Wednesday, February 1, 2023

Only Disbarment

The Louisiana Supreme Court has disbarred an attorney who made false representations to secure access to over $200,000 held by a court pending resolution of a dispute with his former law partner and practiced law after an interim suspension

The record establishes by clear and convincing evidence that respondent made multiple misrepresentations in connection with the filing of an ex parte motion to withdraw more than $200,000 in disputed funds from the registry of the court. Specifically, respondent represented to the trial court that his former law partner had no opposition to the withdrawal of the funds, when respondent knew this was not the case. Furthermore, respondent did not serve a copy of the motion on his former law partner or his counsel of record, contrary to his representations to that effect in the certificate of service. Respondent then filed two additional pleadings – an opposition filed in the trial court and a writ application filed in the court of appeal – in which he made additional misrepresentations of fact. Finally, respondent repeatedly engaged in the unauthorized practice of law after he was placed on interim suspension. Under these circumstances, respondent violated the Rules of Professional Conduct as charged in the formal charges.

Sanction

Respondent acted intentionally, and violated duties owed to his clients, the legal system, and the profession, causing both actual and potential harm. The applicable baseline sanction is disbarment. The aggravating and mitigating factors found by the board are supported by the record.

Respondent’s misconduct was undoubtedly egregious. However, we see no compelling reason to deviate from the baseline sanction in this matter. Accordingly, we will impose disbarment, retroactive to September 28, 2018, the date of respondent’s interim suspension. 

Justice  Crichton would make it permanent

As the majority’s opinion reflects, respondent prepared an ex parte motion to withdraw disputed funds amounting to over $200,000 deposited in the court registry and represented to the court that the motion was unopposed when, in fact, respondent had no personal knowledge that the motion was unopposed. Moreover, respondent included with his motion a certificate of service certifying he had served the motion on all counsel of record. This certification was also patently false. Based upon respondent’s false representations to the court, the court released the deposited funds to respondent, who immediately deposited the check and spent the money. Upon receiving a later-filed opposition to the motion to withdraw, respondent again represented to the court that his original motion to withdraw was unopposed.

Respondent also verified under oath that, following the trial court’s refusal to continue a hearing on his opponent’s Motion for New Trial regarding restoration of the funds to the court registry, he had emailed and mailed a copy of his writ application to the court of appeal to all counsel of record. Again, this representation was false. Opposing counsel only received a copy of the application in the mail after the appellate court had granted supervisory relief and ordered the trial court to select a new hearing date. When ultimately confronted about these repeated falsities, respondent consistently attempted to shift blame to others, primarily his non-lawyer support staff. As the Disciplinary Board noted, respondent’s intentional corruption of the judicial process in this regard most certainly qualifies under our amended rule as well as the guidelines for permanent disbarment.

Further, despite respondent’s 2018 suspension as a result of this serious misconduct, In re: Evans, 18-1433 (La. 9/28/18), 253 So. 3d 133, respondent continued to communicate with opposing counsel in several pending matters, engaged in settlement negotiations, and received, disbursed, and otherwise handled client funds by way of his trust account (upon which he was the only signatory) during his suspension. Although respondent claimed his unauthorized practice of law was based upon “an honest misunderstanding of the terms of his suspension,” I find his behavior falls within the guidelines for permanent disbarment (unauthorized practice of law) and demonstrates that there is no reasonable expectation for a rehabilitation of respondent’s character in the future.

Respondent’s continued lack of remorse for his egregious behavior, his multiple intentional misrepresentations to the trial court and the court of appeal, and his flagrant disregard for this Court’s authority by continuing to practice law after being prohibited from doing so demonstrate a clear lack of ethical and moral fitness to practice law. Accordingly, I find the only appropriate sanction under these circumstances is permanent disbarment from the practice of law. I therefore dissent.

(Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)

The Proof Is In The Tweets

A District of Columbia Hearing Committee recommends a 60-day suspension with fitness for an attorney's misconduct in civil litigation and failure to respond to the bar investigation.

On January 21, 2015, Respondent filed a civil suit on behalf of Brittany Cobb against the Washington Metropolitan Area Transit Authority (“WMATA”) in D.C. Superior Court. DCX 8 at 0092-98. The complaint alleged, inter alia, that Ms. Cobb had been a passenger on a Yellow Line metro train earlier that month, and that she had suffered damages when her train became disabled and filled with smoke while inside a tunnel.

The client died and her mother, representing her estate, retained new counsel

On February 20, 2019, with Respondent’s authorization, Mr. Regan substituted himself as plaintiff’s counsel in the Cobb case.

After a confidential settlement had been reached

On or about July 30, 2019, Respondent posted on Twitter in a single, public Tweet under the username @DJacksonNBRC, with the associated name “Darlene Jackson, GOP”:
a. Unredacted portions of the court’s sealed order, including the case caption, as well as additional details discussed in the attached Confidential Appendix, ¶ 33(a);
b. Emails between Respondent and [plaintiff's counsel]Mr. Trebach regarding provisions of the sealed settlement order;
c. A picture of Mr. Trebach;
d. A news article regarding Ms. Cobb’s death; and
e. The words “Where’s MY CA$H [sic].” Tr. 95-102, 108-11 (Trebach); DCX 6 at 0030 (indicating date); DCX 25; DCX 26.

The Tweet mentioned the accounts of several high-profile personalities, including @realDonaldTrump, @FLOTUS, @cabinet, @WhiteHouse, @MarshaBlackburn, as well as several major news outlets, including @ABC, @nbc, @CBS, @CNN, @washpost, and @thehill. DCX 25.

Mr. Trebach learned of the tweet and reported it to the judge, who held a show cause hearing

...Ms. Jackson then proceeded to speak in a rambling and somewhat incomprehensible manner about how a woman is the sole purpose of why we have a universe. In support of this position she cited to the process of child birth, James Brown’s “It’s a Man’s, Man’s Man’s World,” and Maxwell’s “This Woman’s Work.” At other times in the hearing she invoked the “me too” movement.

The matter was referred to Disciplinary Counsel, who sought a response

On August 18, 2020, one day after Disciplinary Counsel notified her of its investigation, Respondent posted a Tweet that included images of the District of Columbia Bar’s logo, the words “Office of Disciplinary Counsel,” and the question “Where you At [sic]?”

No response but

Between September 17 and 26, 2020, Respondent posted four separate Tweets, all of which included images explicitly referencing the Office of Disciplinary Counsel, juxtaposed to phrases such as “Lying and Stealing,” “Just Ask Becky,” “Smooth Criminals,” and “Investigate the Investigators.” Tr. 194-99 (Matinpour); DCX 32, 33, 34, 35, 36, 37, 38, 39. “Becky” is the first name of the Senior Assistant Disciplinary Counsel who notified Respondent of Disciplinary Counsel’s investigation and who sent the September 17, 2020, follow-up letter.

Misconduct

The Hearing Committee concludes that Disciplinary Counsel has demonstrated, by clear and convincing evidence, that Respondent violated Rule 3.4(c) when she knowingly disclosed portions of the court’s sealed order through a Tweet that Respondent posted on or about July 30, 2019. There is no question that Respondent was aware that the order was sealed, as it was explicitly identified as such in the order. See DCX 24 at 0204. The post plainly shows unredacted portions of the order. FF 33. The Tweet also displays what appear to be copies of emails between Respondent and Mr. Trebach, and the Tweet “tagged” his law firm.

Failure to respond

there is ample evidence to demonstrate that Respondent was fully aware of Disciplinary Counsel’s investigation. For example, on August 18, 2020, one day after Disciplinary Counsel sent its first letter to Respondent, she posted on Twitter an image of the District of Columbia Bar’s logo and the words “Office of Disciplinary Counsel.” FF 49. Second, during the September 17-26, 2020 time period, Respondent posted four separate Tweets that explicitly referenced the Office of Disciplinary Counsel, and also referenced the first name of the attorney in its office who sent Respondent the Office’s second letter.

Fitness

First and foremost, as explained above, Respondent’s misconduct almost resulted in dismissal of her client’s case. Along the way, Respondent violated the court’s stay order by issuing an improper subpoena for discovery. Respondent again violated a court rule and acted in a wholly unprofessional manner, by posting portions of the court’s sealed order on Twitter. Finally, the Hearing Committee cannot ignore Judge Chutkan’s first-hand observations concerning Respondent’s proffered explanations for her misconduct. See FF 44.

Nor has Respondent acknowledged the seriousness of her misconduct. Respondent wholly disregarded her obligation to cooperate with Disciplinary Counsel. Respondent never replied to its inquiries, even though it is clear that she
was properly served with them. Moreover, Respondent’s Tweets showed that she knew about that investigation.

The Hearing Committee does not know if Respondent is currently engaged in the practice of law. But Disciplinary Counsel’s proposed fitness requirement is amply supported by the pattern of Respondent’s wrongdoing.

(Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Sealed With A Suspension

The Arkansas Professional Conduct Committee Panel D ordered a six-month suspension for violations of Rules 3.1 and 8.4(d)

In a case assigned to Judge Magness, [attorney] Boyd filed a Petition seeking Appointment of Emergency Ex Parte Temporary & Permanent Guardianship of the Persons relating to minor children who were not related to her, in Sebastian County Circuit Court, Fort Smith District. That matter is sealed, and therefore the full account of the underlying case is not included in this Findings & Order.

After Boyd's filing, Judge Magness ordered the case to be sealed because the nearly two hundred (200) page petition identified the minor children by name, listed their home address, included a picture of their unredacted likenesses, contained detailed descriptions of irrelevant sensitive information; and included many unsupported conclusions of serious alleged abuse. After the case had been sealed, Boyd delivered a copy of the Petition to the children's school principal. The case proceeded to trial. After multiple hours of testimony, Judge Magness found that Boyd's allegations were not supported by evidence, as Boyd failed to present any evidence of the alleged abuse.

Both parents of the minor children at issue filed motions for Attorney's Fees and/or Sanctions. Judge Magness entered an Order Granting Motions for Sanctions against Boyd. Judge Magness found that Boyd violated Ark. R. Civ. P. 11(b)(3) and ordered Boyd to pay $4,835.00 in attorney's fees to counsel for the parents.

40/29 News reported on the attorney's announced candidacy for the 2020 Democratic nomination for President of the United States . (Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Florida Summaries

From the February 2023 Disciplinary Summaries of the Florida State Bar

Anton Aggrey Gammons, P.O. Box 682048, Orlando, suspended for six months, effective immediately. (Admitted to practice: 2011) Gammons engaged in sexual conduct with a client he was representing in a dependency court matter. (Case No: SC22-1667)

Bert Edward Moore, P.O. Box 1622, Crestview, suspended for one year, effective 30 days following a January 26 court order. (Admitted to practice: 1980) Moore was retained to file a claim on behalf of a client who alleged that sexually explicit photos were posted on the internet without her knowledge or consent. Moore filed the claim timely but miscalculated the 30-day deadline for filing the complaint in probate court, thereby resulting in the dismissal of the client’s probate complaint. He also failed to properly communicate with his client throughout his representation in probate court. In an attempt to rectify his mistake, Moore paid the client $15,000 over the period of a year before any Bar complaint was filed. The client then demanded another $3,000 and harassed Moore for several months with texts threatening to file a complaint, which she did after Moore refused to pay the additional funds. (Case No: SC21-1132)

Hanna Mary Renna, P.O. Box 188, Elmira, NY, suspended for 90 days and ordered to attend ethics school and a professionalism workshop, effective 30 days following a January 4 court order. (Admitted to practice: 2010) Renna, during the representation of a criminal defendant, conducted a deposition of a minor witness who had previously identified her client from a photo pack as the perpetrator. Prior to the deposition, Renna printed copies of the photo pack and renumbered them. Unbeknownst to the state and the witness, Renna used a photograph of a different person than who was identified by the witness when questioning the witness about identification. Renna then relied in part on identification made during the deposition to file a motion to suppress. (Case No: SC22-1484)

(Mike Frisch)

February 1, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 31, 2023

PLEASE PLEASE PLEASE

An attorney's failure to provide an invoice for billed services in a divorce matter drew a censure from the New Jersey Supreme Court.

As described by the Disciplinary Review Board

In summary, for more than one year, from May 2017 through November 2018, respondent repeatedly failed to provide Sweeney with an invoice for his legal services, despite the requirements of R. 5:3-5(a)(5), the terms of their retainer agreement, and her numerous requests that he do so. As of the date of the ethics hearing – more than three years after Sweeney’s first documented request for an invoice – respondent still had failed to provide Sweeney with a single invoice.

The clients pleas (and pleases) did not help

PLEASE PLEASE PLEASE address my concerns! Ihave the utmost respect for you and think you are a great guy, but I cannot believe I have to beg you for assistance. I feel as though I have been beyond patient. I understand I am an old case (ALMOST A YEAR SINCE DIVORCE FINAL) and not a priority to you now, but if you could just provide me with the information that is rightfully due to me, I promise not to bother you.

Priors

In June 2020, respondent received a reprimand for his violations of RPC 1.1(a) (gross neglect); RPC 1.3 (lack of diligence); RPC 1.4(b); and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). In re Nussey, 242 N.J. 153 (2020) (Nussey I).

Less than two years later, in November 2021, we censured respondent for his violations of RPC 1.15(a) (negligent misappropriation of client funds), RPC 1.15(d) (failure to comply with the recordkeeping requirements of R. 1:21-6), and RPC 8.1(b), for misconduct that occurred between August 2018 and July 2019. In the Matter of David Ryan Nussey, DRB 21-065 (November 8, 2021) (Nussey II). Our decision in Nussey II remains pending with the Court.

Respondent also had initially failed to respond to the complaint

Respondent also failed to cooperate with disciplinary authorities by ignoring the DEC’s October 18, 2018 written request for a reply to Sweeney’s grievance. Although he eventually filed an answer to the complaint, that answer came in August 2019 – ten months after the DEC’s initial request that he reply to the grievance. Similarly, respondent failed to produce a copy of Sweeney’s file as directed until January 2020 – another five months later. The fact that respondent’s answer ultimately was provided, fifteen months later, does not cure his initial failures to cooperate and to respond, in writing, to requests for information “within ten days of receipt,”

(Mike Frisch)

January 31, 2023 in Bar Discipline & Process | Permalink | Comments (0)

A Defeat For Consent Dispositions In D.C.

On review of a question posed by the District of Columbia Court of Appeals, the Board on Professional Responsibility recommends that the court reject a negotiated discipline

Hearing Committee Number Ten recommended that the Court of Appeals approve the parties’ agreed-upon resolution of this matter: that Respondent failed to maintain complete records of his handling of entrusted funds in violation of Rule 1.15(a), and should be suspended for thirty days with proof of fitness prior to reinstatement, all stayed in favor of probation. On January 3, 2023, the Court requested “the Board’s views . . . on the appropriateness of the proposed sanction in light of this [C]ourt’s precedents.” The Court explained that “the Hearing Committee expressed reservations as to whether the proposed sanction was justified because respondent’s misconduct may have constituted misappropriation (deeming it a ‘close question’)."

We have reviewed the stipulated facts set forth in the Hearing Committee Report and we conclude that the Hearing Committee’s reservations were well founded. The Board recommends that the Court reject the parties’ negotiated disposition because the stipulated facts support the conclusion that Respondent engaged in misappropriation in addition to the stipulated record-keeping charge. Because the parties believed that Respondent’s conduct did not involve misappropriation, consideration of the sanction requires further factual development, including facts regarding Respondent’s state of mind or intent. See Hearing Committee’s Report and Recommendation at 4 n.2 (“[O]ur consideration of this Petition would be different if Respondent engaged in misappropriation.”).

The facts involve a $256.81 overdraft of an estate account

The account was overdrawn, in part, because Respondent did not factor in the withdrawn bank fees when calculating the distribution of the Estate funds to the legatees. But the bank fees do not explain the total shortfall. Despite the overdraft, the bank paid the check, and then closed the account. Thus, all of the legatees received the amounts due to them.

The parties agreed that Respondent had violated Rule 1.15(a) by failing to maintain sufficient records of his handling of entrusted funds. Disciplinary Counsel represented that its investigation did not reveal evidence that the overdraft involved misappropriation.

The BPR

because the current record has not been fully developed on the misappropriation issue, we cannot be sure that Disciplinary Counsel has not offered an unduly lenient sanction.

As a result of this ill-founded decision, the parties are consigned (in all likelihood) to a multi-year process that will usurp limited resources and more than likely yield the same result. 

See here.

I hope the Court nonetheless accepts the consent.

If your Disciplinary Counsel says that their investigation does not find misappropriation, trust him. If your Hearing Committee agrees after its independent review, trust them. (Mike Frisch)

January 31, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Inactivity

The New Jersey Supreme Court has imposed a reprimand as reciprocal discipline for an attorney's six-month suspension in Pennsylvania.

The Disciplinary Review Board described the violation

Respondent earned admission to the New Jersey bar in 1993 and to the Pennsylvania bar in 1994. She has no prior discipline in New Jersey. Court records reflect that she is currently employed as in-house counsel for Integra LifeSciences, in Princeton, New Jersey. During the time relevant to this matter, she was employed as in-house counsel for Ricoh USA, Inc. (Ricoh), in Malvern, Pennsylvania.

Respondent worked as in-house counsel for Ricoh from September 2013 through January 2020. She initially served as assistant general counsel, handling employment law matters, until her August 2014 promotion to vice-president and assistant general counsel. In September 2017, she was promoted to senior vice president, general counsel, and secretary for Ricoh, a position she occupied until January 2020. As general counsel, respondent oversaw Ricoh’s “overall legal issues, ethics, compliance, corporate and information security, and regulatory affairs in the United States, Canada and Latin America.”

Beginning on July 1, 2008 and continuing during her employment with Ricoh, respondent maintained her license status in Pennsylvania as “inactive.” According to the definition provided on the Pennsylvania Disciplinary Board’s website, inactive status is defined as “an attorney who is a member of the  Pennsylvania bar and who has elected to transfer to this status while not engaged in the practice of law.” To maintain inactive status, the attorney must register
annually and is prohibited from practicing law in Pennsylvania.

On September 26, 2017, the Supreme Court of Pennsylvania administratively suspended respondent, effective October 26, 2017, for failure to pay her annual registration fee, in violation of Rule 219 of the Pennsylvania Rules of Disciplinary Enforcement.

She was restored to inactive status in January 2020.

Sanction

The OAE correctly asserted, in its brief to us and during oral argument, that, based upon New Jersey disciplinary precedent, respondent’s unethical conduct warrants lesser discipline than the six-month term of suspension imposed in Pennsylvania. The OAE relied on New Jersey disciplinary precedent, discussed below, to conclude that respondent’s misconduct warranted a reprimand.

The OAE emphasized, in mitigation, that respondent has no prior discipline in New Jersey in her twenty-seven years at the bar; she accepted responsibility and cooperated with the Pennsylvania disciplinary authorities; and she expressed remorse for her misconduct.

In aggravation, the OAE noted that respondent failed to notify the OAE of her Pennsylvania discipline, as R. 1:20-14(a)(1) requires.

(Mike Frisch) 

January 31, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 30, 2023

Kramer V. Not Kramer

An interesting argument scheduled for this Thursday at 10 am before the Maryland Supreme Court

AG No. 42 (2021 T.) Attorney Grievance Commission of Maryland v. Marylin Pierre
Justice Battaglia (Retired Justice, Specially Assigned) will sit in place of Justice Gould.

Attorney for Petitioner: Lydia E. Lawless
Attorney for Respondent: Irwin R. Kramer

The Washington Post reported on the charges

The 22-page “Petition for Disciplinary or Remedial Action,” which accuses Pierre of misstatements going back to 1999 and could cost Pierre her law license, shows that the controversy over her candidacy remains. She appears to be gearing up for another run for judge, according to her campaign Facebook page and website. It would again play out amid the complicated way Maryland chooses judges that involves a mix of local vetting committees, governor appointments and what amounts to voter-approval elections that can include candidates who weren’t nominated but want to be judges.

Pierre declined to comment on the allegations.

But Irwin Kramer, a Maryland attorney who has represented lawyers in disciplinary cases for more than 25 years, said the state’s highest court has previously declined to penalize judicial candidates for statements made during campaigns that would be accepted in other political races. This should hold true even for exaggerations or relatively minor misstatements, Kramer said.

“The court has long held that this is core political speech and should be subject to the highest protections of the First Amendment,” Kramer said.

Pierre, who for years has unsuccessfully sought judgeships, said that attacks on her were part of the legal establishment’s desire to keep outsiders off courtroom benches.

“Every time they say I am not qualified,” she said last year, according to a video posted on her campaign Facebook page, “what they’re actually saying is that they are the ones who are the gatekeepers, and they do not want me to get past the gate. . . . So I am hoping that the voters will see how important this race really is and allow me in.”

Many of them tried — with an initial outcome that rattled Montgomery County’s legal community that revolves around two courthouses in Rockville. In total, there are approximately 36 judges.
In the 2020 primary, there were four open slots for Circuit Court judges. Six people ran — four incumbent judges who had earlier been appointed and two outsiders, including Pierre. She finished high enough to make the general election, which was trimmed down to five choices for the four slots.

The four incumbent judges — or “sitting judges” — banded together as a slate, stressing how they had been vetted through the traditional nominating process. In the general election, on Nov. 3, 2020, they captured the most votes, besting Pierre, who remained a lawyer

Her campaign had been built in part on touting her courtroom experience and criticizing the incumbent judges for not appreciating how inherently unfair the system can be
 
But according to the Bar Counsel and the Attorney Grievance Commission of Maryland — which regulates lawyers in Maryland — Pierre and her campaign took things way too far. Citing professional rules of conduct, the Bar Counsel wrote: “An attorney shall not make a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualification or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”
The Pierre campaign’s view on the incumbent judges and diversity constituted one such violation, according to the counsel’s petition.

“The Respondent’s statements that ‘[m]ost of [the sitting judges] have worked at the same law firm, go to the same church, and are related by marriage’ were knowingly and intentionally false or made with reckless disregard as to their truth or falsity and impugned the integrity of the sitting judges,” it said.

The Bar Counsel said in its petition that during the campaign, Pierre exaggerated her legal and courtroom experience, including claims that she “represented clients in hundreds of ­cases in state and federal trial and appellant courts” and that “some of my cases have established precedents in the State of Maryland and are regularly cited by courts in others states.”
In fact, the Bar Counsel alleged, Pierre “never represented any client in any federal appellate court and never represented a client in any Maryland appellant court resulting in a reported opinion.”

The counsel’s petition also accused Pierre of “knowingly and intentionally” misrepresenting statements made by incumbent Judge Bibi Berry at a virtual forum hosted by AfriqueToday when Berry was asked about the high incarceration rates for Black men in Maryland.

“What we do is, there are a lot of correctional options other than incarceration,” Berry said. “We’re not incarcerating people who are nonviolent offenders for long periods of time or anything like that. There is home detention, there’s inpatient residential treatment, there’s problem-solving courts, there’s work release or weekend incarceration. There are a lot of things you can do. So, we’re not — certainly, I understand that it is an issue — but it’s not as much of an issue as being portrayed by the other two candidates [Pierre and the other outside challenger, Thomas Johnson].”
The next day, according to the Bar Counsel, Pierre’s campaign sent a text message to Montgomery County voters that read:

“Hi [voter], this election matters. When a sitting judge says ‘it’s not much of an issue’ that Black males are jailed at a higher rate in MD it’s clear we need Marylin Pierre, who understands restorative justice. Can we count on your support?”

The Bar Counsel complaint addresses matters beyond the recent election. It accuses Pierre of knowingly making false statements on her New York state bar application in 1999 and knowingly failing to disclose information on Maryland judicial applications from 2013 to 2017.

According to published Bar Counsel rules, after allegations are filed in the Court of Appeals, which is the state’s highest court, the court assigns the case to a local judge for a fact-finding hearing. The matter is then transmitted back to the Court of Appeals, and it decides on any punishment.

Kramer, the attorney who often represents lawyers who are subjects of disciplinary cases, said allegations related to Pierre’s campaign statements would deter outsiders from challenging for judge slots.
“If a judicial candidate’s statements made during a political forum can cost attorneys their law license, no one in their right mind would ever challenge an incumbent judge,” Kramer said.
 
(Mike Frisch)

January 30, 2023 in Bar Discipline & Process | Permalink | Comments (0)

A Literal Text

A stipulated 30 month suspension has been approved by the Colorado Presiding Disciplinary Judge

In February 2020, Hicks settled a lawsuit on behalf of his clients. The settlement involved three defendants, and each agreed to pay Hicks’s clients $10,000.00, for a total of $30,000.00. In March 2020, Hicks paid his fee from the first $10,000.00 payment even though he had not yet received the full settlement amount, violating the terms of his fee agreement. By late June 2020, Hicks had received the entire $30,000.00. Due to his insufficient recordkeeping, he believed that only $20,000.00 had been paid. When his clients pressed Hicks for the remaining money, he falsely told them that he was waiting on a final payment from one of the defendants. In March 2021, Hicks moved to enforce the settlement even though the defendants had already paid the settlement in full. Opposing counsel notified Hicks that the settlement was paid but Hicks continued telling his clients that he was waiting on the full settlement to pay them.

Hicks had not reconciled his trust account from June 2020 to November 2021. Had he done so, he would have discovered the “missing” $10,000.00. During that time, the balance in his trust account dipped below what he should have held for his clients.

In another matter, Hicks began representing a client in October 2021 in a civil case against the client’s ex-boyfriend. After the representation began, Hicks and his client developed a sexual relationship. During that time, Hicks and his client exchanged texts in which Hicks called the ex-boyfriend a “literal faggot.” In a subsequent lawsuit, Hicks asserted defamation claims against the ex-boyfriend’s parents based on statements they made to disciplinary authorities.

Among the violations

Colo. RPC 8.4(g) (in representing a client, a lawyer must not engage in conduct that exhibits bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process).

The attorney had been censured in 2018.

Hicks was hired in a defective flooring case. He and his client signed a contingency fee agreement on June 16, 2016. Ten days later, Hicks and the client kissed. They first had sex on July 4, 2016. Their intimate relationship continued until April 2017.

Hicks sent a demand letter in the flooring case in August 2016, and the case settled later that month for $15,000.00. The client was satisfied with Hicks’s representation.

During Hicks’s relationship with this client, he disclosed to her confidential client information regarding a number of his other clients. He occasionally forwarded to her emails from clients or opposing counsel, and he also sent her draft settlement demands and other draft documents. There is no evidence that the client disseminated or acted on any of this information

(Mike Frisch)

January 30, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Couch Fee Proposal Draws Resignation

The Indiana Supreme Court has accepted an attorney's resignation in order to immediately remove him from practice and spare further harm to his victim

A disciplinary complaint against Respondent was filed on November 9, 2022, alleging he hugged and kissed a potential client and solicited sexual favors from her in exchange for a discount on his attorney fees. Later, the complaint alleges, Respondent offered to represent her for free if she did not report his misconduct. Respondent has now tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that the material facts alleged are true and that Respondent could not successfully defend himself if prosecuted.

Respondent’s admitted misconduct is egregious, a flagrant abuse of his position, and a betrayal of the trust the public places in members of Indiana’s bar and the profession. Respondent would likely face disbarment if the allegations were tried and proven. It is only in the interest of more immediately removing Respondent from practice and sparing his victim from having to testify in these disciplinary proceedings that we accept Respondent’s resignation. Moreover, absent a request from the Commission, the Admission and Discipline Rules do not provide a mechanism for this Court to sua sponte order an interim suspension to protect the public while seeking disbarment here.

Any disciplinary proceedings are dismissed as moot. (Mike Frisch)

January 30, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 27, 2023

A Backyard Hockey Rink

The Manitoba Law Society Discipline Hearing Panel will permit an attorney who had misappropriated significant sums to resign from the Bar

 From June, 2009 and into 2015, Mr. Rabb misappropriated in excess of $360,000.00 from the trust accounts for a number of his managed properties for services, supplies, and products which they did not receive. These diversions of funds were accomplished in several ways, namely:

(a)            manually altering invoices for work done on personal residences and other properties owned by himself and other closely-related individuals and companies to indicate that the work was done on one of the managed properties, and then paying the invoice from the trust accounts for those properties;

(b)            asking the owners of companies providing various services to change the job site locations on invoices from personal residences to managed properties such as apartment blocks;

(c)            asking the owner of a company providing various services to issue a fake invoice for work not done, then presenting the invoice to the owners of two managed properties for payment;

(d)            telling a service provider to include hours spent working on personal residences on invoices rendered by it for work done on two managed properties, and then charging the entire amount to the owners of those properties;

(e)            paying an invoice for work done on the residence of a close friend from trust funds properly belonging to the owners of a managed property;

(f)              paying the same invoice on multiple occasions using funds from different trust accounts; and,

(g)            paying for the construction of a backyard hockey rink using funds from multiple different trust accounts.

The beneficiaries of all of this largesse included relatives, associates, and employees of Mr. Rabb whose personal residences and vacation properties were repaired or upgraded at no cost to themselves.

The Panel notes that these methods of misappropriation were not overly sophisticated and, by requiring as they did the collusion (or at least acquiescence) of many other individuals, were not likely to remain undetected for long. Indeed, it is rather surprising that Mr. Rabb was able to continue his pattern of deceptions for as long as he did (about 5 years and 4 months).

(Mike Frisch)

January 27, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Reinstated After Disbarment For Theft from County Bar Association

The Wyoming Supreme Court has reinstated a disbarred attorney, accepted an (appended) Review Panel's favorable findings.

Cody Enterprise (founded by Buffalo Bill in 1899) reported on the disbarment

Cody attorney Sam Krone, a former state representative and county deputy prosecutor who pleaded guilty last fall to stealing more than $9,600 from the county bar association, has been disbarred.

The Wyoming Supreme Court issued an order last week disbarring Krone from the practice of law. The order of disbarment is effective Aug. 24, 2016, the date the court previously issued an order of immediate suspension of Krone.

The disbarment resulted from Krone’s guilty plea to one felony count and one misdemeanor conviction arising from his wrongful conversion of funds from the Park County Bar Association in 2011 and 2013, when Krone served as the association’s treasurer, a state Supreme Court release reads.

Krone was given a 15-day jail term, to be served piecemeal, at his discretion, over the next six months. He was also given 20 days house arrest, three years probation, 240 hours of community service and a bulk restitution payment to the Bar Association to pay back the stolen funds.

Five other counts, including two additional felonies, were dismissed as part of Krone’s plea package.

Shortly after the criminal charges were brought against Krone, the Wyoming Supreme Court issued an order immediately suspending Krone from the practice of law, pending resolution of formal disciplinary proceedings against Krone.

Having the order be effective as of the August 2016 date means Krone admitted his conduct violated multiple rules, including commission of a criminal act that reflects adversely on the lawyer’s honesty and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation of the Wyoming Rules of Professional Conduct.

In addition to being disbarred, Krone was ordered to pay an administrative fee of $750 and costs of $50 to the Wyoming State Bar.

Under Wyoming’s Rules of Disciplinary Procedure for lawyers, Krone will become eligible to petition for reinstatement five years after the 2016 date disbarment date.

(Mike Frisch)

January 27, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 26, 2023

Off The Books

The unusual circumstances of the sale of an automobile led to findings by a Maine Grievance Panel that an attorney had violated a previously-imposed probation and authorizing the filing of an information seeking suspension 

On July 29, 2016, Respondent purchased an automobile from Complainant at her family’s home in Southwest Harbor, Maine. He paid the agreed upon sale price in cash. Complainant provided to Respondent at that time all documentation legally required to effect the sale, including a bill of sale, an odometer disclosure form, and the original title to the automobile signed by her.

Respondent declined to provide his name to Complainant at the time of this transaction. He told her that he would complete his information on the title being transferred to him at a later time, and that his name was not required for the other documentation including the bill of sale. Despite reservations about this, Complainant completed the transaction without knowing Respondent’s name.

The Panel rejected as incredible his present claim that he had provided his name

Respondent drove away in the automobile purchased from Complainant that same day, after attaching dealer plates he brought with him.

Two years later

By letter dated September 11, 2018, over two years after purchasing the vehicle, Respondent wrote to Complainant requesting her assistance to obtain a replacement title for the automobile he purchased from her. He said in this letter that either she never provided the original title to him, or he lost it.

During the more than two years since he had purchased the automobile, at the time he sent Complainant this letter, despite owning the car and using it for his own personal purposes, Respondent had never registered it.

In fact, at the hearing Respondent acknowledged that during the approximately four years he owned and used this automobile, he never registered it, never insured it, and never paid sales tax or excise tax on it. Instead, he continued to use the automobile for personal purposes with the dealer plates attached until he sold it during the spring or summer of 2020.

The dealer plates used by Respondent belonged to Winthrop Auto. Respondent claims he was entitled to use these plates based on his “association” with Winthrop Auto. When asked about the nature of this association, however, Respondent admitted that he did not have any “real relationship” or “formal understanding” with this auto dealership. He has never been an owner, officer, or employee of Winthrop Auto.

Complainant expressed concerns about the situation and retained counsel, to no avail.

The panel expressed concerns about Respondent's statements to counsel

It is a reasonable inference that Respondent included this information in an effort to corroborate his characterization of Dr. Tuttle (repeated in his written submissions) as “assertive” and uncooperative. Even setting aside the inappropriate gender-based nature of this attack on the Complainant (presented as two senior male lawyers allegedly commiserating about an irrational female client), see M.R. Prof. Conduct 8.4(g), it is difficult to ignore the irony of Respondent characterizing Complainant as “assertive,” “difficult,” “hostile,” and as having a “personality disorder” in light of his own behavior, the aggressiveness of which he seems completely oblivious, as evidenced by not only the litigation he initiated against Dr. Tuttle as described in paragraph 24 below, but by his testimony during the December 27, 2022 hearing as well. In any event, Attorney Burke, although he does not have any notes or a specific memory of what he did discuss with Respondent, convincingly denied making any such statement about Dr. Tuttle. The Panel finds Respondent’s description of what Attorney Burke supposedly said about Dr. Tuttle, of which Respondent claims to have a firm recollection (but also no notes or other corroboration), is not believable, but rather an inappropriate effort to diminish Dr. Tuttle’s character and credibility.

Respondent sued complainant

During the fall of 2019, pursuant to a court order entered in the action filed against her by Respondent, Complainant at her own expense, including the need to take time away from her medical practice, went to the New Hampshire DMV (which Complainant represented would require a two hour drive) and obtained a copy of the 2016 registration of the vehicle in her name, which she provided to Respondent. With this copy of the former registration in Dr. Tuttle’s name, Respondent was able to obtain a new title for the automobile, which he acknowledged receiving by late December 2019.

And did not attend the trial

Respondent testified that his failure to appear was due to a vaguely described and uncorroborated error with his office calendar. The Panel finds his explanation is not credible, and instead finds it is more likely than not that he deliberately failed to appear for trial, having already obtained the relief he requested other than his costs which he was unlikely to recover, as a final act of vindictiveness against Complainant, who again had to close her medical practice and travel several hours to Maine to attend a hearing on a claim that Respondent no longer had any intention of pursuing, but refused to dismiss voluntarily.

Findings

this Panel has concluded that Respondent violated the Maine Rules of Professional Conduct, including specifically Rule 3.3(a)(1), Rule 8.1(a), and Rules 8.4(a), (c), and (d).

Result

This Panel finds Respondent’s history of discipline and sanctions, and in particular his violation of his current Probation, to be aggravating factors. In the circumstances, this Panel finds a risk that the unethical conduct by Respondent is likely to be repeated. The Panel finds no mitigating circumstances, given the deliberate and dishonest nature of Respondent’s misconduct.

Accordingly, pursuant to M. Bar Rule 13(e)(10)(E), this Panel finds probable cause for suspension of Respondent, and directs Bar counsel to file an Information pursuant to M. Bar Rule 13(g).

Pursuant to M. Bar Rules 13(a) and (b), this Panel further directs Bar Counsel to undertake an investigation of Respondent’s use of the dealer plates from Winthrop Auto, with respect to the automobile purchased from Dr. Tuttle and otherwise, to determine whether such conduct constitutes further violations of the Maine Rules of Professional Conduct and other applicable law.

(Mike Frisch)

January 26, 2023 in Bar Discipline & Process | Permalink | Comments (0)

The Caller ID Showed Santos (No, Not George)

A public reprimand has been imposed on an attorney by the Massachusetts Board of Bar Overseers for violation of Rule 4.2.

The appended Hearing Report (citations omitted throughout) tells the story.

The attorney had been appointed to a criminal matter at the outset of the COVID shutdown. Both his client and co-defendant Robinson were in custody.

On April 9, 2020, the respondent received a telephone call that appeared, based on the caller ID, to be coming from Paul Santos, a name the respondent did not recognize. After the respondent answered, the caller identified himself as Charles Robinson, co-defendant of Juan Lopez. 

Robinson stated that he wanted to come to Massachusetts and file a statement with the Court, indicating that Lopez had never had possession of the firearm, which was Robinson’s, that Lopez was innocent of the charges and should not be in jail, and that Robinson was solely responsible for the gun. 

Robinson spoke non-stop in a torrent of words; there was not a break in his speech where the respondent could interrupt.

The respondent advised Robinson that the courts in Massachusetts were closed due to Covid-19, and that in any event they would not accept a statement directly from the respondent or directly from Robinson because, as the respondent proceeded to confirm, Robinson was still represented by Panas and had not spoken to Panas about making a statement. The respondent told Robinson that Panas would probably advise against signing the type of statement Robinson envisioned. 

The call lasted at most two or three minutes. 

We credit that the respondent had done nothing to solicit Robinson’s statement, and that he believed that what Robinson told him constituted potentially exculpatory evidence as to his client Lopez. 

Robinson called again and left a message; Respondent did not return the call but he did speak to Robinson's girlfriend about an affidavit based on his discussions with her

The respondent proceeded to draft an affidavit for Robinson’s signature under the pains and penalties of perjury, stating in pertinent part: Robinson was the registered owner of the black Ruger 380 handgun recovered by the police on Friday, March 20, 2020; Robinson’s handgun was never in the possession, custody or control of Lopez, either before the motor vehicle accident or after the accident; and Robinson had possession of the handgun at all times until he discarded it immediately prior to his arrest.

He faxed the draft affidavit to the girlfriend without advising Robinson's attorney.

On April 28, 2020, the respondent e-mailed ADA Del Rio Gazzo and asked her to call him. Ans. ¶ 27; Ex. 6. When they spoke later that day, the respondent told her that he had obtained an affidavit from Robinson in which Robinson accepted responsibility for the firearm. The respondent asked her to review the affidavit and consider reducing Lopez’s bail. As an experienced criminal attorney, Parlow know that the Robinson affidavit was likely to persuade Del Rio Gazzo to agree to a significant bail reduction, a motivating factor in obtaining such an affidavit.

The prosecutor agreed to a bail reduction but (unlike Respondent) contacted Robinson's attorney

Panas had not previously known about the affidavit. He was “surprised” and “a little upset.” Id. In a conversation later that day, he asked Del Rio Gazzo where and how she had gotten the affidavit, and whether she had spoken to the respondent. 

Lopez was released as a result.

The statements in the affidavit were suppressed and Respondent withdrew from the case

In his March 3, 2021 Statement under Oath to bar counsel, the respondent stated that he had exhibited a “lapse in judgment” in sending Robinson the fax, and that if he could do it over again, he would not have sent the affidavit to Robinson but, instead, would have sent it to Panas with an explanation.

Respondent acknowledged the misconduct; COVID-related stress was no justification

We credit that the respondent cared deeply for his clients and wanted them released from jail if at all possible. However, we find that none of this is enough to mitigate the respondent’s misconduct. While we credit that there was much confusion and uncertainty in March and April of 2020, the respondent has not proved that it was pandemic-related stress that caused his misconduct. The absence of causation is fatal.

And

We find that there was harm as the result of the respondent’s conduct. The integrity of the legal system and the administration of justice suffered; additional legal proceedings were necessary, among them the motion and hearing regarding contact with witnesses; the motion to suppress Robinson’s affidavit; the respondent’s motion to withdraw, and the appointment of new counsel for Lopez.

Further

We agree with bar counsel that the respondent did not display true remorse. While we recognize that he admitted the rule violation promptly and repeatedly, the regrets he described to us did not concern Robinson, but instead focused on the impact of the misconduct on the respondent himself and his own career—the embarrassment and blow to his reputation as the result of public disciplinary proceedings; the disclosures he has had to make to his malpractice carrier, CPCS and the Bar Advocate Program; and the “huge amount of time that this has taken out of my personal life and my professional life.”. Lack of remorse is a factor in aggravation.

He also had not been "entirely candid" about the situation.

Sanction

Although we have not found a case precisely on point, we conclude that the respondent’s misconduct is more in line with the public reprimand cases we have summarized above.

(Mike Frisch)

January 26, 2023 in Bar Discipline & Process | Permalink | Comments (0)

No Mitigating Factors

An attorney has been disbarred by the Minnesota Supreme Court

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Ignatius Chukwuemeka Udeani. The petition alleged that Udeani breached his ethical duties to five clients, three of whom were vulnerable immigrants, including by misappropriating client funds and providing incompetent representation, and then did not cooperate with the Director’s investigations into those activities. After a hearing, the referee concluded that Udeani committed the alleged misconduct and that multiple aggravating factors were present, including Udeani’s extensive experience as a lawyer, long discipline history, lack of remorse, and the vulnerable nature of his clients who were harmed. The referee found no mitigating factors. The referee recommended that Udeani be disbarred. We agree. Based on Udeani’s misconduct, we disbar Udeani from the practice of law.

Udeani was admitted to practice law in Minnesota in 2000. He has an extensive disciplinary history: he was put on private probation in 2007; admonished in 2012 and 2013; suspended for 30 days in 2017 and, when reinstated, placed on supervised probation for a period of 2 years; indefinitely suspended for a minimum of 3 years in 2020; and admonished four more times in 2020. This prior discipline was for multiple instances of misconduct concerning Udeani’s fee arrangements with clients, trust accounts, and failure to competently and diligently represent clients.

(Mike Frisch)

January 26, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 25, 2023

Former Washington Bar President Suspended In Idaho

A former President of the Washington State Bar has been suspended for five years with two years withheld by the Idaho Supreme Court for misconduct in connection with expenses charged to two law firms and to the Washington State Bar Association.

The Journal of Business reported on the charges

The Idaho State Bar has charged former Washington State Bar Association President Robin L. Haynes with professional misconduct in relation to five counts of theft brought by Spokane County prosecutors last year. 

Last February, in the face of those criminal charges, Haynes agreed to forego practicing law in the state of Washington for five years and entered a felony diversion program.

Following its own investigation, the Idaho State Bar calls for Haynes to be suspended, yet didn’t disclose a length of time. It also calls for Haynes to pay the costs and expenses incurred in investigating and prosecuting her case, and “for other such relief as if deemed necessary and proper.”

Joseph N. Pirtle, an attorney with the Idaho State Bar, says that the organization allows for reciprocal discipline for conduct in another state where an attorney has been charged. 

Summons were addressed to Haynes at her Post Falls, Idaho law practice GIANTlegal PLLC on May 4. Pirtle says Haynes’ lawyer informally accepted the complaint on her behalf. 

Haynes has 21 days to respond to the summons, at which point proceedings will go on like a typical criminal case.

In June 2012, Haynes was elected to the Board of Governors for the Washington State Bar Association. She then served as the youngest WSBA president from October 2016 to about June 2017. 

The charges stem from allegations levied during Haynes’ tenure as an associate attorney with the Spokane-based law firm McNeice Wheeler PLLC, from December 2015 through January 2017, and her time with Spokane-based Witherspoon Kelley PLLC, from October 2013 to December 2015. 

In response to these acts, the ISB states that the conduct by Haynes “reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” 

The ABA Journal also reported on the matter. (Mike Frisch)

January 25, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Idaho Explains Rejection Of Proposed Anti-Discrimination Rule

The Idaho Supreme Court has issued a statement explaining its decision to reject an anti-discrimination ethics rule that had been proposed by vote of State Bar members

In November 2021, the Idaho State Bar Commissioners (“ISB” or “the Bar”) submitted proposed Resolution 21-01 for consideration by the Bar’s members. The resolution “recommend[ed] Idaho Rule of Professional Conduct 8.4 be amended to include anti-discrimination and anti-harassment provisions.” This resolution was voted on by eligible members of the Bar and passed by a margin of 680 to 329. After the resolution was passed, the Bar recommended to the Idaho Supreme Court that this Court adopt the resolution and amend the Idaho Rules of Professional Conduct. We decline to do so.

We acknowledge that a full explanation of our rejection of the resolution is an unusual response. However, we think it appropriate to explain our decision in some detail to explain our rationale for taking the action we are in order to provide guidance going forward in the event the Bar should seek to amend Idaho Rule of Professional Conduct 8.4 in the future. We commend the Bar’s continued attempts to address unlawful discrimination and harassment in the legal profession. However, we feel obliged to reject the proposed resolution for the reasons discussed below.

Analysis

We conclude that the language of the resolution goes beyond the regulation of employment practices and is instead a content-based regulation of speech protected by the First Amendment. As a result, it is subject to a strict scrutiny analysis. While the framework of the resolution is based on Title VII principles of unlawful discrimination and harassment, and while the resolution does regulate some conduct, the resolution also singles out certain topics for professional discipline while leaving other topics not subject to discipline. An argument similar to the P&E Section’s argument was rejected by the Court in R.A.V.

Void for vagueness

Resolution 21-01 is also unconstitutionally vague. The Resolution leaves a reasonably prudent attorney with doubt about exactly what type of conduct or speech constitutes misconduct. Comment 4 in Resolution 21-01 attempts to narrow attorney conduct subject to the proposed rule. It specifically exempts “bar association, business, and social activities,” but only those that are “outside the context” of what the Resolution does include. This comment is confusing because it leaves the reader wondering what is included in the “context of representing a client or operating or managing a law practice or acting in the course and scope of employment in a law practice.” Would a law firm’s holiday party fall “outside the context of . . . the course and scope of employment in a law practice[?]” What about a business dinner that included some of the firm’s partners but not all of them? What about attendance at the Idaho State Bar Annual Meeting or Bar section meetings when required by one’s law firm? These hypotheticals merely offer a small example of the gray area created by the Resolution regarding what type of attorney conduct and speech would rise to the level of professional misconduct.

Finally, and importantly, the Resolution could have a chilling effect on attorney speech. While there is evidence that the Resolution’s drafters sought to curb discrimination and harassment identified in the survey conducted by the Bar, such an intent cannot be used to justify the possible chilling of free speech. The Resolution covers a substantial amount of protected speech. By the same token, under a vagueness analysis, protected speech could be chilled due to both the Resolution’s expansive scope and its undefined terms. As a result, the Resolution is unconstitutionally vague. 

(Mike Frisch)

January 25, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Interim Suspension Follows Arrest

An interim suspension has been ordered by the Arkansas Supreme Court Committee on Professional Conduct of the son of a former Governor of the state

Lisa Ballard, Executive Director of the Supreme Court Office of Professional Conduct, has presented to the Committee her verified Petition for Interim Suspension, pursuant to Section 16.4(3) of the Supreme Court Procedures Regulating Professional Conduct of Attorneys at Law (2011) (the "Procedures"), alleging Respondent William Asa Hutchinson, III, Arkansas Bar No' 2001115, presently poses a substantial threat of serious harm to the public and to his clients if he
continues to practice law.

The Arkansas Supreme Court Committee on Professional Conduct (the "Committee"), pursuant to the mandate of Section 16 of the Procedures, finds the allegations of the petition are "serious misconduct", and involve alleged violations of the Arkansas Rules of Professional Conduct.

The Committee further finds that an interim suspension of Respondent's privilege to practice law under the authority of his Arkansas law license shall be imposed pursuant to Section 17.E(3XcXiii), of the Procedures (201 1)

KNWA reported on the attorney's recent arrest 

According to the affidavit, on Jan. 13, William was pulled over for speeding, reportedly driving 71 mph in a 45 mph zone.

The affidavit says the sheriff’s deputy who stopped William noticed him slurring his words when he would speak and could smell a strong odor of alcohol.

According to the affidavit, the deputy suspected William of driving under the influence of alcohol based on his actions and odor and asked him to exit the vehicle and perform several standard field sobriety tests on the corner of Been Street and SW 18th Street, which he failed.

The affidavit says William was arrested for driving while intoxicated, and the deputy searched William’s car where he found a clear plastic baggie with a white powdery substance.

According to the affidavit, the deputy performed a field test on the substance. The test showed a positive result for cocaine.

The affidavit says the deputy also found a Glock 43 9mm handgun in the center console of the car.

(Mike Frisch)

January 25, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 24, 2023

Media Remarks Draw Reprimand

The Manitoba Law Society has reprimanded an attorney for media comments about a high profile case

Mr. Prober made derogatory and unfounded comments to the media about the complainants in the Peter Nygard case. He said their statements about their interactions with his client were "completely false", that they were being paid for "false evidence" and had 'jumped' on "the money train, the gravy train". These comments perpetuated long discredited rape myths about complainants in sexual assault cases. They were hurtful and indeed harmed the complainants in question as was stated in two statements read to the Panel (Exhibits 2 and 3)

The attorney admitted the misconduct and showed mitigation

      Mr. Prober has successfully completed the Society's course Trauma Informed Lawyering since July 2020.

Mr. Prober provided some appropriate, apologetic, thoughtful, and insightful comments. Specifically, he said that his comments were "harsh, harmful and hurtful".

 Mr. Prober has been a member in good standing for over 52 years. This is a key, mitigating consideration in our conclusion that Mr. Prober will not reoffend and that there is no risk to the public in his continuing to practise

Sanction

In this case the professional misconduct brings the legal system into disrepute. This affects the public's confidence in and perception of the profession. The member had an obligation to be civil and courteous in his public statements defending his client. In recklessly attacking the credibility of a number of complainants without adequate supporting facts he breached that obligation.

For the foregoing reasons, the Panel has unanimously determined that a reprimand, as jointly recommended, is appropriate.

CTV News reported on charges against Peter Nygard

Once known as canada’s Hugh Hefner, Nygard founded his namesake fashion company in Winnipeg in 1967. He was known for his lavish parties at his Bahamas estate and hosting the rich and famous.

In recent years, he became the subject of sexual assault allegations, including recruiting girls for sex, some as young as 14 years old.

Nygard was first taken into custody in Winnipeg in December 2020. In October 2021, he agreed to be extradited to the United States where he faces charges of sex trafficking and racketeering.

In Toronto, the allegations of sexual assault and forcible confinement involve eight victims.

The attorney was called to the Bar in 1970 and has no prior discipline. (Mike Frisch)

January 24, 2023 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 23, 2023

"Sure He Can"

An attorney's conduct drew a two-year suspension with possible limited reinstatement after a year from the Delaware Supreme Court

The violations arose from a private investigator’s post-trial contact with a juror without court permission and Beauregard’s statements to the Superior Court about the juror contact.

The story

In March 2019, Beauregard accepted a case from the OCC to represent Ahmir Bailey. The State charged Bailey with first degree murder. On October 8, 2019, after a two-week trial, a Superior Court jury found Bailey guilty of first-degree murder. On October 14, 2019, Beauregard filed a motion for a new trial. He based the motion on possible juror bias stemming from a connection between a juror (“the Juror”) and Bailey’s co-defendant Eugene Riley. A secretary and a paralegal had discovered the possible connection by searching Facebook.

On October 18, 2019, Beauregard retained O’Rourke Investigative Associates (“ORIA”), a private investigative agency owned by Michael O’Rourke, to search for online evidence of a connection between the Juror and Riley.

The problem was in an email exchange that involved, among other things, the investigator's question whether the juror could be interviewed

At 4:52 p.m. Beauregard responded “Sure he can” in an email he sent only to O’Rourke, not Truitt.  According to Beauregard, he mistakenly and carelessly believed that he was re-confirming his instructions for ORIA to proceed with the interviews of the twenty-two non-juror witnesses, not that he was authorizing ORIA to contact the Juror.18 At 4:58 p.m., O’Rourke responded “Thx” to Beauregard’s email.

The investigator had direct contact with the juror; Respondent filed a new trial motion

On March 16, 2020, the Superior Court denied the motion for new trial.  The court concluded that the Juror and Riley having a mutual Facebook friend who was Riley’s cousin and who was also related to the Juror was insufficient for a new trial or an evidentiary hearing.  The court also found a violation of Rule 3.5 by Beauregard based on ORIA’s improper contact with the Juror without the court’s permission.

The Office of Disciplinary Counsel brought charges

The Board was not persuaded by the ODC’s argument that Rule 3.5(c) was a strict liability rule, and therefore concluded that the ODC had to show by clear and convincing evidence that Beauregard knowingly assisted or induced Stack to contact the Juror. The Board found that the ODC had not satisfied this burden because Beauregard, an experienced criminal defense attorney, was well-aware of the prohibition against juror contact without court permission, and negligently sent the “Sure he can” email “using his iPhone at the end of a busy day involving court appearances in different matters in both the morning and afternoon.” The Board accepted Beauregard’s explanation that he meant to send the email as reconfirmation that ORIA could conduct non-juror interviews, not to authorize ORIA to contact a juror.

Failure to supervise

The Board concluded that Beauregard had violated Rule 5.3(a) by negligently failing to make reasonable efforts to ensure that ORIA did not contact jurors and by negligently sending the “Sure he can” email to O’Rourke. The Board acknowledged ORIA’s expertise and initial statement that there would be no juror contact, but emphasized that Beauregard had never previously worked with ORIA and that the nature of the investigation placed the responsibility on Beauregard to reinforce the requirements of Rule 3.5(c) with ORIA.49 As to Rule 5.3(c)(1), the Board found that ODC had not shown by clear and convincing evidence that Beauregard knowingly ordered ORIA to contact the Juror or knowingly or impliedly ratified that contact.

The Board also found that Beauregard violated Rule 5.3(c)(2) by failing to take remedial action after learning on November 5th that Stack had contacted the Juror. Although Beauregard ended the investigation and chose not to act on the Juror’s willingness to speak to him, he did not inform the Superior Court or the prosecutor of the contact until the prosecutor asked him directly at the December 13th hearing.  Nor did he inform O’Rourke of what happened so O’Rourke could ensure that juror contact would not be repeated in ORIA’s work for OCC contract attorneys.

Alleged false statements

The Board found that Beauregard’s representation that O’Rourke acted on his own in contacting the Juror was a negligent misrepresentation in violation of Rule 8.4(c).  Further, the Board decided that Beauregard’s representations that ORIA was still investigating, that he did not direct ORIA on whom to speak to, and that he did not direct ORIA to contact anyone were knowing misrepresentations in violation of Rule 8.4(c).

The court

After our independent review of the record, there is substantial evidence to support the Board’s findings that Beauregard violated DLRPC 3.5(c), 5.3(a), and 5.3(c)(2). As the Board found, and Beauregard does not contest, Beauregard failed to take reasonable steps to ensure that the non-lawyers assisting him acted consistent with his ethical duties; was negligent when he sent the “Sure he can” email; and failed to take any remedial action to mitigate ORIA’s improper juror contact until it was exposed at the December 13th hearing.

Sanction

The Court approves the Board’s findings and adopts the recommended two-year suspension with the opportunity for limited reinstatement after one year to represent OCC clients.

The attorney had just completed a six-month suspension for other misconduct.(Mike Frisch)

January 23, 2023 in Bar Discipline & Process | Permalink | Comments (0)