Friday, October 23, 2020

Fine Increased For Corporate Conflicts Of Interest

The British Columbia Law Society Review Board increased the fine imposed for a corporate counsel's conflicts of interest

The matter before this Review Board is the appropriateness of the $5,000 fine assessed against the Respondent for professional misconduct.  The Respondent was found to have participated in conflicts of interest over the course of several years, in multiple situations involving his role as corporate counsel, while simultaneously acting for opposing shareholders.  As well, he acted as legal counsel in a divorce for one of the shareholders, and in matters involving the arrangements concerning his client’s addiction issues.

The misconduct was serious

In this matter, the Respondent acted for and against different shareholders of a company in two separate share sales while still purporting to act as corporate counsel.  The Respondent also acted on behalf of one of the shareholders (“WD”) in a divorce proceeding from his wife, who was another shareholder, where the valuation of the company and the value of the shares would impact all the shareholders.  Indeed, the Respondent’s ties to WD were further problematized when at one point, the Respondent held a power of attorney for WD for the sale of the matrimonial home.  Finally, the Respondent acted in matters arranging for WD’s drug rehabilitation treatment program.

 The Review Board finds that the failure of the Respondent, as a senior lawyer, to identify and avoid these conflicts of interest is serious misconduct.

Good intentions

In the consideration of intention as a mitigating factor, we find the hearing panel erred in placing too much weight on the Respondent’s “good intentions”.  While the hearing panel noted that the Respondent did not stand to gain financially or otherwise, the Respondent, as an experienced lawyer, had other legitimate and viable options to avoid the conflicts of interests.  The Respondent could have referred out the work or advised the clients to obtain independent legal advice.  The Respondent wanted to resolve the client’s financial difficulties and considered the matter urgent, but that objective did not necessitate the Respondent acting contrary to his professional obligations.

The Respondent’s altruistic intention to help his client overcome financial difficulties is considered by the Review Board as a mitigating factor, but not to the level of being “highly” mitigating as found by the hearing panel.

Sanction

The Review Board finds that the hearing panel in the present matter erred in departing from the joint submission.  The $12,000 fine proposed in the joint submission was fair and reasonable, particularly having regard to the nature and gravity of the Respondent’s misconduct and his PCR.  Further, the proposed fine would not bring the administration of justice into disrepute and is not otherwise contrary to the public interest.  The acceptance of this fine would not lead reasonable and informed persons, aware of all the relevant circumstances, to believe that the proper functioning of the Law Society disciplinary system had broken down.

The Review Board orders that the $5,000 fine is set aside and that a fine of $12,000 be substituted in its place.
(Mike Frisch)

October 23, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Temporary Suspension With Two Clients Remaining

The Maryland Court of Appeals has entered an order in a matter involving a high-profile attorney who is currently under federal indictment.

The summary of the criminal charges from the United States Attorneys Office for the District of Maryland is linked here. 

According to the eight-count indictment, between January and October 2018, Snyder attempted to obtain $25 million from the University of Maryland Medical System (UMMS) for himself, separate and apart from any claim by one of his clients, by using threats of economic and reputational harm to UMMS and its organ transplant program.  Specifically, the indictment alleges that Snyder threatened that if UMMS did not pay him $25 million, Snyder would launch a public relations campaign against UMMS that alleged, among other things, that UMMS transplanted diseased organs into unsophisticated patients without informing them of the quality of the organs they were receiving in order to generate revenue.  According to the indictment, Snyder told UMMS officials that the campaign would include: a front-page article in the Baltimore Sun; other national news stories; a press conference; advertisements on the Internet, including one that would run every time someone accessed the UMMS transplant site; and at least two videos Snyder produced and would air if his demand for a $25 million payment were not met.

Snyder allegedly demanded that UMMS disguise the $25 million payment as a sham consulting arrangement between Snyder and UMMS.  Snyder also allegedly threatened that a lawyer (Lawyer 1) working for the insurance program insuring UMMS and its faculty physician groups would lose her job and threatened to harm the professional reputation of a UMMS doctor (Doctor 1) if they did not aid Snyder in obtaining the $25 million payment.

...An indictment is not a finding of guilt.  An individual charged by indictment is presumed innocent unless and until proven guilty at some later criminal proceedings. 

The order imposes an agreed-upon temporary suspension who this proviso

Respondent shall enter into the monitor agreement, with a monitor acceptable to Bar Counsel, and that the monitor agreement shall remain in effect through March 31, 2021

And

within five (5) days of the date of this Order, the Respondent shall provide a copy of the Indictment, the Petition for Disciplinary or Remedial Action, the Joint Request, this Order, and the monitor agreement to Clients A and B and obtain their informed consent to his continued representation of those clients, confirmed in writing and submitted to Bar Counsel no later than ten (10) days after the date of this Order, and shall comply with the other conditions set forth in paragraph 10 of the Joint Request...

The order stays the discipline proceedings pending resolution of the criminal charges. (Mike Frisch)

October 23, 2020 in Bar Discipline & Process | Permalink | Comments (0)

A Day Of Sunshine In D.C.

The District of Columbia Board on Professional Responsibility held an oral argument yesterday in a matter involving allegations that two Assistant United States Attorneys violated their ethical obligation of disclosure to the defense.

This oral argument is worth watching as it shows the D.C. discipline system at its best.

The quality of the oral advocacy is outstanding from Disciplinary Counsel (who argued the case himself) and for both Respondent attorneys.

Disciplinary Counsel made the argument that withholding exculpatory that could lead to a wrongful conviction is the most serious of rule violations. 

Many BPR members clearly had wrestled thoughtfully with the record and were engaged with the issues. 

And for a bonus - the hearing committee report was issued on June 18, 2020. The BPR received briefs and conducted the oral argument in four months.

That is nothing short of lightning speed.

The bad news - Disciplinary Counsel docketed the matter for investigation in 2014. 

The Hearing Committee report can be found here. 

The hearing committee majority proposed a 30-day suspension of both attorneys as we reported when the report was issued.

The non-attorney hearing committee member favored an informal admonition. 

The video of the oral argument is linked here. Click on the October 22, 2020 BPR session. (Mike Frisch)

October 23, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 22, 2020

Judicial Campaign Misconduct Draws Suspension

The Louisiana Supreme Court imposed a one-year suspension of an attorney who ran for a judicial office

In the fall of 2014, respondent was a candidate for the office of judge of the New Iberia City Court. During his campaign, respondent paid $1,760 to finance the printing and distribution of a flyer against one of his opponents, Theodore “Trey” Haik III. The campaign flyer truthfully stated that Mr. Haik and his family had received substantial fees for legal work performed for various governmental entities; however, it did not contain the required disclosure identifying respondent as the originator of the flyer. Respondent also failed to disclose on his campaign finance report that he paid to have the flyer printed and distributed.

The Louisiana Board of Ethics opened an investigation into the origins of the campaign flyer. On July 29, 2015, the Board of Ethics obtained a recorded statement from respondent, during which he was asked under oath whether he was the person responsible for the printing and distribution of the flyer. In response, respondent falsely told investigators that he did not pay for the flyer.

The ethics board f iled a bar complaint and a criminal referral.

While the disciplinary investigation was underway, respondent twice asked the person who distributed the flyer, Paul Camacho, to sign an affidavit or statement falsely stating that respondent did not provide the funds to print and distribute the flyer. Respondent intended to submit the false affidavit to the ODC, and in furtherance of this objective, he misled his own attorneys by providing them with false information to be included in the affidavit they prepared. However, Mr. Camacho never signed such an affidavit or statement, and respondent never submitted a false affidavit or statement in the course of any investigation or into the record of any judicial or disciplinary proceeding.

He pled guilty to a misdemeanor campaign finance law violation.

Sanction

Here, respondent’s violation of campaign finance laws, followed by his false statements to the Board of Ethics, is very similar to the misconduct seen in Richmond. However, respondent also attempted to convince a third party to sign a
false affidavit that he intended to offer to the ODC in an ongoing disciplinary investigation. Considering this additional, more egregious misconduct by respondent, we cannot agree with his argument for a six-month suspension, substantially deferred. Rather, we find that the misconduct to which respondent has stipulated, considered in its entirety, warrants the same one-year suspension we imposed in King. Our decision in this regard is reinforced by respondent’s admission that he engaged in deceptive practices by giving false testimony to the ODC during a sworn statement.

Based on this reasoning, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year.

Justice Weimer

I find the goals of the disciplinary system would be met by deferring a portion of the respondent’s one-year suspension, consistent with the recommendations of the hearing committee.

(Mike Frisch)

October 22, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 21, 2020

Fired "Permanently"

The New Jersey Supreme Court has censured an attorney with a record of prior discipline that included this prior order in conjunction with a three-month suspension

The Court further ordered that respondent shall not employ his wife or give her access to his law practice or his  attorney accounts, books, and records and shall provide proof thereof to the Office of Attorney Ethics (OAE) as a condition of reinstatement.

As described by the Disciplinary Review Board, this matter involved two immigration clients.

The attorney claimed lack of notice in a motion to vacate default.

In a prior case he had blamed his secretary for his non-response.

Here, he claimed that mail that did not say "second floor" was not delivered.

But a voicemail presented a problem

However, when respondent listened to the presenter’s recording of the April 30, 2019 voicemail, he realized that the voice was that of his wife. On February 19, 2020, despite her prior denial, Anicia admitted to respondent that she had left the voicemail message for the presenter. She claimed to have done so without respondent’s knowledge or authority. Respondent stated: "I fired my wife today immediately and permanently. She will no longer have any involvement whatsoever with my office or my practice." He also denied any prior knowledge of the grievances or having discussed them with Anicia, as she had alleged in that voicemail.

The DRB rejected the attorney's motion to vacate

In respect of the requirement that respondent provide a reasonable explanation for his failure to file an answer, we find his arguments woefully inadequate. First, he asked us to believe that, after years of problems with his office mail - and promises that he had resolved all those issues, including the representation that he had "fired" Anicia on one or more prior occasions - he received no DEC mail in respect of these grievances, because his office was located on the second floor. To accept respondent’s claim would require us to be persuaded that he had not received the certified mail, the regular mail, a telephone message left for him with office staff, or a facsimile sent to his office. The latter two communications were not dependent on a second-floor designation. Moreover, in the context of his heightened awareness of previous mail issues at his law office, it was incumbent on respondent to have a system in place to ensure his receipt of mail.

Then, on the eve of considering respondent’s default, we learned that he had continued to permit Anicia to manipulate mail in his office, years after representing to disciplinary authorities that he had terminated her employment. We conclude that none of respondent’s explanations for his failure to file a conforming answer, including the last-minute excuse contained in his supplemental certification, are reasonable. Thus, he has failed the first prong of the test to vacate the default.

He had no defense to the merits 

For six years, from 2012 through March 2018, numerous telephone calls were placed to respondent in behalf of the boys, seeking information about the status of their asylum applications. Those calls went unanswered. Apparently, the clients were unaware of the removal orders for six years, until March 2018, when they retained attorney Smotritsky to represent them.

DRB on sanction

On balance, considering both the harm to the clients and respondent’s default, Chair Clark and members Boyer and Hoberman voted to impose a censure. Members Rivera, Singer, and Zmirich voted to impose a three-month suspension, consecutive to the three-month suspension that the Court imposed on April 9, 2020.

(Mike Frisch)

October 21, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, October 20, 2020

Access To Michigan Bar Proceedings

The Michigan attorney discipline system is providing access to hearings before both hearing panels and the Attorney Discipline Board.

The Attorney Discipline Board has established two YouTube channels to facilitate public access to hearings that may be held on a virtual platform (i.e. Zoom for Videoconferencing).

Michigan Attorney Discipline Board Channel One

Michigan Attorney Discipline Board Channel Two
 

Transcription and Video Recording of Proceedings

The proceedings of the Attorney Discipline Board and its Hearing Panels, whether conducted in person or via Zoom (or similar two-way interactive video technology), shall be transcribed by a court reporter certified in accordance with MCR 8.108(G).  The transcript is the official record of the proceedings.

Proceedings conducted via Zoom (or similar video technology) will be live-streamed on YouTube (or  a similar video-sharing platform).  A video recording of a live-streamed proceeding made by such a platform will be available for public viewing for 30 days.  (Links to ADB channels may be found on the ADB website; notices of hearing will contain the links.)  Copies of video recordings of proceedings are not available to the public.

Adopted August 26, 2020
 
This provides a great tool for educating the Bar and the public on the operation of professional discipline. (Mike Frisch)

October 20, 2020 in Bar Discipline & Process | Permalink | Comments (1)

Monday, October 19, 2020

Suspension, Probation For Series Of Arrests

The Indiana Supreme Court has ordered an 180-day suspension with 90 days served for a series of acohol-related arrests

Respondent was arrested five times between April 2017 and August 2018 for offenses involving public intoxication and operating a vehicle while intoxicated (“OWI”). Respondent failed to notify the Commission of his first OWI conviction. Respondent also did not timely respond to the Commission’s demand for information, leading to the initiation of show cause proceedings that eventually were dismissed when Respondent belatedly complied.

Respondent has no prior discipline and has voluntarily taken several measures to respond to his misconduct, including among other things entering into a monitoring agreement with the Judges and Lawyers Assistance Program (“JLAP”).

After 90 days. he must serve probation of two years

(1) Respondent shall refrain from alcohol and all mind-altering substances except as prescribed.
(2) Respondent shall have no arrests and no violations of the Rules of Professional Conduct during his probation.
(3) If Respondent violates the terms of his probation, the stay of his suspension shall be vacated and the stayed suspension shall be actively served without automatic reinstatement.

(Mike Frisch)

October 19, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Insurance Statements Lead To Suspension

An attorney's statements about liability insurance drew a ninety-day suspension with automatic reinstatement from the West Virginia Supreme Court of Appeals

This lawyer disciplinary proceeding originated with a “Statement of Charges” by the Lawyer Disciplinary Board (“LDB”) against Scott A. Curnutte (“Mr. Curnutte”) alleging that he violated the West Virginia Rules of Professional Conduct by providing false information about his professional liability insurance coverage to the West Virginia State Bar (“State Bar”). For three consecutive fiscal years, Mr. Curnutte submitted his annual Financial Responsibility Disclosure (“FRD”) falsely certifying that he was covered under a policy of professional liability insurance, when, in fact, he had no such coverage. He also lied about having such coverage to a lawyer he employed, causing that lawyer to similarly provide false information to the State Bar.

The attorney admitted the misconduct in the bar proceeding.

West Virginia's then-rule

Article III(A), Section 2, of the State Bar By-Laws that were in effect at the time relevant to these proceedings, required every active lawyer engaged in the private practice of law to disclose whether he or she was covered by professional liability insurance, and, if not covered, whether the lawyer had another form of adequate financial responsibility...

Sanction

Having fully considered the record in this matter, along with the parties’ arguments, the Jordan/Rule 3.16 factors, including aggravating and mitigating circumstances, and other disciplinary cases involving instances of dishonesty, we conclude that a ninety-day suspension with automatic reinstatement under RLDP 3.31,13 along with the other recommended sanctions modified to comport with automatic reinstatement, provides an adequate sanction for Mr. Curnutte’s misconduct in this case.

(Mike Frisch)

October 19, 2020 in Bar Discipline & Process | Permalink | Comments (0)

"A Troubling Pattern"

The West Virginia Supreme Court of Appeals has annulled the license of an attorney admitted in 1995, sustaining findings of 134 rule violations. 

The ODC obtained information that Mr. Morgan had eighteen days of billing in excess of eighteen hours a day submitted for payments from the Public Defender Services (“Public Defender”)...

Mr. Morgan responded that some of this time was work he would perform on the weekends which was then billed to a weekday. Further, he noted that some of the time was “reconstructed,” and that he had actually underbilled many of his cases. Mr. Morgan asserted that any billing errors were due to misidentifications by the billing attorney and clerical errors on duplicate entries.

After Mr. Morgan corrected some of the billing entries, the Public Defender provided information that showed three days still consisted of eighteen hours of services billed, and two days were between fifteen and eighteen hours of billed services. Moreover, one day showed a billing of nearly twenty-nine hours for that day—which is impossible considering there are only twenty-four hours in a day.

There were also a number of client complaints, for example

Mr. Norwood retained Mr. Morgan for representation in multiple criminal cases, and in turn, paid Mr. Morgan an $8,000.00 retainer fee. Mr. Norwood alleged that Mr. Morgan failed to properly represent him, and as such, he terminated Mr. Morgan ashis counsel. Upon his termination, Mr. Morgan failed to provide the client file to Mr. Norwood, and failed to refund the unearned portion of his retainer fee. A former employee of Mr. Morgan provided a statement averring that Mr. Morgan falsified the invoice for his work in Mr. Norwood’s case. A review of Mr. Morgan’s IOLTA account did not show a deposit of the $8,000.00 retainer fee when it was paid, and two months later the IOLTA account had a negative balance. Mr. Morgan also failed to respond to two letters from Disciplinary Counsel...

Lori Ann McKinney hired Mr. Morgan to represent her husband in a criminal case. She alleged that Mr. Morgan failed to communicate with them and failed to properly handle the case. Ms. McKinney also sought Mr. Morgan’s representation in a medical malpractice case, which he allegedly did not pursue and never told the client that he was not going to pursue. Mr. Morgan is charged with failing to act diligently, failing to expedite both cases, failing to communicate with his clients about both cases, failing to keep records of the funds paid to him, and failing to provide the client file. 

From a former employee

Mr. Bostic is a former employee of Mr. Morgan. He alleged that Mr. Morgan withheld money from his paycheck for taxes and insurance but did not pay those funds to the proper agencies. He also alleged that Mr. Morgan wrote him a worthless check for his wages. Additionally, Mr. Bostic stated that Mr. Morgan’s law firm was operating under a false name—the law firm name is “E. Lavoyd Morgan, Jr. and Associates,” but there were not associates at the firm. Multiple other former employees attested that there were no associate attorneys working at the firm.

The court on sanction

While this Court finds that Mr. Morgan’s misappropriation of funds is sufficient to warrant disbarment on its own, we would be remiss to ignore the numerosity and severity of Mr. Morgan’s other instances of misconduct. Mr. Morgan violated nineteen different rules of the Rules of Professional Conduct, with a total of 134 separate instances of misconduct. Beyond his financial mishandlings, Mr. Morgan also committed violations regarding his competency, his diligence, his communication with clients, his failure to obtain written fee agreements, his failure to provide client files to clients when requested, his failure to expedite litigation, his lack of candor and honesty, his failure to ensure employees followed his ethical obligations, his failure to not mislead with the name of his firm, his failure to respond to Disciplinary Counsel, his failure to supervise his employees, and his engagement in conduct that was prejudicial to the administration of justice. This is not a scenario involving a singular act of misconduct, but rather, this is a troubling pattern of repeated, egregious behavior.

...we find that the sheer volume of these violations—in conjunction with their egregious nature— warrants the annulment of Mr. Morgan’s law license.

(Mike Frisch)

October 19, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 16, 2020

More Than A Scrivener

The Kansas Supreme Court has imposed a partially-stayed two year suspension for violations relating to a dual representation.

A.H. and his wife owned and were interested in selling a limousine business

A.H. was interested in building a soccer complex in the Kansas City area. To that end, A.H. and B.S. formed a company to do so, called IFC. A.H. and B.S. named themselves co-presidents. To raise capital to fund the soccer complex, A.H. and B.S. entered into an advisory fee agreement with B.C., a firm which raises capital for other companies.

S.L. was the chief operating officer and 50% owner of B.C. S.L. was also the respondent's neighbor. Prior to 2004, the respondent provided legal services to S.L. and B.C. From time to time, S.L. referred other clients to the respondent.

S.L. referred IFC to the respondent. As a result, the respondent became counsel for IFC. The respondent drafted IFC's shareholder agreement to memorialize the relationship between its partners.

A.H. and his wife filed for bankruptcy protection and listed the limo business as an estate asset.

A.H.'s son and A.M.'s son played soccer together in the Kansas City area. Following a soccer practice, on March 26, 2004, A.H. and A.M. discussed A.M. purchasing A.H.'s limousine business. During their discussions regarding the possible transaction, A.H. indicated that he would be willing to sell the business for $550,000. A.H. asserted that the business netted $12,000 - $15,000 monthly. A.H., however, did not inform A.M. that he filed a chapter seven bankruptcy case nearly two months earlier.

S.L. brought the Respondent into the situation

On May 17, 2004, the respondent, S.L., A.H., and A.M. met. Thereafter, the respondent drafted an engagement letter addressed to A.H. (personally and as president of the limousine business), A.M., and his wife, D.M.

Respondent's contention that he was a scrivener

The respondent has repeatedly asserted that he represented only the transaction, he did not provide legal advice to either party, and he acted as a mere scrivener. In an affidavit, the respondent swore that the engagement letter 'expressly provided that [he] would provide no legal advice to [A.M.] and [A.H.].' In a deposition, the respondent testified under oath that he 'didn't give legal advice to either side.'

Despite the respondent's statements to the contrary, the engagement letter does not expressly provide that the respondent 'would provide no legal advice to either party;' it expressly provided the opposite ('You hereby employ The Murphy Law Firm, P.A. to prepare all necessary documentation and advise both [A.H.], as the seller, and [A.M.], as the purchasers . . .')

The fly in the ointment

After A.M. told the respondent about A.H.'s bankruptcy, the respondent was on notice that his two clients were in direct conflict with one another. The respondent did not withdraw from the representation; rather, the respondent negotiated a different deal between the parties. Further, the respondent did not seek and obtain his clients' consent to continue the joint representation after consultation regarding the conflict.

Findings of misconduct

The panel concluded Murphy violated KRPC 1.7(a) in two ways: First, at the beginning of the representation, there existed a directly adverse representation between A.M. and A.H., but Murphy failed to satisfy the consent-after consultation requirement under subsection (a)(2); and second, he "was placed on actual notice of a direct conflict of interest between his two clients" when he learned of A.H.'s bankruptcy, but Murphy continued to represent them without obtaining each client's consent after consultation under the same subsection. The panel also determined Murphy violated KRPC 1.7(b) upon a finding that he "never disclosed to A.M. his previous personal and professional relationship with S.L. and his previous professional relationship with IFC," which "may have materially limited [his] representation of A.M. in this case," and he failed to "explain the conflict to A.M. nor did he seek or obtain A.M.'s consent to this conflict." Murphy concedes violations of both subsections, although he again equivocates some on KRPC 1.7(a)...

Murphy's testimony supports the panel's conclusion that he had a prior relationship with S.L. and IFC. Since A.H. was an IFC founding member, it appears Murphy's relationship with both influenced his representation in the transaction between A.H. and A.M. And the fact Murphy was not paid for his work drafting the IFC shareholder agreement does not negate the existence of a lawyer-client relationship. See In re Hodge, 307 Kan. at 212 (existence of lawyer-client relationship is not dependent upon payment of a fee).

Second, Murphy concedes he had a previous relationship with S.L., who referred him business from time to time, including the IFC matter and the limousine sale matter. He attempts to minimize this relationship by stating "like most attorneys, [he] receives referrals from existing client[s] for new clients. That is what occurred here." But as correctly argued by the Disciplinary Administrator, "[t]his was not the common scenario where an existing client refers a potential client for representation on some unrelated matter. Here, there was an interconnected relationship between the parties and the transactions."

As to sanction

The panel determined that as a result of Murphy's misconduct, he caused "actual, serious injury": A.M. paid A.H. $300,420 for the business which A.H. did not own and which A.H. had previously valued at $0; and A.M.'s litigation to recover his loss lasted nearly 15 years. While Murphy initially took an exception to this finding, he later chose "not [to] dispute in any way that there was injury as a result of his conduct." See In re Hodge, 307 Kan. at 209-10.

Delay was treated as a mitigating factor

But the panel concluded the delay in bringing the disciplinary proceeding was not a mitigating factor. This is contrary to our caselaw. A.M. filed the complaint in 2016, which was 12 years after Murphy's misconduct occurred. And the delay factor covers instances in which "charges may become so stale that it would be inequitable to act upon them." In re Ratner, 194 Kan. 362, 373, 399 P.2d 865 (1965) (six years of delay) (citing In re Elliott, 73 Kan. 151, 158, 84 P. 750 [1906] [taking 14 years to file charges "must at least be said that it is very stale"]).

...But in this case we hold any prejudice is not so overwhelming that it outweighs the aggravating factors.

Bottom line

We conclude a suspension with a two-year term is the appropriate discipline. In arriving at this, we have considered the aggravating and mitigating circumstances described above, as well as the clear and convincing evidence that supports the panel's findings and conclusions. Attorneys who attempt dual representation of parties to a business transaction do so knowing they are entering an ethical minefield. And while it is possible with diligence to avoid a disastrous slip, this case is a textbook example of what not to do.

That said, the court is amenable to staying respondent's two-year suspension after the first year so long as he adheres to a probation plan approved by the Disciplinary Administrator's office during the second year of his suspension.

(Mike Frisch)

October 16, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, October 15, 2020

Hacking Charges Lead To Interim Suspension

The Louisiana Supreme Court has ordered an interim suspension of an attorney for "threat of harm."

Justice Hughes dissented

It may be established that the respondent is guilty of unethical conduct, but the threat of serious harm to the public is speculative. Let the criminal trial and disciplinary process proceed.

KTSB reported on the charges

The attorney for a Louisiana judicial candidate calls her arrest this week politically motivated and said Friday that one of the laws she's accused of breaking didn't exist at the time of the alleged offense.

Trina Chu, 46, was arrested Tuesday on two felony charges accusing her of sending a friend confidential files in 2018, while she was a law clerk for the chief judge of the state’s 2nd Circuit Court of Appeal. She's now challenging Judge Jeanette Garrett in a Nov. 3 election for a seat on that court.

“I think this is political shenanigans. I think she’s been treated unfairly," attorney Charlotte Bordenave said in a phone interview with The Associated Press. “We’re going to be exploring civil actions against the sheriff's department.”

The computer trespass law was enacted in 2019. “Louisiana law does not apply retroactively. We're going to quash that,” Bordenave said.

She also said the allegations were investigated thoroughly and both the sheriff’s office and district attorney’s office declined to press charges in July 2019.

The state has 120 days to file formal charges, Bordenave said.

“That's conveniently after the election,” she said.

ORIGINAL story posted Aug. 4:

SHREVEPOPT, La. -- A Shreveport attorney and judicial candidate Trina Chu was arrested Tuesday on charges that, as a law clerk for an appeals court judge, she hacked into computer files containing confidential drafts of an opinion being written in a case involving a friend and then sent some of the information to her friend.

Chu, 46, of Shreveport, was arrested by Caddo Parish sheriff’s Warrants Unit on warrants charging her with committing an offense against intellectual property and trespassing against state computers, both of which are felony offenses. She was booked into Caddo Correctional Center, with bonds set at $20,000.

RELATED REPORTS

Chu was a law clerk for Judge Henry Brown, then-chief judge of the 2nd Circuit Court of Appeal in Shreveport, at the time of her alleged actions. The case Chu is accused of improperly accessing involved a close friend of hers, who had been in a long-term relationship with Brown. The judge had recused himself from hearing the case and Chu had no reason to look at the case, investigators said.

The alleged hacking occurred in July 2018. Brown's secretary had checked a copy machine and saw that someone had tried to print confidential information such as memos and drafts of the pending opinion involving Chu’s friend. The copy machine had shut down when it ran out of toner.

Judge Brown’s colleagues on the court fired Chu and filed a complaint with the Sheriff's Office, which began investigating.

The chief justice of the Louisiana Supreme Court ordered Brown to stay away from the Second Circuit courthouse after a fellow judge who was considering the appeal filed a complaint Brown was trying to intimidate him, court documents reviewed by KTBS News say. Brown, who has denied any improper behavior and has not been accused of involvement in the alleged hacking, retired shortly after that.

The judges whose draft opinions were hacked upheld the lower court verdict against Chu’s friend.

Chu is running for a seat on the Second Circuit Court of Appeal. She is challenging Judge Jeanette Garrett in the Nov. 3 election.

Authorities acknowledged Chu’s arrest comes as she is running for a judgeship but said the investigation started long before she filed to run last month. An arrest was delayed by office shutdowns due to coronavirus and a review of the case by the state attorney general’s office, said Caddo District Attorney James Stewart, whose office will prosecute Chu.

The appeals court case involves Hanh Williams, who was accused of breaching her fiduciary duty as the trustee and executrix of a man's trust and estate. Williams, a financial planner, over time had become involved in all of that man's financial affairs, court records show.

A Caddo District Court civil jury in November 2016 awarded $1.5 million in damages to the estate of the man, Fred Houston of Shreveport. Allegations in the lawsuit questioned some billings and expenses to Houston and then to his estate after he died.

Williams said she was a good steward of Houston’s money and defended the charges as appropriate. She appealed the verdict to the 2nd Circuit Court of Appeal.

Authorities said Chu emailed some of the documents in the pending appeals court opinion to Williams and also provided her legal advice on how to proceed in the case. They said Chu told a detective she was only interested in her friend’s case and had no malicious intent when she accessed the file.

(Mike Frisch)

October 15, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 14, 2020

The Standards Have Not Changed

The Illinois Review Board proposes a three-month suspension for abusive behavior in a deposition

During a deposition in an insurance matter in which he represented the plaintiff, and his opposing counsel, Keely Hillison, represented one of the defendant insurance companies, Respondent grew angry with Hillison's questioning of his client. When Hillison asked to certify a question that Respondent had instructed his client not to answer, Respondent told her to "certify your own stupidity." Hillison responded that she would not sit there and take insults from Respondent, to which Respondent replied that "a man who insults on a daily basis everybody he does business with has now been elected President of the United States. The standards have changed. I'll say what I want." (Hearing Bd. Report at 3-4.)

A short time later, Hillison asked a question of Respondent's client, and Respondent said, "Don't waste your breath." He then objected and told his client not to answer. When Hillison asked to certify the question, Respondent stated: "Motion for sanctions; indicate that on the record. I'm going to get sanctions against your firm like you wouldn't believe, bitch." (Id. at 4.)

Hillison filed a motion to compel Respondent's client to answer the questions he declined to answer at the deposition. In the motion to compel, she briefly mentioned Respondent's comments to her. At a hearing on the motion, the judge, Hon. Franklin U. Valderrama, admonished Respondent for his behavior toward Hillison and allowed him to file a response to the motion to compel.

In the response to the motion to compel, Respondent included many statements about Judge Valderrama's conduct and demeanor at the hearing. He stated that he would have apologized to Hillison at the hearing but that "the court, in its anger, refused to let [Respondent] speak . . . ." He described Judge Valderrama as being "in a rage," and stated that the judge "flew into a rage of his own at this counsel for what was said in the deposition." He stated that, "in light of recent events, and most particularly the ?robe rage incident'" at the hearing, it was unclear whether his client would now suffer because of the "anger this court holds against his counsel." He continued by saying that Judge Valderrama "saw an angry situation develop and reacted in anger. It is always preferable if a judge is able to put out fires rather than pour oil on the flames." He stated that the "temper" that was displayed by Judge Valderrama "calls into question the impartiality of the tribunal." He said that he was sorry if Judge Valderrama considered his words to be a personal attack, but that he felt it "necessary to protect [his] client from the judicial anger that clearly occurred" at the hearing. (Hearing Bd. Report at 9.)

As to sanction

Respondent contends that he should receive nothing more than a reprimand. He contends that he said only two objectionable things - the words "stupidity" and "bitch" - at the deposition, and that he has fully acknowledged that those two interruptions were wrongful. He contends that the actions of the respondents in the cases relied upon by the Hearing Board were significantly more egregious than his conduct. In contrast, he cites cases in which the respondents used highly offensive words against opposing counsel and were reprimanded or censured. See In re Cwik, 89 CH 690 (Review Bd., March 9, 1993) (reprimand of attorney who wrote a letter to opposing counsel containing highly offensive personal remarks, which he intended as a joke; when she did not see them as a joke, he wrote letter of apology to her and her law firm); In re Gerstein, 91 SH 354, petition to impose discipline on consent allowed, M.R. 7626 (Sept. 26, 1991) (censure of attorney who wrote and sent a letter that contained obscene, offensive, and vulgar language to female opposing counsel; mitigation included that he had sent her a letter of apology; aggravation included that attorney had been previously reprimanded for engaging in similar conduct). Respondent argues that comparing the offensive language that he used with the offensive language used in CwikGerstein, and the cases cited by the Hearing Board makes clear that, at the most, he should receive a reprimand.

Precedent

The foregoing cases involve misconduct that is either similar to or more egregious than Respondent's, with similar or more egregious aggravating factors. We thus see no compelling reason to depart from the Hearing Board's recommendation of a three-month suspension, which is fully supported by authority.

In fact, to Respondent's point, these cases arguably could support a suspension of less than three months. However, as the Hearing Board expressly and properly took into account, Respondent's conduct at his hearing raises concerns about his ability or willingness "to conduct himself in a professional and ethical manner when faced with stressful or adversarial circumstances." (Hearing Bd. Report at 14.) That aggravating factor convinces us that a three-month suspension is warranted.

Accordingly, we recommend that Respondent be suspended for three months. We find this sanction to be commensurate with Respondent's misconduct, consistent with discipline that has been imposed for comparable misconduct, and sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct.

We also agree with the Hearing Board that Respondent would benefit from a review of his professional responsibilities, and therefore recommend that he be required to complete the ARDC Professionalism seminar before being reinstated to law practice.

The attorney has been in practice since 1983. (Mike Frisch)

October 14, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Monday, October 12, 2020

No Ifs Ands Or...

The New Zealand Lawyers & Conveyancers Disciplinary Tribunal has censured an attorney with conditions ("undertakings") in what it called a "sad and tragic" case involving two similar  incidents

The first of the offences took place in June 2015 when a boy, aged 12 years at the time, was at a local mall with friends. The group was seated at a table. The victim was leaning against it, as there were not enough seats. As Mr Harker walked past the victim, he intentionally touched the victim’s buttocks with his hand, in a motion that was described as more forceful than a “passing brush”. Mr Harker did not move away immediately. When the victim turned to see what had touched him, Mr Harker was about 5 metres away. He is described as “stopping, looking back and staring at” the victim.

The second incident occurred in April 2017 and involved a boy aged 10 years at the time. He, together with his parents, was at a local shopping mall. They walked into a store. Mr Harker followed them. Shortly after, the victim and his parents left. Mr Harker continued to follow them. After all of them had travelled to the second floor of the mall on an escalator, Mr Harker walked towards the victim, and lightly patted his right buttock with the palm of his hand.

Plainly, the touching of each victim was deliberate. The District Court Judge’s sentencing notes reveal that both victims were emotionally affected by what happened. Each regarded the behaviour as unusual. Both were concerned that they (or other children) might be at risk of similar acts being committed in the future.

He had sought therapy

We accept that Mr Harker has done as much as could possibly have been done to rehabilitate and consider that he is well along the path to redemption.

The tribunal concluded that the conduct reflected on fitness to practice. (Mike Frisch)

October 12, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Artistic v. Bar License

A Member's emails with her client drew a $1,000 fine from a Hearing Committee of the Saskatchewan Law Society

As the Agreed Statement of Facts indicates, this complaint was triggered by the discovery of an e-mail exchange between the Member and her client, M.G., which took place slightly prior to and during a court proceeding in which M.G. stood charged with an assault against his spouse. The e-mail exchange began with the client confirming that the Member was ready for the proceeding to commence and indicating that the prosecutor was present in the courtroom. The Member then sent M.G. a satirical poem by John Cooper Clarke. It is not necessary to reproduce that poem here, but it is notable for its use of vulgar language, references to death, suicide and killing, and violent metaphors. M.G. responded that the poem “says it all about her and their process.” In the final e-mail in the chain, the Member said that she had saved the poem on her desktop “because it reminds me to find fun in these idiots rather than let them get me down.”

 Whatever its artistic merits – and we do not deny that sharp, even vicious, satire has its place in the literary canon – it is clear that the sentiments expressed in it, and the manner in which they were expressed, were a singularly inappropriate component of communication between the Member and M.G. in circumstances where they were preparing for a criminal proceeding arising from a charge of spousal assault. It is not entirely clear whether M.G. was referring to the prosecutor, the judge or perhaps his estranged spouse when he talked of “her and their process”, or who the Member meant to identify when she referred to “these idiots,” but it is not necessary to resolve this question to conclude that these communications constituted conduct unbecoming on the part of the Member.

Sanction

  In the submissions, counsel described the aggravating factors that should be considered in assessing the penalty as follows:

1.        The primary aggravating factor is the potential injury that could have arisen from a communication that incited violence towards (or at very least dehumanized) a victim of a physical assault and/or the players in the justice system (the crown). This was particularly problematic due to the fact that the Member knew that her client was sitting in court at the time she sent her communications; and

2.  The conduct has the effect of eroding public respect for the profession

 The mitigating factors were enumerated as follows:

1. In the course of the investigation, the Member has been co-operative. The Member entered into an Agreed Statement of Facts and entered guilty pleas to the allegations herein. She has acknowledged her misconduct.

 We would also note that no prior record of discipline against the Member was put before us.

(Mike Frisch)

October 12, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, October 10, 2020

Transparency In Missouri

Two recent arguments before the Missouri Supreme Court are summarized and linked on the court's web page.

Disciplinary Counsel seeks disbarment in both matters. 

October 6

In re: John E. Tresslar
St. Louis
Attorney discipline  
 
Listen to the oral argument: SC98544 MP3 file The chief disciplinary counsel was represented during arguments by Shevon L. Harris of The Harris Law Firm in St. Louis; Tresslar was represented by Michael P. Downey of Downey Law Group LLC in St. Louis. 
 
A man retained St. Louis attorney John Tresslar to represent him in personal injury and workers’ compensation cases. In 2012, the man and his employer’s insurer settled the workers’ compensation claim and sent Tresslar notice of its subrogation claim in the personal injury case against a third party. In September 2013, Tresslar settled the man’s personal injury claim and disbursed the proceeds. He retained $51,220 to satisfy the insurer’s lien but did not disburse it. In March 2016, the insurer sued Tresslar and his former client, seeking the subrogation monies it was owed. Without the man’s knowledge or consent, Tresslar filed answers on the man’s behalf. In March 2017, the circuit court entered a judgment against them, but Tresslar did not inform the man about the judgment and did not satisfy it for two and a half years. In 2016, a father paid $8,500 to retain Tresslar to represent his daughters in separate matters. After more than a year with very little progress and Tresslar’s failure to respond timely to his inquiries, the father in June 2017 terminated Tresslar’s representation and requested his file and a refund of his retainer fees. After multiple follow-up inquiries over approximately five months, the father received a $4,500 refund check with no billing statement or invoices detailing services rendered to earn the remaining $4,000. After the father filed a complaint with the chief disciplinary counsel’s office, Tresslar sent the father an undated bill for $4,000 for services rendered, reflecting an entry for “begin draft of lawsuit.” During its investigation, the chief disciplinary counsel’s office audited Tresslar’s operating and trust accounts. The audit revealed Tresslar did not maintain individual client ledgers for the trust account, did not maintain a receipt and disbursement journal, moved funds from his trust account to his operating account without maintaining adequate records documenting the reasons for the transfers, allowed the trust fund balance to fall below the amount of necessary client funds that should have remained in the trust account, and received funds on behalf of clients but failed to make payments on their behalf or remit to them what they were owed. The chief disciplinary counsel instigated disciplinary proceedings against Tresslar. At the hearing, Tresslar testified he was experiencing emotional and personal problems during part of the time in question, including treatment for leukemia and marital problems. He also testified he ultimately paid clients or third parties the amounts they were due and had made changes to his trust accounting practice. He characterized his conduct as selfish but not reflecting a dishonest motive and testified about his pro bono and charitable work and involvement with community and legal organizations. The disciplinary hearing panel found Tresslar had violated several rules of professional conduct, had dishonest motives and was dishonest during the investigation, and had engaged in a pattern of misconduct. The panel recommended Tresslar be disbarred. Tresslar rejected the recommendation. The chief disciplinary counsel asks this Court to disbar Tresslar; Tresslar argues his conduct and mitigating evidence support no more than an indefinite suspension.
 
This case presents two questions for this Court – whether Tresslar violated rules of professional conduct and, if so, what discipline, if any, is appropriate. 
 
 
September 23
 
In re: Eric F. Kayira
St. Louis County

Attorney discipline  
Listen to the oral argument: SC98531 MP3 file
The chief disciplinary counsel was represented during arguments by Shevon L. Harris of The Harris Law Firm in St. Louis; Kayira was represented by Michael P. Downey of Downey Law Group LLC in St. Louis. 
 
In 2012, St. Louis County attorney Eric Kayira began representing a decedent’s estate. On behalf of the estate, he sued Bank of America, alleging the bank wrongfully disbursed the decedent’s funds before his death under a purported power of attorney. The estate was under the supervision of the probate division, but Kayira failed to get its authorization before filing or pursuing the lawsuit on the estate’s behalf. In 2013, all without the probate division’s authorization or knowledge, Kayira entered into a confidential settlement agreement with the bank for $12,500, deposited the settlement check – made out to Kayira’s law firm but not the estate —into his operating account, used the funds to pay personal representative expenses related to the bank case, and dismissed the case against the bank. He then petitioned the probate division to convert the estate from a supervised estate to one with independent administration without bond, stating in his petition he still was searching for assets through the lawsuit against the bank. The probate division, unaware Kayira had settled the case and deposited the settlement check, granted his petition. In 2015, Kayira moved to withdraw from representing the estate. At a hearing on his motion, the probate division advised him the settlement check was an asset of the estate and should have been deposited into the estate’s account, not Kayira’s operating account as an earned legal fee, and ordered him to pay $12,500 into the estate’s account. Kayira later canceled his motion to withdraw, and the probate division reported his conduct. The chief disciplinary counsel instituted disciplinary proceedings against Kayira. During the investigation, Kayira remitted two checks to the estate: a $12,500 check drawn on his trust account and a $3,375 check drawn on his operating account, representing interest accrued on the settlement check. He ultimately stated the source of the $12,500 was not the original bank settlement but rather his share of attorney fees from an unrelated case. An audit of Kayira’s accounts showed he had used the bank settlement proceeds in part to pay his landlord. The audit also showed he did not maintain certain trust account records, did not reconcile his trust account, deposited client funds into his operating account, and transferred money from his trust account to his operating account without proper documentation. In addition, the audit revealed issues with how Kayira had handled fees paid by a number of clients and settlement checks he received on their behalf. During a hearing, Kayira did not dispute the investigator’s testimony about his accounts and transactions and admitted he used some of the funds improperly. In mitigation, Kayira testified he was experiencing personal difficulties during the time in question, later sought treatment, had taken a trust accounting class, had incorporated new software in his law office, and was involved in the community. The disciplinary hearing panel found Kayira had violated a number of rules of professional conduct; it found several factors in aggravation of punishment but none sufficient to mitigate punishment. The panel recommended he be disbarred. The chief disciplinary counsel accepted the panel’s decision; Kayira rejects it, asking this Court to find his conduct and evidence of mitigation support imposition of an indefinite suspension.
 
This case presents two questions for this Court – whether Kayira violated rules of professional conduct and, if so, what discipline, if any, is appropriate.
 
SC98531_chief_disciplinary_counsel_brief 
 
(Mike Frisch)

October 10, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Social Distancing Allegation Cooperation At Issue In Vermont

Vermont has one of the most accessible and transparent bar discipline web pages as evidenced by the below links to the filed documents in a recent matter.

The case involves accusations that the attorney failed to respond to Disciplinary Counsel's request for information in a matter where she allegedly had pulled a gun on a store clerk over a social distancing sign. 

The attorney's answer denies misconduct, noting that the attorney has pleaded not guilty to criminal charges and alleges that Disciplinary Counsel  "appears to have insufficient training for her position given her misunderstanding of legal rights under the U.S. and Vermont Constitutions." 

The answer challenges Disciplinary Counsel's factual averments concerning their communications. 

Our prior coverage of the underlying matter is linked here. 

Legus, Carrie J.
Respondent’s Counsel:  Self
Disciplinary Counsel: Sarah Katz
Docket Number: PRB Docket No. 2020-102
Status: ASSIGNED TO HEARING PANEL. On September 9, 2020 a Petition of Misconduct was filed. Hearing Panel was assigned on September 15, 2020. Respondent is self-represented. Respondent filed an Answer on September 29, 2020.

Documentation:

PRB No. 2020-102 - Legus, Carrie - HP 7 Assignment Letter - 20-0914.pdf

PRB No. 2020-102 - Legus_Carrie - Petition of Misconduct - 20-0909.pdf'

PRB No. 2020-102 - Legus_Carrie - FL - Petition of Misconduct - 20-0909.pdf

PRB No. 2020-102 - Legus_Carrie - C of S - Petition of Misconduct - Sheriff's Record of Attempts - 20-0922.pdf

PRB No. 2020-102 - Legus_Carrie - C of S - Petition of Misconduct - 20-0922.pdf

PRB No. 2020-102 - Legus_Carrie - Answer to Petition - 20-0929.pdf

 
(Mike Frisch)

October 10, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 9, 2020

Lien On Green (Card) Leads To Reprimand

An Illinois Hearing Board imposed a reprimand of an attorney based on a stipulation of misconduct.

The attorney was retained to secure a replacement green card for a citizen of India. 

The attorney was paid for the service but  

In October 2015, Respondent received a letter from Jadav's new counsel requesting Jadav's permanent resident card, and she responded that, although she possessed Jadav's card she was asserting a retaining lien over the card based on unpaid legal fees from her representation of Jadav's relative, for which Respondent alleged that Jadav had guaranteed payment.

In the bar proceeding, the attorney stipulated that the client owed nothing but

 Respondent did not release Jadav's card until August 25, 2017.

Respondent also stipulated to a communication lapse with a second client.

If this matter proceeded to hearing, Respondent would present positive character testimony. In addition, Respondent has presently or previously volunteered her time with, and donated money to numerous non-profit organizations including Islamic Relief, Greater Chicago Food Depository, Habitat for Humanity, CVLS, LAP, Muslim Community Center, Apna Ghar, Salvation Army Metropolitan Division (Emergency Disaster Services/Mobile Feeding Services), St. Jude's Children's Hospital, Edhi Foundation, Who Is Hussain?, Hamdard Center, Helping Hands Relief, Bronzeville Business Cleanup after George Floyd Protests, Masjid Badri, and AILA. In addition, she is a volunteer website writer/contributor to Illinois Legal Aid and is involved with mentoring attorneys through ISBA and AILA.

The fee was refunded. (Mike Frisch)

October 9, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Bar Discipline Not Impacted By "Inexcusable" Delay

An "inexcusable delay" in prosecution did not prevent the South Carolina Supreme Court from disbarring the attorney. 

Following a hearing, a panel of the Commission on Lawyer Conduct (the Panel) recommended Respondent receive a six-week definite suspension in light of Respondent's repayment of the missing client funds and unexplained delay by the Office of Disciplinary Counsel (ODC) in prosecuting this matter. Although we find the inordinate delay by ODC troubling, we nevertheless disbar Respondent.

The attorney had been placed on interim suspension in November 2013 but reinstated in December 2013.

Charges followed in May 2019. 

He admitted the misconduct.

As to delay

Even though the investigation into Respondent's financial misconduct was complex and time-consuming, ODC's delay in prosecuting this matter is inexcusable. ODC has offered no specific explanation, much less a reasonable one, for the five-and-a-half year delay between the authorization and the filing of Formal Charges. However, the question remains to what extent, if any, this unjustified delay mitigates the gravity of Respondent's financial misconduct. The parties have not cited, and our research has not revealed, any South Carolina case on point.

There is now

We find unjustified delay on the part of ODC may properly be considered as a mitigating factor where a Respondent demonstrates unfair prejudice as a result thereof. However, we find Respondent did not suffer any prejudice under the facts of this case. To the contrary, during the pendency of these proceedings, Respondent benefitted by continuing to practice law and practicing without the concomitant responsibility of overseeing his trust account, as this Court had reassigned that task to his associate. Further, it does not appear Respondent suffered any public opprobrium or detriment to his practice, as Respondent repeatedly noted that more than $21.5 million passed through his trust account since 2013.

To be clear, we do not condone, in any respect, the inordinate delay caused by ODC in this case. However, we cannot ignore Respondent's longstanding pattern of using money that was not his from his trust account, and we conclude this misconduct warrants disbarment.

Justice Few concurred

First, in my opinion, this case has absolutely nothing to do with Rule 417, SCACR. Mr. Wern intentionally took his clients' money out of his trust account, and he knew doing so was stealing. He directed the withdrawals from the account with full knowledge of the crimes he was committing, and at other times he delayed legitimate withdrawals to cover up his crimes.

Bravo Justice Few

To say merely this is to blame the current disciplinary counsel for our failure, and effectively to "condone" our own lack of supervision over the professionals we employ. The delay is ours, and we must take the necessary steps—through rulemaking, staffing, and other means—to improve the operations of ODC to prevent this delay from ever happening again.

I dearly wish other courts would acknowledge their responsibility for systemic delay.

You know who you are. 

Justice Hearn dissented

I respectfully dissent as to the decision to disbar Respondent because I believe that sanction is excessive, particularly in light of Respondent's lengthy, unblemished disciplinary history as well as the prejudice he sustained due to the delay by the Office of Disciplinary Counsel (ODC) in resolving this matter. Accordingly, I would impose a one-year suspension.

(Mike Frisch)

October 9, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Conflict Of Interest Draws New Jersey Censure

The New Jersey Supreme Court has censured an attorney for a concurrent client conflict of interest. 

As described in the report of the Disciplinary Review Board, an attorney had been retained to prosecute a criminal appeal that was later dismissed for failure to file an appellate brief.

The attorney then retained (for a $15,000 fee) the Respondent to attempt to both resuscitate the appeal and cover his exposure

Respondent admitted that he considered both Gonzalez-Rodriguez and [attorney] Suarez-Silverio to be his clients and that, in addition to representing Gonzalez-Rodriguez for the appeal, he represented Suarez-Silverio for possible exposure to malpractice and ethics complaints. Moreover, respondent acknowledged that he owed an undivided loyalty to both Gonzalez-Rodriguez and Suarez-Silverio. Respondent further admitted that he never informed Gonzalez Rodriguez of F&M’s personal representation of Suarez-Silverio and the resulting conflict of interest. Finally, respondent admitted that his actions created an inherent conflict of interest, in violation of RPC 1.7.

He returned the $15,000  while the matter was pending before the District Ethics Committee.

The DEC split on their proposed sanction 

A two-member majority of the hearing panel recommended the imposition of a reprimand. The public member filed a dissent, pointing out that respondent is a seasoned attorney of forty-five years, that he failed to disclose the conflict of interest to Gonzalez-Rodriguez, and that he failed immediately to remit the $15,000 when Bar-Nadav requested that he do so. This member voted to suspend respondent for an undisclosed period.

Editor's note: Why is it so often the case that the (majority vote) volunteer lawyers are more lenient than the non-attorney member? 

The DRB on sanction

In aggravation, respondent has prior discipline: 1995 and 2009 reprimands, and a 2009 three-month suspension, all for dissimilar misconduct. In mitigation, respondent readily admitted his misconduct in this matter and returned the entire $15,000 retainer to the Rodriguez family. Additionally, respondent’s actual representation of Suarez-Silverio was short-lived, because Gonzalez-Rodriguez quickly terminated F&M’s representation and retained Bar-Nadav to take over his appeal.

Because respondent is a very seasoned attorney and this is not his first brush with the disciplinary system, we determine that a censure is the quantum of discipline necessary to protect the public and preserve confidence in the bar.

Vice-Chair Gallipoli and Member Zmirich voted to impose a one-year suspension.

(Mike Frisch)

October 9, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Tickler System

The Iowa Supreme Court has reprimanded an attorney for the second time

Lawyers shouldn’t use default notices from the supreme court clerk as a tickler system for appellate briefing deadlines. Eric D. Tindal did so; and in 2018, we publicly reprimanded him for default notices he received in sixteen appeals. We now decide the sanction for his default notices in another thirteen appeals. Importantly, all but four of the new default notices at issue preceded his 2018 public reprimand. The Iowa Supreme Court Attorney Disciplinary Board seeks “at least” a two-month suspension. A division of the Iowa Supreme Court Grievance Commission that heard the evidence recommends a one-month suspension. It is undisputed that Tindal cured all of the defaults without any appeal being dismissed, and he personally paid every penalty assessment. Tindal, by all accounts a competent criminal defense trial lawyer, has agreed to forgo handling court-appointed criminal and postconviction appeals. For these reasons, we impose a second public reprimand rather than suspending his license.

The court on sanction

We must determine the sanction for Tindal’s conduct resulting in default notices in thirteen appeals during 2018–19, mindful that nine of those preceded his October 2018 public reprimand for default notices in sixteen appeals during 2016–17. The commission recommended a thirty day suspension premised on its belief that our court would have suspended Tindal in 2018 had the Board charged him with another nine default notices. We disagree with that premise. In our view, given Tindal’s nearly unblemished disciplinary history in 2018 (he had one prior private admonishment), he still would have received a public reprimand for the series of default notices with no client harm, whether in sixteen or twenty five appeals.

Sequence matters. See id. (“We believe the timing of the present violations has bearing on the sanction.”). In Iowa Supreme Court Attorney Disciplinary Board v. Noel, we imposed a public reprimand instead of the suspension recommended by the board and commission because the conduct at issue preceded the discipline imposed for earlier misconduct. Id. at 205–06. We concluded the prior sanction, a public reprimand, would have remained the same had we been aware then of the additional misconduct, and we therefore declined “to enhance Noel’s sanction in the present case.” Id. at 206. We reach the same conclusion here...

Tindal’s suspension is not needed to protect the public. Tindal has discontinued taking criminal or postconviction appeals for the State Public Defender. We consider a lawyer’s voluntary practice restrictions in mitigation.

Justice McDonald dissented in part on a procedural issue

I concur in all parts of the majority opinion with the exception of division III.D regarding the issue of whether the Iowa Supreme Court Attorney Disciplinary Board waived its challenges to the Iowa Supreme Court Grievance Commission’s findings and conclusions. The relevant court rules and controlling precedent require the attorney disciplinary board to file a cross-appeal to challenge the grievance commission’s findings. Because the Board failed to file a cross-appeal, I would hold it waived its challenges to the commission’s findings. I thus respectfully concur in part and dissent in part.

(Mike Frisch)

October 9, 2020 in Bar Discipline & Process | Permalink | Comments (0)