Saturday, September 24, 2022

Disbarment Remains Possible In New Jersey

A "pump and dump" scheme led to a felony conviction and disbarment by the New Jersey Supreme Court.

The story is told in the report of the Disciplinary Review Board

In summary, respondent admitted that, for a five-year period spanning from 2013 through 2018, he conspired to commit securities fraud by (1) concealing Tobin’s ownership and control of various securities, and (2) employing paid promotional campaigns and manipulative trading techniques to artificially inflate the price and trading volume of those stocks to enable Tobin and others to secretly sell their shares at a substantial profit, thus, defrauding investors. The purpose of this conspiracy was for respondent, Tobin, and others to make a profit from the illegal stock sales and to conceal their actions from regulators, law enforcement, and investors.

Respondent pled guilty and cooperated in the criminal case but failed to advise the disciplinary authorities in New York and New Jersey about the conviction.

Rather New York

found, in aggravation, that, in November 2018, respondent applied for leave to resign for non-disciplinary reasons, a mere eight days prior to the filing of criminal charges against him – at which time, respondent had already been presented with a plea agreement from the United States – and he made no effort to advise of the federal criminal charges. Id. at 212. Indeed, the Supreme Court of New York learned of respondent’s criminal matter through its own investigation. Ibid. Accordingly, it concluded “that respondent’s actions were undertaken in a misguided attempt to avoid disclosing to [the Supreme] Court [of New York] and AGC that he was facing charges for his federal criminal activity, and [it found] that his deceptive behavior severely aggravate[d] his already serious conduct.” Id. at 212-213. As we note below, respondent was similarly deceptive in the course of his resignation in [New Jersey].

And New Jersey

In further aggravation, just as he did in New York, on November 29, 2018, respondent resigned, without prejudice, from the New Jersey bar, a mere two days prior to the filing of the information against him. At the time of his resignation in New Jersey, respondent already had been presented with a plea agreement from the federal government. Respondent executed that plea agreement prior to submitting his application to resign from the New Jersey bar, and he made no effort to advise the OAE of the federal criminal charges, in violation of R. 1:20-13(a)(1). Respondent’s deceptive behavior, whereby he attempted to conceal his criminal charges from the disciplinary authorities in two states, aggravated his already serious unethical conduct.

Sanction

...respondent’s misconduct involved all the aggravating factors enumerated by the Court in Goldberg and, thus, warrants his disbarment. Specifically, respondent’s misconduct was prolonged, spanning five years. He was motivated by greed, as evidenced by the profits generated from the fraud and his agreement to participate in the fraud in exchange for significant payment for his services. Most abhorrently, and as recognized by the sentencing judge, respondent’s misconduct was perpetrated with the use of his law license. Respondent intentionally abused both his position of trust and his status as an attorney.

(Mike Frisch)

September 24, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Stage Three

An Illinois attorney has moved for consent disbarment in the face of charges that include

In February 2022, Movant falsely advised [client] Watson that he had been diagnosed with stage three pancreatic cancer and thereafter Movant filed a motion to withdraw from Watson’s criminal cases. In his motion to withdraw, Movant falsely advised the court that he was suffering from “a medical condition that prohibits me from continuing to practice law.” Movant knew that his statements to Watson and the court were false, because at no time was Movant diagnosed with pancreatic cancer or any other medical condition that would prevent him from practicing law. Based on his false representations, the trial court allowed Movant to withdraw from Watson’s matters and appointed the Will County Public Defender to represent Watson.

The same false representation was made to another criminal client (who has not received a promised refund) and the Administrator.

There were also charges of lack of diligence in other matters. (Mike Frisch)

September 24, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 23, 2022

Former DA Disbarred

A recent disbarment is summarized on the web page of the Colorado Presiding Disciplinary Judge

Payne was the elected district attorney in the 12th Judicial District from January 2021 to July 2022, when he resigned. While in office, Payne failed to diligently supervise his employees, including an assistant district attorney who Payne later fired because of complaints about the lawyer’s conduct when performing his job duties. In mid-2021, a Victim Rights Act (“VRA”) subcommittee began investigating Payne’s office, citing concerns that the office failed to keep victims informed about their cases and failed to consult with victims about plea deals and dismissals. The investigation also identified instances in which employees from Payne’s office ignored, belittled, and shouted at victims. The VRA subcommittee recommended that Payne’s office take actions that included VRA training. During the training, Payne’s employees were unruly, directing foul language at the presenters and walking out of the training. Payne’s office did not resolve the VRA complaints, which were ultimately referred to the governor, who appointed the office of the attorney general to investigate. In July 2022, the attorney general appointed a monitor to review if Payne’s office was meeting its responsibilities under the VRA.

Under Payne, the 12th Judicial District Attorney’s office accumulated a significant backlog of cases and failed to act for months on warrants involving serious crimes and domestic violence. Payne’s failure to prosecute defendants had a negative effect on law enforcement’s and the public’s willingness to report crimes, harming law enforcement efforts and the community.

Days before a jury trial in early 2022, Payne told a named victim that his office had been unable to serve a police officer to appear at trial. Payne told the victim that pursuing the case would be futile without the officer’s testimony, and the victim acquiesced to Payne dismissing the case. But Payne’s representation was false: his office had served the officer that morning. In the motion to dismiss, Payne falsely stated that the victim was unwilling to testify at trial. Payne did not correct his misstatements to the court or to the victim.

Also in early 2022, Payne prosecuted a case for conspiracy to commit first-degree murder. In March, he told an employee in his office that the Colorado Bureau of Investigation (“CBI”) wanted the case to be dismissed. This statement was untrue. The prosecutor contacted the CBI agent involved in the case, who informed her that he had not told Payne that the CBI wanted the case dismissed.

A different matter was set for a jury trial in April 2022. Payne dismissed the case on the first day of the trial, purportedly because evidence favorable to the defense had not been disclosed. But Payne knew of the issue at the latest nearly a week before the trial was to begin and had not indicated to the court or the named victims that he would dismiss the case. He even filed jury instructions four days before the first day of trial. According to the minute order from the hearing, the court found Payne to be disingenuous as to the reasons for the dismissal. At the time Payne dismissed the case, 100 jurors were waiting to serve.

That same month, Payne participated in setting a preliminary hearing in another matter. The judge traveled eight hours to convene the hearing. On the day of the preliminary hearing, however, no prosecutor from Payne’s office appeared. A prosecutor eventually joined via Webex after the court clerk contacted Payne’s office, but the prosecutor was not prepared to proceed. The hearing was reset. The judge traveled another four hours to hold the hearing, during which the parties waived the hearing for a plea offer. Payne knew the day before the hearing that the defendant planned to waive the preliminary hearing, but he took no steps to notify the judge; had Payne alerted the judge, she would not have needed to travel to the hearing.

In 2022, Payne did not properly introduce hearsay statements from a minor victim in a juvenile sexual assault case. He then failed to appear for a hearing to address the child hearsay statements, assigning the matter to another prosecutor who was scheduled to handle a different docket that day and had not been prepared to address the child hearsay issue. Payne also made false statements, or failed to disclose to the court and the named victim and her family accurate information about the status of the case and reasons for the dismissal.

Finally, in 2022, during a political campaign to recall Payne from office, Payne began an investigation and filed criminal charges against the previous district attorney, a political rival and critic of Payne. Despite this antagonistic relationship, Payne did not seek an outside law enforcement agency or special prosecutor to oversee the investigation or make charging decisions. Ultimately, Payne’s actions prevented the court from making a probable cause determination in the case.

KUSA 9 News reported he resigned from office in July.  (Mike Frisch)

September 23, 2022 in Bar Discipline & Process | Permalink | Comments (0)

40 Pounds Of Trouble

The Arkansas Supreme Court has ordered an interim suspension of an attorney.

The Arkansas Democrat & Gazette reported on criminal charges

A 47-year-old Little Rock lawyer arrested with about 180 pounds of marijuana at the city airport admitted Tuesday to possessing a portion of the contraband in exchange for a six-year prison term.

David Matthew Littlejohn pleaded guilty to a Class B felony marijuana possession charge, which involves up to 100 pounds of marijuana, reduced from Class A felony possession, which tops out at 500 pounds. Littlejohn had been scheduled to stand trial Tuesday before Pulaski County Circuit Judge Leon Johnson.

A co-defendant from California is awaiting trial.

Questioned about what crime he had committed, Littlejohn told the judge that he had 40 pounds.

"I was arrested at the Little Rock airport with two suitcases with about 40 pounds of cannabis," Littlejohn said.

According to police reports, detectives were using a trained dog to inspect incoming luggage at the Bill and Hillary Clinton National Airport/Adams Field in January 2020 when the K-9 alerted on six suitcases inbound from California.

The luggage was claimed by Littlejohn and 37-year-old Janae Annette Wallace of Fairfield, Calif., who were both arrested. They were jailed overnight and released the next day on personal recognizance. Wallace is scheduled for trial in October.

The prosecutor is Elizabeth Whitfield, while Littlejohn was represented by attorneys Rickey Huffman of Benton, Rickey Hicks of Little Rock and Brent Miller of Hot Springs.

(Mike Frisch)

September 23, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 22, 2022

Document Review

The Illinois Administrator has filed charges alleging billing misconduct by a Dentons attorney

In late 2020 and early 2021, Respondent was assigned to a document review project in which he was to review a substantial number of documents belonging to one of Denton’s clients to determine which documents should be produced by the client in response to discovery requests in a litigation matter. As part of his review of the client’s documents, Respondent was responsible for determining which documents were relevant and responsive to the discovery requests in the litigation, which were irrelevant or non-responsive, and which documents may be subject to
attorney-client privilege. Respondent would use the firm’s document review software to mark the documents as reviewed, and would flag the reviewed documents as responsive, non-responsive, or subject to privilege.

Between December 2020 and March 2021, with regard to the document review project described...above, Respondent marked a total of 425 documents as having been reviewed by him and recorded a total of approximately 277 hours of time related to the review of said documents. Respondent then submitted his billing entries to his supervisors at Dentons.

In or about March 2021, upon reviewing Respondent’s work, Respondent’s supervisors at Dentons determined that Respondent had not opened or reviewed approximately 405 of the 425 documents that he claimed to have reviewed, and for which he submitted time records, as described...above.

Respondent’s records of time he spent on document review, as described...above, were false because he had only reviewed approximately 20 of the 425 documents he had marked as reviewed. In addition, between December 2020 and March 2021, Respondent had not spent 277 hours reviewing the documents he claimed to have reviewed.

(Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Clark Prosecution Update

It looks like a boatload of motions and orders in unredacted format have been posted on the cases of public interest link in the Jeffrey Clark prosecution. 

Among the documents is a hearing committee order recommending that the Board on Professional Responsibility deny a motion to delay the proceedings and rejecting his pre-hearing challenge to jurisdiction.

Disciplinary Counsel takes Respondent to task in opposing a motion to extend time to respond to the charges 

From the outset of this investigation, Mr. Clark has sought to stall this proceeding.

Of particular interest is the unredacted Hearing Committee report and recommendation posted on September 16 concluding that the matter should not be deferred pending the resolution of a subpoena enforcement action in the Court of Appeals and other travails of the Respondent.

An order of the Board denies as moot a motion to recuse a former member Matthew Kaiser.

The motion to recuse alleges that the bar investigation was initiated in response to a letter from Senator Richard Durbin and that notice of the charges were "blasted out to reporters by the Office of Disciplinary Counsel."

And - for whatever it's worth - no complaint was filed by the former President.

Recusal is generally appropriate when someone actually is sitting in judgment of a matter.

Also posted is the motion to dismiss prior to a hearing on jurisdictional grounds.(Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

The Wrong Path

The Kentucky Supreme Court affirmed the denial of an application for bar admission without examination 

the Character and Fitness Committee of the Office of Bar Admissions appropriately evaluated Christopher D. Jefferson’s application for admission without examination and correctly determined that by virtue of his not having “completed degree requirements for a J.D. or equivalent professional degree from a law school approved by the American Bar Association or by the Association of American Law Schools[,]” SCR 2.014(1), he is ineligible for admission without examination.

The petitioner graduated from The Birmingham School of Law.

His application went to the wrong office

Ms. Browne [Director and General Counsel of the Office of Bar Admissions]...advised Jefferson that the Supreme Court Rules provided a path for admission to the bar by examination for graduates of non-accredited law schools and that the Board of Bar Examiners was the appropriate body under Kentucky rules to make the determination of quality of the legal education.

He was admitted in Alabama in 2013. (Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

In Humane

A convicted attorney has been disbarred on consent by the Michigan Attorney Discipline Board.

Michigan Live reported on the conviction and probation imposed

Semaan stole funds from the trust of his deceased client that were intended for the Michigan Humane Society. Semaan drafted the victim’s trust in 2011 and when the individual later passed away in 2013, he was responsible for distributing 50% of the funds to the charity according to what was specified in the trust.

Instead, he placed a total of $262,732.68 into his lawyer’s trust/escrow account and distributed two payments to individuals named in the trust but did not provide the Michigan Humane Society with a notice of their interest in the trust or the 50% disbursement.
 
(Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Chandra Levy Prosecutors On Docket

The District of Columbia Board on Professional Responsibility will hear oral argument today at 2 pm in the bar discipline matter brought against two prosecutors of the high profile Chandra Levy murder.

A Hearing Committee has recommended that one be suspended for 90 days and the charges against the other were not proven

We find that Disciplinary Counsel proved by clear and convincing evidence that Respondent Haines violated Rules 3.8(e), 8.4(d) and 1.6(a). See Board Rule 11.6; In re Cater, 887 A.2d 1, 24 (D.C. 2005). We also conclude that Disciplinary Counsel failed clearly and convincingly to prove that Respondent Campoamor-Sanchez committed any Rule violation. Accordingly, and for the reasons discussed herein, we recommend that Respondent Haines be suspended for ninety days, and that the charges against Respondent Campoamor-Sanchez be dismissed.

The charges involve alleged disclosure violations and - in Haines - a "pillow talk" confidentiality violation

In an exchange of internal emails before the Guandique trial, Respondent Haines and Respondent Campoamor-Sanchez disagreed about strategy and division of labor. 

On November 8, 2010 and November 14, 2010, Respondent Haines forwarded the emails to her boyfriend, who was not employed by the USAO or the Department of Justice. Those emails contained confidential and secret information related to the strategy for prosecuting the Guandique case. 

No one from the USAO gave Respondent Haines permission to disclose the confidences and secrets contained in those emails. (citations to record omitted)

Disciplinary Counsel has appealed the dismissal recommendation.

Tune in here for the live stream, (Mike Frisch)

September 22, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 20, 2022

Utter Failure

The Georgia Supreme Court adopted a Special Master's recommendation and has disbarred an attorney

The record reflects that the State Bar filed a notice of discipline seeking Arrington’s disbarment and alleging that Arrington paid his 2017-2018 Bar dues with a check drawn on his trust account; that he made deposits to his trust account from his personal account and “his American Funds account”; that he made payments from his trust account that appeared to be related to personal expenses – to “American Funds Balance,” to “Prog Mountain” for an insurance
premium, and to someone who appeared to be a family member; and that on multiple occasions, he made cash withdrawals from his trust account in amounts ranging from $25 to $350.

While a lesser sanction might be appropriate in some trust account matters

Arrington’s utter failure to participate in the disciplinary process, however, means that there is no basis for the Court to conclude that any sanction less than disbarment is appropriate.

(Mike Frisch)

September 20, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 19, 2022

Destroy-It!

The Connecticut Appellate Court has denied reinstatement to a Petitioner disbarred in the wake of a partially-reversed federal conviction.

The Second Circuit ordered a new trial on the racketeering, racketeering conspiracy, bribery and wire fraud charges on the ground that the government unconstitutionally suppressed material exculpatory and impeaching evidence. Id., 165. The Second Circuit did not order a new trial on the obstruction of justice charges, stating that, [e]ven if the suppressed notes had an impeaching effect so strong as to call into question  Silvester’s testimony on other matters, the government’s evidence of [the defendant’s] obstruction of justice was overwhelming. In light of the forensic examiner’s detailed testimony regarding the suspicious timing of the deletion of relevant files from [the defendant’s] laptop using Destroy-It! software, and its corroboration with [Robert] Trevisani’s testimony about [the defendant’s] mention of Destroy-It! as software to be used in order to hide something . . . we do not think that the suppression of [Special] Agent [Charles E.] Urso’s notes raises a reasonable probability that the verdict on the obstruction of justice count would have been different. . . . Id., 165 n.13.

The Second Circuit opinion is linked here.

His 2017 application for reinstatement was referred to the Standing Committee on Recommendations for Admission to the Bar for New Haven County (committee)

Before the committee, the defendant also stated affirmatively that he believed that he was innocent of any wrongdoing and that he had not committed the crime of obstruction of justice, even though his conviction on that charge had been affirmed on appeal.

The committee found that his "blatant refus[al]" to acknowledge wrongdoing merited rejection.

On review

On June 1, 2021, an evidentiary hearing was held before a three judge panel of the Superior Court to determine whether to accept or reject the committee’s recommendation that the defendant’s application for reinstatement be denied.

The superior court was unanimous in denying reinstatement.

Before the Appellate Court

The defendant first claims that the court improperly accepted the report by the committee because the committee exceeded the scope of its investigative authority by inquiring as to the defendant’s presuspension misconduct. Specifically, the defendant argues that the committee’s inquiry into his actions that served as the basis for his racketeering, racketeering conspiracy, wire fraud, and bribery convictions, and the conclusions it drew from his refusal to answer questions about those actions, were improper because those convictions were reversed by the Second Circuit and the scope of the committee’s investigation does not include alleged but unajudicated misconduct. We disagree.

Because

it is clear that a committee’s consideration of an applicant’s present good moral character is an expansive inquiry. The committee may consider the applicant’s conduct prior to or after his or her suspension, regardless of whether that conduct served as the basis for his or her suspension. The committee may also consider all conduct in determining the applicant’s present fitness.

The claim of innocence

In the present case, the defendant argues that he did not need to accept his established conviction with sincerity and honesty because he proved his claim of innocence to the committee. This argument only further exhibits the defendant’s confusion with the reinstatement process, particularly, his belief that his claim of innocence presupposes that all other criteria from Ganim are met, which is simply not what the committee found. The committee was not investigating or recommending guilt or innocence; instead, the committee was charged with determining whether the defendant had been rehabilitated, as well as whether he possessed good moral character and the requisite fitness to practice law, which must all be ‘‘viewed against the backdrop of the defendant’s misconduct and the disrepute it brought’’ to both the defendant and the legal profession. Id., 462.

The underlying criminal case was reported by the United States Attorneys Office for the District of Connecticut

According to the evidence presented during a trial in this matter, SPADONI was the general counsel of Triumph Capital Group Inc. (“Triumph Capital”). In November 1998, shortly after former Connecticut State Treasurer Paul J. Silvester had lost his bid for re-election, SPADONI, Silvester and others engaged in a scheme through which two of Silvester’s close associates received from Triumph Capital sham “consulting contracts” worth $1 million each in return for the investment of $200 million of state pension assets in a Triumph Capital-related investment fund, Triumph Connecticut-II.

In 1999, federal investigators began looking into investments that Silvester had handled at the end of his term as treasurer. After a federal grand jury subpoena was served on a Triumph-related fund looking for documents related to the Connecticut investment, SPADONI used a file-erasing program called Destroy-It! and began to delete computer files to prevent them from being obtained by subsequent grand jury subpoenas. SPADONI continued to use Destroy-It! as Triumph Capital employees were called before the grand jury and additional subpoenas were issued.

 On July 16, 2003, a federal jury convicted SPADONI for violations of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, RICO conspiracy, bribery, wire fraud, and obstruction of justice. On October 25, 2006, Judge Burns sentenced SPADONI to 36 months of imprisonment, five years of supervised release and a $50,000 fine. SPADONI appealed his conviction and, on September 25, 2008, the U.S. Court of Appeals for the Second Circuit upheld the conviction on the obstruction of justice count, but ordered a new trial on the remaining counts of conviction. The government will not retry SPADONI on the remaining counts of conviction.

The more charitable (if that is the correct description) District of Columbia Court of Appeals readmitted a disbarred attorney notwithstanding his continuing claim of innocence.

He had been convicted of attempted malicious wounding 

The jury heard evidence that Mr. Sabo cut the brake lines of a vehicle owned by his former girlfriend, Heather Nicole Lawrence, days after she ended their relationship. When Ms. Lawrence next drove her vehicle, she lost control and hit a fence, a low brick wall, and a tree. No one sustained injury.

Judge Steadman dissented. (Mike Frisch)

September 19, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 15, 2022

Reciprocal Sanction For Billing Misconduct

A prospective two-year suspension has been ordered as reciprocal discipline by the New York Appellate Division for the First Judicial Department

By March 2021 order, a full panel of the Massachusetts Supreme Judicial Court for Suffolk County suspended respondent from the practice of law for two years based upon findings that she had violated three provisions of the Massachusetts Rules of Professional Conduct by, among other things, dishonestly and "intentionally bill[ing multiple clients] for services that were not rendered"

She remains suspended in Massachusetts and did not report the sanction to New York. (Mike Frisch)

September 15, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 14, 2022

Theft Not Bribery

The Minnesota Supreme Court has temporarily suspended a convicted attorney, subject to vacatur if the conviction is reversed on appeal.

Twin Cities Pioneer Press reported

A Woodbury attorney was sentenced Monday for stealing $15,000 from a man who hired her in 2018 to defend him in a drug case.

Criminal defense attorney Kristi McNeilly was sentenced in Hennepin County District Court to 180 days in the county workhouse. She also was ordered to pay back the amount to her client, Hennepin County Attorney Mike Freeman announced Tuesday.

She was convicted of theft-by-swindle Oct. 25.

McNeilly was hired in May 2018 to represent a 39-year-old Minnetonka man suspected of keeping illegal drugs in his home, which were discovered during a search by the Southwest Hennepin Drug Taskforce, according to the criminal complaint. Although he was a suspect, McNeilly’s client was not immediately charged with a crime.

In November 2018, McNeilly told her client that she had spoken with the lead investigator and prosecuting attorney in his case, and that it could be resolved if her client made a payment of between $35,000 and $50,000 to a police union.

McNeilly’s client was able to collect only $15,000, which he handed over to McNeilly. Three days later, her client changed his mind and asked McNeilly for his money back, but McNeilly said she already forwarded it to the police union, according to the complaint.

After McNeilly’s client hired a new lawyer, police discovered that McNeilly had never been in contact with the lead investigator or the prosecutor, and that she spent a portion of her client’s money on mortgage and credit card payments, the complaint said.

(Mike Frisch)

September 14, 2022 in Bar Discipline & Process | Permalink | Comments (0)

"None Of This Would Have Happened But For COVID"

The Ohio Supreme Court decided a bar discipline matter summarized by Dan Trevas

A Lorain County attorney has been suspended from the practice of law for two years with one year stayed for fraudulently diverting funds from a family probate estate, including taking $5,200 to purchase a used BMW, the Supreme Court of Ohio ruled today.

In a unanimous per curiam opinion, the Court suspended Diana Jancura of Sheffield Lake for professional conduct violations that occurred while handling an aunt’s estate.

Attorney Represents Cousin’s Estate
In 2003, Jancura created a trust for her cousin Christopher Kovach Sr. and his wife, Angela Ceo. Two years later Kovach died. In 2016, Ceo requested that Jancura revise the trust to name her mother, Candice Frantz, as a successor trustee. Ceo also asked Jancura to revise Ceo’s will to name Frantz as the guardian of Ceo’s and Kovach’s two minor children.

Ceo died in 2016. Frantz became the guardian of her orphaned grandchildren and the trustee of the trust the parents set up for the minors. Frantz hired Jancura to represent her as the trustee and guardian.

In 2018, Patricia DiRenzo died. DiRenzo was Kovach’s mother and Jancura’s aunt. DiRenzo’s will left her estate to her son, which passed to his minor children, since Kovach and Ceo were both deceased. Frantz was then in charge of managing the money from DiRenzo’s estate for the children.

Attorney Withdraws Fees and Funds From Estate
Jancura applied to have DiRenzo’s estate probated in Cuyahoga County Probate Court and became the estate’s administrator. Under the probate court’s local rules, Jancura was entitled to earn approximately $6,000 in fees to serve as an administrator. The court would also permit the payment of $6,000 in attorney fees for an attorney to assist the administrator.

However, Cuyahoga County has a local court rule that states when a lawyer serves as both the administrator and attorney for an estate, the attorney fee is half the standard fee. Therefore, Jancura’s total compensation for handling the DiRenzo estate was limited to $9,000 unless she applied for additional fees and provided supporting documentation.

In 2019, Jancura distributed funds from the DiRenzo estate into the trust of the two children. At that time, she withdrew $10,000 from the estate to pay her law firm. She documented the payment as legal fees related to representing Frantz as guardian and trustee to the children. She later withdrew $6,000 as her administrator fee from the DiRenzo estate.

Funds Withdrawn to Purchase Car
About five months later, Jancura withdrew money from the DiRenzo estate by writing a $5,200 check payable as “cash.” She used the cash to purchase a cashier’s check payable to James Kepler. Jancura and her husband, who was also her law partner, used the check to buy a 2003 BMW from Kepler.

Since Jancura had already received her $6,000 administrator fee, she was only entitled to $3,000 in attorney fees. Yet, a month after purchasing the car, she withdrew another $6,000 from the estate as her attorney fee. Her withdrawals from the estate, including the money used to purchase the car, totaled $27,200 .

In March 2020, Jancura’s husband filed a court motion to represent the DiRenzo estate. A month later, Jancura requested that the court approve another $6,000 in attorney fees, without disclosing that she already had withdrawn her fees from the estate.

Along with the request, Jancura filed an entry with the court stating that Kepler was paid $5,200 from the estate for work he performed for DiRenzo before she died.

Grandmother Suspicious of Estate Account
After receiving a copy of the estate’s account, Frantz hired another attorney to review the records. The lawyer requested from Jancura an accounting of expenses listed in her report, including the $5,200 paid to Kepler.

Jancura wrote to the lawyer that Kepler had provided services to DiRenzo. Although Jancura knew the content of the letter was false, she represented to her husband that it was true and had him sign the letter as the estate’s attorney. When Frantz’s lawyer requested more information, Jancura provided two fabricated receipts for labor and materials for work that Kepler had allegedly performed on DiRenzo’s home. Jancura forged a signature for Kepler on one of the receipts.

In August 2020, Frantz filed a lawsuit against Jancura. She asked the probate court to remove Jancura as the estate administrator and order her to repay the attorney fees she had taken for administering the estate. She alleged Jancura committed fraud by paying Kepler with estate funds and attempting to conceal her conduct. Shortly thereafter, Jancura repaid the $5,200 to the estate.

In a deposition, Jancura admitted that she fabricated the Kepler receipts and withdrew more fees than allowed by court rules without seeking approval from the probate court.

Frantz settled her lawsuit with Jancura, and Jancura repaid the additional $22,000 she had taken from the estate.

Estate Handling Leads to Disciplinary Complaint
In 2021, the Office of the Disciplinary Counsel filed a complaint against Jancura with the Board of Professional Conduct based on her handling of the estate.

Jancura and the disciplinary counsel stipulated, and the board agreed, that Jancura violated several professional conduct rules by falsifying evidence , making a false statement to a court, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

At her disciplinary hearing, Jancura testified she suffered from depression and began to meet with a therapist. She entered into a two-year Ohio Lawyer’s Assistance Program (OLAP) contract to attend therapy. However, the board’s report stated that Jancura does not appear to have been diagnosed with a mental disorder.

The board reported that Jancura had acknowledged the wrongfulness of her actions, but did not appear to accept full responsibility. She at one point stated, “None of this would have happened but for COVID,” and blamed the pandemic lockdowns for many of her missteps. The board rejected that claim since she misappropriated the money five months before COVID lockdowns began.

The Court adopted the board’s recommendation that Jancura be suspended for two years, with one year stayed on the conditions that she does not engage in further misconduct and pays the costs of the disciplinary proceedings. The Court also required that to be reinstated, Jancura must comply with OLAP contract and any extension recommended by OLAP.

2022-0367Disciplinary Counsel v. JancuraSlip Opinion No. 2022-Ohio-3189.

(Mike Frisch)

September 14, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 13, 2022

Charge It!

An Illinois Hearing Board recommends a three year suspension and until further order on stipulated facts

From January 2016 until February 2020, Respondent was employed as in-house counsel with Professional National Title Network (“PNTN”), which provides a variety of services to businesses and attorneys, primarily acting as a title agent in real estate transactions. In the course of his employment, Respondent was given access to PNTN’s corporate American Express credit card (“the American Express card”). On certain occasions, in the course of his employment,

Respondent was authorized by PNTN to use the American Express card for payment of expenses such as corporate filing fees with the Illinois Secretary of State, membership fees in professional associations, and registration fees for certain conferences and meetings. (Ans. at pars. 1-2; Joint Stips. at par. 1).

Prior to February 2019, Respondent established merchant accounts with Square, Inc. (“Square”) and Intuit, Inc. (“Intuit”). These accounts, which linked to Respondent’s personal checking account at JPMorgan Chase Bank, allowed Respondent to accept payments via credit card. Funds from these payments, less a processing fee, would be deposited directly into Respondent’s personal checking account. (Ans. at par. 4; Joint Stips. at par. 2).

Between February 21, 2019 and January 16, 2020, using the merchant accounts he established through Square and Intuit, Respondent used the American Express card to charge funds to himself on at least 90 separate occasions. During that time period, Respondent charged at least $136,745.79 to himself using the American Express card. (Ans. at pars. 5-6; Joint Stips. at par. 3).

At no time did Respondent have permission or authority to use the American Express card for these transactions. (Joint Stips. at pars. 4-5). At the time Respondent made these charges, he knew that he was not authorized to do so. (Ans. at par. 10).

PNTN discovered the improper charges in late January 2020. When confronted about the charges, Respondent initially told his supervisors at PNTN that he only used the American Express card for legitimate business reasons, such as registering for continuing legal education courses. This statement was false, as none of the charges that Respondent made to himself were authorized or used for legitimate business reasons. Shortly thereafter, in early February 2020, PNTN terminated Respondent’s employment. (Ans. at par. 11; Joint Stips. at par. 6).

(Mike Frisch)

September 13, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Vague, Unsupported And Incredible

The New York Appellate Division for the First Judicial Department has converted an interim suspension to disbarment, not accepting this explanation for the initial non-response

In opposition to to the Committee's motion, respondent, appearing pro se, filed a cross motion seeking an order vacating his interim suspension and reinstating him to the practice of law while he cooperates with the Committee in the underlying matter. Respondent asserted that he "was the victim of a well-documented sophisticated scam that has robbed me of my family and professional life, home, credibility and finances." Specifically, respondent claimed that he has been a victim of a "Haitian related crime gang" and that his fear stopped him from cooperating with the Committee's investigation.

The court

We find that respondent's opposition presents no meritorious arguments warranting denial of the Committee's motion to disbar pursuant to 22 NYCRR 1240.9(b). Respondent has failed to avail himself of the second chance provided by this Court to turn over all of the documents the Committee has been seeking for more than 2½ years. While he did complete the Excel spreadsheet, the remaining documents he attached to his opposition papers involve a completely unrelated client matter that are irrelevant to this disciplinary proceeding and investigation. Respondent also proffers only vague, unsupported and incredible explanations for his pattern of delay and evasion that has impeded the Committee's investigation.

(Mike Frisch)

September 13, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Clark Claims Bar Lacks Jurisdiction To Prosecute

Former Department of Justice attorney Jeffrey B. Clark has filed his answer to the charges filed by the District of Columbia Bar.

A significant portion of the Answer is devoted to a claim that the D.C. Bar and local courts have no jurisdiction to consider the charges, i.e. that the rules that govern everyone else don't apply to him.

These contentions are belied by the simple and irrefutable fact that jurisdiction to consider his alleged ethics violations is conferred by his membership in the Bar per Rule XI

Section 1. Jurisdiction 
  (a) Persons subject to disciplinary jurisdiction. All members of the District of Columbia Bar, all persons appearing or participating pro hac vice in any proceeding in accordance with Rule 49(c)(1) of the General Rules of this Court, all persons licensed by this Court Special Legal Consultants under Rule 46(c)(4), all new and visiting clinical professors providing services pursuant to Rule 48(c)(4), and all persons who have been suspended or disbarred by this Court are subject to the disciplinary jurisdiction of this Court and its Board on Professional Responsibility (hereinafter referred to as "the Board")

Another counter to this contention

Section 2. Grounds for Discipline
  
(a) Duty of attorneys. The license to practice law in the District of Columbia is a continuing proclamation by this Court that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and an officer of the Court. It is the duty of every recipient of that privilege at all times and in all conduct, both professional and personal, to conform to the standards imposed upon members of the Bar as conditions for the privilege to practice law.

He claims that his conduct was an "interagency dispute" and that a variety of alleged privileges prevent Disciplinary Counsel from presenting its evidence, a contention also belied by governing rules.

He contends that the charges were brought for "political reasons" and are subject to dismissal on that basis.

He alleges that Disciplinary Counsel

wields its disciplinary authority here in a politically biased manner prosecuting Republicans and especially supporters of former President Trump with excessive zeal, while turning a blind eye to or only belatedly or grudgingly stirring itself to administer reluctant slaps on the wrist for egregiously dishonest or felonious conduct by Democrats or opponents of [former] President Trump such as Kevin Clinesmith and Michael Sussman. 

Editor's note: Sussman was acquitted by a jury; Clinesmith was suspended for one year. 

It is also contended - on information and belief - that Disciplinary Counsel improperly worked with Congress and has collaborated with the press in the matter.

Well, the gauntlet certainly has been thrown in what I consider perhaps the most significant matter in D.C. Bar disciplinary history. 

Link here. (Mike Frisch )

September 13, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 9, 2022

Gadzooks!

An Illinois Hearing Board recommends that an attorney's in court conduct merits a reprimand.

During a bench trial of a discrimination matter, the following exchange

MR. THOLLANDER: Your Honor, I’m objecting to the Court. I want to make a record as to the issue of the offer. Mr. Campasano’s complaint sought among other things enjoining the sale and having the property sold to him, and the discussions and offer around the sale all pertained to settlement or partial settlement of this case.
COURT: Ask another question, Mr. Besetzny. Mr. Thollander, if you make one more comment under your breath --
MR. THOLLANDER: I said gadzooks.
COURT: Mr. Thollander, if you make one more comment that’s offensive to this Court, I will hold you in contempt of court.
MR. THOLLANDER: Gadzooks is offensive to the Court?
COURT: You are now in contempt of court. I’m fining you $1,000. Ask another question, Mr. Besetzny.

After further questions, the judge upped the ante to $3,000 and called it a day.

When the trial resumed, Judge Demacopolous advised Respondent that the contempt order stood, but that the $3,000 sanction was vacated and a full sanction hearing would occur at the conclusion of the trial.

When the dust settled

In a written opinion and order issued on August 28, 2018, the judge held Respondent in direct criminal contempt of court, finding that he “[r]efused to comply with Court orders; [c]ontinually muttered under his breath throughout the trial; interrupted the Court [by] yelling, ‘Gadzooks!’ after the Court ruled; and [b]ehaved in other rude, hostile, and unbecoming manners to the Court.” (Adm. Ex. 10 at 1-2.) The judge further found that Respondent’s behavior “impeded and interrupted [the] Court’s proceedings, lessened the dignity of the Court, and tended to bring the administration of justice into disrepute.” The judge ruled that Respondent was in direct criminal contempt of court by willful and contemptuous conduct, and fined him $1,000. (Id. at 2.)

The contempt was affirmed on appeal.

Respondent, the judge and opposing counsel testified in the bar hearing.

Judge Demacopolous testified that, while she did not know what “gadzooks” meant, she considered it offensive, and believed it was “a comment or critique or an attempt to in some way undermine the Court’s ruling.” (Tr. 137-38.) She took it as if Respondent “was trying to disrupt the administration of justice,” because she was trying to get to the merits of the case and have Mr. Besetzny ask another question, and Respondent continued to interrupt and challenge her ruling.

...Respondent testified that, when he asked if “gadzooks” was offensive to the Court, it was not a snide, demeaning, or flippant comment; he asked because he was “baffled.” (Tr. 282.) He testified that he said “gadzooks” out of frustration, did not believe the word was offensive, and did not mean to offend the Court

Findings

 we find that the Administrator proved that Respondent violated Rule 8.4(d) but failed to prove that he violated Rules 3.5(d), 4.4(a), or 8.4(b).

...By no means do we excuse Respondent’s misconduct, but neither do we find it particularly serious, given that it occurred on one afternoon of a four-day trial, caused no harm to the parties, and caused only a short delay in the proceedings. We also find that Respondent’s misconduct is mitigated by the facts that he fully cooperated in his disciplinary proceeding, has an unblemished record in 33 years of practice, and presented impressive character testimony.

The Administrator asks this panel to find, in aggravation, that Respondent has not expressed remorse for his conduct before Judge Demacopolous or even acknowledged that he engaged in wrongful conduct. It is true that, during his hearing, Respondent testified about his view of the events that unfolded in Judge Demacopolous’ courtroom, disputed Judge Demacopolous’ characterization of the events, and denied that his actions constituted misconduct. However, a respondent is entitled to defend himself, and the fact that he does so is not aggravating and does not mean he lacks remorse.

Poppycock! (Mike Frisch)

September 9, 2022 in Bar Discipline & Process | Permalink | Comments (1)

"Wear Something Low Cut"

A Louisiana Hearing Committee recommends  a six-month suspension and mental health evaluation of an attorney for unauthorized communication that  included vulgarities

The allegations came from a represented opposing party

During the process of the litigation, Respondent contacted Complainant multiple times without the authorization of Complainant’s attorney. The various contacts were via social media and electronic mail. Respondent also contacted Complainant via telephone. Complainant attached copies of the contact to the formal complaint.

The copies of the email messages reflect that Respondent was attempting to discuss the instant legal matter with Complainant. In a message dated October 1, 2019, Respondent advised Complainant that his client sought a “usaf*ck.” [FN1. A vulgar spelling of a La.C.C.P. Article 890 usufruct.] In a message dated October 31, 2019, Respondent made comments to Complainant about the trial. In another message, Respondent requested that Complainant “wear something low cut.” Also attached were messages from the Facebook social media website. In a Facebook message dated September 1, 2019, Respondent acknowledged that he was aware that Complainant was represented by counsel, precluding a claim that he did not know if Complainant was represented by an attorney. [FN2. Respondent maintained that he held “reasonable belief” that Complainant was unrepresented by counsel.] Respondent also sent Complainant a Facebook “friend request,” a copy of which was attached to the complaint.

Respondent, in his written response to the complaint, refuted Complainant’s allegations by suggesting that he had contacted her during time periods when he believed that she was unrepresented by counsel. However, in one of his messages, Respondent stated that he knew Complainant had an attorney. Respondent admitted having sent one of the email messages dated October 31, 2019. Respondent acknowledged that he sent the email requesting that Complainant “wear something low cut.” Respondent also conceded that he sent the Facebook friend request to Complainant in an effort to find “provocative” material that he could then use to his advantage in the civil litigation.

From the evidence

The email messages included a vulgar misspelling of the word “usufruct” and suggested that she “wear something low cut” when the Respondent requested that Ms. Bowers assist his client. Ms. Bowers testified that the request “made [her] feel like a piece of trash . . . because when somebody says this kind of stuff to a female, that you know, wear a low cut shirt, you’re insinuating something sexual.” She also observed that she had “to deal with this [her] whole life” and is not “something that feels good.”

Recommendation

Based on the testimony presented and documentary evidence admitted, the Committee finds the Respondent’s actions violated Rules 4.2 (unauthorized communication with a person represented by counsel) and 8.1(a) (knowingly making a false statement of material fact in connection with a disciplinary matter) and recommends that David Band, Jr. be suspended for a period of six months.

In addition, although the record contains no evidence that Respondent is mentally ill, in our view, because his apparent inability to understand or accept the fact that his belief that his client was “wronged” by the Complainant did not justify or excuse his actions indicates a potential lack of mental clarity sufficient to practice law, the Committee also recommends that (1) within thirty days of the final ruling in this matter, the Respondent, at his cost, shall submit to an
examination by a licensed mental health care professional, selected or approved by the ODC, to determine his mental competence to continue to practice law; and (2) that the Respondent shall advise the ODC of the results of the examination within five days of receiving the results and shall provide his medical records to the ODC upon its request. The ODC is requested to take any further action that it deems suitable following receipt of the examination results.

(Mike Frisch)

September 9, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Subrogation

A consent temporary suspension has been ordered by the Pennsylvania Supreme Court of an attorney (Cohen) who is one of subjects of this press release by the United States Attorney for the Eastern District of Pennsylvania

According to the Information, for approximately two years from 2018 through 2020, Diamond and Cohen engaged in a scheme to divert the fees from numerous personal injury and subrogation matters from the firm to themselves by secretly resolving the cases without the other firm partners knowing about the resolutions. Diamond and Cohen then caused insurance companies and other payors on those cases to send legal fees to themselves instead of to their employer, the law firm. When that was not possible, Diamond went through the firm’s mail and removed checks covering legal fees on the stolen cases made payable to the firm. Diamond then deposited checks from the cases they diverted into bank accounts that he controlled and shared the proceeds with Cohen. Diamond concealed the illegal conduct from his employer by closing the files for those matters and making it appear in the computer records of the firm that there were no settlements or resolutions and that the cases were not viable.

The personal injury and subrogation matters that Diamond and Cohen diverted from the law firm generated approximately $750,000 in initial payments to the defendants, from which they distributed funds to clients and covered other costs in the litigation, maintaining the balance of the fraud proceeds (approximately $320,000) for themselves.

If convicted, the defendants each face maximum possible sentences of 40 years in prison.

(Mike Frisch)

September 9, 2022 in Bar Discipline & Process | Permalink | Comments (0)