Wednesday, July 8, 2020

A Strong Public Policy

The New York Appellate Division for the Second Judicial Department has suspended an attorney 

The respondent was retained by Ms. B on or about February 7, 2012, to represent her in a domestic relations matter. In or about April 2012, the respondent began a consensual sexual relationship with Ms. B. At the time the sexual relationship began, the respondent was representing Ms. B in the domestic relations matter. The sexual relationship continued for several months while the respondent continued to represent Ms. B in the domestic relations matter. In or about June 2014, Ms. B informed the respondent that he was being replaced as counsel. In or about April 2015, Ms. B commenced a legal malpractice action against the respondent. The malpractice action settled in or about 2016. As part of the settlement, the respondent executed an affirmation (hereinafter Settlement Affirmation) in which he admitted to entering into a consensual sexual relationship with Ms. B.

There were also findings of billing and recordkeeping lapses in the representation.

Sanction

In determining an appropriate measure of discipline, the respondent’s counsel requests the Court to consider in mitigation, the fact that the sexual relationship was consensual and initiated by Ms. B; the respondent at the time was suffering from depression and had separated from his wife; the conduct was aberrational; the respondent is genuinely remorseful; the respondent had obtained an extremely generous settlement in the domestic relations matter for Ms. B; he cooperated with the Grievance Committee’s investigation, and accepted full responsibility for his actions. Additionally, except for a recent admonition, the respondent had an unblemished disciplinary history in his 30 years of practice. Notwithstanding the mitigation advanced, the respondent knowingly violated rule 1.8(j)(1)(iii) of the Rules of Professional Conduct (22NYCRR1200.0)in contravention of this State’s strong public policy against sexual relations between an attorney and his or her domestic relations client.

Under the totality of the circumstances, we find that the respondent’s conduct warrants his suspension from the practice of law for a period of 18 months.

(Mike Frisch)

July 8, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Witness Protection

A Louisiana Hearing Committee recommends a public reprimand for conduct toward an opposing party's expert witness in custody matters

On or about October 27, 2016, Respondent approached the witness outside the courtroom in Orleans Civil District Court and unsolicited told her, "I'm coming for you" and "you're not needed here." He also said, "you're not going to get on the stand" and "I'm going to make you sit here all day."

The hearing was re-fixed to November 3, 2016. On that morning before court, the Respondent approached the witness once again stating, "I'm not sure why you're here ... you're not going to testify again today." When the witness advised Respondent that she had been subpoenaed to testify and intended to comply with the subpoena, the Respondent answered by saying, "Well, you can't testify to the child (B.R.'s) anxiety, and I am going to get you." As they entered the courthouse, Respondent once again advised her, "I don't know why you are coming up, because we don't need you to come up here (to testify)." The case was once again reset to January 5, 2017.

On that date, the Respondent again approached the witness outside the courtroom where she was sitting and said, "I told you I'm gonna get you, stop messing with me."

Credibility

The committee extensively and carefully heard, considered, discussed, and decided the credibility of Dr. Tropez-Arceneaux and Respondent. The committee finds Dr. Tropez-Arceneaux's testimony to be very credible, both with respect to its content and demeanor. She was a third-party, nonlawyer, expert witness in the underlying proceeding with no motivation or benefit to lie about the alleged conduct of Respondent. Conversely, the committee finds Respondent's testimony not credible, with respect to either its content or demeanor.

(Mike Frisch)

July 8, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 7, 2020

The Fandango Statute Of Limitations

The California State Bar Court Review Department overturned the dismissal with prejudice of bar charges on statute of limitations grounds

We disagree with the hearing judge’s ultimate dismissal with prejudice. The ANDC [Amended Notice of Disciplinary Charges] and documents judicially noticed satisfactorily plead that the single charge of moral turpitude by misappropriation occurred within five years of the filing of the original NDC, as tolled by the continuing fiduciary duty Saxon owed his client. We emphasize that the rule of limitations is tolled during the period of time that the attorney acts in a fiduciary relationship, even if it is other than an attorney-client relationship. Accordingly, we remand this case to the Hearing Department for further proceedings consistent with this opinion and order.

The allegations

[Respondent] Saxon is a movie producer who sought investments to fund a movie called “Fandango.” One investor was Jon Yarborough, a resident of Tennessee. On or about October 6, 2009, Saxon and Yarborough entered into a Financing Agreement, whereby Yarborough and Saxon would invest $1.5 million and $3.5 million, respectively (the Combined Financing). The Financing Agreement also stated that all funds would be placed in a certain account defined as the “Picture Account,” or another account approved by Yarborough and Saxon. The funds were to be segregated and used only for production costs, and the Financing Agreement provided that “[a]ny funds advanced to the Picture Account shall be held in trust.” Under the Financing Agreement, Saxon was required to maintain the funds in the Picture Account until receipt of 100 percent of the Combined Financing. He could not withdraw money from the account until it was fully funded with the Combined Financing.

Yarborough wired $1.5 million to the Picture Account on October 21, 2009. Saxon never contributed his $3.5 million share. Instead, it is alleged that the day that Yarborough’s funds were wired to the Picture Account, Saxon transferred the entire $1.5 million to a different account, not approved by the parties.

Yarborough sued and secured a Tennessee judgment and sought to enforce it in California. Saxon declared bankruptcy.

The bankruptcy court determined that Saxon defalcated the $1.5 million when he fraudulently transferred the funds from the Picture Account without having first deposited his own $3.5 million in that account.

On timing 

we find that Saxon was acting as a fiduciary by holding funds in escrow, having been given precise instructions by the Financing Agreement. He remained in the capacity of a fiduciary with an obligation to hold the escrowed funds “in trust” until the Fandango production was completed and the purpose of the escrow fulfilled. As such, contrary to Saxon’s argument, the extension of the period of limitations was not endless—it ended when its purpose ended, and its purpose was the production. The ANDC states that the film was released in 2014, which would indicate that Saxon’s escrow responsibilities would be terminated at that time.

The five year statute of limitations did not run

When Saxon no longer represented Yarborough within the meaning of rule 5.21(C)(1), the five year limit was no longer tolled, and began to run. But since we calculate the limitations period from the date of the filing of the original NDC, which was December 19, 2018, we find it was timely filed within five years from the 2014 completion of the escrow arrangement alleged in the ANDC.

The Los Angeles Times had a lengthy story about the Respondent in 2011. (Mike Frisch)

July 7, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 6, 2020

Hit and Run

A non-practicing attorney has been charged with ethics violations arising from an incident described in this report from Cleveland 19 News

Dashcam and bodycam video from Beachwood show the moment attorney and developer Marc Strauss rammed a police cruiser with his SUV, then took off.

Officers caught up to the hit-and-run driver, and slapped the cuffs on him.

Strauss blew by 19 News cameras without comment as he entered court on Monday.

Prosecutors told Judge Anne Keller that they didn’t want the case swept under the rug because of Strauss’s status as a lawyer.

“He is an attorney, and in this case, you know attorneys should be treated if not held to a higher standard...This is an officer of the court.” Prosecutor Nathalie Supler told Keller.

“He should not be punished because he is a lawyer, We’re not asking for any special consideration because he’s an attorney.” countered defense attorney Jay Slachet.

The crash footage tells a compelling story. Aside from the crash, there is the aftermath.

Strauss wasn’t done after crashing his car, fleeing and crashing his car again. He got out and ran down an embankment. He was captured a short time later.

“Put your hands behind your back. Palms together. Palms together. Palms together.” an officer yells after finally catching up with Strauss.

“I’m concerned that he’s a danger to himself.” Sgt. Gary Anderson told the Judge.

Luckily he wasn’t seriously injured. He gave troubling details about Strauss, including a previous OVI arrest that was pleaded down to a lesser charge. And the fact that an interlock system installed after Strauss arrests was not moved to a new vehicle he purchased for his company.

Strauss apologized and got probation and a fine.

Strauss was fined $1,250, plus court costs. Terms of his probation include a two-year license suspension with work privileges, regular AA meetings and an interlock system on his car.

If he violates that, the 87-day suspended prison term would have to be served.

The allegations were brought by the Cleveland Metropolitan Association. (Mike Frisch)

July 6, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Better Uber

A 22 month suspension has been imposed by a tri-county panel of the Michigan Attorney Discipline Board for a third driving under the influence conviction made worse by the fact 

that he pleaded guilty on September 13, 2018, to violating his probation in that same matter; and that he pleaded guilty to criminal contempt of court for advising the court that he had obtained a ride to court when he in fact had driven to court when he had no valid driver’s license...

(Mike Frisch)

July 6, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, July 4, 2020

Former Prosecutor Consents To Disbarment

The Tennessee Supreme Court has accepted an attorney's consent to disbarment.

WJHL News 11 reported on criminal charges in May 2020

A local assistant district attorney has been charged with bribery.

William McManus with the First Judicial District Attorney General’s Office was arrested in a sting operation Thursday following an investigation by the district attorney’s office and federal agents.

The First Judicial District includes Washington, Unicoi, Carter, and Johnson counties.

“Information was received a few weeks ago concerning the possibility of Mr. McManus’ involvement with illegal activity concerning a prostitute,” said District Attorney Ken Baldwin in a news release. “Based on this information, I immediately contacted my investigators and initiated an investigation, which resulted in the arrest today of Mr. McManus and the termination of his employment at the time of his arrest.”

Baldwin says he has requested a pro-tem prosecutor for the case since McManus worked for the district attorney’s office and it was the district attorney’s office that initiated the investigation.

“It is not appropriate to be the prosecutor in this case, based on the fact, that I initiated the investigation and the defendant was a prosecutor at the time of the arrest,” Baldwin stated. “By removing the District Attorney’s Office from this matter, it avoids any ethical issues that may arise, as well as, the elimination of what someone may perceive as favoritism.”

The investigation is ongoing.

As did WVLT here

Officials said a Tennessee assistant district attorney was arrested after being accused of discussing reducing criminal charges of defendants in exchange for sexual favors.

William McManus appeared in Washington County General Sessions Court after being charged with bribery of a public servant.

Investigators said they saw McManus arrive at the home of a female defendant who was facing charges.

According to reports, while McManus was at the home, investigators from multiple agencies were able to monitor and record a conversation between McManus and the defendant, who agreed to cooperate with investigators as an informant.

Investigators said McManus made numerous sexual advances toward the informant.

Court documents said McManus then made plans to meet back at the home later that day, and agents monitored his movements on the way to the home.

When McManus arrived back at the home district attorney investigators and FBI agents confronted McManus and read him his Miranda warning.

Johnson City FBI said McManus admitted that he had been involved in a sexual relationship with the informant.

McManus told investigators he had led the woman and other individuals to believe he could assist them in reducing their charges if they would give him sexual favors.

McManus was arrested and his bond is set at $10,000.

News Break reported that he was terminated shortly after the arrest. (Mike Frisch)

July 4, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 2, 2020

Text Messages Draw Bar Charges

A number of text messages sent by an attorney are the subject of allegations brought by the Illinois Administrator.

In one matter, after the representation had terminated in a family law matter

At the time Respondent represented Newton, Newton was in a relationship with Katherine Ashworth ("Ashworth"). On at least one occasion, Ashworth accompanied Newton to Respondent’s office. On March 18, 2019, the court in case number 2018D2 ordered that parenting time between Newton and his minor child was to be held outside of the presence of Ashworth due to allegations that, while in Ashworth’s care, the minor child suffered injuries including chigger bites while playing in the yard. On or after March 18, 2019, Newton terminated his relationship with Ashworth.

Then, it is alleged

On September 26, 2019, Respondent and Ashworth exchanged the following text messages using Facebook Messenger:

Respondent: "Does your husband ever intend to pay anything towards his legal fees at Brainard?"

Ashworth: "I’m not married sorry, think you have the wrong person."

Respondent: "No relation to Dane Newton? Sorry to bother you."

[Ashw]orth: "Nope."

Respondent: "Baloney. Thanks for nothing."

"Lol [laughing out loud] shows what kind of people you both are."

On September 26, 2019, Ashworth and Respondent continued to exchange text messages using Facebook Messenger, including the following:

Ashworth: "I have no idea what you are talking about."

Respondent: "Of course you don’t. Ask [minor child’s name omitted] and the bedbugs. Harold knows."

Ashworth: "Some lawyer you are telling other people’s business."

Respondent: "Umm. Ok then. You were a witness at his trial and his girlfriend."

"Hope you don’t lose this kid like the last. Maybe you both should pay your bills. F**king deadbeats."

Allegedly:

At the time Respondent sent the text messages described...above, he knew that Ashworth had suffered a prior miscarriage. Respondent’s statements that Ashworth was a "f**king deadbeat" and that he hoped "you don’t lose this kid like the last" had no other purpose than to harass and embarrass Ashworth.

In a separate matter involving his eviction from his law office and files left behind, he allegedly sent the following to the landlord's spouse

Mrs. Smallhorn: "I would like to be done with this situation as soon as possible. Let me know when you would like to get your files"

"Also your business cards and chair are still here"

Respondent: "You and me both. Not sure who this is I am talking to."

Mrs. Smallhorn: "Again this is Laura Smallhorn. Let’s make a plan to remove your files."

Respondent: "After yesterday it will be difficult. You people are frankly trash."

Mrs. Smallhorn: "Name calling isn’t going to get your things out of our office any quicker. I’m going to end this conversation today. In a few days when you are ready to discuss moving your files please let me know."

Respondent: "Yeah. You’re the one who was swearing all over the place. Fat bitch."

There is one additional text exchange and charges of lack of diligence in a third unrelated count. (mike Frisch)

July 2, 2020 in Bar Discipline & Process | Permalink | Comments (0)

D.C. Considers Rule Changes

From the web page of the District of Columbia Bar

Bar Invites Comment on Proposed Amendments to Certain D.C. Rules of Professional Conduct

June 30, 2020

The D.C. Bar Rules of Professional Conduct Review Committee is seeking public comment on two separate proposals to amend certain D.C. Rules of Professional Conduct. Comments are due by close of business on August 31, 2020. 

Before submission to the Bar’s Board of Governors, the Committee requests comment on the proposed amendments summarized below. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules. 

Government Lawyers/Identity of Client 

The Rules Review Committee proposes the elimination of Rule 1.6(k), a rule that creates a default assumption that the client of the government lawyer is the agency that employs the lawyer, as well as the comments to Rule 1.6 that reference Rule 1.6(k). In place of Rule 1.6(k), the Committee recommends the adoption of a comment to Rule 1.13 (Organization as Client), which provides a more nuanced analysis of the identity of the client of the government lawyer and is consistent with the substantive law. 

Additionally, the Committee proposes a change to comment [10] to Rule 1.11 (Successive Government and Private or Other Employment) on lawyers moving between government agencies within the same the government. The current version is based on the notion that the client of the government lawyer is the employing agency. The proposed comment would instead subject lawyers moving between positions within the same government to Rule 1.9 (Conflict of Interest: Former Client).  

Disciplinary Choice of Law 

The Rules Review Committee proposes amending Rule 8.5(a) to clarify that lawyers licensed in the District, but providing legal services in other jurisdictions, may be subject to the disciplinary authority and ethics rules of those other jurisdictions. Additionally, the Committee proposes the addition of a new subparagraph (3) to Rule 8.5(b) to provide a “safe harbor” provision for a lawyer who acts under the reasonable belief that his or her conduct is governed by the rules of another jurisdiction. Corresponding revisions to the comments to Rule 8.5 are also proposed.  

During its review of Rule 8.5, the Committee considered and rejected other proposals to modify Rule 8.5, as outlined in its report. In particular, the Committee did not recommend adopting the “predominant effect test” of ABA Model Rule 8.5(b)(2). However, the Committee agreed to circulate for comment a Committee member’s “Alternate Proposal to Adopt Model Rule 8.5(b)(2).”

Submit written comments by email to Rules of Professional Conduct Review Committee, c/o Hope C. Todd, at ethics@dcbar.org no later than August 31, 2020.

July 2, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 1, 2020

Mitigation Not Proven

An attorney's felony child pornography conviction has led to an indefinite suspension of at least five years by the Minnesota Supreme Court

Strunk testified at the disciplinary hearing that he voluntarily suspended his practice, completed a psychosexual evaluation, and enrolled in out-patient therapy. A clinical psychologist testified to Strunk’s participation and progress in out-patient treatment at Alpha Human Services. Although she testified that Strunk’s “official diagnosis” was “Unspecified Paraphilic Disorder,” she offered no testimony describing its diagnostic criteria or qualifying Strunk’s unspecified paraphilia.

The Administrator challenged the consideration of mitigating evidence

After the Director has proven misconduct, the burden shifts to the attorney to prove a mitigating psychological disorder. Farley, 771 N.W.2d at 861. The attorney must prove, by clear and convincing evidence, that: (1) the attorney has a severe psychological disorder; (2) the psychological disorder directly caused the misconduct; (3) the attorney is undergoing treatment and is making progress to recover from the psychological disorder that caused the misconduct; (4) recovery has arrested the misconduct; and (5) the misconduct is not apt to recur. Weyhrich, 339 N.W.2d at 279; see Farley, 771 N.W.2d at 862 (discussing severity and direct causation). We only consider psychological disorders as mitigating factors for intentional misconduct if the lawyer has proven all of the Weyhrich factors. In re Mayne, 783 N.W.2d 153, 161 (Minn. 2010). Here, the first two Weyhrich elements are in dispute.

As to severity

None of the evidence presented meets the severity test. As the referee acknowledged, “[t]he record and the testimony does not directly address” whether “Unspecified Paraphilic Disorder” is a severe psychological disorder. Although the evidence necessary to establish the severity of a diagnosis may differ in each case, we conclude that a reference to a diagnosis of “Unspecified Paraphilic Disorder” is not enough, by itself, to meet the exacting Weyhrich standard.

Sanction

The damage to the legal profession incurred when its members commit serious crimes cannot be easily undone. Here, the harm that Strunk caused to the public and the legal profession is significant. Strunk possessed nearly 100 pornographic images of child victims of abuse and sexual exploitation, including infants. The possession and distribution of pornography harms the victims long after the original photograph was taken. By distributing pornographic images to others, Strunk perpetuated the harm caused to his absolutely vulnerable child victims through republication, and facilitated the criminal desires of others. Moreover, Strunk knew that his conduct was wrong, and he took affirmative steps to evade detection. Strunk’s criminal conduct was intentional, ongoing, and done with the express belief that he would not be caught. The harm that Strunk caused to the public and the profession was very serious.

No credit for self-suspension because of the requirements for an actual suspension

"Self-suspension” carries no similar assurances of transparency or accountability. Because the “primary purpose of disciplinary action is ‘to guard the administration of justice and to protect the courts, the legal profession, and the public,’ ” we reject Strunk’s request that we relax our standards for suspension to give him credit.

(Mike Frisch)

July 1, 2020 in Bar Discipline & Process | Permalink | Comments (0)

"Incalculable Harm"

The Minnesota Supreme Court has suspended an attorney for at least three years

The sole issue before us is the appropriate discipline to impose on respondent Ignatius Chukwuemeka Udeani for his wide-ranging misconduct that caused substantial harm to multiple clients. The Director of the Office of Lawyers Professional Responsibility filed a petition and a supplementary petition for disciplinary action against Udeani.
Following a hearing, a referee found that Udeani committed numerous and varied acts of misconduct. Udeani’s misconduct involved: engaging in a pattern of incompetent representation, neglect, failure to communicate with clients, and failure to return unearned fees; failing to properly supervise a non-lawyer assistant and take reasonable steps to prevent the known misconduct of this assistant that resulted in the theft of client funds; failing to safeguard client funds and maintain all trust-account related records; representing a client with a conflict of interest; and failing to cooperate in multiple disciplinary investigations. The referee also found multiple aggravating factors and no mitigating factors. We conclude that the appropriate discipline is an indefinite suspension with no right to petition for reinstatement for 3 years.

MCKEIG, Justice (dissenting).

Because disbarment is the appropriate discipline for respondent Ignatius Chukwuemeka Udeani based on the incalculable harm he has inflicted upon his clients, I respectfully dissent.

The overwhelming majority of the 24 clients and client family members harmed by Udeani’s misconduct are immigrants. Immigrants face substantial obstacles in seeking adequate legal representation, including communication barriers, financial burdens, and limited opportunities for self-protection...

Immigration proceedings come with strict deadlines and filing requirements, and the consequences for missteps are severe. Faced with the most important legal proceedings of their lives, immigration clients think that they are being responsible by hiring an attorney like Udeani. Udeani’s clients made significant sacrifices to save the necessary funds to retain him. They worked multiple jobs, opened their homes to renters, borrowed from family members, and even went without medication and treatment. They placed this money, and their trust, in Udeani’s care. Udeani then wholly abused that trust, performing  nominal or no work on most of these cases.

(Mike Frisch)

July 1, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, June 30, 2020

Unsweet Sixteen

The Maryland Court of Appeals has disbarred an attorney for, among other things, misconduct in her own bankruptcy. 

The instant attorney discipline case fortifies the import of this age-old adage often attributed to President Lincoln. Regrettably, the underlying conduct involves an attorney’s overzealous self-representation in a voluntary bankruptcy proceeding in the United States Bankruptcy Court for the District of Maryland (“Bankruptcy Court”). Over the course of the nearly three-year bankruptcy proceeding, among other things, the attorney filed countless frivolous pleadings, motions, and appeals, intentionally hindered the court appointed trustee’s ability to administer the case, and knowingly made false statements of fact in filings and appeals before the Bankruptcy Court and United States District Court for the District of Maryland (“U.S. District Court”).

Moreover, this attorney represented several clients in Maryland’s circuit courts, the Court of Special Appeals, and the Bankruptcy Court. In these instances, among other things, the attorney misappropriated client funds, made knowing misrepresentations to and intentionally concealed information from clients, and failed to prosecute clients’ motions and appeals.

This attorney’s conduct violated sixteen separate provisions of the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”). For the reasons that follow, we hold that this attorney’s conduct merits disbarment.

The court

In this case, we have concluded that Ms. Smith-Scott engaged in intentional dishonest conduct and that she misappropriated client funds entrusted to her. While this conduct is troubling in its own right, the magnitude of Ms. Smith-Scott’s misconduct is exacerbated by the fact that she violated sixteen different rules of professional conduct,
often numerous times and across the representation of multiple clients. Ms. Smith-Scott’s conduct in her personal bankruptcy case further compounds the problematic nature of this case. Ms. Smith-Scott willfully disregarded lawful orders of the Bankruptcy Court and U.S. District Court and was found in civil contempt by those courts.

One order of the Bankruptcy Court fittingly describes much of the vexatious, three year bankruptcy proceeding: allegations replete with “unsupported, irrational, [and] highly
tenuous speculation.” Or, another by the U.S. District Court, describing one of Ms. Smith Scott’s motions, devoid of factual predicate, as “rely[ing] upon the sheer audacity of her [own] allegations.” Surely, this misuse of the judicial system and misconduct of this sort is that which “casts our noble profession in a most unfavorable light.” Attorney Grievance Comm’n v. Collins, ___ Md. ___, ___ (2020). It follows, then, that a reprimand or suspension would not be sufficient to protect the public or serve as a deterrent to other attorneys.

Judge Getty authored the 87-page opinion. (Mike Frisch)

June 30, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 29, 2020

Gimme, Shelter

A summary from the web page of the Massachusetts Board of Bar Overseers

From 2015 to November 2018, the respondent was a fiduciary, as board member and/or officer, of a non-profit animal shelter, with signatory authority over its bank account. He intentionally misused $119,000 from the non-profit for his own purposes. He reimbursed the non-profit by intentionally misusing $119,000 held as a trustee of a supplemental needs trust. He misused at least an additional $166,000 from the supplemental needs trust for his own use. The respondent has “not repaid to the trust more than a small percentage of the funds … misused.” His misconduct violated Mass. R. Prof. C. 1.15 (b)(4) (lawyer shall hold trust property separate from his own; trust property shall be appropriately safeguarded); 8.4 (c) (conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4 (h) (conduct adversely reflecting on fitness to practice).

The respondent submitted his affidavit of resignation in April 2020. On May 11, 2020, the Board of Bar Overseers voted to recommend that the affidavit be accepted, and that the respondent be disbarred. The Court (Budd, J.) so ordered on June 23, 2020.

(Mike Frisch)

June 29, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Estate Misappropriations Alleged

Ohio Disciplinary Counsel has filed ethics charges in a matter for which the attorney has been interim suspended for related criminal allegations. 

The Dayton Daily News reported on the criminal charges

>> Dayton attorney accused of theft, evidence tampering in Greene County

He was charged on 55 counts, said David Hayes of the Greene County Prosecutor’s Office.

He is facing over 70 years in prison, if convicted on all counts.

“The bulk of the charges in the indictment allege fraudulent activity related to transfer of estate and/or trust funds from the estate of a man named Ronald Lentz,” Hayes said during a press conference Wednesday.

Lentz died in August 2018 Wiggins was the attorney of the estate as well as the trustee of the trust, which were valued at more than $3 million, Hayes said.

St. Jude’s and Smile Train, a nonprofit for children with cleft lips and palates, were the two main beneficiaries of the estate.

Wiggins spent the money on child support payments, cosmetic surgery for a family member, houses, a boat, a car, gambling in Las Vegas and in Ohio and jewelry, Hayes said.

He is scheduled to be arraigned at 1 p.m. Friday.

A visiting judge from Franklin County has been assigned to the case.

The indictment stemmed from a Beavercreek police investigation.

Anyone with information on any other potential victims of Wiggins are urged to call detective David Holley 937-427-5520.

Wiggins previously was indicted in November on grand theft and tampering with records charges, according to court documents.

The previous case was in connection to a $90,000 check in an estate issue in Greene County. He is scheduled to go to trial April 20.

The ABA Journal had details including the cosmetic surgery in its reporting of the interim suspension

Wiggins was accused of spending stolen money on his wife’s breast implants, child support, a house, a boat, a Mercedes, jewelry, ATM withdrawals at casinos, and two women who accompanied him to Las Vegas. At least one of the two women was an adult dancer.

A review indicates that Wiggins has a severe addiction to gambling, alcohol, cocaine or another illegal drug, the disciplinary counsel’s memorandum says.

(Mike Frisch)

June 29, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Tantamount To Disbarment

The Georgia Supreme Court has accepted a voluntary license surrender "which is tantamount to disbarment"

stating that on February 4, 2020, he entered a guilty plea in Chatham County Superior Court to one count of theft by conversion. He states further that the theft charge arose from his conduct in the administration of an estate, in the course of which he sold real property on the estate’s behalf, deposited the sales proceeds, totaling $509,618.68, into his trust account, and then, rather than disbursing the funds to the estate, converted the funds to his own use.

The order of interim suspension is linked here.

Savannah Now reported

Suspended Savannah attorney Don Smart on Thursday was indicted for theft by conversion of more than $25,000 from clients in an estate matter.

Smart obtained funds while administering a trust and estate and “did knowingly convert said funds and property to (his) own use in violation of the agreement and legal obligation,” the Chatham County grand jury said in returning the single-count indictment.

The alleged conduct occurred between April 15, 2013, and Aug. 24, 2018, the indictment said.

It included a notation that the defendant’s “actions were unknown to the state until or about the 8th day of Oct. 2016 and (were) thus excluded from the statute of limitations until such date.”

The indictment, obtained by Assistant District Attorney Scott Robichaux, was a special presentment, meaning prosecutors will have to obtain a bench warrant for Smart’s arrest in the case.

Chatham County District Attorney Meg Heap declined to discuss specifics of the case in line with office policy against commenting on pending cases.

The Georgia Supreme Court placed Smart on interim suspension from practicing law on Dec. 17 for “fail(ing) to adequately respond to the State Bar’s (of Georgia)’s Notice of Investigation” in the same case.

Maximum sanction for the violations in the case is disbarment, the Supreme Court’s order said.

State Bar of Georgia General Counsel Paula Frederick said Thursday her office asked the Supreme Court for the action against Smart based on his failure to provide the requested response, adding the bar’s investigation is ongoing.

A telephone call to Smart’s Savannah law office for comment was not returned on Thursday.

Smart, 67 and a lawyer since 1975, served as a judge advocate in the U.S. Marine Corps and was commanding officer of the Savannah Marine Corps reserve unit when it was re-activated in 1983.

Smart served in the U.S. Marine Corp on active duty from 1975 to 1979 and continued in the Marine Corps Reserve for an additional 20 years, according to his website.

Smart earned his law degree from Emory University and an MBA from Duke University.

In addition to his law practice, Smart has run unsuccessfully for several elected offices, including the U.S. House of Representatives in 2002 and again for a Georgia House seat in 2006.

(Mike Frisch)

June 29, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 27, 2020

From Diversion To Disbarment

The Maryland Court of Appeals disbarred an attorney for multiple violations that began with a matter in which the complaint response was part of the misconduct

From the outset of our interaction, [former client's mother] Ms. Lyles impressed me as dishonest and untrustworthy. When she first retained me, she indicated that she could pay my fees, in part, by “selling” me some of the purses her son had stolen during his theft spree. When I expressed my surprise and disapproval at such a proposal, Ms. Lyles tried to suggest it was “a joke.” I have no doubt she has acted as her son’s accomplice in his theft scheme….

Peggy Lyles is a malicious and disingenuous person. She apparently acts as a broker for her son’s stolen property, which makes her just as guilty of theft as her son.

The attorney entered into a diversion agreement with conditions

Respondent and Bar Counsel entered into a Conditional Diversion Agreement (“CDA”) under Maryland Rule 19-716. The Attorney Grievance Commission approved the CDA on November 15, 2017, and stayed the underlying disciplinary matter. In the CDA, Respondent conceded that she violated MLRPC Rule 8.1(b) when she failed to timely and completely respond to Bar Counsel, and that she violated MLRPC Rule 8.4(d) when she made disparaging comments about Ms. Lyles.

This matter resumed when

the Attorney Grievance Commission found Respondent to be in material default of the CDA, revoked the CDA, and lifted the stay of the disciplinary proceeding against Respondent relating to Ms. Lyles’s Complaint.

There were other complaints including a matter that involved interactions with her client's minor victim

In or about November 2016, Eric Solomon retained Respondent to represent him in a case pending in the District Court, in which he was charged with crimes relating to allegations that he sexually assaulted K.J., his 16-year-old minor cousin.

During the pendency of the case in the District Court, Respondent invited and met with K.J. at her office. K.J. was 17 at the time and accompanied by her parents, but Respondent insisted on meeting with K.J. alone. During the meeting, K.J. told Respondent that she did not want her family to know about her sexual history and drug and alcohol use. Respondent advised K.J. of the types of cross-examination questions that might be asked if the case went to trial, and told K.J. that her personal information could be admitted into evidence through her testimony, including the fact that K.J. had asked her sister and cousin for a ride to CVS to purchase a Plan B pill. Additionally, Respondent told K.J. that she had difficulty believing that K.J. had been raped, that her statements did not evidence criminal assault but rather inappropriate and embarrassing behavior, and that K.J. was blaming someone else because that is what young women do when they regret their decisions about sex. Respondent also discussed topics with K.J. that were unrelated to the alleged incident, including gender discrimination and cultural issues. Respondent encouraged K.J. to take advantage of her American residency, educate herself, and work on shedding all the shame and discrimination that, Respondent believed, defined K.J.’s experience.

The hearing judge found

Respondent’s true purpose for meeting with K.J. was not to investigate her client’s case, but rather to improperly dissuade K.J. from participating in the criminal prosecution of her client, Mr. Solomon. In speaking with K.J., Respondent intentionally emphasized the potential embarrassment she might suffer if the case proceeded to trial and took advantage of a vulnerable minor’s insecurities. Respondent intended for her comments to discourage K.J. from cooperating, which, by no coincidence, would have benefitted her client. Furthermore, Respondent intentionally obfuscated her role as counsel for K.J.’s alleged abuser by initiating a personal conversation with K.J. involving subjects unrelated to the criminal case, such as gender discrimination and cultural issues, and then exchanging personal text messages with her after the meeting. In doing so, Respondent gained K.J.’s trust and misled her to believe that she was an advocate for her best interest. Respondent’s actions were intended to benefit her client, the person accused of assaulting K.J.

The attorney referred K.J. to an attorney with whom she had a prior professional relationship

Based on the communications between Respondent and [attorney] Ms. Ademiluyi and Respondent’s meeting with K.J., the hearing judge found that “Respondent was attempting to use Ms. Ademiluyi to further aid Respondent’s efforts to improperly dissuade K.J. from cooperating with the State in their prosecution of Mr. Solomon. The fact that Mr. Solomon’s father was willing to pay Ms. Ademiluyi’s fee is further evidence that Ms. Ademiluyi was being used to help Mr. Solomon.”

On the first day of trial, October 10, 2017, Respondent and her co-counsel requested a continuance because Mr. Solomon was in the hospital following a suicide attempt on the prior evening. During the hearing, the State argued that Mr. Solomon and his family were involved in a campaign to influence K.J. against cooperating in the case.

The hearing judge found that the attorney made false statements to the court in response.

The court sustained the findings of misconduct and concludes

Disbarment is the appropriate sanction for Respondent’s numerous and severe violations of the MLRPC and MARPC. Respondent exhibited dishonesty on multiple occasions. She brought the legal profession into serious disrepute through those acts of dishonesty, and through her attempts to dissuade K.J., an alleged victim of sexual abuse, from cooperating in the prosecution of her alleged abuser, Respondent’s client. We find it particularly troubling that Respondent engaged in misconduct relating to the
Ademiluyi/Solomon matter while the disciplinary proceeding in the Lyles/Simmons matter was in progress, and after having previously been suspended from the practice of law for 30 days in 2014. Based on the evidence presented at the hearing, which demonstrated a pattern of serious misconduct, we conclude that the public will only be sufficiently protected through Respondent’s disbarment.

(MIke Frisch)

June 27, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 26, 2020

"Forum Of Hate" Emails Draw Indefinite Suspensions

The Maryland Court of Appeals has indefinitely suspended two attorneys for their email communications

Court of Appeals indefinitely suspended from practice of law in Maryland two lawyers who, for approximately seven years, while working for federal government, participated in exchange of e-mails among group of employees, who were also lawyers, using official government e-mail addresses during work hours to make disturbingly inappropriate and offensive statements that demonstrated bias or prejudice based upon race, sex, national origin, sexual orientation, or socioeconomic status about Hispanic, Asian, and African American people, and people whom they referred to as gay men, who were their colleagues. Such conduct violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.4(d) (Conduct That Is Prejudicial to Administration of Justice), 8.4(e) (Bias or Prejudice), and 8.4(a) (Violating MLRPC).

The respondents

James Andrew Markey and Charles Leonard Hancock, Respondents, members of the Bar of Maryland, worked as a Veterans Law Judge and an Attorney-Advisor, respectively, at the Board of Veterans’ Appeals (“the Board”), which is part of the United States Department of Veterans Affairs (“the Department”). For approximately seven years, Markey, Hancock, and three other employees of the Board used their official Department e-mail addresses to participate in an e-mail chain that they called “the Forum of Hate” (“FOH”). They referred to themselves as FOH members. As members of the FOH, Markey and Hancock sent numerous e-mails that included statements about their Board colleagues that were highly offensive, and that frequently evinced “bias or prejudice based upon race, sex, . . . national origin, . . . sexual orientation[,] or socioeconomic status.” MLRPC 8.4(e)

As examples, in one instance, in response to a photograph of Hancock’s son’s all-white Little League team, Markey asked where the white sheets were and stated “‘[b]onfire’ after every victory[,]” referencing the Ku Klux Klan, and, in another, Markey referred to an African American woman Chief Veterans Law Judge as “a total b[****.]” Among many other examples, Hancock referred to the Chief Veterans Law Judge as a “Ghetto Hippopotamus” and “a despicable impersonation of a human woman, who ought to [have] her cervix yanked out of her by the Silence of the Lamb[s] guy, and force[-]fed to her.” The Veterans Affairs Office of Inspector General discovered the e-mails, the Veterans Administration terminated Markey, and Hancock voluntarily retired. Eventually, Markey’s and Hancock’s actions came to Bar Counsel’s attention.

The emails are set forth at length in the court's opinion. 

The attorneys contended that the private exchanges fell outside the ethics rules

Here, applying the reasonable member of the public test, the hearing judge concluded that “the insulting[,] demeaning language” that Markey and Hancock used in the e-mails would “undoubtedly bring[] the legal profession into disrepute in the eyes of a reasonable member of the public.” We concur with the hearing judge’s determination.

...In sum, the hearing judge rejected the argument that the e-mails were “purely private” and determined that Markey’s and Hancock’s conduct was “related to the practice of law[.]” The hearing judge concluded that Markey’s and Hancock’s conduct would negatively impact the perception of the legal profession of a reasonable member of the public.

The anti-bias rule

Here, the hearing judge determined that, as to Markey and Hancock, Bar Counsel had proven, by clear and convincing evidence, a violation of MLRPC 8.4(e). The hearing judge concluded that Markey’s and Hancock’s many inappropriate and offensive remarks in e-mails clearly constituted examples of knowingly manifesting bias and prejudice based upon race, sex, sexual orientation, national origin, and socioeconomic status. The hearing judge determined that Markey and Hancock were acting in a professional capacity when they made the statements at issue, and, as discussed above, their conduct was related to the practice of law and violated MLRPC 8.4(d), i.e., was prejudicial to the administration of justice. The hearing judge concluded that Markey’s and Hancock’s e-mails clearly served no legitimate advocacy. We agree with all of the above.

Sanction

A reprimand or even a short suspension would beg the question of what, if any sanction, would be appropriate for a lawyer who violates MLRPC 8.4(e) by making a stray offensive comment, as opposed to many statements that are deliberate, egregious, and occur over a period of time. Markey’s and Hancock’s violations of MLRPC 8.4(e) were serious and flagrant, and warrant a sanction that makes clear to every Maryland lawyer and the public that such conduct is unacceptable. We must assure that lawyers do not evince bias or prejudice while acting in their professional capacities and that the principles of fairness and equal justice under the law are foremost in the legal profession.

For the above reasons, we indefinitely suspend Markey and Hancock from the practice of law in Maryland.

Judge Watts authored the opinion.

Judge McDonald concurred

I join the opinion of the Court in this case. I add a few words to emphasize the seriousness of this case in that it involves government attorneys – one an administrative judge. As the Majority Opinion outlines, the conduct involved email communications during the attorneys’ employment over government information systems.

...The conduct here was contrary to the lawyer’s oath and  gave, at the least, the appearance that fairness and decency did not animate those charged with this important public service.

(Mike Frisch)

June 26, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Northern Exposure

The Wisconsin Supreme Court affirmed the denial of admission  to an applicant on character and fitness grounds as found by the Board of Bar Examiners

The Board's decision was based primarily on the fact that Mr. Hammer, who was a licensed Florida lawyer from 2006-2011, was disbarred in Florida for trust account violations and misappropriation of client funds.

Mr. Hammer resides in Florida. He graduated from the University of Florida Levin College of Law in 2005 and completed an LL.M. in Taxation in 2006. He was admitted to the Florida bar on May 19, 2006. From his admission in May 2006 until his law license was suspended on August 23, 2010, Mr. Hammer had what he describes as "an ill-advised solo practice" in Florida, built around a single client group: the family and friends of Paul Bilzerian and their companies.  As relevant here, in 2001, long before Mr. Hammer ever worked for the Bilzerian client group, a federal district court issued a sweeping injunction limiting Bilzerian's access to the courts, in an effort to stem Bilzerian's frivolous court filings (2001 Injunction).

Here

We focus on the Board's primary reason for declining to certify Mr. Hammer. On August 23, 2010, four years after his admission to practice law, the Supreme Court of Florida issued an emergency suspension against Mr. Hammer's law license, alleging that he had misappropriated client trust funds. A formal disciplinary complaint followed. Eventually, Mr. Hammer stipulated that in November 2009, Bilzerian had directed that certain outstanding invoices and cost reimbursements not be paid to Mr. Hammer. Mr. Hammer believed these amounts were valid and owed to him. At the time, Mr. Hammer had access to funds in a trust account belonging to another Bilzerian-related entity. In January 2010, Mr. Hammer began taking money from that trust account for his own personal use. In May 2010, the client requested the money held in trust. By then, the trust fund was approximately $27,000 short of funds. To replace the missing client funds, Mr. Hammer accessed funds from another account to which he was a signatory, paying himself director fees and other amounts.

After the Florida disbarment

Eventually, Mr. Hammer distanced himself from the Bilzerian client group, started a business, regained financial stability, and became chief information officer of Elevant, an entity that licenses a case management software program.

He passed the Wisconsin bar exam in 2018 but

On September 19, 2019, the Board issued an adverse decision concluding that Mr. Hammer had failed to demonstrate to the Board's satisfaction that he has the necessary character and fitness to practice law in Wisconsin. The Board cited Mr. Hammer's Florida disbarment; abuse of process; extensive traffic record; and its conclusion that Mr. Hammer failed to demonstrate significant rehabilitation. The Board added that Mr. Hammer has not reapplied to the Florida bar.

His appeal raised a number of issues

We turn to Mr. Hammer's claim that the Board's adverse determination is a "mere pretext for unconstitutional discrimination against a resident of Florida." Mr. Hammer's effort to elevate his bar admission case to a constitutional challenge fails and is, moreover, constructed upon a faulty foundation. Mr. Hammer claims that he should have been offered conditional admission pursuant to SCR 40.075(1). In this, Mr. Hammer is incorrect. Conditional admission was not appropriate on this record. Only applicants who are able to meet character and fitness requirements are considered for conditional admission.

The key issue

We turn to Mr. Hammer's primary claim: that the Board's conclusion is inconsistent with this court's resolution of other bar admission cases.

...While we have, on occasion, overruled the Board and admitted certain applicants despite troubling past conduct, we conclude that Mr. Hammer cannot be admitted to their ranks. We acknowledge that a decade has passed since the misconduct culminating in Mr. Hammer's Florida disbarment and that Mr. Hammer cannot undo his past misconduct. This conundrum does not mean, however, that we are somehow compelled to offer him a law license. While the passage of time may aid a bar applicant's case, nothing in our prior bar admission cases should be construed to imply that an applicant enjoys a presumption of admission after some period of time has elapsed.

(Mike Frisch)

June 26, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Crossing Borders

A federal conviction involves a "serious crime " meriting interim suspension as found by the New York Appellate Division for the First Judicial Department.

The court described the offense

Respondent's conviction arose out of his ownership and operation of a company which engaged in the unlicensed transmission of money. Between 2013 and 2014, respondent used his company's bank accounts to transfer funds on behalf of others between the United States and Mexico. This was accomplished through the deposit of cash into his company's bank accounts, some of which were made by respondent after he received cash from third-parties. Those funds were then sent to Mexico via wire transfer. On other occasions, individuals located outside of New York, with no prior relationship to respondent, made cash deposits into respondent's company's accounts in order to have those funds moved to Mexico. During the period at issue, at least approximately $9 million was transferred to Mexican financial institutions in the manner described above. Respondent kept a percentage of the transferred funds as his fee for operating the money transmitting business.

On June 28, 2018, respondent pleaded guilty in the United States District Court for the Southern District of New York to operation of an unlicensed money transmitting business in violation of 18 USC § 1960, a felony. On December 6, 2018, respondent was sentenced to time served, two years of supervised release, 500 hours of community service, and fined $7,500. In addition, he consented to entry of a $9.4 million forfeiture judgment against him, however, the government agreed to accept $262,267.62 in full satisfaction thereof to be paid pursuant to a schedule determined by the U.S. Attorney's Office.

A press release from the United States Attorney's Office for the Southern District of New York at the time of the plea

U.S. Attorney Geoffrey S. Berman said:  “As he admitted today, Ignacio Foncillas, an attorney, established an illegal money transmitting service between the U.S. and Mexico.  Foncillas did not register his company with FinCEN, the regulatory agency that oversees the U.S. financial system and reports suspicious financial transactions.  Attempts by individuals or corporations to circumvent their regulatory obligations will be met with swift justice.” 

HSI Special Agent in Charge Angel M. Melendez said:  “Foncillas operated a transnational money transmitting business, moving millions without ever ensuring he had the proper licensing. The movement of money is regulated to limit fraudulent and criminal activity, which is why law enforcement is paying close attention to those operating without a license, and looking even more closely at money transactions crossing borders.”

(Mike Frisch)

June 26, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 25, 2020

Unauthorized Settlements

The Pennsylvania Supreme Court imposed a three-year suspension of an attorney, retroactive to an interim suspension previously imposed

In the DB-7 letter, Petitioner alleged that Respondent engaged in misconduct in thirteen client matters by having: neglected ten matters; settled seven civil cases without obtaining the consent of his clients; failed to communicate with his clients concerning developments in the clients' civil cases in thirteen matters; and made misrepresentations in five matters.

By letter dated January 8, 2020, Respondent submitted a counseled response to the DB-7 letter.

Respondent has agreed to enter into a joint recommendation for consent discipline that encompasses the allegations of misconduct raised in the open complaint file.

The matters are set forth in the joint petition and involve, among other things, entering into settlement agreements for significant dollar amounts with the knowledge or consent of the insurance company that had retained him. (Mike Frisch)

June 25, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 24, 2020

From Barred To Disbarred

The South Carolina Supreme Court has disbarred an attorney for misconduct relating to multiple bar admission issues

In February 2018, Respondent submitted an application for admission to the South Carolina Bar based on an existing Uniform Bar Exam (UBE) score from  Wyoming. Respondent's application was approved, and she was sworn-in as a member of the South Carolina Bar on February 19, 2019. The day after the swearing-in, the South Carolina Office of Bar Admissions learned Respondent knowingly provided false and/or misleading information in her South Carolina application for admission.

Among the issues were several non-disclosures of required information

Respondent failed to include in her application for admission that she previously applied for admission to practice law in North Carolina in 2013 and 2014, and in Idaho in 2016.

An incomplete answer on withdrawing the Wyoming application

"It was incomplete because I didn't include the fact that part of the reason for my withdraw [sic] was due to some resistance from the Character and Fitness Board from the state of Wyoming when I initially applied."

Arrests

Respondent failed to disclose a 2005 arrest for driving under the influence (DUI) and resulting license suspension. Respondent also failed to disclose the same 2005 DUI in her applications for admission to practice law in North Carolina and Idaho. 

Other issues

Respondent also knowingly provided a false statement on her North Carolina Bar application when she failed to notify the North Carolina Bar her driver's license was suspended for three months following her 2005 DUI arrest. Respondent knowingly provided another false statement on her North Carolina Bar application when she failed to notify the North Carolina Bar of her 2005 DUI arrest.

In her original application for admission to practice law in Idaho, Respondent knowingly failed to inform the Idaho Bar she had previously applied for admission in Wyoming, and provided a false statement when she failed to include her 2005 DUI arrest on her Idaho Bar application. Respondent also failed to provide complete and truthful responses on her Idaho Bar application regarding her conduct during her attempt to seek admission in Wyoming.

Sanction

We find Respondent's misconduct warrants disbarment. Accordingly, we accept the Agreement and disbar Respondent, retroactive to the date of her interim suspension. 

(Mike Frisch)

 

June 24, 2020 in Bar Discipline & Process | Permalink | Comments (0)