Saturday, August 31, 2013

Texting While Intoxicated

An attorney who sent "inappropriate" text messages to a client in a post-divorce matter and twice called the client and hung up was reprimanded by the Massachusetts Board of Bar Overseers.

The attorney was intoxicated when he sent the text messages.

He also had failed to report a DUI conviction to bar authorities.

The attorney has struggled with alcohol addiction and must comply with conditions imposed by the Bar's Lawyers Concerned for Lawyers program. (Mike Frisch)

August 31, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

Not Just For Personal Use

The Illinois Review Board has proposed a four-year suspension of an attorney convicted of marijuana distribution:

In 2007, Respondent's family owned property in  Indiana. In October 2007, Sheldon stayed at Respondent's condo in Chicago and at  the home in Indiana during a distribution of a load of marijuana. Respondent  allowed Sheldon to store several hockey duffel bags containing about 250 pounds  of marijuana at the residences. Respondent testified he did not know the bags  contained drugs. After a couple of days, Respondent falsely told Sheldon he had  to leave because Respondent's parents would be visiting the Indiana home. A few  days later, Respondent purchased six pounds of marijuana from Sheldon. He sold  some of it to a friend, Victor, for a profit.

In November 2007, Respondent and Victor traveled to  California to meet with Sheldon, where they purchased about 13-15 pounds of  marijuana. Sheldon showed them the ranch where he grew the marijuana. There they  arranged to purchase more marijuana on credit. After this transaction, however,  Sheldon asked Respondent if he was "ready for more", but Respondent declined.

The federal government was investigating Sheldon in  late 2007, and in January 2008, law enforcement officers raided the property in  Indiana and arrested Respondent. The authorities found 14 pounds of marijuana in the  garage. The authorities also raided Respondent's residence in Chicago and found  evidence of money orders to Sheldon. Respondent was taken to a jail in  Milwaukee.

Respondent contacted the Department of Justice and  offered his cooperation against the advice of his attorneys. In February 2008,  Respondent was charged in a superseding indictment along with 29 others.  Respondent only knew three of the co-defendants and prior to the indictment he  did not know his conduct was connected to Milwaukee.

As to sanction:

Respondent was not an elected official at the time  of his misconduct. In fact, he was not actively practicing law and no client was  implicated by his involvement in the criminal conduct. He cooperated with the  federal government and was candid in his testimony before the Hearing Board. He  expressed remorse. His involvement in the criminal conduct was limited in time  and in scope and he has not engaged in any misconduct since 2007. Consequently,  we do not feel that disbarment, the ultimate sanction for an attorney, is  warranted in this matter. We agree that a four year suspension is appropriate  but believe that the suspension should run until further order of the Court.  Given the seriousness of Respondent's misconduct and given the fact that he had  not yet completed his community service as required at his sentencing, we  believe that a suspension and until further order will best serve the purposes  of discipline and will insure that Respondent has been rehabilitated before he  is allowed to apply for reinstatement to the bar. Respondent asks that any  sanction be retroactive to the date he agreed to an interim suspension. While we  recognize that the Court has, in limited circumstances, allowed suspensions to  be retroactive, given the severity of the misconduct, we do not feel that such a  lenient measure is warranted in this case.

A dissent would disbar. (Mike Frisch)

August 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Excessive Fee Charges Not Proven

The North Dakota Supreme Court has ordered a suspension of 60 days of an attorney who failed to put a contingent fee agreement in writing, failed to notify the client of receipt of funds and failed to properly handle the funds.

The court rejected as unproven excessive fee and dishonesty charges:

This case presents a classic example of a contractual fee dispute between attorney and client. The parties agree they entered into a 10 percent contingent fee agreement, but subsequent developments have created a legitimate dispute over what the 10 percent was intended to cover. [Attorney] Lee contends the parties had agreed the 10 percent applied to all "monetary benefit" which [client] Wilkinson received due to Lee's representation, which Lee interprets to include the monetary benefit Wilkinson received by being relieved of liability on the $1.4 million judgment. Wilkinson and Disciplinary Counsel contend the 10 percent contingent fee only applied to those items expressly recognized in the underlying settlement agreement, i.e. the $140,000 bonus payment and the overriding royalty interest, and Lee's retention of more than $14,000 from the $140,000 settlement payment constituted charging an unreasonable fee under Rule 1.5(a).

The purpose of the prohibition in Rule 1.5(a) against charging an unreasonable fee is to protect clients and the public from excessive fees which exceed the bounds of reasonableness in light of the amount and quality of the work performed, the results obtained, and the fees customarily charged in the locality for similar legal services. The rule was not intended to be used to resolve routine contractual fee disputes between an attorney and client. When there is a legitimate, good faith dispute between an attorney and client over the agreed-upon fee to be charged, there are other avenues that may be better suited than disciplinary proceedings to resolve the civil contractual dispute between the parties. See N.D.R. Prof. Conduct 1.5, Comment 9 (suggesting submission to arbitration when there is a fee dispute). The disciplinary process is reserved for those situations where an attorney has charged an excessive fee beyond the scope of reasonableness in light of the usual and customary fees charged in the locality by similar attorneys for similar work. An attorney is not automatically subject to discipline under Rule 1.5(a) whenever a client claims the fee charged was more than what was agreed to.

(Mike Frisch)

August 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Does A Lawyer Who Is The Client In A Frivolous Suit Violate Ethics Rules?

The Missouri Supreme Court imposed an indefinite suspension without leave to seek reinstatement for six months in a matter involving reciprocal discipline of an attorney sanctioned in Illinois.

The attorney was found to have pursued frivolous and meritless claims by authorizing the filing of attorney's liens and lawsuits alleging breach of contract, breach of promise, interference with attorney's liens and unjust enrichment. The frivolous claims caused delay to the former clients' receipt of settlement proceeds and wasted judicial resources.

The court concluded that the fact that the sanctioned attorney acted through his own counsel did not relieve him of his ethical obligations.

A concurring opinion by Judge Breckenridge would find that the frivolous litigation rule only applies to attorneys who act as an advocate and not as a client.

A dissent by Judge Teitelman would find no violation of Missouri rules.

Illinois had imposed a six-month suspension. (Mike Frisch)

August 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, August 29, 2013

Former Kentucky Bar President Reprimanded

The reports that a former president of the Kentucky Bar Association has been reprimanded:

The Kentucky Supreme Court on Thursday publicly reprimanded a former Kentucky Bar Association president for “brazen misrepresentations” it said harmed the integrity of that office, and for conflicts of interest in the Northern Kentucky priest-abuse litigation.

Barbara D. Bonar, whose yearlong term as KBA president ended in July 2009, agreed to the sanction to avoid the possibility of a suspension or disbarment.

Bonar admitted that she made a “series of misrepresentations” when she falsely claimed she had removed four members from the KBA’s ethics committee because she thought their terms had expired, according to the order.

In fact, none of their terms had expired, and all four had ties to Cincinnati lawyer Stan Chesley, whose firm Bonar sued unsuccessfully for fees in the Diocese of Covington case.

The order says Bonar falsely claimed not to have a list showing when the terms expired. It also says Bonar claimed she’d removed one bar member because she had been told that person was untrustworthy.

Bonar, who practices in Covington, did not respond to a phone call and an email.

In a 6-0 opinion, the court said Bonar’s misconduct as bar president was unprecedented and “deeply troubling.”

Bonar told The Courier-Journal in 2008 that she had replaced the committee members to achieve greater “diversity.”

The court said that Bonar‘s misconduct in the diocese case was more serious, but that it didn‘t result in any financial harm to members of the class who sued the Church.

The newspaper reported in October 2008 that Bonar tried to block the $84 million settlement of that case so she could extract a larger fee for herself.

Affidavits in her disciplinary case showed that Bonar, working behind the scenes, helped write an objection to the settlement for a former client and tried to drum up negative news stories to derail it — even though she had been a lead lawyer for the 380 victims.

Bonar sued Chesley’s firm for half of the $18.5 million in attorneys’ fees ordered in the case but a judge said she wasn’t entitled to anything because she had committed numerous ethical violations.

Chesley was disbarred in March for taking an excessive fee — $7.6 million more than he was owed — in Kentucky’s fen-phen case.

The KBA hired an outside lawyer to investigate Bonar but refused to make public his report or disclose how much he was paid to produce it.

Bonar is the second former bar president to be sanctioned after leaving office.

Steve Catron, who was president in 2003, was permanently disbarred for mishandling more than $500,000 in public funds in Bowling Green, where he practiced.

The court order is linked here. (Mike Frisch)

August 29, 2013 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Not Unjust

An attorney who had consented to disbarment in New Jersey contended that the imposition of that sanction as reciprocal discipline in New York would be "unjust."

The New York Appellate Division for the Second Judicial Department disagreed and imposed the identical discipline of disbarment. (Mike Frisch)

August 29, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 28, 2013

Mitigation Not Pursued, Attorney Disbarred

The New York Appellate Division for the First Judicial Department lamented but nonetheless disbarred an attorney whose mental health issues impaired her practice and ability to respond to bar charges:

What makes this matter even more unfortunate is that, as pointed out by the Referee, respondent felt sincere remorse for her actions and wanted to make things right for her clients, but her crippling mental illness prevented her from even beginning to take steps to do so. Indeed, it is likely that the very mental illness which respondent appears to suffer from, and which seems to have led to the neglect charges in the first instance, prevented her from appearing in this proceeding and establishing her illness as a mitigating factor justifying suspension, or, at the very least, seeking an interim suspension pending a determination of her capacity to continue the practice of law, pursuant to 22 NYCRR 603.16. Nevertheless, because she did not take those actions, we have no choice but to uphold the sanction recommended by the Referee and the Hearing Panel.

(Mike Frisch)

August 28, 2013 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Disgusting Suggestion Leads To Suspension

The web page of the Ohio Supreme Court has a summary of a disciplinary case where the attorney offered "other arrangements" for payment of his fee in a child custody matter.

At an office meeting, the attorney told the client that he would come to her home and that she should answer the door naked. She found the suggestion disgusting. Despite her objection, he drove 35 miles to her home where he was met by her fiance and her fiance's father.

Edward Bunstine, an attorney in Chillicothe, was suspended by the court for one year with six months stayed on condition for soliciting sexual activity from a client he was representing in a child custody matter. Adopting the board’s findings in the case, the court stated that Bunstine violated two professional conduct rules by suggesting the client could compensate him for his legal services by engaging in a sexual liaison with him and driving to her home, despite being told by the client not to do so, in an apparent attempt to follow through on that solicitation. The court in its 6-1 per curiam decision noted three aggravating factors – Bunstine’s selfish motive, the harm to his client, and his 2012 stayed suspension for previous unrelated misconduct. Overruling Bunstine’s objections and pointing to the aggravating factors and lack of any mitigating factors, the court suspended his license for one year with six months stayed on the condition that he commit no further misconduct.

The Columbus Dispatch has a report on disorderly conduct charges involving the attorney.

The court's opinion is linked here. (Mike Frisch)

August 28, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 27, 2013

A Non-Venal Conversion Draws A Censure Recommendation

An Illinois Hearing Board has recommended a censure of an attorney who loaned his brother $1,500 in client funds to help pay medical bills for the brother's children.

The hearing board declined to follow the Administrator's call for a four-month suspension:

After reviewing the precedent submitted by the  parties, we find no support for the Administrator's recommendation of a  four-month suspension in this matter. The misconduct found in the  Administrator's cases is completely dissimilar. In Cole, the attorney  engaged in forgery, converted client funds for his own benefit, and then  compounded his misconduct by lying to his partner and client. In Freiman,  the attorney hid his assets in his client account and then used client funds to  pay his personal debts. Both Freiman and Mitchell took several years to make  restitution.

The cases submitted by Respondent in support of  censure are more persuasive as they involve analogous misconduct and include  similar mitigating factors. Specifically, and most importantly, there was no  delay in providing Mr. Cazares with his funds and he suffered no harm. Although  Respondent's misconduct was serious, it was an isolated act. There is also no  evidence of a dishonest motive and Respondent did not benefit from the  conversion.

Respondent has been candid, contrite, and  cooperative throughout these proceedings. As in Lenz, he openly admitted  his guilt and appeared before this Panel not with excuses but merely to contest  the type of discipline to be imposed. We believe he poses no risk to the public;  the effect of these proceedings will deter him from any future misconduct. To  impose a suspension would serve no purpose other than to punish  Respondent for an isolated lapse of judgment. In re Mulroe, 2011 IL  111378 (primary goal in imposing sanctions is not to punish attorney, but to  protect the public and maintain the integrity of the legal profession).

The loan was from unearned fees. (Mike Frisch)

August 27, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Text Sender May Be Liable For Negligence Of Driver Recipient

The New Jersey Appellate Division has held that "the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted."

The court affirmed the grant of summary judgment against the plaintiff but disagreed with the trial court's reasoning that the sender has no legal duty to someone injured by the driver's negligence.

The defendant sender testified that she sends 100 or more texts a day: "I'm a young teenager. That's what we do."

Claims against the young driver were settled.

The accident occured shortly after the driver had left the YMCA and caused both of the victims to suffer horrific injuries.  (Mike Frisch)

August 27, 2013 in Law & Society | Permalink | Comments (0) | TrackBack (0)

To Serve The NOBC

Pennsylvania Deputy Chief Disciplinary Counsel Paul Burgoyne has been elected to serve as Treasurer of the National Organization of Bar Counsel.

 This announcement quotes Mr. Burgoyne

"For me there is no higher calling than serving those who serve. NOBC members serve their courts and the public every day, and assisting them is a gift,” said Burgoyne. “I have been fortunate to work with the NOBC in many capacities over the years, and in my new role I look forward to ensuring the continued fiscally sound operation of the organization and expanding services to members.”

In addition to his many other accomplishments, Paul is a reader of this blog and has a knack for seeing the deep meanings (usually Broadway show tune and classic film references) in our titles.

Congrats! (Mike Frisch)

August 27, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

Dinovitzer, Garth & Sterling Question (Empirically) Current Meme of Buyers' Remorse in Going to Law School

New at SSRN is Buyers' Remorse? An Empirical Assessment of the Desirability of a Legal Career by acclaimed law-and-society scholars Ronit Dinovitzer (Toronto), Bryant Garth (now at UC Irvine, in addition to ABF and Southwestern), and Joyce Sterling (Denver). Their abstract:

The literature attacking the value of legal education relies as a rule on the idea that individuals attend non-elite law schools because of optimism bias -- thinking they will get the lucrative corporate jobs deemed necessary to pay off educational debt. They presumably would then get buyers' remorse when their optimism proves unjustified. Drawing on the first two waves of the only longitudinal data on lawyer careers, the After the J.D. Study, the authors examine whether those who began their careers in the year 2000 -- with substantial debt even if not as high as today's graduates -- showed evidence of buyers' remorse about their decision to get a law degree. The evidence indicates that law graduates beyond the most elite were able to pay down their debt at the same rate or better than most elite law graduates. In addition, after seven years of practice the great majority of these lawyers were still satisfied with their decision to become lawyers. In fact, there is no statistically significant difference in reported satisfaction with the decision to become a lawyer when we compare graduates from the higher and lower ranked law schools. And while there is some suggestion that lawyers who reported still owing more than $100,000 after seven years of practice were either ambivalent or dissatisfied with their decision to invest in a legal career, multivariate models show that percent of debt remaining seven-eight years into one's career has no significant relationship with career satisfaction. Thus, in contrast to the dominant story, most respondents irrespective of debt are extremely or moderately satisfied with their decision to become a lawyer. There is no indication in our data that these law graduates feel they made a mistake by choosing to go to law school. The data also show that those most likely to favor eliminating the third year of law school were elite law graduates and attorneys in large corporate law firms -- again a contrast to the dominant story.

Check it out. [Alan Childress]

August 26, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)

Points for Candor

If you are a suspended or disbarred attorney, I respectfully suggest that you not testify as follows at the hearing on your petition:

I don't have any witnesses and I'm not really here to convince you all that I'm ready to practice law. To be totally honest with you, I don't know - well, since you've asked me, I don't think I could practice law like I did before anyway. I'm physically not capable of it. And that's not an out or I'm not trying to be a cry baby or anything. It's a fact. And I don'y know where I'm headed with that, but I know that this thing has to be drawn to a conclusion. Something has to be done and here.

The petitioner also conceded that he failed to honor a contract with the bar's counseling program.

A unanimous Louisiana Hearing Committee recommended that the reinstatement petition be denied. (Mike Frisch)

August 26, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, August 23, 2013

Disbarred For Stealing From Mother-In-Law

Disbarment was imposed on a Colorado attorney who stole over half a million dollars from his mothr-in-law.

The Daily Camera had the story of his February 2013 criminal sentencing:

[Attorney] Byrne had been married to Short's only daughter, who died at the age of 30, before he re-married. Short had a career with the University of Colorado as a choreographer and dance professor before she moved into the Frasier Meadows retirement community in 2000.

Authorities became aware of the fraud case after Frasier Meadows reported that the woman's bills were going unpaid and she owed more than $40,000.

In 2011, a law enforcement team and civil attorneys discovered that Byrne had stolen more than $578,000 from the woman. He also was living in her home rent-free.

Byrne drained Short's liquid assets to support himself and his family, spending money on trips to Mexico and hotels. He also invested heavily in "WealthMasters," a Ponzi scheme, according to court documents.

The summary from the presiding judge's web page notes that the victim suffered from dementia at the time of the misconduct. (Mike Frisch)

August 23, 2013 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Unblemished, Untarnished, Cross-Examined

The New York Appellate Division for the Second Judicial Department has imposed the identical reciprocal discipline of disbarment of an attorney who received that sanction from the Florida Supreme Court.

The attorney was convicted of conspiracy to commit wire and mail fraud.

He did not serve his cause well at the New York hearing:

The respondent testified with regard to his personal background and his early release from prison. Remorseful and believing that he had already been punished enough, the respondent asked that his punishment in New York be no greater than it is in Florida. He claimed that, prior to his lapse in judgment, he had an "unblemished and untarnished" reputation. On cross-examination, the Grievance Committee elicited that the respondent did not have an unblemished record, but had been issued two admonitions, two letters of caution (one of which related to four separate complaints), and one dismissal with advisement. The Grievance Committee also elicited the fact that the respondent's plea agreement required him to voluntarily surrender his license to practice law in New York prior to sentencing, and that he had not done so yet.

The Special Referee found the respondent's testimony evasive and self-serving, and concluded that there was no merit to the defenses raised by the respondent. The Grievance Committee now moves to confirm the report of the Special Referee. The respondent opposes the motion in part insofar as he seeks the imposition of a term of suspension in lieu of disbarment. He does not claim that the Florida proceedings deprived him of due process. He does, however, claim that disbarment in New York would be excessive and unjust. The Supreme Court of Florida did not disbar the respondent for a specified period. Florida's rules governing disbarred attorneys merely provide that an application for reinstatement may not be made sooner than five years from the date of disbarment. The fact that the waiting period is seven years in New York does not make disbarment by way of reciprocal discipline excessive or unjust. We conclude that the evidence, including the mitigation evidence presented, does not warrant the imposition of a five-year period of suspension in lieu of disbarment.

(Mike Frisch)

August 23, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, August 22, 2013

Spousal Support

The Washington State Supreme Court has disbarred an attorney who

...willfully and fraudulently concealed assets and submitted false filings in the bankruptcy of his wife and her corporation. His innocent explanations for these actions failed to persuade the hearing officer or the Board, and we reject them. Given the severity and willfulness of his pattern of misconduct, and his refusal to accept responsibility for his actions, disbarment is the correct sanction and not disproportionate.

The attorney was disbarred in 1982 for a weapons offense and suspended in 2012. (Mike Frisch)

August 22, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Maryland Tougher Than D.C.

The Maryland Court of Appeals has increased from 60 days to six months the discipline imposed for dishonest conduct as reciprocal discipline based on the sanction imposed by the District of Columbia Court of Appeals.

The attorney was an associate at Pillsbury Shaw Pittman LLP.

For some period of time, he had mis-identified himself as "senior counsel" in a biography and did not immediately correct the inaccurate statement when it was brought to his attention.

He also (1) used the firm's equipment to concoct a false employment certification for a friend;  (2) used the firm's word processing staff to create a false resume for himself; (3) charged personal expenses to the firm; and (4) violated the firm's "outside work" policy.

The D.C. sanction was an agreed disposition of the charges.

I am always distressed when opinions like this make it obvious that D.C. is simply more tolerant of dishonest conduct than our neighbor to the North. (Mike Frisch)

August 22, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Alarm Bell Not Heeded

A "well respected" longtime member of the bar has been suspended for seven months by the District of Columbia Court of Appeals.

The court agreed with the Board on Professional Responsibility that the attorney engaged in negligent misappropriation after an overdraft notice on his escrow account.

Prior to that time, he reasonably relied on another attorney (his now former son-in-law) to oversee the account.

Given the importance placed upon the scrupulous care of client funds, the overdraft was a serious wake-up signal to the sole individual with the ultimate responsibility for the trust account and a situation that mandated his personal continuing attention.

The court upheld the board's conclusions:

Here, we must agree with the unanimous judgment of repondent's peers on the Board, themselves well versed in the rough and tumble of law practice, that once the alarm bell of an overdraft rang, the matter was too important to be left to a subordinate without at least diligent follow-up of any investigation by the subordinate into the apparent flaw. Regrettably, a conclusion of negligent misappropriation and a violation of Rule 5.1(a) necessarily follow.

The court also adopted the board's recommended sanction. (Mike Frisch)


August 22, 2013 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Judge Censured For Outside Fiduciary Conduct

The New York Commission on Judicial Conduct has censured a New York City Civil Court judge who acted as a fiduciary in four matters for non-relatives while serving as a full-time judge.

The conduct took place from 2009 to 2012.

The judge also failed to disclose a foreclosure proceeding against him in a form that required such disclosure.

The commission's press release is linked here. (Mike Frisch)

August 22, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 21, 2013

Stamp Of Disapproval

An attorney who sent a letter containing contraband to an incarcerated inmate in the Maryland Correctional Institute at Hagerstown was suspended for one year by the Maryland Court of Appeals.

The contraband did not consist of illegal drugs or the tools for an escape. Rather, the letter (which had a return address that identified the sender as an "Attorney at Law") contained postage stamps and correspondence from another incarcerated inmate.

The attorney admitted that she was aware that the correspondence was contraband but stated that she was assisting the client with a "literary enterprise." (Mike Frisch)

August 21, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)