Friday, October 22, 2021

Former Prosecutor Disbarred

The Maryland Court of Appeals has disbarred a former prosecutor for failing to disclose exculpatory evidence

This attorney discipline proceeding involves a lawyer who, in his capacity as a prosecutor, knowingly and intentionally failed to disclose for more than a decade exculpatory evidence that came to light after a defendant’s conviction, discarded the evidence, knowingly made false statements of fact to a court and defense counsel concerning the content of the evidence, opposed the defendant’s postconviction petitions and sought to have forensic evidence that was the subject of the defendant’s post-trial request for review destroyed, and, during Bar Counsel’s investigation, failed to comply with a subpoena to provide a statement under oath.

Joseph Ignatius Cassilly, Respondent, a member of the Bar of Maryland, served as an Assistant State’s Attorney in Harford County from 1977 until January 3, 1983, at which
time he became the elected State’s Attorney for Harford County, a position he served in until his retirement in January 2019. Beginning in 1981, in his capacity as an Assistant
State’s Attorney and later as the State’s Attorney, Cassilly represented the State in prosecuting John Norman Huffington for the murder of two people. As State’s Attorney,
Cassilly represented the State in various postconviction proceedings in Huffington’s case and after many years of such proceedings, in 2018, Huffington filed a complaint against Cassilly with Bar Counsel.

Sanction

Foregoing the sanction of disbarment because of the circumstance that Cassilly has voluntarily assumed inactive/retired status with the Client Protection Fund would ignore
the basic tenet that a sanction is imposed not to punish an attorney “but instead to protect the public and the public’s confidence in the legal profession.” Slate, 457 Md. at 646, 180 A.3d at 155 (citation omitted). We accomplish those goals by “deterring other lawyers from engaging in similar misconduct” and “suspending or disbarring a lawyer who is unfit to continue to practice law.” Id. at 646, 180 A.3d at 155 (citation omitted). In this case, disbarment recognizes the seriousness of Cassilly’s misconduct and serves the goal of protecting the public and ensuring the public’s confidence in the legal profession by deterring other attorneys from engaging in similar misconduct. Moreover, in imposing the sanction of disbarment, we protect the public by curtailing Cassilly’s ability to resume active attorney status (which would not require the permission of this Court) or to practice law in accord with Maryland Rule 19-605(b)(2) while in inactive/retired status.

For the reasons set forth herein, we disbar Cassilly. Although Cassilly is in inactive/retired status, his disbarment will be effective immediately.

(Mike Frisch)

October 22, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Reprimands In Michigan

A reprimand has been ordered by a tri-county hearing panel of the Michigan Attorney Discipline Board

The respondent and the Grievance Administrator filed a Stipulation for Consent Order of Discipline and Waiver, in accordance with MCR 9.115(F)(5), which was approved by the Attorney Grievance Commission and accepted by the hearing panel. The stipulation contained respondent’s admission that he was convicted on November 10, 2020, of one count of indecent exposure, a misdemeanor, in violation of MCL 750.335A...

The board imposed a reprimand in an unrelated matter

After proceedings held in accordance with MCR 9.115 and based on the evidence presented by the parties at the hearings held in this matter, the hearing panel found that respondent committed professional misconduct during his representation of an employee of a tavern in litigation respondent commenced against a brother of the deceased owner of the tavern.

Specifically, the panel found that respondent offered evidence that he knew to be false, or if later having learned of its falsity, failed to take reasonable remedial action to correct the record, in violation of MRPC 3.3(a)(3). Respondent was also found to have violated MRPC 8.4(a) and MCR 9.104(4).

(Mike Frisch)

October 22, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 21, 2021

Mediation Rejected In Reinstatement

The Florida Supreme Court has rejected the favorable recommendation of a referee to reinstate a suspended attorney

After mediation, the referee held a final hearing and submitted a report recommending that Murtha’s petition be granted and that he be reinstated to the practice of law. The referee found that there was no evidence that Murtha engaged in the practice of law during his suspension and that he had proven his rehabilitation and fitness to resume the practice of law by clear and convincing evidence, which outweighed any evidence of potentially disqualifying conduct. The referee indicated that the underlying misconduct for which Murtha was suspended was due to his “sloppy” procedures in running his law practice of debt collection and business litigation and in handling his personal finances. This sloppiness stemmed from stress, anxiety, and depression related to Murtha’s wife having suffered a serious medical condition, his mother-in-law having suffered a serious medical issue that resulted in her death, and a friend having recently died. The referee also noted that the witnesses who testified at the final hearing, including the original complaining witness, had positive interactions with Murtha. He was described as a “pleasant, personable, and knowledgeable attorney” who positively contributed to his community and is remorseful for his misconduct. Further, the referee highlighted that Murtha did not misappropriate client funds for personal gain but instead was merely “sloppy” with record keeping.

Use of mediation

First, the Bar argues that the referee erred in ordering formal civil mediation prior to the final hearing in this reinstatement proceeding. The Bar asks this Court to make clear that formal civil mediation is inappropriate in Bar proceedings. We conclude that the referee’s order of civil mediation in this case was inappropriate and merely delayed the proceedings. We decline at this time to address whether formal civil mediation is appropriate in any Bar proceeding.

...Here, according to the record, the referee believed that the Bar could stipulate to the issue of Murtha’s reinstatement. However, because there was evidence of disqualification on which the denial of reinstatement could be based, the Bar did not in fact have that authority. Thus, the referee erred in referring the Bar and Murtha to civil mediation, since the referee was required to hold a final hearing and to make a determination on Murtha’s fitness to return to the practice of law. Because the case could not be “settled” in a mediation proceeding and any narrowing of issues required might have occurred before the referee, civil mediation was inappropriate in this case. As to the joint pretrial stipulation, the Bar routinely makes such agreements without being ordered to formal mediation.

Disqualifying conduct

At the final hearing, the Bar presented evidence of disqualifying conduct that occurred while Murtha was suspended. In violation of rule 3-7.10(f)(1)(D), misconduct in employment, while suspended, Murtha failed to provide quarterly reports as required by rule 3-6.1(e) based on his drafting of legal complaints and conducting legal research for cases for his brother’s law firm. Although Murtha initially filed the reports, he stopped doing so because he did not believe that the work he was providing for his brother necessitated the continued filing of reports.

Further, under rule 3-7.10(f)(1)(G), financial irresponsibly, Murtha filed late and incorrect tax returns during the period of suspension. Murtha did not hire a CPA to prepare his taxes; instead, he used TurboTax and appears to have neglected to report income from his law firm on his personal taxes and filed incorrect forms for his law firm. Murtha claimed he was advised that he did not need to file based on his level of income, and that his tax returns “looked okay,” but no one testified at the final hearing that they advised Murtha on his taxes. Murtha’s tax forms were not, in fact, “okay.” Especially in light of the condition of his suspension requiring regular consultation with a CPA, prudence would have dictated that he obtain the advice of a professional.

Additionally, while suspended, Murtha left his operating account overdrawn for 524 days, which resulted in bank fees of approximately $18,000. Compounding the imprudence reflected in having managed his affairs this way is the fact that he was overdrawn by approximately $1,500, less than a tenth of the amount in fees he ultimately incurred.

(Mike Frisch)

October 21, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Sanction Disagreement

Dan Trevas reports on a bar discipline matter before the Ohio Supreme Court

A Cincinnati attorney who provided legal assistance to a client while under suspension received a second indefinite suspension from the Ohio Supreme Court today.

The Supreme Court unanimously agreed to sanction Elizabeth Ford not only for giving legal advice while under suspension, but also for repeatedly failing to follow through with her clients’ domestic relations matters and refusing to cooperate with disciplinary proceedings. However, the Court was divided on the appropriate penalties to impose.

The Court majority agreed with a joint recommendation from Ford and the Office of Disciplinary Counsel to place Ford on a second indefinite suspension to run concurrently with an indefinite suspension levied in March 2020 for similar professional misconduct.

Justices Sharon L. Kennedy, R. Patrick DeWine, Michael P. Donnelly, Melody J. Stewart, and Jennifer Brunner joined the per curiam opinion imposing the concurrent indefinite suspension.

Chief Justice Maureen O’Connor stated she would permanently disbar Ford.

In a separate opinion, Justice Patrick F. Fischer agreed with the Board of Professional Conduct’s recommendation that Ford’s new suspension should run consecutively to her current indefinite suspension.

Lawyer Advises Client While Suspended
Today’s suspension is now the third Ford is serving. In November 2019, she was suspended for failing to register as a practicing attorney for the 2019-2021 biennium. At that time, the disciplinary counsel had already filed a complaint against her for violating several of the rules governing the ethical behavior of Ohio lawyers.

In March 2020, the Court indefinitely suspended her for professional misconduct that included dishonesty, failing to reasonably communicate with clients in four matters, and failing to cooperate with disciplinary investigations. Both the 2019 and 2020 suspensions are in effect.

Prior to her suspension, Jeffrey Streckfuss hired Ford in 2018 to assist him in reinstating his parenting time, which had been stopped for failing to comply with court orders to complete medical and mental-health assessments. In July 2019, Ford filed a motion in domestic relations court to have Streckfuss’ parenting time reinstated, and the motion indicated Streckfuss had completed the required assessments.

Ford did not take any other action on Streckfuss’ case.

The domestic relations court scheduled a December 2019 hearing on Streckfuss’ motion and a request by his ex-wife to hold Streckfuss in contempt for failing to comply with court orders. At that time, Ford was suspended from practicing law, and she failed to notify the court of her suspension or withdraw from Streckfuss’ case.

The night before the hearing, Ford sent Streckfuss a text message informing him of her suspension and that she was out of state because of a death in the family. In the text, she advised him to attend the hearing on his own and how to request reinstatement of his parenting time.

With respect to the contempt motion, she advised Streckfuss to request more time and to “blame” her for the delay. She told him to notify the court that she was no longer involved with his case. She then told Streckfuss she could “strategize with him when she returned.”

Streckfuss appeared at the hearing before a magistrate, who denied his request to reinstate the parenting time, stating neither he nor Ford presented any evidence that he completed the health assessments. Streckfuss sent Ford several messages seeking copies of his completed assessments, but she did not respond to his messages.

The magistrate discovered Ford’s license was suspended and filed a grievance with the disciplinary counsel. Ford failed to respond to a request from the disciplinary counsel to submit written responses to the grievance and failed to appear for a deposition.

Based on her actions in Streckfuss’ case, the professional conduct board found Ford violated several rules, including failing to act with reasonable diligence on a client’s matter and giving legal advice to Streckfuss while under suspension.

Attorney Ignores Disciplinary Investigations
In September 2020, the disciplinary counsel submitted another complaint to the board, stating that along with the violations Ford committed while representing Streckfuss, she committed more violations before and during her November 2019 suspension.

In June 2019, Mary Goldfuss hired Ford to file an emergency custody action. Ford accepted an advance fee from Goldfuss. Goldfuss sent two unanswered texts to Ford, and then heard from Ford in mid-August. Ford implied she had filed the custody action, but she had not. Goldfuss was unable to contact Ford again and sent a certified letter seeking a refund.

Goldfuss filed a grievance, and Ford again ignored requests by the disciplinary counsel to respond in writing and did not appear at a scheduled deposition. Eight months after Goldfuss fired Ford, the lawyer refunded Goldfuss her money.

In May 2019, Walter Monroe paid Ford $3,000 to represent him in a divorce proceeding, but agreed with Ford not to file for divorce immediately. In December 2019, Monroe sent Ford a text requesting she file the divorce. She did not respond. Monroe discovered Ford had been suspended and requested the return of his divorce paperwork and his money, but she failed to do so.

Monroe filed a grievance, and Ford did not immediately cooperate in the disciplinary investigation.

Supreme Court Considered Sanction
The Court noted that Ford freely cooperated with the disciplinary investigation once the disciplinary counsel filed its complaint with the board.

The board noted that except for advising a client while under suspension, her violations were like the ones that led to her March 2020 indefinite suspension. While the presumed sanction for an attorney practicing while under suspension is disbarment, the board found her actions “were not so egregious as to warrant” disbarment. The board recommended a second indefinite suspension to run consecutively to the 2020 suspension, along with other conditions the board believed would be sufficient to protect the public.

The Court’s opinion noted that an indefinite suspension is appropriate for attorneys who continue to practice law after their licenses have been suspended for registration or continuing legal education violations. The Court also noted that in cases where an attorney’s misconduct occurs over essentially the same period as the prior misconduct, it may be appropriate to impose a second indefinite suspension that runs concurrent to the first. The Court imposed Ford’s second indefinite suspension to run concurrently with the first.

To be reinstated, Ford is required to submit proof she paid Monroe $3,000 in restitution; undergo an evaluation by the Ohio Lawyers Assistance Program; comply with any treatment or counseling recommendations resulting from the evaluation; and obtain a written opinion from a qualified healthcare professional that she can return to the competent, ethical, and professional practice of law. The Court also required her to pay for the disciplinary proceedings.

Concurring and Dissenting Opinion Seeks Tougher Sanction
In his opinion concurring in part and dissenting in part from the majority, Justice Fischer noted that Ford’s misconduct did not occur over essentially the same period as the prior misconduct, but instead represented a continuing pattern of misconduct.

He noted the violations involved in her March 2020 suspension occurred while representing clients between 2016 and 2018. He wrote the matters leading to this suspension happened between 2018 and 2020.

Ford’s misconduct was very serious, Justice Fischer stated, noting that she “ignored her clients who had time-sensitive cases” and “lied to those clients about the status of their cases, all while wrongfully keeping some funds paid for services that she never rendered.” He stated that running the indefinite suspensions consecutively is the appropriate sanction.

2021-0441Disciplinary Counsel v. FordSlip Opinion No. 2021-Ohio-3661.

(Mike Frisch)

October 21, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 20, 2021

Friends

The Michigan Attorney Discipline Board reduced the one year suspension of a tri-county hearing panel to 180 days and until further order for misconduct as a judge

After proceedings held pursuant to MCR 9.115, the hearing panel found that while respondent was a judge at the 15th District Court, he engaged in numerous ex parte communications with his friend, an attorney that routinely appeared in front of him, and failed to disclose his personal friendship or disqualify himself from matters in which his friend was involved. The hearing panel found multiple violations of Canons 2A and B; and Canon 3A(4)(a) of the Code of Judicial Conduct; MRPC 3.5(b); 8.4(a)-(c); and, MCR 9.104(1)-(4) and ordered that respondent’s license to practice law in Michigan be suspended for one year, effective November 22, 2019.

Sanction

After review proceedings held pursuant to MCR 9.118, the Board issued an order that affirmed, in part, modified, in part, and reversed, in part, the hearing panel’s findings of misconduct, as set forth in an accompanying opinion. The Board’s order also reduced the discipline imposed from a one-year suspension to a 180-day suspension, effective October 16, 2021, and until further order of the Supreme Court, the Attorney Discipline Board, or a hearing panel, and until respondent complies with the requirements of MCR 9.123(B) and (C) and MCR 9.124. Costs were assessed totaling $5,660.63.

The board opinion is linked here.

We find that the particular messages referenced in the hearing panel’s report, (pp 3-6) support the panel’s conclusion that respondent violated Canons 2 A and 3A(4)(a). While most of the text messages involved here did not deal with substantive matters or issues on the merits, the fact remains that some clearly did. Furthermore, the colorful, and at times offensive language of some of the messages supports the panel’s finding that respondent failed in his duty to exercise good judgment, and avoid impropriety.

Michigan Live reported on his resignation. (Mike Frisch)

October 20, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, October 18, 2021

Where Is The Sin In Sincere?

A Hearing Committee of the Law Society of Saskatchewan has deemed an applicant rehabilitated from misconduct that involved inappropriate social media posts that led to his suspension  as a teacher

At the time of the STF hearing, the Applicant signed an Agreed Statement of Facts (“ASOF”) in which he acknowledged posting to his Twitter account posts that were objectively sexually suggestive, posts which identified himself as an educator, and posts with race and sexual orientation based content. Further, the ASOF stated that Mr. Baron’s school division issued computer contained a personal letter that was written by Mr. Baron and saved as a Word document. That letter named a student and was offensive in its description of the student.

Present character

Mr. Baron is 42 years old. He and his family reside in a small rural community. After he lost his teaching certificate in 2015 he began working as a legal assistant at Shawn Patenaude Law, and has since continuously been employed there with the exception of time spent in law school. When his teaching license was returned to him he considered a return to the classroom but ultimately decided to go to law school instead. When he applied to the College of Law he understood that his past disciplinary history would bring him under scrutiny when he applied for admission as a lawyer.

To his credit, the Applicant continued to be involved in his community both during and after his teaching suspension. He coaches children’s sports, is in a community theatre group, and sings in a barber shop quartet. He sits on the board of Saltcoats Regional Park, and is involved in various other community committees devoted to community services and improvements.  From time to time he assists the Saltcoats school’s debate team.

On the subject of the objectionable social media posts, the Applicant acknowledged in correspondence to his former school division which was filed as an exhibit that the Tweets “could fairly be characterized as objectionable in nature, especially in the context of the field of education… For me, my Twitter account was like the stage at a comedy club… I acknowledge that this content is offensive; it was intended as such.” He believed that by using a pseudonym for the Twitter account and by avoiding specific reference to his school, colleagues, and students that somehow his Twitter account was exempt from the rules of his profession. In his viva voce evidence before the panel, the Applicant discussed how at the time he made these posts he was attempting to participate in a comedy community populated by “shock” comedians whom he admired. He readily acknowledged that he gave insufficient regard to how making these kind of jokes could impact his role as a teacher, or how these posts could be hurtful to others. When asked to do so he immediately removed the posts. When asked about his perspective on such shock comedy today, the Applicant testified that he sees no place for that kind of comedic content in his life and that he wishes to contribute in a more positive way to his community.

Thus

 Society encourages those who have made mistakes to learn from those mistakes, to rehabilitate themselves, and to reintegrate as a contributing member of the community.  Mr. Baron has done these things.  The decisions of this law society and others, have permitted others who have arguably committed worse transgressions to return to the practice of law.  They were given a second chance and this Panel sees no reason to deny Mr. Baron his second chance.  We find it is not inimical to the public interest or to the standing of the legal profession to admit Mr. Baron as a Student-at-law.

(Mike Frisch)

October 18, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Reciprocal Sanction

The Rhode Island Supreme Court imposed reciprocal discipline of a censure based on a like Massachusetts sanction

From September 2016 to January 2020, respondent was in-house litigation counsel to a medical company. In December 2017, one of that client’s wholly owned subsidiaries was sued in Georgia for personal injury, and the matter was assigned to respondent.

A trial in the case was scheduled to begin on March 11, 2019. After settlement discussions began in earnest, respondent purported to authorize the client’s outside litigation counsel to settle the case for $250,000. The respondent, however, had failed to obtain required authorization from the management of the self-insured client.

On March 6, 2019, five days before the scheduled start of the trial, the plaintiff in the litigation agreed to the proposed settlement. The plaintiff signed the client’s standard release on March 21, 2019, but respondent realized that she did not have management’s approval. Instead of obtaining that approval, she misrepresented to outside counsel that payment was delayed, but forthcoming.

When payment was not made, the plaintiff took steps to enforce the settlement. The respondent then told outside counsel, falsely, that there was a problem with “the insurer.” A motion brought by the plaintiff to enforce them settlement was granted in May 2019, and when payment was still not made, the client was twice held in contempt. The respondent continued to misrepresent to outside counsel that payment was delayed, but forthcoming.

In September 2019, the plaintiff obtained a judgment against the client to collect on the settlement and eventually filed suit directly against the client and its insurer to collect the funds.

After respondent terminated her employment with the client company in January 2020, the client learned of and paid the settlement, together with interest, attorneys’ fees, costs, and contempt sanctions.

Sanction

This stipulation also recognized several mitigating factors relevant to the severity of the disciplinary sanction agreed to by the parties. The parties also noted extraordinary personal circumstances in mitigation described in an impounded memo that respondent submitted to the BBO with the stipulation. The stipulation noted that respondent had no prior disciplinary history, had acknowledged full responsibility for the harm caused to her client, and recognized that her extenuating personal issues explained, but did not excuse, her conduct.

(Mike Frisch)

October 18, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 15, 2021

The Second Time Around

The Iowa Supreme Court has ordered a 30 day suspension

Attorneys who engage in business dealings with their clients create an inherent conflict of interest under our rules of professional conduct. Such conflicts are not prohibited—as long as the attorney first meets strict disclosure requirements and provides adequate information so their clients can make an informed consent to the conflict. Attorney Bruce A. Willey appears before us for the second time for engaging in similar conduct for which we previously disciplined him but with different clients and in deals that predate the conduct giving rise to Willey’s previous discipline. The Iowa Supreme Court Grievance Commission (commission) recommends we suspend Willey’s license for thirty  days on the theory that had we known about this conduct we would have suspended his license for a longer period the first time. Upon our de novo review of the record, we suspend Willey’s license for thirty days.

The court rejected the claim that the attorney-client privilege impaired his ability to defend himself

We first address, and reject, Willey’s suggestion he could not defend himself related to Midwest because Midwest was not a complaining party and therefore had not waived its attorney–client privilege.

...The plain language of our disciplinary rules reveals that Willey could disclose attorney–client confidences in defending himself regardless of Midwest’s consent to the disclosure.

As to informed consent

Here, the Midwest waiver violated rule 32:1.8(a) in a number of ways. First, it misrepresented Willey’s interest in Catalyst as an “anticipate[d]” and “future” interest rather than identifying his actual 50% ownership interest through Orion’s Pride in violation of subparagraph (3) requiring written disclosure of the attorney’s “role in the transaction.” Iowa R. Prof’l Conduct 32:1.8(a)(3); see also Iowa Sup. Ct. Att’y Disciplinary Bd. v. Wright, 840 N.W.2d 295, 301–02 (Iowa 2013) (holding attorney “failed to obtain the clients’ written informed consent to the proposition that he held a contingent fee interest in Madison’s inheritance claim”). Willey also failed to disclose that Wild had significant financial liabilities, was judgment proof, and had failed to enter any successful ventures in the time they worked together, information that made his personal guaranty likely worthless. The purpose for the loan—to fund Catalyst’s investment in a risky and unsecured foreign trading platform—was important information about the nature of the proposed loan. Each of these pieces of information were omitted in violation of rule 32:1.8(a)(1), requiring the transaction and terms on which the attorney obtained his interest in the company to be “fair and reasonable to the client” and “fully disclosed and transmitted in writing.”

The court found dishonesty as well.

Sanction

Willey suggests an attorney cannot receive an enhanced sanction for conduct occurring prior to a previous disciplinary action. There is no such blanket rule. In past cases, we have refrained from enhancing the sanction due to the specific facts, such as where enhancement of the sanctions would not have deterred conduct and protected the public or the attorney had already been sufficiently sanctioned.

...Notwithstanding the mitigating factors, we must consider the aggravating factors involved in the Catalyst-Midwest transaction. We consider the experience of an attorney to be an aggravating factor. Bartley, 860 N.W.2d at 339. Willey was an experienced attorney and CPA, who specialized in tax and business law and who had been practicing for many years. Willey I, 889 N.W.2d at 658. Similar to Willey I, here, the structure of the investment was “questionable from the beginning with an outrageous promise of a return on the investment.” Id. In Willey I we stated that no one could “reasonably counsel a client that [the transaction] was a sound investment opportunity.” Id. The same applies here. During the hearing, neither Willey nor Wild could satisfactorily explain how the transaction with Ramis would work. That Willey has engaged multiple clients in dubious investment schemes is troubling.

(Mike Frisch)

 

October 15, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 14, 2021

New Jersey Shadow Docket: "Remote, Theoretical, And Negligibly Brief"

The New Jersey Supreme Court rejected the majority finding below of intentional misappropriation and concluded that censure should be imposed for negligent mishandling of entrusted funds.

The case demonstrates the court's lack of commitment to the principles articulated in the 1979 decision in In re Wilson, a case long regarded as an important precedent in matters involving knowing misuse of entrusted funds. See my updated comments below. 

The Disciplinary Review Board majority found knowing misappropriation and recommended disbarment.

An overdraft led to a demand audit, which had found numerous recordkeeper violations but no misappropriation

As respondent constructed her records, she realized that, eighteen months earlier, in January 2016, she had advanced unrelated client trust funds to pay a debt owed by her client, John Petrelli, “while awaiting reimbursement of the [trust funds] by Petrelli.” On October 5, 2017, respondent reported this information to the OAE

From the DRB dissent where some members favored a three-month suspension and others a reprimand or censure

when the Supreme Court says that disbarment will “almost” always be the discipline imposed [for intentional misappropriation] , it plainly envisions the possibility of reasoned exceptions.

In our view, there is a world of difference between conduct showing bad character or wanton indifference and conduct that exhibits an isolated lapse of judgment unlikely to result in actual harm. Our ethics system, at its best, ought to take into account such meaningful distinctions in culpability in determining discipline – even for charges of knowing misappropriation. The unique confluence of facts in this case should make it an exception to the rule.

The facts are detailed in the majority decision and need not be repeated here. Suffice it to say that respondent’s conduct is the most “technical violation” of Wilson we have seen. In ways, respondent’s conduct was more an oversight, closer on the scale to a negligent misappropriation. After a large snowstorm and her husband’s medical emergency kept respondent out of her office for three days, she returned to find a letter from her adversary threatening to abruptly void a recent settlement if the agreed payment was not received in three days. To protect her client, respondent cut a check. Respondent was not conscious of any meaningful risk that writing a settlement check from her trust account would jeopardize the funds of other clients. It did not cross her mind. That is not surprising, given that there was no real-world risk to other clients.

Five days before she wrote the check, she had instructed her client to “immediately” send funds to cover the settlement, which she understood he would do. Because her client had a consistent track record of making payments promptly, she expected the same on this occasion. Under these circumstances, it was reasonable to expect that the settlement funds from respondent’s client would be received before the settlement check drawn on her trust account was even deposited.

Unfortunately, her client’s money to fund the settlement arrived a few days later. Respondent had enough funds available in her business account to cover any shortfall. Moreover, the bulk of the money in respondent’s trust account was held as a deposit relating to a pending sale of her sister’s home, which was expected to later be used by the sister to buy their mother’s home. Respondent in turn expected to and did eventually share in the proceeds once their mother’s estate was settled.

Any risk to funds entrusted to respondent by other clients was remote, theoretical, and negligibly brief. There was no motive other than to protect her client’s settlement; no self-interest; no dishonesty; no premeditation or plot; no obfuscation; no recurrence; no harm; and no grievance by any client. After later realizing her incomplete knowledge of proper recordkeeping, respondent responsibly took a course to increase her awareness of trust fund management.  She also self-reported the incident by highlighting it to the Office of Attorney Ethics, which had not previously known of this lapse. Respondent thereafter fully and truthfully cooperated with the OAE investigation.

Nothing about this incident suggests that respondent lacks professional integrity. In our view, disbarring a lawyer with an unblemished record and an admirable reputation after nearly twenty years of practice based on a fleeting, isolated oversight would be far too harsh a sanction. It is worth noting that the District Ethics Committee below found negligent misappropriation only and recommended a censure.

I'm not sure I have a problem with this result but the court should have explained how this was either negligence (a tough sell on the facts) or an exceptional circumstance.

A voluntary self-report where there is little to no likelihood of detection is a huge mitigating factor in my eyes.

I took that position as a disciplinary prosecutor in this case.   (Mike Frisch)

UPDATE: I've now taken a closer look at the DRB majority report in this very important matter.

The District Ethics Committee found negligence and recommended a censure. On review, the DRB majority - consistent with any common understanding of the term - found the conduct was knowing and that disbarment was compelled under the court's In re Wilson precedent. 

The court's order finds negligence without any explanation, in a way that sub silentio overrules Wilson.

When it comes to professional discipline for mishandling entrusted funds (aka other people's money), New Jersey appears to have a shadow docket.

October 14, 2021 in Bar Discipline & Process | Permalink | Comments (1)

Reaching Higher Ground

A consent 18 month suspension from judicial office has been ordered by the South Carolina Supreme Court

In September 2018, Respondent posted the following on his Facebook page: "For my birthday this year, I'm asking for donations to American Red Cross. I've chosen this nonprofit because of food, water, and much more provided for those affected by Hurricane Florence in NC & SC." In the introduction of Respondent's Facebook page, Respondent identified himself as a Probate Judge and stated that he managed the Oconee County Probate Court. Respondent admits that his conduct violated the following provisions of the Code of Judicial Conduct, Rule 501, SCACR: Canon 2(B) (prohibiting the use of the prestige of judicial office to advance interests of the judge or others); and Canon 4(C)(3)(b)(iv) (prohibiting a judge from personally participating in the solicitation of funds or other fundraising activities).

A second count

On October 18, 2017, Respondent prepared a certification for submission in litigation pending in the Superior Court of New Jersey. In the certification, Respondent personally attested to the character of a South Carolina resident stating, "[i]ncidentally, [Mr. S.] has a reputation for truth, honesty, reliability and trustworthiness, and the court even waived bond because of this and its trust of [Mr. S.]." Respondent further attested in the certification, "I am aware of the fact that there is a claim in New Jersey that [Mr. S.] has made fraudulent conveyances of his mother's money. THIS IS A COMPLETE AND UNADULTERATED LIE, AND COMPLETELY UNTRUE. There is NO VALIDITY TO THAT STATEMENT AT ALL." (emphasis in original).

The statement violated provisions of the Code of Judicial Conduct.

An aggravating factor was prior discipline for Facebook posts and his promise to refrain 

Despite these assurances, Respondent restored the reference in his Facebook profile identifying himself as a Probate Judge with the Oconee County Probate Court and again used social media for fundraising purposes.

Also ordered

As a condition of discipline, Respondent agrees to complete the National Judicial College's online judicial ethics course, "Ethics and Judging: Reaching Higher Ground."

(Mike Frisch)

October 14, 2021 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Former Judge's Threatening Online Comment Draws Reciprocal Censure

Reciprocal discipline of censure has been imposed by the New York Appellate Division for the Third Judicial Department

Respondent was admitted to practice by this Court in 1986 and is also a member of the bar in Florida, where he presently resides and formerly served as a member of the judiciary in Broward County. In February 2020, the Supreme Court of Florida approved a stipulation and consent judgment wherein respondent admitted to posting a threatening online comment directed at another member of the Florida judiciary. As a consequence, the Court suspended respondent from the practice of law in Florida for a 45-day term.

His contentions failed to persuade

Respondent's contentions regarding potential conflicts or bias in the proceedings were never raised to Florida disciplinary authorities or before the Supreme Court of Florida and, in any event, are unsupported on the record before  us. Moreover, we note that respondent stipulated to his misconduct in that state while represented by counsel and attested that he had acted "freely and voluntarily" in consenting to discipline, and had "tender[ed] [his] plea without fear or threat of coercion" (see Matter of Hoover, 196 AD3d 994, 994-995 [2021]; Matter of Winograd, 184 AD3d 1073, 1074 [2020]; Matter of Edelstein, 144 AD3d 1311, 1312 [2016]). We therefore reject his contentions regarding a lack of due process in the Florida proceedings. Similarly, respondent's arguments regarding an infirmity of proof are rendered meritless by his stipulation to the facts that underlie the Supreme Court of Florida's finding of misconduct (see Matter of Winograd, 184 AD3d at 1074; Matter of Mora, 163 AD3d 1, 6 [2018]; Matter of Frants, 160 AD3d 171,
 [2018]). Finally, we find that the threatening language at issue constitutes conduct that adversely reflects on respondent's fitness as a lawyer, and the language preceding that statement offers no compelling justification to depart from that conclusion.

The court considered mitigating factors including timely reporting of the Florida action. (Mike Frisch)

October 14, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 13, 2021

Not Funny

A British Columbia Law Society Hearing Panel imposed a fine for an attorney's threats to his former intimate partner

The key issue at [the criminal] trial was whether, as the Respondent claimed in his testimony, he had not intended to intimidate LC, or for her to take his words seriously, but rather was engaging in a jesting, joking or humorous rant.

Evidence at the trial

At the time of the trial, the Respondent predominantly practised family law but had also practised criminal law. He was articulate, and thought before he spoke, but he was also a “joker” who enjoyed making people laugh. LC was a calm, nonemotional and self-confident person. She was strong and physically fit, and was not a fearful person.

He was "annoyed" that she had received the proceeds of their rental condo in settlement

The Respondent owned several firearms that he had left in the family home when he moved out. Sometime after the separation, LC asked one of their mutual friends to collect the firearms and store them at his house, as she did not want  to keep them or give them back to the Respondent. LC did not tell the Respondent that she was moving the firearms to the friend’s house.

Two prior communications gave context to the charged one

The first prior communication occurred sometime in 2016 or 2017. LC had read a comment on the Respondent’s Facebook page in which he wrote about “killing his past and maybe getting 25 years”. The next day, he called LC and said “I bitterly hate you”. When she asked why, the Respondent stated that she kept taking their child away from him and said “That is why spouses hate each other and kill each other when they are deprived of the parenting rights they believe they are entitled to.” Judge Meyers rejected the Respondent’s testimony that, in making these comments, he was not intending to frighten, intimidate or scare LC, and concluded that the Respondent had spoken these words in anger and had deliberately intended to scare her.

The second prior communication took place on April 9, 2017. The Respondent sent an email to LC in which he said “You may want to take a different approach. I saw you waving at the window today. I want you dead.” In his testimony, the Respondent said that he had made this comment because he felt he was paying too much for child support and was being shortchanged on parenting time. Judge Meyers concluded that, in sending this email, the Respondent had intended to scare, intimidate and threaten LC. It was a blatant and clear threat. Judge Meyers also held that LC was shaken and upset by the email, as reflected in a response that she had sent to the Respondent. The Respondent then replied to LC stating that his comment had been over the line and inappropriate. LC chose not to go to the police just yet. Judge Meyers accepted that the Respondent called LC the next morning and apologized.

The judge rejected the "humorous rant" explanation for the following telephone statements

(a) The Respondent called LC a “greedy guts” for wanting more money than she deserved, given that he had paid for repairs to the condominium plus lawyer fees.
(b) The Respondent said that the Ontario lawyer was letting him down and was “an f’ing jerk”, which was unusual language for him to use, and talked about putting bullets into the lawyer’s head.
(c) The Respondent went on to talk about a former criminal client who could solve problems by menacing, intimidating, hurting people, or just making them disappear.
(d) The Respondent said something about how people who were within six or two degrees of separation of them, could end up with bullets in them, and said that LC should beware, be careful or be warned. LC did not know whether the Respondent was referring to her, her family, her lawyer or somebody else, but she took his rant as very threatening.
(e) The Respondent mentioned not caring if he ended up spending the rest of his life in an eight-by-eight jail cell.

Intent

In finding that the Respondent had intended to threaten LC, Judge Meyers rejected as unbelievable his testimony that, by pure coincidence, he was arranging to pick up the guns that day to take advantage of a sale on gun storage boxes. This explanation was rejected because the guns had been out of his care for almost two years and he had sought to get them back on the same day as he made this “nasty” call to LC.

He self-reported the conviction and explained to the Law Society

the Respondent recounted the life-altering effect of being arrested, handcuffed, strip-searched, charged and tried in a criminal court, given that he was a lawyer living in a small community.

The panel sustained a "conduct unbecoming" charge and imposed a fine

Having considered the cases mentioned above and, in particular, Chow, we conclude that the $12,000 fine proposed by the parties in their joint submission falls within the range of disciplinary actions for the Respondent’s conduct unbecoming.

(Mike Frisch)

 

October 13, 2021 in Bar Discipline & Process | Permalink | Comments (0)

A Dysfunctional System

In what may well be the longest hearing committee report (a fulsome 263 pages) in District of Columbia Bar history, an Ad Hoc Hearing Committee has recommended a six-month suspension with fitness

Respondent...is charged with violating Rules 3.1, 3.3(a)(1), 3.4(c), 8.4(a), 8.4(c), and 8.4(d) of the District of Columbia Rules of Professional Conduct (the “Rule” or “Rules”), arising from a civil judgment against him and his conduct in connection with a subsequent settlement agreement. Disciplinary Counsel contends that Respondent committed all of the charged Rule violations and that, as a sanction for his misconduct, Respondent should be suspended for six months, with reinstatement conditioned upon a showing of fitness, payment of any outstanding sanctions, and compliance with any pending court orders. Respondent contends that Disciplinary Counsel has failed to establish, by clear and convincing evidence, any of the charged Rule violations.

The investigation began eight years and one name change (it was Bar Counsel back then) ago.

The hearing was held in 2016.

The prosecutor has long since retired.

It gets worse - the investigation was predicated on long ago completed civil litigation.

On December 28, 2009, Respondent filed a notice of appeal to the District of Columbia Court of Appeals from the $1.2 million judgment against him. This appeal was docketed as No. 09-CV-1593. DCX 53 (Docket Sheet for Appeal No. 09-CV-1593) at 2; DCX 17 (Memorandum Opinion and Order, dated Dec. 14, 2012) at 3 n.7. Respondent’s appeal from this non-appealable order was frivolous. The Court of Appeals later dismissed Respondent’s appeal [in December 2012].

On the proposed sanction

We believe that the scope and seriousness of Respondent’s misconduct (particularly his false statements and related dishonesty to the court) could easily justify recommending a more severe sanction than the sanction that Disciplinary Counsel recommends. We are loath to recommend a harsher sanction than that proposed by Disciplinary Counsel, however.

Because the matter must be reviewed in turn by the Board of Professional Responsibility and the Court of Appeals, count on adding a few more years before the case is resolved.

The court has seen a steady stream of bar discipline matters that take a decade or more from soup to nuts without so much as a disapproving tut-tut.

It would be nice - but unexpected - if this embarrassed someone. (Mike Frisch)

October 13, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Overshare

A social media post drew a censure from the New York Appellate Division for the Fourth Judicial Department

Respondent conditionally admits that, in 2018, he represented a client in a child custody proceeding wherein the client was seeking an order requiring supervision for visitation between the client’s former spouse and their minor child, whose permanent residence was in another state. The client sought that relief, at least in part, based on allegations that the former spouse had previously left the minor child unsupervised with the 18-year-old son of the former spouse’s boyfriend, after which the 18 year old was adjudicated a youthful offender for having sexual relations with the minor child. Respondent admits that, following a court appearance on the application for supervised visitation, he published on social media certain details regarding the sexual misconduct incident, including the home state of the victim and the age and gender of the victim and youthful offender. Respondent admits that, inasmuch as he practices law in a “small town” where it was widely known that he was representing one of the parents of the victim, the information that respondent published on social media effectively revealed the identities of the victim and youthful offender. Respondent also admits that the social media post served no substantial purpose other than to embarrass or harm a third person. The parties stipulate, however, that respondent removed the information from social media after approximately one day in response to concerns raised by opposing counsel in the child custody proceeding.

(Mike Frisch)

October 13, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 7, 2021

Georgia Declines To Waive Readmission Rules For Incarcerated Former Attorney

The Georgia Supreme Court declined to readmit an incarcerated former attorney

The record shows that Bartko was first licensed to practice law in Georgia in 1995. In 2014, Bartko voluntarily surrendered his license to practice law, which is functionally equivalent to disbarment, after he was found guilty of federal charges of conspiracy, mail fraud, and selling of unregistered securities. He was sentenced to 272 months’ imprisonment and ordered to pay  $885,946.89 in restitution. The conviction was affirmed on appeal. See generally In the Matter of Bartko, 295 Ga. 862 (764 SE2d 553) (2014).

In December 2020, while temporarily moved to home confinement under the federal Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Bartko filed his application for certification of fitness to practice law. In his application, Bartko acknowledged that he has approximately ten years remaining of his original prison sentence. The record also shows that he has paid virtually none of the restitution.

Bartko later petitioned the Board to waive application of its policy of not considering applications from currently incarcerated individuals until after the applicant’s sentence is completed. Though he is out of prison, Bartko is still serving his sentence of incarceration at home under the CARES Act. The Board denied the petition, explaining that Bartko had not shown sufficient cause to warrant any waiver of the policies. 

Result

Bartko is still serving a lengthy sentence for serious offenses, including fraud, and he has made little progress toward satisfying his obligation to pay restitution. Consequently, we affirm the Board’s decision denying the waiver.

(Mike Frisch)

October 7, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Some Business

A North Carolina attorney has been charged with misconduct with a client he was defending in a criminal matter.

When the client expressed concerned about travel costs for a hearing that was continued, Respondent allegedly said he could help her if she gave him "some business" which she interpreted as performing a sex act for compensation.

He allegedly brought the request up again in a phone conversation.

What about the business we talked about? Well, do you want to come by?

She took an Uber to his law office, where she asked

What are we going to do?

Alleged reply

Well, nothing that's going to be illegal. I'm not looking for any kind of oral, anal, or vaginal sex.

He then allegedly offered $100 for a "hand job" plus $60 for the Uber.

She left without any contact or payment.

He was charged with and pled guilty to misdemeanor solicitation of prostitution. (Mike Frisch)

October 7, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Complaint Alleges Improper Advances

A complaint filed by the North Carolina State Bar alleges that an attorney engaged in misconduct in a domestic case that involved child custody and support.

The complaint alleges that lawyer and client met at a restaurant after a court hearing where he "flirted with [the client] and kissed her."

From that point forward, most of [the attorney's] communications with [the client] were flirtatious, romantic, or sexual.

He allegedly proposed romantic trips and "sent...graphic messages, explicit propositions, one or more semi-nude photos of himself, and at least one photograph of his genitals."

He did advise her to seek independent legal advice but allegedly did not obtain the client's informed consent.

The attorney allegedly gave the client "$500, permitted [her] to use his credit card, and wrote her a check for $8,000.00."

The client "resisted [his] efforts to persuade her to engage in a sexual relationship, and ultimately sought other counsel to complete her case."

The complaint further alleges improper post-termination disclosures to opposing counsel. (Mike Frisch)

October 7, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Tennessee Hears Bar Discipline Matters

Oral argument in two bar cases was scheduled yesterday in the Tennessee Supreme Court.

Summaries from the court's web page

  • Tyree B. Harris, IV v. Board of Professional Responsibility of the Supreme Court of Tennessee– This attorney-discipline case originated from attorney Tyree B. Harris’s conduct in the law firm of Willis & Knight, PLC. The Board of Professional Responsibility filed a petition for discipline against Mr. Harris alleging that he violated Tennessee Rule of Professional Responsibility 8.4 during his testimony in a child support modification proceeding when he failed to disclose his receipt of $225,000 from the firm’s escrow account. A hearing panel of the Board of Professional Responsibility determined that Mr. Harris “engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation” in violation of Rule 8.4(c) based on his testimony in child support modification proceedings. The hearing panel suspended his license for one year. The trial court affirmed the hearing panel’s decision, and Mr. Harris has appealed pursuant to Tennessee Supreme Court Rule 9, section 33.1(d). He challenges the ruling of the trial court affirming the hearing panel’s decision finding that he violated Rule 8.4 and the imposition of the one-year suspension as punishment for the violation.
     
  • Charles Edward Walker v. Board of Professional Responsibility of the Supreme Court of Tennessee– This is an attorney-discipline case. The Tennessee Board of Professional Responsibility filed a Petition for Discipline against attorney Charles Edward Walker on August 29, 2018, alleging Mr. Walker committed multiple disciplinary violations based on four separate complaints. The Board filed a Supplemental Petition for Discipline against Mr. Walker on February 15, 2019 based on a fifth complaint. A disciplinary hearing was held on both petitions on November 12-13, 2019. The Hearing Panel found that Mr. Walker violated Rules 3.1, 3.3, 3.4, 4.1, and 8.4(a), (c) and (d) of the Rules of Professional Conduct. As a result, the Hearing Panel ruled that Mr. Walker should be suspended from the practice of law for three years, including two years of active suspension and one year on probation under supervision of a practice monitor. The Hearing Panel also assessed costs against Mr. Walker in the amount of $4,464.07. The Chancery Court of Davidson County affirmed the decision of the Hearing Panel, and Mr. Walker has now appealed to the Tennessee Supreme Court. His appeal relates to the chancery court’s ruling on the initial complaint against him, in which Mr. Walker and his employees were found to have engaged in conduct intended to deceive a chancellor regarding documents used to redeem property from a tax sale.

(Mike Frisch)

October 7, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Misappropriation Consent Sanction At Issue In D.C.

The oral argument held yesterday in the District of Columbia Court of Appeals in In re Mensah is now available on the court's web page.

The case involves the tension between the court's normative sanction of disbarment for intentional or reckless misappropriation and the need to use consent discipline as a consequence of the interminable systemic delays in D.C. bar matters.

The parties propose a consent sanction of a three year suspension with fitness.

The highly engaged  court of Associate Judges McLeese and Deahl and Senior Judge Steadman closely questioned the parties and (in my view) expressed a number of concerns about the proposed disposition.

Judge McLeese noted at the outset the unusual posture of an oral argument in a matter where the parties are in agreement.

My read is that the division may reject the consent disposition as beyond its power in light of the en banc decision in In re Addams.

Perhaps then the parties will seek en banc review of the rejection if my (almost always incorrect) prediction holds.

Disciplinary Counsel Hamilton Fox acknowledges the disconnect between the Addams holding and the consent process but powerfully presents the position that consents are an indispensable tool in a system that allows an attorney accused of misappropriation to practice for several years while fighting the charge.

Here he seeks limited authority to negotiate in cases involving reckless, but not intentional. misappropriation.

Of course, whether misappropriation is negligent, intentional or reckless may often be found in the eye of the beholder.*

Or a three judge division of the court.

In re Addams has an "exceptional circumstances" exception to the mandatory disbarment rule. The court has found such circumstances only where addiction caused the misconduct and there is substantial rehabilitation and in this rather unique case.

The court asked whether prompt recognition of the violation, remedial action and the willingness to accept a three-year suspension was an exceptional circumstance.

The court has not gone en banc in a bar discipline matter since my argument in  In re Elliott Abrams, argued in 1996 and decided in 1997. 

My record as the last disciplinary counsel to argue en banc may be in jeopardy.

* For a stark example, see the New Jersey case posted directly below (Mike Frisch)

October 7, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Bumpy Road Leads To Unexplained Destination

When I was a disciplinary prosecutor, New Jersey had a reputation for being especially tough on lawyer misconduct.

That reputation likely had its genesis in In re Wilson, a 1979 decision which held that the presumptive sanction for intentional misappropriation is disbarment.

A recent decision of the New Jersey Supreme Court reducing the proposed sanction of the Disciplinary Review Board shows the distance travelled since those halcyon days of yore.

The DRB explains the allegations

This matter was before us on a recommendation for a private reprimand (now an admonition) filed by a special master. The formal ethics complaint charged respondent with having violated RPC 1.15(a) and the principles of In re Wilson, 81 N.J. 451 (1979), and In re Hollendonner, 102 N.J. 21 (1985) (two instances) (knowing misappropriation of client and escrow funds); RPC 3.3(a)(1) (false statement of material fact or law to a tribunal); RPC 8.4(b) (commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer – misapplication of entrusted property, contrary to N.J.S.A. 2C:21-15); and RPC 8.4(c) (two instances) (conduct involving dishonesty, fraud, deceit or misrepresentation).

For the reasons set forth below, we determine to recommend to the Court that respondent be disbarred.

A 69 page report details the reasons for the unanimous recommendation.

The court's terse disposition

And the Court having considered the briefs of the parties and the arguments of counsel and having concluded from its review of the record that respondent had negligently, and not knowingly, misappropriated funds, in violation of RPC 1.15 (a), and that the additional charges of unethical conduct (RPC 8.4(b) and RPC (c)) therefore should be dismissed;

And the Court having determined that a six-month suspension from practice is the appropriate quantum of discipline for respondent’s unethical conduct...

Thus a case travels from proposed admonition to proposed disbarment to a six-month suspension with little to no guidance or analysis as to why. (Mike Frisch)

October 7, 2021 in Bar Discipline & Process | Permalink | Comments (0)