Monday, July 26, 2021

Hearing On Proposed Consent Discipline

The hearing on proposed consent discipline for former FBI attorney Kevin Clinesmith is scheduled for 10 am this morning before a District of Columbia Hearing Committee.

Our prior coverage

The District of Columbia Office of Disciplinary Counsel and Kevin Clinesmith have submitted a proposed one year suspension by consent for conduct that had led to a federal false statement conviction

Disciplinary Counsel docketed this matter for investigation in December 2019 based on allegations about Respondent’s conduct in Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation, 247-256, U.S. Department of Justice, Office of the Inspector General (December 2019) (the “December 2019 DOJ IG Report”).

On August 25, 2020, Respondent, by and through counsel, timely notified the Board on Professional Responsibility and Disciplinary Counsel that he had pled guilty in the U.S. District Court for the District of Columbia to one count of making a false statement in violation of 18 U.S.C. § 1001(a)(3) in connection with the conduct alleged in the December 2019 DOJ IG Report.

From the agreed facts

From July 12, 2015 to September 21, 2019, Respondent was employed full-time with the Federal Bureau of Investigation as an Assistant General Counsel in the National Security and Cyber Law Branch of the FBI’s Office of General Counsel. As part of Respondent’s duties and responsibilities, Respondent assisted FBI Special Agents and Supervisory Special Agents in connection with applications prepared by the FBI and the National Security Division (NSD) of the United States Department of Justice to conduct surveillance under the Foreign Intelligence Surveillance Act.

On July 31, 2016, the FBI opened an investigation known as Crossfire Hurricane into whether individual(s) associated with the Donald J. Trump for President Campaign were aware of and/or coordinating activities with the Russian government. By August 16, 2016, the FBI had opened individual cases under the Crossfire Hurricane umbrella on four United States persons, including a case involving Carter Page.

Respondent's misconduct involved an email

Relying on the altered email, the Supervisory Special Agent signed and submitted the fourth FISA application on June 29, 2017. This application also did not include Page’s history or status with the OGA.

The hearing may be accessed in real time only at this link.

Update: I checked periodically and the hearing apparently did not go forward . (Mike Frisch)

July 26, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, July 25, 2021

"There Are Not Two Truths, But Only One"

The New Mexico Supreme Court has censured an attorney

William Ferguson, an Albuquerque personal injury lawyer, purchased a Ferrari for his personal use that he registered to his company, Motiva Performance Engineering, LLC. In a suit for damages to the Ferrari, he represented to the court and the parties that the Ferrari belonged to Motiva. But when he thought that he could evade a judgment against Motiva by claiming that the Ferrari belonged to him, he told another court the opposite: that the Ferrari belonged solely to him and never belonged to Motiva. These contradictory representations became the subject of disciplinary proceedings. Mr. Ferguson attempted to justify the contradictory statements by telling the disciplinary board that there are “two truths” about ownership. There are not two truths, but only one: Mr. Ferguson misrepresented facts before a court of law. We issue this public censure to admonish Mr. Ferguson for his misconduct and to caution him against engaging in similar unprofessional conduct in the future.

Mr. Ferguson owned and operated five companies relevant to this disciplinary proceeding: Motiva; Avatar Recoveries, LLC; DealerBank, LLC; Armageddon Tool & Die, LTD (Tool & Die); and Armageddon High Performance Systems d/b/a Armageddon Turbo Systems (Turbo Systems). Mr. Ferguson was the sole owner of three of those companies—Avatar, DealerBank, and Tool & Die—and the majority owner of Motiva and Turbo Systems. In addition to being the majority owner, Mr. Ferguson was the managing member of Motiva.

Motiva was a high-end car dealership and automotive shop that specialized in performance-enhancing vehicle modification. As a car dealership, Motiva was exempt from paying excise tax on vehicles that it acquired for resale. Vehicles that it acquired for resale were eligible for special “demonstrator” license plates. The demonstrator plates are available solely for use on vehicles that are part of a dealer’s inventory, and Motiva was issued five demonstrator plates.

In 2014, Mr. Ferguson purchased a $200,000 Ferrari which he intended to use as his personal vehicle, but he titled and dealer-registered it to Motiva. Mr. Ferguson affixed a Motiva demonstrator plate to the Ferrari expressly to avoid paying $6,000 in excise taxes that he would have owed had he put the Ferrari in his own name. Doing so was justified, in Mr. Ferguson’s view, because “That’s the way the business works.” Mr. Ferguson used the Ferrari, titled and registered to Motiva, as his personal vehicle.

In 2016, the Ferrari was damaged in the parking lot of Mr. Ferguson’s law firm when one of Mr. Ferguson’s tenants accidentally drove into it. Mr. Ferguson brought suit for damages, including punitive damages, on behalf of Motiva. He later claimed that he sued in Motiva’s name rather than his own because the person he was suing was disabled: “A personal injury attorney suing a paraplegic lady wouldn’t have been my first choice.” In that lawsuit, Mr. Ferguson consistently and exclusively represented to the court and to the other driver’s insurance company that Motiva owned the Ferrari.

When Mr. Ferguson won that suit on behalf of Motiva, he executed a Property Damage Only Release in exchange for $9,051.51 for repairs to the Ferrari and $40,984.49 for loss of its use and its diminished value. Mr. Ferguson did not deposit those funds into his trust account for the benefit of Motiva, but into his personal account.

Motiva was sued in an unrelated matter and was subject to a $200,000 adverse verdict

Four days after the jury returned its verdict against Motiva, Mr. Ferguson transferred the Ferrari out of Motiva’s name and into the name of DealerBank, another company over which he maintained control. At that time, the Ferrari was valued at $135,000 to $140,000. Mr. Ferguson freely admitted that he transferred title in an attempt to avoid execution of the judgment in the Butler lawsuit. He also began transferring other assets out of Motiva’s name, closed down Motiva’s business operations, and declared Motiva bankrupt.

The plaintiff in the Butler lawsuit, unable to collect on the judgment against Motiva, moved for a declaration of ownership of the Ferrari and other assets. In the ensuing litigation, Mr. Ferguson strenuously argued that he was the sole and exclusive owner of the Ferrari and that Motiva never owned the Ferrari. Mr. Ferguson testified under oath that it was never his intent to make the Ferrari part of Motiva’s inventory. Despite Mr. Ferguson’s arguments to the contrary, the district court found that the Ferrari belonged to Motiva. Accordingly, the district court enjoined Mr. Ferguson from selling the Ferrari or causing it to leave the state. Despite that injunction, Mr. Ferguson pledged the Ferrari as collateral on a $120,000 bank loan; it is still encumbered.

The court noted the inconsistent positions

The sanction we impose today is solely in response to the lack of candor to the court regarding Mr. Ferguson’s contradictory representations about the ownership of the Ferrari. We do not reach other questions that naturally arise from these facts because the record is not fully developed and the issues are not squarely presented. For example, we do not reach the question of whether Mr. Ferguson violated his professional duties by dealer-registering a vehicle that he intended for personal use in order to evade excise tax. Nor do we reach the question of whether Mr. Ferguson violated his professional duties by pledging the Ferrari as collateral on a loan while knowing that the Ferrari was subject to a preliminary injunction. However, should these, or other issues become ripe for our review in a future disciplinary proceeding we will not hesitate to impose further sanctions as may be appropriate. No member of the bar should understand this censure to in any way condone or encourage similar conduct.

This public censure shall be published in the Bar Bulletin. Pursuant to our Order of May 6, 2021, Mr. Ferguson is suspended from the practice of law for a period of ninety (90) days. Mr. Ferguson’s reinstatement is conditioned on his taking the Multistate Professional Responsibility Examination no later than August 31, 2021, and receiving a scaled score of at least eighty percent (80%). Mr. Ferguson’s reinstatement is also conditioned on a showing that no additional disciplinary charges have been filed against him for the conduct at issue in the Butler lawsuit. Ferguson shall pay costs as set forth in our May 6 Order.

(Mike Frisch)

July 25, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 23, 2021

No Disciplinary Jurisdiction For National Cable Ads

The Nevada Supreme Court granted a writ of prohibition and concluded that its Disciplinary Board lacked jurisdiction

Petitioners are the named partners of Weitz & Luxenberg, P.C., a New York based law firm. Between January 16 and August 20, 2017,  petitioners firm contracted with Consumer Attorney Marketing Group (CAMG) to place an advertisement on national cable television that offered the firm's legal services to parties who suffered injuries from defective hernia mesh products. Petitioners' firm provided the screening staff at CAMG's call center with criteria to use to identify potential clients from those who called in response to the advertisement.

Jonnie Carruth, a Nevada resident who suffered injuries he alleged occurred from a hernia mesh surgery, responded to petitioners' firm's advertisement. CAMG sent him a client intake package, which included a retainer agreement, questionnaire, and medical release forms, with instructions to immediately sign and return them. Without any phone or in person contact from petitioners or an attorney at their firm to explain the retainer agreement, Carruth signed the agreement on August 17, 2017, authorizing the firm to investigate "damages arising from personal injuries sustained by the Client through the wrongful conduct of defendant(s) involved in the manufacture, sale and distribution of [hernia mesh] used during a surgical procedure." The agreement explicitly stated that "the Law Firm is NOT being engaged to evaluate or file any medical malpractice claims." On October 2, 2018, the firm sent Carruth written notice, stating that his claim did not meet the criteria for a products liability case against the manufacturer and declining representation on that basis.

Carruth filed a grievance with the State bar of Nevada because by the time petitioners firm sent notice declining representation, the statute of limitations had expired on any medical malpractice claim he may have had.

A disciplinary board screening panel imposed a reprimand. Respondents appealed and moved to dismiss the charges.

In opposing petitioners motion to dismiss, the State Bar presented evidence of petitioners' firm's contacts with Nevada but did not provide any evidence that petitioners themselves crafted the national advertisement, directed it to be aired in Nevada, established the procedures for evaluating hernia mesh claims or communicating with potential clients, or were otherwise involved in Carruth's case. Accordingly, we conclude that the State Bar did not present prima facie evidence that Nevada has personal jurisdiction over petitioners for purposes of this attorney discipline matter.

The case is PERRY WEITZ, ESQ., NEW YORK BAR NO. 1961002; AND ARTHUR LUXENBERG, ESQ., NEW YORK BAR NO. 2008209, Petitioners, vs. RUSSELL E. MARSH, ESQ., VICE CHAIR, SOUTHERN NEVADA DISCIPLINARY BOARD, Respondent, and STATE BAR OF NEVADA, Real Party in Interest. (Mike Frisch)

July 23, 2021 in Bar Discipline & Process | Permalink | Comments (2)

With Malice Toward None

The Maryland Court of Appeals quoted our 16th President in imposing lawyer discipline

The leading rule for the lawyer, as for the [person] of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind.
Abraham Lincoln, Collected Works of Abraham Lincoln.

Then a humble prairie lawyer, Abraham Lincoln shared this bit of wisdom to illustrate the habits every attorney and professional ought to practice. In his journal, President Lincoln stressed the importance of timeliness, of not taking client money until it has been earned, and of promoting honesty in the legal profession. Id. Today, Lincoln’s adages continue to bear a unique importance, as they are practices which are not only recommended, but are required of all attorneys under the Maryland Attorneys’ Rules of Professional Conduct.

Although we commend her considerable pro bono work, the Respondent in this case, Mitzi Elaine Dailey, neglected her client’s case for nearly a year and failed to maintain communication with him. The fee Ms. Dailey received from her client related to this matter was never placed into an attorney trust account, nor was it ever returned to her client despite her failure to earn it. Throughout Bar Counsel’s investigation, Ms. Dailey made several serious mistakes. Ms. Dailey failed to comply with Bar Counsel’s investigation. Ms. Dailey failed to provide requested documents or attend her scheduled deposition and circuit court hearing. Finally, to compound all of this, Ms. Dailey made false and misleading statements to Bar Counsel, including the fabrication of evidence to conceal her rule violations. Had Ms. Dailey been responsive, she may have avoided the most significant rule violations described below, and we may have reached a different conclusion. However, because of the serious misconduct outlined in the findings of the hearing judge, disbarment is the appropriate sanction for Ms. Dailey.

The circuit court conducted a Skype  hearing

The hearing judge noted that there was a person present at the Skype hearing who was identified on the screen only as “Unidentified Caller.” The court asked several times if the person was, in fact, Ms. Dailey, and invited her to present mitigation if it was, but the court received no response. The only individuals the court shared the Skype link with were Bar Counsel, the hearing judge’s staff, and Ms. Dailey.

The underlying representation involved estate administration.

Respondent filed exceptions to 40 findings of fact.

Sanction

Bar Counsel recommends that we disbar Ms. Dailey because of “her intentional misappropriation of client funds, abandonment of a client, and intentional misrepresentations to Bar Counsel.” On the other hand, Ms. Dailey argues that we should dismiss her case with no sanction as she excepts to all the hearing judge’s conclusions, and because her pro bono work and lack of prior discipline should militate against disbarment.

...Although Ms. Dailey has no prior discipline, as we have noted in the past, “[t]he presence of one mitigating factor cannot overcome the aggregation of [Ms. Dailey’s] many transgressions along with several aggravating factors.” Karambelas, 473 Md. at 177. Ms. Dailey’s misappropriation of client funds alone is enough to warrant disbarment. See id. (citing Attorney Grievance Comm’n v. Sullivan, 369 Md. 650, 655–56 (2002)). Additionally, she has shown no willingness to take responsibility for her actions, failed to pay restitution to her client, and failed to cooperate with Bar Counsel. Ms. Dailey even went so far as to submit fabricated documents to Bar Counsel to conceal her rule violations.

(Mike Frisch)

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

Scheme To Extort Payment With Rabbi Launderer Draws Suspension

A criminal conviction drew a three-year suspension from the New York Appellate Division for the First Judicial Department

The stipulation of facts confirms that, as alluded to above, this Court determined in July 2020 that respondent had been convicted of a "serious crime," immediately suspended him from the practice of law, and directed a sanction hearing be held. The conviction was based on respondent's plea of guilty in June 2019 in the United States District Court for the Eastern District of New York to conspiracy to obstruct an official proceeding in violation of 18 USC §§ 1512(c)(2) and 1512(k), a felony. On January 29, 2020, he was sentenced to four years' probation, 300 hours of community service, and fined $45,000. Respondent has paid the fine and completed his community service. As further stipulated, respondent's conviction stemmed from his efforts to assist a childhood friend, who had been convicted of, inter alia, securities fraud, in extorting money from the friend's convicted codefendant, who happened to be respondent's relative through marriage. In or about February 2017, the friend asked respondent to convey to his former codefendant that he wanted a sum of money to avoid getting the codefendant in unspecified trouble. Respondent conveyed the message to the codefendant, and, in a subsequent March 2017 communication, respondent told the codefendant that his friend demanded $5 million from him.

The codefendant repeated what respondent said to him to the FBI, and then began acting with the knowledge and at the direction of FBI case agents. In March 2018, respondent informed the codefendant that his friend had identified a rabbi who would allow any funds paid by the codefendant to be paid through the rabbi's charity. At a subsequent meeting, also in March 2018, respondent and the codefendant discussed that any funds destined for the friend could not be paid in the friend's name because of the friend's outstanding restitution obligations stemming from his conviction. In April 2018, respondent and the codefendant discussed that a rabbi would serve as an intermediary and take possession of any incriminating documents that the friend might possess relating to his codefendant, and would destroy those documents once the codefendant paid $6 million. In May 2018, respondent arranged a meeting between the codefendant and the rabbi, who had agreed to allow the use of his charity to facilitate transfer of the funds and took further steps to facilitate such transfer.

In late May 2018, respondent sent messages to the codefendant indicating that he no longer wanted to be involved in the transaction and asking that the codefendant contact the rabbi directly. In June 2018, respondent was arrested. Subsequent to his arrest, respondent cooperated with the government and, through counsel, provided information relevant to the codefendant to assist the government in its efforts to obtain restitution. Respondent conditionally admits that his conduct, as set forth above, violated the New York Rules of Professional Conduct.

The parties agree that respondent's conduct was aggravated by his undermining and interfering with the court's restitution order in a case where there were millions of dollars that were lost by victims of the underlying securities fraud, and that his scheme sought to interfere with the victims' efforts to recover that money pursuant to a restitution order issued by the United States District Court for the Eastern District of New York.

In terms of mitigation, the parties jointly note that respondent fully cooperated with the criminal justice system. In addition to pleading guilty, he cooperated with the government in providing information that he learned about his friend's codefendant's finances in hopes that additional funds could be uncovered for purposes of repaying innocent victims of the underlying fraud. They agree that respondent's misconduct was highly aberrational and isolated in an otherwise law-abiding life; that he promptly notified the Court and the AGC of his conviction; that he fully cooperated with the AGC's investigation and consented to an interim suspension; that he promptly accepted full responsibility for his criminal conduct and never attempted to blame anyone or anything for his misconduct; and that he expressed his sincere remorse and contrition for his misconduct. Additionally, respondent's misconduct was not motivated by personal financial gain but rather by the desire to mediate a long festering hostility between two people with whom he had deep and close connections. It is further noted that respondent voluntarily withdrew from the developing scheme; that his misconduct was not related to the practice of law; that he is well regarded in the legal community and has an excellent reputation for the character traits of honesty and integrity; that 69 individuals wrote letters to the sentencing judge attesting to respondent's reputation for good character, which reflect, among other things, his excellent reputation and his numerous, selfless acts on behalf of family, friends, and people he only knew tangentially, and which confirm that respondent has a long-standing reputation as a well-respected husband, father, friend, and community member. Finally, the parties have stipulated that respondent has taken steps to internalize the criminality of his conduct, and has used his hard-learned wisdom to help others avoid his fate, including by taking a personal ethics course and undergoing spiritual therapy sessions with a rabbi.

According to this press release of the United States Attorney for the Eastern District of New York, the rabbi also was arrested. 

Credit was given for the period of interim suspension. (Mike Frisch)

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

Thursday, July 22, 2021

Application For Admission Denied

The Ohio Supreme Court declined to certify an applicant for bar admission

Two members of the Toledo Bar Association’s admissions committee interviewed Heckman in January 2020 and recommended that his application be denied. The bar association’s seven-member review committee then conducted a second interview of Heckman. Citing its concerns regarding Heckman’s emotional instability, alcohol usage, and lack of candor regarding his unsuccessful applications for admission to the Michigan and Indiana bars, the admissions committee recommended that Heckman’s application be disapproved. Heckman appealed that recommendation to the Board of Commissioners on Character and Fitness. See Gov.Bar R. I(14).

the Board also recommended against admission.

The issues

In 1990, Heckman was arrested in Arizona for driving while under the influence of alcohol. The following year, he was convicted in Florida for public consumption of alcohol. Several years later, he was charged in Michigan with driving while having a suspended driver’s license, although the reason for the license suspension is not clear from the record.

In 2014, Heckman was charged in Arizona with felony aggravated assault and misdemeanor disorderly conduct/domestic violence for striking his teenaged son during a social gathering at his sister’s home. The police report stated that Heckman had been drinking alcohol before the incident and had to be restrained by his relatives. He pleaded guilty to disorderly conduct/domestic violence, for which the court imposed a 60-day jail sentence (which, according to Heckman, was suspended) and 30 months of probation. He was released from probation after approximately 21 months. Heckman was also charged in Michigan with assault in 2016 for allegedly striking a phone out of the hand of his other teenaged son. No finding of guilt was entered regarding that charge because Heckman successfully completed probation and 26 weeks of classes concerning domestic violence.

 In addition to those criminal matters, Heckman’s ex-wife, who is a Michigan attorney, obtained four civil protection orders against Heckman following their 2007 divorce. One of those orders required Heckman to refrain from consuming alcohol when his children were in his care.

The court acknowledged favorable evidence but

The board acknowledged that Heckman has made strides in understanding some of the factors that contributed to his past behavior and has worked to maintain a loving relationship with his children. Heckman also submitted a favorable report from a counselor whom he had seen about 15 times in the previous five years, and a report following a March 2020 substance-abuse disorder assessment stating that he did not meet the criteria for a diagnosis under the DSM-5 (Diagnosis and Statistical Manual of Mental Disorders (5th Ed.2013)) and that no treatment was recommended. However, Heckman did not persuade the board that he had meaningfully addressed the negative role of alcohol in his life, because he presented no evidence that he had entered into a monitoring program or had otherwise followed the recommendations made by the LJAP evaluator and he continued to deny that his alcohol use was a problem.

There were also candor issues related to the d isclosures on his law school application.

Ultimately

we adopt the board’s report and disapprove Heckman’s pending registration application. Heckman shall be permitted to reapply for admission to the Ohio bar no earlier than January 15, 2023, and before then shall be required to submit proof that he has obtained an OLAP evaluation and successfully completed any treatment program recommended as a result of that evaluation.

(Mike Frisch)

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

Wednesday, July 21, 2021

"A Disturbing Tendency To Blame Others"

The Ohio Supreme Court disapproved an application for bar admission of a person who had graduated from law school in 1995 and sought admission in 2017

Citing concerns regarding Steinberg’s employment history, a domestic violence charge in 2018, and multiple traffic violations, the Board of Commissioners on Character and Fitness exercised its sua sponte investigatory authority pursuant to Gov.Bar R. I(12)(B)(2)(e).

A three-member panel of the board conducted a hearing on December 9, 2020. After considering the evidence, including the testimony of Steinberg and two character witnesses, the panel issued a report concluding that Steinberg had failed to present clear and convincing evidence that he currently possesses the requisite character, fitness, and moral qualifications to practice law in Ohio. The panel recommended that his pending applications be denied and that he be permitted to reapply no earlier than August 15, 2022. The board adopted the panel’s report and recommendation.

He was admitted in Massachusetts in 1975 but never practiced law and was administratively suspended in 1997.

The court noted his spotty employment history and a 2018 domestic violence incident that led to criminal charges and a restraining order.

Also

In addition, the board noted that Steinberg has an extensive traffic record consisting of 17 violations—most of which were for speeding. The board was troubled by Steinberg’s explanation that his issues with speeding were “nebulous” because people routinely violate speed limits and the police have wide discretion regarding when to enforce the speed-limit laws. The board did note that Steinberg has attempted to remedy the issue by using cruise control settings, even when driving on city streets.

Student loans

The board also had grave concerns related to Steinberg’s neglect of his financial responsibilities. Steinberg testified that when he graduated from law school in 1995, his student-loan debt was approximately $50,000. In the 25 years since Steinberg graduated, however, that debt has increased and is now over $80,000. Although Steinberg testified that his payments on the loan were current, he did not provide any documentation to show that he was current with any given payment plan or offer any explanation as to why the balance was increasing.

There were other financial issues.

The Court

Here, Steinberg has neglected his professional obligations in Massachusetts, resulting in the suspension of his license to practice law in that state since 1997. He has demonstrated a pattern of disregard for the traffic laws of several states, and his recent criminal-mischief conviction and related civil protection order reflect a disregard for the health, safety, and welfare of others. His 2011 state tax lien, 2015 bankruptcy filing, and the significant increase in his student-loan obligations suggest that he has also neglected his financial responsibilities. But he has failed to provide complete and accurate information about those matters that would allow this court to determine both the extent of that neglect and whether he has taken sufficient action to remedy it. Steinberg has also exhibited a disturbing tendency to blame others—including his ex-wife, a former girlfriend, and the police—for his behavior. On these facts, we agree that Steinberg has failed to prove that he currently possesses the requisite character, fitness, and moral qualifications for admission to the practice of law in Ohio.

(Mike Frisch)

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

Monday, July 19, 2021

Negotiated Sanctions Receive Boost In DC

Two significant recommendations of the District of Columbia Board on Professional Responsibility propose acceptance of a negotiated sanction of a three-year suspension with fitness for otherwise disbarment-worthy reckless misappropriation.

These matters were remanded from the Court of Appeals for the board's input.

The recommendation in the Mensah matter is unanimous; there were dissents from the Agwumezie recommendation.

How different is three years versus five and the shame of the D word?

From the Mensah report

We begin with Disciplinary Counsel’s argument that, in essence, the difference between three years with fitness and disbarment is outweighed by the advantages to the disciplinary system and the profession as a whole in resolving this case quickly. Broadly speaking, we agree, but that does not fully resolve the issue.

The practical effect between a three-year suspension with fitness and disbarment is that the former permits the lawyer to petition to rejoin the Bar two years earlier than the latter. See D.C. Bar R. XI, § 16(a) (a disbarred attorney “may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment”). But two years is not the entire difference between the two sanctions. There is an additional public statement that comes from disbarment that is not captured by the mere amount of time the lawyer is unable to practice law.

...we do think the difference between the sanction under Addams and the sanction agreed on here is qualitatively greater than Disciplinary Counsel described. Though we do agree that the practical effect is the same.

Nonetheless

We recommend that the Court accept the three-year suspension with fitness for reckless misappropriation because it protects the public and the courts, safeguards the integrity of the profession, deters Respondent and other attorneys from engaging in similar misconduct, and is not unduly lenient.

Should this acceptance be a signal going forward?

Our concurring colleagues disagree with us only in that they would find that a sanction of three years with fitness could be justified – and is so in this case – but would not be justified in all negotiated discipline cases involving reckless misappropriation. Much of the difference between the views of this majority and the concurring members turns on whether a three-year suspension is appropriate on the facts of the other case issued today, In re Agwumezie, Board Docket No. 20-ND005 (BPR July 19, 2021). For the reasons set out there, our conclusion is that for all cases of reckless misappropriation in which Disciplinary Counsel agrees to reach a negotiated disposition, a sanction of three years with fitness is a justified sanction under both the law involving negotiated discipline and for sound policy reasons. Though this is set out in more detail in that Report.

Chair Matthew Kaiser authored the majority reports in both matters.

A concurrence of Member Hora is joined by two colleagues in Mensah

we believe that the seriousness of the misconduct and mitigating and aggravating factors must be analyzed in each case.

The same three members dissented in the Agwumezie matters

the stipulated facts involve reckless misappropriations as did Mensah, but the serious nature of the overall misconduct and the limited mitigating circumstances well distinguish it – sufficiently so that we find that the agreed-upon sanction of a three-year suspension with fitness is unduly lenient.

These members favor a sometimes yes, sometimes no approach.

An approach that fails to consider a hearing committee’s important role in differentiating the seriousness of the misconduct (e.g., number of reckless misappropriations over a protracted period and additional rule violations, the existence of significant aggravating factors and limited mitigating factors) potentially gives Disciplinary Counsel an unfettered role because a negotiated three year’s suspension with fitness would always be approved as justified and not unduly lenient. Even if the majority’s policy arguments had merit, the majority’s proposed default sanction of a three-year suspension with fitness for reckless misappropriation cases brought through negotiated discipline is inconsistent with current negotiated case law and Rule XI, Section 12.1. See also Board Rule 17.5(a)(iii).

The Agwumezie dissents do tee up the question whether the benefit of a prompt public-protecting resolution invariably outweigh the serious nature of the stipulated misconduct.

But in my opinion this point in Agwumezie majority should carry the day

Our acceptance of the proposed disposition reflects sound policy as it presents the combined benefits of more quickly removing Respondent from practice while conserving disciplinary resources. The disciplinary system as a whole is better when the disciplinary system’s scarce resources (Disciplinary Counsel, Hearing Committees, the Board and the Court) are allocated prudently. If a lawyer who recklessly mishandles client money can be removed from practice relatively quickly, with an admission of misconduct and fewer resources from those involved in the prosecution and adjudication of disciplinary cases, the public is protected sooner, and the discipline system is able to focus on other cases – further protecting the public. We disagree with the dissent that permitting Respondent to petition for reinstatement two years sooner is too high a price to pay for the other benefits present here.

I agree that some cases may be sufficiently egregious to merit full-blown prosecution. I also trust Disciplinary Counsel to know the difference.

we can trust Disciplinary Counsel with this decision because it’s not meaningfully different than other decisions we trust Disciplinary Counsel with. Indeed, when it comes to whether a lawyer who needs to show fitness has done so, we already do trust Disciplinary Counsel with that initial determination. The Court permits Disciplinary Counsel, if it agrees that the lawyer has shown that fitness is appropriate, to bypass a hearing and simply tell the Court why it thinks the lawyer should be readmitted.

The question whether such a negotiated disposition would be available in an intentional misappropriation case remains unanswered.

And, to make it more complicated, sometimes it's hard to determine whether misappropriation is intentional, reckless or negligent.

These are hugely consequential recommendations that have the potential to loosen the shackles off of negotiated dispositions.

The board gets the result exactly right.

Note that if the attorneys here stipulated to the misconduct but took their case through the normal processes, they would be able to continue to practice for at least three and likely five more years. (Mike Frisch)

July 19, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 16, 2021

"Generally Biological Mothers Often Lie"

An attorney's misconduct in two adoption matters drew disbarment from the Kansas Supreme Court.

In one matter the attorney filed false papers without adequate investigation. 

The biological mother testified at the hearing that she learned she was pregnant the morning she gave birth and that she never told anyone, including the biological father, that she was pregnant before that day. She also stated that she did not inform the biological father of C.L.'s birth.

At issue was an effort to terminate the biological rights through an adoption proceeding premised on a misrepresentation concerning the biological father's pre-birth awareness of the pregnancy. 

The trial court terminated his rights and the Court of Appeals affirmed.

The biological father secured reversal from the Supreme Court

The tactical move by the prospective adoptive parents had the desired result, but they admittedly got there by filing a lawsuit without appropriate factual investigation and by alleging false grounds for terminating Father's parental rights. They claimed, for example, that Father had failed to support Mother during the six months prior to C.L.'s birth and abandoned her after having knowledge of the pregnancy, even though he did not learn of the pregnancy and birth until two days after the fact. Worse yet, the prospective adoptive parents, under oath, verified these false accusations as being true. As Judge Malone observed in his concurrence, "these allegations obviously were untrue" given the fact that no one—not even Mother—was aware of the pregnancy.

There was a second similar incident in an adoption matter.

He self-reported after the Supreme Court reversal and explained

In his response and at the hearing on the formal complaint, the respondent indicated that generally biological mothers often lie and that he was skeptical about the biological mother's claim that she was unaware she was pregnant until giving birth to C.L. and that his skepticism was 'warranted.'

The respondent stated:

'After having read about the Supreme Court's decision in a Topeka newspaper, [the girlfriend of the biological mother's father] sent me the enclosed email . . . [and] it appears that the birth mother may have known she was pregnant before she delivered the child.'

The information the respondent received after the Supreme Court opinion was released was never investigated nor cross-examined. Because the information was not investigated, it is difficult to say whether the information was true or false. The receipt of this information does not make the false statements in the adoption petition true, nor does it mitigate the respondent's misconduct. At the time the respondent filed the adoption petition, he had no factual basis for the assertions made in the petition.

The court

In effect, respondent used the legal process to traffic children. It is not hyperbole to put the matter this starkly, and we can think of no breach of trust more significant or damaging than this. Our legal system depends on the highest standards of professionalism, integrity, truthfulness, and trustworthiness of our lawyers. Without this, we cannot be said to have a system of law, only a corrupt game of power and manipulation with a façade of lawfulness. A lawyer cannot come back from a breach of trust so grave. The confidence of the public and the sanctity of the rule of law can only be protected and preserved by meting out the most serious sanction available to us— disbarment.

Disbarment is the appropriate sanction when "a lawyer, with the intent to deceive the court, makes a false statement . . . and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding." ABA Standards for Imposing Lawyer Sanctions, § 6.11 (1992). The harm respondent caused can hardly be understated—to his own clients (who were forced to suffer the heartbreaking judicial reversal of the adoptions of their children); to the fathers (who lost years of crucial parenting time with their children); to the children (who doubtless will suffer early childhood trauma which may reverberate through their lives); and to the people of Kansas (whose confidence in our legal system's ability to arrive at just and equitable resolutions to such disputes is seriously undermined by such misconduct). In the past, we have dealt similarly with other cases of fraud and dishonesty.

The Rule 3.1 violation found for failure to investigate representations made in pleadings is a timely subject. (Mike Frisch)

July 16, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 15, 2021

No Right Of Response

The Oregon Supreme Court has reprimanded an attorney for violating the duty of confidentiality in response to negative online reviews

A dissatisfied former client of respondent Brian Conry posted three negative online reviews about him. Respondent posted online responses to all three reviews, disclosing that client had been convicted of two crimes, which he specifically identified. As to one review, respondent also disclosed client’s full name. The Oregon State Bar charged respondent with violating Rule of Professional Conduct (RPC) 1.6, for disclosing information relating to the representation of a client. A trial panel of the Disciplinary Board agreed, rejecting respondent’s assertions either that the information was not within the scope of the rule, or that he was privileged to disclose it under one of the rule’s exceptions. The trial panel concluded that respondent should be suspended for 30 days, and respondent sought review from this court. We agree with the trial panel in part, but we conclude that respondent should be publicly reprimanded rather than suspended.

The attorney had represented the client in an immigration matter. The client retained successor counsel, claimed ineffective assistance and filed bar complaints

At roughly the same time that that first Bar complaint was pending, client posted negative reviews of respondent on the internet. Two of those reviews were posted before the Bar dismissed the first Bar complaint; the third was posted approximately three weeks afterwards. The reviews were posted on Yelp, Google, and Avvo.

Respondent posted responses to those reviews, and it is the content of those responses that are at issue here. All of respondent’s responses were posted in June 2016.

At the end of one lengthy response

[The client] should be thanking his lucky stars instead of posting. He does not know the law or just how lucky he has been. "Please visit my website at brianpatrickconry.com for a list of ‘wins’ over the years that more accurately display my zealousness for my clients. Thank you."

The court

The online world has created opportunities for attorneys to engage in marketing through social media. At the same time, however, it also “provide[s] a platform for unsatisfied clients to post content that could harm a lawyer’s reputation or practice.”

...it appears that negative online reviews may have a dramatic impact on an attorney’s income.

The disclosures involve protected information and was not justified by the "self defense" exception

As applied here, the question is whether the circumstances were such that it was objectively reasonable for respondent to believe that disclosing client’s full name and specific criminal convictions was necessary (e.g., essential or indispensable) for him to establish a claim or defense to client’s allegations.

...We therefore conclude that respondent was not objectively reasonable in his belief that it necessary to reveal client’s name in the Avvo review. By revealing client’s name, respondent violated RPC 1.6(a), and he would not qualify for any self-defense exception under RPC 1.6(b)(4).

Sanction

the presumptive sanction here is a suspension. In light of the difficult issues presented in this case—one of first impression before this court—and the aggravating and mitigating factors, we conclude that such a result would be too harsh. We hold that respondent should be publicly reprimanded.

(Mike Frisch)

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

Resignation Accepted Over Dissent: Did Transparency Lose?

The Ohio Supreme Court has accepted the resignation of an attorney who was the subject of our prior coverage

 complaint recently filed by Ohio Disciplinary Counsel alleges a pattern of sexual advances to clients and a court employee. 

The lengthy charges make for painful reading. 

The complaint notes

Since at least 2015, respondent has not maintained a law office. and regularly meets with clients at his home or in secluded places [such as the county law library]

The court employee was allegedly subjected to comments of a sexual nature and unwanted touching. 

In one instance when she was wearing a skirt, he allegedly "grabbed [her] knee and ran his hand up to [her] mid-thigh."

She filed a civil complaint against the City of Wilmington (where he served as an acting prosecutor and judge) and received a financial settlement.

A person who he had known for 30 years consulted him about a divorce. He allegedly offered her $100 (which she needed for a medical procedure) to clean his home, "forcibly kissed her" and offered to represent her for free if she cleaned in the nude.

He then allegedly contacted her multiple times over a two week period, called her "gorgeous" and sought sexual relations. 

He continued to represent her, made a second offer of free representation for naked cleaning and made further sexual advances.

She made a police report but no charges were filed.

He allegedly subjected another client in a court-appointed felony drug case to romantic and sexual advances.

She contacted the police and wore a wire that recorded their conversations, including "I would like to see you naked."

The Sheriff's Office advised the county prosecutor of the advances. The issue of potential conflict was brought to the judge's attention and new counsel was appointed.

Another client was a Facebook friend charged with theft. They had no prior personal or professional relationship. 

He allegedly reached out to her on Facebook after he learned of the charges and offered his assistance.

She had no permanent residence and stayed with friends on a "night to night" basis.

He allegedly met with her at the Hidden Carryout and gave her $70 to "help her out" which she interpreted as an offer to exchange sex for legal services.

She told him she was "not that kind of girl."

After he let that client use the washer and dryer in his home, he allegedly tried to put his hand down her pants. 

He allegedly communicated  by Facebook Messenger with another client charged with telephone harassment. He called her "dear," "gorgeous," and "babydoll."

Their alleged communications and interactions are recounted in detail and include his suggestion of Carribean trip together.

When she tried to steer the conversation back to her case, he replied he preferred 

talking about the potential for an "us" at the moment.

They had dinner; he paid for the meal.

He invited her to the pool; she declined.

The client had her bond revoked. The attorney allegedly failed to contact her or prepare for trial.

He allegedly pressured her to plead guilty to one charge. 

 A client in a dependency case allegedly had sexual intercourse with him in his home.

He allegedly told her that "he loved her and that he wanted to marry her" and that the sex "was in lieu of attorneys fees."

When the client was charged with OVI (driving under the influence), he allegedly again had sex with her in lieu of a fee.

The News Journal reported that he was removed from a homicide case in March 2020

The attorney for a suspect in a recent homicide case has been removed after police and court officials say that attorney was apparently under the influence of alcohol during a meeting.

Attorney Richard Federle Jr., 52, was removed as the appointed attorney for murder suspect Corey Ruffner, 22, after Federle was allegedly under the influence at an arraignment hearing on Feb. 28.

Ruffner requested — in a letter to Clinton County Common Pleas Judge John “Tim” Rudduck — the removal on Wednesday due to concerns he had about Federle.

When reached by phone for comment Wednesday, Federle told the News Journal, “I am not in a position to comment at this time.”

According to a report by Wilmington Police Det. Scott Baker, during the hearing he noted that, as he was speaking with Federle, “I detected a strong odor of an alcoholic beverage coming from his breath. I also noticed his eyes were red, bloodshot and glassy.”

Baker also reported that Federle’s movements were “slow, off-balance and uncoordinated” and his speech was “slow and slurred.”

Baker reported that he spoke with the court bailiff and magistrate who also “had a concern for Richard Federle being under the influence of alcohol.”

Justice Fischer dissents from the decision

As I have expressed before, writing a case-specific dissent in an attorney-resignation-with-disciplinary-action-pending case is challenging due to the confidentiality concerns involved. In re Resignation of Wiggins, ___Ohio St.3d___, 2021-Ohio-1347, ___ N.E.3d. ___, ¶ 21 (Fischer, J., dissenting); In re Resignation of Leone, 160 Ohio St.3d 1227, 2020-Ohio-2997, 155 N.E.3d 950, ¶ 22
(Fischer, J., dissenting), citing Gov.Bar R. VI(11)(B). Nevertheless, I must respectfully dissent from this court’s decision to accept the application for resignation of Richard Lawrence Federle Jr.

Many of these resignation-with-disciplinary-action-pending cases thwart the concept that government should be as transparent as reasonably possible. Wiggins at ¶ 22 (Fischer, J., dissenting); Leone at ¶ 26 (Fischer, J., dissenting). Because these cases involve sealed reports by disciplinary counsel, they are generally enshrouded in a cloud of secrecy that keeps the public, the bench, and the practicing bar ignorant of the reasons for the request to resign with discipline pending. See Wiggins at ¶ 22 (Fischer, J., dissenting); Leone at ¶ 26 (Fischer, J., dissenting). This is problematic, especially when the allegations against an attorney describe a disturbing pattern of predatory behavior toward a vulnerable population.

 In this case, after reading the report provided by disciplinary counsel, I strongly believe that the court should reject Federle’s application. Though I cannot comment on all the matters identified by disciplinary counsel in the report, I can point to public records that provide a glimpse of the allegations against Federle.  Federle filed his application to resign from the practice of law after disciplinary counsel filed a disciplinary complaint against him. The complaint identifies five instances in which Federle allegedly used his position as an attorney to solicit sex from and/or romantic relationships with female clients, three of whom he represented in criminal cases. See Complaint filed Oct. 30, 2020, Disciplinary Counsel v. Federle, Bd.Prof.Cond. No. 2020-063, available at https://www.supremecourt.ohio.gov/bpccm/Case?caseId=02bb083d-9b44-44f4- 941a-e56ca44ded27 (accessed July 8, 2021) [https://perma.cc/NY22-HFEE]. While Federle denies many of the allegations against him in his answer, he admits to having had some inappropriate conversations with clients, but the only conversations he admits to are those that were documented or recorded. See
Answer filed Nov. 20, 2020, id., at ¶ 14-15, 20, 31-33, 35. The allegations against Federle are serious. This court has explained that some of the most disturbing attorney-discipline cases are those “in which a lawyer has had sex with a client while defending the client against criminal charges * * * or has accepted sex in lieu of fees.” Disciplinary Counsel v. Krieger, 108 Ohio St.3d 319, 2006-Ohio-1062, 843 N.E.2d 765, ¶ 29. “The abuse of the attorney-client relationship [in this way] not only harms the dignity of the client, whose body and trust in her lawyer have been violated, but it also impugns the legal system as a whole.” Disciplinary Counsel v. Sarver, 155 Ohio St.3d 100, 2018-Ohio-4717, 119 N.E.3d 405, ¶ 29. If these serious allegations against Federle are true, this court does no favors to the victims, the public, or to Federle in accepting his resignation.

I understand that accepting Federle’s resignation will immediately remove his ability to use his position as an attorney to harm more women and may thereby protect the public faster than going forward with disciplinary proceedings. But I do not think that this court should favor a process that is quick over a process that is designed to obtain truth and dispense justice that more effectively protects
the public. The disciplinary proceedings governed by this court may provide the victims, the public, and Federle with much-needed transparency about the entire situation. While the alleged victims would bear the heavy burden of testifying before a hearing panel, I believe that they should at least have the opportunity to have their voices heard by the public and by this court. The public should know
what this court and the numerous volunteers and employees participating in this court’s disciplinary process are doing to keep the public safe from attorneys who are alleged to have violated the Rules of Professional Conduct in perturbing manners. And at least in the disciplinary process, this court has the opportunity to provide help to the attorney should an addiction or other issue be the root cause of the problem. See Gov.Bar R. V(12) and (21). By accepting Federle’s resignation, the court simply washes its hands of the problem without providing any real resolution.

Furthermore, the allegations against Federle have reached national news, as this story was reported by the American Bar Association in an article available on its website. Debra Cassens Weiss, Lawyer is Accused of Offering Free Legal Services If Woman Cleaned His Home in the Nude, ABA Journal (Nov. 5, 2020), https://www.abajournal.com/news/article/lawyer-is-accused-of-offeringlegal-services-if would-be-client-cleaned-his-home-in-the-nude (accessed July 8, 2021) [https://perma.cc/W2S3-S6W2]. I point out this article to emphasize that by not allowing Federle’s disciplinary case to go through the full disciplinary process, this court leaves the public with unanswered questions about an attorney who allegedly solicited sex from clients. I believe that by accepting Federle’s resignation, this court leaves the public with the idea that it does not investigate these types of allegations and that it does not take this entire situation seriously. Moreover, accepting this resignation keeps the public in the dark, silences the alleged victims, and divests this court of its jurisdiction to discipline Federle for any misconduct he might have committed while practicing law. Such discipline would be designed to protect the public and perhaps help Federle.

Transparency in cases of attorney discipline that involve serious allegations of violations of the Rules of Professional Conduct is essential for the public’s protection. By permitting resignation in this case, this court does a disservice to the public and undermines the public’s confidence in our legal system. Thus, I must respectfully dissent.

Agreed. (Mike Frisch)

July 15, 2021 in Bar Discipline & Process | Permalink | Comments (1)

Wednesday, July 14, 2021

Negotiated Sanction For "Highly Offensive" Conduct

A single instance of criminal upskirt video or photography did not involve moral turpitude and a negotiated sanction of a stayed six-month suspension is warranted, per the recommendation of an ad hoc District of Columbia Hearing Committee

we approve the Petition, find the negotiated discipline of a six-month suspension, stayed, and six months of unsupervised probation during which Respondent must continue complying with the recommendations of his therapist and ensure that his therapist provides monthly reports to Disciplinary Counsel regarding Respondent’s compliance, is justified and recommend that it be imposed by the Court.

The Petition is linked here.

The attorney pled guilty to attempted voyeurism

On June 5, 2019, Respondent stood behind a woman on the escalator at the L’Enfant Plaza Metro station. Respondent placed his cell phone on top of his duffel bag and attempted to record images under the woman’s skirt. Respondent did not have the woman’s consent to take images under her skirt. Respondent’s actions were recorded on Metro security cameras.

A witness who knew the victim confronted Respondent on the escalator and alerted the victim of Respondent’s actions. After exiting the escalator, the victim confronted Respondent, asked to view the photos on his phone, and saw blurry photos or video that appeared to have been taken that day.

A notable prior case involved moral turpitude

Cross was found to have engaged in a crime of moral turpitude because he surreptitiously filmed another patron in a gym locker room, assaulted the victim in an attempt to recover the camera, and offered a bribe. Cross, Board Docket No. 12- BD-086, at 7-9. The Board noted in its report that the respondent’s surreptitious filming was premeditated, as he had altered a shaving kit to secret his camera. Id. at 19. It also noted that the respondent sought out sexual gratification at the expense of the complainant’s legitimate and reasonable privacy interest. Id. at 21. That said, it is not apparent from the Board Report that the surreptitious recording, by itself, would have constituted moral turpitude.

...Here, Respondent engaged in a single episode of surreptitious recording. His conduct, while intolerable, did not involve the physical assault or attempted bribery present in Cross and was not prolonged, as in Fuller. Thus, we recommend that the Court conclude that Respondent’s conduct did not involve moral turpitude on the facts.

Our coverage of the Cross case is linked here.

While concluding that the relevant factors favored the negotiated sanction

The first factor in that analysis – the seriousness of the misconduct – raises significant concerns for all three Hearing Committee members and is the only factor that gives the Hearing Committee hesitation regarding the negotiated sanction. All of us find the act at the heart of this matter to be highly offensive to say the least.

The matter now goes to the Court of Appeals. (Mike Frisch)

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

Minnesota Board No Longer Has "General Supervisory Authority" Over Bar Prosecutor

Some very interesting changes to the procedures governing lawyer discipline have just been announced by the Minnesota Supreme Court.

Notably the amended language strikes the "general supervisory authority" provisions of the Lawyers Professional Responsibility Board over the bar prosecutor

The Board shall have general supervisory authority over the administration of the Office of Lawyers Professional Responsibility and these Rules, and-is responsible for administering these rules, for establishing the policies that govern the lawyer discipline and disability system, and for providing recommendations and guidance to the Director regarding the operations of the Office of the Lawyers Professional Responsibility.

Italicized language struck.

Further, the State Court Administrator will now evaluate the performance of the OLR Director rather than the board. 

In reaching these conclusions, we have fully considered the concerns expressed in the comments about altering the relationship between the Board and the Director in a way that would leave the Board without adequate information or the Director without adequate guidance on the operations of the Office. We do not expect these concerns will materialize. The amendments to Rule 4, RLPR, are promulgated to clarify the Board's responsibility for policy governance while guiding the Director with advice and recommendations. The amendments to Rule 5, RLPR, place responsibility for the day-to-day operations of the Office with the Director, guided as necessary by either the Board or State Court Administration. This appropriate division of responsibilities better reflects the longstanding purpose of these rules.

The Minnesota rules further provide that the chief bar prosecutor is appointed by and serves at the pleasure of the court.

I have long felt that a key structural error was made in the District of Columbia when that power (which I have personally witnessed being grossly abused) was delegated to the Board on Professional Responsibility. Such an arrangement gives the BPR far too much power and allows the court to take less responsibility for its regulatory system than it should.

I applaud any effort to insure the independence of a bar prosecutor.  (Mike Frisch)

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

Rolling The Dice

A Louisiana Hearing Committee finds a violation of Rule 7.7(c)  and proposes a public reprimand.

The rule requires pre or contemporaneous submission of advertising with the Louisiana State Bar Association.

(c) Regular Filing. Subject to the exemptions stated in Rule 7.8, any lawyer who advertises services through any public media or through unsolicited written communications sent in compliance with Rule 7.4 or 7.6(c) shall file a copy of each such advertisement or unsolicited written communication with the Committee for evaluation of compliance with these Rules. The copy shall be filed either prior to or concurrently with the lawyer’s first dissemination of the advertisement or unsolicited written communication and shall be accompanied by the information and fee specified in subdivision (d) of this Rule. If the lawyer has opted to submit an advertisement or unsolicited written communication in advance of dissemination, in compliance with subdivision (b) of this Rule, and the advertisement or unsolicited written communication is then found to be in compliance with the Rules, that voluntary advance submission shall be deemed to satisfy the regular filing requirement set forth above

The Office of Disciplinary Counsel

obtained documentation confirming that Super Lawyers has an application available for free in the Apple App store. the Super Lawyers web site confirms that a similar application is available on the Google Play Store.

The ad also violated the "plain background" requirement.

The ad was placed in Super Lawyers Magazine (Louisiana 2020) and also at Louisiana Life, a "statewide general interest publication."

The attorney had been offered but declined a private admonition. (Mike Frisch)

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

Friday, July 9, 2021

The Adderall Difference

Rejected a three-month suspension proposed by a majority of the Disciplinary Review Board, the New Jersey Supreme Court ordered a censure as favored by the board minority for a drug arrest

We write separately to express our disagreement with the five-member Board majority who recommend suspending respondent for three months based on his conviction for 3rd-degree possession of a controlled substance, amphetamine (Adderall pills), a conviction which will be nullified after he successfully completes the 24-month pre-trial intervention program into which he was admitted. Unlike the majority, we believe that respondent should be censured for his unfortunate decision to use Adderall without a prescription...

In short, we believe that this young lawyer with no prior ethics history did everything right to combat his habitual drug habit and promptly face his criminal charge with appropriate, sincere remorse. He has suffered financially and emotionally over the past two years and now, hoping to put all this behind him, has returned to practice in Delaware in a firm that welcomed him back. Suspending him from practice in New Jersey would, we believe, inappropriately and punitively stain his professional record to an unwarranted degree. A censure is sufficient discipline under these circumstances.

The majority was not persuaded by this argument

According to respondent, he is not a drug addict. Moreover, he asserted that Adderall is materially different from other controlled substances, such as cocaine, ecstasy, or crack. According to respondent, nearly a quarter of all college students use Adderall, which also is “widely used in law schools,” with or without a prescription. He claimed that the drug increases “focus and stamina,” thus, “increasing work quality and quantity.” Respondent further asserted that, unlike cocaine, ecstasy, and crack, Adderall is classified as a controlled dangerous substance not because it is intoxicating, but rather because of its potential for abuse.

...respondent’s attempt to persuade us that there is a “meaningful difference” between Adderall and drugs such as cocaine, ecstasy, and crack and, thus, he should receive less than a suspension, is disturbing. Respondent asserted that Adderall is different because (1) it is used by students in institutions of higher learning for the purpose of “increas[ing] focus and stamina . . . work quality and quantity,” and (2) it is non-intoxicating. We reject these hollow arguments. Respondent produced no evidence that he has been diagnosed with any condition that Adderall is prescribed to treat. To the contrary, he admittedly used Adderall “for work purposes,” thus, rendering his use of the drug illegal.

(Mike Frisch)

July 9, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Practice And Non- Practice Related Violations

Two investigated matters led to an attorney's suspension by the South Carolina Supreme Court

Following a traffic stop on July 11, 2018, Respondent was arrested and charged with four counts of possession of a controlled substance. Items located in Respondent's vehicle included a plastic bag with 5 suspected ecstasy pills; a plastic bag with five white pills believed to be hydrocodone pills; a plastic bag with an amount of suspected "molly"; and two plastic bags containing approximately 8 grams of an item suspected to be cocaine. Also located in the vehicle was a marijuana pipe containing a small amount of marijuana and a white pill bottle containing suspected marijuana. The charges were dismissed by the Solicitor's office on June 12, 2019, due to concerns regarding the legality and constitutionality of the stop and search.

Respondent failed to notify the Commission in writing within fifteen days of being arrested and charged.

The other charges involved bankruptcy matters

The Trustee filed motions pursuant to 11 U.S.C. §§ 526(c), 329(b), and 105(a), seeking to terminate Respondent as counsel in 18 cases and to require that Respondent forfeit any remaining attorney's fees to be paid to her under the debtors' confirmed Chapter 13 plans. Respondent
failed to respond to any of the motions, failed to attend any of the hearings, and failed to contact the Trustee's office. Respondent was removed from all cases pending in the Bankruptcy Court by orders that either terminated her services or substituted other counsel. Four days after the Trustee's complaint was submitted to ODC, Respondent was placed on interim suspension. 

The agreed discipline is a three-year suspension imposed as of the date of the interim suspension. (Mike Frisch)

July 9, 2021 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 8, 2021

Repayment Does Not Prevent Disbarment

The South Carolina Supreme Court has disbarred an attorney who had used entrusted funds to keep his firm afloat despite full repayment

Respondent admits he transferred money from his trust account to cover payroll and operating expenses for his law firm from November 30, 2017, to July 13, 2018, in the total amount of $95,981.46. Respondent acknowledges he was using client money to keep his law firm afloat and states he always intended to repay the money. Respondent began to repay the trust account on June 26, 2018, and completely repaid the account on September 30, 2018. The trust account has been reconciled, and all monies are accounted for. Respondent has turned over all accounting and bookkeeping functions to a licensed Certified Public Accountant and has given all trust account responsibilities to another lawyer in the firm. Respondent has also completed the Legal Ethics and Practice Program Ethics School, Trust Account School, and Advertising School.

(Mike Frisch)

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

The Scope Of Rule 3.3

The Connecticut Supreme Court affirmed the imposition of a reprimand

The plaintiff first claims that rule 3.3 (a) (1) does not apply because the Probate Court had appointed her to act as fiduciary for an estate. We disagree with the plaintiff and agree with the Appellate Court’s well reasoned conclusion that rule 3.3 (a) (1) is not limited to statements made in the course of attorney-client relationships.

...We note that the text of rule 3.3 (a) (1) itself does not indicate that it applies only to lawyers serving in a representational capacity. Nor is the pertinent language of the commentary necessarily limiting in nature. The commentary provides in relevant part that ‘‘[t]his [r]ule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. . . .’’ Rules of Professional Conduct 3.3, commentary. Given the stated purpose of the commentary—to explain, illustrate and guide—a better interpretation of this commentary language is that it illustrates the most common context in which rule 3.3 would apply—lawyers appearing before a tribunal in the course of client representation. There are, however, many other contexts in which a lawyer might appear before a tribunal. A fiduciary role is one such example.

As to the alleged false representation

As the defendant noted, in the present case, the plaintiff failed to disclose to the Probate Court that the fiduciary fees had been waived when she included those fees in the actual calculation of the assets of the estate. Not only did the plaintiff include the fiduciary fees as a line item in the amended final accounting, but this line item was used in the calculation of the assets of the estate, making it appear as though the plaintiff did not owe a reimbursement for tax penalties and interest. Under these circumstances, the failure to qualify the inclusion of the fiduciary fees
with some form of clarification that the fees had been waived also amounted to an affirmative misrepresentation and is therefore a false statement in violation of rule 3.3 (a) (1).

Dishonesty

It is not unusual for a lawyer who violates rule 3.3 (a) (1) to also violate rule 8.4 (3).

(Mike Frisch)

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

Wednesday, July 7, 2021

The Public's Dime

The South Carolina Supreme Court imposed disbarment without credit for time served on an interim suspension

On September 18, 2018, Respondent was indicted by a federal grand jury on twenty-six counts of wire fraud, mail fraud, conspiracy, and theft of federal funds. In addition, on September 20, 2018, Respondent was indicted by the State Grand Jury on three counts of misconduct in office and embezzlement of public funds. At the time of these indictments, Respondent was the Solicitor for the Fifth Judicial Circuit, and the charges stem from Respondent misusing office funds for personal expenses.

On February 26, 2019, Respondent pleaded guilty to one count of wire fraud in federal court. The remaining federal charges were dismissed. On June 4, 2019, Respondent was sentenced to one year and a day in federal prison to be followed by supervised release for three years. Respondent was ordered to pay $19,270.80 in restitution to the Kershaw County Solicitor's Office. Respondent was released from federal prison in May 2020. Respondent's state criminal charges are still pending. Respondent has pleaded not guilty to all of the pending state charges.

Details on the offense from a press release of the United States Attorney for the District of South Carolina

Facts presented in court established that Daniel Edward Johnson was the Fifth Circuit Solicitor from 2011 to 2018.  The Solicitor’s Office serves both Richland and Kershaw Counties and receives funding from both, as well as from the federal government.  Kershaw County pays the office-related credit card bills for select Solicitor’s Office employees. 

During his time as Solicitor, Johnson used Solicitor’s Office funds to cover personal and non-office-related expenses.  Johnson was issued Solicitor’s Office credit cards reading “DAN JOHNSON, Fifth Circuit Sol Office.”  Using these cards, Johnson made a series of personal and non-office-related purchases, starting no later than 2016.  In pleading guilty to the scheme, Johnson acknowledged that a November 2016 payment by Kershaw County covered personal expenses on the October 2016 credit card statement.  That statement contained the following fraudulent transactions:

  • September 7, 2016, charge for $208.79, at the Elara by Hilton Grand Vacations in Las Vegas.
  • September 7, 2016, charge for $911.48, at the Doubletree Magic Mile hotel in Chicago.
  • October 1, 2016, charge for $685.07, to Copa Airlines, an airline based in Panama.
  • October 5, 2016, charge for $137.22, at the Hilton Columbia Center in Columbia, SC.

The attorney consented to disbarment. (Mike Frisch)

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

Saturday, July 3, 2021

A Harassing Compliment

A reprimand has been ordered by the Grievance Commission of the North Carolina State Bar

You represented D. Rodrigues in a domestic case involving child custody and support. You contacted M. Rodrigues, D. Rodrigues’ ex-husband, and arranged a meeting for he and one other person to come to your office and meet with D. Rodrigues to attempt to resolve their issues. M. Rodrigues agreed to attend the meeting. You sent M. Rodrigues your business card by text message, identifying yourself as a “Dispute Resolution and Litigation Attorney.” You also sent M. Rodrigues a text message confirming the time and place for the “Child Support, Child Custody and Visitation Mediation” and thanking him “for choosing [your firm] for answers to all [M. Rodrigues’] legal questions.” By implying that you were disinterested and serving as a mediator in your text messages to M. Rodrigues when you represented D. Rodrigues, you violated Rule 4.3(b).

In or around August 2019, you filed a motion to compel against M. Rodrigues’ current wife, M. Rayol. When you arrived in the courtroom for the hearing on that motion, you complimented on M. Rayol’s appearance for no purpose other than to harass her in violation of Rule 4.4(a). In responding to the Letter of Notice in the grievance investigation, you stated that you did not know who M. Rayol was or why she was in the courtroom. This statement was false. You had previously met M. Rayol during the meeting at your office months before and you knew or reasonably should have known that she would be in the courtroom for the hearing on your motion to compel. Your conduct violated Rule 8.1(a).

On or about 21 January 2020, you went to M. Rodrigues’ home to assist in a custodial exchange. M. Rodrigues presented the minor child to its maternal grandmother. You approached M. Rodrigues while he was speaking to the child’s maternal grandmother, and a verbal altercation ensued between you and M. Rodrigues. You made derogatory remarks toward M. Rodrigues and remarks about M. Rodrigues’ failure to pay child support. At that time, M. Rodrigues was represented by counsel, and child support was a subject of the pending litigation. Your conduct violated Rules 4.2(a) and 4.4(a).

(Mike Frisch)

July 3, 2021 in Bar Discipline & Process | Permalink | Comments (0)