Friday, May 24, 2024

Not With The Program

The Indiana Supreme Court has ordered service of a stayed portion of a sanction.

On April 11, 2024, the Commission filed a verified motion to revoke Respondent’s probation, averring that Respondent declined to sign a JLAP monitoring agreement and was not participating in JLAP services. Respondent has filed no response to the Commission’s motion, and her failure to do so is deemed an admission of the Commission’s allegations. See Admis. Disc. R. 23(16)(c)(2).

Being duly advised, the Court GRANTS the Commission’s motion and revokes Respondent’s probation. Respondent shall be suspended from the practice of law for a period of not less than 60 days, without automatic reinstatement, beginning July 5, 2024.

The misconduct was described in a January 2024 order

 In July 2021, Respondent was convicted of operating a vehicle while intoxicated with endangerment and leaving the scene of an accident, both misdemeanors. In September 2022, Respondent pled guilty to two separate misdemeanor counts of criminal trespass. A little over two weeks after her guilty plea, Respondent was charged with a probation violation for failing to report to the probation office, and she was arrested after she failed to appear for a hearing on that charge. Respondent's BAC was 0.354 at the time of booking. The next day, a second probation violation notice was filed alleging Respondent had failed to schedule a required substance abuse evaluation and had consumed alcohol on at least two occasions. Respondent was found to have committed the probation violations after an evidentiary hearing in March 2023, and Respondent's probation was extended to December 2023.

(Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Jeffrey Clark Responds

Jeffrey Clark has filed his post-hearing brief in the District of Columbia bar disciplinary case

This is an ethics case. To decide whether Respondent violated Rule 8.4, the Hearing Committee must first determine that Mr. Clark’s conduct on behalf of his client, including the draft letter proposed but never sent on behalf of that client, breached a duty to the client or to a court.

This case arises from a factual and policy dispute among the highest-ranking lawyers in the Justice Department (“DOJ”). The Attorney General, and those  appointed as Assistant Attorneys General “shall give [their] advice and opinion on questions of law when required by the President.” 28 U.S.C. §511, 506. The only person with authority to resolve the policy dispute was President Trump, and he did so in a meeting in the Oval Office. The President never complained about Mr. Clark’s advice or conduct.

The Rules are explicit: “A lawyer shall abide by a client’s decision concerning the objectives of the representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued.” Rule 1.2(a). Under Rule 1.2(d): “A government lawyer’s authority and control over decisions concerning the representation may, by statute or regulation, be expanded beyond the limits imposed by paragraphs (a) and (c).”

Here the client was the President of the United States in his official capacity, who, pursuant to U.S. Const. Article II §1 is the Executive Branch. President Trump was therefore “the highest authority [in the Executive Branch] that [could] act on behalf of the [United States] as determined by applicable law.” Rule 1.13(b). Clark,  Tr. 527.

Since the President was the client, ODC has no case against Respondent. Mr. Clark sought “zealously and diligently within the bounds of the law,” Rule 1.3, to keep the President informed during a time when there were major disagreements over the facts and over the wisdom of using powers vested in the DOJ. Rule 1.4. It is undisputed that the President asked for Mr. Clark’s advice. In providing it, Mr. Clark consistently sought to “exercise independent professional judgment and render candid advice.” Rule 2.1. Reviewing all cases in the D.C. Court of Appeals (“DCCA”) applying Rule 8.4, we find none where ethics charges were brought over a rancorous policy dispute within an organization. Nor have we found any case of “attempted dishonesty” in any document, much less a draft, that laid bare the essence of that policy dispute. Nor have we found any case in which ODC sought to penalize an attorney for doing what is required by Rule 1.13 when such disputes arise.

I expect that Disciplinary Counsel will reply challenging the premise that a junior officer (or any officer) of the Department of Justice functions as an attorney who represents a President as a client.

I also expect them to challenge the premise that this was a "policy dispute" and not an attempt to subvert democracy.

There is no comparable prior case because nothing remotely like this has ever occured in the past. (Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Illinois Sanctions Attorneys

The Illinois Supreme Court has released summaries of recent decisions in a bar discipline cases.

High (or low) lights

Ms. Hale was licensed in Nevada in 2000 and in Illinois in 2013. Nevada disciplinary authorities publicly reprimanded her for a conflict of interest arising from her personal relationship with a physician she employed as an expert in three personal injury cases and for paying that physician for services from her trust account even though she did not have the appropriate clients' funds in the account. The Supreme Court of Illinois suspended Ms. Hale for 30 days in light of her two prior instances of reciprocal discipline in Illinois. The suspension is effective on June 13, 2024.

Mr. Goldblatt was licensed in California in 1979 and in Illinois in 1980. The Supreme Court of California suspended him for one year, with the suspension stayed after 120 days by an eight- month term of probation after he was convicted of creating a public nuisance and using offensive words. Mr. Goldblatt was arrested for masturbating in his yard in view of a neighbor. Because Mr. Goldblatt is currently suspended from the practice of law in Illinois for prior misconduct, the Supreme Court of Illinois imposed reciprocal discipline and required him to demonstrate that he has successfully completed the terms of his California probation before seeking reinstatement to the practice of law in Illinois.

Mr. Caraway, who was licensed in 2007, was disbarred. He misappropriated more than $375,000 belonging to six different clients, including funds that were to be used for the benefit of a disabled adult and minor children. He also failed to refund a $3,500 unearned fee and made misrepresentations to a client in a separate breach of contract matter.

Mr. Zaba, who was licensed in 2010, was suspended for 60 days. He incorporated a mortgage company in 2015, which required him to submit annual financial statements to the Illinois Department of Financial and Professional Regulation. For the years 2017 through 2022, he submitted financial statements that he falsely claimed had been prepared or audited by an accountant. The suspension is effective on June 13, 2024.

Mr. Kehoskie, who was licensed in 2006, was suspended for six months, with the suspension stayed in its entirety by a two-year period of conditional probation. Between 2015 and 2019, Mr. Kehoskie was involved in three incidents in which he was charged with domestic battery and other offenses. One of the criminal charges was dismissed after completion of a diversion program. In the other two matters, Mr. Kehoskie pled guilty to a reduced charge of disorderly conduct and was placed on probation.

Mr. Azhari, who was licensed in 2007, was censured by the Court. He represented a client who was charged with telephone harassment in a criminal case and, while the representation was ongoing, he engaged in a sexual relationship with the client.

Mr. Messner, who was licensed in 1978, was disbarred. Over a period of more than five years, he assisted his corporate client and its owner in committing tax fraud by hiding his clients’ taxable income from taxing authorities. He also hid his clients’ income from the attorney who represented the client’s wife in the owner’s ongoing dissolution of marriage case.

(Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Not Strikingly Inconsistent

Reciprocal discipline was imposed by the New York Appellate Division for the First Judicial Department for a sanction imposed in New Jersey for misconduct in a matter involving Respondent's child

Here, respondent, among other things, (1) removed his two or three-year old daughter from Kentucky to New Jersey without the mother’s consent, requiring the mother to file an emergency motion in Kentucky and retain counsel in two jurisdictions; (2) filed an amended complaint in a previously dismissed New Jersey proceeding without first seeking leave from the court; (3) issued three subpoenas, captioned under the dismissed proceeding, on the mother’s former and current employers and failed to serve the mother or her counsel with a copy of the subpoenas; (4) entered into an agreement with the mother requiring her to withdraw her disciplinary complaints against him; and (5) refused to withdraw the improper subpoenas and appeal in New Jersey.

Under the circumstances, reciprocal discipline consistent with that imposed by the New Jersey Supreme Court, i.e., a one-month suspension from the practice of law, is not “strikingly inconsistent with this Court’s own precedent involving similar misconduct” (Matter of Jauregui, 175 AD3d 34, 38 [1st Dept 2019]).

(Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

A Rare Occasion

A reciprocal discipline matter involving a Tennessee public censure drew a more severe sanction from the New York Appellate Division for the First Judicial Department

The AGC and respondent, however, fail to fully acknowledge the gravity of respondent’s misconduct. Respondent’s client retained him to prevent the loss of her home to foreclosure. Respondent then negligently mishandled the matter by taking no action, respondent’s client lost ownership of her home, and respondent then told her that she should remit a further fee so that respondent could fix his own mistake. Furthermore, even after she paid the further fee, respondent still did nothing to fix the situation, ultimately telling her that she could simply try to lease her home from its new owner. This Court has previously suspended an attorney for such misconduct (Matter of McHale, 162 AD3d 117 [1st Dept 2018] [in reciprocal discipline matter, suspending attorney for three months after she practiced in federal Bankruptcy court without authorization, and noting that “the flagrant mishandling of [the debtor’s] bankruptcy case lost her the opportunity to try and save her home where she lived with her four children and grandchild, which was her stated goal in filing for bankruptcy relief”]). In view of the aggravating circumstances described, this matter presents the rare occasion wherein the sanction of the original jurisdiction ought to be departed from.

Accordingly, the AGC’s motion for reciprocal discipline predicated on discipline imposed by the Supreme Court of Tennessee should be granted to the extent that respondent is suspended from the practice of law in the State of New York for a period of three months and until further order of this Court, effective June 24, 2024.

(Mike Frisch)

May 24, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 23, 2024

Resignation Accepted

The Alberta Law Society Resignation Committee accepted an attorney's resignation

Greg Lintz is a 67-year-old lawyer who practiced in Edmonton. He was admitted to the Alberta bar in 1981. Over a period of approximately four to five years, Mr. Lintz collaborated with Shawn Beaver, an Edmonton lawyer who was suspended by the LSA in 2015 and subsequently disbarred in 2017. Between 2015 and 2020, their collaboration involved Mr. Beaver referring nine clients to Mr. Lintz who then facilitated Mr. Beaver retaining some significant involvements in the files. Upon being contacted by the LSA about this collaboration in December 2020, Mr. Lintz ceased the collaboration and thereafter cooperated with the LSA in its investigation. A hearing on this matter was initially set for November 2023, but at that time Mr. Lintz, who is dealing with a medical condition, determined to resign and close his practice by the end of the year, resulting in this proceeding. Mr. Lintz entered into undertakings with the LSA covering a number of related matters, including that he would not re-apply to the LSA for admission to the LSA (Undertaking). 

Respondent is an inactive attorney with no prior discipline.

Facts

Mr. Lintz executed a Statement of Admitted Facts (Statement) on October 31, 2023. In the Statement, Mr. Lintz acknowledged that he facilitated legal work being done by Mr. Beaver while he was suspended or disbarred by granting access to his firm's resources and the support of his legal assistant. This included allowing Mr. Beaver to, inter alia, prepare arguments, pleadings and legal briefs, meet with clients and provide legal advice and opinions, take instructions from clients, review disclosure and other client documents, and script emails and letters to other counsel with the intent that Mr. Lintz's name be inserted. 

The Statement also confirmed that, while Mr. Lintz did not pay Mr. Beaver, he also made no effort to inquire as to what Mr. Beaver's arrangements were with the clients. It also confirmed that Mr. Lintz and Mr. Beaver discussed fees, client files, litigation strategy, pleadings and other documents and exchanged disclosure materials. It appears that all of the nine clients were aware of Mr. Beaver's ongoing involvement in their matters. 

Resignation

Based on the evidence established by the Statement, and taking into account that even if the citation had been proved, it would be unlikely that the conduct would attract disbarment, the Committee determined that it was in the best interests of the public to accept the application of Mr. Lintz to resign pursuant to section 32, effective as of March 12, 2024, the date of the confirmation by the Trust Safety department that the outstanding conditions (referenced in paragraph 4) were fulfilled by Mr. Lintz.

(Mike Frisch)

May 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Colorado Sanctions Attorney

A stipulated six-month suspension with proof of rehabilitation has been approved by the Colorado Presiding Disciplinary Judge

Peterson represented a pregnant client in a personal injury suit arising from the client’s fall in a local store. They signed a contingency fee agreement, and the client agreed to settle the case. Peterson and the client also discussed the possibility of representing the client’s newborn son; Peterson eventually sent the defendant’s insurer a demand letter on the son’s behalf, even though Peterson never entered into a separate fee agreement to represent the son. During the representation, Peterson sent the client settlement correspondence from an entirely unrelated matter. Later, Peterson sent the client a letter encouraging her to seek opinions from other counsel. While the letter did not explicitly terminate the attorney-client relationship, both Peterson and the client understood the letter to do so. But Peterson did not notify the defendant’s insurance agent about the termination, and the agent refused to speak to the client.

When Peterson sent disciplinary authorities information about his trust account during the investigation of the matter, he failed to redact checks and information regarding other clients.

In another client matter, Peterson represented a landlord in an eviction matter, but he did not give the client a fee agreement. Peterson has not been able to produce an accounting of the client’s payments or any trust account reconciliation records from the period of the representation. The client ultimately terminated the attorney-client relationship.

Disciplinary authorities also received an insufficient funds notice in November 2023 regarding Peterson’s trust account. Peterson blamed his bank for inaccurately reporting to him how much money he held in his trust account. Disciplinary authorities asked Peterson for his internal accounting records, checks, and reconciliations from the relevant timeframe, but Peterson refused to provide them, invoking the Fifth Amendment.

Finally, during the disciplinary investigation of these matters, Peterson copied a lawyer for disciplinary authorities on an email chain with a client; the emails were entirely unrelated to the matters under investigation and revealed information related to the representation of that client.

(Mike Frisch)

May 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Sanction Vacated For Alex Jones Attorney

The Connecticut Appellate Court has remanded the sanctions imposed on Alex Jones's attorney and ordered a new hearing before a different judge

The plaintiff in error, Norman A. Pattis, a Connecticut attorney and counsel of record for the defendants, Alex Emric Jones and Free Speech Systems, LLC, in the underlying consolidated tort actions arising out of the mass shooting at Sandy Hook Elementary School, filed this writ of error challenging the order of the trial court suspending him from the practice of law for a period of six months after determining that he had violated the Rules of Professional Conduct. Pattis claims that the court (1) violated his procedural due process rights in initiating, sua sponte, disciplinary proceedings against him, pursuant to its inherent authority to discipline attorneys, on the basis of conduct that occurred outside of its presence, (2) improperly denied his motion to disqualify the Honorable Barbara N. Bellis from presiding over the disciplinary proceedings, (3) improperly determined that he had violated the Rules of Professional Conduct, and (4) imposed an arbitrary and disproportionate disciplinary order. We reject Pattis’ first two claims, but we conclude that the court incorrectly found that he violated certain provisions of the Rules of Professional Conduct. Accordingly, we grant in part the writ of error and remand the matter to the court to vacate the improper findings, as well as the attendant disciplinary order, and to conduct a new hearing on sanctions before a different judge.

Due process

Pattis does not contend that the court deprived him of sufficient notice or of a meaningful opportunity to be heard with regard to the show cause order. Instead, applying the Mathews factors, Pattis asserts that, ‘‘[i]n order to provide sufficient due process, a court’s institution of disciplinary proceedings should . . . [be] limited to conduct that occurs in its presence and not for what a judge might hear or see in the news.’’ We disagree...

In sum, after weighing the Mathews factors, we are not persuaded that due process mandates the imposition of a constraint on the Superior Court’s inherent authority to regulate and to discipline attorneys by drawing a distinction between conduct that occurred before the court and conduct that transpired outside of its presence. We conclude that the court did not violate Pattis’ procedural due process rights in initiating, sua sponte, disciplinary proceedings against him on the basis of conduct that occurred outside of its presence, and, therefore, we further conclude that Pattis has failed to demonstrate a violation of his constitutional rights as required under the third prong of Golding.

Disqualification

We reject Pattis’ claim that Judge Bellis’ statements during the August 10, 2022 hearing discussing the reviewing committee’s dismissal of the June 12, 2019 grievance complaint and informing the parties of her decision to conduct the disciplinary proceedings directly are sufficient to cause a reasonable person to question her impartiality. Judge Bellis explained on the record that her recitation of the background of the case, including the reviewing committee’s dismissal of the June 12, 2019 grievance complaint, constituted an effort to conduct ‘‘fair and transparent’’ disciplinary proceedings and to accommodate Pattis’ counsel, who had recently appeared on behalf of Pattis and who had requested a continuance of the proceedings for medical reasons. Judge Bellis further stated that she was notifying the parties of her intent to preside over the disciplinary proceedings directly ‘‘in the interest of candor. . . .’’ Put simply, on the basis of the record, we cannot conclude that Judge Bellis’ impartiality might reasonably be questioned. Accordingly, we conclude that Pattis has failed to demonstrate that Judge Bellis abused her discretion in denying his motion to disqualify.

The ethics violations found below were based on his handling of discovery information

On the basis of these largely undisputed facts, the court concluded that ‘‘[Pattis] was obligated to safeguard the plaintiffs’ sensitive information by identifying it as such, and, when transmitting such information to an authorized recipient, informing the recipient accordingly. Furthermore, [Pattis] was bound to comply with the provisions of the protective order, which were clear and unambiguous. [Pattis] was on notice of the need to safeguard the records by virtue of the court’s written order stating the court’s ‘grave concerns’ that the . . .plaintiffs’ confidential mental health and other medical records would be improperly disseminated, the plaintiffs’ counsel’s repeated concerns, both orally and in writing, regarding [the plaintiffs’] confidential information, and Wolman’s written warning to [Pattis] on March 28, 2022. Despite all of this, [Pattis], incredibly, knowingly released the records to Lee and Reynal. Not only did he improperly release the records to Lee and Reynal, but he did so carelessly, taking no steps to designate the materials as protected by court order, mark them as confidential, or inform the recipients that they were in possession of sensitive and protected documents. Ultimately, [Pattis’] improper dissemination of the records, in conjunction with his failure to maintain the records in a safe and secure manner, led to the . . .plaintiffs’ most private information being improperly released to Lee, Reynal, and then Bankston, none of whom were counsel of record in any of the . . . Connecticut cases.’’

The trial but correctly found a Rule 1.1 (competence) violation but not the rule on safeguarding property

we conclude that the court, as a matter of law, incorrectly applied rule 1.15 (b) to encompass the plaintiffs’ confidential records. Accordingly, we further conclude that the court improperly determined that Pattis violated rule 1.15 (b).

And

we conclude that the record does not establish by clear and convincing evidence that Pattis knowingly violated the protective order. Accordingly, we further conclude that the court incorrectly determined that Pattis violated rule 3.4 (3).

But

we (1) reject Pattis’ claim that the court incorrectly determined that he violated rule 5.1 (b) and (c) insofar as Pattis exercised supervisory authority over Atkinson but (2) conclude that the court improperly determined that Pattis violated rule 5.1 (c) to the extent that Pattis acted as Reynal’s sponsoring attorney in Connecticut.

And

In the present case, Pattis’ misconduct in permitting the disclosure to unauthorized individuals of the plaintiffs’ personal and sensitive information unilaterally imposed a significant cost on the plaintiffs in their attempt to obtain justice in this matter. In short, Pattis’ mishandling of the plaintiffs’ confidential records falls within the expansive range of misconduct encompassed by rule 8.4 (4).

In sum, we conclude that, as a matter of law, the court correctly applied rule 8.4 (4). Accordingly, we reject Pattis’ claim.

Remand

Pattis’ final claim is that the trial court’s disciplinary order suspending him from the practice of law for a period of six months was arbitrary and disproportionate. In light of our conclusion in part III of this opinion that the court improperly determined, in whole or in part, that Pattis violated rules 1.15 (b), 3.4 (3), and 5.1 (c) of the Rules of Professional Conduct, we further conclude that (1) the court’s disciplinary order, which was not predicated on Pattis’ violation of any particular rule, cannot stand, and (2) we must remand the case for a new hearing on sanctions before a different judge.

Final footnote

To be clear, our decision to remand the matter to a different judge should not be construed in any manner as calling into question Judge Bellis’ impartiality in conducting the disciplinary proceedings against Pattis.

Judge Ingrid Moll authored the unanimous opinion. (Mike Frisch)

May 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Failed Probation

The Louisiana Attorney Disciplinary Board rejected a proposed six-month suspension as unduly lenient and recommended a year and a day suspension of an attorney.

The attorney had been on probation and had that probation extended for additional misconduct

Considering all of the above, the Board finds that the Committee’s recommended sanction of a six-month suspension is too lenient. Respondent’s misconduct here reflects a continuing pattern of neglecting client matters even after Respondent was previously allowed a deferred suspension, then allowed a second chance with the extension of the probationary period, and then was cautioned by ODC after Mr. Ledet had to complain again to ODC after the probationary period was extended. Respondent has also shown repeated indifference to the disciplinary process. In this proceeding, Respondent did not answer the formal charges, allowing the factual allegations to be deemed admitted, did not file a memorandum addressing sanction with the hearing committee, did not file a brief to the Board, and did not appear for argument before the Board panel. In the probation revocation proceeding, Respondent did not file any response to ODC’s motion to revoke probation or make any other contact with the Board prior to the day of the hearing on the motion. In light of all of the circumstances presented here, the Board finds that Respondent should be suspended for one year and one day.

(Mike Frisch)

May 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

A Commitment To Sobriety

Dan Trevas reports on a decision of the Ohio Supreme Court

The Supreme Court of Ohio today issued the Bucyrus city law director a two-year, fully stayed suspension for ethical violations arising from two separate drunken driving arrests and subsequent probation violations.

Brian N. Gernert was appointed Bucyrus’ interim law director in October 2021. His criminal convictions and professional conduct violations occurred before his election to the post in November 2023.

In a per curiam opinion, the Supreme Court found that Gernert has demonstrated a “commitment to working toward [his] sobriety.” After comparing Gernert’s conduct to that of other attorneys and judges who had committed alcohol-related offenses, noting the limited effect that Gernert’s alcohol use had on his professional performance and weighing the character letters submitted by others active in the Bucyrus legal community, the Court determined an actual suspension from practicing law was not necessary to protect the public.

Following a May 2023 probation violation, Gernert’s probation was extended until November 2025. The Court stated it would revoke the stay of Gernert’s disciplinary suspension and make him serve the full two-year suspension if he violated the terms of his probation again. The Court also placed other conditions on Gernert.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the per curiam opinion. Justice Jennifer Brunner did not participate in the case.

Twice Convicted Lawyer Also Violated Probation Terms
In May 2022, Gernert was driving his SUV in Bucyrus around 10 p.m. when another driver called 911 to alert police to a possible intoxicated driver. The caller saw an SUV veer into a ditch, strike a utility pole, and drive away. A Crawford County sheriff’s deputy located Gernert’s vehicle and noticed it sustained heavy damage to the passenger side. Gernert told the deputy he only had a “drink or two.” The deputy attempted to have Gernert perform a field sobriety test, but Gernert lost his balance during the gaze test, and he was arrested on suspicion of operating a motor vehicle while under the influence of alcohol or drugs (OVI).

Once Gernert was in the deputy’s cruiser, the officer observed an open beer can and a bottle of whiskey on the floorboard of Gerner’s SUV. He noticed a large chunk of wood protruding from the fender area of the passenger side, which he presumed was from the utility pole. Another deputy found the broken passenger-side mirror from Gernert’s vehicle at the scene of the crash.

Gernert refused to take a breathalyzer test and was charged with OVI and refusal to submit to chemical testing.

Because of his position as interim law director, a special prosecutor and visiting judge were appointed to his case. He pleaded guilty to OVI, and the other charge was dismissed. He was sentenced to 180 days in jail, with 177 days suspended, and placed on two years of community control. He was prohibited from consuming alcohol and required to participate in the Ohio Lawyers Assistance Program (OLAP). His driver’s license was suspended for one year, but the Crawford County Municipal Court allowed him to drive to and from work as well as to medical, court, and counseling appointments.

Four months later, an Ohio State Highway Patrol trooper observed Gernert’s SUV weaving as he drove through Bucyrus around 11:30 p.m. He learned that Gernert had a suspended license with limited driving privileges, so he pulled Gernert over.

Gernert initially refused to leave the vehicle and slurred his speech while speaking to the trooper. When asked to exit the vehicle, Gernert responded, “Call my parents.” When the trooper told Gernert he would be charged with obstructing official business if he did not get out of the vehicle, Gernert opened the door and swung his legs out. He was not wearing shoes and braced himself against his SUV to exit. The trooper escorted Gernert to his patrol car, where Gernert failed a gaze test and refused to complete any additional sobriety tests.

At the county jail, Gernert again refused further testing and was charged with OVI, refusing a chemical test, driving under suspension, a seatbelt infraction, and a probation violation.

After five days in custody, Gernert was released and required to wear an ankle bracelet that would alert the probation department of any alcohol consumption.

In November 2022, he pleaded guilty to the OVI offense and all other charges were dropped. His probation from the May 2022 case was extended to November 2024, and his license was suspended for another year. This time, he did not apply for driving privileges.

Law Director Calls Off Case; Found Intoxicated at Home
In May 2023, Gernert was scheduled to prosecute a person for driving under suspension. About 10 minutes before trial, he called the municipal court clerk, who had difficulty understanding Gernert. The clerk surmised that Gernert wanted to dismiss the charges when Gernert indicated that he would “call off” the police officer scheduled to testify in the case.

The magistrate handling the case interpreted the call as a request for a continuance, which was denied, and the case was dismissed for failure to prosecute.

Later that day, a probation officer made an unannounced visit to Gernert’s home and found him “highly intoxicated.” Gernert admitted to drinking and was charged with a probation violation that led to his probation being extended to November 2025.

Gernert relapsed again in September 2023 and reported the violation to his probation officer. Gernert, who attended Alcoholics Anonymous meetings and counseling, would later testify that he had not consumed alcohol since October 2023.

Lawyer Violated Professional Conduct Rules
Based on his convictions and probation violations, the Office of the Disciplinary Counsel filed a complaint against Gernert in June 2023 with the Board of Professional Conduct. The parties stipulated, and the board agreed, that Gernert engaged in conduct that was prejudicial to the administration of justice when he failed to prosecute the driving under suspension case. The board also found that his conduct adversely reflected his fitness to practice law.

The Court adopted the board’s findings of misconduct and specified that “Gernert’s two OVI convictions and his failure, in his role as interim city law director, to prosecute a driving-under-suspension case due to his own intoxication adversely reflect on his fitness to practice law.”

Supreme Court Considers Sanction
When recommending a sanction in a disciplinary case, the board considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction. The board found Gernert engaged in a pattern of misconduct and committed multiple offenses. The board also reported that Gernert submitted nine character letters from attorneys, judges, and the Bucyrus mayor that conveyed Gernert’s diligence, honesty, and professionalism. The authors expressed the belief that with treatment, “Gernert would continue to be a productive member of Bucyrus’s small legal community,” the opinion stated.

The board noted that Gernert issued a public apology in the local newspaper following his second OVI arrest and contacted OLAP following his first arrest to start treatment. The board reported that Gernert has completed intensive inpatient and outpatient treatment programs.

The board indicated the letters from the Bucyrus legal community and mayor “uniformly describe him as a prepared and effective attorney and expressly note that to the authors’ knowledge, his alcohol use had not caused any impairment or adverse consequences in the performance of his professional duties.”

The board recommended, and the Court agreed, to stay Gernert’s two-year suspension under the condition that he remain in compliance with his OLAP contract; complete three hours of continuing legal education focused on alcoholism, substance abuse, and mental health issues; engage in no further misconduct; and comply with his probation terms. He must also serve two years of monitored probation under the supervision of another attorney. The Court also ordered Gernert to pay the costs of the disciplinary proceedings.

2024-0173Disciplinary Counsel v. GernertSlip Opinion No. 2024-Ohio-1946.

(Mike Frisch)

May 23, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 21, 2024

Alcohol And Driving Leads To Discipline

A stipulation to discipline in Colorado

The Presiding Disciplinary Judge approved the parties’ stipulation to discipline and suspended Denise M. Kay (attorney registration number 31266) for six months, all to be stayed pending her successful completion of a three-year period of probation. Kay’s probation will take effect only if and when her law license is reinstated from disability inactive status.

In March 2022, Kay backed into a parked car. Police responded and noted that Kay had bloodshot, watery, and glassy eyes, had difficulty with balance, and smelled of alcohol. Her blood alcohol content (“BAC”) measured 0.298. She was arrested for driving under the influence (“DUI”). In October 2022, Kay pleaded guilty to DUI and was sentenced to twelve months of probation with ninety days of jail, which was suspended pending her successful completion of probation, including monitored sobriety, alcohol treatment, and ten days of house arrest.

Kay struggled to comply. She reported to probation several times while under the influence of alcohol. While on probation, she was stopped by police in August 2023, as they suspected she was driving under the influence. She was instructed to pull into a nearby parking lot; she struck the patrol car while backing up. She also displayed signs of impairment and was deemed uncooperative. She was arrested for DUI and charged in Arapahoe County. Within three weeks, and hours after one of her court dates, she was again stopped by officers, who suspected she was driving under the influence after she lodged her car in a pile of landscape rocks at a grocery store parking lot. Officers observed several signs suggesting she was impaired. Via chemical test, her BAC registered as 0.297. She was arrested and charged with DUI.

While these two DUI charges were pending, Kay’s probation in the first DUI case was revoked for failing to comply with conditions. In January 2024, Kay agreed to a global disposition of all three cases, but the presiding court rejected the disposition as too lenient and expressed “grave concerns” about Kay’s conduct. After a pause in the proceeding, Kay returned to the courtroom, where the presiding judge questioned whether she was under the influence and ordered her to submit to a preliminary breath test. The test showed a breath alcohol content of 0.324. The judge held Kay in direct contempt and remanded her to county jail for three days.

In February 2024, Kay appeared in court again to resolve all three cases, pleading guilty to DUI as a second and third offense. She was sentenced to one year in jail, with forty-three days of credit served and work release authorized; twenty-four months of probation with monitored sobriety; alcohol evaluation and recommended treatment; eighty hours of public service; and a victim impact panel through Mothers Against Drunk Driving. Kay did not timely self-report her DUI convictions to regulatory authorities as she was required to do under C.R.C.P. 242.11(c)(1).

(Mike Frisch)

May 21, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Monday, May 20, 2024

Interim Suspension For Domestic Assault And Battery

An immediate interim suspension has been imposed by the Oklahoma Supreme Court

The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), has forwarded to this Court certified copies of the Information, Probable Cause Affidavit, and Judgment and Sentence in the following matters in Oklahoma County, Oklahoma: State of Oklahoma v. Kelly John Barlean, case no. CF-2021-3557, and State of Oklahoma v. Kelly Barlean, case no. CM-2022-4468. Pursuant to a plea agreement, the charge of felony Domestic Assault and Battery by Strangulation in case no. CF-2021-3557 was reduced to misdemeanor Domestic Assault and Battery. Following pleas of guilty to misdemeanor domestic assault and battery in the combined cases, the court deferred sentencing for 3 years until January 4, 2026.

Rule 7.3 of the RGDP provides: "Upon receipt of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and the judgment and sentence, the Supreme Court may by order immediately suspend the lawyer from the practice of law until further order of the Court." Having received certified copies of these papers and orders, this Court orders that Kelly John Barlean is immediately suspended from the practice of law. Kelly John Barlean is directed to show cause, if any, no later than June 4, 2024, why this order of interim suspension should be set aside. See RGDP Rule 7.3. The OBA has until June 18, 2024, to respond.

Rule 7.2 of the RGDP provides that a certified copy of a plea of guilty, an order deferring judgment and sentence, or information and judgment and sentence of conviction "shall constitute the charge and be conclusive evidence of the commission of the crime upon which the judgment and sentence is based and shall suffice as the basis for discipline in accordance with these rules." Pursuant to Rule 7.4 of the RGDP, Kelly John Barlean has until July 3, 2024, to show cause in writing why a final order of discipline should not be made. The written return of the lawyer shall be verified and expressly state whether a hearing is desired. The lawyer may in the interest of explaining his conduct or by way of mitigating the discipline to be imposed upon him, submit a brief and/or any evidence tending to mitigate the severity of discipline. The OBA has until July 18, 2024 to respond by submission of a brief and/or any evidence supporting the recommendation of discipline.

Footnote

Since entering the pleas in these cases, two protective orders (PO-2024-44 and PO-2024-45) have been entered against Respondent in Oklahoma County following testimony from his son and ex-wife regarding Respondent's conduct involving stalking and harassment. The protective orders are in effect until March 27, 2026.

Rowe, V.C.J. and Kauger, J., dissent. (Mike Frisch)

May 20, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 17, 2024

A "Relentless Barrage Of Incivility"

The Ontario Law Society Tribunal Hearing Division has revoked the license of an already suspended attorney

The respondent is currently suspended from practice on the basis of three distinct provisions. First, an indefinite suspension was imposed on him as of June 28, 2022 owing to his failure to comply with a Law Society investigation. Second, upon bringing himself into compliance with the investigative requests of the Law Society, he would then be subject to a one-month definite suspension imposed as a penalty for failing to provide the documents requested by the time of the merits hearing held on June 16, 2022: Barreau de l’Ontario v. Hamza2023 ONLSTH 15

The third and final basis for his suspension is that the respondent has not paid the costs awarded to the Law Society at the conclusion of that application, and accordingly he is also serving an administrative suspension until such time as he makes payment in the amount of $14,000.

Findings here

 In essence, despite numerous admonitions from a wide range of adjudicative and judicial officers, the respondent has consistently demonstrated his inability to understand or accept that he is required to take direction from those invested with the authority to regulate his behaviour in the course of legal practice. Despite having been found to lack integrity for failing to obey a court order, the respondent continues to demonstrate his belief that the judge who issued that order is instead accountable to him: the email mentioned in para. 12 which was sent to the Tribunal Chair (and the Attorney General of Canada) less than a week prior to the penalty hearing characterized that judge as a “Trumpist”, a “Zionist”, and an “alt-right pretendian.”

Furthermore, there could be no better demonstration of ungovernability than the respondent’s relentless barrage of incivility, which did not cease even after we handed down our findings on the merits of this application. As was the case in Law Society of Ontario v. Jackman2024 ONLSTH 23, the respondent has demonstrated in the course of the hearing that he “utterly fails to comprehend the seriousness of his misconduct” (at para. 51). As he also “continued to broadcast offensive materials and disparage the Law Society staff, complainants and witnesses, and showed no inclination to follow the rules, act with integrity or respect the professional regulatory process”, the respondent’s conduct demonstrates that the first step of the ungovernability test has been met: Law Society of Ontario v. Fathi, 2021 ONLSTH 180.

Exemption sought

After his application was dismissed with prejudice and without leave to amend, the respondent filed an application that sought the remedy of being relieved of any accountability to the Law Society, and for the respondent to be exempted in perpetuity from the requirement to refer to judicial officers as Your Honour and Your Worship. This second application was dismissed on the grounds it was frivolous, vexatious, and an abuse of process.

The London Free Press reported

Hamza started practising law in Ontario in 2019 and operated a solo-practitioner office, Hamza Law, in London, according to the tribunal ruling.

Beginning in August 2020, the Law Society received several complaints about the lawyer’s messages on social media.

In response to an article by a prospective law student born in Nigeria, Hamza posted photographs of the student and his family with “thought bubbles” that suggested the lawyer was a criminal, drug dealer and slave lover.

About women he posted on social media, “women didn’t write their histories because they didn’t care to do so” and “women just don’t care about history or philosophy” because “women don’t generally consider being a philosopher or historian ‘sexy.'”

The tribunal ruled that though many of the comments may be offensive, they didn’t breach the Law Society’s code of conduct and quoted a previous ruling that it’s not the Law Society’s responsibility to police speech in these circumstances.

But Hamza’s responses to the Law Society investigations into the matter did amount to professional misconduct, the tribunal ruled.

He refused to participate in interviews with the investigator, began litigation against the Law Society and complainants, failed to obey a court order and started litigation against the judge who gave an order.

His court filings in the matter are ridden with “searing and inappropriate criticism” the tribunal found.

“The fact all the judges at the London courthouse are European colonizers who lived through the colonial era means they are ipso facto white supremacists and Islamophobes; otherwise, they would be back in Europe, and not in Canada to start,” Hamza wrote in one document.

“I have reason to believe that (a complainant’s lawyer) is a racist for talking to me the way he did, and that (the judge) is also a racist for letting (the lawyer) talk to me like that,” Hamza wrote.

Two complainants in the case “get free passes” at law schools “for being criminals,” he wrote in another document.

“Both of them reduce the law profession to a joke. They are so privileged that they even have big firm lawyers defend them. This is either because they can afford big lawyers to run their big privileged mouths, or because these lawyers are willing to work for them for free. Either way, their excess of privilege is apparent,” he wrote.

Hamza also attacked the Law Society of Ontario, the regulatory body for lawyers provincewide.

Under the auspices of the LSO, “the practice of law in Ontario is controlled by mobs. Gangs control big firms, law school admissions and the LSO,” he wrote.

The tribunal found the court filings breach rules to “to carry on the practice of law honourably and with integrity.”

Hamza could not be reached for comment. His company’s website can no longer be accessed without sign-in credentials.

A hearing to determine punishment and costs will be scheduled, the tribunal said.

The attorney has noted an appeal of the action

The complainants were thus confirmed to be Ish and his friends; viz., white nationalists Vincent Rocheleau, Mallory Greene and Jessica Soubas and Russian Zionist Yevgeniya Shlakhter. They falsely accused Hamza of being a pseudo- intellectual white supremacist based on LinkedIn posts, even though LinkedIn closed the hacked account; denied it belongs to Hamza; and denied access to Hamza Law...

The complainants (Ish & co.) are all connected to each other and have no connection to Hamza on social media (which he does not use) or in real life. They are all strangers to Hamza who live in Toronto and have no information about him except that he is a lawyer and academic with a Muslim name. All of them refused to identify themselves, testify or be cross-examined. None of Hamza’s many connections attested the truth of their claims; rather, they all attested that they are fabricated.

And

The Law Society hired Katherine Hensel as its lawyer, paying her upwards of $60,000 to accuse Hamza of “hate speech” and “discrimination based on facial features” for allegedly stating that white settlers are not “red Indians”, as they still call them (e.g., the Indian Act). Hensel–of Ipperwash Commission fame–pretends to be a leading indigenous lawyer in the country, even though she is of Ukrainian ancestry, barely ever lived in BC, could not introduce herself in Shuswap to Steve Paikin, and “none of [her] antecedents” ever held Indian Status. Jean Teillet–the Law Society’s blonde expert on indigenous law–called pretendians “the ultimate step in colonialism” (i.e., white supremacy). Hensel is an adjunct “professor” at the University of Toronto with a BA in English.

While Hamza’s accusers are all complete strangers to him who rely on the complaints of criminal friends of theirs who refused to identify themselves or testify, more than a thousand people–including a group of judges affiliated with the UN– filed complaints against the Law Society or submitted testimonies against it. However, like Heeney, Desgranges refused to receive any evidence from Hamza Law; not even the testimony of the orphans against the lawyers who falsely accused them and Hamza. Desgranges wrote the orphans entirely out of his “final decision”, even though their affidavits were process served to the Law Society on the same day that it served the Further Supplemental Affidavit of Cheryl Smith past its legal deadline.

Desgranges–the chair of the Law Society tribunal in charge of the “final decision” or judgment of Hamza–is a notorious neo-Nazi who ran for the far-right People’s Party of Canada. Desgranges denies this is a politicized trial that violates all the UN Basic Principles on the Role of Lawyers. He also denies the legitimacy of the UN in his tweets. His co-panelist Ryan Alford led the anti-human rights StopSOP slate. Both are far right judicial activists who regularly tweet racist, Islamophobic, Sinophobic, xenophobic, Arabophobic, pro-colonial, anti-indigenous, anti-science, conspiratorial, Zionist and genocidal propaganda, filling hundreds of pages. The international community of scientists and indigenous people regard them as colonial crackpots. Desgranges’s decision basically gives him license to be a genocidal racist, so long as it is off the record.

(Mike Frisch)

May 17, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Hours

A six-month suspension was imposed for a conviction by the New York Appellate Division for the Fourth Judicial Department

In November 2023, the Grievance Committee filed with this Court proof that, on August 11, 2023, respondent was convicted, upon his plea of guilty in Rochester City Court, of offering a false instrument for filing in the second degree (Penal Law § 175.30), a class A misdemeanor. The plea was entered in satisfaction of allegations that, in late 2018, respondent submitted payment claim vouchers to certain assigned counsel programs with the intent to defraud the assigned counsel programs. During the plea colloquy, respondent admitted that he submitted to the Monroe County Conflict Defender’s Office a document he knew contained false information concerning the number of hours he worked on October 9, 2018. In conjunction with the plea, respondent agreed to make restitution in favor of three assigned counsel programs, and City Court sentenced him to a one-year conditional discharge.

Sanction

we conclude that respondent should be suspended from the practice of law for a period of six months, effective January 17, 2024, and that he may file with this Court an application for reinstatement to the practice of law in accordance with the terms of the order entered herewith.

(Mike Frisch)

May 17, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Bond Payment Violates Rules

The Louisiana Attorney Disciplinary Board recommends a fully stayed suspension and probation 

The Committee found that ODC established that Respondent had violated the Rules of Professional Conduct as charged. These legal conclusions of the Committee are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the allegations. See In re Donnan, 2001-3058 (La. 1/10/03), 838 So.2d 715. The Board adopts the Committee’s findings and reasons therefor. The Board also finds that Rule 1.8(e)(5)(v) was violated by Respondent. Respondent failed to provide ODC with documentation establishing that Ms. Picard consented, in writing, to the terms and conditions under which she received financial assistance from Respondent.10 Respondent’s statement in Paragraph VI of her answer conclusively admits this infraction. Her statement reads:

Respondent admits she provided Felicia Picard financial assistance during the term of legal representation. Respondent further admits she failed to provide the ODC with documentation establishing that Felicia Picard consented, in writing, to the terms and conditions under which financial assistance was made. Respondent was unaware of this requirement . . . [.]

Respondent’s Answer to Formal Charges, Para. VI, filed July 25, 2023.

Further, Respondent violated Rule 1.8(e) by improperly securing a bond on Ms. Picard’s behalf. Louisiana Code of Criminal Procedure article 327 expressly provides that a person “shall not be released on bail for which an attorney at law . . . becomes a surety or provides money or property for bail.” In the matter of State v. Felicia Picard, 18-CR-85, 16th JDC, Parish of Iberia. Respondent is identified as Ms. Picard’s counsel of record. The criminal prosecution was “nolle prossed” on January 16, 2020. In association with this prosecution, on October 12, 2017, Respondent paid $635 to Mike’s Bail Bonding to secure a $2,500 bond for Ms. Picard. ODC Exhibit 29. This action was clearly in violation of Code of Criminal Procedure article 327.

Moreover, this action is in violation of Rule 1.8(e) as Respondent was providing improper financial assistance to a client in connection with a pending or contemplated litigation. Her paying of the $635 to the bail bondsman does not fall within any of the exceptions to this rule.

As discussed above, Respondent claims to have not been familiar with Rule 1.8. The disciplinary rules set forth the minimum level of conduct below which no lawyer may fall without being subject to disciplinary action, and ignorance of the Rules of Professional Conduct is not an excuse. In re Grevemberg, 2002-2721, pp. 7-8 (La. 1/25/03), 828 So.2d 1283, 1288. Similarly, “[n]o one may avail himself of ignorance of the law.” La. Civ. Code art. 5

Sanction

the Board adopts the Committee’s recommendation that Respondent be suspended from the practice of law for six months, fully deferred, followed by one year of probation to include attendance at the LSBA Ethics School. The Board recommends that Respondent attend Ethics School by the end of her probationary period, instead of within the first six months of the probationary period as recommended by the Committee.

(Mike Frisch)

May 17, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 16, 2024

Revocation Draws Reciprocal Disbarment

The District of Columbia Court of Appeals has imposed reciprocal disbarment as the functional equivalent of the license revocation ordered in Virginia.

CNBC reported on criminal proceedings involving the attorney

A former high-ranking lawyer at the Federal Deposit Insurance Corporation pleaded guilty Tuesday in federal court to conspiring to sexually exploit multiple children and now faces a mandatory minimum prison sentence of 15 years.

The lawyer, Mark Black, also previously served as president of the board of the Arlington Aquatic Club, a renowned Virginia swim club that includes U.S. Olympic swimmers among its alumni. Black resides in Arlington.

Black, 50, most recently was special counsel in the general counsel’s office of the FDIC, which insures the deposits of U.S. commercial and savings banks, according to his LinkedIn page. He has worked in the legal division since April 2013, his LinkedIn page says.

The Department of Justice said Black, who is married and has teenage sons, was a member of “two online groups dedicated to exploiting children.”

“The goal of the two groups was to locate prepubescent girls online and convince them to livestream themselves engaging in sexually explicit conduct,” the DOJ said in a press release.

“Black and his co-conspirators would covertly record this conduct and share the videos with each other,” the DOJ said.

Black pleaded guilty Tuesday in U.S. District Court in Alexandria, Virginia, to one count of conspiracy to produce child pornography and one count of coercion and enticement.

He is due to be sentenced on April 30. He faces a mandatory minimum sentence of 15 years in prison and a maximum sentence of life behind bars.

The FDIC told CNBC it was “deeply shocked and disturbed about the allegations” against Black, who was suspended by the agency when it learned about the investigation of him last year.

The FDIC said Black’s criminal activity “had nothing whatsoever to do with the FDIC,” and did not involve the use of agency computers or other devices. The agency also said it had cooperated with the FBI and DOJ in the criminal probe.

CNBC has requested comment from Black’s defense attorneys and from the Arlington Aquatic Club.

On Jan. 5, Black was deemed indefinitely ineligible by the U.S. Center for SafeSport, a nonprofit group that has the authority to resolve abuse and misconduct reports in sports associated with U.S. Olympic programs.

(Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Unfortunate

The Manitoba Law Society Discipline Hearing Panel reprimanded a respected attorney who practiced without sanction for over 50 years

Mr. Matas has been a Member of the Law Society of Manitoba since 1971. His career and his professional contributions to Manitoba, to Canada, and to the international community are well documented and have been nothing if not exemplary. That he has found himself for the first time before a Disciplinary Panel of the Law Society so late in that career is indeed unfortunate.

Conduct at issue

  On February 10, 2022, Mr. Matas gave an undertaking to the Society (the “Undertaking”). Pursuant to the Undertaking, Mr. Matas agreed to restrict his practice to acting as Counsel to other lawyers (described in the Undertaking as a “responsible lawyer”). Among other things, Mr. Matas undertook not to accept retainers from any person, and not to appear in Court or provide legal services directly to clients without a responsible lawyer being present. The Undertaking also required he advise his (former) clients they need to obtain alternate Counsel and transfer their files to such Counsel within certain timeframes.

Matas did not live up to that Undertaking in several respects with respect to seven individual clients...

Significantly, all the charges in this case relate to Mr. Matas’ dealings with only one of those seven lawyers.

The evidence before us is that the lawyer in question – a former articling student of his – appeared to feel they were Counsel “in name only”, that they asked Mr. Matas to collect some of their fees for them and, on at least one occasion, left Mr. Matas to appear in Court on his own. Nonetheless, while these facts are mitigating, they do not – and Mr. Wolson emphasized this fact – excuse his failure to discharge his obligations in the Undertaking.

The Society confirmed no clients were prejudiced in any way by Mr. Matas’ actions and that he gained no personal advantage. On the contrary, the Society confirmed Mr. Matas was “doing what he felt he had to do” to serve the clients’ interests.

Sanction

The Panel accepts the joint recommendation and orders Mr. Matas be given a formal reprimand and pay costs of $1,500 as a partial reimbursement of the costs the Society has incurred in investigating and prosecuting this matter.

(Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Continued Practice Draws Sanction

A six-month suspension with terms was imposed by stipulation by the Virginia State Bar Disciplinary Board for misconduct that took place after the attorney began public employment

As a condition of employment with the Prince William County OCA, Respondent was prohibited from remaining m private practice and representing individuals. Respondent did not alert the Prince William Commonwealth Attorney's office that he continued in private practice during his employment.

Notwithstanding his employment with the Prince William OCA, Respondent did not remove the Prime Law website. In fact, on February 10, 2022, nearly two years after joining the Prince William County OCA, the Prime Law website was auto renewed.

Prior to February 18,2020, the date which Respondent began working as an ACA with the Prince William County Office of the Commonwealth Attorney, three individuals retained Respondent to represent them in immigration matters.

The misconduct involved both the continuing representation and ethics violations in the matters. (Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Fitness Requirement Imposed

The District of Columbia Court of Appeals imposed a 30-day suspension with fitness based on findings of failure to maintain records, commingling and serious interference with the administration of justice.

The court noted with respect to proceedings below

On the issue of sanction, the Hearing Committee found that Mr. Doman did not knowingly misrepresent any fact in his testimony. Based on the sole violation it viewed as having been established, the Hearing Committee recommended that Mr. Doman be reprimanded.

In a concurring opinion, two members of the Hearing Committee were very critical of the Office of Disciplinary Counsel in general and the Office’s handling of this case in particular.

And

On the issue of sanction, the Board found as an aggravating factor that Mr. Doman gave intentionally false testimony to the Hearing Committee when he claimed that the transaction spreadsheet was created by TD Bank. Considering all of the circumstances, the Board recommended that Mr. Doman be suspended from the practice of law for thirty days.

Finally, the Board expressed the view that the concurring opinion of the Hearing Committee was “gratuitous,” “improper[,] and wholly unhelpful.”

The court rejected Respondent's various claims

Mr. Doman raises an extensive array of challenges to Disciplinary Counsel’s handling of the investigation that led to the disciplinary charges against him. Among many other things, Mr. Doman argues that Disciplinary Counsel (1) lacked authority to further investigate an overdraft that was the bank’s error; (2) “illegally” subpoenaed trust account records from the bank; (3) impermissibly directed interrogatories to Mr. Doman during the investigation; (4) made unreasonable demands for “privileged and confidential” documents; (5) retaliated against Mr. Doman when Mr. Doman refused to comply with unreasonable demands for documents and information; and (6) lacked probable cause to bring any charges against Mr. Doman, instead bringing charges that were “not supported by any evidence.” We see no adequate basis for those arguments.

Ultimately

given that we uphold a number of the charges brought by Disciplinary Counsel, we obviously do not agree with Mr. Doman that all of the charges were “not supported by any evidence.”

False testimony

As the Board explained, Mr. Doman repeatedly testified that the bank had created the spreadsheet, so Mr. Doman’s testimony on that point was not a temporary memory lapse or an inadvertent slip of the tongue. Moreover, Mr. Doman was in a position to know whether he or the bank created the document, and there is no suggestion that he had any reason to be confused on the point or to have suffered a memory lapse. Under the circumstances, we conclude that there was substantial support in the record for the Board’s finding by clear and convincing evidence that Mr. Doman’s testimony to the Hearing Committee about the spreadsheet was intentionally false.

Fitness requirement (not sought by Disciplinary Counsel or recommended by the Board)

Three considerations, taken together, lead us to conclude that a fitness requirement is warranted in this case. First, as the Board noted, Mr. Doman has not shown any appreciation for the wrongfulness of his conduct. Mr. Doman’s lack of appreciation for the wrongfulness of the conduct has continued before this court. Although we view some of Mr. Doman’s arguments before this court as reasonable, many other of Mr. Doman’s arguments before this court do not seem reasonable. See generally, e.g., In re Lattimer, 223 A.3d 437, 453 (D.C. 2020) (per curiam) (stating that respondent’s “failure to acknowledge wrongdoing and accept responsibility pervades his arguments to this court”). Mr. Doman’s “adamant refusal to accept responsibility” is an important factor providing support for imposing a fitness requirement. Id.; see also Bailey, 283 A.3d at 1211 (stating that whether attorney recognizes seriousness of misconduct is factor to be considered in determining whether to impose fitness requirement).

Second, we have upheld the Board’s finding that Mr. Doman gave intentionally false testimony before the Hearing Committee. As we have emphasized, “an attorney who presents false testimony during disciplinary proceedings clearly does not appreciate the impropriety of his or her conduct.” Cleaver-Bascombe, 892 A.2d at 412 (brackets and internal quotation marks omitted). That conduct too provides substantial support for imposition of a fitness requirement. See, e.g., In re Bradley, 70 A.3d 1189, 1196 (D.C. 2013) (per curiam) (imposing fitness requirement where respondent gave intentionally false testimony to Hearing Committee; “[T]his court has been especially supportive of fitness requirements when a respondent’s conduct evinces indifference (or worse) toward the disciplinary procedures by which the Bar regulates itself, such as intentionally misleading Bar Counsel during its investigation.”) (brackets and internal quotation marks omitted).

Third, we have upheld the Board’s determination that Mr. Doman seriously interfered with the administration of justice by unreasonably refusing to provide documents and information in response to Disciplinary Counsel’s subpoenas and written questions. That conduct also provides substantial support for imposition of a fitness requirement. See, e.g., Naegele, 225 A.3d at 995 (“In the District of Columbia, the failure to cooperate with Disciplinary Counsel is its own form of misconduct, because of the deleterious effect of withholding potentially important evidence and the failure to respect the investigatory and fact-finding authority vested in the Board on Professional Responsibility. . . . [W]hen an attorney fails to respond to a request for information from Disciplinary Counsel without asserting in writing the grounds for such refusal . . . that attorney has violated Rule 8.4(d) of the D.C. Rules of Professional Conduct . . . . Typically, the sanction for such misconduct is a 30-day suspension, with a fitness requirement for reinstatement.”).

Associate Judges McLeese, Shanker and Howard were on the per curiam opinion.

Notably - or regrettably - the bar investigation involved two docketed matters that were commenced in 2010 and 2012.

Postscript on the set-to below

The Board report is linked here.

While we find no bias reflected in the Hearing Committee’s report and recommendation, the concurring opinion’s discussion of personal views and extrajudicial facts is improper and wholly unhelpful. Discussion of facts outside of the record cannot be allowed to affect decisions in a disciplinary proceeding. Here, we do not find that the concurring opinion’s discussion of personal views and extrajudicial facts affected the Hearing Committee’s findings. But even such gratuitous discussion risks the perception and, as demonstrated here, invites express allegations of bias in favor of one party or another that can undermine confidence in the disciplinary system.

The Hearing Committee report's concurring opinion observation

While it may be presumptuous to say this, I know it to be a widely held view of members of our Bar that Disciplinary Counsel is difficult to deal with and overzealous in pursuit of minor transgressions and mere mistakes. The disciplinary system, in the opinion of this longtime member of the Bar and the Hearing Committee, should be designed to find the truth and to protect the public, but also to be respectful of the members of the Bar who come into its processes. In this regard I would hold Office of Disciplinary Counsel with its fuller understanding and experience with the system, to a higher standard of conduct in disciplinary proceedings, than Respondents who are at a disadvantage in navigating through the difficulties of defending themselves while conducting a separate workload on behalf of clients.

(Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

All Or Nothing At All

The full Massachusetts Supreme Judicial Court denied bar admission on a "provisional" basis

The petitioner, James Murray, also known as James Hines, appeals from a judgment of the county court denying his petition, filed pursuant to our equity jurisdiction under G. L. c. 214, § 1, in which he sought a "provisional law license." We affirm.

The requirements for admission to the practice of law in the Commonwealth of Massachusetts are set forth in G. L. c. 221, § 37, and S.J.C. Rule 3:01, as appearing in 478 Mass. 1301 (2018). Nothing therein authorizes a "provisional" law license.  The petitioner apparently asks that he be permitted to bypass the requirements for admission to the practice of law and to have a "provisional" law license granted to him. There simply is no legal basis to grant such an extraordinary request. The single justice properly denied the petition.

(Mike Frisch)

May 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)