Sunday, September 22, 2019
The New Jersey Supreme Court has ordered the disbarment of a former county party chairman convicted of RICO and other crimes.
The majority of the Disciplinary Review Board favored that sanction
Here, respondent did not have prior notice of the Court’s announcement in Cammarano, because his misconduct pre-dated the issuance of that decision. However, the holding in Cammarano did not create new law with regard to the discipline imposed on an attorney who engages in bribery. Indeed, New Jersey attorney disciplinary jurisprudence has an unfortunately lengthy history of disbarment cases involving bribery, most pre-dating respondent’s criminal conduct.
He was not a fringe player in the scheme
Here, however, respondent was a part of the orchestration of the bribery scheme, and he benefited from it. Moreover, there were distinct victims - the several municipalities that suffered financial harm as a result of his acts...
In hopes of staving off disbarment, respondent presented mitigation in the form of letters from twenty-eight individuals and a video with additional testimonials. He has been a member of the bar for thirty-six years without prior discipline, performed legal services on a pro bono basis, and gathered the testimonials of members of the bar and the public as to his fine character, his qualifications as an attorney, and his service to the community as a firefighter and in other respects.
Respondent’s good deeds have not gone unnoticed. However, as in several of the disbarment cases cited herein, attorneys with compelling mitigation were disbarred for their involvement in official bribery. For example, in Jones, the attorney was disbarred despite substantial financial needs, emotional stress, inexperience at the bar, remorse, and letters of support from his family and members of his community. The mitigating factors were simply insufficient to mitigate the harm caused by his involvement in official bribery.
A DRB minority would impose a retroactive three-year suspension
In concluding that disbarment is not warranted in this case, we do not suggest that respondent was blameless or that he is not deserving of serious discipline. We have little doubt that his position as a party official carried weight with municipal officials to whom he recommended C3. Respondent’s client, C3, benefitted from his recommendation and respondent was compensated, by payment of a commission, as a result.
Saturday, September 21, 2019
From the web page of the Tennessee Supreme Court
The Tennessee Supreme Court has affirmed the disbarment of Jennifer Elizabeth Meehan from the practice of law in Tennessee based on her conviction for bank fraud in federal court.
Ms. Meehan served as president of a sorority’s housing board overseeing construction and furnishing of a new sorority house at her alma mater, the University of Alabama. Through this work, she mishandled funds, including using false documents to open unauthorized banking accounts, submitting false invoices, and moving funds to a personal account. After Ms. Meehan pleaded guilty to bank fraud, the United States District Court for the Northern District of Alabama sentenced her to six months in prison and ordered her to pay restitution.
The Tennessee Supreme Court suspended Ms. Meehan from practicing law and referred the case to the Board of Professional Responsibility to start disciplinary proceedings. A hearing panel appointed by the Board of Professional Responsibility heard evidence related to the plea agreement in the federal bank fraud case as well as a previous disciplinary matter for misrepresenting her credentials in which she received a public sanction. The hearing panel applied Standards 5.1 and 5.11 under the American Bar Association’s Standards for Imposing Lawyer Sanctions and considered both aggravating factors submitted by the Board and mitigating factors submitted by Ms. Meehan. Ultimately, the panel determined that Ms. Meehan should be disbarred.
On appeal, the Davidson County Circuit Court held that the hearing panel’s decision was arbitrary and imposed a five-year suspension. The Board of Professional Responsibility appealed to the Supreme Court, arguing that the circuit court improperly substituted its judgment for that of the hearing panel and erred in modifying the hearing panel’s decision based on a review of sanctions imposed in similar cases.
The Supreme Court examined the presumptive sanction and the applicable aggravating and mitigating factors under the American Bar Association’s Standards for Imposing Lawyer Sanctions, and concluded that the hearing panel’s decision to disbar Ms. Meehan was supported by substantial and material evidence and was neither arbitrary nor an abuse of discretion. The Supreme Court also held that the trial court did not have the authority to modify the hearing panel’s decision based on a review of sanctions imposed in similar cases. Thus, the Supreme Court reversed the circuit court’s judgment imposing suspension and affirmed the hearing panel’s decision to disbar Ms. Meehan.
To read the unanimous opinion of the Court in Jennifer Elizabeth Meehan v. Board of Professional Responsibility of the Supreme Court of Tennessee, authored by Justice Sharon G. Lee, please visit the Opinions section of TNCourts.gov.
Details from the opinion
Jennifer Elizabeth Meehan, a licensed Tennessee attorney, mishandled funds belonging to Gamma Phi Beta sorority at the University of Alabama. Ms. Meehan pleaded guilty to bank fraud, 18 U.S.C. § 1344 (2012), in the United States District Court for the Northern District of Alabama.
Ms. Meehan, while attending the University of Alabama, was a member of Gamma Phi Beta sorority. After graduating, Ms. Meehan was an active sorority alumna, serving as president of the sorority’s housing board. As board president, Ms. Meehan oversaw the construction and furnishing of a new sorority house. Her responsibilities included coordinating the selection and purchase of furniture and other items for the house.
Ms. Meehan arranged to buy furniture for the new sorority house through Ai Corporate Interiors, LLC in Birmingham, Alabama. Ai Corporate Interiors, an authorized dealer of furniture made by Teknion, LLC, gave Ms. Meehan a template that allowed her to generate invoices on her computer for orders of Teknion furniture. Ms. Meehan prepared and submitted invoices for furniture expenditures to Greek Resource Services, Inc., which served as manager and custodian of the sorority’s funds, including funds for furnishing the new sorority house. Under the sorority’s agreement with Greek Resource Services, the sorority could have no bank accounts other than the accounts managed by Greek Resource Services.
In September 2014, Ms. Meehan embarked on a scheme to obtain sorority funds from Greek Resource Services by submitting false furniture invoices and using a bank checking account opened under a fictitious name. She began by creating an invoice from “Technion, LLC” (Technion is a misspelling of Teknion, the furniture supplier’s name) with an address of P.O. Box 251, Villa Rica, Georgia. Ms. Meehan had rented this post office box as a part of her plan. She submitted an $88,311.60 invoice to Greek Resource
Services for sorority house furniture that she had not ordered.
A few days later, Ms. Meehan opened a business checking account at First Citizens Bank & Trust Company in Carnesville, Georgia, under the “Technion” business name and listed the Villa Rica, Georgia post office box as the account’s address. To open the account, Ms. Meehan provided the bank with a false Employer Identification Number and a fictitious corporate resolution identifying her as the Chief Financial Officer.
Neither the sorority housing board nor Greek Resource Services knew about the First Citizens Bank account. Later that day, Ms. Meehan went to a different branch of First Citizens Bank to deposit a check received from Greek Resource Services in the invoiced amount of $88,311.60. The check, issued by Greek Resource Services from the sorority’s account, was payable to “Technion Accounts Receivable.”
In October 2014, First Citizens Bank notified Ms. Meehan that the Employer Identification Number she had provided was incorrect. She then obtained and provided to the bank Teknion’s correct Employer Identification Number and address in Mount Laurel, New Jersey. After receiving this information, the bank changed the name on the account to Teknion, LLC and the address to Teknion’s New Jersey address.
In November 2014, Ms. Meehan created and submitted to Greek Resource Services a second false invoice payable to “Technion, LLC” for a furniture order in the amount of $286,740. Three days later, Greek Resource Services issued a check for the invoiced amount. Ms. Meehan deposited the check at a First Citizens Bank branch in Buckhead, Georgia. With this deposit, the balance in the account she had opened was more than $375,000.
In January 2015, Ms. Meehan went to a First Citizens Bank branch in Anderson, South Carolina, and wired $175,000 from the Teknion account to her personal business account at Bank of America. She also changed the address on the First Citizens Bank account from Teknion’s New Jersey address to a street address in Villa Rica, Georgia. In March 2015, Ms. Meehan obtained a cashier’s check for $175,000 from her personal business account at Bank of America, payable to Ai Corporate Interiors for furniture that she had purchased for the sorority house. Ms. Meehan closed the Teknion account later that month after being notified by First Citizens Bank that there was a problem with the account. She arranged for the remaining funds in the account to be transferred to Greek Resource Services for deposit into the sorority’s account.
A guilty plea followed indictment.
The hearing panel questioned Ms. Meehan about a 2011 public censure she had received based on her preparation and use of a resume that misrepresented her credentials. The resume falsely stated that she had clerked for a federal district judge when she had only completed a judicial externship. The resume also incorrectly represented that she had published a law review article, but Ms. Meehan had only submitted the article for publication. In addition, Ms. Meehan affirmed in writing during the 2011 disciplinary proceedings that the article had been published.
In sum, the hearing panel’s application of aggravating and mitigating factors and its imposition of disbarment were supported by substantial and material evidence. The hearing panel neither acted arbitrarily nor abused its discretion. See Lockett, 380 S.W.3d at 27 (citing Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)) (“A hearing panel does not abuse its discretion when it makes a choice among several acceptable alternatives.”). Here, disbarment was an acceptable sanction for Ms. Meehan’s bank fraud conviction. The application of aggravating and mitigating factors did not warrant a departure from the presumptive sanction under the ABA Standards.
Friday, September 20, 2019
The Nevada Supreme Court sanctioned an attorney for statements made in multiple recusal motions
We conclude that the State Bar proved that Colin made statements in pleadings to the court concerning the integrity of several justices that he knew to be false or with reckless disregard for their truth or falsity and that he engaged in conduct prejudicial to the administration of justice, but the evidence does not establish that Colin engaged in conduct intended to disrupt a tribunal because the alleged conduct did not occur inside a courtroom or similar setting. Considering the nature of the misconduct and similar discipline
cases, we conclude that a six-month-and-one-day suspension serves the purpose of attorney discipline.
This discipline matter arises out of Colin's representation of condemned inmate Charles Lee Randolph in an appeal from a district court order denying Randolph's second postconviction petition for a writ of habeas corpus.
After losing on appeal
In a petition for rehearing and a motion to disqualify the four justices who signed the Randolph disposition, Colin made a number of unsupported and outrageous remarks about the court and the justices, many of which were unrelated to the matter on which he sought rehearing.
[T]he Court took its dishonesty to an unprecedented new level, and . . . the Court affirmatively fabricated a lie, blatantly contrary to the record. . . . Indeed, the Court's own Order proves that the Court is drunk with power, acting like a lawless bully, just lying and cheating to accomplish its evil objective to see Randolph dead.
And in another motion
This Nevada Supreme Court has no respect for the Nevada Constitution, or the law of the United States of America. The Court's despicable and blatantly lawless actions have repeatedly proven this sad truth.
[Flairness and honesty are anathema [sic] to this Court, which seeks only to use its brute power to make up lies, get paid, and wrongly blame others for its evil objective—the lynching of Charles Lee Randolph.
Before that same court here
Colin contends that the evidence does not support the panel's conclusions that he violated RPC 3.5(d), RPC 8.2(a), or RPC 8.4(d) because "[t]he State Bar of Nevada intentionally lied to the hearing panel in an effort to get [him] disciplined for telling the truth!"(Emphasis omitted.) The State Bar does not directly respond to this argument.
The court finds that the conduct was not disruptive
Colin's conduct did not occur in a courtroom setting. His statements and conduct all occurred in writing, instead of in-person before a tribunal. Thus, his conduct could not have disrupted the tribunal's proceeding in Randolph in the sense contemplated by RPC 3.5(d). Accordingly, we conclude that the pangs findings fail to establish that Colin violated RPC 3.5(d).
But violated Rule 8.2
First, while many of Colin's statements about the justices are fairly characterized as opinions, substantial evidence supports the panel's findings that at least some of them were statements of fact. The strongest examples of factual statements include Colin's statements that the justices "affirmatively alter[edr the appellate record"; "affirmatively fabricated a lie, blatantly contrary to the record", and have actively participated "in a lengthy and ongoing unconstitutional judicial scheme and conspiracy to circumvent the Nevada Constitution, steal money from the Nevada taxpayers, and put $30,000 unconstitutional dollars a year into their own, and/or their judicial friend's pockets" by serving on the Law Library Commission.
Second, substantial evidence supports the panel's findings that Colin's statements concern the qualifications or integrity of the justices. In particular, he accused them of lying, altering the record in a case, engaging in an unconstitutional conspiracy, and stealing money from the taxpayers.
Finally, substantial evidence supports the panel's findings that Colin either knew the statements were false or made the statements with reckless disregard for their truth. In particular, Colin admitted in his affidavit supporting one of the post-judgment disqualification motions that he waited to assert the illegality of the justices compensation for service on the library commission until after the decision in Randolph. He stated that he "considered filing a Motion to Disqualify in 2011 based only on the Justices [sic] unconstitutional participation in the conspiracy to circumvent the Nevada Constitution pursuant to the bogus 'Library Commission but decided to give the Justices the benefit of the doubt." From that admission, it can be inferred that Colin knew the compensation was not illegal and made the false statement only because the court ruled against his client. At the very least, substantial evidence supports the panel's findings that Colin made those statements with reckless disregard for the truth, as any compensation for service on the Law Library Commission necessarily was authorized by the Legislature.
In sum, the State Bar established by clear and convincing evidence that Colin made statements of fact that impugned the justices' integrity, with knowledge of the statements' falsity or with reckless disregard for whether they were false. Based on that evidence and giving deference to the panel's findings of fact, we conclude that Colin violated RPC 8.2(a).
The extra day requires him to petition for reinstatement.
The case is In the Matter of Discipline of Colin. (Mike Frisch)
The Ohio Supreme Court announces receipt of a report on its bar discipline system
A task force convened by Ohio Supreme Court Chief Justice Maureen O’Connor to examine the state’s disciplinary system for judicial officers and attorneys has released its final report, including a variety of recommendations to the Court aimed at improving and promoting trust in the disciplinary system.
The 117-page “Report and Recommendations of the Supreme Court of Ohio Task Force on the Ohio Disciplinary System” follows a decision by Chief Justice O’Connor last year to convene a highly qualified group to study the state’s disciplinary system for judicial officers and attorneys.
The task force was comprised of 20 members from justice-related backgrounds. Chaired by Cincinnati attorney Paul DeMarco, members included judges, lawyers, and Ohio Supreme Court Justice Patrick Fischer.
The report will be formally presented to the seven justices of the Court for their review and consideration this fall.
The task force’s recommendations are aimed at strengthening and furthering public trust and confidence in the judiciary system and include proposals such as:
- Expanding the role and responsibilities of local bar counsel in certified grievance committee investigations
- Maintaining the current unitary system for investigating and adjudicating grievances against attorneys and judges
- Requiring the Office of Disciplinary Counsel to have staff dedicated to the investigation and prosecution of allegations of misconduct by judicial officers
- Streamlining and improving the process for investigating, prosecuting, and adjudicating grievances against Supreme Court justices
- Creating procedures to address judicial fitness questions that arise during a disciplinary investigation or prosecution
- Informing attorneys against whom a grievance has been filed of the available services from the Ohio Lawyers Assistance Program
- Expediting disciplinary cases, through measures such as email, and increased use of disciplinary orders in lieu of full opinions.
Today's wish: that the District of Columbia Court of Appeals - which has not had such a study done in a dozen years despite well-documented systemic delays - undertake a similar critical examination in my conscious lifetime. (Mike Frisch)
An Illinois Hearing Board has proposed a split sanction for an attorney's misconduct after missing the statute of limitation on a personal injury claim
As to negotiating over prospective liability
Rule 1.8(h)(1) provides that a lawyer shall not "make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement." Pursuant to Rule 8.4(a), it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct.
The Administrator alleges Respondent violated Rules 1.8(h)(1) and 8.4(a) by "attempting to have Beachel agree to accept payment of $10,000 in exchange for releasing Respondent from liability for Respondent's failure to file a personal injury action on his behalf within the applicable statute of limitations when Beachel was not independently represented in making the agreement." Respondent denied this allegation. She admitted offering Beachel $10,000 but denied asking Beachel to sign a release or discussing release terms with him.
The evidence established that, while no agreement limiting Respondent's liability was executed, Respondent clearly attempted to enter into such an agreement with Beachel. Respondent intended for Beachel to release her from liability for malpractice in exchange for the $10,000 she offered to pay him. It is undisputed that Beachel was not independently represented at the time Respondent made the offer. Consequently, we find the Administrator proved Respondent violated Rule 8.4(a).
We do not find sufficient proof that Respondent violated Rule 1.8(h)(1). Beachel did not accept Respondent's offer to enter into an agreement, so no agreement was executed. Consequently, Respondent and Beachel did not "make an agreement" within the meaning of Rule 1.8(h)(1). Rather, Respondent's conduct is properly treated as an attempt to violate Rule 1.8(h)(1). See In re Banks, 2011PR0008, M.R. 25136 (Mar. 19, 2012). Accordingly, we find the Administrator proved Respondent violated Rule 8.4(a) by attempting to make an agreement prospectively limiting her malpractice liability but the mere attempt did not constitute a violation of Rule 1.8(h)(1).
As to settling claims with an unrepresented client
Rule 1.8(h)(2) provides that a lawyer shall not "settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith." While the Complaint states Respondent attempted to settle a potential claim for liability without advising Beachel in writing to seek advice from independent counsel, it does not include an allegation that Respondent violated Rule 8.4(a), which prohibits a lawyer from attempting to violate the Rules of Professional Conduct.
Thus, the issue before us is whether the Administrator proved a violation of Rule 1.8(h)(2). We find he did not. The plain language of Rule 1.8(h)(2) instructs that a lawyer may not "settle a claim" without taking certain actions to protect the client. There was no settlement in this case, as Beachel did not accept Respondent's offer. Rule 1.8(h)(2) does not address offers or attempts to settle a claim, and we decline to expand the scope of the Rule beyond its plain language.
Although Respondent clearly attempted to settle with Beachel without giving him the proper written admonitions and opportunity to seek independent legal advice, the Administrator failed to charge Respondent with violating Rule 8.4(a). The Supreme Court has instructed, "As a matter of due process, an attorney who is charged with misconduct and faces potential discipline must be given adequate notice of the charges, including the rule or rules he is accused of violating." In re Karavidas, 2013 IL 115676, par. 103. We presume the Administrator's omission of Rule 8.4(a) with respect to this charge was inadvertent but, nonetheless, we cannot discipline a lawyer for uncharged misconduct. Karavidas, 2013 IL 115676, par. 73. For these reasons, we find the Administrator failed to prove a violation of Rule 1.8(h)(2).
As to sanction
Respondent's misconduct was serious but not egregious. It was limited in time and did not involve dishonesty. Nonetheless, for the reasons set forth in more detail below, we believe a period of suspension is warranted.
There is little mitigating evidence to consider, other than Respondent's cooperation in these proceedings. While Respondent expressed her intention to compensate Beachel for the loss of his cause of action, she has not done so as of the date of the hearing. Respondent did not present any character witness testimony, evidence of pro bono work, or involvement in her community.
Several factors aggravate Respondent's misconduct. She attempted to take advantage of Beachel, who was a vulnerable client. See In re Bates, 05 CH 48, M.R. 22711 (Nov. 18, 2008). She caused harm to Beachel when her conduct forced him to obtain a new attorney. In addition, we are not convinced Respondent recognizes the importance of complying with her ethical obligations. See In re Samuels, 126 Ill. 2d 509, 531, 535 N.E.2d 808 (1989). Based on her statements to the Panel, she appears to view settlement with her clients as the primary means for addressing her ethical lapses rather than taking steps to prevent the misconduct from occurring in the first place.
Respondent's prior discipline is another significant factor in aggravation. In light of her previous suspension for neglecting four client matters and failing to tell clients their matters were dismissed, Respondent should have had a heightened awareness of her obligation to communicate with Beachel. See In re Storment, 203 Ill. 2d 378, 401, 786 N.E.2d 963 (2002). We are concerned that Respondent did not recognize the importance of communicating with Beachel as soon as possible regarding the status of his case and did not have a basic awareness of the rules regarding limiting her liability to a client for malpractice.
...we recommend that Respondent, Paula McKemie Newcomb, be suspended for eighteen months, stayed after nine months by nine months of probation, subject to [enumerated] conditions
Dissent on sanction
I concur in the factual findings and the findings as to the charges of misconduct. I dissent with respect to the sanction recommendation, as I do not agree that Respondent should be placed on probation. Given that Respondent has engaged in misconduct after completing probation for similar misconduct, I do not believe another term of probation would be a productive use of the Commission's resources. Therefore, I recommend that Respondent be suspended from the practice of law for nine months.
Thursday, September 19, 2019
Dan Trevas describes a bar discipline decision on the web page of the Ohio Supreme Court
A unanimous Supreme Court agreed to the partially stayed suspension of Brian J. Halligan, but the justices split on the terms of the monitored probation it imposed. Halligan was found to have violated multiple professional conduct rules when he appeared intoxicated in court while representing a client and again when he went to answer for his own alcohol-related traffic violations.
The per curiam opinion stated that Halligan violated additional rules by failing to diligently represent a client by providing incompetent representation to another client, and for failing to return unearned fees to two clients.
Judge Stops Trial, Attorney Arrested Shortly after Leaving Courthouse
In November 2016, Halligan was appointed to represent a client, who had been indicted on five felony charges. In December 2016, Halligan was charged with operating a vehicle under the influence of alcohol (OVI) and failing to stop with assured clear distance. He was granted limited driving privileges.
The client’s case was set for a jury trial in late January 2017. On the morning of the trial, the client noticed that Halligan smelled of alcohol and was slurring his words. Court personnel overheard the accusations and alerted the judge. The judge asked Halligan if he had been drinking that morning and Halligan denied that he had. The judge noted that court personnel found Halligan smelled of alcohol and that Halligan refused to submit to a breath-alcohol test.
The judge removed Halligan from the case and delayed the trial. Halligan left the courthouse and was seated in his car when law enforcement officers observed signs of intoxication and arrested him. A blood-alcohol test conducted about four hours after the jury trial had been scheduled to start showed that Halligan had a blood-alcohol concentration of nearly 0.11 percent, which is above the legal threshold of .08. Halligan was charged with having physical control of a vehicle while under the influence of alcohol and his limited driving privileges were revoked. Halligan claimed he did not receive notice of the revocation.
Attorney Arrested Again after Court Appearance
Halligan appeared at a March 2017 hearing for his January physical-control offense. Court security and others once again noticed Halligan smelled of alcohol, and police noticed he had driven himself to the courthouse despite the fact that his driving privileges had been revoked. After the hearing, Halligan left the courthouse and drove away. When law enforcement officers stopped and questioned him, Halligan admitted to drinking vodka the night before but denied any subsequent drinking.
He was charged with OVI and driving under suspension. A sample taken that day showed a blood-alcohol concentration of .037 percent, which is below the legal limit.
Halligan later pleaded guilty to the January charge of having physical control of a vehicle while under the influence and driving under suspension. The March OVI charge was dismissed. He was sentenced to 30-day and 60-day jail terms, for which he was required to serve only three days. He also was fined and placed on probation for one year. At a subsequent hearing, he pleaded guilty to the December 2016 OVI charge and was sentenced to 180 days in jail, with 177 days suspended. He was also fined, and had his driver’s license suspended.
Complaints Arose from Client Representation
In addition to the alcohol-related charges, Halligan received complaints from two other clients about his representation. One client expressed dissatisfaction with Halligan’s failure to return text messages. Halligan did not receive or respond to the messages because officers had seized his cell phone during his January arrest and kept it for three months.
The Office of Disciplinary Counsel charged Halligan with multiple violations of the rules governing the conduct of Ohio attorneys. The parties stipulated to the facts and misconduct. The Board of Professional Conduct found Halligan violated several rules, including those that prohibit lawyers from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and conduct that adversely reflects on the lawyer’s fitness to practice law. The board also found that he violated rules that require lawyers to keep clients reasonably informed about their matters and to promptly return unearned fees.
Court Disagrees on Sanction
The Court agreed with the board’s recommendation that Halligan be suspended for two years with 18 months stayed on the conditions that he engage in no further misconduct; submit proof that he has completed an alcohol-related assessment by the Ohio Lawyers Assistance Program (OLAP); complied with any terms arising from the OLAP assessment; and paid $311 in restitution to two clients. In order to be reinstated to the practice of law, Halligan will be required to demonstrate that he has completed his court-ordered probation, abstained from using alcohol, and paid the cost of the disciplinary proceedings. If reinstated to the practice of law, he must serve 18 months of monitored probation.
Chief Justice Maureen O’Connor and Justices Judith L. French and Michael P. Donnelly joined the per curiam opinion. Justice Melody J. Stewart concurred in judgment only.
Justice Sharon L. Kennedy concurred in part and dissented in part, stating the court should have established specific conditions for Halligan’s 18-month probation.
“[O]ur failure to attach conditions to probation is more than a missed opportunity to set the criteria and goals for professional redemption, it is an abdication of our duty under the Rules for the Government of the Bar,” she wrote.
Justice Kennedy stated that the Court must establish conditions every time it imposes probation as required by the Rules, and without specific conditions designed to protect the public and rehabilitate the lawyer, “monitored probation has little value.”
Justice R. Patrick DeWine joined Justice Kennedy’s opinion.
Justice Patrick F. Fischer concurred with the Court majority, but wrote separately to address the assertion that the Court is required to specify the terms of monitored probation. Justice Fischer stated the Court has the discretion to impose specific conditions or allow for a more general term of probation that gives the disciplinary counsel more flexibility in determining the best way to proceed with the monitoring.
Wednesday, September 18, 2019
The New York Appellate Division for the Second Judicial Department struck from its rolls an attorney convicted of a federal offense
Pursuant to Penal Law § 190.65, a person is guilty of this crime by engaging in a scheme with intent to defraud one or more persons by false pretenses, thereby obtaining property in excess of $1,000. In the indictment filed in United States of America v Rastogi, et al, Indictment No. 02-Cr-00673 (RMB), it was alleged that the respondent and 14 codefendants conducted an elaborate scheme to secure fraudulent loans from financial institutions by creating shell corporations engaged in international metal trading. During the respondent’s plea allocution, he admitted that once he learned of the fraudulent loan agreements, he voluntarily conspired with his employers to continue the scheme. Specifically, when forensic auditors began investigating some of the loans, he provided false information to the auditors in an effort to perpetuate the fraudulent loan scheme. The respondent agreed to the forfeiture of more than $600 million in funds and was held jointly and severally liable for this amount.
The court rejected proffered mitigation
The respondent opposes the motion to strike, contending that a lesser sanction should be imposed based upon, inter alia, his sacrifice in leaving a successful law practice in Bangalore, India, to practice in New York, his integrity during the course of his criminal proceeding, and his character references.
The crime was "essentially similar" to a New York state felony. (Mike Frisch)
The Oklahoma Supreme Court has established the Oklahoma Bar Examination Advisory Committee.
1. To consider modifications to the Oklahoma Bar Examination.
2. This study shall also include whether Oklahoma should adopt the Uniform Bar Examination and if so, under what circumstances.
3. Would the adoption of the UBE in Oklahoma negatively impact the pass rate of people of color?
4. Can the UBE be offered as a voluntary option or in addition to the current Oklahoma Bar Exam?
5. If Oklahoma adopts the UBE, should there also be an Oklahoma component? If so, what subject or subjects should be included? How would that component be administered?
6. If the UBE is adopted, how would the transition best be handled and when would the test first be given? Include in the study a recommendation for an appropriate cut score for Oklahoma.
Tuesday, September 17, 2019
The Illinois Supreme Court suspended an attorney
Mr. Freund, who was licensed in 1984, was suspended on an interim basis and until further order of the Court. He has been criminally charged in McHenry County in the death, and the concealment of the death, of his five-year-old son, A.J. Freund.
ABA News 7 Chicago reported on the interim suspension
Illinois officials have suspended the law license of a suburban Chicago man charged in the beating death of his 5-year-old son.
The state's Attorney Registration and Disciplinary Commission disclosed Monday the license of 60-year-old Andrew Freund of Crystal Lake will remain on suspension until further ruling by the Illinois Supreme Court. He's awaiting trial on charges he murdered his 5-year-old son, AJ.
The Arlington Heights Daily Herald reports Freund previously had his license suspended in 2015 over his work in the divorce case of AJ's mom, JoAnn Cunningham, who's also charged in the boy's slaying.
According to commission records, Cunningham and Freund defied a court order barring her from taking items from her marital home. The disciplinary commission said both were subsequently convicted of indirect criminal contempt.
CBS 2 Chicago reported on the criminal case
A group of activists in McHenry County is seeking changes at the Illinois Department of Children and Family Services, as the parents of 5-year-old A.J. Freund face murder charges in his grisly death.
The child welfare agency’s handling of A.J.’s case has come under intense scrutiny after his death, in light of DCFS reports that revealed A.J. told a doctor of possible abuse four months before he was killed.
“There’s other kids right now right here in McHenry County that are in the same situation. Are they going to miss them?” demonstrator Tim Phalin said as A.J.’s parents, JoAnn Cunningham and Andrew Freund Sr., were in court for a status hearing in the murder case against them.
A.J.’s parents have pleaded not guilty after they were formally indicted on a combined 61 charges of murder, aggravated battery, and concealing a homicide in A.J.’s death in April. They are accused of beating him to death, burying him in a field, and reporting him missing in an effort to cover up the murder.
Tuesday’s hearing in the case lasted only a few minutes, with the McHenry County State’s Attorney’s office asking for the couple to submit fingerprints and DNA. Prosecutors also said they are waiting for more scientific evidence in the case.
A group called “ROAR For A.J.” organized a demonstration outside the McHenry County Courthouse on Tuesday during Tuesday’s hearing. They have said they want justice for him, and policy changes at DCFS.
The demonstrators had the chance to meet with the McHenry County State’s Attorney to voice their concerns about how A.J.’s case was handled. They said their message was clear.
“A.J., in this specific case, he used his voice. He said who hurt him, how they hurt him, and he was left unheard,” said organizer Tracy Cooper Kotzman.
The demonstrators want DCFS held accountable for A.J.’s death. Four months before his death, a DCFS investigator deemed neglect allegations against A.J.’s mother unfounded, after a doctor could not pinpoint the cause of a mysterious bruise on the boy’s hip.
Police had called DCFS after A.J.’s mother, JoAnn Cunningham, had been arrested for driving on a suspended license in 2018, according to Crystal Lake Police Department reports. The officer had visited the family’s home, and noted not only was the house in deplorable condition, but A.J. was running around wearing only a pull-up and sporting a large bruise on his hip.
When a DCFS investigator arrived, A.J. said he suffered the bruise “when the family dog pawed him.” However, after going to the hospital to have the bruise checked, a doctor told the DCFS investigator A.J. claimed “maybe someone hit me with a belt. Maybe mommy didn’t mean to hurt me,” according to a DCFS timeline.
The doctor said he could not determine how A.J. was injured, stating the bruise “could have been caused by a dog, belt or a football,” according to the report.
The investigator released A.J. back into his parents’ custody, but advised his father to stay at home “as a safety precaution.”
The DCFS report also revealed significant discrepancies between the deplorable conditions police had found inside the home, and the conditions the DCFS investigator noted one day later. The investigator ultimately deemed allegations of neglect unfounded, “due to lack of evidence for cuts, welt and bruises allegation.”
The DCFS timeline also revealed that Cunningham was being investigated for her behavior as foster parent, before A.J. was born. In June, 2012, she was accused of abusing prescription drugs and neglecting her foster child.
Four months later, A.J.’s parents allegedly forced him into a cold shower for an extended period of time, and beat him to death. They reported him missing three days later, prompting a weeklong search that led to the discovery of his body wrapped in plastic and buried in a shallow grave about seven miles from the family home in Crystal Lake.
The next hearing in the criminal case was set for July 16, although Freund and Cunningham are due back in court on June 24 to determine if they will be stripped of their parental rights to A.J.’s younger brother.
Cunningham and Freund Sr. are being held on $5 million bond.
Cunningham was about seven months pregnant at the time of her arrest, and gave birth to a baby girl last week. The infant is now in state custody.
The Illinois Supreme Court reciprocally disbarred an attorney based on the sanction imposed in Missouri.
Steamboat Pilot & Today reported in October 2017
Aspen police found more than 60 credit cards and a trove of electronics, clothing and other people’s unopened mail in the car of a disbarred lawyer arrested earlier this month for shopping downtown with other people’s credit cards.
The entire booty — which includes a drone that shoots video — may be worth $30,000 or more, said Aspen police Detective Ritchie Zah.
“It’s kind of a shock to see how much stuff was there, and how many people are affected,” Zah said.
Alan Cohen, 50, has so far been charged with identity theft, criminal impersonation and criminal possession of a financial device — all felonies — based on the 12 credit cards in other people’s names he had on him when he was arrested Oct. 9 in Aspen.
Further charges may be likely based on the items found in Cohen’s 2009 white Ford Crown Victoria.
Cohen, meanwhile, posted a $7,500 bond after he was arrested and was allowed to leave the state, according to court records. He is due back in Pitkin County District Court on Nov. 6.
A District Court judge signed a search warrant for Cohen’s car two days after he was arrested. It took Aspen police until Tuesday to catalog all the receipts, credit card fragments and merchandise found inside the car.
The catalog of items includes six random Citibank or Citibank/Best Buy credit cards found in the car, as well as a cache of 55 Citibank/Best Buy credit cards — all in other people’s names, according to the search warrant and Zah. Also seized were 19 credit card notification slips belonging to 19 separate people that include the person’s name, address, account number, credit limit and cash limit, the warrant states.
Including the 12 credit cards police found in Cohen’s pocket when they arrested him outside the Louis Vuitton store in downtown Aspen, that means he had access to at least 73 individual credit cards. Zah said he suspects there may be more credit cards in the U.S. Postal Service bag of mail and the USPS priority mail box of unopened return-to-sender mail found in Cohen’s car.
Electronics seized under the search warrant include 21 Apple IPads, 21 sets of Apple wireless headphones called AirPods, five Apple IPhone 8s, 1 Apple MacBook Pro and 1 Apple MacBook Air, according to the warrant. Police also found an Inspire 2 drone for shooting video and a gimbal stabilization system for shooting stable video, the warrant states.
Other items include brand-name clothing, a Burberry watch and business cards from an unspecified attorney and a “Dollars for Gold” business. Zah said such gold-based businesses often buy electronics.
“To my understanding, he steals credit cards and uses them to buy a lot of merchandise,” Zah said. “It has happened before.”
Cohen was arrested in November 2015 with 16 Citibank credit cards in his pocket after police found him urinating in the parking lot of an Indiana mall. They later discovered about 90 credit cards in his car, none of them in Cohen’s name, according to media reports.
The former lawyer was disbarred and voluntarily gave up his law license in February 2010 after admitting he stole from clients, according to media reports and an order from the Missouri Supreme Court.
Cohen was charged with felony theft by the Brentwood Police Department in Missouri on Aug. 19, 2010 and felony theft a year later by the St. Louis County Police Department, according to the search warrant. He also was charged with trafficking in stolen identities and receiving stolen property by the St. Charles, Missouri Police Department in December 2015, the warrant states.
Cohen was arrested in Aspen after behaving strangely at high-end stores like Prada, Gucci and Dolce and Gabbana. His behavior included refusing to show identification to go with credit cards he presented, and trying to use credit cards in other people’s names, according to the warrant.
At Louis Vuitton, an employee told police Cohen was on his phone texting with people a lot, as well as taking pictures of merchandise and sending it out, the warrant states.
“Cohen explained that he was shopping for other people,” according to the warrant.
After he was caught at Louis Vuitton, Cohen declined to speak with police officers. At the time, he was carrying shopping bags from Lululemon and Prada containing nearly $1,700 worth of purchases, and bought nearly $1,300 worth of items from Louis Vuitton. All purchases were made using credit cards in other people’s names, the warrant states.
Cohen later declined to speak with Zah at the Pitkin County Jail, according to the warrant.
Zah said he seized Cohen’s phone and IPad and plans to analyze them to try to find out more details about Cohen’s activities.
More recently from the St. Louis Post-Dispatch
A disbarred lawyer was sentenced Wednesday to two years in prison for stealing thousands of pieces of mail from the main U.S. Post Office downtown and using the credit cards he found.
Alan Samuel Cohen was also ordered to repay $42,898. Cohen took a total of 3,000 pieces of mail from the dock of the Post Office “through fraud and deceit” on July 17, 2017, Oct. 5, 2017, and Nov. 9, 2017. The third theft occurred after Cohen used a stolen credit card to charge a total of $3,203 and was caught in Aspen, Colo., trying to use more stolen cards.
One of his lawyers, Nicholas Williams, wrote in a message regarding the sentencing that "Mr. Cohen expressed his heartfelt remorse for all of the damage he has caused to those who have placed their trust in him in the past, and he singled out his children and mother as those suffering the most for his actions."
Monday, September 16, 2019
The Louisiana Attorney Disciplinary Board recommends disbarment of an attorney for misconduct in a domestic relations matter
The Complainant, Ms. M, hired the Respondent to represent her in a divorce proceeding and to file a reconventional demand for spousal support, child custody and child support, in September of 2016. Ms. M paid the Respondent a $3000.00 retainer. A court date concerning the incidental matters was set for October 12, 2016, falling on Yom Kippur, a Jewish Holiday. Ms. M is Jewish, and she requested that the Respondent file a motion for a continuance. Respondent represented to Ms. M that her court date was continued to November 18, 2016.
Respondent failed to file for the continuance, the client and her mother flew in from Philadelphia for the hearing but got only a promise to fix it
Complainant later discovered that the Respondent failed to file the pleadings necessary to have the matter reset for January 18, 2017. Ms. M also discovered that Respondent failed to file anything. As a result, Ms. M was divorced by default, without her issues of child custody, child support, or spousal support being addressed by the Court.
Respondent requested prescription drug medication from Ms. M on at least two separate occasions. First Respondent telephoned Ms. M and requested to purchase Xanax from Ms. M.
this case involves additional misconduct other than that involving the bartering for or purchasing of drugs from a client. Here, the respondent neglected Ms. M’s domestic case, failed to properly communicate with her about the case and misled her concerning the status of the matter. Despite telling Ms. M that she had obtained a court hearing date in Ms. M’s divorce suit, she, in fact, had not filed any pleadings and had not performed any legal services for her client. Added to these findings is the fact that Respondent, currently ineligible to practice law for noncompliance of Bar requirements, failed to cooperate with the ODC concerning the disciplinary charges that had been brought against her. She failed to appear for her sworn statement, failed to answer the charges issued against her and totally failed to communicate with the ODC. Given this, and considering the applicable ABA guidelines and case law cited above, disbarment is an appropriate sanction in this matter.
Sunday, September 15, 2019
Two recent attorney discipline matters before the Tennessee Supreme Court
- Board of Professional Responsibility v. James S. MacDonald– In this attorney-discipline matter, Mr. MacDonald challenges the trial court’s determination of violations of the Rules of Professional Conduct and imposition of a public censure. Mr. MacDonald, as the attorney representing a client in a civil suit, added the conformed signature of the opposing party to a draft letter that Mr. MacDonald believed was signed and sent by the opposing party. The hearing panel of the Board of Professional Responsibility determined that the Board failed to establish a violation of the Rules of Professional Conduct. On appeal by the Board, the trial court reversed the holding of the hearing panel, determining multiple violations of the Rules of Professional Conduct and imposing a sanction of public censure. Mr. MacDonald, on appeal to the Supreme Court, argues that the trial court erred in its determination of ethical violations and asserts that the sanction imposed is unduly harsh.
- In re: Hal Wilkes Wilkins– The Tennessee Supreme Court suspended Mr. Wilkins from the practice of law for one year on June 6, 2018. As part of the suspension, the Court ordered Mr. Wilkins to close his IOLTA account within 30 days of entry of the Order of Enforcement or be subject to civil contempt proceedings. On May 28, 2019, the Board of Professional Responsibility filed a petition for civil contempt with the Supreme Court, alleging that as of March 6, 2019, Mr. Wilkins’s IOLTA account had not been closed. The Supreme Court thereafter ordered Mr. Wilkins to respond to the petition within ten days. Mr. Wilkins did not respond. Accordingly, the Supreme Court has ordered Mr. Wilkins to appear on September 5, 2019, to provide justification for his failure to abide by the Court’s Order of Enforcement.
Friday, September 13, 2019
Theft from an employer drew a suspension without possibility of reinstatement for four months from the Iowa Supreme Court.
The court announced a prospective stringent rule for stealing from an attorney's employer.
Curtis Den Beste is an Iowa attorney. He received his license to practice law in 2000. In 2007, Den Beste received an offer from Steve Howes to practice at the Howes Law Firm, P.C. (Howes) in Linn County, Iowa. The misconduct giving rise to this proceeding occurred while Den Beste worked at Howes.
Den Beste entered into a fee agreement with Howes requiring him to deposit all earned client fees into a trust account or the general law firm account. Pursuant to the agreement Den Beste was then paid fifty percent of the fees he earned, and Howes retained the remainder to cover overhead and other expenses. Beginning in 2015, Den Beste accepted cash payments from some clients and kept the proceeds for himself rather than deposit them as required by the fee agreement.
The misconduct came to light in 2017
[Respondent] agreed to self-report his misconduct to the disciplinary board and to provide an accounting of the diverted funds as well as a repayment plan. The accounting revealed he retained a total of $18,200. Accounting for the fifty-percent split, and other tax and reimbursement considerations, respondent wrongfully deprived Howes of $9200. A Client Security Commission auditor investigated the issue and found no evidence to conclude Den Beste’s accounting was inaccurate.
It is certainly true that, in many cases, fee disputes between a lawyer and his or her current or former law firm might simply be contract disputes and nothing more. For example, a lawyer with a good-faith claim to fees should not be sanctioned merely for exercising or asserting such a claim. But not all fee disputes between a lawyer and a law firm are garden variety contract disputes. Some involve outright and undisputed theft. In such cases, the imposition of discipline is clearly appropriate.
The question then arises whether theft from a client is more serious than theft from a law firm or other third party. In our prior cases, the difference has often been dramatic. Theft of any amount by a lawyer from a client ordinarily results in revocation. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Parrish, 925 N.W.2d 163, 170–71 (Iowa 2019); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 500–01 (Iowa 2017). But theft of funds from a law firm can result in much lesser sanctions. Henrichsen, 825 N.W.2d at 529–30.
There are, perhaps, some reasons for the distinction between client theft and law firm theft. For instance, many clients have little power against a lawyer in whom the client places trust. A lawyer who steals from a client is preying on those often in an extremely vulnerable position who have placed trust in the lawyer and advanced funds to the lawyer to protect their interests. The relationship between a law firm and a lawyer ordinarily will have less of a power imbalance. The firm is in a better position, perhaps, than a client to monitor the proper handling of fees.
Yet, a lawyer who acts dishonestly toward an employer raises serious questions of whether the lawyer has the necessary integrity to practice law.
As the song goes, "From this moment on"
...we think the time has come to ratchet up the disciplinary sanctions for nonclient theft. That said, this case may not be the appropriate case to do so. In particular, given our caselaw, Den Beste was not on notice that he faced a possible revocation when he entered into the stipulation in this case. Cf. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Cepican, 861 N.W.2d 841, 845 (Iowa 2015) (finding the attorney did not waive his right to contest a complaint of theft-based misconduct by failing to respond because he did not receive adequate notice of the allegation of theft). Thus, we rely on our precedent and impose a sanction in this case consistent with our prior cases. At the same time, we use this case as a vehicle to put the bar on notice that an attorney who steals from a law firm without a colorable claim may well incur stiffer disciplinary sanctions than have been imposed in our past cases.
On multiple occasions, Den Beste knowingly embezzled money from his law firm and then attempted to conceal what he had done. He had no colorable claim to nor was there any fee dispute regarding that money. “[I]t is almost axiomatic that the licenses of lawyers who convert funds entrusted to them should be revoked.” Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Irwin, 679 N.W.2d 641, 644 (Iowa 2004). Accordingly, I would revoke Den Beste’s license to practice law.
Wednesday, September 11, 2019
The New York Appellate Division for the Second Judicial Department has suspended an attorney for one year based on sanctions imposed by the United States District Court for the Eastern District of New York
The underlying proceeding involved allegations that the respondent engaged in a relentless campaign to extort a settlement by publicly releasing documents that had been sealed by a federal court, and that in furtherance of that effort, the respondent intentionally defied the orders of three different judges in the Southern and Eastern Districts of New York as well as the United State Court of Appeals for the Second Circuit (hereinafter Second Circuit), filed a slew of frivolous motions and lawsuits, and repeatedly accused the courts of illegal and fraudulent conduct.
Felix Sater was the object of this campaign
In 1998, Felix Sater was prosecuted for his involvement in a securities fraud and money laundering scheme. On December 10, 1998, Sater pleaded guilty before the Honorable I. Leo Glasser, in the United States District Court for the Eastern District of New York, to an information charging him with violating the Racketeer Influenced and Corrupt Organizations Act (18 USC § 1962[c]; hereinafter RICO). As part of his plea, Sater entered into a cooperation agreement with the United States Attorney’s Office for the Eastern District of New York. Because of the sensitive nature of the information Sater was providing and the potential danger to Sater’s life if his identity were to be revealed, Judge Glasser sealed the action and its docket sheet. A press release in March 2000 announced Sater’s conviction, but not the cooperation agreement. On October 23, 2009, Sater was sentenced and ordered to pay a fine in the sum of $25,000. Sater’s criminal case remained sealed.
In 2002, Sater joined Bayrock Group, LLC (hereinafter Bayrock), a real estate development firm. Jody Kriss was Bayrock’s Director of Finance from 2003 to 2008, and Joshua Bernstein was employed there from November 2006 to September 2008. Kriss hired the respondent as his attorney in 2007, and introduced the respondent to Bernstein.
During his employment at Bayrock, Bernstein maintained a hard drive that contained copies of all of Bayrock’s files from its servers. The files included emails and documents Sater had sent to his attorney in connection with the criminal proceedings, including his cooperation agreement, a United States Department of Justice financial statement dated December 10, 1998, two proffer agreements, and a presentence investigation report (hereinafter PSR) dated June 28, 2004 (hereinafter collectively the sealed materials).
In September 2008, Bernstein’s employment at Bayrock was terminated and he took the hard drive with him. He kept the hard drive and the sealed materials, despite being instructed to return them. Bernstein thereafter turned over the sealed materials to the respondent. In May 2010, the respondent filed a civil RICO complaint against Sater and 29 other defendants in the Southern District of New York on behalf of Kriss and another Bayrock member, alleging a RICO conspiracy involving tax evasion, money laundering, embezzlement, and fraud. The respondent attached portions of the sealed materials as exhibits to the complaint. The complaint also referred to information in the sealed materials, including details about Sater’s cooperation with the government against certain members of organized crime.
The case was originally assigned to United States District Judge Naomi R. Buchwald in the Southern District of New York. On May 13, 2010, Sater’s counsel informed Judge Buchwald that the respondent had filed the complaint publicly, and that it had been uploaded by the online news service Courthouse News to its website. That same day, Judge Buchwald directed that the complaint be sealed and enjoined further dissemination of the complaint and exhibits, pending further order of the court.
Sater sought injunctive relief
On July 16, 2010, as part of his response to the TRO, the respondent filed a signed declaration in which he made a number of accusations against Judge Glasser and the United States District Court for the Eastern District of New York. Such accusations included, among others, that Judge Glasser presided over a “star chamber” and “maintained a constitutionally illegal super-sealed docket system of private justice.”
On July 20, 2010, Judge Glasser found that the respondent knew that the documents were sealed before he filed them publicly, that Bernstein had obtained the documents wrongfully and that the respondent “had documents which he knew or perhaps should have known may have been improperly obtained by Bernstein and passed on to him.” Judge Glasser directed the respondent to return the PSR, including all copies, and prohibited its dissemination. Despite Judge Glasser’s explicit injunction in his previous ruling, the respondent continued to maintain copies of the PSR. Judge Glasser issued a further TRO prohibiting the dissemination of any copies.
The Second Circuit affirmed Judge Glasser's finding he had knowingly flouted the court order but then
On February 5, 2012, the New York Times published an article entitled By Revealing Man’s Past, Lawyer Tests Court Secrecy, in which the respondent revealed his identity and referred to Sater as John Doe.
On February 10, 2012, Sater’s counsel moved by order to show cause to hold the respondent and his attorney, Richard Lerner, in civil contempt on the ground that the respondent violated the Second Circuit’s February 14, 2011, order by revealing Sater’s identity in the article. Judge Cogan directed that a hearing be held on February 27, 2012.
The contempt is apparently not yet adjudicated.
A committee of the federal district court considered ethics violations
The District Court Committee rejected all of the respondent’s procedural defenses, and found that the evidence was insufficient to conclude that the respondent violated rule 3.1 (frivolous conduct) and rule 3.2 (dilatory tactics) of the Rules of Professional Conduct (22 NYCRR 1200.0). However, the District Court Committee found by clear and convincing evidence that the respondent violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.3(f)(2) (discourteous conduct)...
Here reciprocal discipline is imposed
we find that the imposition of reciprocal discipline is warranted based on the findings of the District Court Committee. The respondent showed no regret for his behavior. His aggressive behavior did not consist of an isolated outburst, but rather, a prolonged course of conduct. The respondent’s relentless insults and attacks in multiple filings directed at Judge Glasser, Judge Cogan, the Eastern District, and the Second Circuit, coupled with his campaign to extort a settlement using improperly obtained materials, constitute undoubtedly serious professional misconduct. We conclude that a suspension from the practice of law for a period of one year is warranted.
Emails to a federal judge have led to a disciplinary complaint recently filed by the Illinois Administrator.
The attorney for a divorce client brought a federal wiretapping claim against the opposing spouse and her counsel.
The alleged rule violations are that Responsdent
engaging in conduct intended to disrupt a tribunal, by conduct including sending emails on April 18, 2017, June 23, 2017 and June 26, 2017 to Judge Finnegan, Allison Engel, and Scott White, through the Proposed Order email account, which were disruptive and were intended to disrupt the court, in violation of Rule 3.5(d) of the Illinois Rules of Professional Conduct (2010);
making a statement that a lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, by conduct including drafting and sending emails which questioned Judge Finnegan’s integrity and impartiality by stating, in part: "Scott is the lucky guy who senses same as he can just pick up the phone to call you knowing he will get his way…" in her April 18, 2017 email; "And I will call him to testy [sic] at trial to show the world what a corrupt lawyer he is! And the judges who protect this criminal by squeezing the discovery deadlines!!!" and "Judges are helping the criminal to escape punishment by forcing to shorten all deadlines!!! This Judge is violating my client’s rights first by truncated discovery deadlines and now helping Plaintiff to escape punishment for wrongs she committed!" in her June 23, 2017 email; and "For anyone to insult me in this degree calls questions [sic] this court’s sincerity and veracity," "Where do you get this information? Ex Parte communications with Defendant’s attorney, Scott? - smearing dirt behind my back?" and "The more I read this order, again and again, I am sick to my stomach, and I get filled with anger and disgust over this 'fraudulent' order by this court!" in her June 26, 2017 email, in violation of Rule 8.2(a) of the Illinois Rules of Professional Conduct (2010); and
engaging in conduct that is prejudicial to the administration of justice, by conduct including sending emails on April 18, 2017, June 23, 2017 and June 26, 2017 to Judge Finnegan through the Proposed Order email account, which necessitated additional actions taken by Judge Finnegan and caused the expenditure of additional court resources, including Judge Finnegan’s April 18, 2017 email to the parties limiting Respondent’s future use of the proposed order email account, the entry of Judge Finnegan’s June 27, 2017 court order prohibiting Respondent from sending any emails to her or her staff, and Judge Finnegan’s referral of Respondent’s conduct to the Executive Committee of the United States District Court for the Northern District of Illinois, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).
The Indiana Supreme Court suspended an attorney for three years without automatic reinstatement
In 2010 “Client” was charged with murder after fatally stabbing a man. Client, whose English language skills were extremely poor, maintained he acted in self-defense. An experienced public defender initially represented Client, assisted by an interpreter. As the trial date approached, the public defender and deputy prosecutor were negotiating a plea deal that contemplated a plea to voluntary manslaughter and either a fixed or maximum sentence of 30 years. The public defender believed that Client would be unable to prevail on a self-defense argument but that he had a compelling case in mitigation.
During this time, Respondent’s nonlawyer assistant, Joseph Everroad, ingratiated himself with Client’s family, told them the public defender would “sell out” Client, and – together with Respondent – persuaded them that Respondent and Everroad could either successfully pursue a self-defense argument at trial or otherwise obtain a better plea deal for Client. Client’s family hired Respondent and paid him a $6,000 retainer, $1,000 of which was earmarked for an interpreter. The trial date was continued following Client’s change in representation.
Respondent had not previously handled a murder case and had little or no experience with major felonies. Neither Respondent nor Everroad had the language fluency to effectively communicate with Client about his case. Respondent did not hire an interpreter. Respondent did not meet with Client at the jail and did little or no work on the case, instead delegating these tasks to Everroad. During one meeting with Client, Everroad brought an untrained and unpaid woman who needed community service credit for her own criminal conviction to serve as an interpreter, and through that woman Everroad attempted to assure Client he had a strong self-defense case. Everroad did not bring an interpreter to other meetings with Client. Everroad explained the purpose of these meetings was simply to “just keep [Client] happy so [Respondent] could get the rest of his money out of the client” and added “we didn’t even talk about the case. We were talking about other things. Cars – things like that.” (Tr. at 94, 97).
Shortly before the trial date, Respondent viewed post-mortem photographs of the victim for the first time and came to believe a self defense or voluntary manslaughter strategy at trial would be untenable. At a final pretrial conference, the State offered a plea to voluntary manslaughter with a fixed sentence of 40 years. Respondent attempted to accept the offer without consulting with Client, but after Client complained, the court indicated the matter would proceed to trial.
Trial commenced three days later, on April 11, 2011. Respondent was not adequately prepared and did not have a defense interpreter on hand to communicate with Client. During a recess, using Client’s friend as an interpreter, Respondent communicated the State’s latest offer (a plea to murder with a fixed term of 45 years) to Client and advised Client to take the deal because his defense was weak. Client accepted the offer and pled guilty to murder with a fixed sentence of 45 years.
During the Commission’s investigation, Respondent falsely told the Commission that Client was fluent in English and that he had visited Client in jail several times.
The court rejected attacks on the findings below
Respondent first challenges the hearing officer’s finding that had Client remained represented by the public defender, “at the very wors[t]” Client would have been convicted of voluntary manslaughter and received an executed sentence of 30 years. Respondent correctly observes that this outcome had not yet reached the point of formal acceptance by the parties and the trial court, and he points to earlier and subsequent offers made by the State for a 40-year sentence, but Respondent’s argument misses the forest for the trees. Not only does the evidence clearly reflect a 30-year sentence had been placed on the bargaining table by the State and was reasonably within reach for Client immediately prior to the change in representation, but Respondent’s attempt to manufacture uncertainty on this point glosses over the fact that either of these case outcomes – 30 or 40 years for voluntary manslaughter – would have been better for Client than the outcome obtained through Respondent’s woefully inadequate representation.
Prior discipline affected the sanction
The instant case – involving what the hearing officer aptly described as a “bait and switch” representation – is by far the most egregious of Respondent’s four disciplinary cases. Prior to Respondent’s involvement, Client was being capably represented by an experienced public defender who was meaningfully consulting with Client and who was on the cusp of achieving on Client’s behalf a negotiated case resolution carefully crafted to account for the relative strengths and weaknesses of Client’s case. However, Respondent and Everroad – exploiting inaccurate stereotypes about public defenders and the particular vulnerability of defendants and their family members to unrealistic expectations – lured Client away at the last minute with the promise that a better outcome could be had, for a price. That promise was at best uninformed and at worst outright false; and even a comparable outcome became impossible to achieve when Respondent neglected the representation after collecting his fee. In the end, switching from the public defender to Respondent earned Client a lighter wallet, comprehensively shoddier legal representation, weakened bargaining power, the inability to meaningfully participate in his own defense, and ultimately a higher-level conviction and several more years in prison than he otherwise would have received. Whether measured in terms of process or outcome, the prejudice suffered by Client as a result of Respondent’s misconduct was severe.
Justice David dissented in favor of disbarment.
We had this report on one of the prior cases. (Mike Frisch)
Tuesday, September 10, 2019
The Oklahoma Supreme Court disciplined two attorneys who had engaged in unauthorized practice.
One matter involved an attorney suspended for failing to complete continuing education obligations.
The Respondent was admitted to the Oklahoma Bar on April 25, 2003. Following law school he worked for several different law firms. His responsibilities at those firms did not include collecting client funds or billing, other than keeping an account of his own billable hours. Somewhere between 2014 and 2015 he was employed with the state as in-house counsel to the Commissioners of the Land Office (CLO). Shortly thereafter, an attorney friend of his, Isaac Warren, opened a new practice and asked the Respondent to join him. The Respondent left the CLO and joined Mr. Warren's practice in the spring of 2015. However, within a few months of joining, Mr. Warren suddenly disclosed he was moving to Texas and left the practice to the Respondent but the record reflects there were few if any paying clients/cases transferred to the Respondent. The Respondent testified that this is when his problems began. He stated, "I didn't really have a feel for what's involved in running your own practice, the marketing, the funds management, the administrative. . . . I was just really floundering." By 2016 his finances were suffering and other problems arose. His wife developed an ongoing serious illness causing the Respondent to take on more responsibilities with their five children, some of which have special needs that require substantial attention. This caused the Respondent to devote less time to gaining business, servicing clients, and collecting from clients. He testified, it prevented him from keeping up with his Mandatory Continuing Legal Education (MCLE) requirements; he could not afford it and "keep the lights on or put gas in the car."
A willful disregard of a suspension order is a serious matter that will not be tolerated by this Court. Compliance with Rule 9.1, RGDP, is not optional. The Respondent willfully failed to comply with Rule 9.1, RGDP, including after he was notified of a grievance based upon that very rule. The Respondent's other misconduct is also disturbing, i.e., lack of candor to Judge Ogden and allowing his retainer fees to be paid to a non-lawyer.
After considering all the mitigating circumstances, we find an appropriate discipline is to suspend the Respondent from the practice of law for six months from the date of this opinion. If the Respondent applies for reinstatement in the future, in addition to any other requirements related to his MCLE suspension, he shall prove he has withdrawn from the following cases: Tymofichuk v. Ian's Enterprise, LLC, Oklahoma County Dist. Ct. Case No. CJ-2015-6883; Ian's Enterprise, LLC v. Stuart et al., Oklahoma County Dist. Ct. Case No. CS-2017-1941. Ian's Enterprise, LLC was the client in both cases and the record reflects this client was notified of his suspension, although not by certified mail, however, no motion to withdraw has been filed in either case and the status of these cases appears either pending or inconclusive.
The court accepted the resignation of an attorney who practiced for 12 years in an Oklahoma firm without an Oklahoma license.
The affidavit of resignation states respondent's awareness of an investigation by the Bar Association, regarding the following allegations in the disciplinary Complaint which suffice as a basis for discipline:
(a) The Unauthorized Practice of Law: The allegations are that from October 2006 until approximately November 2018, respondent established a continuous presence in this jurisdiction for the practice of law and that he engaged in the unauthorized practice of law during the applicable time period by representing clients on issues pertaining to Oklahoma law. Furthermore, the Complaint alleged that respondent held himself out to the public, the legal community, his law firm and the firm's clients as an attorney licensed to practice in Oklahoma.
(b) Engaged in Conduct Involving Dishonesty, Deceit, and Misrepresentations: The allegations are that respondent knew that he did not possess a license to practice law in Oklahoma when he accepted employment with the law firm in 2006. It is alleged that he continuously, systematically, and knowingly represented to his law firm and his legal clients from 2006 through 2018 that he was licensed to practice law in Oklahoma and that said representations were dishonest, deceitful, and misrepresented his licensure status.
Tomorrow before the Ohio Supreme Court for oral argument
Columbus Bar Association v. Natalie J. Bahan, Case no. 2019-0219
A Logan County lawyer faces suspension for attempting to establish a client relationship with a woman charged with murdering her husband because attorney disciplinary investigators believe the lawyer was motivated by the financial gain that could come from a high-profile case.
The Board of Professional Conduct recommends that the Ohio Supreme Court suspend Natalie J. Bahan for six months with the entire suspension stayed on the condition that she commit no further misconduct. Bahan objects to the recommendation, arguing she didn’t violate any of the rules governing the conduct of Ohio lawyers, and that her purpose for visiting the jail was to make sure the accused woman knew her legal rights.
The Columbus Bar Association filed a complaint against Bahan with the board, after determining that Bahan was visiting Rosalie N. Kennedy, a woman she didn’t know, in jail not to simply advise her of her legal rights, but to entice Kennedy into hiring her. The bar association claims the action violates the rule that bars lawyers from seeking employment from a potential client if the lawyer’s significant motive is for “pecuniary gain.”
News of Case Prompts Jailhouse Visit
In March 2017, Kennedy was arrested for the murder of her husband, Gary Kennedy, and was incarcerated in the Logan County jail. A day later, Bahan learned from local media reports of the arrest and discussed the case with a fellow Logan County lawyer, Sheila Minnich. Minnich told a board hearing panel that Bahan was interested in the case and told Minnich she was going to visit Kennedy in jail to make sure she was legally protected. Bahan also told Minnich that she wanted the experience of representing a client with a murder charge.
Before going to see Kennedy, Bahan spoke with Marc Triplett, an experienced criminal defense attorney who was qualified to be court-appointed lawyer for suspects charged with murder who couldn’t afford an attorney. Bahan and Triplett discussed the case, and Triplett told Bahan he saw nothing wrong with Bahan talking to Kennedy for the purpose of assuring her rights were protected.
Bahan visited Kennedy and told her she needed an attorney and to consider whether she could afford a lawyer. She explained to Kennedy how lawyers are appointed to indigent defendants. Two days after the initial visit, Bahan returned to the jail and presented a fee agreement, estimating it would cost Kennedy about $50,000 for representation. Bahan didn’t have the experience to be appointed by the court to represent a suspect in a murder trial, and she had discussed assisting Triplett if he were to represent Kennedy. That way, Bahan could gain experience. However, the fee agreement only listed her and no other attorney as the one who would represent Kennedy.
Lawyer Assesses Suspect’s Financial Status
After her second meeting in jail with Kennedy, Bahan went to Kennedy’s home to inspect the murder scene and meet with Kennedy’s two adult daughters. She discussed with the daughters the possibility of her being hired to represent their mother and talked about the proposed fee. Bahan asked about Kennedy’s assets, in part to evaluate whether she was eligible for a court-appointed lawyer, but also to see what resources were available to pay a fee in the range of $30,000 to $50,000.
Triplett wasn’t available to represent Kennedy, and when Bahan made a third visit to see Kennedy in jail, Kennedy told her she had made arrangements to hire another lawyer. Bahan testified that Kennedy thanked her for her help and told Bahan to send her a bill. Bahan sent a lengthy text message to one of Kennedy’s daughters and stated that there was nothing more she could do at the moment, but she hoped she would “get paid for what I did.” She sent a bill for $1,400 to the Kennedy’s house.
Kennedy’s daughter confirmed she received the bill, but didn’t pay it. Bahan said she didn’t pursue the matter.
The Columbus Bar Association filed a complaint against Bahan for violating the rule regarding solicitation of a client in-person when the solicitation is primarily motivated by financial gain. The board found Bahan violated the rule and recommended a fully stayed six-month suspension.
Bahan objects, arguing she didn’t violate the rule, and if she did, it was not intentional and that no harm came from it. She argues a public reprimand is the appropriate sanction.
In her brief, Bahan notes that Triplett, and another experienced criminal defense attorney, Perry Parsons, both met with Bahan before she made the first visit, and both attorneys said they saw nothing wrong with a visit to discuss her legal rights.
Bahan said she was motivated by gaining experience and improving her trial skills. She denied that she went because she was motivated by the money, and maintains that she shouldn’t be charged with breaking the rule.
Bahan said she saw how Kennedy was portrayed in the media, and she was motivated by the serious problems the woman was facing. The lawyer maintains the bar association wasn’t able to meet the standard that proved by clear and convincing evidence that Bahan broke the rules.
Lawyer’s Version of Events Not Credible, Bar Association Maintains
The bar association asserts that Bahan’s version of the events isn’t credible and that it was clear she approached Kennedy in order to represent her and advance her career by participating in a high-profile murder case.
The bar association notes that while Triplett and Parsons testified that they saw nothing wrong with Bahan going to the jail to discuss Kennedy’s legal rights, neither was told about Bahan presenting Kennedy with a fee agreement. Neither offered an opinion as to whether they would agree it would have been appropriate to visit if they knew that Bahan was seeking to represent Kennedy.
The bar association also notes that Bahan inquired about whether Kennedy could sell property to pay her attorney fee, should she be hired, and asked to be paid for the work she did, even if she didn’t attempt to collect it. The bar association argues that even if Bahan was somewhat motivated to visit Kennedy to discuss her legal rights, that doesn’t exclude the possibility that she was significantly motivated by her future potential to earn more money by representing murder suspects. The group urges the Court to adopt the board’s findings and issue a fully stayed suspension for Bahan.
- Dan Trevas
Monday, September 9, 2019
The West Virginia Supreme Court of Appeals has admitted an applicant despite past financial struggles
Petitioner Tammy Howell, by counsel Arie M. Spitz, filed exceptions before the Court to the West Virginia Board of Law Examiners’ (“the Board”) October 3, 2018, decision recommending denial of her admission to the West Virginia State Bar after conditional admission. See W. Va. R. Admission Prac. Law 7.0. The reason given by the Board for the denial is its position that petitioner failed to establish that she possesses the character and fitness necessary for admission to the practice of law. The Board, by counsel Teresa J. Lyons, filed a response in support of its decision.
After review and consideration of the pleadings, together with the appendix record, it is determined that this case does not involve a substantial question of law. Therefore, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. However, we disagree with the finding of the Board that petitioner is not eligible for admission to the practice of law in West Virginia.
Petitioner is a September 2010 graduate of the Thomas Cooley Law School located in Lansing, Michigan. She achieved a passing score on the July 2011 West Virginia Bar Examination and obtained employment with the Honorable Jay Hoke, Judge of the Twenty-Fifth Judicial Circuit, with whom she remains employed. In May of 2010, petitioner declared bankruptcy and discharged $351,640 in debt as a result of her bankruptcy. Petitioner incurred the discharged debt as a result of credit loans taken out in her name for the purpose of funding her now-husband’s construction business.
In conjunction with her application for admission to the practice of law, petitioner was interviewed by the Board, and it was recommended that she be conditionally admitted to the practice of law. By order of this Court entered on September 26, 2012, petitioner was conditionally admitted to the practice of law for a period of two years. While conditionally admitted to the practice of law, petitioner and her husband once again began jointly operating a construction business.
The board opposed her admission
On August 4, 2017, while petitioner was still conditionally admitted to the practice of law, the Board informed petitioner that it would not recommend that she be admitted to the practice of law in West Virginia. However, petitioner continued to fulfill the terms of the repayment plan submitted to the Board on July 1, 2017. On November 22, 2017, the Board again informed petitioner that it would not recommend that she be admitted to the practice of law because she failed to begin making payments on all of her student loans by October 25, 2017.
Before the court
Petitioner acknowledges that the only issue surrounding her admission to the practice of law involves her financial responsibility. Petitioner argues that she is now fiscally responsible and has not engaged in recurring financial irresponsibility that would render her unfit to engage in the practice of law. Petitioner further maintains that all past debts incurred were of a personal nature and points out that she is engaged in a repayment plan with respect to the debts. She also contends that the Board improperly imposed additional terms regarding her conditional admission during her third conditional admission period by requiring her to begin making payments on her outstanding debts without conducting a new hearing. Petitioner asks the Court to reject the Board’s recommendation, and admit her to the practice of law in West Virginia.
The Board, in response, argues that petitioner’s continued mishandling of her finances demonstrates that she should not be admitted to the practice of law in West Virginia. The Board further argues that it did not impermissibly alter the terms of her conditional admission, but rather imposed additional terms following her second conditional admission period. Finally, the Board requests that this Court concur with its decision that the petitioner is ineligible for admission to the practice of law in West Virginia.
The hearing examiner determined that petitioner possesses the necessary character and fitness to engage in the practice of law. Although the hearing examiner noted that in the past petitioner made multiple “decisions concerning her personal finances that have at times placed her in financial hardship,” these decisions neither “equate to a lack of moral character” nor indicate that petitioner is likely to mismanage client funds. He further found that petitioner has actively engaged in the repayment of her outstanding debts at the direction of the Board, and found that her recent conduct demonstrates that she is unlikely to repeat her past mistakes.
Two bar discipline matters scheduled for argument tomorrow before the Ohio Supreme Court are summarized by Dan Trevas
Lorain County Bar Association v. James L. Lindon, Case no. 2019-0216
A Lorain County lawyer claims a proposed two-year suspension of his law license could potentially be doubled if he isn’t given credit for time served under suspension while he appealed a felony conviction.
James L. Lindon of Avon objects to a recommendation by the Board of Professional Conduct that the Ohio Supreme Court impose a two-year suspension with one year stayed with conditions. Lindon argues he already has served two years under an interim suspension while waiting for his disciplinary proceedings to reach the Supreme Court. He also objects to having to pay fees to participate in a substance abuse recovery program for lawyers, arguing that it’s connected to religion and that he is an atheist.
Lawyer Convicted of Pill Theft
In 2015, Lindon was a licensed pharmacist as well as an attorney. He was working as a pharmacist at the Cleveland Clinic when the hospital began to investigate him for possible prescription drug thefts. A security video observed him removing a bottle of hydrocodone tablets from a basket and dumping the bottle into his pocket. As a security guard approached, he put something from his pocket into his mouth. Lindon’s pockets were searched and three prescription pills were discovered.
Lindon was indicted in 2016 on three felony counts, including theft, drug possession, and tampering with evidence. A jury found him guilty on all three counts, and he was sentenced to two years of community control, mandatory drug testing, counseling, and treatment.
Lindon completed his community control and drug treatment, paid a $750 fine, and entered into a contract with the Ohio Lawyer’s Assistance Program (OLAP). His pharmacist license was permanently suspended in October 2016.
Suspension Begins as Conviction Appeal Starts
Based on his June 2016 conviction, the Supreme Court imposed an interim suspension on Lindon. It was the second time Lindon was sanctioned by the Court. He received a public reprimand in 2010 based on conduct that led the Michigan Supreme Court to reprimand him in 2009.
While under the interim suspension, Lindon appealed his conviction to the Eighth District Court of Appeals, arguing among other things, that the trial judge failed to hold a hearing on his motion to suppress the evidence against him in the drug theft case. In June 2017, a year after his conviction and suspension started, the Eighth District reversed the trial court, and remanded the case to the trial court to conduct the suppression hearing. The trial court scheduled the hearing for 11 months later, and in June 2018, ruled against Lindon’s motion to suppress. He again was found guilty of the crimes.
In the meantime, the Lorain County Bar Association filed a complaint in 2016 against Lindon with the Board of Professional Conduct for his violation of the rules governing the conduct of Ohio lawyers. The violations were in connection with his felony crimes. Following its customary protocol, the board delayed hearing Lindon’s matter until his criminal appeal had been resolved. The board didn’t schedule a disciplinary hearing until December 2018, six months after the trial court concluded the case, and Lindon ended his criminal conviction appeal.
Sanctions Unfair, Attorney Argues
The board found Lindon committed multiple rule violations, including engaging in conduct that adversely reflected on his fitness to practice law, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Based on sanctions imposed on lawyers who committed similar misconduct and had previous discipline, the board recommended a two-year suspension, with one year stayed on conditions.
Lindon and the bar association had proposed that Lindon receive credit for time served under the interim suspension, but the board hasn’t included the credit in its recommended sanction.
Lindon asks the Court to grant him credit for time served, noting that the time for his disciplinary hearing was delayed more than 600 days from September 2016 to June 2018 because the appeal of his conviction was pending.
He asserts had he not contested his conviction, his disciplinary hearing would have taken place about six months after his conviction. Had he received a two-year suspension with no time stayed, his suspension would have started in December 2016 and concluded in December 2018. As it stands, if the Court were to impose the two-year suspension now, he would be under a suspension that essentially began in 2016 and would continue until 2020 at the earliest, with the potential of reaching into 2021.
“This delay is a manifest injustice based on Respondent’s filing of an appeal — and winning the appeal because his constitutional rights were violated by the trial court,” Lindon’s brief stated.
The bar association’s brief also supports Lindon’s position that he be granted credit for time served.
Treatment Obligation Violates Religious Rights
Lindon raises the “establishment clause” of the First Amendment to the U.S. Constitution in his objection to the condition that he re-engage with OLAP and submit to random drug- and alcohol-screening. Based on Lindon’s objections to working with OLAP, the board has proposed that he find counseling from service providers of his choosing and that those counselors report his progress to OLAP.
Lindon states that he is an atheist and that OLAP programs are substantially based on Alcoholics Anonymous, and similar programs that have a religious aspect to them. He notes that AA’s 12-step program includes prayers and recitations from the Bible. He notes that while the board will allow him to use alternative counseling, he still will have to pay a $100 per month “administrative fee” to OLAP to comply with his contract. He maintains that it is unconstitutional to have a government body, the Court, in essence, collect a fee from a religious-based program. The bar association didn’t address Lindon’s concerns with his treatment objections.
Oral Argument Waived
The Lorain County Bar Association has waived its right to present oral arguments.
- Dan Trevas
Representing James L. Lindon, pro se: 440.333.0011
Representing the Lorain County Bar Association: Daniel Cook, 440.695.8000
Akron Bar Association v. Matthew Fortado, Case no. 2019-0805
A Summit County attorney admits it was wrong to engage in a long-term sexual relationship with a client, but argues a proposed one-year suspension with six months stayed is unreasonable based on sanctions imposed on other attorneys accused of the same misconduct.
The Board of Professional Conduct recommends the Ohio Supreme Court suspend Matthew Fortado for one year with six months stayed for violating the rule prohibiting Ohio lawyers from engaging in sexual activity with their clients unless there was a consensual sexual relationship prior to the attorney-client relationship. Fortado and the Akron Bar Association entered into a “consent to discipline” agreement in which Fortado would receive a one-year, fully stayed suspension. Both parties are asking the Supreme Court to adopt that position.
Long-Term Relationship Sours
Fortado was hired by a woman identified as M.S. in court records in 2011 to represent her in a civil case. Several months later, the two began an intimate relationship. The civil matter ended in 2012, but Fortado and M.S. continued their intimate relationship until August 2014. The romantic relationship ended when M.S. borrowed money from Fortado to transport her mother from North Carolina for a visit.
The two continued a friendship until 2016, and Fortado represented M.S. in two other civil matters. The friendship ended, though, when M.S. discharged Fortado as her attorney and filed a grievance against him with the Akron Bar Association.
Sanction Based on Prior Cases
When considering recommending a sanction to the Court, the board considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.
The board notes that Fortado was previously suspended for two years with one year stayed in 1996 for rule violations that were not at issue in this case. The board also took into consideration that Fortado was being charged with a single count of misconduct, cooperated with the proceedings, acknowledged his wrongdoing, and established that he didn’t act with a dishonest motive.
Fortado also produced 11 letters confirming his competency as an attorney. Summit County Probate Judge Elinore Marsh Stormer and former Summit County Prosecutor and Common Pleas Court Judge Michael T. Callahan testified on his behalf at his disciplinary hearing.
The board cited 11 other Supreme Court decisions regarding the sanctions imposed on lawyers who had sex with clients and determined that a one-year suspension with six months stayed based on the condition that Fortado commit no further misconduct was appropriate.
Attorney Opposes Sanction
Fortado objects to the sanction, noting that he and the bar association both agree that his conduct warrants a fully stayed suspension. Fortado argues the board relies on cases where attorneys were accused of multiple counts of misconduct that included more than prohibited sexual activity.
Fortado maintains his case is similar to Disciplinary Counsel v. Siewert, a 2011 decision, which the board cited in its list of cases it considered. In Siewert,the attorney received a fully stayed six-month suspension based on having a long-term sexual relationship with a client. The attorney had been disciplined many years before, just like Fortado, but also proved there was no dishonest motive and that he cooperated with the disciplinary proceedings and demonstrated a good reputation.
Fortado argues that he made no advances toward M.S., engaged in no coercion, and didn’t solicit her for sex. It instead was a three-year relationship, followed by a two-year friendship. Unlike many of the other cases cited by the board, M.S. was never confronted with the dilemma of accepting her attorney’s advances or risking having her legal representation compromised, Fortado concludes.
- Dan Trevas