Thursday, April 9, 2020
If a conviction bears an "essential similarity" to a state felony, disbarment in New York is automatic.
The Appellate Division for the Second Judicial Department thus disbarred an attorney convicted on these facts of honest services wire fraud
By virtue of his plea of guilty to the information, the respondent acknowledged that between in or about January 2011 and February 2015, while an employee of the Town of Oyster Bay, he participated in a scheme to receive bribes and kickbacks in exchange for his assistance in obtaining the Town’s guarantee of certain loans. Specifically, the Town guaranteed two loans totaling approximately$20 million made by a private corporate financing company to two entities owned and operated by one of the respondent’s co conspirators. Approximately one week after the first loan closed, the respondent received from one of his co-conspirators an envelope with five checks, each made out to “cash” and in the amount of $5,000, for a total of $25,000. After the second loan closed, the respondent again received from one of his co-conspirators an envelope with five checks, each made out to “cash” and in the amount of $5,000, for a total of $25,000.
Under the circumstances of this case, we conclude that the respondent’s conviction of the crime of conspiracy to commit honest services wire fraud, in violation of 18 USC §§ 1343 and 1346, is essentially similar to the New York felony of scheme to defraud in the first degree, in violation of Penal Law § 190.65. By virtue of his conviction of a federal felony, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).
Frederick Mei, a former Oyster Bay deputy town attorney, admitted Monday to taking bribes from restaurateur Harendra Singh and another contractor as part of what he described as the “pay-to-play nature” of conducting business in the Republican-controlled town.
Assistant U.S. Attorney Lara Treinis Gatz asked Mei, who took the stand in the federal corruption trial of former Nassau County Executive Edward Mangano, his wife Linda and former Oyster Bay Town Supervisor John Venditto, if he was familiar with the expression “the Oyster Bay way.”
Mei responded: “To me, it’s a phrase used to discuss the pay-to-play nature of the town.”
Mei, who pleaded guilty to accepting bribes from Singh in exchange for helping him secure town-guaranteed loans, said the GOP wielded outsized influence in Oyster Bay.
A job candidate has to — at a minimum — be a registered Republican to get one of the approximately 1,100 posts with the town and they have to go to GOP fundraisers, Mei said.
“Pretty much do whatever you have to do in furtherance of the Republican Party,” Mei said.
His testimony recalled similar testimony four weeks ago from Singh, who said he learned early in his career to join the “club” of local Republicans for his restaurants to thrive.
Wednesday, April 8, 2020
Respondent's New York suspension was related to his pleading guilty to reckless assault in the third degree, a Class A misdemeanor in New York. The criminal charge arose from Respondent's physical assault of the Complainant in his home after he drank excessively and "blacked out." The Complainant suffered bruises on her neck, throat, ribcage, and both wrists; contusions on her head; and a scaphoid fracture. A special referee appointed by the New York Supreme Court found the Complainant's assertions that she feared for her life during the attack were credible; Respondent's actions "were aberrational and not in his character"; and Respondent's deep remorse and acceptance of responsibility "were . . . palpable at the hearing." The special referee recommended Respondent receive a public censure. However, in light of the seriousness of Respondent's conduct, the New York Supreme Court found "a period of suspension for such an assault [was] warranted in order to maintain the honor and integrity of the profession and deter others from similar misconduct."
We find reciprocal suspension from the practice of law in South Carolina for four months is appropriate in this matter. We order the reciprocal suspension be imposed retroactively to March 5, 2020 (the date Respondent's New York suspension commenced), and that his South Carolina suspension run concurrently with his New York suspension.
The Indiana Supreme Court suspended an attorney for 180 days without automatic reinstatement
The Commission filed its disciplinary complaint against Respondent on May 1, 2019. Respondent was served but did not appear or respond. Accordingly, the Commission filed motions for judgment on the complaint, to which Respondent likewise failed to respond, and the hearing officer took the facts alleged in the complaint as true. See Admis. Disc. R. 23(14)(c)(3).
Facts: After twice failing the Indiana bar exam, Respondent applied again in December 2014, took and passed the July 2015 bar exam, and was admitted to practice in April 2016. In his bar exam application, Respondent answered “no” to Questions 14 (“Have you ever been a party in a civil court case or proceeding?”) and 15 (“Have you ever had a complaint or other action (including but not limited to, allegations of fraud, deceit, misrepresentation, forgery or malpractice) initiated against you in any administrative forum?”). Respondent also acknowledged in his application his affirmative obligation to notify the Board of Law Examiners of any events between his application and bar admission that would cause any of the answers on his application to change.
After he submitted his application and took the bar exam, but before he was admitted to the Indiana bar, Respondent was the subject of a civil protective order proceeding filed in Marion Superior Court as well as a Title IX complaint filed with the McKinney School of Law. Respondent failed to supplement his bar application to include information about the protective order and Title IX proceedings.
Respondent has petitioned for review, but his petition does not articulate any grounds that would call into question the appropriateness of the hearing officer’s entry of judgment on the complaint. Moreover, Respondent’s argument that prosecution of the underlying misconduct is barred on res judicata grounds, due to the prior dismissal of a show cause proceeding that involved Respondent’s failure to timely cooperate with the Commission’s investigation into that misconduct, is without merit. See Matter of Krasnoff, 78 N.E.3d 657, 661-62 (Ind. 2017). So too is Respondent’s argument that he is being prosecuted for “a purely private affair disconnected from the practice of law.” (Pet. for Rev. at 12). Respondent is not being prosecuted for having been the subject of protective order and Title IX proceedings; rather, he is being prosecuted for having failed to comply with the requirement that he disclose those proceedings on his bar application, a failure with a direct and immediate bearing on the practice of law. See Matter of Charos, 585 N.E.2d 1334, 1335 (Ind. 1992).
Tuesday, April 7, 2020
The Ohio Supreme Court has ordered the State Bar Association to respond to a motion to quash a subpoena for documents.
From the motion to quash
The Respondent is of information and believes that Ohio Regulatory Agency has received only one single complaint from an inmate incarcerated in Federal prison in Fort Dix New Jersey for crimes committed in New York. Timberwolf is a native Colorado business that had foreign registration in the state of Ohio. The inmate's lawyer was based in Colorado and a complaint filed by the inmate was against this Colorado based lawyer. Timberwolf performed research, typing and office support under the direction of Mr. Snyder’s Colorado based attorney. Some of this work, in particular the typing and mailing, was performed by the Ohio office of Timberwolf, but all work performed by Timberwolf for Mr. Snyder was under the direct supervision of that Colorado based lawyer.
One concern is whether a worker in a law office must be in the same state as the lawyer handling a case. A question arises as to whether internet-based research, typing and mailing of documents prepared or approved by an out of state lawyer constitutes the practice of law in the state from which the documents were physically typed or mailed. If so, then a situation could arise where a legal secretary living in an apartment just across a bridge from the Philadelphia law firm where she was employed could be found to be engaged in the practice of law simply because she dropped off the mail at a post office on the New Jersey side of the river where she lived instead of at a post office on the side of the river where she was employed.
The Ohio Regulatory Agency has received no other complaints whatever from Respondent’s customer base. The State agency filed a far reaching Subpoena Duces Tecum issued to a third non-party (James Houk) seeking the identities of all Timberwolf customers nationwide going back years and also requiring the presence at deposition of non-party Houk. See Exhibit A Subpoena Duces Tecum.
Respondent by counsel filed a Motion to Quash (Exhibit B) and a Memorandum of Law (Exhibit C).
Dan Trevas previews an oral argument today before the Ohio Supreme Court
Erie-Huron County Bar Association v. Kenneth Ronald Bailey and Kenneth Richard Bailey, Case No. 2019-1028
Father-son lawyers Kenneth Ronald (Ron) Bailey and Kenneth Richard (Ken) Bailey face disciplinary sanctions for their actions while representing a church pastor accused of raping two churchgoers under age 13.
The Board of Professional Conduct recommends that Ron Bailey be suspended for two years with one year stayed with conditions. The board recommends a public reprimand for his son based on disparaging posts about Erie County Common Pleas Court Judge Roger Binette on Facebook. Portions of those posts were reported by the Sandusky Register and Ken Bailey removed them.
Ken Bailey didn’t object to the board’s conclusion that he made a false statement regarding the qualification and integrity of Judge Binette and he isn’t participating in oral arguments. The Court is considering Ron Bailey’s objections to the board’s recommendations.
Attorney Seeks Time, Expert to Represent Client
The Erie-Huron County Bar Association charged Ron Bailey with several violations of the rules governing the conduct of Ohio lawyers based on his 2016 representation of Richard Mick. Mick was indicted in May 2014 on two counts of gross sexual imposition and two counts of rape stemming from alleged acts that took place 15 years earlier when the victims were younger than 13. Mick was first declared indigent and appointed a public defender.
The public defender represented him for the next 16 months, and the trial court agreed for the state to pay the cost to hire psychologist Terrence Campbell as an expert witness.
In 2015, Mick fired his public defender, and using funds donated by church members, hired Ron Bailey to represent him. He paid Bailey a $12,000 retainer agreed to pay $250 per hour for representation, and agreed to pay expenses associated with the cost of “investigators’ and “expert witness fees.”
In October 2015, Bailey took over the case and asked for several continuances. By that time, Campbell had died and Bailey requested he be replaced by Jolie Bram at the state’s expense. A third expert witness, Eric Ostrov was also expected to testify.
Dispute about Experts Arises
Prosecutors notified Bailey that Mick had previously been charged with sexual abuse in 2012 in a case involving his daughter. Ostov issued a report in the daughter’s case questioning the validity her testimony based on “repressed memory.” Bailey was provided the report and indicated that Ostrov asked Bailey to pay his travel expenses from Chicago to testify in the new Mick trial, as he shared the same view of repressed memory testimony as the deceased Campbell. Mick was acquitted in the 2012 case.
Prosecutors objected to Bailey’s request that the state pay for Bram, noting the presence of Ostrov and the fact that Mick shouldn’t be considered indigent because he was able to pay Bailey. The court denied the request to pay for Bram.
The trial was set for October 2016, and Bailey continued to insist that he was unable to prepare properly to represent Mick if he was denied the expertise of Bram.
Attorney Refuses to Participate in Trial
On the eve of the trial, Bailey, after consulting with his son, other lawyers, and Mick, developed the strategy that he wouldn’t participate in the trial and would force a mistrial. He would argue the denial of funds to hire Bram was of such constitutional magnitude that it would prevent a fair trial. He notified Ostrov not to travel to Ohio to testify.
When Judge Binette instructed the attorneys to begin jury selection, Bailey announced he “cannot and will not be able nor willing to proceed today.” Judge Binette called the lawyers to the bench and Bailey repeatedly requested that the judge continue the case and provide funding for Bram. The judge denied the motion and on three occasions requested that Bailey step back from the bench. Bailey refused and continued to argue his case. The judge notified Bailey he was going to cite him for contempt of court.
Bailey refused to participate in the trial and no witnesses were called on Mick’s behalf. Mick was convicted of the charges and sentenced to life in prison for the two rapes. Bailey was held in contempt, and ordered to pay a $250 fine and serve 30 days in jail.
The Sixth District Court of Appeals reversed Mick’s conviction based on ineffective counsel, and he was released from prison after 18 months. He was retried in 2019, which ended in a mistrial. A third judge was assigned in late 2019 to hear Mick’s case.
Board Finds Attorney Misconduct
While the bar association charged Bailey with several rule violations, a three-member hearing panel concluded that Bailey broke three rules. The panel found he disrupted a court case, acted in an undignified and discourteous manner toward the trial judge, and engaged in conduct that prejudiced the administration of justice.
The panel recommended a one-year suspension with six months stayed. The Board’s recommendation increased the sanction to a two-year suspension with one year stayed with the condition that he commit no further misconduct.
Attorney Denies Violations
Bailey objects to the recommended suspension, noting that he has no prior disciplinary violations in his more than 30 years as a practicing lawyer. He notes the 2019 mistrial of Mick’s second trial provides further evidence that he was correct in his position not to participate in a trial that would violate his client’s constitutional rights. Bailey acknowledges his actions disrupted the proceedings, but noted the panel found no evidence he acted in a dishonest manner and that his actions were sincere and in good faith.
Bailey notes that during his disciplinary hearing an expert witness supported his theory that he would have little success of winning an appeal had he allowed the trial to go forward then raised his objection to the lack of funding an expert witness.
He also notes that he didn’t intend to act discourteously toward the judge. He said he took the judge’s statements that he “may step back from the bench” to be advisory and not an order that he was disobeying. He asks the Court to find no violations of the rules.
Bar Association Support Sanction
The bar association maintains the board correctly found that Bailey’s fee agreement with Mick provided for funds to pay for the expert witnesses and he had no justification for disrupting after the trial court repeatedly denied his requests for funds. The association argues that Bailey engaged in a risky strategy to prevent his client from going to prison that backfired and his actions justify the suspension.
– Dan Trevas
Note from the court's web page: The Supreme Court of Ohio hears oral arguments in four cases on Tuesday and four cases on Wednesday. Oral arguments begin at 9 a.m. and will be conducted via videoconferencing. (Mike Frisch)
Monday, April 6, 2020
The Georgia Supreme Court approved a petition for a State Disciplinary Review Board reprimand
According to his petition, Abdur-Rahim was involved in an altercation with his father in September 2017, and as a result, Abdur-Rahim was charged with family violence battery, third degree cruelty to children, and disorderly conduct. At his arraignment in April 2018, Abdur-Rahim was unnecessarily argumentative with prosecutors, used profanity, failed to follow the instructions of the court, and generally engaged in disruptive conduct. In mitigation, Abdur-Rahim says that he was suffering from personal and emotional problems at the time of his arraignment, that he later sought and obtained treatment for these problems, that he apologized to the judge and court staff involved in his arraignment, that he freely and fully disclosed his wrongful conduct to and cooperated with the State Bar and State Disciplinary Board, and that he is remorseful for his misconduct. We note as well that Abdur-Rahim has no prior disciplinary history, and his disrespectful and disruptive conduct on the occasion of his arraignment appears to have been an isolated incident, inasmuch as the State Bar has come forward with no evidence of Abdur-Rahim disrupting court proceedings on other occasions.
The attorney represented himself at the arraignment. (Mike Frisch)
An agreed reprimand and probation from the Maine Grievance Commission
Respondent Steven A. Juskewitch, Esq. (Juskewitch) has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, Juskewitch is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R.P.C.). Juskewitch was admitted to the Maine Bar in 1976 and is currently a solo practitioner in Ellsworth, Me.
According to the parties’ stipulations, the Commission finds the following relevant facts:
On December 8, 2018, Richard Eckendorff filed a complaint against Attorney Juskewitch, based upon Juskewitch’s prior representation of Eckendorff. Within his complaint, Eckendorff alleged that Juskewitch threatened him with physical harm, causing Eckendorff to feel fearful and intimidated by his attorney. Eckendorff reported that the threats occurred over the span of four months during the representation. On at least two of the occasions when Juskewitch made the aggressive statements, there was another person present. Eckendorff did not discharge Juskewitch as his counsel. Mr. Juskewitch withdrew from representation after the court granted his motion to withdraw. Sometime thereafter, Eckendorff filed his grievance complaint, which followed his receipt of Juskewitch’s final bill. Eckendorff also complained to the local police but Juskewitch was not charged with a crime.
Juskewitch filed a timely response to the complaint, denying any professional misconduct. Instead, Juskewitch explained that while he did make statements such as "I'm going to strangle you," he did so in frustration with Eckendorff’s lack of focus, not as an intended threat toward his client. Juskewitch averred that his relationship with Eckendorff was a difficult one to manage and his statements were meant to focus the client on preparing for his anticipated testimony. With the passage of time, Juskewitch now agrees that his treatment of Eckendorff fell short of that which is ethically required of attorneys. He has expressed regret for acting in that manner toward Eckendorff.
Even though Juskewitch did not intend to convey a threat to his client, the Commission finds that his actions toward Eckendorff were violative of M.R.P.C. 1.4(a) [communication] and 8.4(d) [conduct prejudicial to the administration of justice].
The Maine Rules of Professional Conduct specifically require attorneys to uphold their responsibilities to clients and the courts. Juskewitch agrees that he violated his duties to comply with those Rules.
Taking all of the above factors into consideration, and consistent with the analysis outlined in M. Bar R. 21(c), the Commission finds that an Admonition and Probation are appropriate sanctions to address the misconduct by Attorney Juskewitch. The parties shall mutually agree upon the Probation terms, but at a minimum, Probation shall continue for one year, and Mr. Juskewitch will consult with an agreed upon person or persons experienced in the proper management of client relations/communications and anger management. The parties have further agreed that the Probation terms shall be maintained within Bar Counsel’s file, and she shall notify the Commission Clerk upon Juskewitch’s successful completion of the period of Probation. With these consented-to-conditions, the Commission accepts the agreement of the parties, including Attorney Juskewitch’s separately executed waiver of the right to file for a Petition for Review.
Pursuant to M. Bar R. 13, the Commission hereby imposes an Admonition and one year of Probation upon Steven A. Juskewitch, Esq.
Friday, April 3, 2020
A former judge's felony conviction has resulted in his disbarment by the New York Appellate Division for the Second Judicial Department
On September 13, 2019, the respondent pleaded guilty before the Honorable David Goodsell, in the County Court, Suffolk County, to the crime of attempted burglary in the second degree, in violation of New York Penal Law §§ 110 and 140.25(2), a class D felony.
The actions taken by the New York Commission on Judicial Conduct are linked here.
ABC7 NY reported on the charges
A Long Island judge who police say repeatedly broke into his neighbor's home to steal her underwear has confessed to snatching panties on multiple occasions, even though he has pleaded not guilty.
Still, Suffolk County District Judge Robert Cicale has been removed from the bench and is facing up to 15 years in prison.
Cicale was arrested on burglary charges and appeared in court Friday morning.
The judge is a married father of three young children, and he is accused of sneaking into a home across the street and stealing the underwear of a 23-year-old woman who lives there with her parents. He reportedly knew the girl from when she worked as an intern at the Islip Town Attorney's Office, when he used to work there.
In his confession, he said he stole the underwear upon feeling "urges." He admitted that on several occasions, he entered the home, opened her hamper and took underwear.
Cicarle [sic] was taken into custody after an incident that happened around 9 a.m. Thursday, when the young woman was alone. Prosecutors said she was sleeping but woke up when she heard the door open. She called out, "Hello?" and that's when she saw Cicale at the doorway.
Authorities say he turned around and ran away, and the victim closed and locked the door and called her mother, who called 911. Responding officers say they saw Cicale walking up to a different house and pretending to knock on the door.
They approached him because he matched the description of the person the victim described. They reportedly found several pairs of soiled women's underwear on him, which the victim identified as her own.
Cicale has written letter of apology to victim and also provided a written confession.
Wednesday, April 1, 2020
An attorney's sleep apnea is not a mitigating factor in a matter in which the attorney had allowed a default to be entered against a client and made misrepresentations to that client.
The New Hampshire Supreme Court ordered a three year suspension with 18 months stayed.
However, his subsequent treatment and its positive consequences significantly impacted on the sanction
We note that, although the respondent’s sleep apnea does not qualify as a disability, his medical history and subsequent treatment are material factors in our analysis. Shortly after the events at issue in this matter, the respondent voluntarily ceased the practice of law, and sought treatment for his health problems. Beginning in 2012, the respondent went to dozens of medical appointments for problems including fatigue, swelling, and abdominal pain. Although he was diagnosed with a number of conditions, the respondent’s health did not markedly improve until after he was diagnosed with sleep apnea in 2017. Following this diagnosis, the respondent began sleeping with a CPAP (Continuous Positive Airway Pressure) machine, and has been healthier with less fatigue. After a period of approximately 15 months not practicing law, in March 2018, the respondent returned to practice handling a full caseload, apparently without additional instances of misconduct. Thus, we take into account the respondent’s struggles with his health during the events at issue in this matter, as well as his representations that he has since addressed his health problems, and is once again capable of handling the serious responsibilities associated with the practice of law.
...we order the respondent suspended for three years, and we order him to pay all costs associated with the investigation and prosecution of this matter. See Sup. Ct. R. 37(19). We further order that 18 months of the suspension shall be stayed, provided that the respondent pays said expenses and engages in no further professional misconduct.
A single justice of the Massachusetts Supreme Judicial Court has affirmed the disbarment of an attorney with a foreclosure practice for his involvement in misappropriation.
The problem began with an employee misappropriation
Although the respondent denied knowing that Moss misappropriated funds, the hearing committee did not credit this testimony and cited to several sources, including testimony from Scofield, Donovan, and Feige. Specifically, testimony at the hearing established that the respondent discussed the IOLTA deficit with Feige and Scofield. Starting on February 28, 2011 Feige provided the respondent and Scofield with a weekly summary of the firm's finances which showed that the firm's accounts payable significantly exceeded the accounts receivable, sometimes by as much as three-fold. Testimony at the hearing, corroborated by email correspondence, demonstrates that the respondent was actively involved in the firm's financial decisions. The respondent was involved in deciding which vendors to pay, the amount to be paid, and the timing of the payments, including payments made to ancillary businesses in which the respondent had an ownership interest.
After the new CFO was in place
As the firm's new chief financial officer, Feige continued and expanded the firm's misuse of 101 TA funds. In 2011, the financial pressures on the firm grew after this court issued its decision in U.S. Nat'! Bank v. Ibanez, 458 Mass. 637 (2011), requiring that a lender have possession of the promissory note prior to commencing a foreclosure action. As a result of the Ibanez decision, pending foreclosure cases were unable to move forward, but the firm continued to incur expenses. For several months after the decision, the firm did not receive any new foreclosure work and began to operate at a loss.
The bar came calling
In August 2011, as a result of five bounced checks drawn on the firm's IOLTA accounts, bar counsel opened an investigation. Bar counsel requested an explanation and supporting financial documents. Earlier in the summer of 2011, the respondent, Scofield, Feige, and Donovan met to review Donovan's preliminary findings on the extent of the misuse of client funds under Moss. Nevertheless, by the time bar counsel opened the investigation, this analysis remained ongoing and the firm's financial records were still not in compliance. Knowing the poor state of the firm's financial records, Feige and Donovan both expressed concerns over bar counsel's requests. The respondent hired a legal ethics attorney, who taught Donovan how to perform three-way reconciliations, as required by Mass. R. Prof. C. 1.15. However, Donovan was unable to reconcile the accounts and bring the accounts current due to a lack of funds. To comply with the request from bar counsel, Donovan created a second set of Quick Books which were submitted to bar counsel. On the basis of the false records, bar counsel closed the investigation on May I, 2012.
But continuing problems brought the bar back
The firm was again investigated by bar counsel. On August 2012, after a check for $370,000 drawn on an IOLTA account was returned for insufficient funds, bar counsel opened a second investigation of the respondent and Scofield. This investigation was also closed on the basis of false statements made by Feige to bar counsel. The hearing committee subsequently found that these statements were not truthful during the current investigation. Although Feige reported to bar counsel that the check was an accounting error, a review of financial records showed otherwise.
Two other firms were brought into the practice
On August 28, 2013, after learning that the firm would not be able to issue an IOLTA check, [new partner] Geaney also learned that more than $3 million was missing from the IOLTA accounts. Geaney called a meeting with the respondent, Scofield, and Connolly. At the meeting, Donovan and another member of the accounting department informed the partners that they had used IOL TA funds to cover firm expenses per instructions from Feige.
The partners discussed options on how to proceed, including firing Feige. The respondent testified that he wanted to fire Feige but did not have the authority. The hearing committee did not credit this testimony, as all the other partners testified that the respondent had the authority to fire Feige. Nor did the hearing committee credit respondent's argument that the firm's restructuring, including the respondent's purported resignation on May 16, 2013, left the respondent without the authority to fire Feige.
Respondent later declared bankruptcy.
A second count involved the ethics of a "factoring" agreement
On November 8, 2012, the firm entered into a factoring agreement with Durham Commercial Capital Corp. (Durham) under which the firm agreed to sell its accounts receivable to Durham. The respondent signed the agreement, which included a statement confirming that the firm was solvent. The agreement granted Durham a security interest in the firm's accounts receivable; however, the firm previously had granted the same assets to a creditor as collateral. Although the respondent testified that he believed the firm was solvent at the time that he entered into the agreement with Durham, the hearing committee did not credit his testimony as the respondent knew that on multiple occasions the firm was unable to cover payroll and outstanding debts including as of October 2012.
The respondent further violated the rules of professional conduct as, pursuant to the factoring agreement, the firm granted Durham access to confidential client information prior to seeking and securing permission from those clients to disclose the information. Further, the firm failed to inform clients that it granted Durham sole possession of all records and computer servers containing confidential client information as collateral.
The justice rejected Respondent's claim that his due process rights were violated by denying his request to depose three witnesses. He was given full ability to cross-examine these witnesses at the hearing.
regardless of the respondent's motive, whether he was operating the firm for his personal gain or attempting to keep the firm afloat for the benefit of its employees and clients, it does not change the fact that IOLTA funds were misappropriated and the respondent did not, as a supervising attorney, take the necessary steps to ensure that the firm properly managed the IOLTA accounts. The respondent's failure to establish effective measures to ensure that the IOLTA accounts were managed properly is especially egregious given that the office of bar counsel investigated his firm for the same offense on two prior occasions.
Associate Justice Budd authored the decision. (Mike Frisch)
Monday, March 30, 2020
A District of Columbia Hearing Committee has proposed a 60-day suspension, restitution with interest and a fitness showing of an attorney based on findings that he had mishandled a tax matter
Disciplinary Counsel maintains that the record demonstrates Respondent’s Rule violations. Respondent undertook an engagement to settle Mr. Bahri’s sales tax liability, then waited several months to proceed, during which delay Respondent misrepresented to his client that the matter was already submitted. Once Respondent finally took action, he did not follow his client’s instructions to seek relief only from accrued penalties and interest but tried to challenge the entire tax liability. When the New York DTF asked for further information, Respondent simply folded – doing nothing to inform his client of that request, nor responding further to the tax authority on his client’s behalf.
... we find Disciplinary Counsel has proved by clear and convincing evidence that Respondent committed all of the asserted Rule violations.
The committee concludes that more than a losing strategic approach demonstrated incompetent representation
To be clear, the validation of Respondent’s legal strategies does not present the sole key issue in this disciplinary proceeding. Even if Respondent had correctly identified the right relief to pursue from DTF for this client at the outset of the representation, doing nothing in response to the DTF’s request for information – failing to inquire or respond in any fashion to that request and failing to timely inform his client about it – suffices here to find that Respondent failed to provide competent representation to Mr. Bahri and prejudiced him by delaying the resolution of his tax liability. FF 42. And the totality of this largely undisputed record – Respondent’s unreasonable delays, miscues, misrepresentations to his client, pervasive confusion about the status of his client’s matter and appropriate relief available, together with Respondent’s repeated failures to perform as directed and in response to the New York DTF’s request for additional information – demonstrate by clear and convincing evidence Respondent’s lack of competency in this matter.
As to the unreasonable fee charge in a flat-fee matter
A client is robbed of the bargained-for exchange if a lawyer accepting a flat fee spends time on the engagement but delivers no value to the client or abandons the engagement before it is completed. A lawyer is breaching his flat fee contract in these circumstances, rendering the fee unreasonable when the client has paid the flat fee in advance. See Mance, 980 A.2d at 1202-03.
That is precisely what happened here: Respondent promised to “endeavor to get [Mr. Bahri’s] sales tax liability settled” in return for a $4,000 fee. DX 5 at 8-9. Mr. Bahri paid the money, but Respondent did not endeavor to resolve the tax liability beyond his initial Offer in Compromise submission. His engagement letter contemplated more than that, but Respondent’s filing of the Offer in Compromise provided no value to Mr. Bahri because Respondent failed to follow-up on the submission. Respondent neither asked his client for nor provided necessary information the New York DTF specified in Publication 220 (FF 12), and which the DTF specifically requested from Respondent. FF 30-32. Respondent’s $4,000 fee may have been eminently reasonable had Respondent done what he promised, but it was unreasonable to charge that amount and then make no meaningful effort to resolve his client’s sales tax liability after submitting the initial Offer in Compromise. The record demonstrates by clear and convincing evidence that Respondent charged an unreasonable fee to Mr. Bahri, in violation of Rule 1.5(a).
by clear and convincing evidence the record raises serious doubts about Respondent’s ongoing fitness to practice law. Respondent does not acknowledge, much less recognize the seriousness of his mishandling of Mr. Bahri’s tax relief matter. Respondent has taken no steps to remedy his past conduct, but simply abandoned Mr. Bahri without notice or explanation, and steadfastly refuses to refund his client’s advance flat fee that has not been earned, while blaming the client for his own failures.
He had claimed that his prosecution had amounted to "age discrimination"
The Committee understands that Respondent enjoyed an estimable law practice, beginning in 1963 and continuing through several decades, that included admirable public service within the Internal Revenue Service Office of Chief Counsel. See Rebuttal Brief at 22-23 (detailing non-sequitous employment history). Yet, laws proscribing age discrimination do not compel this Committee to overlook the many instances of Respondent’s confusion in the record. Were he a lawyer aged only thirty-five years, the record would still raise substantial doubts about Respondent’s fitness to practice.
Respondent should be required to demonstrate fitness before he resumes the practice of law.
In re Alvin Brown can be accessed here. (Mike Frisch)
Multiple failures, mishandling entrusted funds and dishonesty led to the disbarment of an attorney admitted in December 2014 by the Maryland Court of Appeals
These violations arose from respondent’s misconduct in two separate client matters, in which respondent failed to appear at a meeting with a client and at the client’s court hearing; failed to inform the client about his absences; failed to respond to the two clients’ numerous attempts to contact him; failed to return his collected fee to a client after performing no legal service; failed to deposit a client’s retainer fee into an attorney trust account; failed to notify a client’s medical provider about settlement funds received and to distribute its portion; abandoned a client’s case without notice and without returning unearned fees; failed to respond to the Bar Counsel’s requests for information and documentation; and misrepresented to a client that he was licensed to practice law in a state where he was not. The proper sanction for these violations is disbarment.
In one matter, the attorney took on an Oklahoma motor vehicle accident case without an Oklahoma license. He secured a $200,000 settlement.
The second matter involved defense of an assault charge.
Respondent’s failures to safekeep funds and acts of dishonesty and misrepresentation each independently warrant disbarment absent compelling mitigating circumstances...
Respondent did not participate in any part of this disciplinary proceeding. He presented no evidence and no mitigating factors. Respondent acted with a dishonest and selfish motive, exhibited a pattern of misconduct, engaged in multiple offenses of the Maryland Rules, acted in bad faith to obstruct the disciplinary process, and showed indifference to making restitution. Disbarment is the appropriate sanction for respondent’s misconduct.
Friday, March 27, 2020
The Illinois Administrator has filed a complaint alleging that a Nevada attorney not admitted in Illinois undertook an Illinois personal injury matter.
When the client inquired as to the status of the case, he allegedly told her to be patient and trust him.
On July 25, 2019, Respondent and Taylor exchanged a series of text messages. Those messages read as follows:
Taylor I want this case to be over soon, Dr. Libo.
Tmvr is your bday!!
Respondent Yes ma’am. What’s my gift?
Taylor Where’s my bday gift
Respondent It’s not your birthday.
Taylor You didn’t get me a birthday gift, remember
What would you like?
Taylor No way!!
At no time had Respondent and Taylor engaged in any consensual sexual relations prior to the commencement of their lawyer-client relationship on June 6, 2018, and Respondent’s request for sex from Taylor on July 25, 2019 materially affected his ability to represent Taylor in connection with her claim against Zagal.
She terminated the representation on the same day.
On July 30, 2019, Respondent prepared and sent to Allstate Insurance a Notice of Attorney Lien ("attorney lien"), asserting a lien for fees on any proceeds recovered by Taylor in connection with her claim related to the December 16, 2017 vehicle collision. Respondent’s attorney lien stated, "This lien is in the amount of $3,766.66, representing the 33 1/3 percent of the total amount recovered, plus costs of $180.26 (see attached breakdown) for a total of $3,946.92."
Respondent’s claim for fees was fraudulent. Respondent knew that he was being dishonest by sending the attorney lien to Allstate on July 30, 2019 because at no time had Taylor agreed to pay him any fees for handling her claim against Zagal in connection with the December 16, 2017 vehicle collision.
The complaint alleges that the attorney made false statements in response to the complaint and offered to reduce the lien if the former client dropped the grievance. (Mike Frisch)
An attorney's assault conviction drew a censure from the Tennessee Board of Professional Responsibility.
As reported by WREG 3 Memphis
Memphis attorney Arthur Horne was sentenced Thursday to 30 days in jail on a misdemeanor assault charge.
Horne’s attorney said he would begin serving the sentence on weekends in the next few days and could continue to practice law, although an appeal was also possible.
Horne was cleared of rape and kidnapping charges in August, but was convicted of assault in a 2017 incident involving a woman with whom he was in a relationship.
The woman accused Horne of beating and raping her at his East Memphis home, but Horne claimed she made the story up because she was angry he had a baby with another woman.
Horne has been involved in a number of high-profile cases, including the recent shooting of Martavious Banks by Memphis Police.
Horne said he is holding a press conference on the Banks case Thursday, and that it would not be affected by the sentencing.
An attorney's dilatory actions in response to 20 complaints has led to her interim suspension by the New York Appellate Division for the First Judicial Department
Respondent is currently the subject of more than 20 complaints alleging, inter alia, fraud, escrow violations, and misrepresentations to a court in connection with a fee dispute. The AGC has been attempting to take her deposition since 2017 which has been repeatedly adjourned at respondent's request for various reasons which include five changes of counsel and alleged medical issues.
Between October 2018 and February 2019, the parties discussed the rescheduling of respondent's deposition. By February 22, 2019 email, however, respondent's current counsel (her fifth attorney) notified the AGC of his representation and the Committee agreed to adjourn her deposition until March 2019 to allow counsel time to review documents and familiarize himself with the matters under investigation.
Between March and April 2019, the deposition was twice more adjourned to give respondent's current counsel additional time to prepare and to accommodate his schedule. By May 3, 2019 letter, the AGC advised counsel that it would not tolerate further delay, directed respondent to appear for her deposition on May 30, 2019, and cautioned her that if she failed to appear as directed, the Committee would seek her interim suspension.
The Committee agreed to adjourn respondent's deposition three more times to accommodate counsel's schedule and respondent's scheduled medical procedures but reminded her counsel that it would seek respondent's interim suspension if she failed to appear on July 11, 2019. On July 10, 2019 counsel informed the AGC that he had just learned that respondent had traveled to Russia for medical treatment and he did not know when she would return. By letter of the same date, the AGC advised him that it would seek respondent's interim suspension based on her alleged failure to cooperate with the Committee. To date, respondent has not appeared for a deposition as directed by judicial subpoena, nor has she informed the Committee of her whereabouts.
The AGC argues that respondent, who, as noted, is the subject of over 20 complaints, has engaged in "repeated dilatory tactics" to avoid appearing for a deposition (which includes repeated changes of counsel and proffered medical excuses all the while maintaining that she is fit to practice law) and, thus, her "repeated conduct raises the inevitable inference that her failure to cooperate has been willful" for which her interim suspension is warranted (Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.9[a]).
Respondent's counsel opposes and asserts that he has had no direct contact with respondent since July 2019 when she left for Russia to undergo medical treatment without prior notice to him; he offered to provide the AGC with medical documentation, if able to obtain such, but none was requested; between July and October 2019, he had several conversations with the assigned AGC staff counsel regarding other matters but nothing was said about the rescheduling of respondent's deposition, medical documentation, or the Committee's moving for her suspension; and upon receiving the AGC's motion, he attempted to contact respondent without success by leaving her voice mail messages.
While counsel has had no direct contact with respondent since July 2019, he received by email translated medical records which stated that respondent was hospitalized in Russia from July 10 to August 1, 2019, underwent surgery on July 15, 2019 and upon discharge it was recommended that she be excused from work and physical activity for at least six to eight months and rest at home.
Counsel asserts that he has not been able to contact respondent since her surgery to discuss the AGC's motion, a response thereto, or the rescheduling of her deposition; and since this matter was reassigned to another AGC staff counsel in November 2019 there has been no discussion about rescheduling respondent's deposition. Counsel maintains that without respondent's assistance in preparing a response to the AGC's motion, his efforts to defend her are limited to the submission of the medical documentation discussed above, which he argues evidences that respondent's failure to appear for a deposition in July was not deliberate or willful as there was a valid medical reason for her non-appearance. Further, he asserts that he offered to provide the previously discussed medical documents to the AGC but no request for them was made.
We find that the Committee has met its burden in that respondent's conduct since 2017, namely, five changes of counsel, repeated last minute excuses made on the eve of scheduled deposition dates, her failure to give advance notice of her intent to go abroad for medical treatment, as well as her continuing failure to contact her counsel and/or the AGC regarding an expected return date and availability for a deposition, evidences a willful refusal to appear before the AGC for a deposition as directed by a judicial subpoena and, thus, her interim suspension is warranted (see e.g. Matter of Goldsmith, 159 AD3d 188 [1st Dept 2018]; Matter of Morgado, 159 AD3d 50 [1st Dept 2018]; Matter of Jones, 110 AD3d 126 [1st Dept 2013]; Matter of Rennie, 260 AD2d 132 [1st Dept 1999]).
Respondent's continued assertion of medical issues as a bar to her being deposed by the Committee, all the while maintaining that she remains fit to practice law, is an incongruous position. Furthermore, there is no reason to give respondent one more opportunity where she has not bothered to respond to counsel's attempts to contact her regarding this interim suspension motion.
Accordingly, the Committee's motion to suspend respondent from the practice of law, pursuant to 22 NYCRR 1240.9(a)(3), should be granted effective immediately, and until further order of this Court.
The Nebraska Supreme Court disbarred an attorney
Argyrakis pleaded no contest to knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult, a Class IIIA felony. At the plea hearing, when asked for a factual basis for the plea, the prosecutor said that if the matter proceeded to trial, the State would show that Argyrakis, in the course of a verbal argument, repeatedly punched his 83-year-old father in the face, resulting in observable injuries. Neither Argyrakis nor his counsel objected to the factual basis.
The attorney, who was admitted in 1992. represented himself in the bar discipline hearing
After being questioned by counsel for the relator, Argyrakis made a statement under oath. He stated that during his childhood, his father physically and emotionally abused him and that he witnessed his father physically abusing his mother. He testified to his belief that he had always represented clients diligently and effectively and that no clients had ever complained about his services. He also testified that he did not intend to harm his father, that he had attempted to get help for the circumstances that led to the incident, and that he did not believe a similar incident would happen again.
The court reviewed a 2015 precedent (linked here)
The foregoing discussion from Walz regarding the appropriate sanction when an attorney is convicted of a crime of violence is applicable in this case. We classified the conviction at issue in Walz as a crime of violence when it did not involve actual physical violence, but the threat to commit such violence. Here, the factual basis offered for Argyrakis’ no contest plea, to which Argyrakis did not object, was that Argyrakis committed an act of actual physical violence by repeatedly punching his 83-year-old father in the face.
This case is similar to Walz with respect to another traditional factor bearing on the appropriate sanction—the attitude of the respondent. In Walz, the attorney insisted on her innocence despite entering a no contest plea to making terroristic threats. We stated that it was not our task to review a criminal conviction in attorney disciplinary proceedings and that because the respondent insisted on her innocence, she had not accepted responsibility for her actions. For similar reasons, we cannot say that Argyrakis has accepted responsibility in this case. Although Argyrakis seems to concede that he did, in fact, inflict physical violence on his elderly father, throughout the proceedings, he has attempted to minimize his culpability by insisting that he was not the aggressor in the encounter and that his actions were in self-defense. As in Walz, it is not our task to review the conviction. And rather than accepting responsibility for that conviction, Argyrakis is attempting to assign at least partial responsibility for it to others.
In Walz, we observed that while we have not stated a “‘bright line rule,’” our cases regarding the appropriate discipline for felony convictions have generally concluded that such convictions reflect adversely upon a lawyer’s fitness to practice law and that disbarment is the appropriate sanction. As in Walz, we believe it is necessary to convey the serious consequences that attach to a conviction for a crime of violence. Such a conviction damages the reputation of the bar and threatens public confidence in the profession. For these reasons, we conclude, after considering the appropriate factors, that disbarment is the appropriate sanction in this case.
NYV (ABC) reported that the attorney was a candidate for state Attorney General.
The case is STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS. (Mike Frisch)
Thursday, March 26, 2020
The Kentucky Supreme Court has revoked a conditional admission
Sowell attended Mississippi College School of Law from 2008 to 2011, and while there entered into a treatment and monitoring agreement with the Mississippi Lawyers and Judges Assistance Program. Upon graduation, he applied for admission to the Kentucky bar. According to Sowell’s response, he had pre-2008 “disease and alcohol-related criminal charges.”
He was admitted subject to a number of conditions including sobriety
The Committee’s Recommendation of Licensure Revocation details Sowell’s history of Consent Agreement violations and the extension and additional conditions of each subsequent agreement. Pertinent to our analysis, in the preamble to the Third Supplemental Consent Agreement, Sowell acknowledged execution of the prior Consent Agreements, repeated violations of those agreements, being an active alcoholic during the periods covered by the agreements, and completion of a residential treatment program.
By letter dated June 20, 2019, KYLAP’s Director reported Sowell’s noncompliance to the Office of Bar Admissions. Specifically, a random drug/alcohol test conducted on May 3, 2019 resulted in “a dilute.” A follow-up blood test on May 9, 2019, was unable to be conducted because, as Sowell reported to KYLAP, Sowell passed out when the needle was inserted. A followup urine screen on May 22 resulted in a negative test. A subsequent hair follicle test taken on June 4 was, however, positive for cocaine, and indicated alcohol use as well. Additionally, Sowell did not report the positive hair test to KYLAP or to his KYLAP monitor, as required by his KYLAP Supervision Agreement. The letter reporting non-compliance was copied to Sowell and his counsel...
In response to the Committee’s Recommendation of Licensure Revocation, Sowell admits to a relapse from May 4 to 5, 2019, after his girlfriend broke off their relationship, and to non-reporting. In mitigation of revocation, Sowell argues that he had achieved 39 months of sobriety before May 2019, that he subsequently entered an Intensive Outpatient Program (“IOP”) and has been attended 12-step meetings. Sowell also presents testimony as to the nature of addiction, recovery and relapse from Yvette Hourigan, KYLAP’s Director, from Vaas Jackson, one of Sowell’s therapists at his IOP, and from Dr. Grayson Grau, his treating psychiatrist.
The Committee’s Recommendation of Licensure Revocation establishes that Sowell failed repeatedly to abide by the terms of his conditional admission. Sowell’s response and exhibits, while showing progress in his attempt to achieve lasting sobriety, do nothing to contradict the Committee’s findings of noncompliance. Sowell was given repeated opportunities to conform his behavior to the standards required of those seeking admission to the bar but failed to meet those standards. Accordingly, this Court finds that Respondent’s conditional admission to practice law in Kentucky should be revoked.
The Pennsylvania Supreme Court has ordered an attorney's interim suspension.
The Union- Standard reported last month
A Uniontown attorney was charged Thursday following a lengthy undercover operation that revealed he was allegedly laundering money for drug dealers.
Tancredi Calabrese, 32, of Tyler Court was charged by the state police Bureau of Criminal Investigation (BCI) with dealing in the proceeds of unlawful activities, criminal attempt to deal in the proceeds of unlawful activities, unsworn falsification to authorities and tampering with public records. Calabrese allegedly committed the crime while acting as an attorney with Calabrese Legal Services, located at 78 East Main Street in Uniontown.
Calabrese, who was in his Uniontown office Thursday, said he is in treatment for addiction and referred comment to his attorney, Thomas W. Shaffer, who described the case as "classic entrapment," comparing it to a high-profile drug case filed against automaker John Z. DeLorean in 1982.
The investigation began in June 2018 when a person called the FBI tip line saying he hired Calabrese to represent him in a misdemeanor disorderly conduct case, and Calabrese told him he can "wash" his money or "clean" it and not pay taxes, according to the affidavit of probable cause filed in his case.
"Calabrese continued by saying he launders money for numerous large-scale drug dealers that are his clients," Trooper Craig Yauch wrote in the affidavit.
He told the source he takes a 10% fee and holds the money until the client requests a draw, the affidavit said.
BCI launched its investigation in October 2019 after a confidential informant agreed to contact Calabrese about starting a business and laundering money. A confidential informant (CI) met with Calabrese Oct. 23, saying he makes a large amount of money selling cocaine and needed to "put his money in a safe place." Calabrese allegedly told him he could start a nonprofit because nonprofits can have anonymous donors. They discussed forming a shell company, using family members as the owners, according to court paperwork.
When the CI asked about fees, police said Calabrese replied "committing a crime is $10,000 to $20,000 for me to take the step." Calabrese allegedly gave him tips and said he "does it all the time."
In other conversations, Calabrese reportedly told the CI he "has people that would act as 'figure heads' for a small fee," and also asked the CI to loan him $30,000 to $40,000 to expand his own business. In December, an undercover officer met with Calabrese, posing as an accomplice who was being paid by the CI to make the business look legitimate. Calabrese offered her advice, discussing how to make a roofing business look legitimate and telling her they would "all go to jail if this is not done correctly." He told her she was "taking a big risk, take time and think about it," the affidavit said.
The undercover officer met with Calabrese Jan. 3 to sign paperwork, police said, and he again discussed her risks and responsibilities "but assured her that he will be there to run things," the affidavit said.
He reportedly told them if the laundering operation was discovered, he would claim he did not know about the criminal activity. At one point, Calabrese told the CI "if you were trying to just clean up your money, you could just 'give me a briefcase with $100,000 and I'll take it to the Cayman Islands'," the affidavit quoted him as saying.
Police executed a search warrant at his business Jan. 28 and collected documents related to the fraudulent business. The search warrant was obtained from the 46th Statewide Investigating Grand Jury, which was established in January to investigate criminal activity in Fayette County.
Shaffer contended police used his client's addiction to exploit his vulnerabilities.
"The case is a mere image of the U.S. v. DeLorean, where the government preyed upon a failing owner of an automobile manufacturing plant," Shaffer said. "Here, the police arrested an individual who became a confidential informant, who obviously needed one free pass out of jail, and he and the Pennsylvania State Police conjured up a scheme to plant the seed in attorney Calabrese's mind to commit a crime, again preying on his weakness of addiction. This is a classic case of entrapment."
Calabrese reportedly told investigators he was aware the CI's money for the business was obtained through drug trafficking, and that the purpose of the business was to launder money.
Calabrese was arraigned Thursday morning before Fayette County Magisterial District Judge Michael M. Metros, who set bail at $50,000 unsecured, meaning he did not have to post bail as a condition of release.
The Illinois Supreme Court has approved sanctions in a number of bar discipline matters.
Highlights from the Announcements page of the Attorney Registration and Disciplinary Commission
Mr. Craddock, who was licensed in 1997, was suspended for three months. On three occasions he directed vulgar and offensive language towards female opposing counsel in litigation matters he was handling for clients. The suspension is effective on April 3, 2020.
Chicago Daily Law Bulletin reported on the case.
Mr. Elliott, who was licensed in 2010, was suspended for six months and until further order of the Court. After being cited for operating an uninsured motor vehicle without proof of insurance, he altered another individual’s outdated insurance card to falsely reflect that he had insurance for his vehicle prior to the date of the citation. He then produced the altered card to an assistant state’s attorney at the court hearing relating to that citation and falsely represented that he had insurance coverage on the date of the citation. In reliance on his statements, the citation was dismissed.
Mr. Koukios, who was licensed in 1986, was suspended for 90 days. He agreed to represent a married couple in their efforts to evict a tenant, but had not filed the eviction case after approximately six weeks. When the couple asked for information about the case, he fabricated a document that appeared to be an eviction summons showing that a case had been filed and that a court date had been scheduled. He then sent that document to the couple’s adult daughter, knowing that she would share the false information it contained with her parents. The suspension is effective on April 3, 2020.
Wednesday, March 25, 2020
The New York Appellate Division for the Second Judicial Department has disbarred an attorney who received a series of loans from her client.
The client had sought assistance in probating her late husband's estate.
Respondent learned that the client had received $300,000 in life insurance
During the January 13, 2013, meeting, the respondent told Drewes she needed $35,000 to save the Northeast Christian Bookstore (hereinafter the bookstore) from foreclosure. The respondent and her sister, Mary Gilliam, are the sole shareholders of Goodness and Mercy, Inc. (hereinafter Goodness and Mercy), which owns the bookstore. Home Loan Investment Bank had obtained a judgment of foreclosure against Goodness and Mercy, however, Goodness and Mercy filed for bankruptcy in an attempt to permit the bookstore to continue operating and avoid foreclosure. Drewes agreed to lend the respondent the $35,000. On or about January 14, 2013, the respondent received from Drewes a bank check for $35,000, payable to “Harriet Gilliam.” At the time the respondent received the $35,000 from Drewes, she had neither discussed with Drewes the terms of the loan, nor had she memorialized in writing the terms or the existence of the loan.
After filing the probate petition
In or about March 2013, the respondent told Drewes she needed an additional $65,000 to save the bookstore from foreclosure. Drewes agreed to lend the respondent the $65,000. On or about March 14, 2013, the respondent received from Drewes a bank check for $65,000, payable to “Harriet Gilliam.” At the time the respondent received the $65,000 from Drewes, she had neither discussed with Drewes the terms of the loan, nor had she memorialized in writing the terms or the existence of the loan.
Within two weeks of her receipt of the $65,000 bank check, the respondent told Drewes she needed an additional $50,000 to save the bookstore from foreclosure. Drewes agreed to lend the respondent the $50,000. On or about March 27, 2013, the respondent received from Drewes a bank check for $50,000, payable to “Mary Gilliam.” At the time the respondent received the $50,000 from Drewes, she still had not discussed with Drewes the terms of the loans, now totaling $150,000, nor had she memorialized in writing the terms or the existence of the loans.
There were two later loans
At no time between January 2013 and October 2013, did the respondent advise Drewes of the desirability of seeking the advice of independent counsel regarding the loans. Drewes requested a writing from the respondent memorializing the loans totaling $212,500. Despite Drewes’s request, the respondent failed to memorialize in writing the terms or existence of the loans totaling $212,500. Drewes asked the respondent to execute a document she prepared acknowledging the loans totaling $212,500. The respondent declined to execute the document Drewes presented to her. To date, the respondent has paid Drewes $500 toward repayment of the $212,500 loaned.
As to dishonesty
The respondent induced Drewes to lend her money to save the bookstore from foreclosure by telling and advising Drewes she would be repaid within two years. The respondent induced Drewes to lend her money to save the bookstore from foreclosure by telling and advising Drewes she would be repaid from the expected proceeds of a medical malpractice case the respondent was handling on behalf of a plaintiff. Upon information and belief, the respondent had no such medical malpractice case pending. The respondent induced Drewes to lend her money to save the bookstore from foreclosure by leading Drewes to believe the respondent would be selling the bookstore for an amount far in excess of the amount owed the bank. Upon information and belief, at all relevant times, the bookstore was not listed for sale with any real estate agency or business broker, or otherwise advertised for sale
The respondent induced Drewes to lend her money by telling Drewes that “the Lord had chosen” Drewes to save the bookstore from foreclosure and would make it possible for the respondent to repay the loans. Upon information and belief, it was the respondent who had chosen Drewes to lend a total of $212,500 to save the bookstore from foreclosure.
The referee rejected the attorney's denial of an attorney-client relationship and that these were gifts rather than loans.
The Special Referee found it significant that, in her examination under oath, the respondent repeatedly referred to the monies as loans, and subsequently changed her testimony, insisting at the hearing that the checks were a donation or gift to the bookstore.
While the respondent’s public service and contributions to the community are noteworthy, the aggravating factors in this case overshadow any mitigation. The facts as disclosed reveal a scenario where the respondent, in need of funds for her business, took advantage of a vulnerable elderly client whose husband had just passed away. Drewes testified that she was extremely distraught and in mourning when she met with the respondent. Induced by misrepresentations made by the respondent that a sale was imminent or that it was “God’s plan” for Drewes to help, Drewes kept issuing checks for fear that if she did not she would lose the money that she had already given. Although she was unaware that she was being victimized, even Drewes, at some point, realized that it would be prudent to obtain a written document to memorialize the amount of the loans, but the respondent refused. The respondent made no effort to repay Drewes until after she was contacted by an attorney representing Drewes, and even then the respondent has only repaid the paltry sum of $500. The respondent lacked candor and showed no remorse. As noted by the Special Referee, the respondent’s sole assumption of responsibility was her statement, “Well in hindsight, I believe it might have been helpful to have a formal writing.”
Under the totality of the circumstances, we find that a disbarment is warranted.