Tuesday, May 21, 2019

Great Harm, Light Sanction

The West Virginia Supreme Court of Appeals accepted a proposed short suspension and probation of an attorney for misconduct in his representation of a criminal client.

His inaction led to wrongful incarceration 

On January 16, 2014, [the client] Mr. White contacted Belinda A. Haynie, a Morgantown attorney, by phone from the regional jail, having obtained her name and number from another inmate. Mr. White explained that he was seeking a new attorney. Ms. Haynie made a phone call on Mr. White’s behalf and immediately discovered the November 9, 2012, Nolle Order. The Nolle Order was sent to the regional jail and, within three hours of Mr. White’s phone call to Ms. Haynie, he was released from incarceration. Mr. White had spent 433 days in custody without any pending charges, detainer, or remaining sentence imposed.

In November 2014, Mr. White through Ms. Haynie filed a civil action against Mr. Anderson and others. Ms. Haynie also filed an ethics complaint with the ODC on Mr. White’s behalf, which resulted in this disciplinary proceeding. Subsequently, the civil action was settled.

The Hearing Panel Subcommittee proposed a short suspension and probation

The recommended sanctions were presented to this Court on April 13, 2018. By order entered June 5, 2018, this Court remanded the matter to the HPS with directions to set forth the terms of probation and resubmit its report. Upon resubmission, this Court did not concur with the recommended sanctions and, instead, directed the parties to file briefs and scheduled the matter for oral argument...

Based upon its consideration of the Jordan factors and precedent indicating that suspension is appropriate when a lawyer fails to perform services for a client that causes injury or engages in a pattern of neglect that causes injury, the HPS recommended that Mr. Anderson’s law license be suspended for six months. However, the HPS further recommended that after sixty days of suspension, Mr. Anderson’s law license be automatically reinstated and that his remaining term of suspension be stayed for a term of supervised probation. The HPS also recommended additional sanctions as set forth above.

The court now agrees

Based upon all the above and our careful review of the record, we agree with the HPS that a suspension with probation is the appropriate sanction for Mr. Anderson’s misconduct. Mr. Anderson willingly admitted to the misconduct and expressed remorse not only in this proceeding but during the civil action instituted by Mr. White. The record indicates that Mr. Anderson was instrumental in securing financial restitution for Mr. White through a quick and fair settlement of the civil action. Furthermore, the evidence submitted at the HPS hearing established that Mr. Anderson’s conduct was an aberration and that he has taken steps to make sure that the misconduct never occurs again, specifically changing his practice to an office setting with other attorneys and a support staff.

Justice Armstead dissented, accepting the majority's analysis of the relevant factors but not the result

Mr. Anderson’s misconduct is egregious because the injury suffered by his client would have been minimized had Mr. Anderson complied with multiple circuit court orders directing him to communicate with Mr. White. In previous disciplinary matters, this Court has suspended attorneys for failing to communicate with a client. The lack of communication in the present case is especially egregious because it resulted in Mr. Anderson’s client spending over a year in prison beyond what he was legally required to serve.

Justice Workman joined the dissent.

If I were Mr. White, I would think that bar discipline is a hollow promise of public protection. I might think that even if I was not Mr. White. (Mike Frisch)

May 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

North Carolina: Trial Court Can Impose Disability Suspension

The North Carolina Court of Appeals upheld the inherent authority of a trial court to impose a disability suspension. 

The attorney had two matters scheduled in the same courthouse.

One involved responding to a summary judgment motion; the other was a custody dispute.

One of the judges suspected he was impaired. The two judges discussed the matter and decided that the summary judgment matter had priority.

The summary judgment judge continued the matter over the attorney's denial that he was impaired.

Once in chambers, “[i]t became readily apparent to [Judge Shirley] that [Respondent] was impaired” because his pupils were dilated, his speech was slurred, and he did not have “a rational thought process.” When asked by Judge Shirley if he was on any medication or other mind-altering substances, Respondent admitted he took antidepressants, as he suffered from an anxiety disorder and depression, but adamantly denied he was impaired. Based on Respondent’s condition, Judge Shirley informed Respondent that he believed Respondent was impaired and unable to represent his client, and that he intended to continue the hearing to the following week.

The custody judge

Upon leaving Judge Shirley’s chambers, Respondent returned to Judge Dunston’s courtroom. Judge Dunston informed Respondent that she would not allow him to proceed with the custody hearing and asked Respondent if he would submit to an examination by a drug recognition expert (DRE). Respondent initially agreed to the DRE examination. However, when the DRE arrived, Respondent stated he was embarrassed and wanted to leave, and refused to submit to the DRE examination. Thereafter, Respondent left.

The rescheduled summary judgment hearing did not allay the judge's concerns

Once in chambers, Judge Shirley expressed his concerns regarding Respondent’s behavior on 29 March 2018, which he believed amounted to contempt of court. Judge Shirley also informed Respondent that he believed Respondent was impaired on 6 April 2018 as well. Based on these concerns, Judge Shirley presented Respondent with a draft Motion to Show Cause for Contempt and told Respondent he would not file this Motion if Respondent would voluntarily seek evaluation and treatment through the Lawyer Assistance Program (LAP). As a further condition, Judge Shirley required Respondent sign a release allowing the LAP to report Respondent’s compliance status to Judge Shirley. Thereafter, Respondent agreed to Judge Shirley’s request and signed the release (LAP Agreement).

But

At 4:37 a.m. on 2 May 2018, Respondent sent an email to Kellie Myers revoking the LAP Agreement and declaring it “null and void,” contending he was initially coerced into signing the LAP Agreement. Respondent also sent an email to the Eastern Clinical Coordinator of the LAP revoking the LAP Agreement.

Practice pointer : Do not send a consequential email at 4:37 a.m. The same principle would apply to tweets.

As a result a contempt hearing was held

On 1 June 2018, a hearing on the Show Cause Order came on before Wake County Senior Resident Superior Court Judge Paul C. Ridgeway (Judge Ridgeway). Respondent attended this hearing and represented himself pro se. At the end of the day, Judge Ridgeway adjourned the hearing and notified Respondent that the hearing would resume on 6 June 2018. However, Respondent failed to appear on 6 June 2018 when the hearing resumed. At the conclusion of the 6 June 2018 hearing, Judge Ridgeway took the matter under advisement, and on 8 June 2018, Judge Ridgeway entered the Disability Order transferring Respondent to disability inactive status.

Thus this appeal.

The court here rejected his attacks on the fact-finding. In particular, it concluded that he had voluntarily signed the LAP agreement. 

As to subject matter jurisdiction

Although we have found no case addressing the trial court’s authority with regard to placing attorneys on disability inactive status, a trial court’s inherent authority to regulate attorneys before it must also include the authority to place an attorney on disability inactive status under appropriate circumstances. Just as our trial courts have the inherent authority to impose sanctions upon attorneys appearing before them, there is no question that a superior court, as part of its inherent power to manage its affairs, to see that justice is done, and to see that the administration of justice is accomplished as expeditiously as possible, has the authority to transfer an attorney to disability inactive status.

Conclusion

Respondent essentially argues these Conclusions are not supported by the Findings because (1) the Findings are not supported by competent evidence and (2) Respondent had provided a medical opinion to the Deputy Counsel for the State Bar, who had been appointed to prosecute this matter, on 5 June 2018 that Respondent was competent to practice law. With regard to the 5 June 2018 medical opinion, Respondent failed to appear at the 6 June 2018 hearing and did not present any evidence of this medical opinion throughout the two hearings. Because this 5 June 2018 medical opinion was not admitted, the trial court did not err by failing to consider this opinion.

As for Respondent’s remaining argument, we have already determined the Findings were supported by competent evidence, and we hold these Findings support the trial court’s Conclusions. Specifically, the Record shows all six of the State’s witnesses testified to believing Respondent was impaired on two separate occasions, 29 March 2018 and 6 April 2018. Both Judges Dunston and Shirley testified they believed it was in Respondent’s best interest, and the interest of the proper administration of justice, that he should be placed on disability inactive status until he has been evaluated and treated for his impaired condition. Therefore, we hold the trial court’s Conclusions of Law are supported by the Findings of Fact and the trial court did not abuse its discretion by placing Respondent on disability inactive status.

This decision reflects a significant recognition of a trial court's inherent authority to impose a statewide prohibition on an attorney's practice.

North Carolina lawyers be forewarned. 

The Bar's procedures for a disability suspension are linked here. 

j) No suspension of an attorney's license shall be allowed without notice and a hearing unless

(1) the State Bar files a petition with supporting affidavits, as provided in Rule .0606(a)-(c) above.

(2) the State Bar's petition and supporting affidavits demonstrate by clear, cogent, and convincing evidence that immediate and irreparable harm, injury, loss, or damage will result to the public, to the lawyer who is the subject of the petition, or to the administration of justice before notice can be given and a hearing had on the petition.

(3) the State Bar's petition specifically seeks the temporary emergency relief of suspending ex parte the attorney's license for up to 10 days or until notice be given and a hearing held, whichever is shorter, and the State Bar's petition requests the court to endorse an emergency order entered hereunder with the hour and date of its entry.

(4) the State Bar's petition requests that the emergency suspension order expire by its own terms 10 days from the date of entry, unless, prior to the expiration of the initial 10-day period, the court agrees to extend the order for an additional 10-day period for good cause shown or the respondent attorney agrees to an extension of the suspension period.

I have no doubt that many jurisdictions (such as the District of Columbia) would not grant such power to a trial court. (Mike Frisch)

May 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Nest Of Unauthorized Practice

A consent two-year suspension has been imposed by the Pennsylvania Supreme Court for unauthorized practice.

The attorney had been placed on disability inactive status in 2003. 

"At some point " he became employed by a law firm as "Litigation Manager." 

The firm's website identified his credentials as a J.D. with a degree from Temple Law "offering over 33 years of experience in settling all types of personal injury claims."

The stipulation recites how he brought those skills to bear in dealings with a claims specialist for a health care provider without advising her of his non-attorney status.

The court imposed an 18-month consent suspension of the attorney who employed him for facilitating the unauthorized practice of the above attorney and another attorney who had been suspended for five years in 2012.

That suspended attorney consented to disbarment in April 2018. (Mike Frisch)

May 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

The Informant Ran Off With The Cash

Kathleen Maloney previews a bar discipline matter set for argument today before the Ohio Supreme Court.

Cleveland Metropolitan Bar Association v. Matthew J. King, Case no. 2018-1762
Cuyahoga County

In June 2016, Cleveland attorney Matthew J. King was convicted of two counts of money laundering and one count of attempted money laundering. The trial court sentenced King to 44 months in prison for the felonies, and he was released in August 2018 after serving part of his sentence.

The Ohio Board of Professional Conduct suspended King from practicing law on an interim basis following his convictions. The board now suggests an indefinite suspension for King with no credit for the time on the interim suspension. The Cleveland Metropolitan Bar Association objects to the proposed sanction, arguing for King’s disbarment.

Early in his legal career, King worked as an assistant law director and prosecutor for the city of Lakewood and as an assistant Cuyahoga County prosecutor.

Attorney Agrees to Set Up Fake Business for Drug Money
In 2014, King had a conversation with a law-enforcement confidential informant, who indicated he was a drug dealer connected to a Mexican cartel. In recorded discussions, King talked about forming a corporation and opening a bank account for the informant to launder money obtained from drug deals and first depositing the money through his client trust account (IOLTA). The lawyer accepted $20,000 from the man.

However, King never filed the paperwork for the corporation, and didn’t deposit any of the man’s money into his IOLTA account. During the next several weeks, whenever the informant asked, King gave him cash. The lawyer also gave the informant a check from his personal account for $2,000 as a way to show the informant that a bank account was being used to launder the money.

The informant absconded with all of the money. King subsequently offered to help the FBI recover the money. In October 2015, the attorney was indicted for money laundering and found guilty.

Board Considers Mitigating Factors
At his disciplinary hearing, King argued the government’s case was flawed because he only held the cash and gave the informant a personal check. He noted he is considering a habeas corpus petition to try to overturn his convictions. King also described his struggle with drinking, his father’s death, a difficult divorce, and his estrangement from a daughter during the time that he engaged in the money-laundering scheme. A common pleas judge, who is King’s Alcoholic Anonymous’ sponsor, testified for King.

While the panel that handled the hearing noted King’s dishonest and selfish motive, it also acknowledged his prison sentence, completion of an alcohol and drug rehabilitation program in prison, cooperation during the disciplinary process, and evidence of his legal abilities and good character.

Although the bar association advocates for disbarment, the board concluded that the sanction isn’t necessary to protect the public. The board recommends to the Ohio Supreme Court an indefinite suspension for King with no credit for the time he has spent on the interim suspension. Along with the standard requirements for reinstatement to the practice of law, King must show proof of his continued sobriety, under the board’s recommendation.

Bar Association Argues for Disbarment Based on Crimes
The bar association objects to the board’s suggested sanction. The bar association points to a few cases from 1993 in which the Ohio Supreme Court permanently disbarred lawyers in circumstances similar to King’s.

The bar association also maintains that King’s testimony reveals that he hasn’t acknowledged the seriousness of his conduct. Nor has he offered evidence that his illegal actions were caused by his alcoholism or stemmed from his personal family troubles, the bar association argues. Although the board stated in its report that it appreciates King’s efforts to change his life since his crimes, the bar association contends that those steps aren’t enough to warrant his return to practicing law.

Attorney Stresses He Didn’t Pursue Illegal Plans
Noting that he never formed a corporation for the informant nor took any of the other steps they had discussed, King maintains that he didn’t intend to commit money laundering and notes the assistance he provided to the FBI when arrested. He argues that he never followed through with any of the plans for setting up a shell corporation, unlike the lawyers in the 1993 cases cited by the bar association.

The bar association ignores not only his actions to take responsibility and better his life, but also the board’s finding that he accepted that his conduct was immoral and unethical, King states. Pointing out that the Supreme Court can exercise independent judgment when considering all relevant factors in disciplinary cases, he asks for a sanction less severe than disbarment.

I am live blogging the argument.

According to the Relator, the attorney got his (failed)  idea from Breaking Bad and Rush Limbaugh.

The court through several members seems to challenge the appropriateness of permanent disbarment.

Counsel got into trouble by seeming to suggest that white collar crime is less sanctionable than drug-related crimes.

Counsel for the Respondent argued for providing him an opportunity to get his license back.

Questions focused on issues of credit for time served for interim suspension and an acknowledgment that he cannot be reinstated while on criminal probation.

Prediction: Less than disbarment. (Mike Frisch)

May 21, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Monday, May 20, 2019

Without License

A practice pointer/reminder for Prof/Judge Mike Oths' class at Concordia Law:

The Idaho Supreme Court entered an order

suspending Rexburg attorney Troy E. Rasmussen for one ( 1) year, with six ( 6) months withheld, and a one year probation upon reinstatement. The Idaho Supreme Court' s Order followed a Professional Conduct Board recommendation and stipulated resolution of an Idaho State Bar disciplinary proceeding.

In early 2018, Mr. Rasmussen did not have a malpractice policy and therefore did not pay his license fees. His license was canceled by a March 7, 2018, Idaho Supreme Court Order, which Mr. Rasmussen received the second week of March 2018. However, on March 28, 2018, Mr. Rasmussen deposed the opposing party in a case without promptly disclosing that he did not have an active license to his client, the court, or opposing counsel. Once opposing counsel became aware of these circumstances, he filed a Motion in Limine. One of the bases of that motion was to preclude any evidence relating to his client' s deposition testimony since Mr. Rasmussen was not licensed when he took that deposition. The district court granted the motion and instructed Mr. Rasmussen to report his conduct to Bar Counsel, which he did. Mr. Rasmussen' s later response to specific inquiries from Bar Counsel contained statements he knew were not accurate.

(Mike Frisch)

May 20, 2019 in Bar Discipline & Process | Permalink | Comments (0)

"No Bad Habits"

The Georgia Supreme Court accepted the resignation of a former United States Attorney for the Southern District of the state who was convicted of a felony offense.

Resignation is "tantamount to disbarment." 

His conviction was covered by Southeast Georgia Today

Last Friday 62-year-old Rick Thompson was sentenced to three years in prison with the remainder of his 20-year sentence to be served on probation.

Superior Court Judge Stephen G. Scarlett passed sentence on Thompson following a bench trial in Brunswick January 31.

Last summer Thompson violated a restraining order to stay away from his former girlfriend Mary Ella Kent and a warrant was issued for his arrest in Glynn County where they resided.  He was arrested in Toombs County July 27 where he was found on a county road sitting in his car with a pistol to his head.

And by Law.com's Daily Report

Thompson’s conviction was the culmination of multiple instances over two years where he surveilled his former girlfriend by repeatedly parking outside her house, following her in his car while she was walking her dog or driving, and occasionally pounding on her door, according to records associated with restraining orders issued against him.

Thompson also sent a steady string of emails disparaging her and threatening legal action to her friends, members of her family and Crossland. He also hinted he would initiate investigations by the Georgia Bureau of Investigation, the FBI or the news media—referencing prosecutions he launched while U.S. attorney, Crossland told The Daily Report shortly after Thompson’s 2017 arrest.

From the Atlanta Journal Constitution 

He sat, alone, in a parked Volvo, a .22-caliber pistol pointed at his head, surrounded by suicide notes. Rick Thompson was going to end his life where it began, in rural Toombs County on a road that shares his surname.

It was a final act no one would’ve predicted for Thompson, who just 17 years ago was appointed U.S. Attorney for the Southern District of Georgia. A series of setbacks, some personal, some professional, followed, but none had affected him as much as his break-up with a woman he met a few years earlier on St. Simons Island — a relationship he ended in April 2016...

Those who know him best are still in shock over his rapid fall from grace.

“He had a lot going for him, just a regular hard-working guy,” said former U.S. Rep. Jack Kingston. Thompson managed Kingston’s first campaign for Congress in 1992, when the former Savannah insurance salesman became the first Republican since Reconstruction to win Georgia’s first district. “He had no bad habits, didn’t drink, didn’t smoke.”

The Brunswick News reported on his arrest in August 2018

A former federal prosecutor is behind bars after being charged for the second time in a year with stalking a Glynn County woman, the latest arrest occurring Friday after the man allegedly threatened to shoot himself during a standoff with a Toombs County Sheriff’s deputy.

Richard Scott Thompson, 60, who lives on St. Simons Island, was turned over to local authorities and remained Tuesday in the Glynn County Detention Center on a charge of aggravated stalking. He is being held without bond, jail records show.

The U.S. Attorney for Georgia’s Southern District from 2001-04, Thompson was arrested on July 25 last year in Glynn County and charged with aggravated stalking. A Glynn County Magistrate Court in late June of 2017 had granted the request of a former girlfriend of Thompson’s to have a restraining order placed on him, court records show. Thompson allegedly violated that order several times in July of 2017, following her aggressively in his car, stalking her outside her mainland residence and sending harassing emails, according to a county court arrest warrant.

He was released from jail July 30 after posting $12,000 bond.

Glynn County Magistrate Court again issued an arrest warrant for Thompson last Thursday, court records show. In an affidavit filed with the court, the 56-year-old woman accused Thompson of calling her, confronting her and driving through her neighborhood while she was walking her dogs on several occasions between July 23 and July 26, the affidavit said.

On Friday, Toombs County Sheriff’s deputy Wallace Thompson spotted Richard Thompson driving his silver Volvo on South Thompson Road near Vidalia, according to the Toombs County sheriff’s incident report. Thompson once had a law office in Vidalia, according to media reports.

Upon learning of the Glynn County warrant for Thompson’s arrest, the Toombs deputy followed Thompson until he stopped his Volvo on the dead-end Pinewood Road. Thompson allegedly put a .22 caliber Ruger semi-automatic pistol to his head while sitting inside the vehicle as the deputy approached on foot, the report said.

The deputy took cover, ordering Thompson to put the gun down and step out of the car. After allegedly placing the gun to his head one more time, Thompson stepped out of the vehicle unarmed and was arrested by deputy Thompson, the report said.

In addition to the handgun, the report said deputies recovered two handcuff keys and “some suicide letters” inside the Volvo, the report said.

Thompson was appointed by President George W. Bush as the U.S. Attorney for Georgia’s Southern District in 2001. However, he resigned in January of 2004 amid allegations that he “abused his authority and violated the public trust” by using his position to help a political ally’s election campaign, according to a Department of Justice record. Thompson told the Savannah Morning News that year that he resigned to pursue a private practice.

The woman also had gone to magistrate court in September of 2016 to seek a restraining order against Thompson, court records show.

It is unclear if Thompson has an attorney.

(Mike Frisch)

May 20, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, May 18, 2019

Relentless Bully

An unpublished opinion of the California State Bar Court Review Department

This matter concerns Sanjay Bhardwaj’s egregious misconduct stemming from his divorce from Anupama Pathak (Pathak). With his conduct being described by a superior court judge as "absolutely outrageous," Bhardwaj was declared a vexatious litigant by the Alameda County Superior Court in 2013. Nevertheless, he continued to use the courts to relentlessly bully his ex-wife. In 2014, a court stated, "[Bhardwaj] continues to recycle the same unmeritorious, and repeatedly rejected arguments." As a result of his misconduct, Bhardwaj has been sanctioned more than $140,000.

The hearing judge recommended disbarment

Bhardwaj seeks review. He requests dismissal, arguing, among other things, that OCTC presented insufficient evidence to establish culpability for any charge, that the State Bar lacks jurisdiction over his conduct, and that he was merely trying to protect his property rights. This is Bhardwaj’s first discipline since he was admitted to practice in 2008; however, he began his misconduct only a year after he became a member of the bar.

Based on our independent review (Cal. Rules of Court, rule 9.12), we agree with most of the hearing judge’s culpability and aggravation findings. We also find that Bhardwaj presented no evidence to mitigate his disruptive and harmful misconduct, and appears likely to continue such behavior in the future. We recommend disbarment as the only discipline adequate to protect the public, the courts, and the legal profession.

Sanction

Bhardwaj argues that all charges against him should be dismissed. He maintains that he is not subject to the court’s jurisdiction and that he is completely free of any wrongdoing. We reject these arguments. Bhardwaj used his legal knowledge to repeatedly file frivolous actions and harass his ex-wife, opposing counsel, and a real estate agent. He sought to cloud the title to the family home to force Pathak to sell it to him. His misconduct went beyond vexatious litigation as it involved substantial aggravation, including a lengthy pattern of wrongdoing, significant harm to others, disregard for the court process, and a total lack of insight into his harmful behavior. And he has failed to establish any mitigation.

Given these circumstances, we conclude that Bhardwaj should be disbarred...

(Mike Frisch)

 

May 18, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 17, 2019

Complainant May Not Appeal Dismissal Of Bar Grievance

The Vermont Supreme Court held that a dissatisfied complainant lacks standing to appeal a dismissed bar complaint

Petitioner filed a petition for extraordinary relief, asking this Court to order Bar Counsel to refer for investigation a complaint he made against an attorney. Bar Counsel moves to dismiss the petition. We grant his request. We agree with “every jurisdiction that has ever confronted” this issue and conclude that petitioner fails to “allege an injury sufficient to confer standing.” Boyce v. N.C. State Bar, 814 S.E.2d 127, 134 (N.C. Ct. App. 2018) (recognizing that many individuals have “taken issue with a state bar’s failure to act on a disciplinary grievance and then sought relief from the courts,” and “every jurisdiction that has ever confronted [this issue] has concluded that the complainant has not alleged an injury sufficient to confer standing” (citing cases))

Before turning to the merits, we address petitioner’s request, made almost two months after filing his petition, to add his client as a “co-petitioner” because she was “subjected to the conduct complained of.” We deny his request. The subject of this petition for extraordinary relief is the complaint that petitioner filed with the Professional Responsibility Program; his client filed no such complaint. Even if we were to grant petitioner’s request to add a co-petitioner, we would reach the same result. Neither petitioner nor his client has standing to pursue this case.

The complaint's disposition

Petitioner here filed a complaint with the Professional Responsibility Program in August 2018. Bar Counsel reviewed the complaint and dismissed it, explaining to petitioner the reasons for his decision. Upon petitioner’s request, the Chair of the Professional Responsibility Board reviewed the matter and upheld Bar Counsel’s decision. Petitioner then tried to appeal the Chair’s decision to this Court. We dismissed the case, finding that petitioner had no right to appeal.

And no right to "extraordinary relief."

The court surveyed other jurisdictions

Like the states above, our attorney-discipline system serves “to protect the public from persons unfit to serve as attorneys and to maintain public confidence in the bar, as well as to deter other attorneys from engaging in misconduct.” Robinson, 2019 VT 8, ¶ 73 (quotation omitted). To this end, the rules allow for the imposition of various sanctions against attorneys for misconduct. See A.O. 9, Rule 8 (identifying possible sanctions). The attorney-discipline process does not provide “a means of redress for one claiming to have been personally wronged by an attorney.” Cotton v. Steele, 587 N.W.2d 693, 699 (Neb. 1999). Petitioner cannot show any “threat of actual injury to a protected legal interest” from Bar Counsel’s dismissal of his ethics complaint, Turner, 2017 VT 2, ¶ 11, because the only individual “who stands to suffer direct injury in a disciplinary proceeding is the lawyer involved,” Lath, 154 A.3d at 1245. To conclude otherwise would “shift the focus of the disciplinary process from the public interest” to a grievant’s “private interests,” thereby contravening “the essential purpose of the attorney discipline system—to protect the public.” Lath, 154 A.3d at 1245.

(Mike Frisch)

May 17, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Prescription: Disbarment

Automatic disbarment was ordered by the New York Appellate Division for the First Judicial Department as a result of an attorney's felony drug conviction in Texas

On August 12, 2015, respondent was convicted, upon his plea of guilty, in the District Court, Burnet County in Texas, of fraudulent delivery of a controlled substance, a prescription schedule III/IV/V, in violation of Texas Health and Safety Code § 481.129(c)(1), a felony in the third degree. Respondent, a medical doctor as well as an attorney, pled guilty to "intentionally or knowingly deliver[ing] to [an individual], by actual transfer or constructive transfer, a prescription for Phentermine, for other than a valid medical purpose in the course of his professional practice." On September 22, 2015, respondent was sentenced to five years of imprisonment, which was suspended, 10 years of community supervision, which included 15 days of incarceration, and fined $1,000...

We conclude that the Texas and New York felonies are essentially similar. The Second Department addressed a comparable scenario in Matter of Miller (286 AD2d 96 [2d Dept 2001]) in which the Court found two Washington State felony convictions for delivery and attempted delivery of a controlled substance were essentially similar to the New York felonies of criminal possession of a controlled substance in the fifth degree and criminal sale of a controlled substance in the fifth degree. The Miller Court's conclusion as to the latter statute is particularly instructive since the Second Department found that a Washington conviction for the "delivery" of a controlled substance was essentially similar to the "sale" of a controlled substance under New York Penal Law § 220.31. Miller is authority that there is no material difference under New York law between criminal "sale" and unlawful "delivery" of a controlled substance.

Findings similar to Miller have been made in other cases comparable to that of respondent (see e.g. Matter of Ekperigin, 304 AD2d 133 [1st Dept 2003]; Matter of Seide, 94 AD2d 153 [1st Dept 1983]; Matter of Felsen, 40 AD3d 1257 [3d Dept 2007]; Matter of Brubaker, 293 AD2d 129 [4th Dept 2002]).

As it is a felony under both the Texas and New York statutes to unlawfully provide a third-party with a prescription for a controlled substance, automatic disbarment is warranted herein as respondent ceased to be an attorney and counselor-at-law in New York as of the date of his Texas conviction (August 12, 2015), and this Court need not reach the Committee's alternate request that respondent's conviction be deemed a "serious crime" pursuant to Judiciary Law § 90 (4) (d).

(Mike Frisch)

May 17, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Add On Suspension

The Ohio Supreme Court has decided a disciplinary matter as summarized by Dan Trevas

The Ohio Supreme Court today issued a two-year suspension to a Westerville attorney, who has yet to seek reinstatement from a one-year suspension imposed on him in 2016.

In a unanimous per curiam opinion, the Supreme Court found Darwin R. Roseman violated several rules governing the conduct of Ohio lawyers, including failing to competently represent his clients in a personal-injury case initiated in 2007. The Court noted that at the time of Roseman’s disciplinary hearing, more than 10 years after the accident that injured a husband and wife, the couple had yet to receive compensation for their injuries.

Roseman was suspended by the Court in July 2016 for one year with six months stayed on conditions that he commit no further misconduct and that he resolve a $135,000 judgment imposed on him when his client prevailed in a malpractice lawsuit. Roseman has not applied for reinstatement since the suspension. Two months after the Court’s order, the Columbus Bar Association initiated another investigation based on the grievance filed by Roseman’s clients, John and Sandie Backus.

Attorney Delays Settlement Efforts
The Backuses were injured in a multi-vehicle accident in August 2007 and hired Roseman to pursue their personal-injury claims. Roseman filed a lawsuit against the driver who caused the accident and the Backuses’ own insurance provider, American National Property and Casualty Company (ANPAC), for uninsured and underinsured motorist coverage. Both defendants requested discovery from Roseman, who did not respond to their initial requests or any follow-up inquiries. ANPAC and the driver both obtained court orders compelling Roseman to comply, but instead he dismissed the Backuses’ case in 2010 without their knowledge, and sent letters to the opposing attorneys telling them he planned to submit settlement materials to them within a few weeks. He did not do so.

In January 2011, he refiled the lawsuit without having presented any settlement material to the opposing parties, and did not attempt to settle any matters with the driver who caused the accident, believing her insurance coverage had been exhausted by other claims arising from the accident. ANPAC responded, and again asked for discovery materials from Roseman in February 2011, who did not comply. In June 2011, the trial court ordered Roseman to comply and he sent ANPAC the couple’s medical records, but not of the any additional materials requested.

Insurer Offers Resolution 
Shortly after receiving the records, ANPAC offered the Backuses about $20,000 to settle the matter, and Roseman did not respond directly to the offer for some time. In March 2012, the Court’s opinion noted, Roseman made his first settlement request, offering to accept $40,000 from ANPAC. He did not tell the couple he made the offer and he did not obtain an expert’s opinion as to which medical conditions claimed by the Backuses related to the accident.

After an April 2012 conversation with Roseman, ANPAC’s lawyer believed they agreed to settle the case for $40,000, with $10,000 of it already having been paid by ANPAC toward the couple’s medical bills. Roseman did not tell the Backuses about the offer, and they heard about it from their chiropractor’s billing office. They called Roseman to express their dissatisfaction.

Trial Court Dismisses Case
Believing the case was resolved by the settlement, the trial court dismissed the case in May 2012, and Roseman understood that the insurer would not pay until he resolved all the medical-insurance liens placed by providers seeking to be paid for medical services already provided. At the time of his 2018 disciplinary hearing, Roseman had not completed that work, and ANPAC had not issued a settlement check to the Backuses.

The couple filed their grievance with the Columbus Bar Association, which started to investigate Roseman’s conduct. Roseman initially did not respond to letters from disciplinary investigators, but later wrote them, claiming Sandie Backus had approved the settlement amount and that he believed she hired a collections attorney to enforce the agreement. He told the investigators he was surprised to learn the Backuses had not received the settlement money.

Attorney Does Not Cooperate with Investigators
The disciplinary investigators reported that Roseman would not meet with them without a subpoena, and when they served Roseman with one, he related that he no longer possessed the Backuses’ file and that it might have been lost in a 2011 flood at his office. He also said he might have thrown it in a bonfire he used in 2013 to destroy records of cases he thought were closed. Roseman admitted he never offered the couple the chance to retrieve their legal records before he destroyed them, and that he never verified with the Backuses that they received their settlement check.

The bar association charged Roseman with multiple ethical violations. The parties stipulated that Roseman violated nine rules, including failing to provide competent representation, failing to inform clients of decisions that required their consent, and failing to keep his clients reasonably informed about the status of their matter. The parties proposed a two-year suspension for Roseman with six months stayed and that the sanction run concurrently with his 2016 suspension.

The Board of Professional Conduct agreed to recommend that the two suspensions be served concurrently, but proposed that no portion of his sentence be stayed. Instead the board recommended the two-year suspension and a requirement that he complete six hours of continuing legal education on law-office management and, if reinstated, serve a two-year period of monitored probation. He also must fulfill the conditions of his 2016 suspension, including resolution of the $135,000 judgment against him.

The Court’s opinion stated that Roseman failed to pursue a claim against the driver at fault, abandoned his clients after agreeing to settle their claims, and destroyed their files without letting them know about it and without collecting or distributing the settlement money. The Court agreed with the board’s proposed sanctions and suspended Roseman for two years.

2018-1439Columbus Bar Assn. v. RosemanSlip Opinion No. 2019-Ohio-1850.

(Mike Frisch)

May 17, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Dismissal Of Gentile Bar Complaint Left Undisturbed By Nevada Supreme Court

Anyone who has an interest in lawyer ethics well knows the name and fame of Dominic Gentile. 

The Nevada Supreme Court recently declined to act on the dismissed complaint of a former client convicted of murder.

This pro se petition for a writ of mandamus challenges the State Bar of Nevada's decision not to bring disciplinary charges against attorney Dominic Gentile.' Having considered the petition and supporting documents, we are not convinced that petitioner has met his burden of demonstrating that our intervention is warranted, see Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004), and therefore, we decline to exercise our discretion in this matter.

The court's order does not identify the nature of the bar complaint. 

The former client had raised and lost claims of ineffective assistance of counsel. Specifically (see below), the court found that the fee arrangement did not create a conflict of interest that affected the representation. 

Las Vegas Weekly reported on the fee that the client had paid in a 2012 story

Adam Gentile knows better than maybe anyone that it’s not easy to at once frighten and arouse an individual.

So he’s building a haunted house at Palomino Club.

This makes perfect sense, actually.

Gentile is the owner of Las Vegas’ only all-nude dance club in Clark County allowed to operate with a full liquor license. The club, located across from Jerry’s Nugget in North Las Vegas, opened in 1969 and holds a liquor license that was granted when the law allowed for such fully nude-full-liquor clubs. That license is not due to expire until 2019 and was grandfathered in, in other words, and on occasion you do see grandfathers enjoying the spinning entertainment at the Palomino.

How Gentile rose to ownership of the Palomino, enabling him to design a temporary Halloween attraction at the club (which will be in place Tuesday and Wednesday), is one of the more tantalizing stories in the history of Vegas business transactions. His father is Domenick[sic] Gentile, who assumed ownership of the five-acre plot on which the club sits in 2007.

One of the city’s more prominent defense attorneys, Gentile received the land as payment from former Palomino owner Luis Hidalgo Jr. in exchange for Gentile’s representation of Hidalgo in the investigation of the May 19, 2005, shooting death of Timothy Hadland. Hidalgo and his son, Luis Hidalgo III, were convicted in 2009 of second-degree murder for conspiring with others to mastermind and carry out the murder of Hadland, whose body was found near Lake Mead.

The victim was a former Palomino doorman who, according to police reports and court testimony, trashed the club to cab drivers and cost the business several thousand dollars in lost customers. The elder Gentile wasn’t exactly performing cartwheels at the idea of taking over a strip club, especially one with such a nefarious history and one that had been fairly run into the ground by the time Hidalgo offered it to Gentile.

But the attorney had an ace to play -- his son, Adam, happens to be an expert in adult-club management, having served as general manager of Club Paradise across from the Hard Rock Hotel on Paradise Road. The 38-year-old Gentile has spruced up the Palomino (it really needed a good scrubbing) and added elements of his own distinctive, often kid-like personality in his marketing of the club.

Three years ago, he was the centerpiece of a Playboy TV reality show about the Palomino, aptly titled “King of Clubs,” and more recently took up mixed martial arts as something of a hobby. He lost his first fight, in June at Eastside Cannery, on a third-round submission, but the upshot was that through training, he dropped from a weight of 307 pounds to 258.

Gentile loves horror films and over the past three Halloweens has put ample energy and resources into an elaborate Halloween attraction on the upstairs level. There, in the dark recesses of the maze-like space, you will find visages of such horror icons as Pinhead from “Hellraiser,” Jason Voorhees from the “Friday the 13th” series and Michael Meyers from the “Halloween” franchise.

Gentile has hired a couple of actors to perform the requisite leap-and-shock routine, and several of the club’s 50 to 60 dancers also are taking part. Some will come at you with machetes; most will just dress in ghoulish garb and enact fright wherever possible.

“We want people to enjoy the fright. We’re not into the shock factor and a lot of gore, which you find at a lot of big haunted houses,” Gentile says. “I look at this as our entire job is to have as much fun as possible and make people scared.”

There is no nudity in the attraction. It will be “business as usual” for customers downstairs. The two themes will not intersect.

“I couldn’t incorporate ‘We’re going to scare you’ with ‘We’re going to turn you on,’ ” Gentile reasons.

Admission to the haunted space is free, but you still must be 21 years old and older to enter the building.

Gentile has been a fan of the horror genre since he visited the Haunted Mansion at Disneyland as a kid. He also remembers being fascinated, and frightened, by the sight of a floating candle at an attraction on San Francisco’s Pier 39.

“You could not get me into the hallway to get near that candle,” he says. “It was a great illusion, and that’s the kind of thing we’re putting on here.”

Gentile says he has unique, yet unspecific, plans to use his 6-foot-7 inch DJ Ben Lake in the haunted space. He laughs at his own affinity for the macabre, as it plays out in an erotic nightclub.

“What can I say?” he says. “I have weird hobbies.”

The Las Vegas Review Journal reported that the client died in late March 2019. (Mike Frisch)

May 17, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Disparaging Judicial Opponent And Subornation Of Perjury Draws Proposed Suspension

A Louisiana Hearing Committee has recommended a one-year suspension with three months deferred

On November 11, 2016, Respondent pleaded guilty in the 19th JDC (East Baton Rouge Parish) to one count of violating state campaign finance/election laws (R.S. 18:1505.1) by knowingly and willfully failing to file an accurate and complete financial disclosure report. In 2014, Respondent knowingly failed to disclose a $1760 expenditure which he made in connection with his candidacy for New Iberia City Court Judge. Respondent later amended his previously-filed campaign finance  report to report the undisclosed expenditure. At Respondent's guilty plea, Respondent voluntarily elocuted to providing $1760 to an individual, identified as Paul Camacho, for the purpose of printing and distributing a campaign "flyer" anonymously disparaging Respondent's election opponent, Theodore, "Trey" Haik, III. Because state law requires that the person(s) publishing election materials must disclose their identity on the advertisement, in an effort to conceal Respondent's connection to the campaign material, Respondent enlisted Mr. Camacho as an intermediary and provided him with the flyer and necessary cash with instructions to print and distribute the flyer, which he later did. The flyer which Respondent provided to Mr. Camacho does not identify Respondent as the author or source of the material as required by law.

He also made false statements to investigators and tried to get Camacho to execute a false affidavit.

Respondent later invited Camacho to come to his law office, which Camacho did on August 9, 2016. At that time, Respondent once again counseled and urged him to sign an affidavit falsely stating that Respondent had not paid him cash to have the flyer printed and distributed. Respondent's stated purpose in doing so was to present false testimony from Mr. Camacho in affidavit form to the ODC. Mr. Camacho declined to sign the proffered affidavit.

Findings

The Committee finds that the Respondent engaged in the conduct set forth in the eight joint stipulations and that he did lie under oath to the Louisiana Board of Ethics and, on two separate occasions, attempt to suborn the perjury of Paul Camacho, III in order to provide false evidence to the Court which took his guilty plea and to the Louisiana Board of Ethics (paragraph V of the stipulations) and again when the matter came before the Office of Disciplinary Counsel in the course of its investigation (ODC – 7), although Camacho never signed such an affidavit and no false affidavit was ever submitted either to the court or to the Board of Ethics.

(Mike Frisch)

May 17, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 16, 2019

Federal Conviction Leads To State Disbarment

A felony conviction has resulted in an automatic disbarment per this decision of the New York Appellate Division for the Third Judicial Department

In April 2015, following a jury trial in the United States District Court for the District of New Jersey, respondent was found guilty of three federal felonies, namely, using interstate mail and facilities to promote bribery (see 18 USC § 1952), racketeering in violation of the RICO statutes (see 18 USC § 1962 [c]) and wire fraud (see 18 USC § 1343).  These convictions all stemmed from respondent's involvement in several bribery schemes undertaken in his former capacity as Chair of the Bergen County Democratic Organization. Respondent was sentenced to, among other things, concurrent 35-month prison terms on all counts. Respondent failed to report these convictions to this Court within 30 days thereof as required by Judiciary Law § 90 (4) (c) and Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.12 (a).

Disbarment is automatic because there is a "substantially similar" state felony to the crime of using the mail to promote bribery . (Mike Frisch)

May 16, 2019 in Bar Discipline & Process | Permalink | Comments (0)

By Flood Or Bonfire

A decision of the Ohio Supreme Court is summarized by Dan Trevas

The Ohio Supreme Court today issued a two-year suspension to a Westerville attorney, who has yet to seek reinstatement from a one-year suspension imposed on him in 2016.

In a unanimous per curiam opinion, the Supreme Court found Darwin R. Roseman violated several rules governing the conduct of Ohio lawyers, including failing to competently represent his clients in a personal-injury case initiated in 2007. The Court noted that at the time of Roseman’s disciplinary hearing, more than 10 years after the accident that injured a husband and wife, the couple had yet to receive compensation for their injuries.

Roseman was suspended by the Court in July 2016 for one year with six months stayed on conditions that he commit no further misconduct and that he resolve a $135,000 judgment imposed on him when his client prevailed in a malpractice lawsuit. Roseman has not applied for reinstatement since the suspension. Two months after the Court’s order, the Columbus Bar Association initiated another investigation based on the grievance filed by Roseman’s clients, John and Sandie Backus.

Attorney Delays Settlement Efforts
The Backuses were injured in a multi-vehicle accident in August 2007 and hired Roseman to pursue their personal-injury claims. Roseman filed a lawsuit against the driver who caused the accident and the Backuses’ own insurance provider, American National Property and Casualty Company (ANPAC), for uninsured and underinsured motorist coverage. Both defendants requested discovery from Roseman, who did not respond to their initial requests or any follow-up inquiries. ANPAC and the driver both obtained court orders compelling Roseman to comply, but instead he dismissed the Backuses’ case in 2010 without their knowledge, and sent letters to the opposing attorneys telling them he planned to submit settlement materials to them within a few weeks. He did not do so.

In January 2011, he refiled the lawsuit without having presented any settlement material to the opposing parties, and did not attempt to settle any matters with the driver who caused the accident, believing her insurance coverage had been exhausted by other claims arising from the accident. ANPAC responded, and again asked for discovery materials from Roseman in February 2011, who did not comply. In June 2011, the trial court ordered Roseman to comply and he sent ANPAC the couple’s medical records, but not of the any additional materials requested.

Insurer Offers Resolution 
Shortly after receiving the records, ANPAC offered the Backuses about $20,000 to settle the matter, and Roseman did not respond directly to the offer for some time. In March 2012, the Court’s opinion noted, Roseman made his first settlement request, offering to accept $40,000 from ANPAC. He did not tell the couple he made the offer and he did not obtain an expert’s opinion as to which medical conditions claimed by the Backuses related to the accident.

After an April 2012 conversation with Roseman, ANPAC’s lawyer believed they agreed to settle the case for $40,000, with $10,000 of it already having been paid by ANPAC toward the couple’s medical bills. Roseman did not tell the Backuses about the offer, and they heard about it from their chiropractor’s billing office. They called Roseman to express their dissatisfaction.

Trial Court Dismisses Case
Believing the case was resolved by the settlement, the trial court dismissed the case in May 2012, and Roseman understood that the insurer would not pay until he resolved all the medical-insurance liens placed by providers seeking to be paid for medical services already provided. At the time of his 2018 disciplinary hearing, Roseman had not completed that work, and ANPAC had not issued a settlement check to the Backuses.

The couple filed their grievance with the Columbus Bar Association, which started to investigate Roseman’s conduct. Roseman initially did not respond to letters from disciplinary investigators, but later wrote them, claiming Sandie Backus had approved the settlement amount and that he believed she hired a collections attorney to enforce the agreement. He told the investigators he was surprised to learn the Backuses had not received the settlement money.

Attorney Does Not Cooperate with Investigators
The disciplinary investigators reported that Roseman would not meet with them without a subpoena, and when they served Roseman with one, he related that he no longer possessed the Backuses’ file and that it might have been lost in a 2011 flood at his office. He also said he might have thrown it in a bonfire he used in 2013 to destroy records of cases he thought were closed. Roseman admitted he never offered the couple the chance to retrieve their legal records before he destroyed them, and that he never verified with the Backuses that they received their settlement check.

The bar association charged Roseman with multiple ethical violations. The parties stipulated that Roseman violated nine rules, including failing to provide competent representation, failing to inform clients of decisions that required their consent, and failing to keep his clients reasonably informed about the status of their matter. The parties proposed a two-year suspension for Roseman with six months stayed and that the sanction run concurrently with his 2016 suspension.

The Board of Professional Conduct agreed to recommend that the two suspensions be served concurrently, but proposed that no portion of his sentence be stayed. Instead the board recommended the two-year suspension and a requirement that he complete six hours of continuing legal education on law-office management and, if reinstated, serve a two-year period of monitored probation. He also must fulfill the conditions of his 2016 suspension, including resolution of the $135,000 judgment against him.

The Court’s opinion stated that Roseman failed to pursue a claim against the driver at fault, abandoned his clients after agreeing to settle their claims, and destroyed their files without letting them know about it and without collecting or distributing the settlement money. The Court agreed with the board’s proposed sanctions and suspended Roseman for two years.

2018-1439Columbus Bar Assn. v. RosemanSlip Opinion No. 2019-Ohio-1850

(Mike Frisch)

May 16, 2019 in Bar Discipline & Process | Permalink | Comments (0)

No Patent On Integrity

The Virginia State Bar Disciplinary Board accepted an agreed 90 day suspension for an attorney's stipulated misconduct in a patent matter.

The client had a domestic patent for a helix tool locking system and sought international protection

In order to receive international protection for this patent while maintaining the United States priority date, the client had to file an international application, or Patent Cooperation Treaty ("PCT") application, by October 7, 2016. Although Respondent attempted to contact the client prior to the deadline, the client did not notify Respondent that he wanted to file the PCT application until after the October 7, 2016 deadline. The PCT application was filed on October 13, 2016.

Although the PCT application was filed six days late, the PCT division provides a mechanism by which an applicant can restore the priority date by paying a fee and asserting that the late filing was unintentional. Respondent submitted a request for restoration of the right to claim the United States priority date, which the PCT division granted.

Eighteen months after filing the PCT application, the application had to be filed with the European Patent Office ("EP0").  The EPO filing was completed on a timely basis.

Dr. Jurgen Kritzenberger, Respondent's European associate, advised Respondent to submit a letter to the EPO to explain why the PCT application was filed late.

On April 24, 2018, Respondent submitted a Request for Restoration of Priority Date to Dr. Kritzenberger to file with the EPO. To explain the late filing, Respondent said that the filing was late because of a "singular mistake of the Attorney of record." He said that the mistake was "inexplicable" because he "remember[ ed] receiving instructions to file the PCT International application before the deadline." These assertions were untrue because the client did not instruct Respondent to file the PCT application until after the deadline had passed.

On July 26, 2018, the EPO responded to Respondent's April 24 request. The EPO requested that, within two months, Respondent provide evidence of the monitoring system he has in place to avoid missing deadlines.

On September 21, 2018, Respondent prepared a letter to the EPO, purportedly from his firm's then-office manager and docket clerk Jennifer Kreamer. In the letter, Respondent wrote that his client had left timely instructions to file the PCT application on Respondent's voicemail and that Respondent had not received it, despite due care. These statements were untrue, because the client did not instruct Respondent to file the PCT application until after the deadline.

Respondent forged Ms. Kreamer's signature to the September 21 letter and then notarized the forged signature in his capacity as a notary public. By notarizing the signature, Respondent affirmed that Ms. Kreamer had sworn to its contents and signed it in Respondent's presence.

Respondent sent the September 21 letter to Dr. Kritzenberger; however, it was never filed because Dr. Kritzenberger said edits were needed.

On September 24, 2018, Respondent prepared a second letter to the EPO, also purportedly from Ms. Kreamer. The second letter provided more details regarding Ms. Kreamer's actions regarding the PCT application. Like the September 21 letter, the September 24 letter contained misstatements of fact regarding what had occurred with regard to this client's PCT application. For example, the letter stated that Ms. Kreamer received timely instructions from the client to file the PCT application and she placed the file on Respondent's desk so that he could proceed with the application. The letter went on to state that Ms. Kreamer was out of the office on the due date and when she followed up with Respondent after returning to the office, she became aware that the deadline had been missed.

Respondent forged Ms. Kreamer's signature to the September 24 letter and then notarized the forged signature. By notarizing the signature, Respondent affirmed that Ms. Kreamer had sworn to its contents and signed it in Respondent's presence. Respondent sent the September 24 letter to Dr. Kritzenberger for the purpose of filing it with the EPO. Dr. Krizenberger filed the September 24 letter with the EPO.

Although Ms. Kreamer was not in the office on September 21, 2018, she was in the office on September 24, 2018. The response to the EPO was not due until September 26, 2018, so she was available to sign a letter describing the law firm's docketing practices had she been asked to do so. However, Ms. Kreamer would not have signed the September 21 and 24 letters as written because they contained material misrepresentations.

Ms. Kreamer was unaware that her name had been used in either of these letters until September 25, 2018, when she saw a copy of the September 24 letter left on the printer.

After discovering the September 24 letter, Ms. Kreamer met with Respondent's law partners. They asked her to provide a history of the case. While preparing this history Ms. Kreamer discovered the September 21 letter also bearing her name.

Ms. Kreamer and Respondent's law partners confronted Respondent, and he admitted what he had done. Respondent, on his own accord, withdrew the September 24 letter
bearing Ms. Kreamer' s name and his request for restoration of priority date. Respondent advised the client that he withdrew the request for restoration because he had signed Ms. Kreamer's name and it was "not proper for [him] to sign her name."

Respondent represented to the bar that the client was not harmed by the withdrawal of the request for restoration of priority date. Respondent did not bill the client for preparing the requests for restoration of priority date described herein.

(Mike Frisch)

May 16, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 15, 2019

Second Suspension For Virgin Islands Crime

The South Carolina Supreme Court imposed reciprocal discipline based on a New Jersey suspension that in turn was based on the attorney's Alford plea in the Virgin Islands.

Respondent entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), in the Superior Court of the Virgin Islands to one count of compounding a crime in violation of Virgin Islands law. The New Jersey Supreme Court found Respondent's conduct violated New Jersey Rules of Professional Conduct 8.4(b) (commission of a criminal act that reflects adversely on a lawyer's honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). New Jersey's Rule 8.4(b) is identical to South Carolina's Rule 8.4(b), RPC, Rule 407, SCACR, and its Rule 8.4(c) is identical to South Carolina's Rule 8.4(d), RPC, Rule 407, SCACR.

He had failed to report the sanction as required and did not respond to notice

Because we find a sufficient attempt was made to serve Respondent with Rule 29(b), RLDE, Rule 413, SCACR, notice, and none of the factors in Rule 29(d), Rule 413, SCACR, preventing the imposition of identical discipline are present in this matter, we hereby reciprocally suspend Respondent from the practice of law in South Carolina for one year from the date of this opinion.

The St. Thomas Source reported on the criminal case

Edward McKenzie, 61, pleaded guilty in a scheme to defraud the government through a property auction and has been sentenced for his role in the conspiracy, the Attorney General’s Office announced Friday.

McKenzie, who became the third person to enter a guilty plea in the case, was sentenced to a suspended jail term of 90 days, supervised probation for one year and 100 hours of community service.

McKenzie had faced four charges – conspiracy, obtaining money by false pretense, conversion of government property and criminally influenced and corrupt organizations conspiracy – in connection with the crime. Rather than face a jury, he accepted the terms of a plea bargain, appearing before V.I. Superior Court Judge Michael Dunston on March 17 to plead guilty to the single charge of compounding a crime.

According to the AG’s news release the conspiracy occurred between January 18, 2012, and June 26, 2013. On Aug. 30, 2012, an auction in the St. Thomas-St. John District was conducted and one of the properties auctioned was 97 Estate Frydenhoj. An investigation by the Office of the Inspector General determined that there were certain irregularities in the conduct of the bidding at the auction. Based upon the investigation, the Department of Justice filed criminal charges against McKenzie alleging that he and others conspired and associated with an enterprise, through a pattern of activity with the intent to defraud the government by manipulating the Office of the Lieutenant Governor’s property auction process to fraudulently transfer and obtain the property.

The Government of the Virgin Islands was prepared to file a civil action under the Criminally Influenced and Corrupt Organizations Act alleging that McKenzie engaged in CICO civil violations, but on March 31, DOJ entered into a civil settlement with McKenzie.

“DOJ has resolved criminal charges against a third defendant in the tax assessor’s property auction scam,” Attorney General Claude Earl Walker stated in Friday;s news release. “McKenzie has pled guilty for his role, and like two other defendants who have also pleaded guilty, he has agreed to cooperate. The prosecutors will continue to go through its mountain of evidence in this case to prepare for trial against the fourth and final defendant. In addition, DOJ has settled its civil CICO claims against McKenzie, whereby he has paid $100,000 dollars to the Government of the Virgin Islands, and is barred from personally participating or associating with any real estate, agent, broker or other person for purposes of participating in any real property auction conducted by the Office of the Tax Assessor.”

In all, four men – Sylvester Warner, Calford Charleswell, Paul Sabers and McKenzie – were taken into custody and charged in connection with the public auction scheme. On Feb. 8, Charleswell, 51, of Estate Anna’s Retreat, who faced 14 charges stemming from the incident, pleaded guilty to the single count of conspiracy. Warner, 43, of Estate St. Peter, also pleaded to a single charge of conspiracy at a change-of-plea hearing on Feb. 3.

An investigation by Nicholas Peru, special investigator in the office of the Inspector General, led to the apprehension of the four men. In his affidavit supporting the arrests, Peru gave the following details:

A property auction was conducted on Aug. 30, 2012. One of the properties being auctioned was 97 Est. Frydenhoj, on which the opening bid was placed at $6,442.28. The first bidder offered $75,000, a second person bid $42,000 and the third bid was $10,100. However, the bidder tracking sheet prepared by Charleswell showed that there were only two bidders on the property, according to Peru.

An unwritten policy developed by officials in 2012 required that the three highest bidders be recorded in case the highest bidder failed to meet the 10 percent deposit amount. The day after the auction, the winning bidder did not make the required deposit and the second highest bidder should have been contacted, Peru wrote.

On Sept. 4, 2012, a deposit of $2,000 was paid on a bid that was not noted on the record and on Oct. 11, 2012, a man paid the balance of $8,000 on the Est. Frydenhoj property and the Office of the Lieutenant Governor transferred the property to that man for $10,000. Then, on Sept. 25, 2013, the man transferred the same property to another man, according to Peru.

A woman whose name appeared on the bidder tracking sheet told Peru she had accompanied Warner to the auction and he completed the registration form using her name, but using his address. She said Warner bid on the Frydenhoj property and told her that he was bidding for a friend. On the day of the auction, Warner bid on three other properties, but although he was the highest bidder, he failed to pay deposits or take any of the properties, according to Peru.

The investigation revealed that certain procedural changes made by officials at the Office of the Lieutenant Governor allowed individuals to fraudulently manipulate the bidding process in a scheme in which the highest bidder purposefully makes a substantially inflated high bid, then fails to post the ten percent deposit so that the property would go to another bidder or individual for a substantially lower price, Peru wrote.

This manipulation prevented potential bidders from making fair and legitimate bids on properties offered at public auctions and potentially reduced the likelihood of the property owner recouping any excess proceeds from the sale after taxes and fees are paid, according to Peru.

(Mike Frisch)

May 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

25 Years After Administrative Suspension, Petitioner Must Pass Bar Exam

The Oklahoma Supreme Court has held that an applicant for reinstatement must pass the bar examination

We hold the Petitioner has demonstrated her moral fitness and that she has not engaged in the unauthorized practice of law, however she has failed to demonstrate her competency and learning of the law by clear and convincing evidence. To demonstrate her competency and learning in the law, Petitioner must retake and successfully pass the Oklahoma Bar Examination. She shall also be required to pay the OBA membership dues and complete the required continuing legal education for the year she passes the bar exam.

Background

 On November 2, 2018, the Petitioner, Ruth Brummett Rickey, filed her Petition for Reinstatement requesting she be readmitted as a member of the Oklahoma Bar Association (OBA) pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A (RGDP). Petitioner graduated from the Oklahoma University School of Law in 1987. She was admitted to practice law that same year. During law school, she worked as a Licensed Legal Intern. Petitioner practiced law for six years after graduating law school. At her first firm, she devoted most of her time to bankruptcy proceedings. After three years, she was recruited to another firm where she primarily worked bankruptcy cases. She remained with her second firm for four years until she voluntarily left due to firm-wide internal conflict.  She reviewed contracts for a short term at Eagleton & Nicholson. In 1994, she worked as a hearing officer for the Oklahoma Employment Securities Division. She remained in that position for the allotted six months. The position did not require a licensed attorney. Petitioner let her license lapse and was stricken from the rolls of the Oklahoma Bar Association in 1995 for failure to complete CLEs in 1993 and failure to pay dues in 1994. 

Petitioner went on to work as a cake decorator and eventually opened her own bakery. In 2001, Petitioner was diagnosed with a rare form of leukemia and due to medical complications was unable to work for several years. Once petitioner was able, she began participating in several charitable organizations. These organizations focus on the advancement of leukemia research and providing financial assistance to those undergoing medical treatment. In 2018, she began working part-time for Allegiance Credit Union. After filing her petition, the Professional Responsibility Tribunal (PRT) held a hearing pursuant to Rule 6, RGDP. The Petitioner testified she has worked her way up to a full-time position and on the urging of the Credit Union's CEO and CFO began seeking reinstatement. The CEO testified that Petitioner would be an asset to the credit union by saving them the costs of outside counsel. Petitioner's role should she be reinstated would focus on compliance matters, vendor management, contract review, and handling creditor proceedings.

Moral fitness

Except for her suspension in 1995 for failure to pay dues and complete her CLEs, the Petitioner has never faced disciplinary action. Nine letters were admitted as evidence that strongly supported a finding that Petitioner possessed good moral character.  Additionally, the petitioner has engaged in several philanthropic activities fundraising and advocating for cancer research. Testimony at the hearing also supported Petitioner's good moral character.  No contrary evidence was presented. The PRT found Petitioner had shown by clear and convincing evidence that she possessed the good moral character to be readmitted to the OBA. After an examination of the record, we agree with this finding.

But as to present competence

 In the present matter, the Petitioner has taken twenty-one hours of continuing legal education in the previous year.  The Trial Panel's Report determined that Petitioner has completed five to six Kaplan bar review modules with three to six hours of lecture per model.  Petitioner's work after her license lapsed does not include hands-on supervised legal experience. The Petitioner's relevant work for the past year consists of reviewing contracts and researching news and other states' laws.  The Petitioner has not practiced law or engaged in law-related work for 25 years. One year of continued legal education and completing Kaplan bar review modules after 25 years does not display sufficient learning and competence in the law. Especially when the standard requires stronger proof of qualifications than one seeking admission for the first time. Rule 11.4, RDGP.

Not sure that this is a fair result for someone without a disciplinary blemish. (Mike Frisch)

May 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Trip For Cigars That Ended In Death

A complaint based on a criminal conviction has been filed by the Illinois Administrator

In the afternoon and evening of July 28, 2018, Respondent consumed at least five drinks containing Scotch whisky while socializing with his college friends in Oconto County, Wisconsin.

At about 12:00 a.m. on July 29, 2018, Respondent and his friend, Joseph Gallagher, left the cabin where they were staying to purchase cigars at a gas station located approximately seven miles from the cabin. Respondent drove his Mercedes Benz to the gas station and Gallagher was his passenger.

On the way back to the cabin, at approximately 1:30 a.m., Respondent drove his vehicle at approximately 100 miles per hour. Respondent lost control of his vehicle, drove off the roadway, hit a tree stump, and caused Gallagher’s ejection from the vehicle and subsequent death from blunt force trauma.

When Oconto County Sheriff’s Department deputies arrived at the scene, they smelled alcohol on Respondent’s breath. The officers also noticed that Respondent’s speech was thick and his eyes were glossy. Respondent advised the officers that he had consumed four drinks of Scotch at a local restaurant about two hours prior to the accident. Respondent also made several statements at the scene indicating that he killed his friend because of his alcoholism. Respondent was advised at the scene that he was under arrest for operating a vehicle while intoxicated.

Respondent was injured in the incident and was airlifted to St. Vincent Hospital in Green Bay, Wisconsin. At the hospital, at approximately 4:30 a.m., Respondent’s blood was drawn. Respondent registered a .169 blood-alcohol concentration.

In the criminal case

On April 12, 2019, the Honorable Patrick O’Melia entered a judgment of conviction against Respondent for the crime of homicide by intoxicated use of a vehicle. Judge O’Melia sentenced Respondent to three years of incarceration and 10 years of supervision, both stayed, and ordered Respondent to serve one year of actual jail time on work release, to perform 80 hours of community service and to complete 15 years of probation. Judge O’Melia also fined Respondent $5,000, ordered him to pay costs and ordered him not to possess or consume alcohol or illegal drugs. Pursuant to Respondent’s plea agreement, the District Attorney dismissed the charges of homicide by intoxicated use of a vehicle with a prohibited alcohol concentration and homicide by negligent operation of a vehicle.

The Green Bay Press Gazette reported on the sentencing and provides details

The crash occurred about 1:34 a.m. Sunday, July 29, on Klatt Road in the town of Underhill, southeast of Gillett.

Maras was northbound on County V in Shawano County, crossed the intersection at Deering Road — where the road turns into Klatt Road in Oconto County — without stopping at the stop sign.

Traveling approximately 100 mph, the 2015 Mercedes-Benz Model S four-door crossed the center of the roadway, and entered the west ditch, which has a steep embankment.

The car continued north and struck a large tree stump, which tore through the engine compartment, to the passenger side floor boards, separating the engine, transmission and the passenger seat from the vehicle, which overturned.

A first responder who placed a tourniquet on Maras’ lower leg said Maras asked if she could find his friend. After she asked people to start looking for the passenger, Maras said, “Oh my God, I killed my friend.”

A blood sample determined his blood-alcohol concentration was 0.169 percent, just over twice the legal limit. Maras told a deputy he had four drinks with Scotch at a local restaurant two hours earlier.

Maras is an attorney at the Chicago office of Hennessy & Roach, which has offices throughout the Midwest, including Green Bay. He graduated from Marquette University in Milwaukee in 1987, according to his biography on firm’s website.

Gallagher’s online obituary says he graduated from Marquette with a degree in criminal justice in 1986. He first worked as a police officer, then worked in advertising in Washington D.C. and New York.

(Mike Frisch)

May 15, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 14, 2019

Attorney Charged With Failure To Report Child Sex Abuse. Other Violations

The Indiana Lawyer has a story about pending bar charges that allege an attorney committed serious ethical violations in representing a school that had been apprised of allegations of sexual misconduct against a basketball coach.

In late November 2015, the father of a 15-year old female Park Tudor student (“the child”), discovered an image of male genitalia on the child’s cell phone. The child falsely informed her father that the image came from another student.

On or about December 13, 2015, the father, monitoring the child’s laptop computer, discovered the child had exchanged sexually graphic text messages, images and videos with a person.

 The father was able determine that the person with whom the child had exchanged the texts, images and videos, was Kyle Cox, the boys’ varsity basketball coach, assistant athletic director, and a chemistry teacher at Park Tudor.

The attorney and Cox were close friends and among the allegations is that conflict of interest.

Respondent attended Cox’s wedding, played golf with Cox, and attended Park Tudor sporting events with Cox. Cox’s wife was also a personal trainer for Respondent and Respondent’s wife.

The father hired an attorney (Dassow) and a meeting took place that included the Head of Schools at Park Tudor Matthew Miller

At the time of the meeting, Respondent did not contact law enforcement, the Department of Child Services, nor did he advise Miller or Park Tudor do so.

Respondent requested the father leave the laptop computer and printouts with Respondent.

In compliance with Respondent’s request, father gave the laptop and printouts to the Respondent.

At  no time during the meeting with the father or Dassow did the Respondent discuss contacting law enforcement or reporting the matter to the Department of Child Services (“DCS”).

The meeting with Respondent, Miller, Dassow and the father lasted approximately 1 hour.

Rather than report

On December 16, 2015, Respondent provided the child’s laptop to an IT specialist employed by his law firm and requested that the specialist make copies of the files containing the sexually graphic images and texts.

The IT specialist had the images put on a thumb drive. 

Rather than report redux, the attorney proposed a confidential settlement

Among other things, the settlement agreement included a confidentiality clause which provided that neither the child, nor her parents, would disclose the terms of the agreement except to  “authorized individuals,” which included, Respondent and four specified administrators at Park Tudor.

The police then sought the evidence

Respondent did not initially acknowledge the existence of copies of the files from the child’s computer, or that they were in his possession, and Miller assertied repeatedly that “they weren’t there” or something similar.

Then

After meeting with Miller, Respondent agreed to provide the task force with the copies he possessed but wanted to delay providing them to the next day.

Miller was interviewed by police and committed suicide two days later.

The school reached a non-prosecution agreement in the criminal case.

Cox was convicted and is serving a 14-year prison term.

The attorney is charged with failure to report the abuse in violation of criminal law, possession of child pornography and conflict of interest.

The charges allege (as I read the complaint) that the attorney failed to report the abuse, not that he failed to advise the school of its duty in that regard.

Does the Indiana reporting obligation trump the attorney-client privilege?  (Mike Frisch)

May 14, 2019 in Bar Discipline & Process | Permalink | Comments (1)

An Emergency Becomes A Disability

The Indiana Supreme Court granted a disability suspension to an already-suspended attorney.

Given Respondent’s indefinite disability suspension and the nature of his disability, the Court finds that further proceedings on a disciplinary complaint are not warranted at this time. Accordingly, the Court DISMISSES the Commission’s disciplinary complaint without prejudice to refile.

The Indiana Lawyer (Katie Stancombe) previously reported

An Indianapolis attorney charged with intimidation against a Marion County court and other offenses has been suspended from the practice of law after the Indiana Supreme Court granted a petition for his emergency suspension.

The high court granted the Indiana Supreme Court Disciplinary Commission’s emergency petition in a Friday order that requested the suspension of Kraig A. Kenworthy pending further order of the court or final resolution of any resulting disciplinary action. The Commission said Kenworthy engaged in “alleged misconduct that may cause Respondent’s continued practice of law during the pendency of a disciplinary investigation or proceeding to pose a substantial threat of harm to the public, clients, potential clients, or the administration of justice.”

Kenworthy did not respond to the petition for emergency suspension and failed to undergo two competency examinations of which he was previously ordered by the court. Instead, he filed a “Verified Notice of Insufficient Service of Process” and an accompanying affidavit.

The attorney, of Kraig A. Kenworthy Attorney At Law, was suspended effective Jan. 11. According to the commission’s petition for emergency suspension,  Kenworthy was arrested and charged in June 2016 and charged with Class A misdemeanor criminal trespass and two counts of Class A misdemeanor resisting law enforcement. Police initially responded to a welfare check initiated by Kenworthy himself, informing officers that he had “knowledge of a group running an extortion ring and using a military device to commit homicide.” Officers believed him to be a danger to himself and others and took him to Eskenazi Hospital.

Then in October 2017, Kenworthy was charged with Class A misdemeanor intimidation after making several intimidating phone calls to the Marion Superior Court, where he told a member of the court’s staff that “someone is going to die today” and that “[t]here is going to be a murder”.

Former Marion Superior Judge Michael Keele, Civil Division 7, signed an Oct. 27, 2017 order restricting Kenworthy’s access to Keele’s courtroom without being accompanied by a uniformed law enforcement officer. Also, Marion Superior Court Judge David J. Certo ordered that Kenworthy have no contact with Keele or members of his staff.

This is Kenworthy’s first disciplinary action, according to the Indiana Roll of Attorneys. He was admitted to practice in 1988.

(Mike Frisch)

May 14, 2019 in Bar Discipline & Process | Permalink | Comments (0)