Friday, April 23, 2021

It's Not OK Just Because It's Adultery

Rejecting a referee's proposed three-month suspension, the Wisconsin Supreme Court ordered a two-year suspension of an attorney

Attorney Ritland has held a Wisconsin law license since 1978, and has an otherwise clean disciplinary history. The wrongdoing involved in this case centered on his sexual misconduct with two women: Z.H. and M.F.

In 2013, Attorney Ritland met Z.H. while in the checkout line at a Walmart. After Z.H. exited the store, Attorney Ritland invited her into his car, gave her his business card for his law office, and told her to contact him if she needed help or money. Several months later, Z.H. called Attorney Ritland, and he invited her to come to his law office after regular business hours. Upon luring Z.H. to his office and isolating her as he was the only one present, he gave her $40, touched her breasts outside of her clothing, and received oral sex from her. On another occasion, Z.H. again called Attorney Ritland and went to his office. He gave her $40, after which she displayed her breasts and then left, promising to return to complete the sexual encounter. Subsequent to these two incidents, Attorney Ritland visited Z.H. in jail, at a time when she was represented by a different attorney. Attorney Ritland informed jail personnel that he was visiting Z.H. as her attorney.

M.F. was a client in criminal matters

Attorney Ritland ceased representing M.F. in February 2015, after the district attorney warned him that he may have a conflict of interest in continuing to represent her given that his personal checkbook was found amongst items believed to be stolen by M.F.

Attorney Ritland admitted at his deposition in this matter that after he withdrew from representing M.F., he had sexual contact with her at his office on a number of occasions. The sexual contact included Attorney Ritland touching M.F.'s breasts, and, in one instance, M.F. performing oral sex on him.

In the criminal case brought against him, the attorney pled guilty to two counts of attempted adultery and a count of disorderly conduct.

Here, the court rejected the suggestion that the ABA has blessed adultery

We are also unpersuaded by Attorney Ritland's argument that there is no factual connection between his convictions for attempted adultery and disorderly conduct and his fitness to practice law. It is true, as Attorney Ritland points out in his briefs, that the American Bar Association ("ABA") Comment [2] to ABA's Model Rule 8.4, upon which SCR 20:8.4 was based, states:

Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. (Emphasis added.)

Seizing on the highlighted language, Attorney Ritland argues that adultery necessarily is not an offense that reflects adversely on a lawyer's fitness to practice law.

This argument ignores the record before us. While Attorney Ritland asks us to look the other way because, in his view, his conviction was for an offense that has no connection to his fitness to practice law, we refuse to ignore the overwhelming evidence that bears squarely on his fitness to practice law; namely, evidence that he engaged in coerced or quid pro quo sexual relationships with vulnerable women. Attorney Ritland used his standing as an attorney and his law office to lure, isolate, and access Z.H. and M.F....

Sanction

The disconnect between the above-cited authorities and Attorney Ritland's and the referee's recommendations——calling for a public reprimand or a three-month suspension——gives us pause. Both are wholly inadequate given the seriousness with which we view acts of attorney sexual misconduct and the egregious nature of Attorney Ritland's behavior, which included, in the referee's words, "preying on vulnerable people" with financial or substance abuse problems. At the risk of redundancy, we emphasize that sexual misconduct by attorneys, whether with clients or non-clients, is not taken lightly.

The court imposed full costs

Attorney Ritland fought tooth and nail to avoid discipline, deploying sometimes questionable litigation tactics.

...Attorney Ritland had every right to vigorously contest the misconduct charge against him. But SCR 22.24(1m) makes clear that when a lawyer ultimately found guilty of misconduct imposes costs on the disciplinary system, he or she must expect to pay them. Throughout this case, Attorney Ritland has proven to be a difficult litigant, prone to obstinate conduct and obfuscation. Such litigation practices come at a cost; Attorney Rirland will pay it in full.

The New Jersey Supreme Court took a similar approach to the "adultery defense" in this 1992 case. (Mike Frisch)

April 23, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 22, 2021

Gunshots Draw Five-Year Suspension

The Oregon Supreme Court imposed a five-year suspension of an attorney
 
In this lawyer discipline case, the Oregon State Bar charged respondent with violating Rule of Professional Conduct (RPC) 8.4(a)(2) (prohibiting commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer) after he fired six bullets into the occupied offices of a lawyer with whom he was having a professional dispute, narrowly missing one of the occupants of the building.
 
In a client matter, the court found a failure to communicate.
 
The attorney is an Iraq veteran suffering from PTSD. He began drinking heavily after his father died in 2015.
 
He was befriended by an attorney but they had a falling out.
 
From the side of the road, he fired six rounds from a pistol at and into the building where Hogan’s law firm was located. Three shots hit the brick siding, one hit a metal exterior door, and two went through one of the law firm’s lighted office windows. The law firm manager was in the office at the time. The police report stated that an investigator had reconstructed the trajectory of the bullets that went through the windows and found that one of the bullets had passed just to the manager’s left, about seven inches from her head, and hit the back of a computer. Respondent immediately left the scene and drove to his home in Vancouver, Washington.
 
Sanction
 
To recognize the gravity of respondent’s criminal conduct and ensure that respondent and other members of the Bar recognize the significance of the ethical standards to which they must adhere, we conclude that the lengthiest of permissible sanctions short of disbarment is warranted. Under BR 6.1(a)(3) the maximum length of a disciplinary suspension that we may order is five years, and that is the suspension we impose.
 
Oregonlive reported

Erik Graeff, 42, of Vancouver, sent at least three profanity-filled emails to the other attorney about three hours before the shooting, the affidavit said. The dispute apparently began because the other lawyer, Terrence Hogan, had left Graeff a voicemail saying he didn't approve of Graeff's work on a recent civil case in Washington the two teamed together on.

Graeff responded to Hogan's voicemail with an email at 3:40 p.m., belittling the message and attached a picture of a cat playing a violin, the affidavit said. Hogan replied about a half-hour later saying Graeff will have to explain his conduct to the state bars in Oregon and Washington. Graeff is licensed to practice in both states.
 
Graeff replied that the idea "sounds good," that he'd be waiting and he's tougher than Hogan and both state bars, the affidavit said.
 
"You know where I am tough guy," Hogan wrote at 4:35 p.m., according to the court papers.
 
"If the traffic wasn't such [expletive], I'd be there today," Graeff emailed three minutes later.
 
(Mike Frisch)

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

Wednesday, April 21, 2021

New York Nixes Escrow Overdraft Protection

From the web page of the New York Appellate Division for the Second Judicial Department

By Joint Order dated April 7, 2021, signed by the Presiding Justices of the four Departments of the Appellate Division, Parts 1200 (Rules of Professional Conduct) and 1300 (Dishonored Check Reporting Rules) of the Appellate Division rules were amended to address the use of overdraft protection. The amendments serve to prohibit overdraft protection on special and trust accounts, as well as to require the reporting of overdrafts, “irrespective of whether the instrument is honored,” in the same manner as the reporting of dishonored checks is required. The Rules of Professional Conduct may be found, in their entirety, on the Office of Court Administration’s website.

(Mike Frisch)

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

A Marijuana-Related Disbarment

The Colorado Presiding Disciplinary Judge approved a conditional admission of misconduct and disbarment

Tauger has thrice been suspended from the practice of law. Twice he was suspended for conduct that included practicing law while he was suspended. He was most recently disciplined in April 2020, when he was suspended for three years.

In July 2020, Tauger provided a form asset purchase agreement to parties who were negotiating for the purchase of assets of a marijuana-related business in Colorado Springs. Tauger made modifications to that agreement as well as to a noncompete agreement and a related consulting agreement. He emailed these documents to the parties in July and August, 2020. One of the emails used the domain name “taugerlaw.com” and included a disclaimer indicating that the message was confidential and potentially privileged.

(Mike Frisch)

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

Conviction Draws Interim Suspension

An attorney's conviction drew an interim suspension pending final discipline from the Minnesota Supreme Court.

Twin Cities Pioneer Press reported on the conviction

A Minnetonka attorney who worked with chiropractors to rip off auto insurance companies was sentenced Wednesday to 16 months in prison.

William Kyle Sutor, 38, pleaded guilty in February to conspiracy to commit health care fraud.

Federal prosecutors said Sutor hired “runners” to recruit clients who were supposedly injured in car crashes.

The same runners would work with chiropractors who would fraudulently bill auto insurance companies for those clients’ care, taking advantage of the state’s no-fault insurance law, which requires insurers to pay their clients’ medical bills, whether the crash was their fault or not.

Numerous chiropractors have been prosecuted in the scheme, some going to prison for several years, but Sutor is the only lawyer charged so far.

It is a state, not federal, crime for an attorney to work with runners. What got Sutor prosecuted in U.S. District Court was drafting letters to insurance companies demanding payment for claims of chiropractic care that he knew were false.

As part of his agreement to plead guilty, Sutor is paying back the $14,612 that an insurer lost in the scheme in 2015-16. Sutor’s cut in that case was just $440, his attorney John Marti said.

In arguing for a more lenient sentence, Sutor blamed mentors and fellow attorneys Matthew Landau, starting in 2009, and Bruce Goldstein, in 2011 and beyond, for showing him how to use runners to drum up business.

“He got caught up and it took him a while to break away,” Marti said.

Assistant U.S. Attorney David MacLaughlin said it’s “nonsense” to suggest Sutor was only going along with the way his more senior colleagues operated. When he left Landau’s firm for Goldstein’s, Sutor had two runners of his own and continued to work with them, paying them on 86 separate occasions.

At the time, Sutor was making as much as $400,000 a year at the firm.

“He knew exactly what was going on,” MacLaughlin said.

Sentencing guidelines called for 10 to 16 months in prison. Marti asked for a probationary sentence, citing concerns about the coronavirus in prisons and saying Sutor will be punished enough when he presumably has his law license taken away.

U.S. District Judge Nancy Brasel called Sutor’s behavior “particularly egregious.”

“You deliberately and regularly crossed ethical and legal boundaries … for your own personal benefit,” she said.

Sutor is to report for prison Feb. 1. He’ll spend another year on supervised release when he gets out.

(Mike Frisch)

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

Dr. T. And the Lawyer

The Indiana Supreme Court has reprimanded an attorney on these facts for a conflict of interest

“Dr. T” was a surgeon with a regional “Health System” and the leader of “Surgical Group.” Respondent initially represented both Dr. T and Surgical Group.

In 2007, Surgical Group and Health System incorporated a business organization (“Institute”) to manage Health System’s surgery program. Dr. T was chief medical officer for Institute and responsible for matters of surgeon compensation. That same year, Institute, Health System, and an affiliated school of medicine entered into a “Collaboration Agreement.” That agreement in turn was subject to the provisions of several other agreements executed by various parties, including a “MTSA” between Health System and Institute, a “MMSA” between Institute and Dr. T, and a “PTSA” between Institute and Surgical Group. Each party to the Collaboration Agreement was represented by separate counsel. After all of these agreements were executed though, Respondent became Institute’s outside counsel. When all of the surgeons later became employees of a separate entity (“USI”), the Surgical Group assigned the PTSA to USI.

In late 2015, Dr. T announced his intention to move his practice out of state. Prior to his resignation, Dr. T believed Institute owed him several million dollars in back pay, but Dr. T was amenable to settling with Institute for $1 million in the interest of expediency. Dr. T consulted with the Institute’s chief operating officer and his surgeon colleagues, who thought this amount was acceptable, but did not formally consult with the Institute’s Board of Directors. Dr. T consulted with Respondent (as Institute’s counsel), who advised that Dr. T had the authority to make the payment and that Health System did not have the authority to block the payment. Respondent also believed, based on documents he had reviewed, that Dr. T was owed several million dollars in back pay under the MMSA and that a $1 million settlement would be in Institute’s best interests.

When Dr. T attempted to have $1 million transferred from Institute to USI, Health System blocked the transfer. Respondent then told Dr. T he could not represent him individually but could assist Institute to resolve its dispute with  Health System, and Dr. T retained separate counsel. Dr. T never signed a conflict waiver for Respondent.

Respondent then drafted a demand letter for Dr. T to Institute and USI with a copy to Health System, which was intended to persuade Health System to bless the $1 million settlement. At Respondent’s suggestion Dr. T gave this draft letter to his counsel, who then finalized and sent the letter to Institute, USI, and Health System. Respondent took no action on behalf of USI after USI received the letter. Dr. T never sought permission from Institute’s Board for Respondent to send the demand letter, and Health System never sought permission from the Board to block payment.

After negotiations between Health System and Dr. T were unsuccessful, the dispute was submitted to arbitration. Respondent did not represent Dr. T or Institute in the negotiations or arbitration.

(Mike Frisch)

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

Charges For Shooting Stepson

Ohio Disciplinary Counsel has filed a complaint based on an attorney's guilty plea in a criminal matter

Respondent’s indictment arose from a September 4, 2019 incident at respondent’s home in Rittman, Ohio. Respondent fired one shot from a revolver, which struck Travis Tester, respondent’s adult stepson, in the foot.

Tester did not reside with respondent and had entered respondent’s home without permission. Immediately after respondent fired the revolver, Tester left the home and respondent called 911.

On February 22, 2021, respondent pleaded guilty to Count Two of the indictment. The state had amended Count Two to attempted felonious assault, a felony of the third degree, which is a violation of R.C. 2923.02 and 2903.11(A)(1).

According to the complaint, he was sentenced to community service for two years subject to a number of conditions including

Retirement from the practice of law and relinquishment of his law license

The Daily Record reported that the attorney formerly served as the Rittman, Ohio law director. (Mike Frisch)

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

Reprimand For Sex And Conflicts With Vulnerable Client

An agreed upon reprimand has been imposed by the South Carolina Supreme Court

Respondent was retained by Client in October 2018 to represent Client in a family court matter after Client's husband abruptly left the marital home. Client was a stay-at-home mother with two young children. She had previously given up her career to provide the stability, consistency, and regularity necessary to care for her son with autism. Through Respondent's efforts, the family court issued a temporary order awarding Client primary custody of the children, child support, spousal support, the use of the marital home, and other provisions. Client spoke to Respondent about hiring a private investigator based on her suspicions that her husband was having an affair. However, Respondent told Client it was unnecessary. In April 2019, a woman in Texas texted Client and stated she was having an affair with Client's husband. Respondent thereafter requested husband's bank records and subsequently amended the complaint to allege Client was entitled to a divorce on the ground of adultery. Husband ultimately admitted he was having an ongoing affair with the woman in Texas.

Sometime in April or May 2019, Respondent and Client began a sexual relationship. Client was extremely vulnerable during this time due to her emotional and financial uncertainty for both herself and her children, as Husband was not paying the required child or spousal support, and the son with autism was regressing. Client and Respondent had discussions about the future of their relationship and potential marriage. Client believed Respondent loved her and would take care of her. Respondent told Client that he could face sanctions for engaging in a sexual relationship with her. Respondent failed to advise Client about the significant potential of harm to her in her divorce action because of the relationship. In addition, Respondent did not advise Client that their relationship was a conflict of interest or that his representation of her could be materially limited by his personal interests.

On August 16, 2019, the family court granted Client a divorce on the ground of adultery. The signed divorce decree was entered the same day. Respondent called Client on August 26, 2019, and ended the affair for what he claimed to be "multiple reasons, both professional and personal." Client was shocked and devastated. Respondent self-reported the misconduct to ODC on September 5, 2019.

Sanction

We find Respondent's misconduct warrants a public reprimand.

(Mike Frisch)

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

"Inadequate, Incoherent, And Unintelligible"

The Ohio Supreme Court has ordered a stayed six-month suspension for an attorney's misconduct in court-appointed matters.

One matter involved a criminal appeal

On May 15, 2019, Valenti appeared for oral argument and informed the appellate panel that the parties intended to waive oral argument and stand on their briefs. One of the judges, however, expressed serious concerns about Valenti’s brief. He stated that the citations and abbreviations made no sense and that the brief was “52 pages of the most difficult reading I’ve ever probably done in 12 years.” The judge noted that considering the seriousness of Doak’s sentence,

Valenti thereafter sought and obtained an extension of time until June 3, 2019, to file the reply brief. But she failed to submit the brief by the deadline, and the court of appeals sua sponte removed her as Doak’s counsel. In its entry, the court noted that Valenti’s merit brief was “inadequate, incoherent and unintelligible” and that she was unprepared for oral argument. The court appointed new appellate counsel for Doak and granted the attorney additional time to file a new brief on Doak’s behalf.

At her disciplinary hearing, Valenti acknowledged that her appellate brief included confusing abbreviations, incomplete sentences, improper citations to constitutional provisions, a confusing statement of facts, and unclear legal arguments. According to Valenti, she had inadvertently filed a draft of her brief and failed to save the final version—a fact that she did not realize until after oral argument. She also testified that although she had intended to meet the June 3, 2019 deadline for the reply brief, her USB flash drive “broke off” and the court removed her from the case before she could file the brief.

Misconduct was found in two other court-appointed matters.

Sanction

Considering Valenti’s misconduct, the relevant mitigating and aggravating factors, and the sanctions imposed for comparable misconduct, we agree that a six-month suspension, stayed in its entirety on the conditions recommended by the board, is appropriate. But given the problems identified in this case and that court-appointed work is a significant portion of Valenti’s practice, we also require her to complete six hours of continuing legal education in criminal appellate law prior to accepting any new appointments in appellate cases.

(Mike Frisch)

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

Sunday, April 18, 2021

Brother's Weed

An attorney who engaged in a single act of unauthorized practice while suspended for a marijuana possession conviction should be suspended for 30 days followed by probation, according to a recommendation of the Louisiana Attorney Disciplinary Board.

The hearing committee's findings

As to the Rule 8.4(b) charge, the Committee stated that her conduct in violating this rule was not knowing, intentional, or negligent. The Committee believed Respondent’s testimony that the arrest was politically motivated by an adversary of one of her clients in litigation she was handling for the client. The Committee believed Respondent’s account that the marijuana belonged to her brother and that Respondent had “constructive possession” of the marijuana and found Respondent never stated she “knowingly” possessed it. The Committee also found that Respondent entered into the guilty plea to protect her brother.

With respect to the Rule 5.5 charge, the Committee found that Respondent’s conduct was negligent and not intentional or knowing. 

The board disagreed

The ODC asserts that the Committee erred in finding that Respondent’s conduct in violation of Rule 8.4(b) in Count I and in violation of Rule 5.5 in Count II was not knowing. The Board agrees and finds that Respondent knowingly violated both rules...

The crime to which Respondent pleaded requires that the person knowingly or intentionally possess the marijuana. For the Committee to now find that Respondent’s conduct was not knowing is inconsistent with the essential elements of the crime for which she was convicted.

In Count II of the formal charges, the ODC alleged a knowing violation of Rule 5.5 which allegation was admitted by Respondent in her answer.

Proposed sanction

The Board also recognizes that there are numerous mitigating factors present. The Board finds Respondent’s lack of selfish or dishonest motive to be particularly significant. Considering all of the above, the Board recommends that Respondent be suspended for thirty days, followed by a one-year period of probation, and that any misconduct during the probationary period may be grounds for imposing additional discipline.

(Mike Frisch)

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

Saturday, April 17, 2021

Admission Denied

The Arkansas Supreme Court affirmed the decision of the Board of Law Examiners to deny admission.

The applicant graduated from law school in 2002 and had been denied admission in Louisiana.

This decision was at least partially based on his lack of candor regarding his 1998 Louisiana conviction for felony carnal knowledge of a female when Bernoudy was twenty years old and the victim was sixteen years old.

He was granted a first-offender pardon and the conviction was expunged.

Admission was initially denied in Texas and later granted. He also is admitted in the District of Columbia.

A hearing on the application was held

Following the hearing, the Board issued an order denying Bernoudy’s application for admission to the Arkansas Bar. In its findings of fact, the Board noted that Bernoudy’s testimony before the panel was vague and that he could not remember many details regarding the extension of his probation and the disclosures in his Texas Bar application. In addition, although Bernoudy testified that he did not believe he was required to register as a sex offender in Texas due to his Louisiana expungement, he had indicated in pleadings filed in Texas that his requirement to register in Louisiana did not end until 2017, well after he had become a resident of Texas. The Board further noted that Bernoudy had been involved in a litany of civil actions, including one for failure to pay taxes, and that he had been disciplined on two separate occasions by the Texas Bar. In reviewing the entire record before it, including Bernoudy’s own testimony, the Board found that Bernoudy was “less than forthcoming” and that his “unlawful conduct; acts involving dishonesty, fraud, deceit or misrepresentation; proof of denial of admission to the Bar in another jurisdiction; and, other conduct that reflects adversely on the good moral character and mental and emotional stability of the applicant” were the bases for its decision to deny him admission. The Board concluded that Bernoudy had failed to establish by a preponderance of the evidence that he was eligible for admission to the Arkansas Bar and that “given the totality of the conduct and the information presented to the Board,” Bernoudy would not contribute to the “honor and integrity” of the profession. Bernoudy appealed the Board’s decision to this court pursuant to Rule XIII(F) of the Rules Governing Admission to the Bar.

The court 

We have held that the credibility of the applicant is a question of fact for the Board and that we will not overturn this determination unless it is clearly erroneous. Partin v. Bar of Arkansas, 320 Ark. 37, 894 S.W.2d 906 (1995). In addition to Bernoudy’s lack of candor, his prior convictions, and the denial of admission in Louisiana, the Board further noted Bernoudy’s involvement in multiple civil actions, including one for failure to pay his taxes, as well as his disciplinary history in Texas. Accordingly, the Board did not err by concluding that Bernoudy was not eligible for admission to the Arkansas Bar, and we affirm.

(Mike Frisch)

April 17, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 15, 2021

In Beachwood

A stayed one-year suspension has been imposed by the Ohio Supreme Court

On March 2, 2018, at approximately 2:00 a.m., Strauss was driving southbound on I-271 in snowy conditions when he rear-ended a Beachwood police cruiser parked on the side of the road near the scene of another accident. Although the impact caused substantial damage to Strauss’s car and the cruiser, Strauss left the scene without stopping. He continued driving southbound on I271 until he crashed into the median; he then abandoned his vehicle and fled on foot. Police officers found Strauss walking in the middle of a nearby road. He did not obey their orders to stop and continued walking. The police officers arrested Strauss and took him to the Beachwood Police Department, where an officer read him his rights and administered field sobriety tests. An Intoxilyzer breath-alcohol test performed at approximately 2:47 a.m. showed that Strauss’s blood-alcohol content was 0.148.

On January 7, 2019, Strauss pleaded no contest to two counts of operating a vehicle without reasonable control and single counts of resisting arrest, leaving the scene of an accident, unsafe operation of a vehicle in the vicinity of an emergency vehicle, and operating a vehicle while intoxicated (“OVI”).

The parties agreed as to the violations and sanction

In this case, the board expressed some concern that Strauss was reluctant to submit to an assessment conducted by the Ohio Lawyers Assistance Program. It noted, however, that that concern was diminished by the facts that (1) an assessment completed as part of Strauss’s criminal sanction found that he had no substance-use disorder and (2) relator never sought an order to compel any further assessment. Ultimately, the board determined that a one-year suspension, stayed in its entirety on the conditions that Strauss commit no further misconduct and comply with the terms of his inactive probation—which requires him to refrain from using nonprescriptive drugs and submit to random drug testing—is the appropriate sanction for his misconduct.

Having thoroughly reviewed the board’s findings of fact and conclusions of law, the applicable mitigating factors, and the sanctions we have imposed for comparable misconduct, we agree.

(Mike Frisch)

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

Wednesday, April 14, 2021

Affidavit with Nude Photos Draws Reprimand

A reprimand has been ordered by the Alberta Law Society Hearing Committee for what the panel called a "novel situation" involving an attorney retained by the husband in an action involving his common law partner

The Husband later expressed concern to Ms. Herrington that the Wife was planning to leave the Province of Alberta with the children. All communication had broken down between the parties. Ms. Herrington contacted the police who indicated that without a Court Order they would not prevent the Wife from leaving the jurisdiction. 

Herrington drafted an emergency application and affidavit (the “Affidavit”). The Affidavit included texts that the Husband and Wife had sent back and forth but no pictures. Ms. Herrington sent the draft affidavit for signing with a lawyer in [W] where the Husband was located.

 The Husband added additional exhibits to the Affidavit without consulting Ms. Herrington. Some of the additional exhibits included explicit and nude pictures of the Wife. 

Ms. Herrington was out of the office for the next two days at continuing education courses. Ms. Herrington received the sworn Affidavit late in the afternoon of March 8 with Court scheduled for the morning of March 9. 

 Upon reviewing the Affidavit and seeing the additional exhibits Ms. Herrington sought the advice of lawyers in her office and eventually decided to proceed using the Affidavit. It was thought by Ms. Herrington that the pictures showed a pattern of behaviour from the Wife and that she needed the Affidavit for the emergency application the next morning. Ms. Herrington did not want to alter the Affidavit by removing the exhibits as it would not be appropriate to alter a sworn Affidavit.

Herrington attended Court and received an ex-parte order using the sworn but unfiled Affidavit of the Husband. Ms. Herrington later filed the Affidavit after the Order was granted and served it on the Wife’s counsel.

The Wife’s counsel asked Ms. Herrington to remove the explicit photos from the Affidavit. After further communications between Ms. Herrington and the Wife’s lawyer the parties agreed to black out the nude photographs.  The Wife’s lawyer brought an application to remove the Affidavit and the Court ordered that the Affidavit be expunged, the Wife be awarded $250 in costs and that the Affidavit be refiled with redacted photographs.

Sanction

 Ms. Herrington has admitted that she should have dealt with this matter differently but being provided an Affidavit that had been altered by her client for an emergency application on short notice put her in a difficult position. She consulted other lawyers in her office for their advice and made this decision to proceed. This does not leave Ms. Herrington blameless but goes to show this was not a simple situation.

This Committee therefore sanctions Ms. Herrington to a reprimand (attached as Schedule 2), which reprimand was given in person at the time of the Hearing.

Is this is what it means to file a bare-bones affidavit? (Mike Frisch)

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

Get Mad Not Even

An attorney's response to an unfavorable on-line google review drew a public censure from the Tennessee Board of Professional Responsibility.

The former client had included his name in the review.

The response

details about the former client, including health and medical conditions of the former client and the case in which [he] represented the client. [The attorney] also stated that the former client asked him to make false representations to the court.

The comments, which were posted on a publicly-available web site, violated the attorneys duties to the former client. (Mike Frisch)

 

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

White-Out

The New Hampshire Supreme Court has ordered the interim suspension of an attorney charged with felony falsification of physical evidence and misdemeanor tampering with public records or information.

From a press  release of the state Department of Justice

Deputy Attorney General Jane E. Young announces the arrest today of Circuit Court Judge Julie A. Introcaso, age 56, of Bedford, New Hampshire on several felony and misdemeanor charges. Those charges consist of:

  • Two class B felony counts of falsifying physical evidence (RSA 641:6) charging Judge Introcaso with, on or between January 6, 2020 and January 9, 2020, having been notified that an official proceeding was pending, that is, a Judicial Conduct Committee (JCC) report had been filed against her and the JCC had elevated that report to a formal complaint on November 18, 2019, did alter two of her original handwritten orders issued on March 12, 2019—referred to as the Apple Pay Order and the Fee Cap Order—in the matter of Robin Partello v. David Campbell in the 9th Circuit Court – Family Division – Nashua, docket no. DN 659-2818-DM-0072, by apply white-out to the entirety of the original handwritten orders, and did so with the purpose to impair their verity or availability in the JCC matter.
  • Two class A misdemeanor counts of tampering with public records or information (RSA 641:7) charging Judge Introcaso with, on or between January 6, 2020 and January 9, 2020 with knowingly making a false alteration to two of her original handwritten orders issued on March 12, 2019—referred to as the Apple Pay Order and the Fee Cap Order— in the matter of Robin Partello v. David Campbell in the 9th Circuit Court – Family Division – Nashua, docket no. DN 659-2818-DM-0072, by applying white-out to the entirety of the original handwritten orders, said orders being documents kept by the government for information or record.
  • One class A misdemeanor count of unsworn falsification (RSA 641:3) charging Judge Introcaso with while acting a purpose to deceive a public servant in the performance of his or her official function, did make a written false statement which she did not believe to be true, when on or about April 3, 2020, Judge Introcaso sent a letter to the Judicial Conduct Committee (JCC) in response to the JCC's inquiry opened pursuant to Supreme Court Rule 40(6) in which the JCC had asked Judge Introcaso whether she had altered and/or removed documents from the case file in the matter of Robin Partello v. David Campbell in the 9th Circuit Court – Family Division – Nashua, docket no. DN 659-2818-DM-0072, and in her response Judge Introcaso denied having obscured two court orders she had written on March 12, 2019—referred to as the Apple Pay Order and the Fee Cap Order—when in fact Judge Introcaso had applied white-out to the entirety of her original handwritten Apple Pay Order and Fee Cap Order in the Robin Partello v. David Campbell matter.

Judge Introcaso will be arraigned on a date and time to be determined by the Court.

The charges and allegations are merely accusations, and Judge Introcaso is presumed innocent unless and until proven guilty.

The New Hampshire Union Leader reported that she resigned from the bench.

The former judge did not object to the interim suspension. (Mike Frisch)

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

Car Trouble

The Ohio Supreme Court has imposed an indefinite suspension of an attorney for two criminal incidents.

From the report of  the Board of Commissioners on Grievances and Discipline

On February 17, 2005, Respondent and a male companion were en route from Cleveland to Oxford, Ohio, traveling in a vehicle owned by Respondent but driven by the male companion. Respondent had previously represented the male companion on a felony drug case. She admitted that he was a known drug dealer who she had asked to drive her to Oxford, Ohio, for a hearing on a completely unrelated matter.

 As they approached the City of Oxford, Respondent and her companion became lost and stopped to ask a police officer for directions to the courthouse where Respondent was scheduled to appear.

The police officer advised Respondent and her companion that he also was scheduled to appear in court and that the two could follow him.

Unfortunately the car ran out of gas on the way. The situation eventually led to a search of the car

During the search, police discovered a Louis Vuitton change purse in the unlocked glove box compartment. Inside the change purse was a glossy page containing a folded advertisement for legal services typically found in legal publications. Inside that paper was a white powdery substance along with a straw with white residue inside it. The court noted in its decision that the change purse was one that would typically be carried by a woman.

The search also revealed a makeup bag behind the driver's sear which contained a small baggie containing white cocaine residue.

Subsequently, Respondent was charged and convicted of cocaine possession, a 5th degree felony.

Respondent, while admitting to recreational use of cocaine, steadfastly maintained her innocence at the hearing.

In 2007, she reported that her car had been stolen

Thereafter, Respondent was charged with Disrupting Public Service in Bedford Municipal Court. There was no evidence presented to the panel regarding Respondent's specific conduct that led to the criminal charges. However, at a video appearance before the Bedford Municipal Court, the judge presiding over the matter became concerned about Respondent's behavior in court, and remanded Respondent for a mental competency examination conducted at the Northcoast Behavioral Center. Respondent was held there for approximately sixty (60) days.

On January 22, 2007, the Cuyahoga County Grand Jury indicted Respondent on nine counts of disrupting public service in violation of R.C. 2909.04, a 5th degree felony, and one count of resisting arrest in violation of R.C. 2921.33, a 2"d degree misdemeanor.

Subsequently, Respondent entered a plea of guilty, and was found guilty of one count of disrupting public service and a charge of resisting arrest in the Cuyahoga County Court of Common Pleas.

The board on sanction

Relator requested that Respondent be disbarred. The panel does not agree that the facts in this case warrant such a severe sanction. It is clear that the felony conviction for disrupting public service was influenced by a mental and/or chemically induced episode as evidenced by her hospitalization for a competency evaluation by the court conducting her initial appearance. Respondent had been diagnosed as being bipolar with major depressive episodes by her treating psychiatrist, Dr. Cerny. However, Dr. Cerny testified that the bipolar condition was very likely substance-induced and caused by Respondent's admitted abuse of cocaine, diet pills and Adderall. Respondent is not currently bipolar and is unlikely to have a relapse absent drug abuse. Furthermore, Dr. Cerny could not testify that Respondent's drug-induced bipolar condition caused her to commit the misconduct herein, or that she is currently fit to practice law.

(MIke Frisch)

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

Thursday, April 8, 2021

Former Tribal Judge Disbarred

Despite an expressed appreciation for career accomplishments, the Wyoming Supreme Court has disbarred the former Chief Judge of the Wind Rind River Tribal Court.

In light of "significant mitigating factors " and the "long delay," the court imposed the sanction retroactive to the date the attorney resigned the judgeship. 

From the Board of Professional Responsibility report

Respondent was raised in a dysfunctional family. Her entire family is afflicted with addiction issues. Mother, father, stepfather, brothers and sisters all had substance abuse issues. Aunts, uncles and cousins all had either substance abuse or gambling addictions. Respondent's definition of "helping family" often meant helping them find drugs or alcohol. Living on the reservation, respondent witnessed a lot of fighting, drinking, drug abuse, and people struggling to make a living However, to her, this was normal. Her family relationships created a symbiosis in drug-seeking behavior. It is perhaps incongruous that in spite of her environment and her own addictive struggles, Respondent was able to obtain not only a college degree but complete a graduate law school program and have a successful career as an attorney, although in the end she could not fully escape her formative environment. For many years, Respondent excelled in the face of extraordinary odds.

Her downfall was the result of an opioid addiction.

She pled guilty to two federal felony offenses involving conspiracy to distribute drugs and cooperated in the criminal investigation.

The many persons who face charges or have been convicted as a result of Respondent's cooperation and assistance to the government have friends and family all over the Reservation. Families are inter-related. Loyalties run deep. The parties agree that Respondent's cooperation with prosecutors in the face of such threats merits consideration as a mitigating factor...

(Mike Frisch)

April 8, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 7, 2021

Suspensions For Aiding Unauthorized Practice

Eighteen month suspensions of two attorneys have been ordered by the New York Appellate Division for the First Judicial Department for employing a suspended attorney as a "paralegal"

On April 29, 2014, this Court suspended attorney Eric Gonchar for nine months, effective May 29, 2014, for maintaining a side practice of law for 11 years without his firm's knowledge in contravention of his terms of employment and failing to include the income derived therefrom (118 AD3d 1 [1st Dept 2014]). Respondents' law firm employed Gonchar as a paralegal while Gonchar was suspended and for a period of over two years. In 2015, we denied Gonchar's motion for reinstatement, and on October 5, 2018, we disbarred Gonchar for violating the terms of his suspension by continuing to hold himself out as an attorney and engaging in the unauthorized practice of law while employed by respondents' firm, finding that he "gave substantive legal advice on real estate matters to attorneys at the law firm . . . and a nonattorney employee in flagrant violation of our suspension order and Judiciary Law §§ 478 and 486" (166 AD3d 91, 92-93 [1st Dept 2018], lv denied 32 NY3d 914 [2019])...

Gonchar, like the attorneys in Brandes and the other cases cited above, operated as a "paralegal" dispensing advice through the intermediaries of attorneys who interacted directly with clients. He drafted legal documents and was admittedly possessed of superior legal knowledge regarding case matters — indeed, he had brought many of his client matters with him to respondents' firm. Gonchar "functioned as a senior attorney. . . by the exercise of his experience and acumen. . . not his services as a paralegal, [and] made major contributions to the resolution of many of the firm's cases," as noted by the AGC. The conclusion is inescapable that he was engaged in the unauthorized practice of law and that respondents aided and abetted him in the unauthorized practice of law.

Respondents' claim that they believed Gonchar could act as a paralegal so long as he did not interact with anyone outside the firm is not credible in light of the precedent; their claims are moreover undermined by the misleading job description they prepared specifically for purposes of Gonchar applying for reinstatement to the bar, and the fact that they failed to consult outside ethics counsel before hiring Gonchar.

Sanction

The Referee's sanction recommendation that respondents be publicly censured should be disaffirmed and both respondents should be suspended from the practice of law for 18 months (see Matter of Sishodia, 154 AD3d 123 [1st Dept 2017]). Our order made explicit that Gonchar was prohibited from practicing law in any form including giving legal advice or opinions to "another." It is difficult to see how respondents, both experienced attorneys, failed to appreciate the import of the order or credibly believed that the work Gonchar performed over a 2½ year period did not rise to the level of unauthorized practice of law. They, moreover, prepared a misleading job description the purpose of which could be none other than insulating them from liability, indicating that they well understood the repercussions of Gonchar engaging in unauthorized practice.

Accordingly, the AGC's motions with respect to respondents to confirm in part and disaffirm in part are granted to the extent of sustaining charges 1-3 and 8 in full and dismissing charges 4-7; disaffirming the Referee's liability finding dismissing charge 9, and instead, sustaining that charge; disaffirming the sanction recommendation of public censure and suspending respondents from the practice of law in the State of New York for a period of 18 months and until further order of this Court. Respondents' cross motions should be denied in their entirety.

(Mike Frisch)

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

Pre-Admission Criminal Conduct Draws Permanent Disbarment

The Ohio Supreme Court has permanently disbarred an attorney, primarily for criminal conduct that pre-dated his admission

From August 2006 until January 2010, Polizzi was employed by Cornerstone Christian Academy, where he taught high school history and middle school English, served as a mock-trial advisor and class advisor, and coached middle school cross country. In July 2017, the Lake County Grand Jury indicted Polizzi on one count of gross sexual imposition and 24 counts of sexual battery for conduct that allegedly occurred with a student (“Victim 1”) in January and February 2010. A second indictment, issued in December 2017, charged with 33 counts of gross sexual imposition, 22 counts of sexual battery, and one count of attempted sexual battery for conduct that allegedly occurred with a second student (“Victim 2”) between October 2007 and June 2008.

 On March 28, 2018, Polizzi pleaded guilty to one count of gross sexual imposition and three counts of sexual battery with respect to each victim. Polizzi admitted that in January 2010 he engaged in gross sexual imposition by touching Victim 1 on the thigh and compelling her to submit by force or threat of force. He also admitted that in early 2010 he committed three acts of sexual battery, by engaging in digital penetration, cunnilingus, and fellatio with Victim 1. Polizzi admitted that between October 2007 and June 2008, he engaged in gross sexual imposition by touching Victim 2’s clothed genital area and causing her to have similar sexual contact with him, and he further admitted that he had compelled the victim to submit by force or threat of force. He also admitted that he committed three acts of sexual battery between March and June 2008 by digitally penetrating Victim 2. Polizzi admitted that at the time of these offenses, Victims 1 and 2 were minors enrolled at the school at which he was employed as a teacher, coach, or other person in authority

He is serving a lengthy prison sentence.

During his disciplinary hearing, Polizzi testified that Victim 1 and Victim 2 had been students in his American History class and that he had coached Victim 1’s mock-trial team. Polizzi had met privately at the school with Victim 2 around a dozen times, at her mother’s request, to help her with a personal family matter. He testified that Victim 2 was 17 or 18 years old and still a student at the school when he began having illegal sexual contact with her in April 2008 and that he continued to engage in sexual conduct with her until October 2009.

Polizzi testified that he had communicated with both victims by text message, but he maintained that only one of those text messages, a text to Victim 1, was sexually suggestive. He admitted that he had met and engaged in sexual conduct with each victim at a park. After one such meeting with Victim 1 in January 2010, someone reported having seen Polizzi arrive at the school with Victim 1. When confronted by the superintendent of the school, Polizzi admitted that he had met with Victim 1, but he was not honest about his sexual relationship with his students. Nonetheless, the superintendent informed Polizzi that his contract would not be renewed.

He then started a law career

In August 2010, Polizzi began to attend the University of Akron School of Law and work at the Cuyahoga County Prosecutor’s Office. He graduated in December 2012 and took the February 2013 bar exam. Although he disclosed the termination of his employment at Cornerstone Christian Academy on his bar application, he did not disclose that he had engaged in sexual conduct with his students.

The court expressed concerns about his post-dismissal contact with the victims

Polizzi’s continued communication with his victims is just one of many factors that demonstrate his ongoing lack of remorse and failure to accept responsibility for his crimes. For example, as described above, at his disciplinary hearing, Polizzi was unwilling or unable to admit the true nature of the e-mail that he had sent to Victim 1 approximately eight years earlier. Although Polizzi now asserts that his hesitance in responding to relator’s questions illustrates nothing but shame, he actually attempted to convince the panel that he had e-mailed Victim 1 only because he felt guilty and wanted “closure.” On further cross-examination, however, he admitted that he had used a fake e-mail address, had not disclosed his identity, and had asked Victim 1 at least one sexually explicit question, so the e-mail is more properly characterized as an attempt to remind the victim of—rather than apologize for—his past criminal conduct.

As to precedent

The most significant distinction between disciplinary cases involving sexual misconduct that resulted in an indefinite suspension and those that resulted in permanent disbarment is that—like Polizzi—the attorneys who were disbarred were either convicted of gross sexual imposition or used force, the threat of force, or extreme forms of coercion to compel their victims to submit to their sexual demands...

In this case, for more than two years, Polizzi used his authority as a teacher to compel two of his students to engage in sexual conduct with him and threatened at least one victim with discipline or expulsion to keep her from reporting his conduct.

As to the disclosure on the bar admission application

Although Polizzi disclosed the termination of his teaching employment on his bar-exam application, he did not disclose that he had had sexual contact with two of his students. Had Polizzi disclosed that conduct or been convicted before he sought admission to the bar, his application most certainly would have been disapproved.

Justice Donnelly dissented

The court today permanently disbars respondent, Anthony John Polizzi Jr., but not because of anything that Polizzi did or did not do as an attorney. The court imposes this ultimate form of discipline for criminal offenses that were committed three to five years before Polizzi became an attorney but were not prosecuted until four years after he became an attorney. Because that sanction is inconsistent with our precedent, I respectfully dissent.

To be absolutely clear, when it is discovered that an attorney has committed criminal acts, whether the conduct occurs after bar admission or before, swift and severe consequences are necessary. Polizzi’s criminal conduct indisputably predated his 2013 admission to the practice of law. In the only Ohio case to which we have been directed where discipline was imposed for criminal conduct that occurred prior to the attorney’s admission to the practice of law, this court indefinitely suspended the attorney.

...This court has chosen the less severe sanction of indefinite suspension for equally reprehensible criminal acts, including predatory sexual acts involving children.

The possibility of redemption

Our primary objective in disciplinary proceedings is to protect the public in relation to the lawyer’s fitness to practice law through sanctions that are consistent with those imposed in similar cases. The discipline imposed should be both purposeful and proportionate. I do not believe that Polizzi’s disbarment is compelled by our precedents or by the principles that guide the disciplinary process.

 I do not know whether Polizzi should be permitted to practice law again. I do not believe that that issue should be considered until there has been sufficient time and opportunity for Polizzi’s due reflection and true contrition and for Polizzi to establish affirmative evidence of his redemption. But today’s decision declaring him to be beyond redemption and categorically unfit to ever practice law again eliminates any incentive for him to seek professional and perhaps personal rehabilitation. I would indefinitely suspend Polizzi from the practice of law. I therefore dissent, respectfully.

DEWINE and STEWART, JJ., concur in the foregoing opinion. 

(Mike Frisch)

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

Monday, April 5, 2021

Georgia Court Reduces Proposed Sanction; Expresses Concern About "Weaponized" Bar Complaints

The Georgia Supreme Court has reduced an attorney's proposed two-year suspension to a public reprimand and, in so doing, chided the State Bar for declining to investigate his former law partners who had filed the bar complaint

This matter arose from a grievance filed by one or both of Cook’s former law partners in the midst of the dissolution of their partnership. After an investigation, the Bar filed a formal complaint charging Cook with a variety of Rules violations, but it later amended its formal complaint to leave only the allegations that Cook’s handling of the firm’s trust account and his responses to this disciplinary matter violated Rules 1.15 (I) (a), 1.15 (II) (a) and (b), and 8.4 (a) (4), as set out in Bar Rule 4-102 (d). Ultimately, Cook stipulated that he violated Rules 1.15 (I) (a) and (II) (a) and (b), but denied that he had done so knowingly or that he violated Rule 8.4 (a) (4). After extensive hearings, special master Bryan Downs made factual findings; concluded that Cook violated Rules 1.15 (I) (a) and Rules 1.15 (II) (a) and (b), but not Rule 8.4 (a) (4); and found, in the light of a number of mitigating factors, that a one-year suspension was the appropriate punishment. After considering the exceptions filed by both parties, see former Bar Rule 4-217 (d), the Review Board disagreed with some of the special master’s factual findings underlying the conclusion that Cook had not violated Rule 8.4 (a) (4). The Review Board substituted its own different factual findings on that point and concluded that Cook had violated Rule 8.4 (a) (4) in addition to his stipulated violations of Rules 1.15 (I) and (II). The Review Board concluded that Cook should face a two-year suspension for his violations.

The attorney was the managing partner of a three-partner firm that handled personal injury matters.  The firm dissolved in 2012.

The court deferred to the findings of the Special Master

With regard to the issue of injury or potential injury, the special master found that no client was actually harmed because they all ultimately received their settlement proceeds on a timely basis. He concluded, however, and we agree, that the potential for injury created by Cook’s mismanagement of the trust account was substantial as the aggregate amount of money prematurely removed from the trust account was large and the trust account’s balance was repeatedly depleted well beyond the amounts that should have been held in trust for disputed contingencies related to client matters.

As to the other partners

The special master addressed another proposed mitigating factor submitted by Cook, namely, that his discipline should be mitigated somewhat because Hall and Lampros — who were also lawyers and partners in the firm, who had duties to CHL’s clients and others, and who therefore shared the obligation to monitor CHL’s trust account — wholly abdicated their responsibility in that regard during the relevant time, and yet have not been pursued by the Bar for their failures. The special master found the Bar’s seeming indifference to the other partners’ complicity and its decision to single out Cook for discipline troubling, particularly where the underlying grievance was filed not by clients or injured third parties, but by those same former law partners. The special master noted that Cook would lose his status as “designated counsel” for the railroad union if suspended, that Cook losing this status would be tantamount to disbarment given that the substantial majority of his practice was representing railroad workers in injury cases, and that his former law partners, who practice in the same area of specialty as Cook, had a pecuniary interest that would benefit from any discipline imposed on Cook. Noting that the logical consequence of such uneven treatment by the Bar would be the erosion, among members of the Bar, of the principle that law firm partners have a shared responsibility for the firm’s trust account, he considered these circumstances to be mitigating.

The court on sanction

Here, we note that the evidence did not prove that Cook acted dishonestly, intentionally, or maliciously, and, although the potential for harm was undeniably great, it appears that no client or third party suffered any actual harm as a result of the violations — as no client or third party ever suffered any delay in obtaining the funds owed to him or her. Moreover, this is Cook’s first disciplinary infraction in what appears to have been a long and distinguished legal career, and, during the many years since these infractions, Cook has taken steps to prevent any additional issues of this nature. Further, the record contains no evidence, or even an allegation, that Cook failed to adequately or competently represent a client. Although we wish to emphasize the seriousness of Cook’s misconduct and the non-delegable obligation he has as a fiduciary of his clients’ property, given the special considerations discussed above, this Court concludes that the mitigating factors present in this case ⸺ which do not include the Bar’s disparate treatment of Cook compared to his former partners ⸺ outweigh the aggravating factors of multiple violations and substantial experience in the practice of law such that a suspension is not warranted.

Further concerns

Under the Bar Rules, Cook’s partners bore responsibility, along with Cook, for the trust account and for the safekeeping of their clients’ funds and other property.

Yet the Bar chose not to exercise its authority to initiate an investigation into the actions of either of Cook’s partners, explaining to this Court that Cook never filed a grievance against those partners, and that, if he had believed they were complicit, he could have done so. The Bar further argues that factors like motivation behind the grievance and uneven treatment should not be considered in mitigation because the ABA Standards do not separately recognize them as mitigating factors.

...The Bar has not offered any explanation of why it did not exercise its authority to investigate the other law firm partners, and its failure to do so could be seen as lowering the standards imposed on law partners who are not specifically tasked with managing their firm’s trust account. And such failure could encourage lawyers to use the Bar’s disciplinary process to resolve internal law firm disputes and settle old scores with former partners. Such weaponization of the disciplinary process must not be encouraged.

Presiding Justice Nahmias dissented and finds the majority downplayed the seriousness of the misconduct

When the scope of Cook’s misconduct is detailed, it becomes clear that none of the trust-account cases imposing reprimands that the majority opinion cites as “similar” to this case really are similar in terms of the extent of the violations or the amount of client funds put at risk. Moreover, the majority opinion ignores numerous attorney discipline cases in which violations of Rule 1.15 – even with no actual harm to clients, no major aggravating factors like lying to clients or disciplinary authorities, and various mitigating factors – have resulted in suspensions.

...I cannot agree that other lawyers will be deterred, or that the public will be given confidence that this Court will maintain the ethics of the legal profession, when they see that the penalty for Cook’s repeated and serious violations of Rule 1.15 – violations that put large amounts of many clients’ funds at great risk - is just a public admonition not to do that again. I respectfully dissent.

Chief Justice Melton joined the dissent. (Mike Frisch)

April 5, 2021 in Bar Discipline & Process | Permalink | Comments (0)