Friday, July 19, 2019

No Jury Trial For Late To Court Contempt

The Delaware Supreme Court denied a motion to reargue a criminal contempt and $1,000 fine of an attorney whose encounter with bar discipline in an unrelated matter is recounted by Delaware Online.

Joseph A. Hurley, a prominent Wilmington defense attorney known for his bravado and courtroom theatrics, was disciplined by the Delaware Supreme Court on Wednesday for making sexually explicit remarks to state prosecutors and for disparaging a former client who had lodged a complaint against him.

Hurley, 75, was ordered by the court to enroll in and pay for a professional training program within six months dealing with "respectful treatment of colleagues and opposing counsel" and "the need to refrain generally from inappropriate discussions of a sexual or religious nature" in his law practice. He also must pay the costs associated with an Office of Disciplinary Counsel investigation against him, which led to the public reprimand.

Court records show that Hurley, who was admitted to the Delaware Bar in 1970, was placed on private probation for an undisclosed period in 2013 for violating professional rules related to client fees. 

Hurley, who has an adult daughter and lives with a longtime companion, did not respond to a request for comment until Friday — the day after The News Journal posted the story online. He said that the previous probation was for one year and related to him prematurely depositing an extra $237 in client fees into his account.

As a former Delaware deputy attorney general in the 1970s, Hurley said he has enjoyed close friendships with state prosecutors both in and outside the office who understand his "raw racy sexual innuendo humor." He explained that he works into the early morning hours and "sometimes I get delirious."

"I would never say something to hurt somebody deliberately," he said, adding that he plans to attend "charm school" as soon as possible.

In two separate petitions filed in 2016, the Office of Disciplinary Counsel, an arm of the Supreme Court that investigates lawyer misconduct, accused Hurley of violating the Delaware Lawyers' Rules of Professional Conduct.

Specifically, the ODC accused Hurley of making "disparaging or demeaning remarks to and about four different Deputy Attorneys General" in correspondence to the prosecutors, and, in one instance, to the Superior Court. This occurred despite multiple attempts by senior deputy attorneys general to alert Hurley to his "inappropriate and unprofessional correspondence," according to court records.

Here the contempt involved repeated failures to timely appear before the court "despite reminders and warnings." He was not entitled to a jury trial. (Mike Frisch)

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

Mother's Old Cell Phone

The Pennsylvania Supreme Court has ordered an interim suspension of an attorney under the provision relating to a criminal conviction. 

TAPinto reported on his arrest in October 2018

Lawrence J. Weinstein, a local lawyer from Ardmore, PA, has been arrested last week, and criminally charged for allegedly conspiring with his girlfriend, Kelly Drucker, 45, who also faces charges, to take “intimate” photographs of unknowing women. Weinstein, a former Township Supervisor in Northampton, PA, practiced law at Silver & Silver, which has placed him on leave amid felony charges.

According to Newsweek, both Weinstein and Drucker were booked on Tuesday, October 9, 2018, by Northampton police. The pair were charged with multiple felonies, including violating the Pennsylvania Wiretap Act, committing false imprisonment, invasion of privacy, reckless endangerment and criminal conspiracy, according to the Bucks County District Attorney’s Office.

Weinstein and Drucker turned themselves in to the authorities on the 9th. Weinstein had been elected to a 6-year term as a Town Supervisor in 2013 but stepped down from the post last month citing personal reasons for his departure.

The charges stem from an incident last year in which investigators found evidence of Weinstein coaching Drucker via text message to get a victim drunk, disrobe the woman and take photos using spy glasses, and another from 2012 in which Weinstein allegedly sexually assaulted an unconscious woman.

On Nov. 10, 2017, authorities said Drucker and the victim had dinner at a restaurant. Weinstein, who was not present, stayed in contact throughout the meal with Drucker via text messages, coaching Drucker on how to convince the woman to come home with her, prosecutors said.

The Newsweek article contains details of those texts:

“Can you see anything,” Weinstein, 44, allegedly asked in a text to his 45-year-old girlfriend Kelly Drucker minutes past midnight on November 11, 2017, according to a Northampton Township Police criminal complaint obtained by Newsweek.

“Absolutely,” Drucker allegedly responded of the moment the first victim was blacking out.

Drucker had been dining with the woman, identified in the complaint as “Victim #1” at a local Mexican Restaurant.

Their correspondence showcased Weinstein coaching Drucker to keep plying the woman with Everclear, tease her about having a threesome and get her drunk enough to return to Drucker’s home where he could watch a peepshow using a webcam that was trained on the toilet.

The investigation began when evidence was brought to police by Drucker's ex-husband. In August of this year, the man noticed his daughter had a different cell phone. She explained it was her mother's old cell phone. After inspecting the cell phone, the man discovered numerous text messages and photos that detailed what Drucker was up to with Weinstein. The man brought the phone to the Northampton police and the investigation was underway. 

After obtaining a search warrant for Weinstein's home, authorities seized cell phones, an Apple iPad and computers. The iPad contained further evidence that there may have been more victims.  There were 72 pictures, including Weinstein taking selfies and others of himself and an unconscious woman identified in a court affidavit as “Victim #2.”

When informed of the images in question, Victim #2 told authorities she had no recollection of the photo session Weinstein conducted and further stated that “she did not consent to Weinstein to taking photos and touch her intimate body parts.”

District Judge Daniel J. Finello Jr. set bail Tuesday for both Weinstein and Drucker of $300,000. They both have preliminary hearings set for Oct. 18.

Weinstein's Justia entry lists his areas of practice as:

    • Animal & Dog Law
    • Elder Law
    • Medical Malpractice
    • Personal Injury

He was working at Silver & Silver, but after the charges were filed the firm placed Weinstein on administrative leave and removed him from their website. Weinstein's status with the Disciplinary Board of the Supreme Court of Pennsylvania remains “Active”—meaning he isn’t disbarred or under Administrative Suspension.

Newsradio KYW also reported on the case. (Mike Frisch)

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

Thursday, July 18, 2019

No Extraordinary Relief For Bar Exam Failure In Utah

The Utah Supreme Court denied extraordinary relief to an applicant who fell "just short " of a passing score after not being granted a disability accommodation

Dallin Mark Durbano wants to be a member of the Utah Bar. After abandoning a request that he receive an accommodation for his Attention Deficit Hyperactivity Disorder, Durbano took the Bar Exam and fell just short of a passing score. He now brings this petition for extraordinary relief and asks us to order his admission by waiving one of the following Rules Governing the Utah State Bar:

(1) rule 14-711(d) setting a minimum passing score for the Uniform Bar Examination of 270; (2) rule 14-703(a)(5) requiring a student applicant to pass the MPRE and the Uniform Bar Examination; or (3) rule 14-706(a) providing that an applicant who has a disability as defined by the Americans with Disabilities Act may request an accommodation and setting forth the requirements that the applicant must meet.

Durbano also asks that if this court is not inclined to waive any of those rules, that we review his exam and admissions packet, evaluate his ability to practice law, and admit him to the Utah Bar.

Durbano has raised interesting and important questions about the way in which the Utah State Bar interacts with those requesting accommodation. And he has given us reason to think about ways in which the Bar can provide more transparent and responsive service to those seeking accommodation. But he has not convinced us that we should exercise our discretionary authority to grant the relief he seeks. Accordingly, we deny the petition.

Scant comfort there.

He had not pursued available remedies to the denial

A person displeased with the Test Accommodations Committee’s decision may request review of that decision by the Bar’s Admissions Committee. Id. 14-706(c); see id. 14-715(a)(1). And that committee’s decision can be appealed to this court. Id. 14-715(e).

Durbano could have followed this path to advance his claim that he was entitled to an accommodation. That is, Durbano could have submitted a request for a testing accommodation, even if incomplete. And if denied, he could have requested that the Bar Admission’s Committee review the Testing Accommodations Committee’s decision. If again denied, he could have then appealed the Committee’s decision to this court. Durbano disagrees and contends that proceeding down that route would have been futile.

...But Durbano’s complaint is not with the rule that allows the Bar to grant test accommodations in appropriate circumstances. His beef centers on how the Bar implements that rule. Put differently, no rule requires Durbano to submit his test scores and physician’s verification. These are requirements the Bar imposes. And the Bar has the ability to adjust those requirements in appropriate circumstances. The only requirement that the rule places on the Bar is that it review testing accommodation requests made in writing at the time a Bar application is submitted. See id. 14-706.

No extraordinary relief

Durbano next argues that we should either waive the rules that require an applicant to pass the Bar Examination or admit him to the Bar because “[s]trict adherence to the rules in [his] case would undermine [the Bar’s] purpose of protecting the citizens of Utah.” Durbano details his law school achievements, his community service, and his work as a legal intern and argues that these, among other things, demonstrate that he has the chops to be an attorney.

Even though Durbano’s achievements are laudable, we are unconvinced that we should overturn the system we have in place—even on a one-time basis—for evaluating fitness to practice law in the state of Utah. 

That system requires the applicant to pass the exam

A Bar Examination with a set passing score promotes a predictable and objective system. If we grant Durbano’s petition and admit him to the Bar, it is not difficult to foresee that we will soon be in the business of reevaluating the admission applications of others who fail to achieve a passing score. We understand that the examination process is not perfect, and that legitimately tough cases will live in the margins, but that is the price of a predictable and objective process. For these reasons, we deny Durbano’s petition for extraordinary relief.

(Mike Frisch)

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

Underage Sex And History Of Sanctions Gets Virginia Attorney Revoked

A rare bar discipline opinion of the Virginia Supreme Court affirmed the license revocation of a notorious attorney

A three-judge court found that Virginia attorney Joseph D. Morrissey violated Rules 5.1(b), 5.5(c), and 8.4(b) of the Virginia Rules of Professional Conduct. The judges concluded that these violations warranted the revocation of his license to practice law. Morrissey challenges this decision on a number of grounds.

The three judge court held a five day hearing

The charges related to Rules 5.1(b) and 5.5(c) stem from a court appearance by an associate of Morrissey’s law firm, Ericka Battle. The three-judge court’s memorandum opinion contains the following factual summary from the parties’ stipulated facts...

By letter, dated March 20, 2015, Respondent submitted an answer to the bar complaint candidly acknowledging that his associate had not been sworn in when he sent her to court. He noted that she had a third-year practice certificate, and that she had appeared in numerous criminal cases while serving as an intern at the Commonwealth’s Attorney’s office. Battle had second chaired dozens of cases with Respondent in court matters ranging from DUI to 1st degree murder.

Battle’s third-year practice certificate expired by operation of law when she passed the bar exam. (Rules of Court, Part 6, Section IV, Paragraph 15.c.l)

This high-profile allegation

The uncontested facts establish that Morrissey had sexual relations with a minor, Myrna Pride, who was seventeen years old at the time. Morrissey was fifty-five years old. The parties presented conflicting evidence concerning whether Morrissey knew Pride’s actual age. Morrissey and Pride later married. Morrissey entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). He was convicted on December 12, 2014 of the crime of Contributing to the Delinquency of a Minor, in violation of Code § 18.2-371. He was sentenced to 12 months in jail with six months suspended for five years conditioned upon good behavior.

Bottom line

The judges concluded that these violations, in conjunction with Morrissey’s disciplinary history, warranted the revocation of his license to practice law.

The court sustained the findings of misconduct as to aiding unauthorized practice

Battle practiced law by appearing in court and representing a client of the firm in a criminal proceeding. She did so in violation of the regulation of the legal profession by appearing prior to her having taken the required oath. See Code § 54.1-3903. Morrissey either knew or should have known that Battle had not yet taken the oath. Battle testified that she told Morrissey that she needed to take time off to attend her swearing in on December 4, 2013. Without ensuring that she took the oath, he ordered her to appear in court on December 2, 2013. This evidence clearly and convincingly suffices to establish that Morrissey assisted another in appearing in court “in violation of the regulation of the legal profession in that jurisdiction,” thereby violating Rule 5.5(c).

And criminal sex

Here, the record indicates that Morrissey encouraged an underage girl to apply to his firm, knowing she was below the age of legal consent, and hired her as a receptionist. In short order, he engaged in a sexual relationship with her that began in the law office conference room. Despite his guilty plea, he tries to shift the blame to others. The facts in the record justify a finding by clear and convincing evidence that Morrissey’s violation of a criminal statute and the attendant circumstances call into question his honesty, trustworthiness, and fitness to practice law.

Sanction

we must weigh into the balance the long and notorious book of Morrissey’s disciplinary history - to which one more chapter has now been added. His disciplinary history consists of eight actions: three Dismissals with Terms, a Private Reprimand, a Public Reprimand, a Suspension of his license to practice law for six months, a Suspension of his license to practice law for three years, and the Revocation of his license to practice law in 2003. The three-judge court also admitted a Memorandum Opinion Order from the United States District Court, Eastern District of Virginia, which disbarred Morrissey from practicing law before that Court. This voluminous history establishes Morrissey’s chronic unwillingness to practice law in conformity with the rules that govern our profession. The sanction of revocation is fully justified.

We affirm the decision of the three-judge panel.

(Mike Frisch)

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

"Pure Greed, And A Hardwired, Vindictive Personality"

The Ohio Supreme Court has indefinitely suspended an attorney

Given the unreasonable and vindictive nature of Shimko’s conduct in this, his third disciplinary matter, we overrule his sixth objection and find that an indefinite suspension—with the attendant requirement that Shimko petition this court for reinstatement and establish by clear and convincing evidence that he possesses the requisite mental, educational, and moral qualifications and is a proper person to be readmitted to the practice of law in Ohio—is necessary and appropriate to protect the public and to deter Shimko from engaging in further unethical behavior.

Dan Trevas summarizes the decision 

The Ohio Supreme Court today indefinitely suspended a Westlake attorney for threatening to reveal and actually disclosing confidential client information in an effort to collect a clearly excessive legal fee.

In a 4-3 per curiam opinion, the Supreme Court indefinitely suspended Timothy A. Shimko, who received his third disciplinary sanction in nine years. The Court determined that Shimko failed to acknowledge the wrongful nature of his actions, argued that he acted appropriately, and showed no remorse for his behavior. The sanction is greater than the two-year suspension recommended to the Court by the Board of Professional Conduct.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, R. Patrick DeWine, and Melody J. Stewart joined the opinion. Justice Judith L. French dissented, stating she would suspend Shimko for two years. She was joined by Fifth District Court of Appeals Judge Earle E. Wise, sitting for Justice Michael P. Donnelly.

Representation for Insurance Claims Leads to Conflict

Shimko was censured by the Arizona Supreme Court in 2009 for violating several rules of professional conduct, including charging clearly excessive fees, and the Ohio Supreme Court issued a public reprimand for his acts in Arizona. In 2012, the Ohio Supreme Court imposed a fully stayed one-year suspension on Shimko for falsely accusing a trial judge of dishonesty.

The complaint at issue today was submitted by the Office of Disciplinary Counsel in 2017 based on Shimko’s representation of Richard Berris, whose house was destroyed in a 2015 fire.

Berris, an engineer by trade, did not reside in the house that burned, but stored instruments, data, and books in the basement. He had two insurance policies at the time of the fire, including a Nationwide commercial-property policy that covered the home he lived in with limited coverage for off-premises equipment. Berris filed a $500,000 claim with Nationwide for “business-related items” destroyed by the fire, but the insurer only offered him $10,000.

Berris’ second policy, which was with Allstate, covered fire damage for the house that burned, but excluded coverage for business property. When he filed a claim with Allstate, the insurer arranged for an “examination under oath” (EUO). Weeks before the EUO, Berris contacted Shimko by phone to seek his representation. The two discussed only representation at the EUO.

Shimko sent Berris a letter stating he would prepare him for the EUO and represent him there. Shimko told Berris he would like to meet beforehand to prepare, and he informed Berris that his standard legal fee was $385 per hour. Berris replied with an email asking Shimko to conduct a free “intake interview.” He requested a written copy of Shimko’s fee and services contract, and asked whether Shimko would handle the matter personally or assign it to another attorney at his firm.

Berris received no response to his email, and he sent Shimko another email stating his EUO was postponed. Shimko responded by email, writing the he would not charge Berris for the initial phone call, and estimated that between reviewing the insurance policies, prepping Berris for the EUO, and the actual examination, Berris’ bill would be about $2,300. Shimko acknowledged in the email that both agreed the scope of representation was only through the EUO. But he outlined the terms he would agree to if he were to handle the entire insurance claim, should Berris request that.

Shimko represented Berris at the EUO and the next day sent Berris a bill for $4,350. He concluded the bill with the statement: “If you require any further services in the future, it would be my privilege to represent you.”

Client Disputes Bill 

Berris wrote Shimko stating he was satisfied with the representation, but not the bill, which included a $154 charge for the initial phone call, a $539 charge for the email in which Shimko provided his estimated fees, and the addition of a 1.5% interest-per-month fee for any unpaid balance. Berris told Shimko he would pay $3,300 in monthly $500 installments without interest or penalty. He enclosed a $500 payment and made monthly payments until $3,300 was paid.

Shimko rejected the compromise and threatened to place a lien on Berris’ property to collect the rest of the money. In January 2016, Shimko filed a lawsuit in Cuyahoga County Common Pleas Court to collect the remaining fee. Berris hired an attorney to defend him, and that attorney asked Shimko to dismiss the case.

Shimko responded to the attorney by threatening to disclose confidential information Berris allegedly conveyed to him regarding the insurance matter. He told the attorney he may soon file a motion for summary judgment, a public record, which would state that he had to spend more time on the Berris case than estimated because of untruthful statements Berris made at the EUO.

The trial court found that Shimko spent a reasonable amount of time on the case and that his fee was justified. The court did exclude the $154 charge for the phone call, the $539 for the email, and the 1.5% interest rate charge.

Disciplinary Counsel Seeks Sanction

Based on Shimko’s handling of the matter, the disciplinary counsel charged him with violating several rules of professional conduct, including charging an excessive fee, using information from a former client to the disadvantage of the client, and engaging in conduct that adversely reflects on Shimko’s fitness to practice law.

Shimko challenged the charges, and a three-member panel of the board hearing the matter recommended a two-year suspension with one year stayed. The full board adopted the panel’s findings but recommended the Court impose the sanction requested by the disciplinary counsel—a two-year suspension with no stay. Shimko opposed the recommendation, arguing he deserved no penalty for his actions, and raised seven objections to the Court regarding the board’s handling of the matter.

The Court overruled all of Shimko’s objections, finding that there was no proof Berris committed fraud when he filed his insurance claim, and that Shimko could not provide any reasonable justification for disclosing confidential information he gained when representing Berris.

Court Calls for Greater Sanction

When considering  a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The opinion noted that Shimko has been disciplined twice before, acted with a selfish motive, and committed multiple rule violations. It found no mitigating factors.

The Court noted the hearing panel’s finding that, driven “by pure greed, and a hardwired, vindictive personality,” Shimko “sought to blackmail Berris by threatening to sabotage Berris’ claim against Allstate unless Berris paid his full fee.” In addition, the Court agreed with the panel’s assessment that Shimko exhibited a “confrontational and evasive attitude throughout the disciplinary proceedings.”

The Court indefinitely suspended Shimko from the practice of law and stated that should he petition for reinstatement he must “establish by clear and convincing evidence that he possesses the requisite mental, educational, and moral qualifications and is a proper person to be readmitted to the practice of law in Ohio.”

2018-1438Disciplinary Counsel v. ShimkoSlip Opinion No. 2019-Ohio-2881.

Video camera icon View oral argument video of this case.

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

Wednesday, July 17, 2019

Court Mixes Sports Metaphors

A decision of the Maryland Court of Appeals imposes a 60-day suspension for misconduct in responding to the bar complaint.

The court majority rejected findings of client-related violations save for securing a release from the bar complaint but found false statements to Bar Counsel. 

The court opens with a reference to a court of another sort

The phrase “no harm, no foul” derives from the idea that, if a foul committed in a basketball game does not affect the outcome, the referee should not call the foul. It denotes harmless error in a sports context. The rules of professional conduct governing attorneys do not allow us to adopt that approach. Many of those rules are prophylactic in nature. We must call a foul when one is committed, although the severity of the harm – or a lack of harm – may affect the sanction.

The foul

there is no dispute that Mr. Singh made use of the release shortly after it was executed in an effort to truncate Bar Counsel’s investigation of Mr. A’s complaint. Critically, there is no dispute that Mr. Singh failed to advise Mr. A, then or later, in writing or orally, that it was advisable for him to seek independent legal counsel in connection with a release of liability.

Unproven

The hearing judge did not find clear and convincing evidence that Mr. Singh violated Rule 1.1 (competence), Rule 1.2 (scope of representation), or Rule 1.9 (duties to former clients). Although we are not precluded from reaching different conclusions from those of the hearing judge, Bar Counsel has not excepted to the hearing judge’s conclusions concerning these alleged violations and we will not further address them.

The release violated Rule 1.8(h).

But the attorney also made false representations in reponding to the complaint. 

Rule 8.1 - yes; Rule 8.4(d) - no.

The hearing judge concluded that Mr. Singh had violated both of these subsections of Rule 8.4 apparently on the ground that any violation of Rule 8.1(a) (false statement to Bar Counsel) also violates those provisions, without further elaboration. We agree with the general proposition that a violation of Rule 8.1(a) also violates Rule 8.4(c) as a knowingly false statement to Bar Counsel qualifies as at least conduct involving misrepresentation. We decline to make the same equation with Rule 8.4(d) in all cases.

For sanction we switch from basketball to football metaphors

Our rules do not prescribe specific sanctions for specific transgressions, unlike the rules of football – i.e., five yards for offsides, 15 yards for a personal foul, and so on. Judgment must be exercised.

Bar Counsel sought indefinite suspension

There is no question that any attempt to mislead Bar Counsel is a serious matter that warrants a sanction beyond a reprimand, regardless of whether the underlying violations caused any harm to clients. Mr. Singh’s testimony in the investigative deposition – and other attempts to distance himself from violations of the ethical rules – magnified the seriousness of this case. Nonetheless, the absence of client harm and certain other considerations lead us to locate this case at a different place than Lee and Brigerman on the continuum of sanctions for misconduct.

Despite the violations enumerated above, Mr. A benefitted from his attorney-client relationship with Mr. Singh in 2016. Mr. A not only had the results of Mr. Singh’s research concerning cyberstalking, but also apparently followed the course outlined by Mr. Singh to remove the conditions on his green card. He had the benefit of Mr. Singh’s review and edit of his statement concerning the abuse and Mr. Singh’s referral to the psychologist for an expedited report on the effects of that abuse. In the end, he paid Mr. Singh only a $150 consultation fee.

We also note the important nature of Mr. Singh’s practice. He serves clients of moderate means, like Mr. A, in Montgomery County in a practice largely devoted to immigration law. No Maryland county has more immigrants or a higher percentage of foreign born residents; nearly one-third of Montgomery County’s residents were born abroad. As noted earlier, immigrants, who may find themselves without counsel even when the stakes are highest, are a vulnerable class of client often at the margins of society.

If you listen to the oral argument, note that Bar Counsel pressed the fact that Respondent had an immigration practice and argued that the inherent vulnerability of immigration clients was an aggravating factor.

Interesting riposte to that contention. 

Judge Watts -joined by two colleagues - dissented.

I would either adopt Bar Counsel’s recommendation of an indefinite suspension or impose an indefinite suspension with the right to apply for reinstatement after sixty days. In sharp contrast to Bar Counsel’s recommendation, the Majority merely suspends Singh for sixty days. See Maj. Slip Op. at 39. I fear that a two-month suspension will not impress upon Singh and other lawyers the importance of not making false statements to Bar Counsel. Indeed, Singh’s misconduct is even more egregious than that of lawyers who lie to Bar Counsel in correspondence, such as letters or e-mails. Singh gave false testimony at a deposition, then gave false testimony at the hearing in this attorney discipline proceeding. A sixty-day suspension is not sufficient to protect the public and send the message that repeatedly lying under oath is not acceptable behavior for a member of the Bar of Maryland.

Oral argument video linked here. (Mike Frisch)

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

"Lawyers Are Made Not Born"

A stipulated sanction of a two-year suspension followed by two years of probation was accepted by the Arizona Presiding Disciplinary Judge for practice in violation of a suspension order.

The matter led to PDJ to wax philosophically. 

On April 19, 2019, Respondent moved for reconsideration and submitted a statement of mitigation. The circumstances described are undeserved and difficult.  They are a reminder that those who argue there are neat and easy solutions to every life problem may be well intentioned, but they are wrong. No one is free from falls, fractures, or failures. As difficult as these are, they do not excuse ethical misconduct, but they may help understand the failing...

Little suggests Respondent even acknowledges the misconduct, turned away from it, and would strive not to repeat it. In the Agreement, Respondent argues that she simply erred by not knowing when her suspension began, or when or how it would end. It is stated in both the Agreement she signed, and the proposed judgment attached to the Agreement. This is likely an ongoing rationalization that is also in her answer to the complaint.

There, she affirmatively argued that she was not engaged in the practice of law. Her positions are akin to the argument that it was just a misunderstanding. The admitted facts in the agreement prove the contrary. It evidences one avoiding a self confrontation. A serious admission with mitigation forms a foundation for the acceptance of agreements. These events had little to do with can’t and much to do with won’t. Whatever the cause of the self-deception, reform begins with living in the reality of one’s misconduct.

Respondent attempts to bolster her position by stating she may have found a calling helping the homeless. Pride in the proclamation of a not yet present calling, is not helpful to self-confrontation. It may set a goal through her present circumstances, but it is not mitigation. The sooner one is willing to own up realistically to one’s responsibility, the sooner that person will learn and change instead of churn and blame.

Callings may come through the circumstances of life. Some pleasant, some not. The question one should ask in any difficult circumstance is, “What did I learn from this?” or “How has this changed me for the better?” This is important because it may allow even the misery of the experience to quiet the self and enables one to contemplate what actually occurred, what should be valued and, what should be done.

Attorney discipline does not have a purpose to punish the attorney. It seeks a change through that’s attorney’s deep reflection and honest assessment of what occurred. Here, that is remarkably absent. Desperation can lead to failings that often are the consequences of action without thought. Contrary to intuition, admitting the truth of that error can start the journey of living above one’s circumstances rather than under them.

Lawyers are made not born. Because they are human, they can ethically fail. Those who recover from their failing typically do so because they have become profoundly honest with themselves about their own weaknesses. That is where it begins. It is through honest confrontation with these weaknesses that experiences become agents for change to the good. That requires candor and honesty. It doesn’t just happen. Those who continue to fail cast a blind eye at themselves and allow whatever ethical weakness that drives them to control them.

The described circumstances of Respondent are harsh. None of those were self inflicted and that they are existent is not ignored. The Agreement would have likely been accepted had Respondent been candid regarding the facts of misconduct. The furnace of the circumstances of life can burn anyone. Only time can report if one will be overcome by the fire or forged into an overcomer. Time will report whether there is redemption or regret. While it is not a factor, this judge hopes the former occurs.

(Mike Frisch)

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

A Well-Earned Disbarment

An Arizona Hearing Panel disbarred an attorney who had previously been suspended for six months and, in a follow up matter, two years.

In three separate matters Mr. Rosen converted settlement funds owed to his clients. In another he accepted fees, failed to perform the contracted services and abandoned his client. In two Superior Court matters he engaged in the unauthorized practice of law after being suspended from the practice of law. In each of those matters he fraudulently and surreptitiously used the identity of two attorneys to file pleadings. In each matter he either failed to respond or failed to cooperate with the State Bar’s investigation. The hearing panel orders David K. Rosen disbarred from the practice of law.

It's an ugly tale of theft of settlement funds, practice after suspension and dishonest use of another attorney's name involving six counts

In August of 2018, Mr. Rosen surreptitiously used the identity of attorney Kimberly Abbell without her permission to file multiple pleadings in a Superior Court in Maricopa County, case CV2017-055518.

When notified of the filings with her signature by the opposing counsel, Ms. Abbell contacted Mr. Rosen.

Mr. Rosen admitted to using Abbell’s bar number and name without permission. He told her he did so because he was “in a bind.”

Ms. Abbell gave Mr. Rosen a deadline to address the issue and report back to her, but he never contacted her again.

He defaulted in the bar case. (Mike Frisch)

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

Raging Bull In ALL CAPS

A sanction of a six-month and a day suspension followed by two years probation was affirmed by the Arizona Supreme Court.

An attorney who is suspended for more than six months in Arizona must petition for reinstatement. 

Part of any reinstatement requires that

Mr. Wilson shall have completed the CLE titled “Zealous Advocate or Raging Bull? Overcoming Anger in the Legal Environment.”

Let's see why.

A couple had dissolved their relationship and reached a parenting agreement for their two children. One provision allowed each party to have the other submit to testing for alcohol use

The parties also stipulated this was such a major concern that a “suspected violation is a basis for modification of the custody parenting plan.”

Father was arrested for DUI. The kids were in the car. He retained respondent to defend the charges. 

Respondent sent misleading and threatening emails to Mother, leading her to consult with counsel as recounted in the hearing panel report

As summarized in the December 20, 2016 email to Mr. Wilson, on December 19, 2016, attorney Sharolynn Griffiths (Ms. Griffiths) contacted Mr. Wilson by phone on behalf of Ms. York. [Id. at Bates SBA009]. Ms. York was present for most of this phone call. Mr. Wilson knew that Griffiths was an attorney and acting on behalf of York. It was during this telephone conversation that Mr. Wilson intentionally misrepresented to Ms. Griffiths that Mr. Glick was already testing with Pretrial Services for drugs and alcohol as part of the original conditions of his release. [Id.]

Then

At 1:06 p.m., knowing Ms. York had an attorney representing her, Mr. Wilson directly emailed Ms. York threatening and intimidating her again. He intentionally did not copy Griffiths on the email., but instead concluded stating “I am aware you have consulted but not retained counsel.”

When Griffiths sought information about compliance with court testing in the DUI case

On December 21, 2016 at 1:32 p.m., Mr. Wilson sent a long, wildly unprofessional email to Ms. Griffiths. He intentionally communicated with Ms. York by copying her with his email to further his intimidation tactics. [Id. at Bates SBA010-12.] We find the email was unprincipled, threatening, and with no substantial legal or professional purpose except to bully. The rant included capitalized words, soon followed by capitalized sentences, then followed by capitalized sentences that were emboldened. He threatened that he had the power to direct the police to Ms. York’s house, with him present. In capitalized, emboldened print he threatened that he had the power and would,

I WILL PERSONALLY RESPOND WITH THE POLICE TO PURSUE CUSTODIAL INTERFERENCE CHARGES. . . . IF SHE FAILS TO DELIVER THE KIDS ON DECEMBER 25 AT 9AM AND FORCES ME TO COME TO HER HOUSE WITH POLICE, MY LEGAL FEES FOR A CHRISTMAS DAY RESPONSE WILL BE QUITE HIGH, AND AS THIS WARNING COMES 4 DAYS IN ADVANCE, ANY SUCH UNREASONABLE ACTIONS BY HER WILL INDEED RESULT IN HER PAYING THOSE FEES.

Mr. Wilson knew his threats and statements were contrary to the decree and we find them unethical. He acted in intentional disregard of the decree. 

Griffiths secured a sole custody court order and advised him 

At 5:33 p.m. that day, Mr. Wilson emailed Ms. Griffiths further clarifying his intentions and disregard. He asserted, “I will advise Mr. Glick of nothing. You have a court order? I know nothing of that. He postured that Griffiths was “beyond pretentiously ignorant.” He baselessly proclaimed that she had acted “in bad faith in a fraud on the court.” He emphasized that it is “really fun for me” to see lawyers such as Griffiths suspended. Mr. Wilson again intentionally communicated with Ms. York by copying her on his email to further his intimidation. [Id.] At 5:40 p.m., Ms. Griffiths emailed Mr. Wilson demanding he “…stop emailing and/or copying my client on correspondence.” [Id. at Bates SBA036-37.]

Father had the children and Griffiths sought their return to Mother

Mr. Wilson then crafted an email to Griffiths that stated, “AutomatedResponse: Message not delivered to recipient for the following reason(s): Address blocked by addressee.” [Id.] In fact it was not blocked at all.

He sought but failed to quash the order and made false representations.

The Court ultimately ordered Glick have supervised parenting time with the children one day a week and submit to testing before and after each parenting time sessions.

The hearing panel

Mr. Wilson knowingly, if not intentionally, sent unprofessional emails to both York and Griffiths. Mr. Wilson knowingly, if not intentionally copied York on his incessant emails despite knowing that she was represented by counsel. This was in disregard of the ethical rules and professionalism. His conduct had no substantial purpose other than to embarrass or burden York and Griffiths and we find caused actual harm to the profession. Ms. York testified at the aggravation/mitigation hearing that Mr. Wilson’s emails negatively affected her view of attorneys and she remains terrified, with good cause, because Mr. Wilson intended that result.

Dishonesty

Mr. Wilson misrepresented to Ms. Griffiths and Ms. York that Glick was testing with Pretrial Services. At best, he did not know. At worst, he was intentionally untruthful. Mr. Wilson intentionally misrepresented to Ms. Griffiths that her emails were automatically blocked when Mr. Wilson was receiving her emails and then manually writing a response that they had been automatically blocked. On December 21, 2016, Mr. Wilson emailed Griffiths and misrepresented that he did not know that York was her client. [Ex. 10, Bates SBA000036.] Mr. Wilson knew that, the day before, Griffiths told Mr. Wilson that she represented York on a limited basis. [Ex. 2, Bates SBA000009-10.] Further, the circumstances  of his own “courtesy,” non-retained status makes his position not credible and convincingly establishes his knowledge that York was being assisted by an attorney.

(Mike Frisch)

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

Tuesday, July 16, 2019

Ignorance No Defense In British Columbia

The Law Society of British Columbia Hearing Panel rejected ignorance of ethical obligations as a defense to the rule violations of having the client (a now-deceased close friend of his mother) name him a beneficiary in her will and accepting gifts without independent advice

But the Respondent contends that these two breaches do not constitute professional misconduct.  The crux of his argument is that, during the time period in question, he was unaware of the prohibitions in rules 3.4-39 and 3.4-38, which had only come into force as part of the new BC Code on January 1, 2013.  He says that his actions would not have constituted professional misconduct under the rules previously in force, and that lawyers should be entitled to a reasonable amount of time to gain familiarity with new Law Society requirements.

For the reasons set out below, we do not accept the Respondent’s argument, and we conclude that the Law Society has met its onus of proving professional misconduct with respect to both of the allegations in the Citation.

He was admitted in 1991.

The background

JB was born on July 10, 1929 and died on January 21, 2016.  The Respondent’s mother was her very close friend for many years, and since childhood the Respondent and his sister had viewed JB as their aunt.  JB attended their extracurricular events and supported their endeavours.

In late 2012, JB fell in her home.  She was a large woman, weighing about 300 pounds, and the injuries from the fall reduced her mobility and resulted in her staying in Lions Gate Hospital in North Vancouver for a number of months, at which point she moved to a care centre in West Vancouver.

The Respondent did not learn of JB’s predicament until June 2013, when she called him expressing unhappiness with her situation at the care centre.  He provided JB with a great deal of assistance in the months that followed, often to her benefit and enjoyment.  During much of this period, the Respondent and his firm also acted as JB’s lawyer in a number of matters, including preparing a power of attorney, drafting a new will, representing her in a divorce and handling the conveyance of her house.

The offending will was drafted by a junior lawyer in his firm

while the Respondent discussed the conflict of interest issue with another lawyer, that other lawyer, Mr. de Vries, was a very junior associate who reported directly to the Respondent.  The Respondent did not consult with the senior counsel at Sager LLP who was particularly experienced in estate matters, or with any other senior lawyer in the firm.  Nor did he seek advice from a Law Society practice advisor, a bencher or a senior and respected colleague from another firm.  It is worth adding that the Respondent raised the conflict issue with Mr. de Vries only after JB had arrived at the office to discuss the will, which would have placed some pressure on Mr. de Vries, as a junior lawyer, to agree to act for JB.

As to the gifts

We agree that the Respondent’s acceptance of the gift of $75,000 from JB in July 2014 breached rule 3.4-39.  The gift was more than nominal, and JB was the Respondent’s client at the time.  In fact, the gift was made on the same day as Sager LLP issued JB an account for fees and disbursements incurred in connection with the sale of the house, and the Respondent was still acting for JB regarding her divorce.  JB did not receive independent legal advice before making this gift.

By contrast, the gift of $25,000 was made in December 2015, 13 months after the last account rendered to JB by Sager LLP, and 15 months after the last legal service provided to her by the Respondent or any member of his firm.  The fact that the Respondent and members of his firm had provided various legal services to JB over a year before does not establish that they were still in a solicitor-client relationship when JB made her gift to the Respondent in December 2015.  There is no evidence of a continuing retainer.  The Respondent’s continued association with JB is explained by virtue of his relationship with her as a long-standing family friend whom he viewed as an aunt.

Given these circumstances, we find that the Law Society has not met its burden of establishing that JB was the Respondent’s client when the second gift was made.  Accordingly, his acceptance of the gift from JB in December 2015 did not breach rule 3.4-39.

As to the claim of ignorance

for many years prior to the BC Code coming into force, the Canadian Bar Association Code of Professional Conduct (the “CBA Code”) has prohibited a lawyer from preparing an instrument giving a lawyer or associate a substantial gift from the client, including a testamentary gift (Chapter VI, Conflict of Interest Between Lawyer and Client).  While never governing the conduct of lawyers in this province, until recently the CBA Code was often looked to by lawyers for additional guidance on ethical matters.  The long-standing CBA Code provision addressing testamentary gifts to a lawyer is therefore some indication that rule 3.4-38 of the BC Code, which is similar in nature albeit not exactly the same, did not create an ethical obligation that was previously completely alien to lawyers in this province.  In the same vein, see our comments at paragraph 151 below, as well as Lawyers and Ethics: Professional Responsibility and Discipline, §22.3, as it read in 2012, at p. 22-13 (now p. 22-11), noting that lawyers who have drafted wills in which the lawyer is named as beneficiary without at least insisting that the client obtain independent legal advice have been found guilty of professional misconduct (citing unreported Ontario disciplinary decisions from 1985 and 1991)

And becoming a beneficiary

 the seriousness of the conflict that arises when a lawyer is asked to prepare a will in which the lawyer is to receive a substantial benefit is patently obvious.  The lawyer is in a fiduciary relationship with the client and must be unremittingly loyal to the client’s best interests (rule 3.4-1, Commentary 5, BC CodeR. v. Neil2002 SCC 70 (CanLII)[2002] 3 SCR 631 at paras. 16, 25-26).  This duty of loyalty is necessarily threatened where a lawyer is to be a beneficiary in a will that the lawyer is tasked with preparing for the client.  There is a real possibility that the lawyer’s duty to act as the client’s loyal adviser will be negatively impacted by the lawyer’s own interest in obtaining a benefit under the will.  This concern is particularly acute where the client is elderly and infirm, and thus vulnerable, which we find as a fact was the case with JB.  Even where the lawyer does not act improperly, the mere spectre of undue influence may cause harm to the client’s best interests by triggering a challenge to the will or causing disharmony in the client’s family.  The risk of such harm is particularly acute where the introduction of the lawyer as beneficiary concomitantly works to reduce or eliminate the share of the estate left to other family members under a previous will.

The findings and conclusions do not designate the sanction, which presumably will be addressed in a subsequent order. (Mike Frisch)

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

When A Parent/Lawyer Helps A Criminally-Charged Child

An attorney whose son was charged with first degree murder was publicly censured by the Tennessee Board of Professional Responsibility for failing to advise law enforcement when he appeared at her home on the afternoon that the charges were filed. 

She had been charged as an accessory after the fact and pled guilty to a misdemeanor charge of contempt of court.

Memphis Flyer reported

A Shelby County attorney was censured by state officials Tuesday for harboring her son after he murdered a man during a drug deal in 2016. 

According to WMC, 17-year-old Sebastian Vaughn was indicted on a first-degree murder charge in 2017 for killing Marlo Williams at a Memphis IHOP in June 2016. Vaughn, who attended Bartlett High School, told investigators he shot Williams, 35, with a sawed-off shotgun in the front seat of the victim's car during a dispute during a drug deal at the Sycamore View Road IHOP. 

WMC reported also that Vaughn took a photo of the victim at the time and sent it in a message friends with the caption, "I just killed a Mfer 10 minutes ago."

Vaughn to [sic] pleaded guilty to voluntary manslaughter in February and will be required to serve at least 45 percent of a 15-year prison sentence, according to WMC

Several years ago, the Maryland Court of Appeals disbarred an attorney who assisted his son's flight to Israel in the face of murder charges.

By assisting his son in the egregious manner that he did, respondent essentially interfered with the natural progression of the criminal justice system.   Instead of Detective Hamill completing a full investigation of respondent's son, turning the case over to the Montgomery County State's Attorney's Office for consideration of prosecution and, if prosecuted, ultimately having a jury of respondent's son's peers decide Samuel Sheinbein's fate, respondent effectively usurped the role of twelve Maryland citizens and substituted it with his own paternal instincts.   Respondent made it impossible for the justice system to work.   A jury of his peers may have believed that Samuel Sheinbein acted in self defense and might have rendered a verdict of not guilty.   As a direct consequence of the actions of the respondent, we will never know how the Maryland criminal justice system would have treated Samuel Sheinbein.   This is inappropriate.

...This is not a case of this Court passing moral or criminal judgment on a father for trying to protect his youngest son, nor is it the Court punishing a surrogate for a crime where the accused has escaped the reach of Maryland's law.   In fact, respondent is currently beyond the reach of the state's jurisdiction.   It is merely the process by which this Court protects the public from attorneys whose actions fly in the face of their legal obligations to the public and to their own profession.   We shall disbar respondent.

There was a dissent

the majority...finds respondent's actions to be “so appalling” and “egregious” that his conduct is prejudicial to the administration of justice in violation of MRPC 8.4(d).   In fact, the extreme language and tone of the majority opinion might lead a reader to conclude that the respondent was the one who committed the homicide.   Despite the majority's characterizations of the respondent's conduct, I do not believe that his conduct, when viewed separately from the underlying crime committed by his son, constitutes misconduct by a criminal act under MRPC 8.4(b) or conduct prejudicial to the administration of justice under MRPC 8.4(d).

Bethesda Magazine tells the story and updated the Sheinbein case in 2014.

Samuel Sheinbein was two-thirds of the way through a 24-year sentence for murder and was eligible for parole when he died in a shootout with Israeli prison guards and police on Feb. 23.

It was a strange ending to one of the most gruesome crimes in Montgomery County history—the 1997 killing and dismemberment of Alfredo “Freddy” Tello Jr. of Silver Spring, events police quickly tied to Sheinbein and his friend Aaron Needle, both 17 at the time.

Needle hanged himself in a Montgomery County jail cell shortly before his trial was to begin in April 1998. But earlier, Sheinbein had fled with the help of his father to Israel, where he eventually pleaded guilty and was sentenced as a minor.

Now at 33, Sheinbein is dead, too, in what Montgomery County State’s Attorney John McCarthy calls “death by cop.” The last chapter in a bizarre and disturbing crime appears to be over. But there’s no comfort in that ending.

“At the end of the day,” says McCarthy, who was originally assigned to the case, “three young men are dead.”

(Mike Frisch)

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

Monday, July 15, 2019

Apples And Oranges, Utah And New Jersey

In line with the preceding post, a reciprocal discipline opinion where a short suspension had been imposed in Utah for misappropriation is summarized in this headnote from the New Jersey Supreme Court

In this ethics proceeding, the Court considers whether Joseph Peter Barrett, an attorney who received a 150-day suspension for knowing misappropriation of law firm funds in Utah -- a jurisdiction that applies a preponderance of the evidence standard and recognizes no business dispute defense -- may, based only on the Utah record, be disbarred under New Jersey’s clear and convincing evidence standard.

In two separate law firm matters in Utah, respondent traded legal fees earned for his law firm for construction work performed at his home in Utah. In disciplinary proceedings in Utah, respondent, in order to explain and justify his conduct, sought to testify about a business dispute he had with his law firm. The court determined the evidence was relevant only to the motive and credibility of testifying law firm partners.

At the hearing’s conclusion, the Utah judge found by a preponderance of the evidence that respondent had knowingly misappropriated law firm funds and imposed a 150-day suspension from the practice of law. The Utah Supreme Court affirmed the 150-day suspension. In re Discipline of Barrett, 391 P.3d 1031, 1037-38 (Utah 2017).

Following entry of the Utah order, the New Jersey Office of Attorney Ethics (OAE) moved before the Disciplinary Review Board (DRB) for reciprocal discipline and requested respondent’s disbarment. Relying on In re Siegel, 133 N.J. 162, 170 (1993), the DRB recommended disbarment. The Court dismissed without prejudice the OAE’s motion for reciprocal discipline, noting that “the findings of the tribunal in Utah were based on a preponderance of the evidence standard instead of the clear and convincing standard applicable to New Jersey disciplinary proceedings.” 234 N.J. 81, 82 (2018). The OAE filed a motion for reconsideration, which the Court granted. ___ N.J. ___ (2018).

HELD: Because the Utah court limited the presentation of evidence of a business dispute between respondent and the law firm, and because evidence that may exist in Utah cannot be compelled by respondent here, the Court cannot conclude that the OAE has proven by clear and convincing evidence that respondent knowingly misappropriated law firm funds under circumstances justifying greater discipline than that imposed in Utah.

  1. In reciprocal discipline cases, the Court should impose the same discipline as the foreign jurisdiction unless the matter is within one of five enumerated exceptions. One of the exceptions is germane to this case -- that “the unethical conduct established warrants substantially different discipline.” R. 1:20-14(a)(4)(E). To “argue that the law of this state or the facts of the case do or should warrant the imposition of greater discipline than that imposed in [the] other jurisdiction[],” the Director of the OAE must “establish[] such contentions by clear and convincing evidence.” Id. § 14(a)(4). (pp. 5-6)
  2. When a New Jersey attorney misappropriates law firm funds, the facts and circumstances of the particular case determine the sanctions warranted, up to and including disbarment. See Siegel, 133 N.J. at 170 (“[K]nowingly misappropriating funds -- whether from a client or from one’s partners -- will generally result in disbarment.” (emphasis added)); see also In re Sigman, 220 N.J. 141, 158 (2014) (explaining that Siegel’s holding “is not, and has never been, absolute” and that “[t]he Court has recognized in other settings that there are cases that warrant discipline short of disbarment”). (pp. 6-7)
  3. The only evidence produced by the OAE in support of sanctions greater than a 150- day suspension is the record of proceedings before the Utah court. Importantly, in New Jersey disciplinary proceedings, evidence of a business dispute may be a defense to the misappropriation of law firm funds. Utah has no such business dispute defense, the Utah record lacks facts necessary to establish a business dispute defense, and evidence of the existence of a business dispute would be integral, in New Jersey, to defending against a charge of knowing misappropriation of law firm funds. In Utah, respondent’s incentive to produce evidence of a business dispute was far different than what his motivation to produce such evidence in New Jersey would have been. (pp. 7-8)
  4. Respondent claims that if permitted and motivated to do so, he could have produced additional evidence of a business dispute in Utah. Any such evidence that may have been available during the Utah proceedings remains in Utah, outside of respondent’s and the OAE’s reach. It would therefore be fundamentally unfair and contrary to established rules to disbar respondent in New Jersey -- a greater discipline than that imposed in Utah -- based only upon the record of proceedings in Utah. (pp. 8-10)

The Court imposes a 150-day retroactive suspension of respondent’s license to practice law in New Jersey.

The misconduct found in Utah

In two separate law firm matters handled by respondent while engaged in the practice of law in Utah, respondent traded legal fees earned for his law firm in exchange for construction work performed at his home in Utah; he did so without the knowledge or consent of his law firm and in violation of his law firm’s employment contract. Respondent’s actions deprived his law firm of more than $20,000 in legal fees.

(Mike Frisch)

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

A Second Bite Reduces Three-Year Suspension To Reprimand

Reciprocal discipline - a sanction ordered in response to the discipline imposed by another tribunal - is grounded in principles of collateral estoppel.

An attorney is entitled to one fair bite at the apple and - as a general proposition - is not permitted to relitigate the original case or go beyond the record created in the disciplining jurisdiction. 

As the District of Columbia Court of Appeals noted

The rationale behind the use of a more rigid standard in reciprocal discipline cases is plain. First, another jurisdiction has already afforded the attorney a disciplinary procedure that includes notice, an opportunity to be heard, sufficient proof of misconduct, and a determined sanction. There is no need for a de novo repetition of the entire process, and the burden of persuasion is reversed. Second, there is merit in the idea of granting due deference for its sake alone to the opinions and actions of a sister jurisdiction with respect to attorneys over whom we share supervisory authority.

Put another way, in dealing with proceedings involving our jurisdiction alone, we concern ourselves with inconsistent dispositions of cases involving comparable conduct by different attorneys. In a reciprocal discipline proceeding, we also must factor in the effect of an inconsistent disposition involving identical conduct by the same attorney.

As usual, New Jersey is unusual. 

A Disciplinary Review Board report tells the tale of the process that unfolded

following the Supreme Court of Florida’s March 9, 2017 imposition of a three-year suspension, retroactive to June 16, 2016, the effective date of respondent’s suspension for contempt of court, by failing to comply with a subpoena issued by The Florida Bar. The three-year suspension was based on respondent’s conditional guilty plea for consent judgment in which she admitted having violated [a number of Florida Rules]...

The New York Appellate Division for the Second Judicial Department imposed the three-year suspension.

The New Jersey Office of Attorney Ethics sought a reciprocal reprimand or censure.

Respondent had been a paralegal for a lawyer who got disbarred. She took over the case of an incarcerated client with a wrongful death claim.

At the time of Carrasquillo’s request, respondent was a member of the New York bar. Although she had taken and passed the Florida bar examination, she had not yet been admitted to practice law in that state.

She was admitted pro hac vice.

The claim settled and disbursement was complicated by the client's incarceration. She kept proceeds in escrow but lost touch with the client, who complained to the Florida Bar.

In late 2015, Carrasquillo again complained that he had lost contact with respondent and that he "had no idea about his money." When The Florida Bar asked respondent to reply to Carrasquillo’s allegations, she first stated that his funds were in her New York trust account, but that she would be transferring the monies to the Florida trust account. She then stated that the funds would remain in the New York trust account.

She defaulted on the Bar complaint but appeared and consented to the sanction

At the hearing, respondent acknowledged that she had failed to provide The Florida Bar with the New York trust account information. According to respondent, she was uncertain whether she could disclose information pertaining to her New York clients.

In New Jersey

In this proceeding, respondent’s affidavit provides additional facts about her background, her conduct vis-i-vis Carrasquillo and The Florida Bar, and in mitigation.

...In short, respondent asserts that her misconduct "was the result of mental health issues" for which she is now seeking treatment. Thus, the communication breakdown, on her part, was due to "worsening depression and anxiety."

The details underlying respondent’s mental health issues are scant, but serious. Specifically, in 2012, she had a falling out with a business partner, who "cut off [her] ability to earn a living." At about the same time, respondent ended her relationship with her fiance. Both events resulted in two protracted lawsuits, one involving the home that she owned and in which she lived According to respondent, "the above-described incidents" caused her depression and anxiety.

The board considered her treatment and general good character.

As to the misconduct

Here, respondent violated RPC 1.8(a) when she accepted Carrasquillo’s offer to permit her to borrow funds that she held in trust for him, but made no effort to ensure that the transaction and terms were "fair and reasonable" to Carrasquillo, by fully disclosing the terms to him, in writing, in a manner that he could understand; and advising him to seek counsel, providing him with a reasonable opportunity to do so, and, ultimately, obtaining his consent to the loan in writing.

Notably, that violation was not one found in Florida.

The board rejected some of the Florida misconduct conclusions

The record, however, does not contain clear and convincing evidence that respondent violated RPC 1.2(a) or RPC 8.4(c). RPC 1.2(a) pertains to a client’s decisions concerning the scope and objectives of the representation...

Although respondent admitted and was found guilty of violating RPC 8.4(c), we cannot ascertain the facts on which the violation was based. In our view, the record does not clearly and convincingly establish that she acted dishonestly, fraudulently, deceptively, or that she made a misrepresentation.

In the Garden State

Although respondent may have suffered from depression and anxiety at the time of her misconduct, no evidence links her mental health issues to her misconduct vis-a-vis her use of Carrasquillo’s funds. Her affidavit is not clear in respect of when she sought treatment from her primary care physician in Florida, although it would appear to have been sometime in 2013. Moreover, Dr. Karpas did not know respondent at the time of her misconduct, and his letter does not link that misconduct to her mental anxiety and depression. Although respondent’s remorse and her efforts to rehabilitate herself are admirable, in our view, the mitigation is insufficient to reduce the reprimand to an admonition.

So it is proposed so shall it be

I handled a reciprocal discipline matter from Florida where the attorney had consented to resignation  at an early stage, failed to notify the District of Columbia and claimed insufficiency of the evidence when the Florida Bar brought the action to our attention eight years later.

She had been practicing in federal matters from a Florida office on the strength of her D.C. license.

I well remember the oral argument before the DC BPR, which allowed her high profile counsel to harangue endlessly and repetitively about the unfairness of it all well past his allotted time. 

The court was not sympathetic to her claims.

Day argues that because the Florida resignation procedure did not result in any adjudication of wrongdoing or findings of fact, and did not require any admission of wrongdoing, there is an infirmity of proof establishing the misconduct for which she would be disciplined on a reciprocal basis.   This is merely another attack on the imposition of reciprocal discipline based on the Florida resignation procedure, which we have rejected.   We further agree with the Board that Day should be estopped from arguing in these proceedings that there was an infirmity of proof that should serve as the basis for avoiding reciprocal discipline here.   It was Day's choice to permanently resign from the Florida bar that effectively ended the Florida investigation.   As a result, the Florida Bar discarded the files, making investigation of the matter difficult.   Furthermore, because Day never reported her resignation in Florida to this jurisdiction as she was required,  Bar Counsel did not have the opportunity to investigate her claims in a timely manner and has been severely prejudiced by the delay.

The United States Supreme Court denied her cert petition. (Mike Frisch)

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

Sunday, July 14, 2019

Using Bar Discipline As A Offensive Weapon

A bar discipline case initiated by opposing counsel has led to a reprimand by the New Jersey Supreme Court.

Lockheed Martin was the defendant in a toxic tort claim. 

The bar complaint was filed after the issue of whether plaintiff's counsel had a written retainer was raised in the client's deposition. 

The attorney provided a back-dated agreement. There was never any question about the actual fees charged. 

The Disciplinary Review Board tells the story

Respondent asserted that Lockheed’s counsel had filed the ethics grievance for strategic reasons, after a two-year delay, at a time when residents of Moorestown were publicly considering commencing additional lawsuits against Lockheed. She added that it was never her intention to mislead anyone or commit misconduct by producing the Winkler fee agreement, and that, in hindsight, adversaries she should have made clear to the District Court and to her that the Winkler agreement she produced was a "recreated" document. Respondent conceded that it was possible that she had not provided the Winklers with a fee agreement when she commenced their representation, but also emphasized that she had never sought the payment of any attorneys’ fees from the Winklers or Leeses.

In respect of mitigation, respondent and the DEC entered into a joint stipulation of facts, which provided that the Winklers were satisfied with respondent’s representation in the Leese Action and "were not harmed by any act or omission" of respondent; respondent never charged the Winklers a fee for her representation; Jay Winkler "does not recall" signing a fee agreement at his initial meeting with respondent, but agreed ultimately signed accurately set forth the terms that the fee agreement he of the fee arrangement he accepted from the outset; and respondent has no prior discipline.

Misconduct

Here, respondent misrepresented to both the District Court and Lockheed, during litigation, that she was producing the original Winkler fee agreement in support of the plaintiff’s demand for attorneys’ fees. She either was rectifying her failure to provide her client with a fee agreement, as RPC 1.5(b) and (c) require, or was producing a facsimile of the original fee agreement. In either event, she should have acted with candor and transparency to the tribunal and her adversaries. Worse, she enlisted her client, Jay Winkler, in perpetrating the deception. Had she simply been forthcoming with the truth, she might not have faced any ethics charges. By behaving deceitfully, she ensured that the cover-up was worse than the crime. On balance, given her lack of prior discipline and the absence of harm to the client, we determine that a reprimand is sufficient discipline to protect the public and deter such misconduct.

It is not clear to me from the DRB opinion if defense counsel relied on the duty to report

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

It is clear to me that a supposed duty to report here stands on very shaky ground.

I am entirely sympathetic to the claim that this complaint - even if it revealed a technical violation - was an all-to-common abuse of the bar discipline process by corporate defense counsel. (Mike Frisch)

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

"I'm Gonna Kill You"

The Illinois Administrator has filed charges alleging that an attorney converted funds of an estate.

The complaint describes an alleged course of conduct that led to the attorney's escrow account being frozen.

At no time did Respondent have authority to use any unearned portion of the proceeds from the law division matter for his own personal or business use.

As of October 31, 2017, Respondent had used at least $74,707.34 of the proceeds belonging to the Wellington estate for his own business or personal purposes.

By using proceeds belonging to the Wellington estate without authority, Respondent engaged in the conversion of those funds.

Then

On May 9, 2018, upset that his IOLTA account had been frozen and the $23,215.05 in remaining proceeds turned over to the estate, Respondent called Grant Blumenthal, counsel for the independent successor administrator's cellphone and left the following voicemail:

Grant, this is Kevin Duckworth. You have one hour, one hour. If you don't uh…[unintelligible] emails and key at Bank of America. And, um, Bank of America. You will have one hour. One hour. Bank of America…[unintelligible] plus interest.

Also on May 9, 2018, Respondent appeared at the office of Alan Rhine, counsel for defendant Irfan Sheikh in the law division matter. Upon being greeted by Rhine in the waiting room, Respondent grabbed Rhine by his tie and demanded that Rhine give Respondent his money. Rhine, who had no involvement in the probate court's freezing of Respondent's IOLTA account and the removal of the account's remaining funds, was able to free himself and call the police, but did not press charges.

On May 10, 2018, Respondent, with the intent to abuse, threaten and harass Blumenthal, called a number he knew belonged to Blumenthal and left the following voicemail:

Grant, you're playing games. I called you yesterday, and I told you if I don't get my money today by noon, I'm gonna kill you. You're full of shit. Call me back.

On May 14, 2018, in response to the threats he received from Respondent, Blumenthal filed a petition for stalking no contact order in the Circuit Court of Cook County, Domestic Relations Division. The Clerk of the Court docketed that matter as Blumenthal v. Duckworth, 18 OP 73557. Judge Judith Rice presided over that matter.

On June 25, 2018, during a hearing for Blumenthal's petition for sanctions and fee petitions in the Henderson probate matter, 13 P 2677, Respondent appeared, purportedly on behalf of the estate. During that hearing, the following exchanges took place between the Court, Blumenthal, and Respondent:

THE COURT: Let's wait for the other attorney. Could I have everybody state their name for the record.

MR. DUCKWORTH: Kevin Duckworth.

MR. BLUMENTHAL: Representing?

THE COURT: Who do you represent in this case?

MR. DUCKWORTH: Kevin Duckworth.

THE COURT: Who do you represent in this case?

MR. DUCKWORTH: The estate, Wellington—Wellington Henderson.

THE COURT: Okay. You are the former attorney for Rita Henderson.

MR. DUCKWORTH: Well, that's—let me—you—I don't know it. You—you have—you have an opinion is [sic] different. Your opinion is different.

THE COURT: Okay. Well, my orders are different.

MR. DUCKWORTH: Judge, I disagree. And I'm a little pissed.

THE COURT: You can't use that language here in this courtroom. You're a professional.

MR. DUCKWORTH: Yes, I know.

MR. DUCKWORTH: We already—we already got court—we already got court on the—we're going to be in court already on the 12th.

MR. BLUMENTHAL: All right. I would rather get it done --

MR. DUCKWORTH: Let's go to August.

MR. BLUMENTHAL: -- get it done even earlier, Judge. It will take me seven days.

MR. DUCKWORTH: I'm going to kill him. I'm going to kill him. So August—August fine with me. I got the—I got the papers. I got the papers.

THE COURT: That conduct is unacceptable.

MR. DUCKWORTH: Okay. I know.

On July 12, 2018, Judge Rice entered an interim no contact order against Respondent in matter number 18 OP 73557, prohibiting Respondent from stalking or otherwise having any contact with Blumenthal.

On November 2, 2018, Judge Rice entered a plenary no contact order against Respondent in matter number 18 OP 73557, prohibiting Respondent from stalking or otherwise having any contact with Blumenthal for a period of two years.

On November 30, 2018, attorney Anthony Schumann ("Schumann") filed on behalf of Respondent a motion to vacate the court's November 2, 2018 no contact order in matter number 18 OP 73557.

On December 20, 2018, the court vacated its November 2, 2018 plenary order and reinstated the July 12, 2018 interim order in matter number 18 OP 73557.

Matter number 18 OP 73557 is stilling pending at the time this complaint was filed.

(Mike Frisch)

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

Attorney Admits Conversion And Dishonesty

An Illinois attorney has filed a motion for disbarment by consent admitting conversion of over $200,000 of entrusted funds. 

From the stipulation

Between January 13, 2017 and February 20, 2017, Movant applied for loans on behalf of his clients Alivia Greenfield, Margaret Sala, and James Repp from a litigation funding company known as Plaintiff Support Services that provides pre-settlement and post-settlement loans to plaintiffs in personal injury lawsuit. Movant signed each client’s name to documents in their respective loan applications, including a credit and information release, an irrevocable letter of direction, an installment deferment agreement, and a promissory note, without their knowledge or consent. Movant also notarized Greenfield, Sala, and Repp’s purported signatures on those documents.

On February 7, 2017, Movant received Plaintiff Support Services’ loan check in the amount of $20,000 made payable solely to Alivia Greenfield, and Plaintiff Support Services’ loan check in the amount of $12,000 made payable solely to Margaret Sala. On February 21, 2017, Movant received Plaintiff Support Services’ check in the amount of $15,000 and made payable solely to James Repp. Movant endorsed Greenfield, Sala, and Repp’s names on the back of each respective check, without the clients’ knowledge or consent, and he deposited each check into his operating account. Movant then used the proceeds from each check he received from Plaintiff Support Services for his own business and personal purposes, and not directly for payment of costs associated with Greenfield, Sala, or Repp’s personal injury claims.

Although as of the date of this petition Plaintiff Support Services had not attempted to collect payment of the loans from Greenfield, Sala, or Repp, those clients remain responsible for repayment of the loans pursuant to the promissory notes Movant signed. As of June 20, 2019, the amount due to Plaintiff Support Services in relation to the loan Movant took out in Greenfield’s name, including interest, was $49,196.65, the amount due on the loan Movant in Sala’s name, including interest, was $29,033.00, and the amount due in relation to the loan Movant took out in Repp’s name, including interest, was $35,935.87.

(Mike Frisch)

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

Saturday, July 13, 2019

A Marked Departure

The Law Society of British Columbia Hearing Panel found misconduct in a threatening communication in an adoption matter.

The conduct at issue in this case arose during the Respondent’s representation of the foster parents of a child of Métis heritage who retained him after the Director of Child, Family and Community Services (the “Director”) refused to consent to the foster parents’ adoption of SS.  What followed was difficult and protracted litigation during which the Respondent wrote to counsel for the Director to make a proposal that, if accepted would secure a settlement of the dispute in favour of the foster parents.  The Respondent’s decision to send the letter and whether it constituted an improper threat for an improper purpose is the focus of the citation that was authorized on April 5, 2018 and issued on April 17, 2018.

The communication

We note that the Letter sets out the following, in the order in which they occur in the Letter:

(a)        “[Social worker 1] has lied in her Court of Appeal affidavit”;

(b)        The Respondent has reviewed the Official Transcript and points to specific instances where [social worker 2] used the terms “mommy” and “daddy” in referring to the Ontario Adults.  This is inconsistent with the sworn affidavit of [social worker 1] in which she says [social worker 2] did not use these terms;

(c)        The Respondent, in referring to the Official Transcript, then refers to [social worker 1] using the terms “mommy” and “daddy” with regard to the Ontario Adults.  This is inconsistent with [social worker 1’s] sworn affidavit.

(d)      “[Social worker 3] also clearly misled the Court of Appeal in her August 8, 2016 affidavit”;

(e)        “I also note that [social worker 2] also swore a false Affidavit on August 23, 2016 in the proceeding initiated by the Birth Parents”;

(f)         “Given the foregoing evidence of perjury by 3 social workers …”;

(g)        “Should the contested litigation continue, appropriate sanctions may be appropriate against the 3 social workers and the Director”;

(h)        “I have instructions from my clients, counsel for the Birth Parents, and the President of the BC Métis Federation, that if the Director is prepared to consent to my clients adopting SS…”.

In our view, the plain reading of the letter is that social worker 1 “lied” in her affidavit filed in the Court of Appeal, social worker 3 “misled the Court of Appeal” in her affidavit, and social worker 2 swore a “false affidavit” in the Petition No. 3 proceeding.  The Respondent had access to a transcript prepared by a Court Reporter.  The reference to the Court Reporter, to the reasonable reader, necessarily implies that this is a transcript that is certified to be accurate by a Court Reporter.  This gives the transcript an “official” status.  The Official Transcript then forms “evidence of perjury”.  The Letter is clear in stating the Respondent possesses evidence by way of the Official Transcript that the three social workers have lied, misled or sworn a false affidavit with regard to affidavits sworn and filed in court dealing with material facts.  That this evidence is evidence of “perjury” and that “appropriate sanctions may be appropriate against the 3 social workers and the Director” unless the Director consents to the Foster Parents adoption of SS within one and a half days of the sending of the Letter.

NG had communicated with the Respondent that the earlier draft versions of the Letter might be considered blackmail.  If blackmail is demanding something from another in exchange for not revealing information, concerns about blackmail can be considered prophetic.  What the Respondent does say to the Director, through her counsel, is:  regardless of your statutory duty to act in the best interests of SS you will consent to the Foster Parents adopting; otherwise I will use the Official Transcript to show your three social workers have perjured themselves.

While counsel for the Respondent spent some time in submissions addressing whether or not the offence of perjury could be proved against the three social workers, or if the offence would even be charged by Crown Counsel, the evil sought to be addressed by Chapter 3.2-5 is making the threat to commence a criminal or regulatory proceeding to gain a benefit.  The reasonable reader would find that, on the balance of probabilities, the Letter was an attempt to induce the Director to consent to the adoption of SS by the Foster Parents or steps would be taken to have the social workers charged criminally. 

Based upon the analysis in the Harding review, the Respondent’s use of the Letter was an escalation and a use of language to induce the Director to do something she could not:  that is, consent to an adoption in circumstances where she was not satisfied that the adoption of SS by the Foster Parents was in the best interests of the child

His explanation

This was the background to my September 5 letter.  I had by that time spent over 500 hours working on my clients’ case, many of those hours at a discounted hourly rate.  I was emotionally involved in my clients’ cause and passionately believed it was in S.S.’s best interests to reside with my clients and that the Ministry and the bureaucracy were unfairly and mistakenly acting contrary to her best interests.  In my letter, I wanted to disclose the fact of the recording while protecting my clients by not disclosing the actual transcript or recording.

At the time, I thought my letter was within the bounds of proper settlement negotiations.  I was attempting to reach a fair settlement by using the fact that if the proceedings went to trial, the social workers’ misconduct would likely be exposed.  I saw my efforts as being no different to using similar tactics to persuade any other party to litigation to settle to avoid public expose [sic] at trial of their misconduct or dishonesty.

(Mike Frisch)

July 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 12, 2019

Bad Lawyer Heaven

There are places where a stipulation like the one set forth below will get a lawyer in serious trouble

The parties stipulated that, based on the aforementioned facts, respondent violated RPC 1.15(a) by negligently misappropriating client funds and by commingling personal and client funds in his attorney trust account. Further, respondent violated RPC 1.15(d) by failing to comply with the recordkeeping requirements set forth in Rule 1:21-6. He also violated RPC 8. l(b), by failing to cooperate in the production of financial records required by R. 1:21-6(h) and (i). Finally, respondent violated RPC 8.4(c), when he misrepresented to the OAE that he had corrected the deficiencies identified during the February 2016 random audit.

New Jersey is not one of those places.

The Disciplinary Review Board proposed and the Supreme Court imposed a reprimand.

The mitigation

respondent has been a member of the bar for forty-one years with no history of discipline. Additionally, respondent has admitted his wrongdoing and entered into a disciplinary stipulation, thereby saving valuable resources. At oral argument before us on October 18, 2018, respondent offered yet more mitigation relating to serious medical issues. Between 2014 and 2016, he suffered two strokes that impacted his ability to practice. He stressed that he offered this mitigation by way of explanation rather than excuse, confirmed that he takes responsibility for his violations, and agreed that a reprimand is the appropriate quantum of discipline.

Even the relative hardliners on the DRB have surrendered

Members Gallipoli, Rivera, and Zmirich voted to impose a censure.

(Mike Frisch)

July 12, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 11, 2019

Hall Of Infame

A convicted attorney was disbarred by the New York Appellate Division for the Third Judicial Department for crimes

Stemming from his theft of monies belonging to a revocable trust while providing legal representation to certain of its beneficiaries, respondent pleaded guilty on April 30, 2019 to grand larceny in the first degree, a class B felony (see Penal Law § 155.42).

The charges were described by the US Attorney for the Northern District of New York

 Thomas K. Lagan, age 60, of Cooperstown, New York, and formerly of Slingerlands, New York, was arraigned today on money laundering and tax charges relating to the theft of approximately $11.8 million from estates for which he served as a fiduciary. 

The announcement was made by United States Attorney Grant C. Jaquith; New York Attorney General Barbara D. Underwood; James N. Hendricks, Special Agent in Charge of the Albany Field Office of the Federal Bureau of Investigation; and James D. Robnett, Special Agent in Charge of the New York Field Office of IRS-Criminal Investigation.

A federal indictment charges that Lagan, between November 2011 and February 2018, conspired with Richard J. Sherwood to launder the proceeds of a fraud conspiracy.  Lagan is also accused of failing to report more than $5.3 million in income to the Internal Revenue Service in 2013 and 2015.  In a separate indictment being prosecuted by the New York Attorney General’s Office, Lagan is charged in Albany County Court with grand larceny in the first degree, criminal possession of stolen property, and a scheme to defraud.  The charges in the indictments are merely accusations. The defendant is presumed innocent unless and until proven guilty.

Lagan appeared today before United States Magistrate Judge Daniel J. Stewart, who ordered him released on his own recognizance. 

If convicted on the federal charges, Lagan would face up to 20 years in prison, a maximum fine of $250,000, and up to 3 years of post-imprisonment supervised release.  A defendant’s sentence is imposed by a judge based on the particular statute the defendant is charged with violating, the U.S. Sentencing Guidelines and other factors. 

Lagan’s alleged co-conspirator, Sherwood, pled guilty in June 2018 to federal and state charges. 

Sherwood, an attorney since 1988, practiced primarily in the area of trusts and estates.  Starting in about 2006, he provided estate planning and related legal services to Capital Region philanthropists Warren and Pauline Bruggeman, and to Pauline’s sister, Anne Urban, all of Niskayuna, New York.  Sherwood was advising the Bruggemans when, in 2006, they signed wills directing that all their assets go to charities, churches and civic organizations, aside from bequests to Anne Urban and Julia Rentz, Pauline’s other sister.

Warren Bruggeman died in April 2009, and Pauline died in August 2011.  At the time of her death, Pauline had personal and trust assets valued at approximately $20 million.

In pleading guilty, Sherwood admitted that after Pauline Bruggeman’s death, he and Lagan conspired to steal and launder millions of dollars from her estate as well as from Anne Urban, who died in 2013.  Their conspiracy came to include the diversion and transfer to themselves of several million dollars belonging to Julia Rentz, a resident of Ohio, who was suffering from dementia at the time of the thefts and died in 2013. 

(Mike Frisch)

July 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Big Theft In Little Rock

The Arkansas Supreme Court accepted a license surrender of an attorney who is the subject of this story in the Arkansas Democrat Gazette

A Little Rock attorney pleaded guilty Thursday in federal court to a wire fraud charge, admitting he stole more than $400,000 from a client's trust account in the past three years.

U.S. District Judge James Moody accepted a guilty plea from Matthew Mahlon Henry, 45, who has been a licensed attorney for 13 years. U.S. District Judge Billy Roy Wilson, for whom Moody was filling in Thursday, will sentence Henry at 2 p.m. Dec. 19.

Henry faces up to 20 years in prison and a fine of up to $250,000, and will be required to pay restitution of at least $440,658.09, according to court documents. The amount of money he took and the fact that he abused a position of trust, as the victim's attorney, will subject him to a higher penalty range than a single count of wire fraud would otherwise bring, according to his plea agreement.

According to a charging document, Henry, who ran The Henry Firm in Little Rock, was retained in February 2015 to perform probate work related to a client's deceased relative. As part of his representation of the client, he received about $440,000 in estate funds between August 2015 and August 2016, which he deposited into his client's trust account.

Between August 2015 and January of this year, the charging document states, Henry intentionally schemed to defraud the trust account by making multiple incremental transfers from the account at Arvest Bank into his own business account at Arvest. He then used his business account to pay for business and personal expenses.

It says he made about 200 transfers out of the trust account, with the amounts typically ranging from $500 to $5,000. The frequency of the transfers varied from two in one month to 14 in a single month, and ended when the account was depleted, the document states.

It noted that Henry had agreed to represent the client for a minimum $12,000 retainer.

Henry didn't pay any of the estate funds to the client, who retained another attorney, according to the charging document. It said that on Feb. 23, Henry emailed the client's new attorney and said that in three days, he would deliver $403,658.09 that he owed the client. It said he attached a fake email chain indicating he had asked an Arvest Bank official to prepare a certified check in that amount from the trust account, but in fact, on Feb. 26, the account had a balance of only $6.59.

The email to the client's new attorney is what constituted the wire fraud charge to which Henry pleaded guilty Thursday, accompanied by his attorney, Jeff Rosenzweig of Little Rock.

Records at the Arkansas Supreme Court show that on March 7, the Supreme Court Office on Professional Conduct suspended Henry from practicing law for violating Rule 1.15 of the Arkansas Rules of Professional Conduct, which concerns safekeeping property and trust accounts.

An order signed that day doesn't place a time limit on the suspension. It said that Stark Ligon, the office's executive director, had alleged that Henry "poses a substantial threat of serious harm to the public and to his clients if he continues to practice law."

In response to Ligon's petition, the Committee on Professional Conduct classified the allegations as "serious misconduct," and noted that about $400,000 in client funds from a Jefferson County Circuit Court case "are not presently accounted for by Mr. Henry."

The order of interim suspension said Henry had also been ordered to show cause in March why he failed to obey a Pulaski County Circuit judge's Jan. 23 order directing him to pay over $25,000 in funds that he claimed to be holding as part of a civil case, and to provide the court all of the firm's trust account records dating back to Oct. 1.

(Mike Frisch)

July 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)