Monday, March 31, 2014

Sixteen Years Later, 61 Days

The Kentucky Supreme Court concluded that an attorney had represented divergent interests in violation of conflicts of interest rules.

The court found that the attorney had represented a criminal defendant and the estate from which he would be disinherited under the slayer's statute.

The court rejected charges that the attorney charged a contingent fee in a criminal case.

The court imposed a sixty-one day suspension, noting the delay

A litany of words and phrases may be used to describe the long journey of this disciplinary case and the factual backstory preceding it, but words like "swiftness," "celerity," "dispatch," or "alacrity" are not included in the lexicon. This disciplinary proceeding and the facts giving rise to it cover a sixteen-year period: a death; an indictment; a manslaughter trial; a conviction and sentencing; an unsuccessful criminal appeal; an order of post-conviction relief based on ineffective assistance of counsel; and two sets of disciplinary complaints against Respondent, who represented the accused in the criminal case and represented him and others in related matters...

It was the unnatural death of one man that set in motion the chain of events.

The court rejected numerous ethics charges but found a conflict violation

The Court has been hesitant to find ethical violations in most probate settings. Indeed, Rule 1.7 authorizes multiple representations where the representation is not adversely affected and the clients consent to the representation. Respondent obtained waivers from each of the Manning brothers and maintained that attorney-client confidentiality was never an issue between her, the executor and the Manning brothers The fact is that the interests of the Manning brothers were diametrically opposite because of Kentucky's slayer statute. Respondent could not have reasonably believed that the representation would not be adversely affected when one of the clients is on trial for killing the testator and a negative outcome in that case would bar that client.from taking under the will. No waiver could make that conflict disappear. Moreover, Respondent prevailed on the executor to use estate funds to pay for expert witness fees in Manning's criminal defense. This was clearly an unallowable use of funds from an estate where such an expenditure had nothing to do with the administration of the estate and where the outcome of who was entitled to the benefits of the estate was clearly in issue. It is noted also that the transaction was of financial benefit to Respondent as well. Had the estate not paid the bill, Respondent would have likely been obligated to pay it.

A dissent would find that the attorney engaged in incompetent representation and would suspended for 120 days. (Mike Frisch)

March 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reasons Other Than Mental Heath Issues

the Vermont Supreme Court has held that the denial of admission to a law graduate did not violate the Americans with Disabilities Act.

The court found reasons other than mental health issues precluded a finding of present fitness

...we recognize the need for compassion and respect towards those who suffer from mental health disabilities, the vast majority of whom are able to effectively treat their symptoms and contribute productively to society.  We do not take lightly the decision to deny an applicant for unfitness.  Nevertheless, we hold that applicant is unable to meet his burden of proof for admission.  The record evidence amply supports the findings, which in turn support the conclusion that applicant’s conduct—not his mental health history or status—demonstrates his unfitness to practice law.  As outlined by the commissioner, these behaviors include: applicant’s statements—made without supporting evidence—before the Vermont Judicial Retention Committee, during oral arguments before the Maryland Court of Appeals, and before the commissioner in this case regarding a Vermont magistrate, whom he accused of lying and conspiring to prevent his admission to the bar of New Hampshire; applicant’s continued claims that he is competent to provide drug counseling to narcotics users without a license; and most especially applicant’s disturbing conduct in various forums, including this proceeding, which the commissioner was able to observe firsthand.  As noted, the commissioner found that applicant’s obsession with the perceived “corruption” of the family court is “pervasive” and prevented applicant from focusing on the issues in this matter and other proceedings.  The commissioner found, with reason, that applicant’s demonstrated inability to focus and to “filter his presentations” in a variety of legal forums would render his representation of clients other than himself highly problematic, and demonstrated an inability to “make proper presentations of fact and law on behalf of a client or to focus on the client’s needs in or out of court.”  The commissioner also observed, again with reason, that if applicant believed he could provide drug counseling services without training or a license, his judgment in representing clients in areas outside his area of expertise and competence was highly questionable, potentially “putting his clients at financial and emotional risk.” 

The applicant first sought admission in Vermont in 2004. (Mike Frisch)

March 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Amorous But Not Unethical (Except Once)

The Louisiana Attorney Disciplinary Board rejected all conflict of interest charges save one arising out of the extremely active social life of an attorney.

Finding that only one of the attorney's many sexual relationships with women he had encountered in his law practice violated attorney ethics rules, the board has recommended a fully-stayed 30 day suspension.

The adverse finding

The [hearing] committee found that Respondent represented Ms. W. in a divorce action. The only matter left to complete in the divorce action was to toll the six months waiting period to confirm the divorce. During this period of waiting Ms. W. called Respondent to come have a drink at her house. Respondent did go to her house and had a sexual encounter.

By my rough count, the Office of Disciplinary Counsel called eight other witnesses who testified concerning their relationships with the attorney

The Committee noted, and the Board agrees, that with the exception of M. W. “the women who had sexual contact with Respondent were no longer clients at the time the sexual contact occurred based upon their belief and understanding that Respondent was no longer their lawyer or that Respondent manifested to them that he had withdrawn as their lawyer.” Based upon the many days of testimony provided by Respondent and his former clients, the Board concurs with this finding of the Committee.

The board determined that the attorney should not pay costs for the charges that were rejected. (Mike Frisch)

March 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Who Let The Dog In?

The Georgia Supreme Court has disbarred an attorney for serious billing misconduct notwithstanding her distinguished prior record as an attorney.

One issue was waived

Because M. failed to raise an issue at the evidentiary hearing regarding the presence of the client’s dog at the hearing, we agree with the Review Panel that she may not raise the issue for the first time long after the hearing has concluded.

The misconduct took place when the attorney was in financial distress

M. , who was admitted to the Bar in 1983 and had a distinguished career, was having financial difficulties in 2008 while working part-time as a lawyer and part-time as a real estate agent. As a result, she sought a loan from a lawyer with whom she was acquainted. The lawyer declined to loan M. money, but offered to associate her in a litigation matter in which the lawyer and an associate represented two clients in litigation involving a trust of which the clients were beneficiaries. M. accepted the offer; the lead lawyer and M. agreed that M.’s fee would be $200 per hour. The lawyer paid M. $2,000 as a retainer on September 2, 2009, and additional sums totaling $22,500 through March 2010. The lawyer considered these sums to be an advance to be applied against fees earned. M. did not keep contemporaneous time records, but reconstructed her time sheets and invoices from memory and from notes on her calendar or computer.

The attorney submitted a number of billing statements, which led to this finding

The special master found that by submitting wholly unsupported and materially misleading time sheets and invoices to her client, misrepresenting her hours and fees to the court, and misrepresenting in the disciplinary process the payments received, M. committed several violations of the Rules of Professional Conduct. M. has no prior disciplinary record, but found as aggravating factors that there were multiple offenses, submission of false statements or evidence in the trust litigation and the disciplinary process, refusal to acknowledge the wrongful nature of her conduct, and substantial experience in the practice of law. The special master determined that the proper sanction was disbarment.

The court majority agreed with the special master.

Chief Justice Thompson and Justice Melton dissented and would impose a lesser sanction. (Mike Frisch)

March 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, March 29, 2014

Expanding Pro Bono In D.C.

From the web page of the District of Columbia Bar

The District of Columbia Court of Appeals seeks comments on a proposed amendment to D.C. App. R. 49 that would create an exception allowing internal counsel who have not been admitted to the D.C. Bar to provide pro bono legal services.

The Committee on Unauthorized Practice of Law made the recommendation to the court on September 19, 2013, stating that these changes would help address the need to increase access to justice in the District. The amendment would permit attorneys who are members in good standing of the highest court of a state or territory and are supervised by an active D.C. Bar member to perform pro bono work in the District. The work must be assigned or referred by an organization that provides pro bono legal services to the public for free.


Written comments regarding the proposed rule amendment are due by May 20, 2014. Ten copies should be sent to the Clerk, D.C. Court of Appeals, 430 E Street NW, Suite 209, Washington, DC 20001.

Read the full notice.

My comment --good idea. (Mike Frisch)

March 29, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, March 28, 2014

How Far? This Far

Opening with a rhetorical question, the Iowa Supreme Court dismissed with prejudice a bar disciplinary matter

How far can a lawyer go to assist a client in preserving assets from a potential creditor?

The client, a wealthy farmer, had shot and killed a neighbor. He was the defendant in an action by the decceased's estate.  The client vowed that the widow "would not get one dime" of his money.

The lawyer was involved in the transfers of the client's assets to his wife and later to relatives.

Here, the court affirmed findings that the attorney had been duped by the client rather than knowingly participted in a fraudulent transfer of assets. had this report in the civil case. (Mike Frisch)

March 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Twenty Years After

The New York Appellate Division for the Third Judicial Department denied reinstatement to a former attorney disbarred as reciprocal discipline for a disbarment imposed in Florida.

The only notable aspect of the order here was that it noted that Florida precluded any possiblity of reinstatement "for at least twenty years. " (Mike Frisch)


March 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Malpractice Coverup Leads To Crime, Suspension

Caitlin McCaffrey has this story on the web page of the Ohio Supreme Court:

A Cincinnati attorney who was  sentenced by a federal court to five years probation for creating and  submitting fraudulent documents to the Internal Revenue Service and who  fabricated an e-mail during litigation against her and her firm has been  suspended indefinitely from the practice of law today by the Ohio Supreme  Court.

In a 6-1 decision, the court  ruled that Suzanne Prieur Land engaged in conduct that reflects adversely on  her trustworthiness and engaged in deceitful, dishonest, or fraudulent conduct  that was prejudicial to the administration of justice and adversely reflects on  her fitness to practice law.

While working in a large law firm  in 2010, Land created and submitted fraudulent documents to the IRS on two  separate occasions. She was trying to cover up mistakes she made during the  drafting of estate-planning documents that cost her clients hundreds of  thousands of dollars in tax benefits.

Also in early 2010, Land  fabricated an e-mail in order to boost her credibility in a malpractice lawsuit  where she was facing accusations that she did not properly advise her client. During  a disciplinary hearing, Land testified that she felt overwhelmed by the  pressure from her firm and challenges to her professional skills, and that the  scrutiny led her to greater alcohol consumption and self-medication with  anti-anxiety drugs she purchased over the Internet.

Land pled guilty to corruptly  attempting to obstruct and impede the due administration of the IRS in 2012.  She was sentenced to five years probation, including three years of home  detention, and ordered to pay penalties of $75,000, abstain from alcohol use,  and continue mental-health treatment as deemed necessary by her probation  officer.

The court, in today’s per curiam  (not authored by a specific justice) opinion, adopted the findings of the Board  of Commissioners on Grievances & Discipline. The court agreed with the  board’s recommendation that Land be suspended indefinitely from practicing law and  that she cannot petition for reinstatement until she completes her federal  probation. Also, upon her petition for reinstatement, Land must present proof  that she has satisfactorily completed, or is in compliance with, her Ohio  Lawyers Assistance Program contract, and that she continues to receive  treatment from a therapist until the therapist decides it is no longer needed.

The majority opinion  was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer,  Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M.  O’Neill.

Justice Terrence  O’Donnell dissented, stating that he would start the suspension after the  federal probation has been served.

2013-0940. Disciplinary Counsel v. Land, Slip  Opinion No. 2014-Ohio-1162.

March 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 26, 2014

Day Of Atonement

The New York Appellate Division for the Second Judicial Department imposed disbarment of an attorney convicted of offenses relating to the following

The respondent admitted that between February 2006 and June 2011, he was a member of Congregation Aish Kodesh. In or about that time, the respondent was lay treasurer of the congregation. As such, he had authority to transfer monies between bank accounts maintained by the congregation. Admittedly, the respondent transferred $634,960 from accounts of the congregation to accounts under his control, for personal use, without authority. In mitigation, the respondent asserted that he had been unable to maintain his law practice due to a series of family illnesses and had used the funds to pay personal expenses, with the expectation that he would repay it.

On April 9, 2013, the Supreme Court sentenced the respondent, inter alia, to an indeterminate term of imprisonment of 1⅓ to 4 years, and ordered him to make restitution in the sum of $634,960.

(Mike Frisch)

March 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Exoneration Or Unforgivable Sin?

The Oklahoma Supreme Court, in its words, exonerated a criminal prosecutor on allegations of misconduct during the course of a rape trial:

The complainant, Oklahoma Bar Association (Bar Association), charged the respondent, Jennifer Adina Layton (respondent/Layton), with one count of professional misconduct associated with her prosecution of three men in a rape trial. The Bar Association alleged that the respondent: 1) neglected to disclose to the court and opposing counsel that her witness was going to testify inconsistently with his previous police statement; and 2) falsely denied that she had spoken to the witness before and/or during the trial. The Bar Association sought the "appropriate" imposition of discipline and the payment of costs. After the Professional Responsibility Tribunal (PRT) recommended a public censure, the Bar Association argued that "some length" of suspension is more appropriate. The respondent argues that she should not be disciplined because: 1) the circumstances surrounding the alleged events involved a miscommunication/misunderstanding with the trial judge; and 2) if she violated any rules, because it was an inadvertent mistake, she did not do so with any intent or for any ulterior motive. Upon de novo review,we agree with the respondent. The cumulative circumstances show that trial court failed to create a transcribed record of bench conferences and chamber conferences in this serious first degree rape trial. That, coupled with the complaining defense attorney's in-court behavior, and the contemporaneous testimony of the respondent, reflect the nature of the proceedings. Under the facts presented, the respondent's violation does not require the imposition of discipline. The bar disciplinary proceeding is dismissed. The respondent is exonerated of the charges, and the application to assess costs is denied.

Justice Watt dissented

The majority attempts to make Layton's lack of candor with the court everyone's fault except that of the respondent, the one and only individual who had control over what came out of her mouth. Furthermore, it imposes upon the trial court an unwarranted measure of blame.

At all times concerning the charges of misconduct respondent, an assistant district attorney, was not only an officer of the court but was the representative and the face of the Sovereign State of Oklahoma in prosecuting this case. According to Layton's profile, she served in this position for some eight (8) years. It is difficult to believe that, as an experienced prosecuting attorney, the chaos in the courthouse the day she encountered her witness was much different than any contested criminal proceeding in which she had participated. It is common knowledge that our County Courthouses are, for the most part, completely inadequate and provide little opportunity for "quiet conversations" with anyone. Most often, attorneys are forced to conduct such interviews in hushed tones and in crowded hallways filled with other parties and their attorneys attempting to do the same.

When directly asked by the trial judge if she had spoken to her witness, Antral Miller, prior to trial, she lied to the court in answering his question - "NO."!

In response to the charges brought against the respondent, she wants this court to believe that she was confused by the trial court's question; that she did not intend to mislead the court; and that her answer produced no harm and, therefore, no foul.

The record reflects that respondent had at least two other opportunities to proffer the correct and truthful answer (that she had, in fact, talked to Mr. Miller). Once during Mr. Miller's testimony at trial, and also during a meeting in the judge's chambers with and in the presence of the judge and opposing counsel. Yet, respondent continued to perpetuate her original lie to the court...

As a former prosecutor, criminal defense lawyer, and trial court judge, it has been and is my continuing opinion that the one unforgivable sin of any attorney/officer of the court is - "TO LIE TO THE COURT.".

The majority acknowledges that '[t]he record is clear that Layton was not clearly candid to the trial court that she spoke with Miller before his testimony, or what was discussed.' Nevertheless, it adopts the respondent's sugarcoated version of this transgression and the majority opinion signs off by dismissing the charges against her. Accordingly, I would impose costs against this respondent and further impose a lengthy period of suspension based upon the facts before us and for that reason I respectfully dissent.

(Mike Frisch)

March 26, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

I Could Write A Book

The Oklahoma Supreme Court has lifted an interim suspension and imposed a deferred two-years and a day  suspension of an attorney for alcohol-related traffic offenses.

The court's opinion notes an interesting biographical fact

The respondent was admitted to the Oklahoma Bar Association and his name was entered on the Roll of Attorneys in 1986. He practiced law in Tulsa from 1986 until 1996. He is presently an author who published his first book while still practicing law and subsequently published 31 books, including many legal thrillers. He has over ten million books in print, which have been translated into more than two-dozen languages. He has won many prestigious awards for his writing. He also teaches private fiction-writing seminars, teaches writing at Rose State College and legal education courses throughout the country. The trial panel reports in its October 31, 2013, report that within the past year, the respondent has taught CLEs in Wisconsin, New Mexico, Alaska, Ohio, Missouri, Nevada, California, and Indiana.

Two dissents joined by three justices would impose an active suspension in light of the felony conviction.

The attorney does not actively practice law and suffers from alcoholism. characterized by binge drinking.

His Wikipedia page is linked here.  (Mike Frisch)

March 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

License Revocation For Self-Reported Thefts

An attorney who gambled away his law license has accepted revocation from the Wisconsin Supreme Court

In November 2012 Attorney W. self-reported to the Milwaukee County District Attorney's Office (MCDA) and to the OLR that he had stolen money from his IOLTA client trust account to fund a severe gambling addiction and to pay personal bills.  The funds in Attorney W.'s trust account were generated from money judgments that Attorney W. secured on behalf of various clients.  Attorney W. admitted that he had taken a significant amount of money from his trust account over the past several years; he was not certain of the exact amount.

In March 2013 Attorney W. provided the MCDA with a partial accounting in which he identified dozens of clients from whom he had taken funds totaling $450,923.04.  In May 2013 Attorney W. provided the OLR with a second partial accounting showing that Attorney W. had taken $784,734.87 from numerous clients.  Attorney W. estimated this second partial accounting was "90% complete."

As to sanction

We agree that revocation is warranted and necessary. This has never been in dispute.  Attorney W. admitted he used his law practice to misappropriate over three-quarters of a million dollars from numerous persons and entities.  Attorney W. acknowledged that he cannot successfully defend against misconduct allegations and further acknowledges that he will owe restitution to the clients he has harmed.  He notes that he is represented by counsel regarding his criminal liability and has opted to proceed pro se in this disciplinary matter.  We grant the petition and we revoke Attorney W.'s license to practice law in Wisconsin.

Because of the attorney's cooperation, the court declined to impose costs. (Miwe Frisch)

March 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

If I Were A Carpenter

A recent decision of the Massachusetts Supreme Judicial Court:

This case presents an issue of first impression:  whether an association that has provided support for litigation, without being a named party in that litigation, has engaged in protected petitioning activities for the purposes of G.L. c. 231, § 59H. The defendant, the New England Regional Council of  Carpenters, appeals from a Superior Court judge's denial of its special motion to dismiss a suit by the town of Hanover (town) claiming that the defendant engaged in abuse of process in prior legal proceedings.  Because we conclude that support of litigation constitutes protected petitioning activity within the meaning of G.L. c. 231, § 59H, and that here, the town did not demonstrate that the defendant's right to petition was "devoid of any reasonable factual support or any arguable basis in law," Office One, Inc. v. Lopez, 437 Mass. 113, 123 (2002), we allow the defendant's special motion to dismiss.

The case is


(Mike Frisch)

March 26, 2014 in Bar Discipline & Process, Current Affairs, Economics, Ethics | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Convicted Attorney Throws In Towel

The District of Columbia Board on Professional Responsibility has approved and forwarded to the Court of Appeals a motion for consent disbarment of an attorney convicted of criminal conflict of interest charges. had this report:

A Potomac lawyer faces up to 10 years in jail after he pleaded guilty Monday to criminal conflict of interest and filing a false disclosure form when he worked as both a legal counsel for the federal government and a representative of a foreign corporation trying to sell military hardware to the U.S. Army, according to the U.S. Attorney for the District Court of Maryland.

Jeffrey Ross Williams, 51, of Potomac was charged in December for earning money from an unnamed company lobbying to supply the U.S. Army while employed as an attorney with the Consumer Product Safety Commission, a Bethesda-based a federal agency.

Williams held a dual position with the commission as an assistant general counsel for enforcement and information and assistant general counsel for regulatory affairs, between 2005 and 2008, according to his plea entered in U.S. District Court in Greenbelt. The Consumer Product Safety Commission tests and reports on the safety of products such as toys, power tools and household chemicals.

Williams earned an $8,000 per month retainer through the Washington-D.C. based law firm he founded, Williams Law Firm, PLLC, which represented the foreign company in 2006 while it tried to reach an agreement with the U.S. Army to supply it with batteries for armored personnel vehicles, wrote U.S. Attorney Rod Rosenstein in a Dec. 13 outline of charges.

As a federal employee, Williams was required to disclose his position with the foreign company and the income he earned, U.S. Department of Justice spokeswoman Marcia Murphy wrote in a statement.

Williams pleaded guilty to both counts. He was not indicted for either charge.

In a statement, Williams' attorney, Peter Fayne of the Riverdale firm of Rosenberg & Fayne, LLP wrote his client hopes to move past these violations after sentencing.

"Mr. Williams deeply regrets his actions but he has attempted to correct his misjudgment and acknowledged the mistake he made," he wrote.

Williams faces a maximum sentence of five years in prison and a $250,000 fine, on each of the two counts. He sentencing is scheduled for June 13.

The board had sent the matter to a hearing committee to determine if the offense involved moral turpitude on the facts. The consent rendered the inquiry moot. (Mike Frisch)

March 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Most Egregious Cases

The Wisconsin Supreme Court has revoked the license of an attorney for serious financial misconduct committed against the assrts of a client who suffered from Alzheimer's disease.

The court declined to run the sanction concurrently with a previously-imposed nine month suspension:

Revocation of an attorney's license to practice law is the most severe sanction this court can impose.  It is reserved for the most egregious cases.  We agree that in this case, no sanction short of revocation would be sufficient to protect the public, achieve deterrence, and impress upon Attorney Elverman the seriousness of his misconduct...

We agree with the referee's recommendation that the revocation of Attorney Elverman's license not be made retroactive.  Although Attorney Elverman's actual theft of D.P.'s money may have ended in 2004, it appears that he continued to take actions to the detriment of her estate past the time that his license to practice law was suspended in 2008.  In addition, both Attorney Elverman and the OLR disregard the fact that in July of 2011 Attorney Elverman was convicted of disorderly conduct as the result of a domestic violence incident that occurred in May 2011.  Attorney Elverman's failure to timely report that conviction to this court, and his failure to cooperate with the OLR's investigation into that incident, is yet another indication of Attorney Elverman's true character...The misconduct at issue in this case is extremely serious.  Attorney Elverman took advantage of an elderly woman who was suffering from Alzheimer's disease and stole a large amount of money from her.  Accordingly, we decline the parties' request to make revocation of his license retroactive.

This earlier report is from the Milwaukee Journal-Sentinel. (Mike Frisch)

March 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspended And Disbarred In Ohio

Bret Crow of the Ohio Supreme Court web page has this report on two bar discipline matters decided today.

In separate  disciplinary cases announced today, the Ohio Supreme Court disbarred one  northeast Ohio attorney and suspended another from the practice of law.

  • The Supreme  Court disbarred Warren attorney Kenneth N.  Shaw, finding that he represented clients while suspended and paid himself  fees in probate actions without first receiving court approval.
  • The Supreme  Court suspended Cleveland attorney David  A. Streeter Jr. for two years with 18 months stayed on conditions for  misappropriating $230,000, engaging in a Ponzi-like scheme, and not promptly  owning up to his misconduct.

In Disciplinary Counsel v. Shaw, the  court found that Shaw failed to  advise four clients that he had been suspended from the practice of law and  that in two estate matters he did not receive the required court approval – pursuant  to local probate rules – before paying himself attorney fees. The court’s per  curiam (not assigned to a specific justice) decision rejected the recommended  sanction of an indefinite suspension from the Board of Commissioners on  Grievances and Discipline. The Supreme Court noted in its decision that “the  circumstances here require Shaw’s permanent disbarment.”

The  Supreme Court adopted the board’s findings regarding aggravating factors about  prior disciplinary actions, a pattern of misconduct, that “Shaw’s actions  caused harm to vulnerable clients,” and that “Shaw acted with a dishonest and  selfish motive.” However, the Supreme Court added “factors that Shaw committed  multiple offenses and failed to make restitution” in the probate matters.

Noting that  disbarment is the typical sanction imposed for attorneys who continue to  practice law while under suspension, the court found that Shaw’s cooperation in  the investigation as a “lone mitigating factor does not justify a departure  from the presumption in favor of disbarment.”

The  court also differentiated Shaw’s case from the indefinite suspension sanctions  imposed in similar cases because Shaw “was  previously disciplined for serious misconduct.”

In Disciplinary Counsel v. Streeter, the  court again imposed a more severe sanction than recommended by the board, which  did not include an actual suspension from the practice of law. In doing so, the  court sustained an objection by the Office of Disciplinary Counsel.

The  Disciplinary Counsel alleged that Streeter misappropriated more than $230,000 in funds from real estate closings that he  conducted in the operation of his business, Statewide Title Agency, Ltd., to  cover personal and business expenses. In a per curiam opinion, the court  distinguished Streeter’s misconduct from that of another attorney who received  a fully stayed suspension on the ground that Streeter “took affirmative action  to cover up his theft by repaying the money with more misappropriated money  rather than with his own funds.” The other attorney, in contrast, disclosed the  full extent of his misappropriation in response to relator’s first letter of  inquiry.

The  Supreme Court noted that Streeter misappropriated more than three times the  amount that the other attorney had taken and that “he continues to minimize the  extent of his theft by arguing that his Ponzi-like scheme to repay the funds  resulted in a net misappropriation of just $75,001.99.”

In addition, the Supreme Court emphasized that “Streeter’s misconduct,  in contrast, is the result of a crisis that he could have avoided, or at the  very least minimized, with the exercise of due diligence,” the opinion states.  “He testified that when he and his business partner decided to amicably  dissolve their relationship, he assumed full ownership of Statewide Title, its  assets, and its liabilities, without making any inquiry into the financial  condition of the business. He admitted that he did not understand the  accounting side of the business, and that he did not know how to run a  business. Streeter viewed sole ownership of Statewide as an opportunity to  advance his career and proceeded blindly, without conducting any of the due  diligence that one would expect of someone – especially an attorney – entering  into a significant business transaction.”

2013-0923. Disciplinary Counsel  v. Shaw, Slip  Opinion No. 2014-Ohio-1025.

2013-0581. Disciplinary Counsel v. Streeter, Slip  Opinion No. 2014-Ohio-1051.

Video camera icon View oral argument video of this case.

(Mike Frisch)

March 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Attorney Suspended For False Affidavit Against Law School Dean

An attorney who filed a false affidavit in connection with a suit against a law school and its Dean was suspended for a year and a day by the Massachusetts Supreme Judicial Court.

The attorney had filed the suit on behalf of a law school classmate alleging violations of the Americans with Disabilities Act. After a confidential settlement was reached, the attorney alleged that the law school and Dean had breached the agreement.

The client then filed two new actions seeking a restraining order against the Dean and the law school's defense counsel, alleging that they were stalking and harassing him. The client sought injunctive and monetary relief.

The affidavit at issue attested that the attorney

...had investigated the dean by interviewing former students and current attorneys who were African American and/or of Caribbean descent and that those students had described the dean (who is African American) as "unprofessional, sophomoric, and silly." The respondent also attested that "[the dean] was given a free house to live in [a named county], which is paid for by the law school and taxpayer dollars.

The above statement was found to be either knowingly or recklessly false. (Mike Frisch)

March 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sued Too Late

 The Connecticut Supreme Court has addressed the following issue

The principal issue in this appeal is whether allegations that a law firm breached its duty of undivided loyalty to a client and failed to follow the client’s instructions regarding the prosecution of a lawsuit sound in breach of contract, to which a six year statute of limitations applies, or in legal malpractice, to which a three year statute of limitations applies.

The court held that the shorter statute applied and that the plaintiff thus had sued too late

Although the Rules of Professional Conduct specify that the ‘‘[v]iolation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached,’’ they also acknowledge that, ‘‘since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.’’ 7 Rules of Professional Conduct, scope. Accordingly, even though the plaintiff does not rely expressly on the Rules of Professional Conduct as a basis for her claim, her allegations that the defendant breached its duty of undivided loyalty and its duty to follow her wishes and instructions in its prosecution and settlement of the prior lawsuit are consistent with a claim of legal malpractice that relies on violations of rules 1.7 (a) and 1.2 (a) of the Rules of Professional Conduct as evidence of a breach of the applicable standard of conduct. See Caffery v. Stillman, supra, 79 Conn. App. 197–98 (concluding that complaint alleged violation of minimum standard of care rather than breach of contract).

We thus conclude that the plaintiff’s allegations sound in tort rather than in breach of contract, and, as a consequence, the plaintiff’s claim is barred by the three year statute of limitations applicable to tort claims.

The judgment of the Appellate Court is affirmed.

(Mike Frisch)

March 24, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

The Perfect Storm Blows On

A decision of the Maryland Court of Appeals gives the reader insight into the often arcane world of reciprocal discipline.

The case involves an attorney admitted in both Maryland and the District of Columbia. He  was suspended in D.C. as a result of his claim that he suffered from a mental illness that made him unable to defend bar charges.

As a result, D.C. imposed what is called a "disability" suspension based on the claim that depression impaired his ability to defend the pending disciplinary charges.

The charges were thus held in abeyance.

Maryland does not have such a procedure.

The court thus placed the attorney on inactive status as "the most appropriate analogous response" to the D.C. suspension.

The court noted that the attorney had claimed in Maryland that the depression was the result of "a perfect storm of emotional issues in which he was ensnared" and that his counsel had argued that "the perfect storm has passed now and, thus, the reason for suspension no longer exists."

The attorney sought a hearing in Maryland on whether reciprocal discipline would result in a "grave injustice."

The court concluded that the attorney's effort to continue to practice in Maryland despite the disability concession in D.C.

would convert Maryland  into an asylum for attorney's wishing to flee from pending disciplinary matters in other jurisdictions....[n]either financial difficulties to Respondent due to his inability to practice law while on inactive status nor 'forum-shopping' for the quickest reinstatement creates a 'grave injustice' warranting a finding that reciprocal discipline is inappropriate...

The court found the nearest comparable sanction to impose and determined that it would contravene the spirit of reciprocity to give the attorney a Maryland license in light of his D.C. status. (Mike Frisch)

March 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Removal Excessive For One Time Mistake

Not a legal profession case but worthy of note is a decision last week from the New York Appellate Division for the First Judicial Department finding that dismissal of a tenured teacher was a "strikingly disproportionate" sanction for the behavior at issue:

Petitioner taught Spanish at James Madison High School (JMHS) from 2003 until November 20, 2009. On Friday, November 20, 2009, she ate dinner with colleagues and returned to the school later that evening to watch a musical competition in the first floor auditorium, although she was not required to do so. During the performance, petitioner was allegedly observed in an upstairs classroom "partially undressed (Specification 2) and "engaging in what appeared to be sexually inappropriate behavior with a colleague" (Specification 3). These actions allegedly "caused widespread negative publicity, ridicule and notoriety to [JMHS] and the New York City Department of Education (DOE) when [petitioner's] misconduct was reported in New York area news reports and papers" (Specification 4).

But in mitigation

Petitioner was present at the school as an audience member and not in any official capacity. The incident involved a consenting adult colleague and was not observed by any student. Before the incident, petitioner, a tenured teacher who had made many positive contributions to the school, had an unblemished disciplinary record, and, moreover, was described by her supervisor as one of the best teachers she had ever worked with...

While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake...

Nor is there is any indication in the record that petitioner's conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination...

The matter was remanded for imposition of a lesser penalty. (Mike Frisch)

March 24, 2014 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)