Monday, January 21, 2019

Treadmill Of Ethics Violations

Justice Mead of the Maine Supreme Judicial Court has concluded that an attorney violated multiple ethics rules of professional conduct in his representation of the husband in a domestic matter.

The attorney had advised the client to enter his ex-wife's residence without authority

[Client] Steven went to the house on the [authorized] designated dates and times to recover his personal property, but did not remove everything he wanted due to time constraints. He entered the locked house by using his driver's license to "card" the lock on the door. He was in possession of a list that Jessica had prepared itemizing property that she attributed to him and property (including the treadmill) that she claimed as hers.

During the time shortly prior to March 30, Jessica had undertaken to sell certain items of property, including a Nordic Track treadmill that she had purchased with her Nordic Track credit card. Steven became aware of the sales and was concerned and wanted to stop them. He contacted McLaughlin, whom he had retained to represent him in the divorce, and asked him what could be done to prevent further sales. McLaughlin told him that an injunction could be obtained, and Steven asked him start that process.

Steven awaited McLaughlin’s arrival at his law office on the morning of March 30. He was very agitated and asked McLaughlin about obtaining an injunction and how he could retrieve personal property from the house. McLaughlin told Steven that he could return to the house even though the dates and times for the recovery of his personal property had passed. Steven expressed concern about reentering the property, but McLaughlin assured him it would be alright.

During the course of the conversation, the treadmill was discussed and McLaughlin indicated an interest in acquiring it for his paralegal. Steven expressed a willingness to participate in such a transaction.

Steven returned to the residence at 12 Third Street on March 30 and again entered the locked premises by carding the lock. He retrieved items of personal property including his daughter's books and other things. Later in the day, Steven returned to McLaughlin’s office where he and McLaughlin agreed that they would retrieve the treadmill, Steven would sell it to McLaughlin for $200, and McLaughlin would then give the treadmill to his paralegal. Steven drove back to the residence, followed by McLaughlin, who was accompanied by his paralegal.

Once again Steven gained entry to the residence by carding the lock, and he and McLaughlin entered the residence and checked the treadmill to make sure that it worked properly. Upon satisfying themselves that it was operational, they removed it from the residence and loaded it into McLaughlin’s vehicle. They then returned to McLaughlin’s office where McLaughlin gave Steven a written receipt indicating a credit of $200 toward his legal bill in return for the treadmill.

When Jessica returned to the house on March 30, she discovered the treadmill was missing and found Steven’s license nearby. She contacted the police, who in turn spoke with Steven. He related the events noted above, including the fact that McLaughlin had told him it was alright to enter the house and take the treadmill.

Corporal Lucas Hafford of the Presque Isle Police Department investigated the taking of the treadmill. McLaughlin contacted him to discuss the matter and directed him not to speak further with Steven. McLaughlin confirmed that he and Steven had entered the house and taken the treadmill, but said that the protective order didn’t matter. Corporal Hafford contacted Assistant District Attorney James Mitchell to discuss the matter.

ADA Mitchell had already spoken with McLaughlin, who confirmed that he did advise Steven that he could enter the premises after the dates specified in the protective order to retrieve property, and that he had actually accompanied him on the second entry into the house. McLaughlin told Mitchell that his objective was to acquire the treadmill. Mitchell advised McLaughlin that he had no authority to violate the terms of the court order, and that he had no grounds to advise Steven that he could violate the court order.

Assistant District Attorney Kari Wells-Puckett spoke with Corporal Hafford regarding the unauthorized entry into the residence and the removal of the treadmill. Because of the professional interactions between the District Attorney’s Office and McLaughlin, ADA Wells-Puckett referred the matter to the Penobscot County District Attorney’s Office for review and possible prosecution. Following the referral, she had informal conversations with McLaughlin wherein he acknowledged that he had given Steven bad advice (i.e., he told Steven he could enter the house) and for that reason, in his opinion, Steven should not be prosecuted.

A criminal complaint was issued charging Steven with burglary (Class B); theft by unauthorized taking (Class E); violation of an order for protection from abuse (Class D); and criminal trespass (Class E). He ultimately entered a plea of guilty to the criminal trespass charge and was sentenced to pay a fine and to pay Jessica $200 in restitution.

McLaughlin represented Steven in the divorce proceedings from mid-March until the criminal charges were filed on May 13, 2016.

Among the violations

McLaughlin’s active participation in taking the treadmill constituted a brief, but express, joint venture to acquire the item of property. Steven had no immediate means of transporting the treadmill or converting it to cash on March 30. McLaughlin’s offer and acceptance of the terms of sale concerning the treadmill, and his actions in providing assistance and his vehicle to transport it, constituted a business transaction which was clearly adverse to Steven’s interest-it placed him in jeopardy of criminal and civil sanctions. McLaughlin failed to satisfy any of the requirements established in Rule 1.8(a)(l)-(3) to excuse such a business transaction with a client. Accordingly, his behavior violated Rule 1.8(a) of the Maine Rules of Professional Conduct.

Additionally, because ownership of the treadmill was a disputed issue in the divorce, it was part of the "subject matter" of that litigation and McLaughlin was prohibited from acquiring an interest in it. His actions in doing so violated Rule 1.8(i).

And

McLaughlin’s entry into the 12 Third Street premises on March 30 cannot be considered authorized under any circumstances. He had no permission or authority to enter the house. He knew that Steven’s limited license to enter had expired days earlier and that Steven was specifically excluded from further entry by an order of the court; therefore, Steven could not authorize anyone else to enter as his proxy. McLaughlin’s entry into the house constituted, at a minimum, a trespass. In addition, McLaughlin’s active assistance in Steven’s violations of the law are separately sufficient to implicate him as an accomplice. As such, McLaughlin’s behavior violates the prohibitions of Rule 8.4(b). Further, as noted above, his actions constituted numerous violations of the Maine Rules of Professional Conduct, thereby also violating Rule 8.4(a).

Beyond these serious violations, McLaughlin’s machinations in acquiring property that was clearly the subject matter of disputed claims in the litigation between Steven and Jessica constituted dishonesty, and thus violates Rule 8.4(c). Finally, McLaughlin’s misappropriation of property that was the subject of disputed claims during the litigation of those claims is, by any definition, conduct prejudicial to the administration of justice, and violative of Rule 8.4(d).

In sum

Eugene McLaughlin Jr., Esq., has violated Maine Rules of Professional Conduct 1.1, 1.8(a), 1.8(i), 3.3, 8.1, 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

Unless the parties advise the Court by January 31, 2019, that they have agreed on a proposal for a sanction for these violations, the matter will be scheduled for Phase 2-a dispositional hearing at the Penobscot Judicial Center at a mutually-agreeable date and time.

(Mike Frisch)

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

On The (Northern) Beaches

The  Council of the Law Society of New South Wales has removed an attorney from its rolls for misappropriation. 

The respondent conceded that he was guilty of 67 complaints which had been brought against him by the applicant which we summarise as follows;

18 complaints of misappropriation from his trust account totalling $2,025,134.32

Plea for privacy rejected 

In determining the application made by the respondent we have primary regard to the nature of these proceedings. These are disciplinary proceedings based on professional misconduct of a most egregious kind. Legal practitioners play an integral part in the administration of justice and in the interrelationship of members of the community at all levels and under most circumstances of human and legal entity endeavours. The retention of lawyers is a desirable, if not necessary, function of the ever increasing pervasive influence of the law on social and commercial activities. In the circumstances it is essential that all legal practitioners conduct themselves appropriately at all times. A failure to do so will impact adversely on the reputation of the profession, and the confidence which the community must have in their legal representatives.

Accordingly, any misconduct of a legal practitioner whether it constitutes unsatisfactory professional conduct or professional misconduct is a serious matter. The community is entitled to be made aware of that misconduct for its own protection. Other legal practitioners must be aware of that misconduct in circumstances where they may have had prior dealings with that legal practitioner, and to provide a salutary deterrent effect against any temptation on their part to engage in misconduct. This provides a powerful argument in support of the principle of open justice as it applies to the publication of the fact of these proceedings, and to the publication of our reasons.

Any legal practitioner who engages in misconduct must be aware that when he or she is caught out, there will be adverse consequences for his or her reputation by reason of the publication of that misconduct inter-alia in decisions of this Tribunal. Whilst we have sympathy for the respondent’s personal circumstances, including the adverse impact on his family situation, this has all been brought about by his misconduct. There is no point in blaming the applicant for having exposed his misconduct in a public manner, and there is no point in decrying the adverse effect of any publicity through publication of our decision including our reasons. The respondent is the author of his own misfortune. It is necessary that the applicant has had to publicise the respondent’s misconduct and advise persons affected by it as to their rights.

We now come to consider the matters raised by the respondent concerning the impact of the publication of our decision and reasons on his wife and children, and the possible adverse consequences upon his employment. There is no suggestion in any of the evidentiary material before us of any involvement in any of the respondent’s misconduct by any member of his family. There is simply no reason why the interests of open justice would be served by making any reference to any member of the respondent’s family, or his current employer by name or in any manner which is intended to identify them, except by reference to the respondent’s name.

Whilst we appreciate that if there is any publicity surrounding the publication of this decision and our reasons that it may have adverse consequences for the respondent’s family members, we observe that on the evidence of the respondent they were aware of his circumstances since 2013, and they have had a period of 5 years in which to deal with them. There is no evidence that any family member is likely to suffer any catastrophic or otherwise serious consequence on the publication of the respondent’s name in these proceedings.

In all the circumstances the principles of open justice dictate that it is appropriate to publish the name of the respondent as a party to these proceedings, and to this extent we reject the respondent’s application.

MSM.com 9 News reported

A Sydney solicitor has been charged with 43 fraud offences after allegedly misappropriating $1.5 million from his clients on the Northern Beaches.

Luke Adamson, 55, was arrested at Parramatta Police station yesterday following an extensive investigation by detectives.

Police had established Strike Force Moonmerri to investigate the solicitor, suspected of misappropriating client’s funds held in a trust account between 2009 and 2013.

Leaving Parramatta Police station last night the man was granted strict conditional bail and is due to appear in Parramatta Local Court in late January.

(Mike Frisch)

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

Sunday, January 20, 2019

From Divorce To Disbarment

The District of Columbia Court of Appeals has suspended an attorney pending final discipline based on his New York disbarment. 

 Zappin was suspended on an interim basis based upon discipline imposed in New York.

The Appellate Division for the First Judicial Department had applied collateral estoppel to findings in the attorney's divorce case in ordering disbarment

The Committee sought, and this Court issued, an order pursuant to the doctrine of collateral estoppel based upon the February 29, 2016 order and decision issued in respondent's divorce and custody action (Zappin v Comfort, Sup Ct, NY County, Cooper, J., index No. 301568/14). Supreme Court's 100-page decision and order had granted respondent's wife sole custody of the couple's then two-year-old son and found that respondent, a pro se litigant: had repeatedly perpetrated acts of domestic violence against his wife; had testified falsely at a custody trial; had knowingly introduced falsified evidence during the proceedings in the form of altered text messages; had presented misleading testimony through his expert witnesses; had, beginning in April 2014, engaged in acts that repeatedly demonstrated disrespect for the court and counsel, by, inter alia, flouting the judicial directives of three judges (a judge of the District of Columbia Superior Court, the original matrimonial judge and the matrimonial judge who made these findings [matrimonial judge]), setting up a fake website about the attorney for the child by registering her name as a domain name and posting derogatory messages about her on it, and baselessly filing a disciplinary complaint against a court-appointed psychiatric expert witness. Additionally, Supreme Court found that respondent had sent text messages to his wife, an attorney, threatening her with loss of her license to practice law and professional ruin; had made grossly offensive remarks during cell phone conversations with his then three-month-old son in which he baselessly accused his father-in-law of being a child sexual abuser who could harm the child; had engaged in frivolous and abusive litigation against his wife, her parents, and her attorneys; and had attempted to publicly defame the attorney for the child.

Details of the underlying litigation and sanction can be found in this opinion of the United States District Court for the Southern District of New York dismissing claims brought by attorney against the judge and news outlets that reported on the case.

In sum, the Article presents a substantially accurate report of the November 10 Hearing and its related background materials, such as the Sanctions Decision. While much of the Article consists of either direct quotations from the hearing and the decision or summaries thereof, as discussed above, any minor inaccuracies or alleged omissions do not produce a different effect on the reader than the precise truth. See Karedes, 423 F.3d at 119. The Article qualifies as "the publication of a fair and true report of a[] judicial proceeding" that is entitled to protection under § 74's privilege and, consequently, Plaintiff's "civil action [for defamation] cannot be maintained against" Defendant. N.Y. Civ. Rights Law § 74; see, e.g., Abkco Music, 2016 WL 2642224, at *3, 6 (dismissing defamation claim because § 74 privilege precluded action).

The New York Post (a defendant in the above defamation claim) reported on the divorce. (Mike Frisch)

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

Stayed Suspension For Premature Taking Of Personal Representative Fees

The Missouri Supreme Court has a summary of a bar discipline decision

The chief disciplinary counsel’s office seeks discipline for an attorney’s conduct while serving as the personal representative of an estate in a probate case. In a decision written by Judge Laura Denvir Stith, the Supreme Court of Missouri orders discipline. All seven judges agree the attorney violated rules of professional conduct when he paid himself his personal representative fees prior to the final settlement of the estate, and should be disciplined. All seven judges agree the misconduct alone warrants suspension of the attorney’s law license with no leave to apply for reinstatement for six months. Four judges agree mitigating factors, including the attorney’s eventual entitlement to the fees, lack of harm to the estate, lack of dishonest motive, remorse and history of good character justify staying the suspension and placing the attorney on probation with conditions.

Judge W. Brent Powell dissents. He believes the attorney’s misconduct damaged the integrity of the legal profession and diminished public confidence in the justice system and probate process, justifying requiring the attorney to serve the suspension.

Facts: Sedalia attorney R. Scott Gardner served as the personal representative for an estate. He submitted a motion to be paid his personal representative fees early. The circuit court only approved early payment of half of the fees and specifically directed the remainder of Gardner’s fees would be paid only at final settlement. Gardner nonetheless paid himself most of the remainder of his fees a few months later, prior to final settlement, in violation of the court’s order and in violation of a state statute requiring personal representatives to obtain prior court approval to be paid all or part of their personal representative fees before final settlement. The amount Gardner paid himself early, however, did not exceed the fees to which he eventually was entitled. But Gardner failed to inform the circuit court of his payments to himself prior to disbursing the funds and, in the estate’s final settlement, did not state he had already taken the payment, although he did attach a copy of the check. The chief disciplinary counsel began disciplinary proceedings. Following a hearing, the disciplinary hearing panel found Gardner violated certain rules of professional conduct and recommended Gardner’s license be suspended, with no leave to apply for reinstatement for six months. The chief disciplinary counsel asks this Court to discipline Gardner’s license.

DISCIPLINE ORDERED.

The law

Mr. Gardner’s only explanation for his conduct is his contention he believed he could pay himself his fee without court approval because his fee request would be treated as a claim under the statutes governing claims of creditors against the estate. See §§ 473.360-473.444. Personal representatives are not mere creditors of the estate. They  have a fiduciary obligation to the estate and must avoid conflicts of interest. Estate of Keen, 488 S.W.3d 73, 92 (Mo. App. 2016). For this reason, Missouri probate statutes require court approval of many of the personal representative’s actions in a supervised estate.

His state of mind

was in part negligent and in part knowing.

Sanction

Most importantly, there is no evidence Mr. Gardner acted with a selfish or dishonest motive. Although the dissent suggests Mr. Gardner was acting for his own financial benefit, Mr. Gardner did not take more money than he earned. There is no evidence to suggest Mr. Gardner took the fees early because he was suffering personal financial difficulties or because he needed the funds early for cash-flow purposes. The record does not show any self-serving motivation as Mr. Gardner did not, in fact, benefit more from taking the funds in June than if he had waited to take the funds when he filed  the settlement two months later. Instead, the evidence shows Mr. Gardner undertook this early payment after speaking with the tax advisor and then failed to immediately inform the circuit court out of carelessness and an erroneous belief minor deviations from the statutory procedure would be acceptable even if not proper.

The court majority relied on evidence of good character and the absence of client harm.

Too forgiving according to Justice Powell's dissent

I respectfully dissent to draw attention to the gravity of Mr. Gardner’s misconduct, which the principal opinion understates by staying Mr. Gardner’s suspension. Mr. Gardner knowingly violated a court order when he took the remainder of his personal representative fee from his client’s estate before the estate was closed. This gross misconduct caused damage to the integrity of the legal profession and diminished public confidence in our system of justice. This Court, therefore, should suspend indefinitely Mr. Gardner from the practice of law with no leave to apply for reinstatement for six months.

(Mike Frisch)

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

Bar Announces Florida Discipline Sanctions

The Florida Bar announced disciplinary sanctions in a number of matters.

Highlights

Peter Dale Fellows, 1031 Ives Dairy Road, Suite 228, Miamidisbarred effective 30 days from a December 4 court order. (Admitted to Practice: 1999) In one matter, Fellows represented a homeowner in a foreclosure action and engaged in a conflict of interest by allowing his legal assistant, with whom he was romantically involved, to live in the home which was the subject of the representation. In another matter, Fellows claimed a nonrefundable fee without confirming in writing, and was dishonest during the disciplinary investigation. (Case No. SC16-1922)

Daily Business Review (Law.com) reported on the case and linked to the sanction order.

Also

Eric Brett Granitur, 100 S.E. 2nd St., Suite 3550, Vero Beach. The court granted Granitur’s petition for a disciplinary revocation, effective immediately, with leave to seek readmission after five years, following a December 13 court order. (Admitted to practice: 1986) Disciplinary revocation is tantamount to disbarment. Granitur was found guilty in federal court of three felony counts including conspiracy to commit false statements. While acting as the attorney and escrow agent of a title company, Granitur made or caused to be made false statements and reports to federally insured financial institutions while his co-conspirators provided buyers with incentives to purchase condominium units and concealed the incentives from the financial institutions. He was sentenced to one year and one day in prison. (Case No. SC18-1677)

Peter Milan Predrag Vujin, 1200 West Ave., Apt 824, Miami Beachdisbarred effective 30 days from a December 4 court order. (Admitted to Practice: 2003) While representing himself in two separate civil actions, Vujin engaged in frivolous, bad faith, annoying, and abusive litigation tactics. He also made misrepresentations to the court and others. Vujin displayed similar misconduct in the disciplinary proceedings. (Case No. SC17-1258)

(Mike Frisch)

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

Consent Suspension For Alford Plea To Negligent Injuring

The Louisiana Supreme Court has accepted a three-year consent suspension of an attorney who entered an Alford plea to negligent injuring.

The Advocate reported on the criminal charges

A Prairieville man is accused of attempted murder after repeatedly ramming his SUV into his estranged wife’s car Saturday, causing a three-car accident that injured six people, according to the Ascension Parish Sheriff’s Office.

Gerald Asay, 33, who had his infant child in the back seat of his vehicle, spotted his estranged wife about 2:30 p.m. and started following her as she drove with a male passenger on U.S. 61 near Swamp Road in Prairieville, Maj. Ward Webb, of the Sheriff’s Office, said in a news release.

It was unclear whether Asay had been looking for them.

As his estranged wife and the man with her crossed Swamp Road where it intersects with U.S. 61, Asay rammed into them from behind, but the woman was able to keep driving south, Webb said.

The two tried to flee from Asay for about a mile, and at some point, the woman called deputies from her phone to report that Asay was trying to attack her, Webb said.

By the time deputies arrived, Webb said, Asay had slammed into the back of his estranged wife’s sedan when it stopped for a red light near La. 929. He said the impact sent the sedan into the car in front of it.

All three cars were damaged, two of them severely, Webb said. Five people were taken by ambulance to a local hospital for treatment of minor to moderate injuries, while a sixth was treated on-scene, Webb said.

He said Asay suffered the worst injuries.

Asay, of 18254 Manchac Place Drive South, Prairieville, was booked into Ascension Parish Jail Saturday on two counts of attempted first-degree murder, three counts of negligent injuring, aggravated criminal damage to property and reckless operation of a motor vehicle. Asay awaits a bond amount.

More from Nola.com.  (Mike Frisch)

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

Burdens Of Management

The Vermont Supreme Court approved the imposition of private discipline as proposed by a Panel of its Professional Conduct Board for a managing partner's mismanagement of the firm trust account. 

The attorney has practiced for 34 years and is the managing partner of a law firm in Bennington as told in the Panel report

Over the course of his 34 years of practice, Respondent has transitioned from manual trust account management to software-based trust account management systems.

In mid-2014, Respondent’s law firm was using Quicken accounting software and was in the process of upgrading to QuickBooks accounting software.

On September 8, 2014, a staff member who was managing much of the day-to-day bookkeeping for 14 years, including the trust accounting reconciliation, left the firm unexpectedly.

Shortly after the staff member departed, Respondent reviewed all of the bookkeeping records and found the trust account reconciliations were current and accurate, and decided to hire an outside accountant to finish the transition from Quicken to QuickBooks and restructure the organizational system. The transition to QuickBooks was delayed for a protracted period of time. The cause of the delay was a failure on the part of Respondent to secure sufficient resources to advance and complete the transition task in a timely manner.

As a result of the incomplete transition from Quicken to QuickBooks and an inability to hire a suitable replacement for the departed staff member, Respondent’s law firm operated, for a protracted period of time, with an inadequate system for managing his IOLTA account. Respondent eventually hired a capable person to assist him with bookkeeping functions, but she left the firm sometime in 2016.

The attorney tried to reconcile accounts but fell behind due to a busy real estate practice

As of approximately December 2016, Respondent was six months behind in completing the requisite monthly reconciliations. Respondent was generally aware of his obligations under the Rules of Professional Conduct relative to managing client trust accounts (IOLTA), including the obligation to perform monthly reconciliation. He believed that he would catch up with the monthly reconciliations and otherwise come into compliance within a reasonable period of time and that, in the meantime, no client funds were in jeopardy.

During this period of time in 2016 and through the fall of 2017, there were numerous times when Respondent did not collect wire fees ranging from $10 to $20. When Respondent became aware of these omissions, he promptly covered them out of the firm’s operating account.

Help arrived

In June 2017, after nearly a year of searching and a few short-term hires that did not work out, Respondent finally located and hired a suitable replacement staff member whom he currently employs to assist him with his trust accounting obligations.

But the bar then arrived as well

In December 2017, as part of a routine compliance audit, JMM & Associates’ CPA Randall Sargent reviewed with Respondent his trust account records for the period of October 1, 2016 to November 30, 2017.

The audit revealed several deficiencies but no misappropriation or dishonesty

Respondent accepted full responsibility for his misconduct from the outset of the compliance audit. In addition, at the evidentiary hearing, he expressed his remorse for his misconduct and the Panel finds his testimony to be compelling.

The violations

During the period of time audited – October 1, 2016 to November 30, 2017 – Respondent’s accounting system did not meet the requirements of Rule 1.15A(1)-(3). Respondent was relying on manual recordkeeping in individual client files to track receipts and disbursements from his IOLTA and other trust accounts. He lacked a coordinated accounting system. Respondent failed on several occasions to keep track of wire transfer fees charged by the bank, resulting in accounting errors. In addition, Respondent failed to identify the client adequately on several checks written from trust accounts, causing some transactions to be posted to the wrong client and resulting in incomplete and inaccurate accounting. Respondent also failed to provide timely notice to his clients of receipts and disbursements. And Respondent failed to perform the requisite monthly reconciliations of the bank statement, account register, and list of client balances.

It was incumbent upon Respondent to ensure that he was maintaining an adequate accounting system at all times and to undertake timely and complete reconciliations in order to identify any errors and correct them promptly. He failed to do so. His conduct violated Rule 1.15(A)(a).

A lengthy sanction discussion concludes

In sum, the Panel concludes that a private admonition is the appropriate sanction.

...it is appropriate in light of the extensive nature of the past violations to impose a period of probation in conjunction with a requirement that a follow-up audit be conducted, at Respondent’s expense, to monitor Respondent’s compliance with his trust account obligations.

(Mike Frisch)

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

Saturday, January 19, 2019

February D.C. Bar Exam At Risk

It appears that the federal government shutdown has placed the administration of the February 2019 District of Columbia Bar examination in jeopardy.

From the court's web page

IMPORTANT NOTICES

 During the federal government shutdown the Committee on Admissions is closed.

1/18/2019 Please be advised that the New Jersey Board of Bar Examiners has informed us that they’ve issued the following guidance for any New Jersey-affiliated individuals (NJ residents or Graduates of NJ Law Schools) who have applied to sit for the February 2019 DC Bar exam: https://www.njbarexams.org/news.action?id=1420

Please continue to check our website for further updates and information. 


1/11/2019 Based on all available information at this time, we are still planning to administer the February 2019 bar examination as scheduled. However, we are closely monitoring any new developments with the federal government shutdown; and the status of the scheduled exam could change. We strongly encourage that prospective examinees monitor this webpage for any changes in plans to administer the February 2019 bar exam. We understand and apologize for the inconveniences that this situation presents, but we will be updating our website with any new information as we continue to learn more about the status of our operations.

1/4/2019 During the partial federal government shutdown, all functions that fall under the purview of the District of Columbia Court of Appeals’ Committee on Admissions & Unauthorized Practice of Law (COA/UPL) have been suspended. Because the COA/UPL employees have been furloughed since December 22, 2018, they have been unable to complete all of the necessary certifications and registrations in time for the January 25, 2019 swearing-in ceremonies. Accordingly, the bar swearing-in ceremonies that were previously scheduled for January 25, 2019 have been postponed. Once the federal government shutdown ends, and the COA/UPL is authorized to resume operations, a new date and time for the bar swearing-in ceremonies will be established. We regret any inconvenience that the federal government shutdown has caused in terms of limiting the COA/UPL’s ability to administer the previously scheduled bar swearing-in ceremonies. However, in the event that a rescheduled ceremony presents further inconvenience, please be advised that all successful candidates from the July 2018 bar exam who have already been certified, and duly notified by the COA/UPL, are still able to be sworn-in in absentia pursuant to DC Court of Appeals Administrative Order 03-18.

The steps for being sworn-in in absentia can be found here. Once the supplemental questionnaire form, and attorney oath of admission form have been reviewed and accepted, you will receive a confirmation email to that effect. Upon receipt of the confirmation email, pursuant to Rule 46 (k)(2), your admission is complete, and you may hold out that you are entitled to practice in the District of Columbia while your attorney license number (Bar ID) is pending. 

(Mike Frisch)

January 19, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 18, 2019

Have Mercy Percy: When A Man Becomes A Woman

The New Mexico Supreme Court has ordered a nine month suspension with conditions for reinstatement

This case illustrates how easily a lawyer’s decision to pursue a litigation strategy that is less  than truthful can lead to multiple violations of the duty of candor, to the detriment of the legal system, the legal profession, and the public.

The respondent has an unusual prior

Dixon, who has been a sole practitioner since 1990 focusing on criminal defense and civil rights work, does not come before us with a clean slate. He was the subject of a public censure by this Court for an unrelated incident that occurred in 2011...In that proceeding, several witnesses  testified that they saw Dixon honk his horn and accelerate his car toward a Ninth Judicial District Court judge who was crossing the street.

This proceeding asks the question of who is Jessie/Jessica Aguilar?

To understand the events that resulted in Dixon’s suspension in this proceeding, one must ask, who is Jessie Aguilar? Dixon answered that question in an e-mail to opposing counsel on June 11, 2015: “There is no Jessie Aguilar[;] there is a Jessica Aguilar . . . .” That statement serves as the inflection point in this case.

Respondent filed a claim on behalf of Jessie and others in  New Mexico federal district court 

In the early stages of the Federal Lawsuit, all indications were that Jessie Aguilar was a male inmate who had been present during the pepper ball incident alleged in the complaint. For example, Dixon used masculine pronouns to refer to Jessie Aguilar in Dixon’s initial disclosures and in his portion of the joint status report filed with the court.

But

Beginning in November of 2014, clues about Jessie Aguilar’s identity began to emerge as the Federal Lawsuit proceeded.

The client morphed into Jessica on various court documents during a period when Respondent was out of the office caring for a sick parent

Dixon’s assistant, who is related to Jessica by marriage, undertook those actions to help Dixon. Additionally, Dixon’s assistant changed “Jessie” to “Jessica” in the case caption on the certificate of service for the interrogatory answers, and Dixon likely copied and pasted the same caption into subsequent pleadings.

The Federal Lawsuit culminated in settlement negotiations in early 2015. Dixon asserted Jessica’s claims to opposing counsel as part of the negotiations, and the defendants offered to settle Jessica’s claims for $1,000, which Jessica rejected. Dixon then sent the June 11 e-mail described above, in which he informed opposing counsel, “There is no Jessie Aguilar[;] there is a Jessica Aguilar and her claim was not included in the complaint.”

He moved to dismiss Jessica's federal claims with prejudice; ten days later he sued on her behalf in state court.

The complaint alleged that Jessica was forced to undergo a pelvic exam without her consent “apparently to look for contraband.” It further alleged that two female RCDC employees had remained in the room while a nurse performed the examination and asked Jessica personal and  medical questions. The complaint sought unspecified damages for negligence,  invasion of privacy, assault, and battery.

Defendants moved to dismiss on preclusion grounds

Dixon’s litigation strategy in these proceedings led to his first knowingly false statement found by the Board.

Others followed

Dixon crossed the line separating truth from falsehood in a later filing in support of his motion to reconsider the district court’s award of summary judgment against Jessica. Arguing again that Jessica’s claims were not part of the Federal Lawsuit, Dixon asserted that “counsel always intended to file a law-suit for Jessica Aguilar and in fact filed a Motion to Amend the Complaint filed in Federal Court to bring Jessica Aguilar into the law-suit.” (Emphasis added.) That assertion was provably false.

Respondent made similar false statements in the bar discipline matter.

The court rejected his claimed due process notice violation and attack on the evidence

Due to Dixon’s lack of candor throughout these proceedings, we may never know why “Jessie Aguilar” was named in the Federal Lawsuit. The lack of certainty is intolerable. It already has delayed Jessica’s state law claims and ultimately may preclude them altogether, depending on the outcome of her appeal. Dixon therefore has committed misconduct prejudicial to the administration of justice.

But overturned one misconduct finding.

Sanction

We indefinitely suspended Dixon from the practice of law for a period of no less than nine months. We consider an indefinite suspension to be an appropriat  sanction for Dixon due not only to the intentional, harmful nature of his conduct in this proceeding, but also to his prior discipline.

(Mike Frisch)

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

Less Than Disbarment

The New York Appellate Division for the First Judicial Department has accepted a three-year suspension as discipline for an attorney's criminal conviction

On April 14, 2015 respondent pled guilty in the United States District Court for the Southern District of New York to corruptly endeavoring to obstruct and impede the due administration of the Internal Revenue law in violation of 26 USC § 7212(a), a felony. In an attempt to lower her tax liability and in response to an IRS audit, respondent, among other things, created false tax documentation indicating that two individuals (a medical professional who had performed medical services for a member of respondent's family and a domestic employee) had provided services to her law practice and had been paid fee income by respondent as a result. In fact, neither of those individuals had provided such services. Respondent presented the false documentation to the IRS during the course of a 2013 audit of her and her husband's joint tax returns for the 2010 and 2011 tax years to substantiate fake deductions and expenses. In addition to the false audit documentation, respondent's guilty plea was entered in full satisfaction of any crimes relating to respondent's payment of unreported cash wages to a domestic employee between 2007 and 2013.

Prior to her 2015 sentencing, respondent and her husband filed accurate amended tax returns and paid the past taxes owed to the IRS for the tax years 2007 through 2013, including interest and penalties in the total amount of $99,546. They also filed accurate New York State amended tax returns for the tax years 2007 through 2012, which showed an additional tax liability of approximately $155,000 which they are paying in installments pursuant to an agreement with New York State tax authorities. No criminal action has been commenced against respondent in connection with her New York State personal income tax returns.

On July 31, 2015, respondent was sentenced to a term of imprisonment of one year and one day, followed by one year of supervised release, 100 hours of community service, and was further directed to make restitution in the amount of $99,546, which, as noted, she paid prior to sentencing.

She has not practiced since the 2015 conviction.

Sanction

The parties have stipulated to the following aggravating factors: prior to the 2013 IRS audit, respondent and her husband were audited by the IRS between late 2007 and 2008 in connection with their return for the 2005 tax year. On their Schedule C, respondent and her husband collectively claimed tens of thousands of dollars in contractor and other services which were never actually rendered. Respondent, for her part, claimed false expenses on the 2005 tax return for commissions and fees purportedly incurred by her law practice and, in addition, falsely claimed personal expenses as legal expenses, including medical bills for a family member. Although the IRS auditor ultimately disallowed over $37,000 in expenses related to the 2005 tax return, which respondent and her husband agreed to, the auditor allowed tens of thousands of dollars of fraudulently claimed expenses based upon the false information respondent provided during the 2007-2008 audit, which did not result in criminal prosecution. Respondent and her husband earned a substantial gross income during the years that respondent engaged in the tax-related misconduct underlying this proceeding.

Additionally, the parties agree that under 22 NYCRR 1240.8(b)(2) and §§ 9.21 and 9.22(b) and (c) of the ABA Standards for Imposing Lawyer Sanctions, dishonest or selfish motive and a pattern of misconduct may also be considered in aggravation herein and may justify an increase in the degree of discipline to be imposed.

The mitigating factors stipulated by the parties include: respondent's previously unblemished disciplinary history and the fact that she has not practiced law for nearly 3 1/2 years; that she has been under an interim suspension since January 2016; her misconduct did not involve the misuse of client funds, nor did it negatively impact any of her clients; she fully cooperated with federal criminal authorities and made full restitution; she promptly notified the AGC of her conviction and cooperated with the AGC's investigation; she accepted full responsibility for her misconduct and expressed remorse and contrition therefor; since approximately 2014, respondent and her husband have retained the services of diligent accountants and attorneys to assist them in meeting their tax obligations and respondent is fully committed to continuing to meet such in the future; respondent is well regarded in the legal community and has an excellent reputation for the character traits of honesty and integrity; she has a long-standing reputation as a well respected wife, parent, and community member who volunteers her time; she has already suffered significant consequences as a result of her tax conviction, namely, 11 1/2 months of incarceration, financial penalties, and her interim suspension; and it is extremely unlikely that the misconduct at issue will recur in the future.

Additionally, the parties agree that under 22 NYCRR 1240.8(b)(2) and §§ 9.31 and 9.32 of the ABA Standards, absence of a prior disciplinary record, timely good faith effort to make restitution or to rectify consequences of misconduct, cooperation with disciplinary proceedings, character or reputation, imposition of other penalties or sanctions, and remorse may be considered in mitigation herein and may justify a reduction in the degree of discipline to be imposed.

The parties agree that the appropriate sanction to be imposed herein is a three-year suspension, effective nunc pro tunc to January 21, 2016, the date of respondent's interim suspension.

Forbes covered the criminal case

"You’re two people who have great talent, who’ve been very successful in life, who I am going to send to prison," Manhattan Federal Court Judge Denise Cote advised Dr. Jeffrey Stein and his wife, Marla Stein, shortly before handing down their sentence.

Both will spend time in federal prison for their respective roles in cheating the Internal Revenue Service (IRS). Dr. Jeffrey Stein, a vascular surgeon, was sentenced to 18 months while Marla Stein, a personal injury lawyer, was sentenced to a year plus one day (by way of explanation, crimes deemed a felony, by sentencing guidelines, are generally punishable by more than one year in prison and may then be eligible for early release). Both had hoped to avoid jail time with Marla Stein asking to serve her sentence at home in order to take care of her minor son.

Instead, the judge opted to have the couple stagger their jail terms, Giudice-style.

The Steins were also ordered to pay restitution to the IRS in the aggregate amount of $344,989.

More from Daily Beast. (Mike Frisch)

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

Bad Sister

An attorney who resigned from the Texas Bar was disbarred as reciprocal discipline by the South Carolina Supreme Court

Respondent was accused of defrauding a University of Alabama sorority out of approximately $234,000. At the time of her indictment, respondent was licensed to practice law in South Carolina, Tennessee, and Texas. In October 2016, respondent pled guilty to one count of bank fraud. She was sentenced to six months in prison, eighteen months of home confinement, and forty months of supervised probation. Respondent was also required to complete eight hours of community service per week while on home confinement and probation and ordered to pay a fine of $50,000.

Identical discipline was not imposed

we find strictly imposing identical discipline upon respondent by requiring she resign in lieu of discipline in South Carolina would be inappropriate in this instance because the consequences of an attorney submitting her resignation in lieu of discipline differ greatly between Texas and South Carolina. See Rule 29(d), RLDE, Rule 413, SCACR (requiring identical discipline be imposed unless lawyer demonstrates, or the Court finds, imposition of identical discipline would result in grave injustice or the imposition of substantially different discipline). Additionally, because resigning in lieu of discipline in South Carolina must be a voluntary action, we find ordering respondent to resign would violate the tenets of Rule 35, RLDE, Rule 413, SCACR, which require an attorney seeking to resign in lieu of discipline in South Carolina to provide "[a] statement that the permanent resignation in lieu of discipline is freely and voluntarily rendered and that the lawyer is not being subjected to coercion or duress."

With the above analysis in mind, we find disbarment is the appropriate sanction to impose as reciprocal discipline.

AL.com reported on the related criminal case

A South Carolina attorney, who pleaded guilty to defrauding her sorority at the University of Alabama of hundreds of thousands of dollars, was sentenced Tuesday to six months in prison and fined $50,000.

U.S. District Court Judge Madeline Haikala also sentenced Jennifer Elizabeth Meehan, 40, to serve 18 months of home confinement, 40 months supervised probation. She also is to serve eight hours a week community service while on home confinement and probation.

The judge also ordered Meehan to participate in a mental health program while on probation. 

Meehan told Haikala she didn't take the money for her personal use.

Instead, according to Meehan's attorney, Richard Rice, Meehan placed $234,000 of the money in a shoebox inside a closet to use for a scholarship program and other sorority expenses. It was a claim a federal prosecutor says isn't credible.

Haikala said she didn't understand why Meehan had taken the money because it didn't appear she needed it for the usual reasons such as drugs or a big debt. "This is extremely bizarre conduct," she said.

Meehan was sentenced for defrauding Gamma Phi Beta Sorority at the University of Alabama of money meant for furnishing a new house for her sorority sisters.

Assistant U.S. Attorney David Estes asked Haikala to sentence Jennifer Elizabeth Meehan to 20 months in prison.

Rice asked for no prison time with three months home confinement, 400 hours of community service, 2 years of probation and no fine.

Meehan also will have to give up her law license. "Her livelihood, her dream is over," he told the judge.

In July Meehan pleaded guilty to bank fraud, one count of an eight-count indictment. The other counts are being dismissed under a plea agreement with the U.S. Attorney's Office.

Meehan was president of the House Corporation Board of the Epsilon Lambda Chapter of Gamma Phi Beta Sorority in an unpaid, a volunteer position. She was tasked with furnishing the $14 million sorority house between September 2013 and March 2015. The new house was the largest in the sorority's national history.

According to the plea agreement, Meehan executed a bank fraud scheme to illegally obtain money from First Citizens Bank & Trust Company and the Bank of Tuscaloosa. Gamma Phi Beta's account was at the Bank of Tuscaloosa and Meehan opened an account at First Citizens Bank under a fraudulent business name.

In September and November of 2014, Meehan submitted fraudulent furniture invoices totaling about $375,000 to Greek Resource Services, a contract company that handles the finances for fraternities and sororities at UA. GRS drew money from Gamma Phi Beta's account at Bank of Tuscaloosa and gave Meehan two checks totaling about $375,000. She deposited that money into the newly opened First Citizens account, authorities said.

Meehan wired money from that account into her personal business account at Bank of America for her personal use, according to her plea agreement.

Under the plea agreement, Meehan agreed to forfeit, as proceeds of illegal activity, $234,648, and to pay additional restitution of $34,815 to GRS. The government also had frozen another $200,000 in her bank accounts.

Meehan's offense involved an ongoing fraudulent scheme that amounted to the theft of over $500,000 in monies that were contributed by the members of the Sorority, according to the federal prosecutors' memorandum. Between the frozen bank accounts, the cash from her home, and more than $150,000 that was caught before it got to Meehan, the sorority has recovered all the money.

According to the sentencing memorandum from Meehan's attorney last week: Meehan accepts responsibility for her misconduct; the offense is an "aberration"; she will be further penalized with the loss of her ability to practice law; she has for many years prior to the crime engaged in extensive community service and works of charity; and she did not profit from the crime, "but was simply trying to do her best for her sorority."

Meehan kept a ledger of the money and placed it in individual labelled envelopes in a boot box she kept in her closet to save money for a sorority scholarship program, according to her memorandum. "After she was indicted, through counsel, Jennifer turned in the handwritten ledger along with all funds stored in the labeled envelopes to the government," according to her memorandum.

Meehan told the judge that she never intended to "abscond" with the sorority's money, did not use it for personal gain, and shouldn't have kept the money in a shoe box. "I wasn't thinking as an attorney but like a ... sorority girl," she said. 

Estes found that explanation hard to believe in his sentencing memorandum and at Tuesday's hearing. "The idea that the defendant has all along had the $234,648.00, but only chose to turn it over on April 4, 2016, some nine months after her arrest is not credible," he wrote.

Meehan's mother testified Tuesday that her daughter had told both her and her then attorney about the money she had put in the shoe box the day after her arrest.

Meehan stated in her memorandum that she became caught up in my own fantasy," Estes noted. "That is what this entire assertion is.....fantasy. It strains credulity to believe that anyone in her position, and considering all of her fraudulent conduct over the course of this scheme, was keeping that amount of cash, all of it stolen, in her closet for an eventual scholarship program," he wrote.

Estes described Meehan as a con-artist during Tuesday's hearing. She rented a post office box, submitted false invoices for years and some false invoices were from companies that didn't even exist, he said. "This is just another con," he said.

An emotional Meehan said she had profound remorse and regret and had embarrassed her family. She said she also never intended to harm the sorority that had been at the center of her life. She said she has lost all of her sorority friends.

"It's really sad I never got to see the house open," Meehan told the judge.   

The U.S. Secret Service and the U.S. Postal Inspection Service investigated the case.

(Mike Frisch)

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

Thursday, January 17, 2019

Tweeting Student Gets Attorney Reprimanded

The Law Society of Upper Canada Tribunal Hearing Division has reprimanded an attorney for failing to supervise a tweeting articling student

This is an application by the Law Society for a determination that the respondent Marco Forte (the “Lawyer”) committed professional misconduct.  The Law Society alleges that the Lawyer: (a) failed to assume professional responsibility for his practice by failing to adequately supervise his articling student Nadia Guo (“Ms. Guo”), as required by Rules 6.1-1 and 6.2-2 of the Rules of Professional Conduct; and (b) engaged in improper marketing in the management of the website and Twitter account for his practice.

The attorney stipulated to facts that established the violations.

The Lawyer is a sole practitioner who specializes in criminal defence.  He has been in practice for less than 10 years.  Ms. Guo was his first articling student.  At the time these events began, the Lawyer was not a regular user of social media and in particular Twitter.

The trigger

 On July 15, 2015, Ms. Guo, while waiting at Civil Intake at the Superior Court in Toronto, got into a verbal altercation with counter staff, which led to her flipping her middle finger to the intake staff and being escorted by security out of the building.  She was then arrested (but not charged) when she tried to re-enter the building while holding her phone trying to photograph the security officer’s badge.

In the days that followed, Ms. Guo posted messages on Craigslist and Reddit alleging that she had been illegally arrested.  She made similar posts to her Twitter account.  Ms. Guo’s Twitter profile, while under her own name, identified her as a student-at-law with the Lawyer’s criminal law practice.

 At around the same time, Ms. Guo posted a number of comments on the Criminal Lawyers’ Association (“CLA”) listserve, some of which she repeated on her Twitter account.

Participants in the CLA listserve are required to keep listserve communications confidential and must maintain in confidence the identities and affiliations of participants, in order to facilitate full and frank communication amongst participants.  This confidentiality requirement is expressed in writing.

On July 16, 2015, Ms. Guo posted a question on the CLA listserve about whether lawyers are permitted to solicit unrepresented accused persons in courthouses.  A discussion ensued on the listserve that evolved into an argument about white male privilege, in which some CLA members felt Ms. Guo’s posts were disparaging and offensive.  Ms. Guo also posted comments on her Twitter account about the CLA listserve discussion, which some licensees felt were upsetting and inappropriate.  Some of Ms. Guo’s posts on Twitter also appeared to breach the confidentiality expected of members of the listserve.  Eventually Ms. Guo’s privileges on the listserve were suspended after a complaint by one of the participants in the discussion.

Several lawyers who had been involved in the listserve discussion complained directly to the Lawyer about Ms. Guo’s communications on the listserve and on Twitter.  One of the lawyers asked the Lawyer to address offensive tweets Ms. Guo had earlier made about a judge.  The Lawyer instructed Ms. Guo to apologize to the judge, which she did.  At the same time, she sent an offensive e-mail to the lawyer in question (not copied to the Lawyer), telling him to “Please stop wasting Marco’s time with this nonsense…” and threatening that “I would love for this to make the press … and that is what will certainly happen if I do happen to deal with complaints from you.”

By the end of July 2015, the Law Society had received a number of complaints regarding Ms. Guo’s communications on Twitter and on the CLA listserve.

Following the suspension of Ms. Guo’s membership on the CLA listserve, she assured both the Lawyer and other senior lawyers, with whom he had arranged for her to speak, that she would stop posting inappropriate material on Twitter.  Nonetheless, in August and September 2015, Ms. Guo continued to post to her Twitter account, making derogatory comments about unnamed Justices of the Peace, Crown attorneys and clients in relation to her work as the Lawyer’s student.  For example, a Twitter post on September 3, 2015 reads as follows: “welp. apparently some JP’s just love to powertrip for no fucking reason at all, wasting everyone else’s time while at it.”

In early September 2015, the Law Society received a further complaint about both Ms. Guo and the Lawyer relating to these communications from a lawyer licensee practising criminal law.  The complaint was made anonymously because the complainant did not want to be the subject of a “vicious attack” on social media.  The Lawyer became aware of this complaint on October 15, 2015.

From September to December 2015, Ms. Guo continued to make offensive posts on her Twitter account.  Some of these posts described certain aspects of her work for the Lawyer, and a number appear to have included confidential information about the Lawyer’s cases.

On December 8, 2015, a Crown attorney wrote to the Lawyer about comments Ms. Guo had made on her Twitter account about a criminal matter, raising concerns that some of the posts referenced privileged and confidential information and some posts contained offensive language.

 The Lawyer responded immediately, indicating that he would “again” request that the student “not post anything on her Twitter account that is related directly to any of the work he does at [his] office or any cases [he is] presently involved in.”  He also advised the Crown attorney in a separate e-mail that he had suspended the student until he could “investigate the matter further.”  This suspension was for one week and did not commence until December 21, 2015.

On December 14, 2015, Ms. Guo posted a series of tweets about the inefficiencies of the court system and how all court clerks should be fired and replaced by robots.  She also described them as having jobs that were incredibly “futile and outdated.”  This incident led to a request by the Lawyer that the student apologize to the court staff at Old City Hall.

On December 18, 2015, Ms. Guo then posted a lengthy apology letter on Twitter addressed to the court clerks in question.  Although the letter apologized for the “poor choice of wording” used in the earlier tweets, it then repeated some of her earlier arguments about robots replacing court staff.

Following the delivery of the apology, a Justice of the Peace e-mailed the Lawyer to advise that two of her clerks were “very distressed” about Ms. Guo’s conduct.  She expressed concerns about the fact that the student’s tweets were unprofessional, uncalled for, and inflammatory.  The Lawyer responded to this e-mail thanking the Justice of the Peace for drawing the student’s conduct to his attention, reporting that he had begun monitoring the student’s tweets, and agreeing that the posts in question were inappropriate and offensive.

Following Ms. Guo’s suspension, she made private or deleted her Twitter account.  However, for a period of time she continued to post tweets on the Lawyer’s firm Twitter account in the Lawyer’s name, without his knowledge.  She also continued to operate a personal website, containing a link to the Lawyer’s website, which at one point listed the names of more than 50 “Bad Cops,” two “Bad Crowns” and two “Bad Judges.”

The Lawyer finally terminated Ms. Guo’s articles on February 20, 2016.

The Lawyer’s Supervision of His Student

The Lawyer was not oblivious to Ms. Guo’s behaviour.  Unfortunately, the steps he took were simply inadequate to the situation, as it escalated over the period from July to December 2015.

Beginning in July, the Lawyer had many conversations with Ms. Guo to attempt to educate her about the uncivil and intemperate tone of many of her communications.  He also arranged for her to meet with seven other lawyers over time, five of them women, and several of those women racialized. He instructed her on various occasions to cease her Twitter activity and to apologize to those offended by her actions. The Lawyer also responded directly to court staff, crown attorneys, defence counsel and others who had been offended by her conduct.

Unfortunately, none of the Lawyer’s efforts made any real change in Ms. Guo’s behaviour. On one occasion, for example, he ordered her to take down her Twitter account, only to learn that she had opened another soon after.  After he ordered her to take the second one down, he learned she had been tweeting, without his knowledge, from his firm Twitter account.

The Lawyer’s unfamiliarity with social media appears to have been a significant contributing factor.  He appears to have only reviewed the student’s personal Twitter account during the CLA listserve incident, through his wife’s account.  He never reviewed Ms. Guo’s personal website, which contained inflammatory and inaccurate material as well as information about client cases that had been posted without his consent. He allowed Ms. Guo to create a Twitter account for his firm, but never reviewed it at any time.

The Lawyer also appears to have assumed, at least initially, that what Ms. Guo posted on personal social media accounts was not his concern.  In fact, Ms. Guo tweeted in her capacity as his articling student, she tweeted about the work she was doing for the Lawyer and, on one more than one occasion, she shared potentially confidential information about the Lawyer’s cases with the world at large.  Other participants in the justice system, who were offended by Ms. Guo’s conduct, correctly saw her as a representative of the Lawyer and complained directly to him about her incivility and lack of professionalism.

In fairness to the Lawyer, this was an extremely difficult situation and one that could not have been anticipated when the Lawyer hired Ms. Guo as his student.  The Lawyer spent a significant amount of time and effort in attempting to coach Ms. Guo about professionalism and civility.  The Lawyer appears to have genuinely believed that he could alter Ms. Guo’s behaviour, given time.  He also somewhat naively trusted in her assurances that things would change.  This was not an abdication of his responsibility as an articling principal, but a failure to take adequate measures.

Social media issue

 The parties agree that the student’s social media may reasonably have been seen by members of the public as an advertising medium for the Lawyer, as both her Twitter feed and her website linked her to the Lawyer’s firm.

Ms. Guo created the Lawyer’s website at his direction.  He never reviewed it because he was too busy in his practice.  The home page provided a repeating slideshow of photographs of the Lawyer and Ms. Guo posing together inside a courthouse.  Throughout the website, suggestions were made that the Lawyer and Ms. Guo were a team, without clear delineation of her role as a student.  The contact page did not clearly identify her as such.  The Lawyer’s biography page noted that he was proud to “welcome Ms. Guo to his practice.”  Other comments on the website could be construed as disparaging or misleading to third parties.

The Lawyer did not monitor his firm’s Twitter account and was unaware that the student used it for a period of time.  Posts by Ms. Guo on the Twitter account could also be seen to be demeaning to other persons.

The ethics aspect

The Lawyer was responsible for Ms. Guo’s actions as his student acting under his direction.  He also had a responsibility to provide direct supervision of his student.  In our view the obligation to supervise must mean supervision that is reasonably effective.  It follows that the Lawyer should have taken steps to become conversant enough with social media to be able to effectively supervise his student’s use of it in connection with his practice.

In our view, once it became clear that Ms. Guo was posting offensive communications on Twitter relating to her work as his student without his knowledge or consent, the Lawyer should have taken immediate steps to monitor and control her Twitter feed.  And, once it became clear that she would not follow his directions regarding her use of social media in relation to her work as his student, disciplinary action should have followed immediately.

For which a reprimand was imposed.

The Kincardine News reported on the matter.

The Toronto Sun had a story on the student's bar admission process. (Mike Frisch)

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

False Testimony Requires Suspension

An attorney's false statement at his disciplinary hearing merits an actual 30 day suspension as proposed by the District of Columbia Board on Professional Responsibility.

The problems began at the outset

On May 10, 2012, Cynthia Coleman-Fields died intestate following surgery. During a May 15, 2012 meeting, Respondent agreed to represent Ms. Coleman-Fields’ husband, Robert Fields, and three of her adult children, Demetrius Davis, Ashley Coleman and April Coleman (collectively “Ms. Coleman-Fields’ children”), and the to-be-formed Estate of Cynthia ColemanFields. Susan Liberman, another lawyer who handled the probate case, participated in part of the meeting by telephone. Respondent did not identify or explain to the family members any potential conflicts of interest arising from this joint representation, other than a vague statement about the distribution agreement he drafted.

Mr. Fields said at the May 15 meeting that he wanted to divide the proceeds of any lawsuit evenly with the children and asked Respondent to prepare an agreement. Although Respondent did not want to draft such a distribution agreement because of the conflicting interests of the family members (i.e., one of his clients (Mr. Fields) would receive less than the fifty-percent share he would receive otherwise, while the others would receive more than they otherwise would) and because he was not familiar with probate law or drafting contracts, Respondent nonetheless prepared a handwritten “distribution agreement” that provided, in part: “We have agreed that the husband and the 4 children will equally divide the net proceeds, regardless of D.C. Probate law.” Only Mr. Fields signed this document.

After Ms. Liberman opened the Estate, with Mr. Fields designated as the Personal Representative, she told Respondent and Mr. Fields that she believed the distribution agreement Respondent had drafted was not binding. Mr. Fields subsequently decided that he did not want to evenly share the proceeds with the children. Respondent did not share with Ms. Coleman-Fields’ children, his other clients, either that the agreement was invalid or Mr. Fields’ decision not to share the proceeds evenly.

At the hearing, Respondent contended that he had intentionally drafted an invalid distribution agreement and that he told his clients that the agreement was invalid. The Hearing Committee found that Respondent’s testimony was dishonest and a “post hoc rationalization” to explain his error in drafting the distribution agreement. Respondent does not contest this finding before the Board, and we agree that Respondent’s testimony was dishonest.

Later in 2012, the relationship between Mr. Fields and his late wife’s children broke down, and Mr. Fields directed Respondent not to communicate with Mr. Davis about the case. Believing that Mr. Fields, as Personal Representative, had the authority to give him this direction, Respondent complied, but made no effort to withdraw from his representation of Mr. Davis and Ms. Coleman-Fields’ other children.

At issue was whether a fully-probated suspension was appropriate in a case involving false hearing testimony. The attorney argued that any suspension can be devastating to a sole practitioner. 

As Disciplinary Counsel correctly argues, false testimony to a Hearing Committee is a significant aggravating factor...

Neither the Hearing Committee, nor Respondent in his brief to the Board, have cited a case in which a respondent who testified falsely has received a fully stayed suspension. We have similarly been unable to locate such a case. Instead,  cases involving false testimony have resulted in a suspension, and for good reason. As the Court observed in Cleaver-Bascombe, “an attorney who presents false testimony during disciplinary proceedings clearly does not appreciate the impropriety of his or her conduct.” 892 A.2d at 412 (internal citation, quotations and alterations omitted). Thus, “[d]eliberately dishonest testimony receives great weight in sanctioning determinations because a respondent’s ‘truthfulness or mendacity while testifying on his own behalf, almost without exception, [is] probative of his attitudes toward society and prospects of rehabilitation[.]’” In re Chapman, 962 A.2d at 925 (alterations in original) (citation omitted) (Court imposed sixty-day suspension with thirty days stayed in favor of a one-year probation, rather than the stayed suspension recommendation, where the respondent’s testimony to the hearing committee was either not credible or deliberately dishonest); see also In re Avery, 189 A.3d at 721 (Court imposed sixty-day suspension with thirty days stayed in favor of a one-year probation rather than the “stay-in-favor-of probation recommendation” in case involving not credible or false testimony).

In re Michael Wilson can be found at this link. (Mike Frisch)

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

Threats Get Attorney Suspended

The Indiana Lawyer has the story behind a recent suspension order of the Indiana Supreme Court

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)

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

Full Restitution Must Precede Reinstatement

The Mississippi Supreme Court has held that a suspended attorney's failure to make his victim whole barred reinstatement.

The Bar sought guidance on whether insurance payments satisfy the obligation

While the Mississippi Bar supports Stanford’s petition for reinstatement, its support is conditioned upon the Court’s determination of whether “restitution by a third party, such as an insurance company, satisfies the Benson requirement that an attorney petitioning for reinstatement must make full amends/restitution[.]”   Because Stanford’s petition fails to satisfy the jurisdictional requirements necessary for reinstatement, we deny his petition for reinstatement.

Because the payments were less than the full loss, the question went unanswered

it is clear from the face of the petition that the party has not been made whole by the settlement. Additionally, there is an important distinction between a party’s legal liability that can be cured by a settlement and a party’s duty to provide full restitution as a requirement for reinstatement. Plaintiffs and creditors often accept settlements that equal less than the actual debt, and they do so for varied reasons, e.g., to avoid litigation expenses and to avoid a full or nearly-full loss of the amount in the event of an adverse verdict or bankruptcy. The execution of a release by the injured party does not release Stanford from the full restitution duty imposed by the reinstatement process. As stated previously, it is the duty of the petitioner to satisfy each requirement, and based on the petition currently before the Court, Stanford did not satisfy the requirement...

The Court has explained that “[t]o make restitution is ‘1. [a]n act of restoring the proper owner of something taken away, lost, or surrendered. 2. [a]n act of repaying or compensating for loss, damage, or injury. 3. [a] return to or restoration of a former state or position’.” In re Prisock, 5 So. 3d 319, 323 (¶ 27) (Miss. 2008) (citation omitted). Although not a lot of caselaw exists on the specific issue, the Court appears to have taken a hardline approach to restitution.

(Mike Frisch)

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

Wednesday, January 16, 2019

Self Report Of Bill Inflation Leads To Bar Charges

The Illinois Administrator has filed a complaint alleging billing misconduct by a former Kirkland & Ellis associate

In 2011, Respondent began working as an associate at the Kirkland & Ellis firm in Chicago, where he worked in the firm’s intellectual property transactional group. In August of 2015, he joined the Neal Gerber Eisenberg firm as a lateral hire. Two years later, he became a non-equity partner in that firm.

During his time at both firms, Respondent prepared records relating to the time he spent providing legal services to the firms’ clients, and he knew that the records he provided to both firms would be a component of the amount of fees the firms sought from their clients; i.e., the firms’ bills to their clients included, in part, the time Respondent claimed to have spent on client matters multiplied by his hourly billing rate, which was $450 in 2018.

During his time at both firms, in an attempt to meet what he perceived to be the firms’ billing expectations, Respondent recorded time beyond what he had actually spent in handling client matters, knowing that the time he recorded would be billed to his clients and that they would be asked to pay fees based on the records he created. For the days that Respondent felt he had not recorded sufficient time on client matters, he increased the time he claimed to have spent on those matters based on a number of factors, including his assessment of the likelihood that the client would object to the time he recorded. As an example, if Respondent spent 0.3 hours on a client matter, he would record that he had actually spent 0.5 hours, or he would bill 2.1 hours for work that actually took him 1.7 hours to complete.

Respondent’s inflation of the time he spent on client matters, as described in paragraph three, above, was false, because he had not actually spent all of the time he recorded, and the firms billed, on client matters.

Respondent knew that some portion of the time the firms billed to clients was not genuine, in that he knew that he had not spent that time on behalf of the clients and he had calculated which billing entries to inflate based on his assessment of whether he could get away with increasing the time billed to the clients.

The time Respondent recorded, including time Respondent knew to be false, was billed to both firms’ clients, who, in reliance on Respondent’s time records, paid the amounts he claimed were due the firms.

In August 2018, Respondent reported his conduct to one of the leaders of his practice group at Neal Gerber Eisenberg. The firm then conducted an inquiry into Respondent’s billing practices, at the conclusion of which it determined to offer a refund or credit to more than 100 clients who may have been affected by Respondent’s conduct. As a result, the firm offered to return funds that amounted to 20% of Respondent’s recorded time that was actually billed to and paid by the firm’s clients, which totaled more than $150,000. The Kirkland & Ellis firm, which also had not been aware of Respondent’s conduct at the time it was occurring, similarly determined to offer refunds or credits to clients affected by Respondent’s conduct.

The complaint alleges violations of Rule 1.5(a) and 8.4(c). (Mike Frisch)

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

Manafort Suspended In DC

The District of Columbia Court of Appeals has suspended Paul Manafort

From the Bar's web page

Date of Action: January 10, 2019

Type of action: Court action

Summary of Action: Manafort was suspended on an interim basis based upon his conviction of a serious crime in the United States District Court for the District of Columbia.

If the Board on Professional Responsibility finds that the crime[s] involve moral turpitude per se, it will recommend disbarment.

If he is pardoned he can nonetheless be suspended or disbarred on the underlying facts. (Mike Frisch)

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

Second Disbarment For Domestic Violence

The Kansas Supreme Court has disbarred an attorney

On September 18, 2018, the respondent was temporarily suspended in Kansas in accordance with Supreme Court Rule 203(c) (2019 Kan. S. Ct. R. 240), as a result of respondent's convictions of aggravated assault in Maricopa County, Arizona, in violation of A.R.S. §§ 13-1204 and 13-3601, a class 3 felony and a domestic violence offense.

In a disciplinary proceeding, a criminal conviction is conclusive evidence of the commission of that crime. Supreme Court Rule 202 (2019 Kan. S. Ct. R. 239). A disciplinary complaint was pending at the time respondent surrendered his license, alleging that respondent violated Kansas Rule of Professional Conduct 8.4 (2019 Kan. S. Ct. R. 387) (professional misconduct).

This court finds that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.

We recently reported on his Arizona disbarment. ( Mike Frisch)

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

Tuesday, January 15, 2019

"They Don't Send The Lawyers To Jail Because We Run The Country"

An attorney has been censured by the New York Appellate Division for the First Judicial Department

The Attorney Grievance Committee commenced this disciplinary proceeding by a petition of charges (Judiciary Law § 90[2], Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.8), alleging that respondent was guilty of certain misconduct in violation of the Rules of Professional Conduct (22 NYCRR 1200.0) because he counseled a client to engage in conduct he knew was illegal or fraudulent and suggested to the client that lawyers in the United States can act with impunity. Specifically, respondent met with a potential client who represented himself as appearing on behalf of a West African minister. The individual stated that the minister desired to purchase real property in the form of a brownstone, an airplane, and a yacht in the United States. Respondent was under the impression that the money involved was in the tens of millions. The individual's explanation of the source of the money suggested that the money was questionable. The individual related that "companies are eager to get hold of rare earth or other minerals ... And so they pay some special money for it. I wouldn't name it bribe; I would say facilitation money." Respondent informed the individual that they would need to hide the true source of the money by setting up different corporations to own the properties the minister sought to purchase. Respondent also provided assurances regarding protection of the attorney-client privilege and stated that "[t]hey don't send the lawyers [in the United States] to jail because we run the country."

Sanction

 In light of the significant factors in mitigation, including respondent's cooperation, admitted conduct and acceptance of responsibility, and the fact that the misconduct was aberrational and occurred in the context of a single, open-ended conversation during a meeting with a potential client after which respondent took no further steps, the parties agree that a public censure is appropriate.

The New York Law Journal covered the decision. (Mike Frisch)

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

Monday, January 14, 2019

Former Judge Consents To Disbarment

An attorney who had "stabbed his wife multiple times" has consented to disbarment in Arizona. 

The crime took place on August 17 2017

during a domestic disturbance at Respondent's home. Respondent stabbed his wife several times. When initially questioned by the police at the hospital, Respondent and his wife said the attacker was unknown.

The wife told the truth about a month later. The attorney - a municipal judge at the time - admitted the crimes.

He also had "got[ten] rid" of the knife and bloody bedding.

He pleaded guilty to a Class 3 Felony Assault and a Domestic Violence offense and served four months incarceration. ( Mike Frisch)

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