Saturday, September 30, 2017

Admission Granted

From the Hartford Courant

A former inmate who graduated from Yale Law School last summer has received the greenlight to practice in Connecticut.

Reginald Dwayne Betts was admitted to the bar on Friday after a meeting with the state’s examining committee.

“He is gratified with the action of the committee, and he looks forward to continuing the work he’s been doing, only this time as a lawyer where he can be more effective than he’s been,” said William F. Dow III, the New Haven-based attorney who represented Betts in this matter. “He’s grateful to the many people who’ve helped him, especially a significant number of inmates, who don’t even know him, but who appreciate what he’s done and the hope that he’s given to them.”

Last month, Betts’ application to the bar was given pause due to a felony conviction for carjacking in Virginia when he was a teen.

Per state regulation, any applicant for the bar must prove “his or her good moral character and fitness to practice law by clear and convincing evidence" to the examining committee.”

Betts was released after serving nearly 10 years behind bars and pursued his education, culminating with his graduation from Yale last summer and his passing of the bar exam in February.

The Maryland native is also an accomplished author, publishing two collections of poetry and a memoir.

Throughout the approval process, Betts received support from people speaking on his behalf, with letters submitted to the examining committee on “a panorama from inmate to professor to judge,” Dow said Friday.

Before Betts can practice, he’ll receive an official notice from the state and will be sworn in at superior court in New Haven.

Betts spoke at length with The Courant last year, explaining that his experiences as a teen molded his desire to work in the criminal justice system.

“This, all of this, allows me to prove my story is useful,” Betts told The Courant in May 2016. “In conversations, lawmakers will look at me and say ‘you’re an exception.’ Yeah, well, in 2005, I wasn't. And I want to fight for that guy.”

Hat tip to Shon Hopwood. (Mike Frisch)

September 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 29, 2017

Delay Does Not Justify Dismissal

The Law Society of British Columbia Hearing Panel rejected a claim of delay as a basis for dismissal

Mr. Zoraik was convicted in 2010 of public mischief and fabrication of evidence in relation to the fabrication and delivery to the Victoria courthouse of a letter that falsely alleged jury tampering in a matter where Mr. Zoraik was counsel for the plaintiff.  Mr. Zoraik admits this allegation and admits that it constitutes professional misconduct.  The sole remaining issue is the impact, if any, of the delay between the commencement of the Law Society investigation into this matter and the hearing of the citation.  In particular, Mr. Zoraik alleges that he is entitled to a stay of the disciplinary proceedings due to unreasonable delay.

The crime

   In April 2009 Mr. Zoraik acted for the plaintiff in a personal injury lawsuit.  This was a jury trial where liability was contested.  On April 28, 2009 the jury returned a verdict for the defence, after about 20 minutes of deliberation.  That same day Mr. Zoraik, on behalf of the plaintiff, applied to set aside the verdict due to the brevity of the deliberations.  That application was adjourned to May 13, 2009 and later to July 30, 2009.

On May 6, 2009 an envelope was placed on a counter in the Sheriff’s office at the Victoria courthouse.  The envelope contained a letter purportedly written by the husband of a juror who claimed that his wife, the juror, had been offered money for her vote.  The allegations in the letter were false.  Mr. Zoraik was the author of the letter and placed the letter in the Sherriff’s office. 

Mr. Zoraik was interviewed by Victoria police on June 18 with respect to the letter.  He feigned any knowledge of the letter.  He then sought to obtain the Victoria police file with respect to the matter, ostensibly for use in his application to set aside the jury finding.  In the Agreed Statement of Facts filed in this matter, Mr. Zoraik agrees that he knew that the letter was likely to become evidence in the application to set aside the jury finding, and he agrees that he sought to have the court rely on the letter.  

Why did it take so long?

The first step in this analysis is to determine whether there has been an excessive delay.  Mr. Zoraik asks that we consider the time from the beginning of the Law Society investigation (July 2009) until the conclusion of this hearing in July, 2017.  It is not, however, that simplistic an exercise.  Without engaging in the sort of “complicated micro-counting” that the SCC in Jordan seeks to avoid, it is still necessary to highlight some of the important facts of this case, in order to deal with the question of delay in context...

With regard to the time this matter took from the conclusion of the BC Court of Appeal decision through to the hearing of the new citation, while we have avoided micro-counting and assigning blame, we have carefully looked at this time period to determine if it reaches the level of excessive in the circumstances.  It is our view that the Law Society dealt with the matter appropriately from a time perspective.  Periods of time lapsed while awaiting Mr. Zoraik’s counsel to respond to communications from the Law Society.  The Law Society granted appropriate accommodations to both requests for time and delayed responses from a busy senior practitioner.  Some time was spent sorting through procedural new territory.  Mr. Zoraik is critical of this and critical of the fact that his counsel was asked to respond to proposals regarding the procedural issues, but we do not accept that any of the requests made of him or input sought from him inappropriately caused delay.  Importantly, there were no periods where the matter simply lapsed, no extended periods with no activity or where nothing was happening to move the case along.  To borrow from Jordan, a culture of delay was not at play.  

There was no prejudice and thus

Having heard submissions from counsel for the Law Society on the two options for adverse determination proposed in the citation, namely professional misconduct or conduct unbecoming a lawyer, having been apprised of the agreement from counsel for Mr. Zoraik that, subject to his arguments on delay, the facts support a finding of professional misconduct, and having declined to dismiss the citation based on delay, we make an adverse determination of professional misconduct.  Mr. Zoraik’s conduct was a marked departure from that the Law Society expects from lawyers (the test for professional misconduct oft cited from Law Society of BC v. Martin2005 LSBC 16 (CanLII)).

A disbarment for the misconduct was set aside in 2015. 

Commentary on the decision from (Mike Frisch)

September 29, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Crimes Of The Heart Get Lawyer Suspended

The Louisiana Supreme Court imposed a year and a day suspension for misconduct unrelated to the practice of law.

On December 28, 2013, respondent intentionally entered the home of S.S. and his wife, J.H., without authorization.  During her sworn statement to the ODC, respondent acknowledged that she did not have express permission to enter the residence. Respondent was arrested and charged with unauthorized entry of an inhabited dwelling, a felony. This charge was dropped as part of a plea bargain. On October 30, 2015, respondent pleaded guilty to stalking and to violation of a protective order, both misdemeanors.


In August 2014, respondent used J.H.’s credit card number to make purchases on

The charges and response

In February 2016, the ODC filed four counts of formal charges against respondent. Respondent answered the formal charges and generally denied the factual allegations as written. Respondent acknowledged that she did not have the express authority of J.H. to enter the residence, but stated that she had been given the implied authority to do so. Respondent added that J.H. provided her with the credit card at issue, gave her the authority to use the card at will, and never expressly revoked authorization to use the card. She indicated that the charges made to the card in August 2014 were accidental.

The findings

Respondent was hired by S.S. in the Orleans Parish Public Defender’s Office in 2008. She subsequently became friends with his wife (J.H.) and would occasionally babysit the children and house-sit for the family. The friendship between respondent and J.H. developed over the years and became romantic.

In October 2013, J.H. decided to end the relationship and so communicated that to respondent via e-mail on October 28th. The next day, respondent repeatedly tried to communicate with J.H., without success. That evening, respondent e-mailed J.H. that she was coming over to her house to see if she was alright. J.H. e-mailed respondent back and told her not to come over. Under the influence of alcohol, respondent went to J.H.’s home and while outside, cursed and called J.H.’s name repeatedly. Respondent let herself inside via a magnetic key to the gate in the fence surrounding the home. She had been entrusted with this key due to the relationship and the services she performed for the family. Eventually, respondent let herself in the house through a door she knew was kept unlocked. She was subsequently ejected by S.S. The accounts of that ejection differ. Nonetheless, both respondent and S.S. called 911, and the police came.

Despite this incident, respondent continued to communicate with J.H. J.H. emailed her that the relationship between them was over and requested that she stop trying to communicate with her and get on with her life. In mid-November,  respondent again attempted to communicate with J.H. via e-mail and was told in reply to stop. Respondent continued to e-mail J.H. and later confessed to having inadvertently used J.H.’s credit card number on her Amazon account. Respondent apologized and promised to delete the card information from the account. However, several months later, she ordered some merchandise for herself using the same credit card number. Respondent claimed this was an accident.

In December 2013, J.H., S.S., and their children were visiting J.H.’s family in New York. Respondent knew they would be out of town. On December 28th, respondent used the aforementioned key she had to the family’s gate and gained access to the residence through a door she knew was unlocked. Respondent subsequently claimed she was there to leave $2,500 which she had owed to J.H. Respondent was met by Adonica Nelson, the fiancée of the family’s house sitter. When confronted by Ms. Nelson, respondent pretended to be in the wrong house. A criminal complaint was filed after the family returned and was informed of the home intrusion. The couple then obtained stay-away orders directed at respondent.

In November 2014, J.H. discovered that three purchases totaling $96.65 were made on her credit card. J.H. learned that respondent had made them using the credit card number that respondent had promised to remove from her Amazon account. A criminal complaint was then filed against respondent.

The court rejected the findings of misconduct involving the alleged credit card misuse.

Justice Genovese dissented

I would reject the suspension of respondent for only one year and one day and would impose a two-year suspension as recommended by the hearing committee. Respondent’s criminal activity warrants a more severe sanction.

The New Orleans Advocate reported on the criminal case. (Mike Frisch)

September 29, 2017 in Bar Discipline & Process | Permalink | Comments (0)

My Mother The Juror

The Kentucky Supreme Court has reversed a criminal conviction because the mother of the County Attorney was not struck for cause.

A peremptory challenge was exercised but the issue was preserved

Later, Appellant used a peremptory strike on the juror in question and noted, with specificity, the name of the petit juror he would have stricken, if the juror in question had been removed for cause. As such, Appellant...properly preserved the issue for appellate review.

The court

Appellant argues that the mother-daughter relationship between the . . . juror and the County Attorney rendered the juror objectively biased and partial. If that relationship standing along was the sole factor, this case would be a closer call - and that question remains for another day. However, after reviewing the video of Appellant's voir dire (as quoted above), it is not the familial relationship in and of itself that tainted this juror. Rather, the juror was tainted when she became privy to the bench session on the motion to strike her for cause. By explaining the reasoning behind that motion in the juror's presence, defense counsel made the juror aware that her daughter had conducted the preliminary hearing in this case. As such, counsel telegraphed disqualifying information to the juror, regardless of whether she had previously been qualified. Since the.juror was not involved in the felony prosecution, and never discussed cases with her daughter, without defense counsel's statements, she would have had no  reason to know that her daughter had ever been 'involved in this case.

As it is, the juror was made aware that her daughter had once stood in an adversarial position against Appellant on these charges. The Juror listened as defense council expressed doubt that she could be unbiased, .and suggested that she was under  pressure to claim impartiality. Meanwhile, the prosecutor expressed his belief that the juror could be impartial.  The total effect of this juror being privy to the bench session acted to undermine "the mental attitude. ' . .. of appropriate indifference" that is required of a juror at trial. 

(Mike Frisch)

September 29, 2017 | Permalink | Comments (0)

Thursday, September 28, 2017

Dog Death Disbarment

An attorney's felony conviction has resulted in his disbarment by the New York Appellate Division for the First Judicial Department

Respondent was charged in an indictment, filed in New York County Supreme Court, with aggravated cruelty to animals, a class E felony, and overdriving, torturing and injuring animals, a class A misdemeanor, in violation of Sections 353-a(1) and 353 of the Agriculture and Markets Law. On May 9, 2017, respondent was convicted, after a jury trial, of both counts of the indictment. On May 31, 2017, respondent was sentenced to a term of imprisonment of two years on the felony count and one year on the misdemeanor count to run concurrently, he was required to register on the animal abuse registry, final orders of protection were issued and he was banned for 10 years from owning any animals.

Specifically, respondent was found guilty of killing his girlfriend's dog. At sentencing, Justice Robert Mandelbaum said that respondent's repeated blows to the dog "showed almost incomprehensible violence, and malice," that the dog was in "excruciating pain" up until she lost consciousness while respondent "sat down at his computer in the most cold blooded manner, and went to work, knowing that the dog lay dying,...on the floor behind him."

Details on the conviction from the New York Post.

A corporate lawyer was convicted Tuesday of beating to death his girlfriend’s poodle as his mother burst into sobs in the gallery.

Anthony Pastor, who had a defense team of three lawyers, shook his head in disbelief as the foreman read the guilty verdict, which took the panel about three hours to reach.

Justice Robert Mandelbaum ordered Pastor, 46, handcuffed and held without bail until he’s sentenced May 31. He faces up to two years in prison.

During the disturbing one-week trial, two of Pastor’s ex-girlfriends testified that they both discovered their beloved pooches dead at his Upper West Side brownstone.

But he’s only charged with the slaying of Snoopy — Taly Russell’s 4- year-old poodle.

Russell, 45, testified last week that when she awoke at Pastor’s pad Aug. 4, 2016, she found Snoopy’s lifeless body on the living room floor.

“I looked down and there was Snoopy — stiff, not moving — her eyes were sunken into her head, and there were feces behind her, then I went closer, and I touched her and she was cold and hard,” she said.

An animal autopsy revealed that the little pooch, who Russell described as a “ball of fluffy cuteness,” had nine broken ribs, a pulverized kidney and massive internal bleeding.

Pastor’s ex-fiancee Monique Olivares also took the stand and told jurors that Molly died under chillingly similar circumstances in 2013.

“I found her in front of the sofa, not moving, lifeless and there were feces behind her,” Olivares said, fighting back tears. “I said, ‘Oh my God, Molly is dead!’” Pastor was sitting mere feet away on his computer.

Lead defense lawyer Gerald Lefcourt argued that Snoopy could have been injured the night before her death when the couple had sex under a tree in Riverside Park and left Snoopy tied to a fence about 15 feet away.

But Russell insisted she maintained a clear line of sight to Snoopy during the brief assignation.

Assistant District Attorney Tanisha Palvia argued that Pastor flew into a rage after Snoopy had an accident on the carpet.

“This small, fluffy dog was beaten to death,” the prosecutor said. “Think about the kind of person who would cause this kind of injury to a defenseless animal.”

The Maryland Court imposed a lesser sanction on an attorney who had gone into the home of his client's spouse and

Precisely what happened in the early morning hours of October 14 is not at all clear. The evidence, however, is sufficient to persuade the court that respondent and Mr. Sanders entered the home of Ms. Sanders without authorization, ransacked it, clogged the toilet, stole personal property and killed the family kitten Max. The court rejects respondent's contention that Max's death was accidental.

Within a week of the incident, respondent had told his law partners of his involvement and retained attorney Augustus Brown. Subsequently, respondent gave a statement to the Harford County Deputy Sheriff Keithley. On January 17, 1992, respondent pled guilty to two misdemeanors: breaking and entering a dwelling house and cruelty to animals. He was given one year for breaking and entering and 90 days for cruelty to animals.

Max had been murdered in the microwave. (Mike Frisch)

September 28, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Duty To Respond

The New York bar regulatory system had a wonderful tool for focusing an accused attorney on the obligation to respond by promptly suspending the attorney who fails to do so and disbarring if the response does not come within six months.

The Appellate Division for the First Judicial Department held

By order entered July 14, 2016, this Court granted the Committee's motion and suspended respondent from the practice of law, effective immediately, and until further notice of the Court (142 AD3d 122 [1st Dept 2016]). This Court found an interim suspension was warranted where respondent failed to fully cooperate with the Committee's investigation by failing to complete an Excel spreadsheet documenting his IOLA account, failing to explain the shortfalls in his IOLA account after receiving a $225,000 downpayment he deposited in connection with the sale of his clients' apartment, and failing to answer the Committee's inquiry as to his alleged conversion of $139,000 in escrowed client funds.

A late-blooming effort fell short

 Respondent's affidavit in opposition is not only untimely, but it presents no meritorious arguments warranting denial of the Committee's motion to disbar pursuant to 22 NYCRR 1240.9(b). Although respondent acknowledges that he received a copy of this Court's July 14, 2016 order of suspension and that he is represented by experienced and competent counsel, he proffers only conclusory or incredible explanations for his failure to appear or apply in writing for a hearing or reinstatement within six months from the date of the order of suspension. Additionally, not only during that six-month period, but to this day, respondent has taken no steps to provide the Committee with any of the information it has sought from him, notwithstanding the fact that his failure to comply with the Committee's requests resulted in his suspension in the first instance. Respondent's attempt to shift the blame from himself to the Committee for not providing him with guidance as to what actions he should have taken or what information he should have provided is unconvincing. The Committee's April 27 notice of motion clearly set forth that his failure to appear or apply in writing for a hearing or reinstatement within six months from the date of the order of suspension would render him subject to disbarment, and our suspension decision lists the information and explanations respondent was to provide to the Committee.

Respondent's contention that he lacked the time and resources to seek reinstatement during the six-month period due to his involvement in campaign and fundraising activities related to his 2016 Congressional candidacy lacks credibility, as the six-month period did not expire until mid-January 2017, more than two months after the November 2016 general election was held. Respondent's claim that he devoted his time following the election to raising money to retire his campaign debt is belied by Federal Election Commission records, which show that his campaign incurred no debt. Furthermore, since respondent's July 2016 interim suspension, the Committee has received a new complaint against him, which he has failed to answer.

Under the circumstances presented here, where respondent has failed to take any steps to appear before the Committee within the six-month period, has filed an untimely affidavit in opposition in which he asserts conclusory and incredible defenses and has failed to answer a post-suspension complaint against him, disbarment is warranted (see Matter of Ayu, 123 AD3d 44 [1st Dept 2014]; Matter of Jones, 89 AD3d 227 [1st Dept 2011]; Matter of Bechet, 275 AD2d 138 [1st Dept 2000], lv dismissed 96 NY2d 730 [2001]; Matter of Chadi, 243 AD2d 78, 79 [1st Dept 1998]).

Accordingly, inasmuch as more than six months have elapsed since this Court's July 14, 2016 suspension order, and respondent has neither responded to nor appeared for further investigatory or disciplinary proceedings, the Committee's motion for an order disbarring respondent pursuant to 22 NYCRR 1240.9(b) should be granted and his name stricken from the roll of attorneys in the State of New York, effective immediately.

September 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

One Reprimand Leads To Two Reciprocal Suspensions

A bar discipline matter brought in Delaware drew a public reprimand from the state Supreme Court.

the Delaware Supreme Court issued an Order approving the Board’s Report and imposing a public reprimand with two conditions: (i) Poverman would undergo a mental health evaluation and monitoring by the Delaware Lawyers Assistance Program if he did not seek inactive status within thirty days; and (ii) Poverman would pay the CLE Commission late fees and ODC costs.

He also is admitted in Maryland and the District of Columbia and there the story gets more complicated.

The Maryland Court of Appeals imposed a more severe sanction as reciprocal discipline

Here, Poverman...committed one knowing misrepresentation and repeatedly failed to respond to lawful requests for information from a disciplinary authority. Like Kepple, Poverman made a knowing misrepresentation in a disclosure that was required in order to practice law and—as the Board found—he had no prior disciplinary record throughout a lengthy legal career. Because Poverman’s conduct falls within the same category of severity as that of Harrington and Kepple, we conclude that the appropriate sanction in Maryland is also an indefinite suspension.

Not all indefinite suspensions are alike, however. The measure of severity of each will turn on whether we specify a time after which the lawyer may reapply and if so, what time we assign. In Kepple, Bar Counsel recommended indefinite suspension with a right to apply for reinstatement after no less than one year. Id. at 230, 68 A.3d at 806. The Court, however, imposed a sanction of indefinite suspension with a right to apply for reinstatement after no less than thirty days. Id. Critical to the Court’s decision were the “unique mitigating factors” that weighed in Kepple’s favor. See id. at 230–31, 68 A.3d at 807. First, in her fourteen-year legal career, Kepple had no prior disciplinary violations. Id. at 231, 68 A.3d at 807. Second, Kepple was “youthful and inexperienced at the time of her misconduct, which bespoke less than fully formed sound judgment.” Id. Third, Kepple demonstrated remorse for her actions—she contacted her former law school and met with the Dean to offer repayment for the tuition she should have paid. Id. After balancing the gravity of Kepple’s misconduct against these mitigating factors, the Court concluded that indefinite suspension with a right to apply for reinstatement after no less than one year would be “too harsh.” Id. at 232, 68 A.3d at 807–08...

We conclude that Poverman’s misconduct warrants an indefinite suspension with a right to apply for reinstatement in one year. We shall so order.

Today, the District of Columbia Court of Appeals imposed the same sanction as Maryland.

D.C.'s approach is particularly interesting as the jurisdiction  has long recognized that Maryland is tougher in dishonesty cases than it is as it stated in In re Pennington

We agree with the Board that Pennington's misconduct would not warrant disbarment in this jurisdiction absent additional circumstances of aggravation not demonstrated.   The Board recognized, correctly, that Pennington's disbarment by Maryland was dictated by what amounts to a presumption under Maryland law that an attorney who engages in intentional dishonesty will be disbarred. 

We recently covered a decision of the West Virginia Supreme Court that went the other way and chose the lesser of two sanctions. (Mike Frisch)

September 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Belief In Systemic Bias Does Not Disqualify Juror

The District of Columbia Court of Appeals reversed a tampering conviction because of the exclusion of a potential juror who had expressed concern about the treatment of black men in the criminal justice system

During jury selection, the trial court asked the potential jurors if they, their immediate family, or their close friends had been arrested for, charged with, or convicted of a crime within the past ten years. Juror 7575-B was among the potential jurors who answered in the affirmative. During follow-up questioning, she explained that her half-brother had been jailed for assault in Texas, and her family suspected that racial profiling had been involved. She also said that her brother had been “treated unfairly” by the justice system as “a black man in Texas.” When asked if her views about her brother would affect her ability to be impartial in this case, she responded:

 I mean I think I can be impartial. I mean I think it‟s shaped my view of the world. But I don‟t know the details of this case. I don‟t think I would see my brother in it. His situation is different. But I definitely, that‟s my experience with the system.

The prosecutor then asked Juror 7575-B if she thought that “black men in DC are treated fairly or unfairly by the criminal justice system,” and she responded that she thought they were treated unfairly and that “things are tilted in the wrong direction.”

The prosecutor's motion to strike the juror was granted.

Key language

Under these principles, we hold that the exclusion for cause of Juror 7575-B was erroneous. The trial court disqualified Juror 7575-B because Juror 7575-B believed that the criminal-justice system reflects a systemic bias against black men. According to statistics cited by Mr. Mason, that belief is far from uncommon: research conducted in 2013 indicated that 35% of all adults and 68% of blacks believed that blacks are treated less fairly than whites in the courts...

Standing alone, the belief that the criminal-justice system is systemically unfair to blacks is not a basis to disqualify a juror. Rather, that belief is neither uncommon nor irrational. Moreover, there is no basis for an inference that potential jurors holding that belief are necessarily unable to be impartial. To the contrary, potential jurors who hold that belief might well be particularly attentive to making sure that they perform their function impartially. The United States does not cite, and we have not found, any case upholding a trial court‟s removal of a potential juror for cause based solely on the potential juror‟s belief that the criminal-justice system was unfair to blacks...

Turning back to the present case, the erroneous disqualification of Juror 7575-B is of particular concern for several reasons: (1) the disqualification rested on Juror 7575-B‟s beliefs about the criminal-justice system and race, which are important matters of legitimate public debate; (2) Juror 7575-B‟s beliefs are neither uncommon nor irrational; (3) Juror 7575-B‟s beliefs also might have a beneficial effect on Juror 7575-B‟s performance of her duties as a juror; (4) Juror 7575-B‟s beliefs would naturally make her an appropriately desirable juror for a criminal defendant; and (5) because black potential jurors are more likely to doubt the racial fairness of the criminal-justice system, exclusion of potential jurors holding such beliefs would have a disparate impact on black potential jurors.

The court (Associate Judge McLeese joined by Associate Judge Glickman and Senior Judges Ruiz) found sufficient evidence of the crime to permit a new trial. (Mike Frisch)

September 28, 2017 in Current Affairs | Permalink | Comments (0)

Yogurt Store Mitigation

The District of Columbia Court of Appeals has imposed reciprocal discipline based on an attorney's Massachusetts suspension.

From the opinion of the Massachusetts Supreme Judicial Court

The respondent was admitted to the practice of law in the Commonwealth on December 17, 2004, He has maintained a general practice as a solo practitioner since his admission to the bar. During the period at issue, the respondent operated his part-time law business from his home. He also was engaged in opening another small business -- a frozen yogurt shop -- which he continued to own and operate at the time of the disciplinary proceedings...

The board found 'that, at the time of these events, the respondent was in the process of opening a frozen yogurt store. The respondent testified that he was working in the store
approximately 100 hours per week during that period, and that his attention Was distracted from the conduct of his part-time law practice, He testified that, since the store has been fully operational, he spends much less time on day to day operations. The board found that, during the period from December, 2012, through February, 2013, the respondent spent the "vast majority" of his working time at the frozen yogurt store, and, at the time of the disciplinary proceeding, he was spending approximately twenty percent of his working time there. The board stated further that it declined to consider any "distractions or time commitments of the yogurt shop" in mitigation.

The charges involved record keeping violations and deprevation of funds. 

The court expressed concerns about the evidence used to attack the attorney's attorney father

Having carefully reviewed the transcripts, the record, and the findings of the hearing committee and the board, I agree with the respondent that the volume of irrelevant or incompetent evidence, assertedly introduced to challenge the credibility of bar counsel's subpoenaed witness, Anthony Strauss, was unfairly prejudicial to the respondent, The extent of the problem is evident beginning with the denial of the respondent's motion to limit testimony to "matters charged in the petition for discipline." Rather than being focused on the respondent's asserted misconduct, the proceeding focused largely on Anthony Straus' s asserted business practices, unsupported by competent evidence.

On intent with respect to client funds

The single instance of misuse, for a brief period, in circumstances such as these, where there was no evidence of intent to deprive the client of her funds, or of misuse of the funds for the respondent's personal benefit, the respondent was working many hours per week beyond full time to establish a new business, and had a broken ankle that would have made driving from Brookline to Brockton difficult,' is far less egregious than in other cases where a sanction of a term suspension has been imposed.

The Massachusetts suspension of six months was imposed as reciprocal discipline. (Mike Frisch)

September 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 27, 2017

No Button For Judge Spouse

An opinion from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2017-16 (Election)
Date of Issue: September 2, 2017


1.  May a judge appear as the candidate’s spouse in a family photograph to be used in the spouse’s campaign seeking election to a partisan office?

ANSWER: Yes, as long as the judge is not identified as a judge, and there is no indication that the judge has endorsed the spouse’s candidacy.

2.  May a judge appear at non-partisan events where the judge’s spouse, a declared candidate for an elected partisan office, will be speaking, for example, local citizens’ groups or neighborhood forums?

ANSWER: No. The judge’s mere presence may be perceived as endorsing the spouse’s candidacy in violation of Canon 7A(1)(b).

3.  May a judge attend any fundraising events for the judge’s spouse, a declared candidate for an elected partisan office, if those events are not sponsored by a political party (i.e., “friendraisers” at private homes)?

ANSWER: No. Canon 7D states that a judge shall not engage in any political activity with certain exceptions.  Canon 7A(1)(b) prohibits a judge from publicly endorsing another candidate for public office.  Canon 7A(1)(e) prohibits a judge from soliciting funds for a candidate.

4.  May a judge wear a campaign button or any other item supporting the spouse’s political campaign?

ANSWER: No. Canon 7A(1)(b) prohibits a judge from publicly endorsing another candidate for public office.

(Mike Frisch)

September 27, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Suspension For Failure To Pay Child Support

An attorney has been suspended for failure to pay child support notwithstanding his claim of financial inability.

The New York Appellate Division for the Second Judicial Department suspended the attorney

In his affirmation in opposition, the respondent admitted that the arrears had not been paid, but claimed that he could not pay the arrears, inter alia, based upon an inability to work and lack of assets. Nevertheless, as provided for in Judiciary Law § 90(2-a)(b), “[t]he only issue to be determined as a result of the hearing is whether the arrears have been paid. No evidence with respect to the appropriateness of the court order or ability of the respondent party in arrears to comply with such order shall be received or considered by the disciplinary committee.” Further, we find the respondent’s request to refrain from taking any action concerning his license to be unsupported by Judiciary Law § 90(2-a)(d) which, in pertinent part, states that “the license to practice law in this state of an attorney admitted to practice shall be suspended by the appellate division if, at the hearing provided for by paragraph b of this subdivision, the licensed attorney fails to present proof of payments as required by such subdivision.”

...we conclude that the procedural requirements under Judiciary Law § 90(2-a)(b) were satisfied, and the respondent failed to appear at the hearing and present proof that full payment of all child support arrears as established by the Family Court’s order dated September 16, 2016, to be due have been paid. Accordingly, on the Court’s own motion, effective immediately, pursuant to Judiciary Law § 90(2-a)(d), the respondent is suspended from the practice of law (see Matter of Updegraff, 242 AD2d 119).

(Mike Frisch)

September 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

An Ethical Violation Or A Disgruntled Former Partner?

The Illinois Administrator has filed a complaint alleging conflicts of interest and dishonesty on the part of the accused attorney.

The Herald-News reported

A state regulatory commission has accused a local lawyer of taking kickbacks in an alleged scheme that increased the fees his clients paid for real estate surveys.

The complaint against Gary K. Davidson, a regulatory action that could affect his law license, was filed by the Illinois Attorney Registration and Disciplinary Commission.

It also has unsurfaced a legal fight between Castle Law and Frank Andreano, a Joliet attorney who left the firm in 2016 and took evidence of the surveyor fees to the ARDC.

Davidson heads the real estate department of Castle Law, a firm with offices in Joliet and Homer Glen, according to the ARDC complaint filed Aug. 31.

The complaint states that Davidson made an agreement "to refer substantially all property surveys in connection with his real estate practice at Castle Law to Winemiller & Associates," a surveying business in Homewood headed by Samuel Winemiller.

"Respondent (Davidson) further agreed that Winemiller would increase his average surveyor charge of $300 to $475, which amount would include $100 that would be submitted to Respondent by Winemiller after the closings," the complaint states.

The arrangement was made for 225 real estate closings between July 29, 2014, and May 20, 2016, the complaint states, listing the addresses of the properties affected.

The complaint states that the arrangement violated the Real Estate Settlement Procedures Act, which "prohibits any fee, kickback or other thing of value" for referring services involved in a federally regulated mortgage.

Davidson could not be reached for comment on Tuesday, and Winemiller declined to comment.

A partner at Castle Law, Edward Jarot Jr., sent a statement in response that said in part, "To the extent any surveyor fees were paid there were always services provided in connection with those fees, and the surveyor fees never resulted in any increased cost to the clients, as the $475 survey charge is within the range of costs charged by surveyors in the area."

The statement also blames the allegations on Andreano, calling him "a disgruntled member of Castle Law, who forwarded the complaint the morning he left the law firm."

Andreano said he did refer evidence to the ARDC concerning the real estate deals.

"They investigate these independently," Andreano said. "I referred it to them. But what they do with it after that is they investigate them."

Andreano said he did his own "internal investigation" into the surveyor fees while at Castle Law, which contributed to his separation from the firm.

"Unfortunately, the evidence that was submitted is true, and Mr. Jarot knows it's true." he said.

Jarot's statement says that the ARDC complaint is connected to civil litigation between Castle Law and Andreano. Andreano said he and another lawyer who left the firm at the same time, Ted Hammel, are in litigation against Castle Law, but the lawsuit is not related to the ARDC charges.

Andreano said he had no role in another count in the ARDC complaint, which accuses Davidson of falsely reporting that he had complied with Illinois Supreme Court rules requiring 30 hours of continuing legal education in a two-year period ending June 30, 2016.

(Mike Frisch)

September 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Contingent Fee In Workers' Comp Case Draws Bar Charges

The Illinois Administrator has charged an attorney with charging an unreasonable fee in a workers' compensation matter involving a client who had four fingers amputated employer must automatically pay any employee who was injured at its place of employment. The Act pre-determined the dollar-amount that an employer must compensate its worker, for each body part that was injured, permanently or temporarily, partially or fully. At the time of Hooker's injury, the Act valued the permanent partial disability rate for 100% loss of use of a hand at $101,323.50.

Charter Steel never disputed liability for Hooker's injury and never communicated to Respondent, or to Hooker, that the company was disputing liability. On January 12, 2015, Charter Steel, through its insurer, The Hartford, sent Hooker its check number 1234871238, which had been made payable to Hooker's order in the amount of $101,323.50, the full amount Hooker was eligible to receive under the Act for the loss of the use of his hand. Hooker contacted Respondent when he received the check.

At the time that Respondent learned of the issuance of The Hartford's check in the amount of $101,323.50, Respondent had performed no further substantial services for Hooker, other than filing the Application. Also as of that time, Charter Steel had not disputed liability, thus limiting Respondent's attorney's fee for her representation of Hooker in the workers' compensation case, pursuant to the Act, to $100, and not to the 1/3 contingency fee that Respondent and Hooker had originally agreed to.

On January 23, 2015, Hooker met Respondent at MB Financial Bank, endorsed the check and tendered it to Respondent. Respondent then deposited the check in her client trust account at MB Financial Bank, which ended in the four digits 1293, and was entitled "Joan A. Hill-McClain, IOLTA Account." Shortly after that bank visit, Respondent wire-transferred $81,323.50 to Hooker. Respondent retained the balance of the check proceeds, $20,000, as a purported payment of her attorney's fees, and deposited it in to her personal account at MB Financial Bank, which ended in the four digits 1989, and was entitled "Joan A. Hill-McClain." Respondent then drew funds from Hooker's $20,000 in payment of her business or personal obligations.

At no time had Respondent obtained authorization from the Workers' Compensation Commission to take $20,000 in attorney's fees from Hooker's check.

At no time had Respondent provided Hooker with a written statement showing how she determined to take $20,000 in attorney's fees from Hooker's check.

Also alleged

Throughout 2015 and 2016, while Respondent was representing Hooker for injuries resulting from the October 20, 2014 incident, Hooker was not working and, as a result, was not actively earning any wages or salary.

During this time, Hooker asked Respondent for additional money so that he could submit monthly rental payments on his apartment in Chicago, buy groceries and purchase clothing for his child. Respondent agreed to provide financial assistance to Hooker and gave him a total of $2,100, by way of three personal checks totaling $1,500 and an additional $600 in cash.

Respondent's payments to Hooker were not court costs or expenses related to contemplated or pending litigation.

The matter came to light when the client retained new counsel. (Mike Frisch)

September 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Return Of The Fortune Cookie

The failure to supplement discovery responses regarding surveillance of the plaintiff in an accident case was sanction-worthy conduct in an opinion of the West Virginia Supreme Court of Appeals affirming the denial of a new trial motion by the defendant

...the record shows that the petitioner’s delay in supplementing discovery was egregious and much longer than two months. The petitioner retained the investigator weeks before he responded to discovery on December 4, 2015. During oral argument, the petitioner admitted that he never asked the investigator whether there were any surveillance materials before responding “none” to the request for production seeking such material. However, the investigator’s photo log reveals that he took photographs on November 17, 2015. A couple of weeks later, on or about December 22, 2015, the investigator sent the petitioner a brief update to which he attached a few surveillance photos. Although the petitioner had just answered discovery requests earlier that month, indicating there were no surveillance materials, he did not supplement his discovery responses at that time.19 Instead, counsel directed the investigator to conduct additional, more intensive surveillance, which was done mid-February 2016. When the petitioner’s counsel received the investigator’s report, including surveillance photos and video, in early March 2016, he decided the material was unhelpful and set it aside. Again, he did not supplement his discovery responses. In fact, it was not until the respondent’s counsel became suspicious that surveillance existed and reminded the petitioner’s counsel of the discovery request concerning surveillance that the petitioner finally supplemented his discovery responses. This procedural history lends little support for the petitioner’s arguments.

The sanction was an order to pay the costs of calling the investigator s as a trial witness, rejecting the defendant's work product claim

even if the trial court’s ruling that allowed the respondent to call the investigator as a fact witness at trial were a discovery sanction, rather than an evidentiary ruling, it would have been within the trial court’s discretion to impose such sanction under the particular and unique set of facts outlined above.

(Mike Frisch)

September 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Before Suspension There Is Censure

A censure was recently imposed by the New Jersey Supreme Court.

The Disciplinary Review Board had recommended the sanction, noting the state of normative discipline in the Garden State

We now turn to the appropriate discipline for respondent’s violations of RPC 1.15(a), RPC 1.15(d), RPC 8.1(a), and RPC 8.4(c). Recordkeeping irregularities ordinarily are met with an admonition...

Knowingly making a false statement of material fact ordinarily requires a reprimand [editors note: really?]...

Generally, the discipline imposed in matters involving misrepresentations to ethics authorities ranges from a reprimand to a term of suspension, depending on the gravity of the offense, the presence of other unethical conduct, and aggravating or mitigating factors..

Here, although the special master relied on Katsios in recommending a term of suspension, respondent lacked the intent to deceive the OAE with the falsified bank records, rendering his conduct less egregious. Nevertheless, respondent’s  misconduct was serious and protracted. In mitigation, respondent has been practicing for more than forty years and has no history of discipline. In aggravation, respondent pretends to accept responsibility for his misconduct, yet continues to blame everyone but himself for how the violations occurred and for misconduct that properly should be laid at his feet. After balancing the aggravating and mitigating factors, we determine to impose a censure.

(Mike Frisch)

September 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 26, 2017

Dishonesty To Law Firm Draws Suspension

The Colorado Presiding Disciplinary Judge approved a conditional admission of misconduct and imposed a three-year suspension

 Barker, a specialist in the field of oil and gas litigation, joined a law firm as an independent contractor in 2014. Under the terms of her employment agreement, she was to divide client fees with the law firm. Barker built a personal and separate client base using the firm’s assets and referrals. She also used the firm’s resources to represent these clients. Barker modified invoices created in the firm’s billing software, instructing clients to remit payments to her own home address. She failed to disclose to the firm that she maintained these clients. She further failed to remit to the firm the portion of earned fees called for in her employment contract, thereby knowingly converting funds belonging to the firm.

In 2016, Barker joined a new law firm in an "of counsel" position. She falsely told the firm that she had not been subject to any recent disciplinary grievances. The firm terminated its association with her in 2017, when she disclosed to the firm a pending disciplinary proceeding.

Through this conduct, Barker violated Colo. RPC 4.1(a) (a lawyer shall not, in the course of representing a client, knowingly make a false statement of material law or fact to a third person) and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). A three-year suspension, rather than disbarment, was deemed appropriate in this case due to Barker’s unusually significant personal and emotional problems, as demonstrated by an independent medical examination.

(Mike Frisch) 

September 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 25, 2017

Ghetto Comment Violated Rule 8.4(g)

An attorney's conditional admission of misconduct accepted by the Colorado Presiding Disciplinary Judge acknowledged a violation of Rule 8.4(g) and the sanction of public censure

In 2015, [attorney] Wareham represented a woman with two children in a dissolution matter in Douglas County. The court held a hearing in July 2015, during which appointment of a child and family investigator was discussed. As part of that discussion, the judge made a passing and oblique reference to the possible involvement of the Colorado Department of Human Services.

Later that day, Wareham’s client called him about her fifteen-year-old son, who she said was “being really unruly.” She asked Wareham to talk to the son, who she said was listening to the conversation via speaker phone. Wareham responded that during the hearing earlier that day, the judge had said she “will call in the Department of Human Services and she will place [the son] under the custody of the state” if he “doesn’t get himself under control.” Wareham continued, “If he doesn’t want to be placed in foster care, he better start behaving.” Later in the conversation, Wareham told the son: “You will obey your mother . . . . You go to [ ] a Christian high school. You’re behaving like some kid out of the ghetto.” There is no indication that the son had ever been involved in any delinquency action.

Through his comments, Wareham violated Colo. RPC 4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person). In addition, by making comments exhibiting a bias against the client’s son on account of his race, Wareham violated Colo. RPC 8.4(g) (in representing a client, a lawyer shall not engage in conduct that exhibits bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process).

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Firing Offense

The Illinois Supreme Court filed a number of actions in bar discipline matters last week such as

In re RAYMOND EDWARD CLUTTS, Attorney Number 6186587 1111 North Plaza Drive, Suite 405 Chicago, Illinois  60173-4981

File Information:  M.R. 28794; 2017PR00048

Mr. Clutts, who was licensed in 1984, was disbarred. He entered the home of his former spouse and his daughter while armed with a gun, and fired the gun in the direction of his former spouse. He was convicted of attempted home invasion and aggravated discharge of a firearm.


In re D.G. DONOVAN, Attorney Number 3127050 124 North Nova Road #5020 Ormond Beach, FL 32174-5122

File Information: M.R. 28848, 2015PR00129

Mr. Donovan, who was licensed in 1980, was suspended for six months. While involved in a dispute with a condominium association, he sent an e-mail to the association president, threatening to hit an association board member on the head or legs with a crowbar, in an attempt to have the association president contact an upstairs unit owner to fix a purported leak that was affecting his deceased mother’s unit. He also made a false statement about having paid for groceries when questioned by a store manager who saw him place unpaid groceries into a grocery cart. The suspension is effective on October 13, 2017.

 In re JAMES WINDSOR EASON, Attorney Number 6281329 124 Gay Avenue, Suite 200 St. Louis, Missouri 63105-3620

File Information: M.R. 28824, 2017PR00060

Mr. Eason was licensed in Illinois in 2003 and in Missouri in 2005. He was indefinitely suspended in Missouri, with the suspension entirely stayed in favor of a one-year period of probation, after he was convicted of third degree assault for pushing opposing counsel into a glass table during a deposition. The Illinois Supreme Court imposed reciprocal discipline and suspended Mr. Eason for six months and until further order of the Court, staying the suspension in its entirety by a one-year period of probation, nunc pro tunc to May 23, 2017, and until he completes his period of probation in the State of Missouri.

In re THEODORE EDWARD MALPASS, Attorney Number 6182120 901 Dove Street, Suite 120 Newport Beach, California  92660-3023

File Information: M.R. 28847, 2017PR00068

Mr. Malpass was licensed in Illinois in 1982 and in California in 1984. The Supreme Court of California entered an order suspending him for two years, and staying the suspension after 90 days in favor of a three-year period of probation, subject to conditions, for improperly receiving $42,000 in fees to represent clients in a bankruptcy matter without obtaining the approval of the bankruptcy court, and for failing to follow a bankruptcy court order directing him to refund the fees to his clients. In addition, the Supreme Court of California entered an order suspending him for one year, and staying that suspension in its entirety in favor of a one-year period of probation, subject to conditions, for striking the face of a female acquaintance assisting him in clerical work, and for failing to report a resulting battery conviction to disciplinary authorities. The Supreme Court of Illinois imposed reciprocal discipline and entered an order suspending him from the practice of law in Illinois until he is reinstated to the practice of law in California, and, should he be reinstated to the practice of law in that state, suspending him for two years, with that suspension stayed after 90 days in favor of a three-year period of probation, nunc pro tunc to the date discipline was effective in California, subject to the conditions imposed by the Supreme Court of California and until the successful completion of the conditions imposed in California.

(Mike Frisch)

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

From The Last Stop Bar To Disbar

An Illinois attorney is seeking disbarment by consent for an alcohol-related driving incident

On December 4, 2015, Movant, after consuming two drinks at the Last Stop Bar in Dixon, was driving southwest on state Route 2 when he attempted a left turn on River Road and caused a collision with a another motor vehicle that was being driven by Daniel Coers ("Coers"). The collision caused massive damage to both vehicles.

As a result of that collision, Coers suffered a severe ankle sprain and is required to wear a device that will be permanently attached to his ankle in order to provide stability.

After the accident, Respondent was taken to the hospital and submitted to a mandatory blood draw. An analysis of Movant’s blood showed that he had a blood-alcohol concentration ("BAC") of 0.15%, or approximately twice this State’s limit of 0.08%.

On September 7, 2016, following a preliminary hearing and the court’s subsequent finding of probable cause, the Lee County State’s Attorney’s Office charged Respondent by way of information with four counts of aggravated DUI. The matter was docketed in the Fifteenth Judicial Circuit in Lee County as People of the State of Illinois v. James M. Allen, 15-CF-258.

On January 5, 2017, Movant entered into a plea agreement with the State and pled guilty to count one of the information, a Class 4 Felony, in violation of 625 ILCS 5/11-501(a)(2) and (d)(1)(C). On that same day, the court sentenced Movant to 180 days in county jail (with 136 days credit based on Movant’s actual time in custody), 24 months of probation, fines in the amount of $2,420, and a Continuous Alcohol Monitoring ("SCRAM") device to be installed on Movant’s person for a period of one year after his release from jail.

At the time this statement of charges was filed, Movant had been subject to two prior disciplinary proceedings: he was first suspended in 1999 for a period of nine months, with the suspension stayed in full, following his conviction of aggravated DUI for which Movant was sentenced to 24 months in prison. (see In re Allen, 96 CH 643, M.R. 16110) Movant was suspended again in 2002 for a period of 90 days for converting approximately $900 in client funds and failing to reduce a contingency fee to writing. (see In re Allen, 01 CH 25, M.R. 17930).

A stiff sanction. (Mike Frisch)

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Bankruptcy Misconduct and Default Equals Disbarment

The North California Record has the story of a recent Nevada disbarment

Nevada attorney Mary Lynn Wyatt has been disbarred by the California State Bar over allegations involving 16 counts of misconduct in two client matters, none of which she contested, according to a recent decision.

In addition to recommending Wyatt be disbarred, the state bar also recommended she be ordered to pay $4,606, plus interest in restitution to the two clients, according to the eight-page decision and order of involuntary inactive enrollment issued Aug. 10.

 Wyatt, of Carson City, Nevada, failed to participate in person or via counsel and state bar's decision and order for disbarment was entered by default. In cases such as this, when an attorney fails to participate in a California State Bar disciplinary proceeding despite adequate notice and opportunity, the bar invokes Rule 5.85, which provides the procedure for the state bar to recommend an attorney’s disbarment.

The bar's decision is pending final action by the California Supreme Court, an appeal before the bar's Review Department or expiration of time in which parties to may request further review within the State Bar Court.

Wyatt was admitted to the bar in California on Sept. 29, 1993, according to her profile at the state bar's website.

In one of the two client matters, Wyatt allegedly failed to file a bankruptcy petition on her client's behalf and to respond to the client's multiple status inquiries, according to the decision and order. She also allegedly failed to make deposits in her client trust fund on the client's behalf and to refund unearned fees after she terminated her employment as counsel to the client May 1, 2016.

Wyatt's profile lists a previous discipline against her by the state bar. In May 2008, Wyatt, then practicing in Encino, received a suspended one-year suspension and was placed on two years' probation after she stipulated to three counts of misconduct, according to information on her state bar profile. Those allegations of misconduct stemmed from a divorce petition she filed on behalf of a client.

Wyatt's health issues, the death of her mother and the doctor's care she was receiving for stress and grief-related issues were considered mitigating factors in that discipline, according to information on her state bar profile.

(Mike Frisch)

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)