor, Roberson continued to make misleading and evasive statements in the way he characterized the events surrounding his disbarment even after the Board served him with the specifications, which detailed his past conduct and rule violations. Making such “[f]alse, misleading, or evasive answers to bar application questionnaires may be grounds for a finding of lack of requisite character and fitness.” In the Matter of Odion, 314 Ga. 427, 429 (2) (877 SE2d 182) (2022).

Restitution

The record shows that, following the legal malpractice settlement, Roberson has retained approximately $800,000 from his representation of his client. Thus, he has not satisfied our condition that he make “full restitution to the estate of all moneys he received in regard to his representation of the estate.”

(Mike Frisch)

Former Solicitor General Suspended

An attorney has been suspended for three months by the Georgia Supreme Court based on a petition for voluntary discipline.

One matter

According to the report and recommendation, Whiteside had a career in law enforcement prior to becoming a member of the Bar in 1996, at which point he engaged in private practice, primarily representing defendants charged in criminal cases. In 2018, he was elected as the Solicitor General for Gwinnett County—a position he held through January 1, 2023. Prior to his election, in January 2015, Whiteside agreed to represent a friend who was in law enforcement in a medical malpractice case that arose from the client’s December 2014 visit to the emergency room at Piedmont Newnan Hospital. In February 2015, Whiteside sent a one-paragraph letter with the salutation: “Piedmont Legal Staff,” demanding, on the client’s behalf, five million dollars for “Grave Damage, Physical Harm, Mental Harm, Sexual Dysfunction,” but including no date of medical treatment, no information about the diagnosis or treatment, no names of the treating professionals, and no explanation of how the client’s treatment at the hospital caused the various general harms described. As noted, the letter was not directed to any individual, and, although it stated that it had been delivered by electronic mail “and/or” hand delivery, it bore no email address or physical address to which it was purportedly sent. Whiteside did not charge the client for this work. After sending the letter, Whiteside told the client that he had met with the hospital’s lawyers over multiple days regarding the client’s claims, but he later admitted to the client that the statement was untrue. Over the ensuing months and years, the client made numerous requests for information about his legal matter but his requests went unanswered, and, finally, in late 2018, he checked the court’s electronic docket and discovered that no case had been filed on his behalf. He contacted Whiteside, who responded by attempting to file a medical malpractice complaint in Fulton County in December 2018, but Whiteside named the defendant incorrectly and failed to include the expert affidavit required by OCGA § 9-11-9.1 (a). And, more importantly, the statute of limitations already had expired on the client’s claims. Ultimately, the case was dismissed in February 2019, but Whiteside did not advise the client of the dismissal. Instead, the client only learned that his case had been dismissed when he contacted the court and made an inquiry. The special master noted Whiteside’s claim that he sent the names of potential experts to the client so that he could hire one for the case, but noted that there was no correspondence from Whiteside to the client notifying him about the date that the statute of limitations would expire or clearly advising him that his malpractice case depended upon his obtaining an expert who could make the averments required by OCGA § 9-11-9.1 (a). These failures, the special master concluded, were the result of Whiteside not having an adequate understanding of how to prosecute a medical malpractice claim.

He also had mishandled a divorce case.

Sanction

Having reviewed the record in this case, this Court agrees that a three-month suspension is appropriate in this matter, given Whiteside’s lack of any prior discipline, his full cooperation in these disciplinary proceedings, and the other mitigating factors identified by the special master.

(Mike Frisch)

A More Commensurate Sanction

The Georgia Supreme Court rejected a proposed public reprimand for misconduct involving abandonment of a client matter

The Bar asserts that a public reprimand is appropriate because Bonnell has “violated multiple Rules that authorize the imposition of a public reprimand and one Rule that authorizes the imposition of disbarment,” apparently failing to realize that he has actually violated two Rules with a maximum available sanction of disbarment and two Rules with a maximum available sanction of a public reprimand. The Bar further states that it found there to be no mitigating circumstances and that Bonnell has been subject to prior discipline, in the form of a Letter of Admonition in 2017. But the Letter of Admonition is not a part of the record in this case.

Despite Bonnell’s default, because of a number of errors and uncertainties in the Bar’s presentation of this matter, we do not have sufficient information to impose discipline at this stage.

Rejection

the Bar presents no authority suggesting that a public reprimand is appropriate discipline for Bonnell’s misconduct. This Court has repeatedly disbarred attorneys in the last several years for matters that appear to be materially similar to this one, involving the abandonment of a single client, a failure to respond adequately in the disciplinary proceedings, substantial experience in the practice of law, and no more than one prior instance of discipline. See, e.g., In the Matter of Graham, 306 Ga. 380 (829 SE2d 67) (2019); In the Matter of Mays, 303 Ga. 152 (810 SE2d 478) (2018); In the Matter of Miller, 302 Ga. 366 (806 SE2d 596) (2017). We do not suggest hereby that disbarment is necessarily the appropriate sanction in this matter; we do, however, suggest that, in any future attempts to seek to discipline Bonnell for the misconduct at issue here, the Bar should either seek a sanction more commensurate with the sanctions imposed by this Court in other similar cases or should more adequately explain why a lesser sanction is appropriate. We caution that, should the Bar seek the imposition of a more serious sanction on Bonnell than the one sought here, he should be given a renewed opportunity to respond to any such filing by the Bar.

(Mike Frisch)

Son Of A Judge

A non-attorney town court justice has been censured by the New York Commission on Judicial Conduct for handling a traffic ticket issued to his son

On January 10, 2022, respondent’s son received a traffic ticket for operating an Unregistered Motor Vehicle. The ticket was returnable on February 10, 2022, in the Elizabethtown Town Court.

The son registered the vehicle two days later.

The ticket was scheduled before another judge but

On January 20, 2022, i.e. respondent’s next scheduled court date, respondent asked Essex County First Assistant District Attorney Michael Langey about resolving respondent’s son’s ticket. Respondent’s son was not present. Respondent did not disclose his relationship with to Mr. Langey, who was unaware that the two were related. Respondent told Mr. Langey that [redacted] had registered his vehicle. Although respondent did not document this claim, Mr. Langey relied upon his representation, which was accurate, that the vehicle had since been properly registered.

The ticket was then dismissed.

He acknowledged that his conduct violated judicial canons

In accepting the jointly recommended sanction of censure, we have taken into consideration that respondent has acknowledged that his conduct was improper and warrants public discipline. We trust that respondent has learned from this experience and in the future will act in strict accordance with his obligation to abide by all the Rules Governing Judicial Conduct.

(Mike Frisch)

An Incident In Pueblo

The Colorado Presiding Disciplinary Judge accepted a stipulated disbarment for multiple violations

In December 2020, two clients paid Gradisar $12,500.00 as a retainer. Gradisar took the funds for his own use even though he knew that he did not perform legal services to earn the funds and knew that his clients had not authorized him to take the money. Gradisar closed his office in July 2021 but did not notify his clients or inform them that he was no longer practicing law.

In another matter, two clients paid Gradisar $10,000.00 in May 2021 as an advance retainer for his representation in a trial set for June 2021. On Gradisar’s motion, the court continued the trial until January 2022 and scheduled a status conference for September 2021. On July 1, 2021, Gradisar was administratively suspended from the practice of law. He did not notify the court or his clients of his suspension or move to withdraw from the case. Gradisar failed to appear at the status conference. Gradisar informed his clients of his suspension more than five months after it took effect, telling them that he had prepared for their trial and would petition to reinstate before the trial date. The week before trial, the clients moved to continue the hearing, stating that Gradisar did not notify them of his suspension until late December 2021. On the hearing date, the court denied the motion and dismissed the clients’ case with prejudice. Gradisar knew
that he did not earn the $10,000.00 trial fee and that his clients had not authorized him to take their funds for his own use. Even so, he used the funds for his own purposes.

During his suspension, Gradisar performed legal work by sending a letter written on his office stationary to a collection company on behalf of another; attending court appearances; exchanging paperwork to finalize a client matter; preparing for a trial and paying himself for the work from the client’s retainer; and discussing potential legal work with clients.

Finally, Gradisar was arrested in April 2022 for felony criminal mischief related to domestic violence. In June 2022, he was charged with criminal mischief, a class-five felony, in Pueblo County Court. Gradisar did not notify disciplinary authorities of the case, which remains pending. In November 2022, Gradisar’s significant other sought a temporary restraining order against him related to a domestic violence complaint. The court granted a temporary civil protection order and continued the order in January 2023. A permanent protection order hearing was set for April 2023.

KRDO reported on the arrest

The son of Pueblo Mayor Nick Gradisar and a prominent attorney faces felony criminal mischief charges following an incident in Pueblo on April 23.

Douglas Gradisar is accused of causing between $5,000 and $20,000 in damages to the inside of a home he shared with his former girlfriend, Shawna Santistevan.

According to court documents, Gradisar was originally charged with felony menacing, domestic violence, and harassment.

Arrest documents obtained by 13 Investigates say his former girlfriend, the victim, called the Pueblo Police Department on the morning of April 23, 2022. She told police that Gradisar said their home had been broken into and there was extensive damage inside the home.

Officers entered the home and saw "broken furniture on the ground and broken glass on the floor." She told police most of the broken items belonged to her, arrest documents say.

As officers began searching the home, they found that Gradisar's pinball machine, arcade game, and music equipment were all intact. The victim provided 13 Investigates with photos of the damage inside her shared home with Gradisar.

Pueblo Police officers arrested Douglas that morning. He was booked into the Pueblo County Jail and two days later posted a $5,000 personal recognizance bond and was released.

However, on April 28, documents were filed that said the case was dismissed.

Documents obtained by 13 Investigates say Pueblo District Attorney Jeff Chostner did not believe there was enough evidence to proceed. The document reads, "there is insufficient information provided in the reports submitted by law enforcement to indicate how law enforcement was able to determine it was the suspect who committed the alleged offenses."

 

In a statement to 13 Investigates, Chostner said, "The case was put in a “no-action” posture, pending additional information/investigation by the Pueblo Police Department. Once we received that, we believed we had sufficient evidence to proceed and we did."

More than a month later on June 6, Chostner filed a motion to reinstate the case. Court documents say "additional follow up investigation was conducted by the Pueblo Police Department and additional information was provided to the District Attorney's Office."

For the last three months, 13 Investigates has asked for answers about what evidence was missing in the initial investigation and what "additional follow up" was done.

Pueblo Police Chief Chris Noeller issued this statement to 13 Investigates:

The case is still open and active so I can’t go into detail, but there were additional interviews that needed to be conducted, and evidence that needed to be collected that was not collected by the officers that night.

Pueblo Police Chief Chris Noeller

When asked about what new evidence came to light, Noeller said:

"As soon as I discovered the deficiencies with this case, I had a detective from our Special Victims Unit assigned to investigate the case and conduct further follow up.  This follow up was conducted and the case with the new information was presented to the DA’s Office.  Unfortunately, I cannot discuss the evidence in this case as this is an ongoing investigation and as you noted still in active court proceedings.  I don’t want to affect the case one way or another.  What I can say, as I’ve stated in the past, is this was not an example of our best work and for that I apologize to all involved.  We caught the deficiencies, we’ve addressed them with our staff, and we completed a more thorough investigation which the DA’s Office reviewed and has charged.  To state anything further would be inappropriate at this time."

Pueblo Police Chief Chris Noeller

13 Investigates first learned of Gradisar's charges in late April. A citizen informed Pueblo City Council member Regina Maestri of the charges. She says she became concerned when the charges were put into a "no-action" posture.

"Obviously something took place and as I further looked into it, I found that the accused was trying to have the records sealed," Maestri said.

Maestri is referring to an effort made by Gradisar's defense attorney Adam Schultz to seal the records related to the case.

The motion was filed on May 3 by Schultz. In response, Chostner indicates that there is a possibility of charges being refiled in the case. They asked Judge David Alexander to not grant the motion to seal all records related to the case. Judge Alexander chose not to seal the records.

"I was elected and stood to be a voice for this community," Maestri said. "To bring change to this community, to bring transparency to this community."

The victim in the case told 13 Investigates that she is worried for her safety and did not feel comfortable speaking out. Maestri says she never wants a Pueblo citizen to feel like they can't speak out.

"If victims do not feel comfortable speaking out, I am comfortable speaking out for any victim in this community because that is what you elected me for," Maestri said.

13 Investigates reached out to Pueblo Mayor Nick Gradisar for comment on his the allegations against his son. Gradisar said:

I love my son and it is shameful that my status as an elected official makes some people believe that his legal troubles, which have nothing to do with me, can be used to politicize his unfortunate situation. 

Mayor Nick Gradisar

Maestri said she is not speaking out as a way to seek political gain or politicize the situation. Rather, to shed light on how prevalent domestic violence crimes are in Pueblo.

"That's is a selfish statement from the Mayor. That he is more worried about his political career than he is about the well-being of our community," Maestri said. "I'll have critics for coming forward and being a voice for all victims, especially with this one being the Mayor's son."

The City Council member cited two domestic violence homicides occurring in early 2022 as a large reason for feeling the need to come forward.

13 Investigates reached out to Chief Noeller and District Attorney Chostner for interviews regarding this case. Both declined and cited open investigations and ongoing litigation as the reasons why. Gradisar's defense attorney Adam Schultz declined to comment on his client's charges as well.

Gradisar will be back in court on September 1.

(Mike Frisch)

A Balance Of $2.15

An interim suspension has been ordered by the New York Appellate Division for the First Judicial Department on these facts

In March 2022, the AGC received a complaint from S.M., a client who respondent had represented in the sale of an apartment. On September 23, 2021, in connection with the sale, respondent deposited into his escrow account the contract deposit for $63,700. Thereafter, withdrawals from the account via online transfers to a linked checking account were made resulting in the account balance dropping to $51,906.16 on January 21, 2022. As of February 2, 2022, seven days prior to the closing, the escrow records showed a balance of only $3,781.16. At the closing on February 9, 2022, respondent received $32,735.15, representing the balance of the purchase price. After seller expenses, respondent was to wire his client the balance of the proceeds totaling $78,086.14, but he failed to do so.

On April 22, 2022, the Lawyers' Fund for Client Protection notified the AGC that on March 24, 2022, an escrow check from respondent's account for $250 had been dishonored and returned for insufficient funds. Respondent's escrow account records shows that as of March 11, 2022, his account balance was $2.15.

In his October 2022 answer to the complaint, respondent explained that, during the COVID-19 pandemic, he had developed an addiction to methamphetamine, spent several weeks at a Nevada facility receiving intensive treatment for his addiction and agreed to join an attorney monitoring program and be randomly drug tested. Additionally, respondent admitted having used his client's funds for his own personal use during his addiction and that the $250 check was dishonored due to his having wrongfully written the escrow check to himself. Respondent explained that he had fully repaid S.M. by October 2022.

The court

Here, the bank records and respondent's admissions sufficiently demonstrate that respondent engaged in professional misconduct by intentionally converting and/or misappropriating client funds maintained in his IOLA account, warranting his immediate suspension from the practice of law (see Matter of Grant, 184 AD3d 315 [1st Dept 2020]; Matter of Goldsmith, 159 AD3d 188 [1st Dept 2018]; Matter of Pierre, 153 AD3d 306 [1st Dept 2017]; Matter of Reid, 137 AD3d 25 [1st Dept 2016]). Moreover, respondent's delinquency in his attorney registration provides another ground for his suspension (see Judiciary Law § 468-a; Matter of McCrea, 211 AD3d 167, 170 [1st Dept 2022]; Matter of Willner, 209 AD3d 47, 50 [1st Dept 2022]).

(Mike Frisch)

Accused Attorney Cannot Cross-Examine Complaining Witness

The British Columbia Law Society Hearing Division has granted an adjournment to permit the Respondent to secure counsel and arrange for someone other than Respondent to cross-examine the key witness

The Respondent practises in Nanaimo. He has been a member of the BC bar for just over 47 years.

He has been cited for conduct alleged to have occurred at an examination for discovery he conducted of the female opposing party (“CK”) in a family law matter. The Citation alleges that during and after the examination:

(a)        he made statements that were discourteous, uncivil, offensive, or demeaning, and

(b)        he engaged in harassment by inappropriate conduct or comments toward CK, that he knew or ought to have known were unwanted and could have the effect of violating CK’s dignity.

The alleged conduct occurred on September 16, 2020. The Citation was authorized on June 6, 2022.

 

The hearing

 

Proceeding with the hearing would have created unfairness to both the Respondent and the complainant, CK. The Respondent, although he had initially decided to proceed without counsel, changed his mind after speaking with Ms. Brown. Mr. Beaubier on the Respondent’s behalf noted some contested evidentiary issues that the hearing panel will face, both in terms of what he says are highly relevant documents the Respondent may try to introduce, but whose admissibility the Law Society disputes, and in whether the opinion of Ms. Brown in her affidavit can be admitted as expert evidence. It is preferable for a fair hearing that the Respondent have able and impartial counsel to address these issues, to conduct witness examination, and to make submissions. There is wisdom in the old maxim about the foolishness of those who represent themselves.

 

It is also very unfair to CK to put her in the unenviable position of having to agree to the Respondent personally cross-examining her in return for the hearing proceeding. While it is commendable that she agreed to do so to help preserve the hearing dates, the concerns that underlay my original order to appoint counsel to cross-examine have not gone away. The crux of the disputed allegations is the conduct of the Respondent while cross-examining CK. Repeating the process is not a helpful exercise for the parties or the hearing panel.

 

(Mike Frisch)