Monday, January 31, 2011

Nowhere Lawyer

A Massachusetts attorney has been indefinitely suspended for his role in attempts to sell 24 videotapes depicting John Lennon and Yoko Ono after the tapes had been stolen from their owners. The buyer in the transaction was Yoko Ono. From the Bar's summary:

In January, 2000, John Fallon and Rober Grenier, Jr., purchased twenty-four original videotapes depicting John Lennon and Yoko Ono, along with beta tapes containing full copies thereof. The copyright to the videotapes was included in the sale. In March or early April, 2000, the videotapes were stolen from World Wide Video, LLC, the corporation established by Fallon and Grenier for purposes of marketing the videotapes or turning them into a documentary. World Wide Video then brought suit against John Messina alleging that Messina had stolen the videotapes. The respondent defended Messina in that action which ultimately was settled with payment made by Messina as well as his commitment to assist in securing the return of the videotapes.

While the videotapes remained outstanding, World Wide Video was approached by Anthony Pagola who purported to know where the videotapes were located. Pagola reached an agreement with Fallon and Grenier that, subject to approval by World Wide Video, granted him six months to find a buyer for the videotapes. On August 24, 2001, a certificate of incorporation was filed with the Delaware Secretary of State incorporating a business known as Inner Vision, Inc., that listed Pagola as the incorporator. The respondent's testimony regarding his involvement, as well as the involvement of Messina, is conflicting and non-credible but the respondent has admitted filling out and filing the 2001 Delaware Annual Franchise Tax Report for Inner Vision, Inc., in which he identified Pagola, Messina, and himself as directors.

In early 2002 overtures were made to attorneys representing Ono expressing interest in selling the videotapes to her. On February 27, 2002, a fax with respondent's name and fax number in the header was received by Ono's attorney that purported to be a sales agreement between an entity owned by Pagola and Inner Vision, Inc., transferring copyright and ownership of the videotapes. The document was dated March 23, 2000, but was created after the fact in an attempt to create a chain of title to the videotapes.1 Ono's attorney, however, was not satisfied that this document accounted for all potential claimants as he became aware that Fallon and Grenier had held an interest in the videotapes at some point in 2000. Accordingly, the attorney requested the document transferring title from Fallon and Grenier to Pagola's company. A fax purporting to be such a document, and bearing a header with the respondent's name and fax number, was then sent on March 11, 2002. Ono's representatives then continued negotiation of the transaction with what they believed to be a group of sellers represented by the respondent. Indeed, as a result of their communications with the respondent, Ono's attorneys believed that the respondent was representing World Wide Video in connection with the transaction though this was not the case.

Agreement was ultimately reached and a closing was arranged for May 17, 2002, in connection with which a release of Fallon and Grenier's rights to the videotapes was faxed from the respondent's office to Ono's attorneys. The release contained Fallon and Grenier's signatures and was notarized by the respondent. The signatures, however, were fraudulent. Rather than being the genuine signatures of Fallon and Grenier, written in ink and by hand, the signatures appear to be "cut and paste" copies of signatures excised from the Bill of Sale for Rights by which the men initially gained title to the videotapes.2

Following the closing, Ono believed herself to hold copyright to the videotapes. Fallon and Grenier similarly believed themselves to hold copyright to the videotapes which they had recovered by April, 2005. When Ono learned of Fallon and Grenier's plans to promote and show the videotapes she asserted her rights under the May 17, 2002, "release"; The parties' competing claims ultimately resulted in the filing of a lawsuit by World Wide Video in federal district court.

On October 25, 2007, the respondent testified under oath at the office of bar counsel regarding his notarization of the copyright transfer document and his involvement in the sale of the videotapes to Ono. The respondent stated that his first dealings with Pagola occurred on the day of the closing, that Pagola brought two men to the respondent's office who identified themselves as Fallon and Grenier, and that he notarized their signatures after they signed in his presence, and that he had no other involvement in the sale of the videotapes. The respondent made similar sworn statements at a November 26, 2008, deposition taken in the course of World Wide Video's Federal lawsuit.

All of these statements were material to the matters before bar counsel and in the federal litigation. The First of these statements was, at best, intentionally misleading as the respondent knew of Pagola and his involvement with the videotapes, Inner Vision, Inc., and Messina prior to May 17, 2002. The remainder of these statements were knowingly false. Far from being uninvolved in the fraudulent sale, the respondent was a knowing and active participant.

(Mike Frisch)

January 31, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Broker Named Desire

The web page of the Massachusetts Board of Bar Overseers reports an 18 month suspension for misconduct in three real estate transactions:

The respondent was suspended for eighteen months for misconduct as a lender’s attorney in three real estate transactions from December, 2002, through March, 2004. For each transaction, the same mortgage broker, Leo Desire, referred the closing to the respondent. During the time period involved, Desire engaged in a series of “mortgage rescue” transactions with homeowners facing foreclosure, whereby the homeowners would convey their home to straws selected by Desire, Desire would obtain a loan to finance the transaction, and the homeowners would retain the right to repurchase their home pursuant to a formula set out by Desire.

For each of the three closings, the respondent prepared and signed, and had the purported buyers and sellers sign, a HUD-1 Disclosure Statement that he knew contained false and deceptive statements. Among other things, the HUD-1s misrepresented that a buyer’s deposit had been paid and that the buyer brought additional funds to the closing, failed to disclose payments to Desire (or his affiliates), and overstated the funds paid to the seller. The respondent submitted the false and deceptive HUD-1s to his lender clients.

The respondent was aware that the three transactions were straw transactions and that the original owners anticipated redeeming their ownership interests. He was also aware that the purported buyers had agreed that the original owners could continue to occupy the homes. The respondent did not inform his lender clients of these facts. He also had the purported buyers sign occupancy agreements, which he forwarded to his lender clients.

The attorney had substantial practice experience (an aggravating factor) but had not profited from the transactions beyond his standard fees (a mitigating factor). (Mike Frisch)

January 31, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

This Bud's For You

The Maryland Court of Appeals has held that a suspect who had waived his Miranda rights was entitled to suppress statements that he made after the interrogating police officer had stated that "this is between you and me, bud." The statement contradicted the prior warning and "vitiated the suspect's earlier waiver." (Mike Frisch)

January 31, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Have A Ball But Don't Ask For Bucks

The Massachusetts Committee on Judicial Ethics recently opined that a judge may participate in a bar association's educational program but may not be involved in the fund raising aspects of the affair. The question presented:

You have received an invitation from a bar association to participate in a conference. Specifically, the bar association has asked you to serve as advisor to the conference, to moderate a bench bar panel, and to attend a bench bar reception. The bar association has also indicated that you are welcome at any other events, including a ball. You ask if participating in these activities is consistent with your obligations under the Code. The Committee believes that it is.

As to severability:

Here, your description demonstrates that the conference has a dual function:  (1) to celebrate the bar association through educational events involving the bench and bar; and (2) to fund a scholarship to benefit needy law students in furtherance of the conference's - and the bar association's - educational focus.  Even though these two purposes are intertwined in that the decision to fund a scholarship is consistent with the educational cast of the conference, they are severable in terms of your duties under the Code.  

     You "shall not personally participate in the solicitation of funds or other fund-raising activities," Section 4C(3)(b)(i), and you "shall not use or permit the use of the prestige of judicial office for fund-raising . . . ."  Section 4C(3)(b)(iv).  You will not run afoul of these provisions as your participation in the Conference is clearly limited to the celebratory, educational aspect by serving as an advisor to the bar association and as the moderator of a Bench Bar Panel.  See Section 4B & Commentary.  The bar association does not intend to use your name for fund-raising purposes in any capacity, and while its print and electronic publications will mention your participation in the educational aspects, the bar association will not otherwise highlight your role.

     The Committee also cautions you that while you may attend the ball or any other conference event when bar association leadership presents the scholarship and publicly acknowledges the sponsors, Commentary to Section 4C(3)(b), you may not participate in those fund-raising-related events by playing an obvious role in connection with that presentation and acknowledgment.  It is on this basis that the Committee's warning in CJE Opinion 92-2 that a judge could not attend an event that had "a dual function of supporting both a charitable cause and a political cause" does not apply.

     Therefore, the conference is structured in such a way that your participation in the educational aspect is consistent with the Code in that it will not give the impression that you are participating in or using the prestige of judicial office for the fund-raising aspect.  See Section 4C(3)(b)(i), (iv); CJE Opinion 2000-4.

(Mike Frisch)

January 31, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Saturday, January 29, 2011

A Notable Character Witness

An Arizona hearing officer has recommended a suspension of 90 days and probation for two years in a complex case involving an attorney's investment advice to individuals he reasonably believed to be his clients as well as others he did not believe were clients. The investments were in a Ponzi scheme, although the attorney did not know it at the time. One of the victims was his (now former) mother in law. The attorney was convicted of four misdemeanor criminal offenses as a result. The attorney had no prior discipline in 35 years of practice

Some notable aspects. First, one of his character witnesses was retired Supreme Court Justice Sandra Day O'Connor, who testified by telephone. She knows the attorney as a friend and through his work with her late husband. Second, the Bar called an ethics expert witness. Many disciplinary tribunals refuse to hear such testimony on the grounds that it is evidence on the ultimate question and thus inadmissible. had this report on the criminal matter. (Mike Frisch)

January 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, January 28, 2011

Forged Contract Results In Conviction, Disbarment

A Colorado Hearing Board has disbarred an attorney who sued his former law firm for money the firm allegedly owed him for work performed. He filed as evidence a purported contract signed by his employer. The employer's signature was a forgery.

The attorney was convicted of three offenses related to the conduct. The hearing board found that the conviction was conclusive evidence of the ethical violations. (Mike Frisch)

January 28, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge May Have Web Page

From the Florida Judicial Ethics Advisory Committee:


May a judge create and privately maintain a website designed primarily to focus high school students on college or trade school preparation?



The inquiring judge intends to launch and maintain a website, primarily intended to focus high school students on college or trade school preparation.  The home-page would have several potential sources of scholarship information which was provided by the local school system.  The site would also have a page dedicated to linking those who suffer from domestic violence with assistance.  This domestic violence page would suggest counseling and treatment for those who may need treatment at any of the state certified Batterer’s Intervention Programs. The site would have links on the main page to the Army, Navy, and Air Force recruiting offices. Finally the website would have a biographic page and briefly mention a domestic violence case that the inquiring judge was recused from because the violence occurred in front of the judge.

Included in the judge’s Inquiry is the request that we review the information on this site and let the judge know if anything needs to be changed. As in the case of requests to vet campaign literature, we decline to do so.  This Committee has previously concluded that its charge does not (and logistically cannot) include the obligation to screen, upon request, any and all contemplated public statements of Florida's judges.   Therefore, our advice to the inquiring judge will address only the concepts of the contemplated conduct.

As to the request to review the web page:

It is not practicable to list all the provisions of the Code that could apply to a judge’s web site. So, before publishing material on a web site, the judge should carefully examine all provisions of the Code that relate to the site and its topics, to insure that the judge is not doing on the web something the judge could not ethically do in person.

As stated in the Commentary to Canon 2A:

A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct…that are indispensible to the main-tenance of the integrity, im-partiality, and independence of the judiciary.

A minority of the committee believes that the committee should not have an absolute rule declining to review judges’ inquiries on website content.  The minority believes that the committee should consider such inquiries on a case-by-case basis depending upon whether the inquiring judge has provided enough information to allow the committee to render an opinion in an efficient manner without further investigation.

The minority believes that, here, the inquiring judge has provided enough information to allow the committee to render an opinion regarding his intent to include links on his website for: (1) assistance for domestic violence victims and batterers, and (2) description of a domestic violence case from which the inquiring judge was recused.

As for the link for assistance for domestic violence victims and batterers, the minority is circumspect of the inquiring judge’s motive for including such a link because the inquiring judge’s stated intent for the website is “to focus high school students on college or trade preparation.”  Nevertheless, such a link may be acceptable given the Florida Supreme Court’s adoption of certain recommendations for a model family court in In re: Report of the Family Court Steering Committee, 794 So. 2d 518 (Fla. 2001).  Domestic violence cases were expressly included in a model family court.  Id. at 525.  Among the recommendations which the Court adopted:  “Trial courts must . . . establish linkages with community resources.”  Id. at 522.  Also, a model family court should include “a front-end intake process to provide information [and] make referrals to legal and social services.”  Id. at 529.  Domestic violence programs were identified as one of the type of social services for which the court should provide information and/or make referrals.  Id. at 546.  Thus, merely providing a link for assistance for domestic violence victims and batterers would not appear to cast doubt on a judge’s capacity to act impartially as a judge in domestic violence cases.   

The opinion is linked here. (Mike Frisch)

January 28, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

With Or Without Cause

The New York Appellate Division for the First Judicial Department reversed an order dismissing the claim of discharged counsel for a share of fees:

It appears that plaintiffs discharged appellants less than five months after the action was commenced. Whether or not appellant was investigating and conducting discovery as to other potential defendants, as appellant claims, cannot be discerned from the record. The parties submitted starkly contrasting versions of the events which led to appellant's discharge. The general rule is that a hearing is required to determine if an attorney was discharged for cause or without cause before the completion of his services (see Hawkins v Lenox Hill Hosp., 138 AD2d 572 [1988]). It is not clear from the record whether or not the motion court ever provided appellant with the opportunity to present and cross-examine witnesses. Accordingly, the matter is remanded for a hearing before the motion court to determine the issue of whether or not appellant was discharged for cause.

The fee entitlement claim was brought in the underlying civil case rather than as a separate action. (Mike Frisch)

January 28, 2011 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

Thursday, January 27, 2011

Traveling Man Has Selective Focus

The New York Appellate Division for the First Judicial Department has imposed a one-year suspension of an attorney. According to the court's opinion, "a federal jury found that [the attorney] had indeed induced [a client] to retain him by furnishing a resume that patently misrepresented [his] experience as a litigator." The jury awarded a total of $385,000. The underlying suit had been dismissed as a result of the attorney's errors. Professional discipline was imposed against the attorney in 2003.

Misconduct was found here for the attorney's efforts to frustrate the collection of the judgment. He pled guilty to criminal contempt and was sentenced to probation with six days confinement in a halfway house. The sanction was for the contempt conviction and subsequent probation violation:

As to his violation of probation, on May 28, 2009, respondent pleaded guilty to traveling outside the judicial district without court leave — to Paris in 2008 and to Rome in March 2009. Respondent also pleaded guilty to lying to a probation officer in March 2009 concerning the Paris trip, which he only acknowledged after being required to produce his passport for inspection. While professing unawareness of the travel restrictions before the Hearing Panel, respondent had conceded such knowledge at his plea allocution some four months earlier. In a post-hearing submission that included documents relevant to his probation violation, respondent admitted that, in addition to the two European trips, he had traveled to Arizona and Boston in 2008 without court leave.

On August 6, 2009, respondent was sentenced in Federal District Court on the probation violation. While commenting on respondent's "various dishonest and deceptive maneuvers to avoid paying a judgment that he owed [his former client]," which was construed as a "pattern of deception," the court concluded that "this is something deeply embedded in his character, not something that's going to change . . . during a period of supervision." The court thereupon sentenced respondent to 30 days' imprisonment without any further period of supervision.

In mitigation, the Hearing Panel noted that the reason for respondent's European travel was to participate in marathons in connection with his fund-raising efforts on behalf of the Leukemia & Lymphoma Society, which was prompted by his diagnosis with lymphoma. The Panel also noted that respondent's malpractice in connection with the Baker matter had already been the subject of a judgment in federal court and a prior disciplinary proceeding in this Court.

As to sanction:

While respondent was sentenced for his contumacy, satisfaction of the judgment to which his contempt related was only motivated by the commencement of the instant disciplinary proceedings. While this Court accepts that respondent's travels were undertaken for a worthy purpose, it remains that he made no attempt to obtain the requisite leave of court and subsequently demonstrated a lack of candor, both to his probation officer and the Hearing Panel, concerning his awareness of the restrictions imposed on his mobility. Maintaining that his misconduct was not undertaken with a venal motive, respondent notes that it relates to a single matter and attributes his repeated violations of court orders to a "failure to focus" on the terms of his probation. Yet respondent displayed remarkable focus in his efforts to avoid making payments on the Baker judgment, including resorting to the reorganization of his law practice as a PLLC, bankruptcy, and willful disobedience of court orders, all of which were exacerbated by his violation of the terms of his probation and his misrepresentations before the Hearing Panel. The extent of an attorney's misconduct may warrant a substantial sanction even where only a single matter is involved...

(Mike Frisch)

January 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bank May Be Liable For Attorney Thefts

The New York Lawyers' Fund for Client Protection filed a subrogation action against JP Morgan Chase Bank seeking to recover about $1 million paid to 14 claimants who were victims of an attorney's misappropriation of fiduciary funds. The suit alleges that the bank retained the attorney and his firm to close mortgage loans and that reasonable inspections and procedures would have prevented his check-kiting scheme.

The bank appealed the denial of its motion to dismiss for a purported failure to identify claimants and losses. The New York Appellate Division for the Third Judicial Department affirmed the denial of the motion, concluding that the original and amended complaint provided notice to the bank. The amended complaint was properly considered as it was a "mere expansion" of the original allegations. (Mike Frisch)

January 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Per Se Ethics Violation For Failure To Pay Judgment

The Michigan Attorney Discipline Board increased a 179 day suspension that had been imposed by a hearing panel to 180 days. The significance of the extra day is that it requires the suspended attorney establish his fitness to resume practice in order to obtain reinstatement.

The attorney had failed to pay state and federal employee taxes, and had written a bad check. Notably, the  board here rejected a finding of misconduct based on the attorney's failure to pay a civil judgment. The board concluded that such conduct does not establish a per se ethical rule violation. (Mike Frisch)

January 27, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Unearned Warrants Get Former Probate Judge Suspended

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio today indefinitely suspended the law license of [a] Gallipolis attorney...for cashing state payroll warrants totaling $71,405.04 in gross wages that were mistakenly issued to him between January and December of 2005, while he was suspended without pay from his former position as judge of the Gallia County Probate Court. The Court also found that [he] made false statements in seeking reissuance of four expired warrants. 

In a 7-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] actions violated the state attorney discipline rules that prohibit conduct involving fraud, deceit, dishonesty or misrepresentation and conduct that reflects adversely on a lawyer’s fitness to practice.

In setting the sanction for his misconduct, the Court specified that [he] will not be eligible to apply for reinstatement of his license until he has made full restitution to the state.

The opinion is linked here. (Mike Frisch)

January 27, 2011 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 26, 2011

After Passing Bar On Eighth Try, Admission Denied

The New Hampshire Supreme Court has denied the application for bar admission of an applicant (identified as "G.W.") who sat for the bar exam seven times between 1991 and 2007 before passing in 2008. 

Several criminal convictions occured over that period of time, including an 1993 April Fool's Day incident where he "pretended to be a robber," six violations of a restraining order in 1999, criminal threatening in 2001 and a 2004 driving while intoxicated. He owes almost $140,000 in student loans.

He passed the February 2008 bar exam (eighth time the charm) but ran into character and fitness troubles as a result of the crimes and "financial irresponsibility." The Standing Committee on Character and Fitness recommended that he not be admitted. The committee was concerned that he has "not held gainful employment since his law school graduation almost twenty years ago." He also had picked up a 2008 DWI charge.

The court found that, while the criminal conduct did not serve as an automatic bar to admission, the applicant had failed to accept responsibility for his conduct. His outstanding debts "are equally of concern." He had not displayed candor throughout the process.

We appreciate that the applicant...has overcome mental and physical difficulties. However, taken as a whole, the record reflects an individual with a long history of evading his financial obligations, as well as failing to accept responsibility for the consequences of his poor judgment and criminal behavior. We see no evidence that, as an attorney, the applicant would conduct himself any differently.

Application denied. (Mike Frisch)


January 26, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Never Cured

An Illinois Hearing Board has recommended a stayed four-month suspension, with one year of probation, in a matter involving the attorney's 1994 DUI conviction and a 2008 conviction for possession of marijuana.  The key evidence was given by the ("triply board certified") addictions expert called by the Administrator:

After interviewing Respondent, Dr. Henry stated that he formulated opinions regarding a diagnosis and recommendation for treatment. Dr. Henry stated that his diagnosis of Respondent was alcohol dependent and probable cannabis abuse. Dr. Henry stated that the cannabis abuse diagnosis was probable because Respondent empathically [sic] refused to submit to any laboratory testing.

Based on his diagnosis, Dr. Henry opines that Respondent could benefit from a treatment protocol for his substance use. Dr. Henry stated that Respondent would benefit from a course of intensive outpatient chemical dependency treatment. After completing that course of intensive outpatient treatment, Respondent would benefit from aftercare, which is a fairly common follow-up in which, once a week for a period of one year, an individual goes to a group with other individuals struggling with issues of chemical dependency who have just completed primary treatment. Dr. Henry stated that Respondent would benefit from involvement in a 12-step program, being urine-monitored for accountability purposes and having contact with a sponsor with whom Respondent would regularly remain in contact.

After considering Respondent's statement that he has not consumed alcohol since February 2010 or marijuana since 2007, Dr. Henry gave his opinion of whether Respondent could be considered "cured." Dr. Henry stated that no, Respondent was not cured because no one is ever cured of chemical dependency. One can only be in remission and an individual is always at risk for relapse. Further, Dr. Henry stated that it was his clinical experience that when an individual truly is in recovery, they will very willingly submit to laboratory tests because it proves them to be telling the truth. (Transcript citations omitted)

The proposed sanction would require alcohol treatment and reports from his treatment program. The attorney has no prior discipline. Note that the DUI took place almost seventeen years ago and that the attorney completed the alcohol program required in the criminal case. (Mike Frisch)

January 26, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 25, 2011

Legal Consultant License Stricken

The New York Appellate Division for the Second Judicial Department has accepted the resignation of a licensed legal consultant:

The resignor concedes that he is the subject of a pending investigation into allegations that he exceeded the scope of practice as a legal consultant, as set forth in Rules of the Court of Appeals (22 NYCRR) § 521.3. He acknowledges his inability to successfully defend himself on the merits against charges predicated upon the alleged professional misconduct under investigation.

[The resignor] avers that he is not being subjected to coercion or duress by anyone. He understands that his resignation constitutes the revocation of his license as a legal consultant. The resignation is submitted subject to any application which could be made by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts (hereinafter the Grievance Committee) for an order directing that he make restitution and that he reimburse the Lawyers' Fund for Client Protection, pursuant to Judiciary Law § 90(6-a). [He]acknowledges the continuing jurisdiction of the Court to make such an order. He is aware that any order issued pursuant to Judiciary Law § 90(6-a) could be entered as a civil judgment against him, and he specifically waives the opportunity afforded him by Judiciary Law § 90(6-a)(f) to be heard in opposition thereto.

As a result, the resignor was stricken from the rolls of licensed legal consultants. (Mike Frisch)

January 25, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Proposed Domestic Assault Sanction Too Lenient

A proposed 90 day suspension with all but 30 days stayed was rejected as unduly lenient in a case where the attorney was convicted of domestic abuse battery and child endangerment. The assault took place in the presence of minor children.

The Louisiana Attorney Disciplinary Board rejected the proposed sanction and, in turn, has recommended a one year suspension with all but six months stayed, followed by probation.

The hearing committee did not find remorse as a mitigating factor. He stated that the victim did not show "clear evidence of any physical assault" and suggested that he should have not retained a "dear friend" who is a civil practitioner to defend him in the criminal case.

The committee also noted that the attorney is a former wrestler and practitioner of the martial arts. (Mike Frisch)

January 25, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Almost Back

The Mississippi Supreme Court has held that an attorney who had been suspended for three years has met the jurisdictional requirements for reinstatement. The court found that the attorney's physicians were well-qualified to opine on his fitness to practice, notwithstanding the fact that the Bar's counseling program did not approve the  petitioner's doctors.

To complete the reinstatement process, the petitioner must take and pass the MBE. (Mike Frisch)

January 25, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sued Defense Attorney May Attack Former Client's Alibi

The New Jersey Appellate Division reversed an order quashing a subpoena in a legal malpractice case against the plaintiff's former criminal defense attorney. The plaintiff had been convicted of armed robbery and alleges negligence in the failure of his attorney to pursue an alibi defense. The conviction was reversed "principally based on judicial errors."

The defendants sought evidence in aid of attacking the alibi claim. The trial court found that the testimony sought had no relevance to the malpractice claim.

The court here disgreed. While a plaintiff need not prove actual innocence to pursue a legal malpractice claim, the alibi and actual innocence are at issue in the matter. The evidence (which might challenge the alibi) is thus  relevant to the allegations. (Mike Frisch)

January 25, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Imperfect Appeal

From the web page of the Tennessee Supreme Court:

The Board of Professional Responsibility filed a petition for discipline against [an attorney]. The hearing panel found that [he] should be disbarred, disgorge unearned fees, and pay restitution to clients. In addition, the hearing panel set forth requirements for [him] to be eligible for reinstatement of his license. [The attorney] applied to the chancery court in Davidson County for judicial review of the hearing panel decision. The chancery court entered an order on January 6, 2010, affirming [his] disbarment but reversing the hearing panel’s order of restitution of amounts to clients where no disciplinary complaint had been made. [The attorney] has appealed to this Court from the order of the chancery court, contending that he should have been suspended rather than disbarred. It is ordered that the chancery court’s January 6, 2010 order is vacated and that [the attorney's] appeal to this Court is dismissed. Because the sanction imposed by the hearing panel exceeds a three-month suspension and because no appeal was properly perfected, the Board is directed to file a copy of the hearing panel’s order for review by this Court in accordance with Tennessee Supreme Court Rule 9, section 8.4.

The opinion is linked here. (Mike Frisch)

January 25, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Barred But Disbarred

The Maryland Court of Appeals disbarred an attorney who had never been barred in that jurisdiction. The attorney had, nonetheless, set up a law office in Rockville, Maryland. The attorney not only engaged in unauthorized practice, but falsely representing that she was admitted in Maryland. The attorney also committed client-related ethical violations in two matters.

The court concluded that disbarment was appropriate: "It is of no consequence that [the attorney] has never been admitted to the Maryland Bar." The order "operates as an immediate directive that [the attorney] 'promptly notify the disciplinary authority in each jurisdiction in which [she] is admitted to practice of the disciplinary sanction imposed by [this Court].' " (Mike Frisch)

January 25, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)