Tuesday, May 31, 2016

Did Someone Call Me Snorer?

The District of Columbia Court of Appeals imposed a reciprocal six-month suspension of an attorney

The following facts were stipulated by Mr. Hartke and the Virginia State Bar Disciplinary Board. In January 2014, Mr. Hartke attended a Continuing Legal Education (“CLE”) seminar in Virginia. During the morning session, Mr. Hartke fell asleep and began snoring, causing the seminar’s coordinator to intervene and wake Mr. Hartke. During the afternoon session, Mr. Hartke began talking loudly at a video presentation and continued to do so after the seminar coordinator asked him to stop. In response to Mr. Hartke’s continued outbursts, another attendee led Mr. Hartke from the room. That attendee smelled alcohol on Mr. Hartke’s person. Another attendee saw a nearly empty liquor bottle among Mr. Hartke’s possessions and noticed that Mr. Hartke appeared to be intoxicated. Mr. Hartke admitted to one attendee that he had been drinking.

In a written response to the Virginia State Bar and orally to a Virginia State Bar investigator, Mr. Hartke denied bringing alcohol to the seminar and denied being intoxicated during the seminar. When speaking with the investigator, Mr. Hartke also denied falling asleep and snoring during the morning session, insisting that he had been taking notes. In a subsequent conversation with an Assistant Virginia Bar Counsel, however, Mr. Hartke admitted that those representations were not accurate and that he did not take the steps necessary to correct his misrepresentations...

Mr. Hartke contends that his Virginia suspension was based on “sleeping and snoring in a [CLE] class.” To the contrary, as he acknowledged in the Virginia stipulation, Mr. Hartke was not suspended for sleeping and snoring. Rather, he was suspended for failing to correct misrepresentations that he made to the Virginia State Bar in the course of the Virginia disciplinary proceedings. This court’s Rules of Professional Conduct also prohibit misrepresenting facts in the course of a disciplinary proceeding. D.C. R. Prof. Conduct 8.1 (“[A] lawyer . . . [,] in connection with a disciplinary matter, shall not . . . [f]ail to disclose a fact necessary to correct a misapprehension known by the lawyer . . . to have arisen in the matter . . . .”); see also D.C. R. Prof. Conduct 8.4 (c) (“It is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”)

The court imposed the suspension nunc pro tunc so that it is fully served.

The title is inspired by these lyrics and dedicated to my friend and erstwhile colleague Ross Dicker.  (Mike Frisch)

May 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)


The Tennessee Board of Judicial Conduct reprimanded a juvenile court judge who made inappropriate remarks when faced with a valid transfer petition.

The judge referred to the litigant and/or his attorney as a "sneaky snake" who was "conniving" and engaged in a "ploy." The judge had a transcript of these remarks prepared and transmitted as part of the record in order to show her "demonstrated anger and animus toward that party and his counsel." (Mike Frisch)

May 31, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Legal Malpractice Suit Dismissed

The CEO of Blue Star Jets has lost his legal malpractice suit of claims brought against the attorneys who had handled his divorce from his first wife.

The New York Appellate Division for the First Judicial Department held that

This malpractice action arises from defendants' representation of plaintiff in a contentious divorce proceeding, and focuses primarily on the matrimonial court's purported improper valuation of plaintiff's interests in two marital assets: Blue Star Jets LLC (Blue Star) and International Star Investments Limited (ISI Ltd.). Plaintiff contends that, but for the negligence and malpractice of defendants, the court's valuation of his interest in Blue Star and ISI Ltd. would have been lower, and that he would have had to pay his ex-wife a lower distributive award.

Plaintiff failed to state a malpractice claim regarding defendants' failure to present independent expert testimony to rebut the court-appointed expert's valuation report regarding Blue Star, because the record shows that defendants' decision not to call such a witness was a strategic and reasonable one (Pouncy v Solotaroff, 100 AD3d 410, 410 [1st Dept 2012], lv denied 21 NY2d 857 [2013]). Plaintiff also has not alleged adequately that this decision was the proximate cause of his damages (Bender Burrows & Rosenthal, LLP v Simon, 65 AD3d 499, 499 [1st Dept 2009]).

Plaintiff failed to state a malpractice claim with respect to defendants' failure to move for a reappraisal or revaluation of Blue Star and ISI Ltd., since plaintiff failed to allege adequately that such a motion would have been successful (id.), particularly given the matrimonial court's discretion in determining valuation issues (see McSparron v McSparron, 87 NY2d 275, 287 [1995]).

Plaintiff failed to state a cause of action based on defendants' failure to move to reargue or reconsider the divorce judgment, since the decision of whether to make such a motion is a strategic one and plaintiff has not alleged adequately that such a motion would have been successful (Warshaw Burnstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013]).

The motion court correctly dismissed plaintiff's allegation that defendants failed to appeal from the divorce judgment, because the record shows that defendants informed plaintiff of his right to appeal, but that he chose not to do so in light of the cost and his minimal chance of success (Rodriguez v Fredericks, 213 AD2d 176, 177-178 [1st Dept 1995], lv denied 85 NY2d 812 [1995]).

The motion court should have dismissed the allegations regarding defendants' failure to present "appropriate evidence" at trial to establish the correct value of plaintiff's interest in ISI Ltd. The record does not support plaintiff's allegation that defendants possessed this documentation but failed to submit it to the matrimonial court. In any event, the admission of this documentation would not have altered the matrimonial court's calculations and distributive award.

The motion court providently exercised its discretion in denying plaintiff's request for further discovery, since he failed to specify how additional discovery would enable him to state a sufficient claim with respect to the dismissed allegations (see CPLR 3211[d]; Putter v North Shore Univ. Hosp., 7 NY3d 548, 554 [2006]).

Page Six had this story on the post -divorce litigation between the plaintiff and his ex-wife. (Mike Frisch)

May 31, 2016 in Clients | Permalink | Comments (0)

A Renowned Expert Gets Suspended

The New Jersey Supreme Court has imposed a six-month suspension of an attorney who violated multiple rules of professional conduct.

Details from this letter decision of the Disciplinary Review Board

Compounding the Board's concern is respondent's pattern of misrepresentations. Respondent repeatedly made misrepresentations to his clients and to the public via his fee agreements, websites, and advertising. Additionally, respondent made two distinct misrepresentations to disciplinary authorities. First, respondent misrepresented his alleged relationship with [national law firm] FLA and then lied about taking fees from clients in Maryland.

Ad misrepresentations

Respondent was a solo practitioner with no associates, partners, or "of counsel" relationship. Nevertheless, respondent used multiple law firm names and website addresses that contained plural designations, such as "Esquires," "Attorneys at law," and "Counsellors at Law" [sic].

Moreover, on his websites, respondent misrepresented the nature and size of his practice, even listing a retired attorney as someone currently associated with the firm in an "of counsel" capacity. Respondent also falsely stated on his website that his firm had been rated "AV" by Martindale-Hubbell, even after that company issued a Cease and Desist letter to him regarding his use of the AV rating. Further, respondent used an impermissible trade name, "Loan Law Center;" included on his website an impermissible client testimonial; stated on his website that he practices and operates as a limited liability corporation under a name not registered with the New Jersey Department of Treasury; did not maintain professional liability insurance; and did not use the firm name registered with the Department of Treasury in his marketing materials, retainer agreements, and other legal correspondence.

Further, in his websites, respondent stated that he was a "renowned expert in Internet Liable [sic] and Slander." In fact, the Supreme Court has never certified respondent in any practice area and respondent' s area of practice was limited to mortgage modifications. Respondent's statement regarding his expertise in internet libel was patently false and had the clear potential to discourage clients and third parties from posting negative reviews of respondent's law practice and mortgage modification business, all in violation of RPC 7.4(a) and RPC 8.4(c).

The DRB noted, but did not accept as an excuse, the attorney's contention that his wife was responsible for the false advertising. (Mike Frisch)

May 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Court Holds Mintz Levin Not Entitled To Summary Judgment On Discrimination And Retaliation Claims

The Massachusetts Supreme Judicial Court has held that summary judgment is not appropriate on most of an attorney's claims against the Mintz Levin law firm.

The court also held that some "self-help" options are available to an attorney alleging discrimination.

Here, we are asked to determine whether summary judgment should have entered for the employer on an employee's claims for gender discrimination and retaliation. In addressing the retaliation claim, we confront the novel question whether it is "protected activity" for an employee to search for, copy, and share with the employee's attorney confidential documents that the employee is authorized to access in the course of employment and that may help prove a discrimination claim.

The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm). During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD), that she was being subjected to discriminatory treatment on the basis of her gender -- treatment that, she believed, led to her demotion in February, 2007. In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm's document management system for items that might prove her assertions of discrimination. In November, 2008, after these searches were made known to the firm's chairman, the plaintiff's employment was terminated "for cause."

 The plaintiff sued; the firm countersued. All the plaintiffs claims were thrown out on summary judgment

We conclude, first, that the plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation. Therefore, summary judgment for the defendants on those counts was inappropriate. Second, we hold that an employee's accessing, copying, and forwarding of documents may, in certain limited circumstances, constitute "protected activity," but only where her actions are reasonable in the totality of the circumstances. Finally, we conclude that judgment was entered properly on the claim against Cohen for tortious interference with contractual relations.

On self help

The question whether an employee's acts of self-help discovery in aid of claims under G. L. c. 151B, § 4, may ever, under any circumstances, constitute protected activity is one of first impression for this court. Taking into consideration the interests at stake and the views of other courts that have addressed the matter, we conclude that such conduct may in certain circumstances constitute protected activity under that statute, but only if the employee's actions are reasonable in the totality of the circumstances.

 New England In House had this report on the case. (Mike Frisch)

May 31, 2016 in Law & Business, Law Firms | Permalink | Comments (0)

Monday, May 30, 2016

Prebirth Drug Use That Leads To Child's Death Not Criminal In West Virginia

The West Virginia Supreme Court of Appeals has reversed a criminal conviction for child neglect leading to death where the mother took drugs short ly before giving birth and the child died 11 days later

On June 11, 2013, Ms. Louk injected methamphetamine into her left arm. She was thirty-seven weeks pregnant at that time. A few hours after injecting the methamphetamine, Ms. Louk experienced breathing problems and went to Summersville Regional Hospital. Dr. Tracey Lester treated Ms. Louk upon her arrival at the hospital. Dr. Lester testified that Ms. Louk presented to the emergency room with acute respiratory distress which was caused by her methamphetamine use...

Due to concerns about Ms. Louk’s fetus being deprived of oxygen, Dr. Lukasz Rostocki performed an emergency Cesarean section and delivered the child. The child, Olivia Louk, was born “essentially brain dead,” according to Dr. Susan Venuti, the forensic pathologist who performed Olivia Louk’s autopsy. Dr. Venuti testified that upon being born, Olivia Louk “had no movement, no spontaneous respirations, and they had to immediately put her on a ventilator to help her breathe.” Olivia Louk died eleven days after she was born.

The court majority

We have read the law and it is clear: when enacting our child neglect resulting in death statute, the Legislature did not criminalize a mother’s prenatal act that results in harm to her subsequently born child. We therefore reverse the circuit court’s December 9, 2014, sentencing order. Although we recognize that there may be significant policy implications and social ramifications surrounding the present issue, our review is confined to the plain language of the statute enacted by the Legislature. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. This Court does not sit as a superlegislature, commissioned to pass upon the social, political, or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions. Thus, the Court’s duty in this matter is to enforce the plain language of the child neglect resulting in death statute enacted by the Legislature.

Justice Benjamin concurred with regret

Words are inadequate for the tragedy occasioned by Ms. Louk’s injection of methamphetamine into her body in her thirty-seventh week of pregnancy. Because of her actions, an innocent child is dead. While I have dedicated much of my service in the judiciary to helping individuals take responsibility for their decisions, overcome their addictions and turn their lives around, I cannot personally excuse the decision taken here by Ms. Louk—a decision which not only harmed herself, but which also resulted in the senseless end of the life of another. However addiction may explain irresponsible behavior, it does not excuse it. What Ms. Louk did was wrong. If I were to step away from my duty to follow the law, and to instead make it, I might be tempted, as others, to affirm this conviction...

And while, out of a desire to assuage a personal sense of outrage, it may be tempting for a judge to here engage in activism under the guise of supposed statutory interpretation, it is beyond this court’s legal and constitutional province to make criminal that which the legislature has not...

Though perhaps emotionally tempting, stretching West Virginia Code § 61­ 8D-4a to permit this criminal prosecution to stand, i.e., the prosecution of a woman for acts committed during pregnancy that contribute to the death of a subsequently born child, renders the statute hopelessly vague. What conduct would constitute unlawful neglect? Would the failure to seek prenatal care constitute neglect if the subsequently born child dies? Could eating raw oysters during pregnancy, which is commonly known to carry a risk of food poisoning, be considered neglect? At what stage in the pregnancy would any such acts be neglectful? Would all the mothers of newborn children that die be the potential subject of investigations to determine if any of their activities while pregnant contributed to the death of their children?

An impassioned dissent by Justice Loughery

Olivia Ann Vangeline Louk was eleven days old when she died as a result of her mother’s neglect. West Virginia Code § 61-8D-4a provides that the mother’s conduct constitutes a felony punishable by a three-to-fifteen-year term of imprisonment. Yet, the majority, undoubtedly persuaded by the amici, has decided that no crime was committed because the neglect occurred before Olivia was born. While it is certainly not unusual for this Court to be presented with intensely emotional issues, this case in particular amplifies the Court’s challenge to render justice in the face of facts that touch upon deeply personal and diversely-held beliefs. Our role in this case was the same as it is in all others: to apply the law in accordance with our established principles of jurisprudence. The majority’s result oriented analysis proves, however, that it allowed policy implications and social ramifications to play a role in its decision. The rule of law commanded one outcome in this case–affirming the petitioner’s conviction. Because the majority has utterly disregarded the plain language of West Virginia Code § 61-8D-4a and vacated the petitioner’s conviction, I dissent.

It is undisputed that Olivia was born alive on June 12, 2013, and subsequently died as a result of her mother’s injection of methamphetamine into her bloodstream just hours before Olivia was born. While Olivia was delivered by emergency Cesarean section, the treating physician testified that the pregnancy was “full term.” There is no evidence that Olivia had a congenital defect that would have otherwise prohibited her from living a normal, healthy life. Olivia only lived eleven days because the methamphetamine injection caused her mother to suffer respiratory distress that inevitably deprived Olivia of oxygen for a significant period of time resulting in irreversible brain damage. There is no question that Olivia’s death was caused by her mother’s decision to neglect her child’s welfare, a fact that her mother readily acknowledged. When asked if she considered Olivia’s welfare when she took the illegal drug, the petitioner confessed, “I didn’t and I should have.” She attributed her behavior to “stupidity.”

... Rather than apply the law as written by the Legislature, the majority chose to focus on the fact that the neglect that caused Olivia’s death occurred before she was born. Under the plain language of the statute, this fact is immaterial.

Justice Workman joined the dissent. (Mike Frisch)

May 30, 2016 | Permalink | Comments (0)

Saturday, May 28, 2016

Roaming, Hugging and Eating Candy Is No Way To Judge (If True)

The behavior of the trial judge requires the grant of a new trial, according to a decision issued Friday by the Louisiana Supreme Court.

The jury had returned a defendant's verdict in a medical malpractice action

Having reviewed the record and considering the briefs and oral argument of the parties, we are convinced that the trial judge’s actions resulted in a miscarriage of justice. Therefore, considering the unique and narrow facts presented, we conclude a new trial must be granted.

Chief Justice Johnson concurred and explained

In my view, it is undisputed that Judge Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury’s verdict cannot be allowed to stand. According to plaintiffs, Judge Ellender failed to preside over the trial from his position on the bench, but rather roamed around the entirety of the courtroom during much of the trial. Judge Ellender would stop and look out of the windows in the courtroom while plaintiffs’ counsel was examining witnesses. Judge Ellender continuously moved around the courtroom, sitting in various chairs, and, inexplicably, sat in the jury box with the jurors while eating candy - all during witnesses’ testimony. The record also contains uncontroverted testimony from the plaintiff that Judge Ellender greeted the defense medical expert, defendant’s medical partner, with a handshake and embrace in front of the jury. Additionally, although neither counsel asked plaintiffs’ medical expert, Dr. Leo Murphy, any questions regarding his fees and expenses during the trial, after Dr. Murphy was released Judge Ellender took it upon himself to question plaintiffs’ counsel about the costs paid to Dr. Murphy in the presence of the jury...Judge Ellender’s insidious actions of leaving the bench, wandering around the courtroom, looking out the windows, eating candy and otherwise failing to pay attention to the proceedings communicated to the jury in a non-verbal way his opinion that the trial was not serious and could be treated as a joke. 

A footnote to the concurrence notes prior judicial discipline imposed on the judge

In re Ellender, 09-0736 (La. 7/1/09), 16 So. 3d 351 (Judge Ellender suspended for thirty days without pay due to his failure to treat a pro se petitioner’s application for protection from domestic abuse seriously, and acting in a condescending and demeaning manner towards her); In re Ellender, 2004-2123 (La. 12/13/04), 889 So. 2d 225 (Judge Ellender suspended for one year, without pay, with six months of that suspension conditionally deferred as a result of his conduct in appearing in public, at Halloween party, in costume with afro wig, black face makeup, and prison jumpsuit).

Justice Weimer dissented and noted that the allegations came from a single post-verdict affidavit rather than a contemporaneous objection

...as a reviewing court, we cannot and should not simply assume that these allegations are accurate, let alone make the additional leap that such allegations justify granting a new trial. It has been aptly stated that “[a]n extraordinary claim requires extraordinary proof.” Similarly, the law requires that, before we overturn the work of a jury, comprised of citizens who take an oath to judge fairly and impartially, we must examine whether the judge has improperly held sway over the jury...

This examination required by law must be based on evidence, not conjecture, and begins with the trial record. In the trial record, there is nothing to substantiate the plaintiffs’ allegations of inappropriate behavior. Most significantly, there is not even an objection in the trial record for any of the allegations leveled against the judge. This court has previously found that the lack of a contemporaneous objection about a judge’s conduct reveals a lack of prejudice.

Justices Clark and Crichton also dissented.

Justice Crichton wrote

I respectfully dissent from the majority’s finding that plaintiffs are entitled to a new trial in this case. Although the majority finds that there is sufficient evidence in the record establishing that the trial judge’s actions during the jury trial of this matter resulted in a miscarriage of justice, in my view, the trial record is devoid of any specific evidence documenting the trial judge’s alleged behavior. Counsel for both parties conceded that they personally did not witness much of the alleged behavior, as it was “behind” them in a large courtroom. As a result, the only “evidence” presented at the post-verdict motion hearing is set forth by the jury foreperson in her arguably inadmissible affidavit and the self-serving testimony of one of the plaintiffs. Plaintiffs’ counsel has also offered little explanation as to why he did not issue subpoenas or compel testimony of others who were in the courtroom during trial to testify regarding the judge’s behavior (such as the bailiff, deputy clerk of court, court reporter, or even Judge Ellender), when the trial judge’s alleged actions are paramount to the plaintiffs’ claims of prejudice resulting from his behavior. Consequently, in my view, there is insufficient evidence to warrant a second bite at the apple...

However, and though the cumulative effect of Judge Ellender’s conduct is troublesome, I fear that this judge’s institutional history of untoward behavior has perhaps influenced the majority’s decision today, which should instead be focused on the evidence presented in this record in this case. In my view, the unsupported allegations of improper conduct in this instance do not warrant the reversal of a jury verdict and remand for a new trial.

Houma Today reported on the 2009  judicial discipline matter involving the judge. (Mike Frisch)

May 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (1)

Burglary And Theft Draws Suspension

An 18-month suspension has been imposed by the Louisiana Supreme Court of an attorney 

In April 2014, respondent broke into her ex-husband’s home and stole a man’s diamond ring (valued at approximately $13,000) and a woman’s Rolex watch (valued at approximately $6,000). Respondent then sold the ring and the watch to Diamond Distributors Inc. for approximately $2,700 and used the money to gamble. On May 20, 2014, respondent was arrested for felony theft and burglary of an inhabited dwelling and booked into the East Baton Rouge Parish Prison. On June 22, 2014, respondent self-reported her arrest to the ODC.

The attorney defaulted on the charges but offered mitigating evidence.

The court considered mental health issues in determining an appropriate sanction and found the misconduct less aggravated than that in a prior case 

In determining an appropriate sanction, we find guidance from In re: Sterling, 08-2399 (La. 1/30/09), 2 So. 3d 408. In that case, Mr. Sterling went to the apartment of his former fiancée so that he could retrieve her engagement ring and the keys to a car he had given her. Mr. Sterling knocked on the doors and windows of the apartment, but the woman did not respond. Mr. Sterling then kicked in the door and forced his way inside the apartment. Upon discovering the woman in her bedroom with another man, Mr. Sterling grabbed her by the arms and pushed and shoved her around the apartment. Mr. Sterling was arrested on charges of unauthorized entry of an inhabited dwelling and simple battery. He later pleaded guilty to unauthorized entry of an inhabited dwelling. Mr. Sterling also failed to properly notify his clients of his interim suspension, failed to return a client’s file after he was placed on interim suspension, and transferred a client matter to another attorney without the consent of the client...

In the instant matter, respondent did not engage in the crime of battery, nor did she engage in any other attorney misconduct, as was present in Sterling. Furthermore, there are compelling mitigating factors present in this case, notably the absence of a prior disciplinary record and respondent’s significant personal and emotional problems. As such, we find a downward departure from the two-year suspension imposed in Sterling is appropriate.

Justice Weimer

I dissent and would order this matter be scheduled for oral argument so as to better evaluate whether a lesser sanction would serve the interests of the disciplinary system.

Justice Hughes agreed with Justice Weimer. (Mike Frisch)

May 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Getting Into Jail

The Louisiana Supreme Court ordered the interim suspension of an attorney who is the subject of this post on the web page of the Lafource Parish Sheriff's Department

Sheriff Craig Webre announced two people face criminal charges following an investigation of a former attorney attempting to bring contraband into the Lafourche Parish Detention Center.  Edward “Buddy” Schertler (age 40) of Thibodaux was caught attempting to bring phones and tobacco products into the jail, but he also faces additional charges after illegal guns and drugs were found in his possession. Dwan Demere (age 37) of Galliano, who was with Schertler at the time of his arrest, also faces charges after she was found with drugs and paraphernalia in her possession.

At around 9:15 p.m. on Friday, March 4, Edward Schertler arrived at the Lafourche Parish Detention Center in Thibodaux identifying himself as an attorney and asking to meet with a client. Schertler was carrying a briefcase, and officers asked to inspect the inside of the case for contraband. As Schertler opened the case, officers noticed a plastic bag containing four cell phones, charging devices, and tobacco products. The items were seized as contraband, and Schertler was ordered off the premises.

Through investigation, detectives learned Schertler was currently ineligible to practice law in the State of Louisiana, per the Louisiana Attorney Disciplinary Board. Following the investigation, a warrant was obtained for Schertler’s arrest for Taking Contraband to a Penal Institution. On Wednesday, March 9, detectives made contact with Schertler at his residence and placed him under arrest. Detectives then executed a search warrant at the residence and discovered 15 firearms, including a .50 caliber rifle with an obliterated serial number, as well as suspected marijuana, Suboxone, and drug paraphernalia. Detectives also discovered an outboard motor which had been reported stolen two months prior in Galliano. Detectives also discovered a woman at the residence, Dwan Demere, was found to have suspected Alprazolam and drug paraphernalia in her possession, and she was also taken into custody. Both Shertler and Demere were then transported to the Lafourche Parish Detention Center in Thibodaux.

Schertler was booked on the following charges: Taking Contraband to a Penal Institution; Illegal Carrying Of Weapon in the Presence of a Controlled Dangerous Substance; Possession of a Firearm with an Obliterated Number; Possession of, Suboxone, Marijuana, and Drug Paraphernalia; and Illegal Possession Of Stolen Things. He was released early Thursday morning after posting $17,500 bond.

Demere was booked with Possession of Alprazolam and Drug Paraphernalia. She was also released early Thursday morning after posting $6,000 bond.

May 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 27, 2016

Poison Ivy

The Alaska Supreme Court has disbarred an attorney for giving false testimony in civil and bar discipline proceedings.

Deborah Ivy and her brother, David Kyzer, were involved for several years in now-settled litigation over the dissolution and unwinding of business organizations and joint property holdings of Ivy, Kyzer, their two sisters, and others. During that litigation, relations between Kyzer and Ivy grew so acrimonious that a no-contact order was issued in December 2007. This order prohibited in-person or telephone contact between Ivy and Kyzer without an attorney present and prohibited each party from coming within 500 feet of the other’s residence. Ivy subsequently testified that Kyzer made improper contact with her on three occasions after this order issued. In response Kyzer filed an ethics grievance with the Alaska Bar Association, claiming that Ivy fabricated these incidents, in violation of the Alaska Rules of Professional Conduct.

Two of the alleged incidents bear on the sanctions inquiry. First, on January 7, 2008, Ivy provided a 30-minute statement to a police officer, claiming that Kyzer had stalked her at a women’s clothing store about ten days earlier. Based on Ivy’s statement and because Ivy claimed to be in hiding and did not want to come to the courthouse, the officer offered to request a telephonic hearing for a domestic violence restraining order. The day Ivy made the police report was the same day she was scheduled to give a deposition in the litigation with Kyzer. A few days before, on January 3, the superior court had denied Ivy’s motion to stay the deposition, and on January 4 we denied Ivy’s emergency motion to stay the superior court order denying her request. Ivy did not appear at the January 7 deposition despite having been ordered to do so. In response to a follow-up order to appear for the deposition, Ivy’s attorney reported the alleged stalking incident to the superior court. Ivy ultimately was deposed on March 13. At that deposition, Ivy testified about the alleged stalking incident. She described in great detail her movements among the various racks of clothing and the dressing rooms, Kyzer’s allegedly menacing use of his vehicle, and her response. The second incident occurred in July 2010 when Ivy claimed that Kyzer assaulted her in a courtroom and that his actions constituted criminal sexual assault. To support this claim, Ivy filed a Notice of Sexual Assault with the court accompanied by an affidavit describing the alleged incident.

 In December 2010 Kyzer filed an ethics grievance with the Alaska Bar Association, alleging that Ivy violated several Alaska Rules of Professional Conduct by falsely testifying that Kyzer stalked her and assaulted her in the courtroom. After an investigation by a special bar counsel and a hearing, the Area Hearing Committee found that Ivy knowingly provided false testimony at the deposition, in her affidavit, and during the disciplinary proceedings.

The court found that the misconduct warranted disbarment

Ivy’s misconduct exceeds the typical case: She lied in a complex lawsuit involving multiple parties, she falsely reported that her brother had committed criminal acts against her, and she lied in these proceedings to evade discipline for that misconduct. Thus though repetition exists between the aggravating factors and the elements of the presumptive sanction (e.g., Ivy’s selfish motive)  and between the aggravating factors and the elements of the underlying ethical violations (e.g., Ivy’s dishonest conduct),  we give some weight to these aggravating factors at the balancing stage. But in doing so we account for the double-counting risk, which arises from the similarity of the factual circumstances, by appropriately weighing the factorsAcknowledging the risk of double counting, we conclude that the five aggravating factors — Ivy’s pattern of misconduct, its illegal nature, her dishonest motive, deceptive practices during the disciplinary process, and refusal to acknowledge the wrongfulness of her actions — outweigh the single mitigating factor, Ivy’s lack of disciplinary record. Therefore we do not reduce the presumptive sanction of disbarment

Chief Justice Fabe would hold that disbarment is too severe

 I respectfully disagree with the court’s decision to disbar Deborah Ivy. I agree that Ivy violated Alaska Rules of Professional Conduct 8.4(a), (b), and (c) by lying about the stalking incident in the parking lot and the alleged sexual assault by her brother in the courtroom. And she violated Alaska Bar Rule 15 by continuing to maintain her fabricated version of these events before the Board. But it is my view that disbarment of Ivy for being untruthful in the course of her own highly emotional personal family litigation is unnecessarily severe...the court has ignored the significant mitigating factor of Ivy’s personal and emotional problems, resulting from years of a contentious personal relationship with her brother. And Ivy’s falsehoods did not arise in the context of her representation of a client. Finally, there is no example in all of our prior disciplinary decisions that would support disbarment in Ivy’s case. Though Ivy’s conduct is unworthy of our profession and merits the severe sanction of a five-year suspension, it does not warrant disbarment

 She would instead impose a five-year suspension

While I agree that attorneys can be subject to disbarment for violations committed outside of a representative capacity, we have approved such a severe sanction in only one case, where an attorney was convicted as an accessory after the fact to a first-degree murder.

(Mike Frisch)

May 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 26, 2016

FOIA Feud Continues Over Attorney Emails

"With some dismay." the District of Columbia Court of Appeals has remanded and directed mediation of a FOIA claim by the Fraternal Order of Police ("FOP") against the District that had been dismissed as fulfilled by the trial judge.

On September 24, 2010, FOP submitted a FOIA request to both the Metropolitan Police Department ("MPD") and the Office of the Chief Technology Officer ("OCTO"). FOP requested three categories of documents in the possession, custody and/or control‖ of either entity: (1) all email sent to or from Mark Tuohey, including, but not limited to, all email sent to or from his email addresses at two law firms, Brown Rudnick LLP and Vinson & Elkins LLP, and one email address at the Washington D.C. Police Foundation; (2) all email sent to or from Eric Holder, including, but not limited to, all email sent to or from his email address at the law firm Covington & Burling LLP; (3) all email referencing or mentioning the Washington D.C. Police Foundation. FOP stated that it sought documents from these categories generated over a four-year period, from November 1, 2006 to present.

The court

And even though MPD ultimately produced two sets of responsive documents, it did so in a manner apparently designed to ensure defects in production. MPD claimed that its initial production comprised 1,400 pages of documents, but it presented no records to substantiate this claim, even when FOP asserted that MPD had turned over only a few hundred pages. And MPD‘s second production inexplicably took paper form, even though all responsive documents were electronic and could have been produced in that form (as they ultimately were). MPD then divided these hard copies—some 16,000 pages of documents into 25 to 35 envelopes,which it mailed to FOP without advance notice, tracking, delivery confirmation, or proof of mailing. Actions like these suggest that the District, like FOP, is more interested in gamesmanship than in FOIA compliance.

While the text of the D.C. FOIA statute does not require the District and frequent FOIA requesters like FOP to consult in good faith, the course of this litigation illustrates the imperative to do so. We cannot order FOP and the District to end their FOIA feuds, but we can require them to engage in mediation so that they might determine whether settlement is possible, or at least narrow the areas of dispute, before resuming litigation. See D.C. Code § 17-306 (2013 Repl.) (authorizing this court, in the disposition of an appeal, to direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances).

The court rejected the District's interpretation of its FOIA obligations

we reject the District‘s argument that FOP could not challenge in court the adequacy of the District‘s search and production because FOP‘s FOIA request was "void for volume." Instead we conclude that FOP submitted a request that reasonably described the documents it sought, triggering MPD‘s and OCTO‘s obligations under D.C. FOIA to identify and produce responsive material.

And held insufficient the effort to comply

Turning to OCTO, we know even less—nothing, actually—about its steps to fulfill FOP‘s FOIA request, and thus we cannot evaluate the reasonableness of its efforts in this case... Given the paucity of information provided by the District about its searches, we conclude that the District has failed to carry its burden to win summary judgment with respect to the adequacy of its search.

Associate Judge Easterly authored the opinion, joined by Associate Judge Fisher and Senior Judge Nebeker. (Mike Frisch)

May 26, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, May 25, 2016

Malpractice Clock Starts When Appeal Is Lost

The South Carolina Supreme Court overruled prior precedent and reinstated a legal malpractice claim that the lower court dismissed on statute of limitations grounds.

the client was an auto dealership sued by an unhappy customer who was awarded judgment.

[Client] Stokes-Craven filed a legal malpractice action against Respondents, alleging negligence and breach of fiduciary duty in trial counsel's representation of Stokes-Craven both prior to and during the trial. Specifically, Stokes-Craven alleged that trial counsel failed to: adequately investigate the facts of the case; prepare or serve written discovery; depose witnesses; obtain copies of the plaintiff's experts' curricula vitae; prepare a pretrial brief, trial exhibits, voir dire, and requests to charge; preserve certain evidentiary issues for appellate review; notify Stokes-Craven's insurance carrier about the claims; and settle the case prior to the jury verdict. Based on these purported errors, Stokes-Craven claimed the jury returned the adverse verdict. Respondents generally denied the allegations and asserted several defenses, including that Stokes-Craven's claims were barred by the expiration of the three-year statute of limitations.

The court acknowledged that its minority position articulated in the Epstein case was problematic

The facts of the instant case present us with an appropriate opportunity to address the criticism and conflict that has arisen out of our decision in Epstein. As legislatively mandated, we begin our analysis with the well-established discovery  rule. Pursuant to this rule, all legal malpractice actions must be commenced within three years after the claimant knew or by the exercise of reasonable diligence should have known that he or she had a cause of action...

 As evidenced by this case, the key question is when the claimant's cause of action accrues to trigger the running of the three-year statute of limitations. The answer to this question is complicated by the seemingly endless factual scenarios surrounding the underlying claim of a legal malpractice cause of action. For example, legal malpractice claims may stem from matters involving litigation or negotiated settlements while others may arise out of matters involving the probate of a will or a divorce. Further complicating the determination of when a cause of action accrues is if the claimant pursues an appeal of an unfavorable ruling, such as in the instant case.

Our decision regarding the accrual date must also take into consideration the preservation of the attorney-client relationship as well as the public policy that is fundamental to the efficient management of our judicial system. Clearly, if a client files a legal malpractice cause of action while the client is still represented by counsel during an appeal, the attorney-client relationship is compromised and there are simultaneous lawsuits advocating conflicting positions.

Here, the statute of limitations did not commence until the case was lost on appeal. Thus, the malpractice claim was timely. (Mike Frisch)


May 25, 2016 in Clients | Permalink | Comments (0)

"Crisis Mode" Misconduct Adds Two Years Of Suspension

A two-year suspension has been imposed by the New York Appellate Division for the Second Judicial Department for misconduct in an immigration matter.

In mitigation, the respondent testified at the disciplinary hearing that her use of fees she received on the Guadeloupe matters for another client was an inadvertent mistake, that she intended to make restitution once she is gainfully employed, and that she was in "crisis mode" due to her suspension from the practice of law and foreclosure on her home. The Special Referee noted in his report that the respondent showed genuine remorse and was experiencing great difficulties. The respondent is currently suspended based on findings, inter alia, that she engaged in a pattern and practice of failing to safeguard funds, and converting funds, violated a court order, and committed other escrow improprieties. The three-year suspension, which commenced on December 26, 2013, has not expired. In addition, the respondent was previously issued a Letter of Admonition in 1997, and a Letter of Caution in 1994. We find the respondent's disciplinary history to be an aggravating factor.

Records of the New York State Office of Court Administration show that the respondent is delinquent in the payment of her registration fees for the 2015-2016 biennial period, in addition to the 2011-2012 and 2013-2014 biennial periods.

Notwithstanding the mitigating factors present in this case, we find that a suspension from the practice of law for two years is warranted, in addition to the three-year suspension previously imposed by opinion and order of this Court dated December 26, 2013.

(Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Withheld Judgments Lead To Stayed Suspension

The web page of the Idaho State Bar reports on a recent sanction

On May 20, 2016, the Idaho Supreme Court issued a Disciplinary Order suspending Boise attorney Lisa D. Shultz from the practice of law for a period of six (6) months, with all six (6) months withheld, and placing her on a disciplinary probation.

            The Idaho Supreme Court found that Ms. Shultz violated Idaho Rule of Professional Conduct 8.4(b) [Commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects]. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.

            On October 17, 2014, Ms. Shultz was charged in Ada County with one misdemeanor count of using a telephone to disturb the peace, relating to her contact with a former legal intern. On March 16, 2015, Ms. Shultz pleaded guilty to an amended charge of disturbing the peace. The Court imposed a five-day jail sentence, entered a Withheld Judgment, and ordered Ms. Shultz to complete a two-year unsupervised probation with conditions requiring her to follow any Idaho State Bar recommendations. Also on March 16, 2015, Ms. Shultz entered guilty pleas in two unrelated cases to misdemeanor charges of possession of marijuana and possession of drug paraphernalia. In those cases, the Court entered a Withheld Judgment and ordered Ms. Shultz to complete a one-month unsupervised probation. The possession and paraphernalia charges were dismissed on April 30, 2015. 

            The Disciplinary Order provides that Ms. Shultz’s six-month suspension is withheld subject to the terms and conditions of her disciplinary probation, which runs through March 15, 2017. The terms and conditions of probation include: avoidance of any alcohol or drug-related traffic violations; a program of random urinalysis, with provision that if Ms. Shultz tests positive for alcohol or other tested substances or misses a random urinalysis test without prior approval, the entire withheld suspension shall be immediately imposed and served; and if Ms. Shultz admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during her probationary period, regardless whether that admission or determination occurs after the expiration of the probationary period, the entire withheld suspension shall be imposed.

            The withheld suspension does not limit Ms. Shultz’s eligibility to practice law.

(Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Dead Tooth And Nothing But

An unhappy client may not sue a dentist who told her that a tooth was deceased and the she needed a root canal, according to a decision of the Montana Supreme Court.

On August 28, 2002, a piece of Davenport’s tooth broke and the filling inside dislodged. The following day she sought treatment from Davidson, a dentist. Davidson advised Davenport he believed her tooth was dead and he recommended a root canal to restore the tooth. Davenport firmly did not believe her tooth was dead and requested Davidson restore the filling without a root canal, to which he declined. After further damage to her tooth occurred, Davenport ultimately sought care from another dentist who confirmed Davenport’s belief that her tooth was salvageable without a root canal. On August 24, 2005, Davenport filed a complaint against Davidson with the Montana Medical Legal Panel. After the Panel rendered its decision, she filed a complaint against Davidson in District Court alleging three separate counts: deceit; malice; and fraud.

The court

Davidson represented a diagnosis and a necessary course of action to cure an undisputed problem with Davenport’s tooth. However, Davenport unequivocally asserts she did not believe Davidson’s representations were true. Furthermore, even if Davenport’s allegations are assumed to be true and Davidson fraudulently and deceitfully represented that Davenport’s tooth was dead and the only remedy was a root canal, Davenport did not choose to undergo the recommended procedure, nor did she even see Davidson again. For reasons unknown, Davenport chose to take no course of action until further damage to the tooth occurred.  Simply put, she chose a path exactly opposite from Davidson’s representations, as was her right, but it cannot be construed as detrimental reliance

 And malice cannot stand alone

the District Court properly concluded malice is not a standalone tort claim under Montana law, and rather is an element of a claim for punitive damages that is contingent upon the success of an underlying claim. Sections 27-1-220, -221, MCA. Therefore, because no underlying claim remains to support a parasitic claim of malice, its dismissal by summary judgment is also proper.

It is phrases like "parasitic claim" and "attractive nuisance" that give life to the law.  (Mike Frisch)

May 25, 2016 | Permalink | Comments (0)

Disbarment For Stealing From Elderly Clients

An Illinois Hearing Board recommends disbarment of an attorney who defaulted on these charges

Respondent's misconduct was particularly egregious. That misconduct included, but was not limited to, misappropriating a total of over $800,000 in three separate matters, involving elderly persons, one of whom had dementia. In each of those matters, Respondent took funds repeatedly and over time. In addition, as Count IV reflects, Respondent took funds without authority from four other persons. Thus, an extensive pattern of misconduct was present.

The nature and extent of Respondent's misconduct alone would warrant disbarment. The aggravating factors present provide additional support for this recommendation. The mitigating factors do not warrant a lesser sanction in this case.

The mitigation involved a lack of prior discipline and partial restitution. (Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Attorney May Appeal; Attorney Loses Appeal

The ABA Journal has the story of an opinion of the United States Court of Appeals for the Seventh Circuit holding that a sanctioned attorney may appeal a finding of misconduct even if the fine has been paid.

The attorney lost on the merits.

The case involves an assistant state's attorney in Illinois who asserted that no requested documents existed in civil litigation. Problem was that there were plenty such documents.

The court

because a finding of attorney misconduct in a sanctions order can seriously impair an attorney’s professional standing, reputation, and earning possibilities, such an order can’t be brushed off as easily as a gnat. It is not just a slap on the wrist, or an angry remark by a judge in the course of a trial or other hearing. It is a judicial order, in this case issued by a respected and experienced federal judge (really two respected and experienced federal judges, as the money sanction imposed by Judge Bucklo, together with her critical comments supportive of Judge Grady’s, amplified the gravity of Judge Grady’s order)...

 It’s true that although Judge Grady expressed strong criticism of lawyer McClellan, the only sanctions order that he had decided to issue (though it was not quantified until the order issued by his successor, Judge Bucklo) was an order to pay, which when he issued it would have been expected to impose at least part of the expense on McClellan. We can imagine an argument that as in Bolte all we have here is a critical comment by the judge, and that a mere comment can’t be the subject of an appeal. It would indeed be odd to think that any time a judge criticized a lawyer, whether in open court or in a written order, the lawyer could treat the criticism as an appealable ruling. But there is a difference between a critical comment unjoined to a sanctions order and a critical comment that appears in and offers justification for a formal such order. The accusation of misconduct by McClellan is not an add-on to the order issued by Judge Grady but the justification for it. One of the sanctions that this court occasionally imposes, usually after a rule to show cause has been issued, is a formal censure or reprimand of a lawyer. Such a sanction, if imposed on an Illinois lawyer, must be  reported to the Attorney Registration and Disciplinary Commission (or its equivalent in other states), and can result in the suspension of the lawyer’s law license, or worse...

The significance of the order, as far as McClellan is concerned, is not the price tag but the sharp criticisms of her in the order, and those criticisms were apt and accurate. The plaintiffs had been strung along by McClellan and others at the State’s Attorney’s Office for more than a year, having been incorrectly informed that the Office had not retained the plaintiffs’ criminal case files. McClellan had repeatedly denied that the files existed, without knowing whether they did or did not exist and without conducting a reasonable inquiry into the matter. She had even threatened the plaintiffs’ counsel that she would seek sanctions against him if he continued to request the documents in the face of her denial of their existence. She also tried to prevent him from searching for the files himself. And when the files were finally located she delayed turning them over by advancing a meritless claim of privilege. It took multiple court orders and more than a year of effort for the plaintiffs to obtain all the docu-ments to which they were entitled. The district court did not abuse its discretion in sanctioning her.

 (Mike Frisch) 

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Judge May Respond

A judge seeking reelection may comment on a criminal case involving misconduct by a former court employee, according to a recent opinion of the Florida Judicial Ethics Advisory Committee.

May an incumbent judicial candidate publicly comment about the events surrounding the termination of a court employee, including the employee’s arrest and conviction?



The inquiring judge is involved in a contested campaign for reelection. Some time ago, a court employee who worked in the same courthouse as the inquiring judge was terminated, and later arrested and convicted. After the employee’s termination, the employee made certain allegations about the inquiring judge. At sentencing, the employee made remarks apologizing to the inquiring judge. The employee was sentenced to a period of incarceration and probation. The employee is currently on probation.

The inquiring judge advises that there have been media accounts during the current campaign about the employee’s previous allegations about the inquiring judge. The inquiring judge would like to publicly comment on the former employee’s allegations, and on the former employee’s comments at sentencing, but is concerned whether doing so would contravene the proscription of Florida Code of Judicial Conduct, Canon 3B(9), which states:

A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing… This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.


Because the former employee remains on probation, it is theoretically possible that the employee may be involved in future court proceedings. However, no such proceeding is pending or impending. More to the point, the inquiring judge was not the presiding judge in the employee’s criminal case. Cf. Fla. JEAC Ops. 98-28 (inquiring judge who presided over case that is currently on appeal cannot appear in documentary concerning the case); 11-16 (inquiring judge may not speak to conference of judges and others interested in the administration of justice concerning a trial presided over by the judge and which is being appealed). The inquiring judge would have even less connection to any future court proceedings stemming from the employee’s probationary status.

Consequently, the Committee is of the opinion that the inquiring judge can comment on the allegations made by the employee about the judge, including discussing comments by the employee at sentencing, so long as the inquiring judge’s comments are truthful and do not otherwise violate the Canons. See Republican Party of Minn. v. White, 122 S. Ct. 2528 (2002) (stating that speech about the qualifications of candidates for public office, including judges, is at the core of our First Amendment freedoms).

(Mike Frisch)

May 25, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Off From Texas

The Oklahoma Supreme Court has imposed reciprocal disbarment based on a Texas sanction imposed for criminal tax violations that did not lead to conviction.

The procedural posture in Texas

In late 2014, the Texas Bar began disciplinary discussions with O'Laughlin. From the record, notice of the third complaint was received by O'Laughlin after disciplinary discussions had begun. On March 23, 2015, O'Laughlin signed the Motion to Resign, requesting that the Supreme Court of Texas accept his resignation from the practice of law: "Applicant is voluntarily resigning and withdrawing from the practice of law and does so in lieu of discipline."

His response when Oklahoma commenced reciprocal discipline proceedings

 O'Laughlin chooses not to acknowledge any misconduct, and he shows no remorse for the wrongs done to his clients. Instead, O'Laughlin argues that his misconduct did not involve the practice of law; and therefore, this Court cannot impose discipline.

The court had a different view

 O'Laughlin's arguments about the Texas Bar and Supreme Court of Texas during his disciplinary proceeding are concerning. O'Laughlin claims that the Texas disciplinary proceeding is still ongoing. He supports his assertion by citing the Withdrawal of Motion filed on May 22, 2015. That date is almost one month after the Supreme Court of Texas entered a final order accepting O'Laughlin's resignation in lieu of discipline, April 28, 2015. According to Texas rules, an attorney has ten days to withdraw a motion for resignation in lieu of discipline after the attorney has been served the Texas Bar's response. TRDP 10.02, Texas Govt. Code T.2, subt. G, app. A-1. The Texas Bar filed its response on March 31st, and O'Laughlin was served on the same date. Almost two months later, O'Laughlin took action, well past the allotted time to withdraw his motion. According to TRDP Rule 10.02, "[i]f a motion to withdraw is not timely filed, the detailed statement of Professional Misconduct shall be deemed to have been conclusively established for all purposes." Id. O'Laughlin failed to withdraw his resignation within the ten allotted days, and he fails to explain or provide any relevant rule that allows him to circumvent TRDP Rule 10.02. We find no merit in O'Laughlin's continuing objection via his Withdrawal of Motion due to TRDP Rule 10.02 and the Supreme Court of Texas taking no action on the Withdrawal of Motion for over a year and a half and counting. O'Laughlin acknowledged the Texas rules he resigned under when he submitted his request to resign. We hold him accountable for his knowledge of those rules and his neglect.

Even if O'Laughlin's attempt to withdraw his request to resign from the Texas Bar were a valid procedural vehicle, O'Laughlin did not provide any evidence that he actually filed it with the Supreme Court of Texas. A file-stamped Withdrawal of Motion is absent from the record. When directed by this Court to submit a file-stamped copy of the Withdrawal of Motion or explain his failure to do so, O'Laughlin failed to provide any evidence or argument.

We view these actions by O'Laughlin as a method to flaunt the legal system and avoid discipline. In his January 25th response, O'Laughlin claims that the Texas Bar's attorney never represented to him that there were findings that would be conclusively established when he resigned in lieu of discipline. Texas' disciplinary rules contradict his claim. He argues now that this proceeding was obtained by fraud. Again, we find no merit to O'Laughlin's argument. For purposes of Rule 7.7 of the RGDP, O'Laughlin's resignation in lieu of discipline is valid, and the Supreme Court of Texas' order accepting his resignation is final.

O'Laughlin does not challenge the evidence or underlying facts in this Court, despite being allowed an opportunity to explain the circumstances or present mitigating evidence. If true as O'Laughlin admitted, the facts of the three grievances filed by O'Laughlin's clients alone are sufficient to warrant discipline. Having failed to challenge the factual allegations, this Court upholds the conclusive establishment of the misconduct underlying O'Laughlin's resignation in lieu of discipline in Texas. Discipline in Oklahoma is warranted.

In an unrelated action, the court denied a first attempt at reinstatement of an attorney had had resigned pending discipline in 2000. (Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Prior Discipline Leads To Short Suspension

An attorney with a record of prior discipline was suspended for 60 days by the Wisconsin Supreme Court for mishandling a tax matter.

Attorney Moldenhauer has a disciplinary history. In 1996, Attorney Moldenhauer consented to a private reprimand for misconduct consisting of failing to act with reasonable diligence, failing to communicate properly with a client, and failing to render a full accounting of estate funds in respose to a client's request. Private Reprimand 96-28. In 2006, Attorney Moldenhauer was publicly reprimanded for misconduct in two matters. In the first matter, he failed to act with reasonable diligence, failed to return a client's file, and failed to cooperate with the OLR's investigation. In the second matter, he failed to provide his client with an itemized billing statement, failed to refund the unearned portion of his advanced fee, and failed to cooperate in the OLR's investigation...In 2008, Attorney Moldenhauer was publicly reprimanded for misconduct consisting of failing to communicate properly with a client, failing to act with reasonable diligence, and failing to obey a court order. Public Reprimand of James G. Moldenhauer, 2008-01. In 2012, Attorney Moldenhauer was publicly reprimanded for misconduct consisting of failing to communicate properly with a client and failing to act with reasonable diligence. 

His lapses led to this

In August 2012, the C.s. filed a malpractice and breach of contract action against Attorney Moldenhauer for his mishandling of their tax matters. The case eventually settled for $50,000.

The attorney stipulated to the misconduct and sanction. (Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)