Friday, January 17, 2020

The $5,000 Initial Meeting

Reciprocal discipline has been imposed by the New York Appellate Division for the First Judicial Department for sanctions ordered in Colorado on an attorney who practiced immigration law in Colorado without a local license

The [Colorado] Presiding Disciplinary Judge (PDJ) of the Colorado Supreme Court granted the OARC partial summary judgment sustaining six of the alleged violations, and directed a hearing be held before a three-member Hearing Board (which included the PDJ) for a determination as to liability on the remaining charge and sanction. Respondent appeared pro se and testified at the hearing.

The factual and judicial findings in this matter are as follows. On June 30, 2016, Hennadiy Zhakyavichyus and Iuliia Vyshniavska retained respondent to apply for adjustments of their respective immigration statuses, for which they paid him the full agreed upon fee of $6,000 to handle both matters, but they discharged him on August 4 and August 9, 2016, respectively, because both of them were dissatisfied with the pace at which their matters were being handled. At the time of his August 9 termination, respondent told Zhakyavichyus that he had filed his citizenship application on August 4, however, records showed that the earliest date it could have been filed was August 9. Further, respondent, who did not keep contemporaneous time records for his work, billed the couple a total of over $5,000 for their joint, initial two-hour meeting with him. He claimed that the fee was justified under the terms of their retainer agreements.

The PDJ granted the OARC partial summary judgment finding that the fees respondent charged violated Colorado RPC 1.5(a) (a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses); he failed to deposit $5,000 of the advance fee paid to him by Zhakyavichyus into an attorney trust account in violation of Colorado RPC 1.5(f) (advances of unearned fees are the property of the client and shall be deposited in the lawyer's trust account) and Colorado RPC 1.15(a) (a lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property); by including a nonrefundable "case evaluation fee" of $1,000 in his retainer agreements he violated Colorado RPC 1.5(g) (nonrefundable fees and nonrefundable retainers are prohibited [and] any agreement that purports to restrict a client's right to terminate the representation, or that unreasonably restricts a client's right to obtain a refund of unearned or unreasonable fees, is prohibited); upon termination of his services by the clients, he failed to promptly return unearned fees and thereby failed to take steps reasonably practicable to protect the clients' interests in violation of Col. RPC 1.16(d); and by misrepresenting the filing date of Zhakyavichyus's application he engaged in dishonest conduct in violation of Colorado RPC 8.4(c).

Colorado sanction

the Colorado Hearing Board majority imposed a suspension of one year and one day, with three months to be served (subject to his successful completion of a two-year probationary period and certain conditions imposed), while the PDJ would have imposed an actual nine-month suspension with the remainder of the one year and one day stayed.

Also

By order dated March 21, 2019, the Board of Immigration Appeals (BIA) immediately suspended respondent from practice before the Board, the Immigration Courts, and the U.S. Department of Homeland Security based on his discipline in Colorado.

His objections to reciprocal discipline failed

Contrary to respondent's arguments, none of the defenses to reciprocal discipline apply herein. Respondent received notice of the charges against him and vigorously defended himself at the trial (disciplinary hearing) and appellate levels which, as noted, included a federal lawsuit against the OARC. In addition, the record amply supports the Colorado Supreme Court's misconduct findings. Further, respondent's misconduct in Colorado would constitute misconduct in New York in violation of the Rules of Professional Conduct (22 NYCRR § 1200) rules 1.5(a), 1.5(d), 1.16(e), and 8.4(c). Respondent has also not demonstrated that it would be unjust under 22 NYCRR 1240.13(c) for this Court to impose reciprocal discipline, nor do his arguments in support of his motion to strike the Committee's reply papers have any merit.

A suspension for six months and until further order was imposed. (Mike Frisch)

January 17, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Prior Discipline Leads To Suspension

The Iowa Supreme Court rejected a proposed reprimand and suspended an attorney

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against attorney T.J. Hier charging her with violating Iowa disciplinary rules in connection with her handling of a disputed attorney fee payment in what she aptly describes as a “hotly contested, emotional family law matter.” A division of the Iowa Supreme Court Grievance Commission found that Hier violated several rules but that the Board failed to prove several other rule violations. The commission recommends a public reprimand. The Board seeks a suspension. Hier requests a private admonition. We agree with the commission’s findings as to Hier’s rule violations, but we disagree with the commission’s recommended sanction. In light of Hier’s prior disciplinary history, we suspend her license to practice law for thirty days.

Background of the attorney

Hier obtained her Iowa law license in 1997. She began her career in private practice in Newton, and she served as an assistant county attorney in Jasper County. She had an inactive law license from 2001 to 2005. She resumed practicing law solo out of her home in Baxter in 2006. She now practices in the areas of criminal, juvenile, and family law. Hier is under contract with the state public defender’s office for criminal and juvenile court appointments. She represents many clients pro bono and serves other low-income clients. She volunteers as a mock trial coach and for domestic violence victim groups, her church, and the Special Olympics. Hier is legally blind, having lived nearly her entire life with Stargardt disease, a rare macular degeneration that requires her to use magnification techniques and devices to read documents.

The attorney had been subject to discipline on five prior occasions.

Here she deposited an unearned $750 fee in her operating account

We reject Hier’s claim that the $750 was hers to keep upon receipt  as a fee payment in settlement of the contempt action.

Sanction

We must decide the appropriate sanction for Hier’s failure to place the disputed funds in her CTA pending resolution of Van Dorn’s claim. The commission recommended a public reprimand. The Board argues for a suspension. Hier requests a private admonition. If this were Hier’s first disciplinary transgression, no suspension would be warranted. But Hier already has had four prior public reprimands and a suspension...

Hier’s most recent public reprimand in December 2017 was for violating some of the same trust account rules she violated here, and yet for the next six months, Hier persisted in refusing to place the disputed funds in her CTA. We consider the December 2017 public reprimand to be prior discipline because Van Dorn’s counsel renewed his demands for return of the disputed funds in January and March 2018. Hier paid back half of the disputed amount but neglected to place the balance in her CTA.

Thus

After considering all of the relevant mitigating and aggravating factors here, we return to the most significant aggravating factor, Hier’s disciplinary history, and we determine that a thirty-day suspension is appropriate.

(Mike Frisch)

January 17, 2020 in Bar Discipline & Process | Permalink | Comments (0)

A Rich History Of Comparable Prior Cases Leads To Disbarment Of Former New Jersey Judge

The New Jersey Supreme Court has disbarred an attorney for misconduct as a judge.

The order also permanently disqualifies from holding judicial office.

The Disciplinary Review Board described the criminal matter that eventually led to the attorney's completed of a pretrial intervention program and his future disqualification from judicial office

During his guilty plea allocution, respondent admitted that, from January 2010 through October 2015, while serving in public office as a municipal court judge in nine jurisdictions, he had systematically falsified official court records in motor vehicle cases. Specifically, respondent admitted that he routinely suspended mandatory motor vehicle fines in cases and, instead, substituted phony, baseless contempt of court charges in their place, knowing that his criminal scheme would steer one hundred percent of the contempt proceeds to the towns over which he presided. In contrast, mandatory motor vehicle fines were required to be divided between the respective towns and Monmouth County. Respondent further admitted that, if challenged by a defendant, he often would revert contempt charges to mandatory fines, but, on one occasion, threatened jail time for a defendant who had raised such a challenge. Moreover, respondent admitted that he would improperly apply defendants’ bail money toward the phony contempt charges, without notice or due process for those defendants.

Respondent further admitted that the purpose of his criminal scheme was to use his authority, in his public office, to direct maximum revenue to the towns where he presided as a municipal court judge, and that, to conceal his wrongdoing, he typically falsified the contempt charges outside of the presence of the defendants and their counsel.

Respondent admitted that his scheme was successful and, thus, deprived Monmouth County of its fair share of motor vehicle fine revenue. Finally, respondent admitted that he continued his scheme, even after a March 7, 2014 meeting with his superiors to discuss his contempt of court practices. Although he began assessing smaller phony contempt fines, he continued to steer funds to his preferred jurisdictions, until his suspension from the bench, on October 23, 2015.

What struck me most about the 30-page DRB recommendation was the plethora of prior cases involving ticket-fixing New Jersey judges.

The discipline imposed in cases involving similar misconduct in connection with municipal court proceedings has ranged from a reprimand to disbarment, depending on the facts of the offense, the presence of other unethical conduct, and the analysis of aggravating and mitigating factors.

The attorney sought a lesser sanction but

respondent argues that, given the widespread abuse of contempt of court fines by municipal court judges in New Jersey, it would not be fair to "single [him] out" and impose disbarment for his conduct...

Despite respondent’s protestations of being singled out, the evidence clearly and convincingly illustrates that he engaged in an egregious, systematic scheme of criminal conduct, while serving in public office.

(Mike Frisch)

January 17, 2020 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, January 16, 2020

Lawyer-Landlord Sanctioned For Collection Efforts

The Ohio Supreme Court has ordered a conditionally-stayed suspension of an attorney for conduct as a landlord who was attempting to collect unpaid rent

Following the sale of the property, Bruce began to e-mail and call the Zettses regarding their outstanding rent payments. On June 12, 2017, having received no response, Bruce sent Laura an e-mail to inform her that he would file a civil action against her if he did not receive payment by June 19. The e-mail further stated: “As I’m sure you are aware, under Ohio law, it is a felony to pass bad checks in the amount you have bounced in my accounts over the last six months. * [Y]ou have failed to deposit good funds to remedy. If you fail to make the payment described above, I will be forced to file a police report with the Medina Police Department.”

On June 19, Bruce followed up with a text informing Laura that if she did not deposit $3,010 into his account that day, he would file a lawsuit and a police report against her and Greg. That same day, Laura’s employer, attorney Vincent Stafford, called Bruce to discuss the matter, thereby putting Bruce on notice that the Zettses were represented by counsel.

On June 20, Bruce e-mailed Stafford demanding a payment of $4,515 to avoid civil and criminal litigation. Stafford informed Bruce that the Zettses contested his allegations and cautioned him that his threats to have the Zettses prosecuted while he pursued his civil claims were “grossly inappropriate.” Bruce replied to Stafford, stating that his comments about filing a police report were not threats and that he had “very clearly and explicitly laid out exactly what I intend to do if the Zetts[es] do not pay me what they owe me.” He also reiterated that Laura had committed a felony.

On July 21, Bruce filed a civil complaint against the Zettses in the Medina County Municipal Court. He continued to communicate directly with the Zettses after filing the complaint—even after September 1, when attorneys Mark Owens and Natalie Grubb entered an appearance on behalf of the Zettses and filed a motion for leave to plead. In responding to a request for information from Owens and Grubb, Bruce renewed his threat to file criminal charges against the Zettses. And he reiterated that threat during a November 8 pretrial conference, maintaining that such a threat was “only impermissible if you have no basis.”

The Zettses answered Bruce’s civil complaint and asserted several counterclaims against him, and in January 2018, Bruce e-mailed their counsel an offer to settle the matter for $2,000. The Zettses rejected the offer.

On February 1, Bruce filed a criminal complaint against Greg Zetts. He e-mailed a copy of the complaint to Laura and the Zettses’ counsel and offered to drop the criminal charges in exchange for a payment of $4,000 and a mutual release of all claims. The following week, he sent Laura and the Zettses’ counsel a letter stating, “I just received the attached letter from the Supreme Court of Ohio Disciplinary Counsel’s office. It appears Ms. Zetts filed a grievance against me. Of course, the grievance was dismissed, but I demand to know immediately the basis for Ms. Zetts’ grievance. I do not take kindly to meritless grievances * * *.”

The day before Greg Zetts’s arraignment, his criminal-defense counsel sent Bruce an e-mail offering $3,150 to settle the matter. Bruce replied, stating that he would accept the offer provided that the Zettses agreed to release all claims against him. He sent a copy of his response directly to Laura without Owens and Grubb’s permission. After Owens and Grubb attempted to negotiate an additional matter to settle the civil action, Bruce informed them that he and Laura had already verbally agreed to resolve the dispute. That same day, he asked Laura to confirm by text message that she and Greg had agreed to pay $3,150 in monthly payments of $500 in exchange for a full mutual release of all claims that they had against each other.

 Several days later, Owens and Grubb informed Bruce that the Zettses were willing to settle Bruce’s civil and criminal claims for $3,150 but that they were unwilling to withdraw their counterclaims against him. They also advised him that attorneys are not permitted to threaten criminal prosecution to gain an advantage in a civil matter. Bruce replied that his actions were permissible and that he planned to enforce the agreement that he had negotiated directly with Laura without Owens and Grubb’s knowledge.

The criminal charges against Greg Zetts were dismissed on March 27, 2018. That day, Bruce entered into a confidential settlement agreement and release with the Zettses in which they represented that they had not filed any claims, complaints, charges, or lawsuits against Bruce with any governmental agency, this court, or any other court and that they would immediately withdraw any claims they may have filed against Bruce. The next day, Laura e-mailed relator and asked to withdraw the grievance that she and Greg had filed against Bruce.

The violations

The parties stipulated and the board found that Bruce’s conduct violated Prof.Cond.R. 1.2(e) (prohibiting a lawyer from presenting, participating in presenting, or threatening to present criminal charges solely to obtain an advantage in a civil matter) and 4.2 (prohibiting a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or a court order). They also agreed that his inclusion of a provision in the settlement agreement that prevented the Zettses from filing a grievance with a disciplinary authority and required them to withdraw any pending disciplinary grievances violated Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice). We adopt these findings of misconduct and, in accord with the parties’ stipulations, dismiss one remaining alleged rule violation. 

Sanction

Having reviewed the record and considered the unique combination of ethical violations and aggravating and mitigating factors present in this case in light of our precedent, we accept the board’s analysis and agree that a conditionally stayed one-year suspension is the appropriate sanction in this case.

(Mike Frisch)

January 16, 2020 in Bar Discipline & Process | Permalink | Comments (0)

The Buck Includes Fitness

A 48-page per curiam opinion of the District of Columbia Court of Appeals suspends an attorney for 60 days with fitness, notwithstanding a "no fitness" recommendation of its Board on Professional Responsibility

In a report consolidating disciplinary cases heard by two Hearing Committees, the Board on Professional Responsibility (the "Board") concluded that respondent, Gregory L. Lattimer, committed multiple violations of the District of Columbia Rule of Professional Conduct 1.4(a) (communication with client) in the course of representing two clients in the District of Columbia, as well as violations of the Virginia Rules of Professional Conduct 1.1 (competence), 1.3(a) (diligence), and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), in the course of representing a third client in Virginia. The Board recommended Mr. Lattimer be suspended for sixty days, with the requirement that Mr. Lattimer pay restitution with interest to the family of one of his clients and provide proof of payment prior to reinstatement. We agree with the Board’s conclusions that Mr. Lattimer’s conduct violated the District of Columbia and Virginia Rules and adopt the Board’s recommendation as to sanction, except that we additionally impose a fitness requirement.

As to the Court's sanction responsibilities

Ultimately, "the buck stops here."

Why the board got the fitness issue wrong

Three broad concerns lead us to conclude that imposition of a fitness requirement is necessary in this case: (1) Mr. Lattimer’s adamant refusal to accept responsibility and his corresponding willingness to blame any deficiencies in his representation on his clients; (2) his decision to file a patently frivolous lawsuit against a former client; and (3) his repeated practice before multiple tribunals of presenting a revisionist narrative of his actions.

First, Mr. Lattimer’s failure to acknowledge wrongdoing and accept responsibility pervades his arguments to this court. He asserts he committed no rule violations and that the determinations by the Board to the contrary are without foundation. Specifically, Mr. Lattimer argues "[t]here was no evidence to support  a finding that [he] improperly exercised his judgment in prosecuting the claim of Denise Wilkins"; "[t]here was no evidence to support a determination that [he] engaged in dishonesty with respect to an argument made to a tribunal" in the Wilkins case; the Board and the Hearing Committee’s determination that he failed to adequately investigate the Wilkins case "is not supported by any evidence of any kind"; the "contention" that he failed to engage an expert in the Wilkins case in a timely manner "has no basis in fact, law[,] or logic"; and that "[t]he Hearing Committee had no basis upon which to find that [he] failed to communicate" with either Ms. Cooper or Mr. Strange. (emphasis added).

Instead of accepting responsibility for his misconduct, Mr. Lattimer seeks to blame others, most frequently his clients. He blames Mr. Strange, who was indigent and incarcerated, for only calling collect instead of using other means of communication. See supra note 4. He asserts Ms. Cooper was a difficult client, while ignoring the root cause of the problem: his failure to adequately communicate with her. Most shocking, Mr. Lattimer now claims that the Wilkins case was flawed from its inception because (1) his client, Ms. Wilkins, “had caused [her son, Mr. Davis,] to be at Central State Hospital,” and (2) Mr. Davis was an unstable and violent individual.

We are extremely concerned that Mr. Lattimer would insinuate that Ms. Wilkins was in some part responsible for her son’s killing by another patient simply because she called the authorities when her son was in crisis, which eventually led to his hospitalization. With Mr. Davis in its custody, Central State Hospital was responsible for his care and protection; and, as Mr. Lattimer well knows, an official state report concluded that his death was the result of “substantiated” “staff neglect.” We are similarly dismayed by Mr. Lattimer’s graphic description of Mr. Davis’s behavior while in the throes of mental illness and his insinuation that Mr. Davis’s violent behavior precipitated his death. As a society, we commit individuals to psychiatric facilities when mental illness has rendered them a danger to themselves or others; and, for the duration of their commitment, it is the responsibility of the facility to keep them and others safe. Mr. Lattimer’s arguments about Ms. Wilkins and her son are denigrating as well as diversionary. We cannot say if Ms. Wilkins could have ultimately won her case. But we know why she lost: Mr. Lattimer failed to timely name as a defendant the individual who was the director of the hospital at the time of Mr. Davis’s death as required by his own theory of the case, and he failed to timely file his expert report. In short, the faults apparent in Mr. Lattimer’s representation are his alone, and his refusal to accept responsibility and his inappropriate blame-shifting are grounds to question his fitness.

He also had sued a client for defamation for statements made to the client security fund.

Such statements are immune

In addition to his failure to accept responsibility, his efforts to shift blame for his shortcomings to his clients, and his decision to bring a patently frivolous lawsuit against client, we add one more consideration: Mr. Lattimer’s persistent willingness to revise history and take whatever position best suits his needs at that particular time, as evidenced by his litigation of this disciplinary matter.

(Mike Frisch)

January 16, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Permanent Resignation Accepted In Louisiana

The Louisiana Supreme Court accepted an attorney's permanent resignation.

The Office of Disciplinary Counsel (“ODC”) filed formal charges against respondent, alleging that he engaged in the unauthorized practice of law. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Shreveport Times reported  last June

A local political blogger and occasional columnist was sentenced in late May to pay a $300 fine and court costs on a solicit for prostitution charge.

Settle withdrew his former plea of not guilty “and pled guilty to the charge,” read Caddo Parish Court minutes for Thursday, May 30.

Settle was sentenced to pay the fine and court costs. Execution of the sentence was deferred to Nov. 15, according to the court minutes.

Settle previously told The Times that the arrest was part of a sting operation.

The Louisiana Record had a June 2019  story on prior disciplinary matters involving the attorney.

Suspended Bossier City attorney John E. Settle Jr. could receive no further sanctions following a recent recommendation by a Louisiana Attorney Disciplinary Board (LADB) hearing committee regarding allegations that Settle practiced law while suspended.

In its four-page recommendation issued issued June 6, LADB Hearing Committee No. 18 concluded that though Settle "may have acted a bit carelessly" and he "came dangerously close to the boundary line" of violating professional conduct rules, his alleged misconduct caused "no actual harm to any of the parties or participants." 

The recommendation also said Settle "should be cautioned that the filing of these charges by the office of disciplinary counsel were not unreasonable considering the circumstances."

Settle had been charged with engaging in unauthorized practice of law and engaging in conduct that involves dishonesty, fraud, deceit or misrepresentation.

While the committee found that the testimony and evidence in the matter "does not exonerate" Settle, it concluded that the evidence presented "did not reach the clear and convincing standard" to show Settle violated professional conduct rules.

The recommendation was signed by committee Attorney Member W. David Hammett. Committee Chair Barry W. Dowd and Public Member James D. Myers concurred in the recommendation.

Settle was admitted to the bar in Louisiana on April 26, 2012, according to his profile on the Louisiana State Bar Association’s website.

Settle's disciplinary history indicates that in February 2015, the Louisiana Supreme Court accepted a joint petition for consent discipline reached between Settle and the office of disciplinary counsel and publicly reprimanded the attorney. In that matter, Settled acknowledged he "disrupted the courts of two judges and compromised the confidentiality of a Judiciary Commission investigation."

In October 2016, Settle was placed on a fully deferred year-and-a-day suspension for violating a recovery agreement and testing positive for alcohol.

(Mike Frisch)

January 16, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Was Disbarment Necessary?

The Oklahoma Supreme Court rejected a proposed lesser sanction and disbarred an attorney 

The Complainant, Oklahoma Bar Association, charged the Respondent, Laurie Jean Miller, with three counts of professional misconduct that included failure to competently represent her clients, failure to be diligent in her representation of her clients and failure to communicate effectively with her clients. In addition, the Complainant charged the Respondent with mishandling of client funds, violating rules of professional conduct and the commission of an act contrary to prescribed standards of conduct. Having found clear and convincing evidence to support all three counts, the Trial Panel recommended the Respondent be suspended for eighteen months. We hold there is clear and convincing evidence that the totality of the Respondent's conduct warrants disbarment. The Respondent is ordered to pay the costs as herein provided within ninety days after this opinion becomes final.

The attorney

 The Respondent is an active member of the Oklahoma Bar Association and is currently in good standing with the Association. For most of her career she has been a sole practitioner but has also shared offices with other attorneys. She left private practice in 2017 and took a position with an insurance company where she is currently employed.  The Complainant's allegations arise from the Respondents conduct towards several of her clients she had while in private practice. The matters involved are related to three separate governmental tort claims actions.

The most serious charges involved the mishandling of entrusted cash that she testified she had put in a safe for safekeeping.

The funds were not used to pay the client's medical bills as was intended

The Trial Panel members also questioned the Respondent about the $4,600.00 she put into her safe and why she did not just pay Murcia when she first met with the OBA. The Respondent testified, "[w]ell, obviously, I mean, there--there was no money in the safe. I mean I don't know what happened to the money during this period. I just don't know."  She could not even remember when she first discovered the money was missing.  She also testified she did not inform Murcia that the money was no longer in her safe.  The record does not reflect she reported the missing money as stolen.

Sanction

The Respondent has offered evidence to mitigate her discipline. She ultimately paid the $4,600.00 to Murcia after the grievance was filed. She was the primary care giver to her ailing father prior to his death during the time she represented Murcia, Sanders and Solis. Her father-in-law also died sometime during this period. She testified to having physical and emotional problems during this period which included back surgery, anxiety and depression. The Trial Panel reviewed these mitigating factors but believed the one year suspension recommended by the Complainant was not enough. It recommended she be suspended for eighteen months.

We agree with the Trial Panel that the Complainant's recommendation does not provide adequate discipline. However, we disagree with its recommendation. Even considering the Respondent's mitigation evidence as well as the fact that the record is devoid of any previous discipline, the totality of her misconduct is disturbing. It is our difficult duty to withdraw a license to practice law but we shall if necessary to protect the interest of the public and the legal profession as a whole. The record is laden with inconsistent statements and unbelievable explanations. Most disturbing of which is the Respondent's difficulty in discerning the truth. Her testimony that the false statements she made to her client were somehow true at the time she made them is incredulous. A mistaken statement may be made; however, truth is not malleable. Honesty in the performance of a lawyer's professional activities is the foundation upon which his or her license stands. We hold the sum of the Respondent's misconduct warrants disbarment. Accordingly, it is ordered by this Court that the Respondent be disbarred and her name be stricken from the roll of attorneys licensed to practice law in this state.

Three justices dissented

This court must impose discipline in a manner consistent with that imposed on other attorneys whose actions are similar to avoid disparate treatment.  Mitigating circumstances are also considered in assessing the appropriate discipline.  There are mitigating circumstances in the third and most extensive complaint, the Murcia complaint. The respondent moved her office three times, had major back surgery, was suffering from depression, and lost family members during the tenure of both the Murcia matter and during the investigation by the Bar of the complaints. She did not take a fee for her work in obtaining money from the original counsel in the matter who failed to timely file the original case. The monies received were in cash, and the respondent placed the monies in her office safe for safekeeping. There is no evidence of the conversion of funds by Miller. In the other two matters, there was another attorney involved who was involved in the legal work, with respondent involved in the administrative work of the cases. Avenues of legal redress remain for the complainants in these matters...

The Court's responsibility in an attorney discipline proceeding is not to punish, but to inquire into and gauge a lawyer's continued fitness to practice law, with a view to safeguarding the interest of the public, the courts, and the legal profession. Discipline is imposed to maintain these goals, rather than as punishment for the lawyer's misconduct. Every disciplinary proceeding presents unique issues. However, based on the history of at least somewhat comparable matters, the discipline imposed by the majority appears erratic and inconsistent.

(Mike Frisch)

January 16, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 14, 2020

Less Than Disbarment For Attorney Who Resigned In Massachusetts

An attorney who had resigned with charges pending in Massachusetts was suspended for three years as reciprocal discipline by the New York Appellate Division for the First Judicial Department

The Massachusetts Board of Bar Overseers (BBO) filed a statement of disciplinary charges alleging that respondent had committed various acts of professional misconduct, including negligent (i.e., non-venal) misappropriation of client funds and failure to maintain required escrow account records. Specifically, the statement asserted that, between October 2012 and February 2015, respondent billed a client, a wealthy London resident formerly married to a billionaire hedge fund financier, over $1.4 million for respondent's non-legal investigative services, including an investigation of the ex-husband's alleged market abuse and other alleged financial misconduct. The fee was excessive because the investigation produced no benefit to the client, and respondent billed at her regular rate of $700 per hour for 150 hours of a paralegal's work, and for respondent's time responding to 4,000 text messages from the client that were not material to the representation, and which totaled approximately $300,000 in violation of the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.)1.5(a) (prohibition against charging and/or collecting an excessive legal fee).

The statement further averred that, between December 1, 2012 and July 31, 2013, respondent, who periodically received retainer payments from the client, withdrew from her escrow account $170,236.57 more toward the client's fees than had been deposited, in violation of Mass. R. Prof. C. 1.15(b) and 1.15(c) (negligent misuse of client funds). In September 2013, respondent facilitated a financial investment by the same client in a pharmaceutical company in which respondent was an executive and board member, but respondent failed to disclose that a portion of the client's investment funds might be used to pay respondent's compensation as a board member and that respondent's representation could be materially limited by her personal interests, constituting a conflict of interest in violation of Mass. R. Prof. C. 1.7(b) and 1.8(a)(l) (entering into business transaction with client without obtaining adequate informed consent in writing from client as to conflict of interest).

The statement additionally focused on respondent's representation, beginning in 2011, of multiple clients in federal court litigation related to a massive Ponzi investment scheme by Stanford International Bank, Ltd. Respondent's fee agreements with those clients provided for an excessive contingent fee of the awards received by the clients (for respondent merely filing out a two-page claim form), in violation of Mass. R. Prof. C. 1.5(a). As to some of these clients, respondent also failed to maintain adequate individual client ledgers, failed to credit retainers paid, and negligently debited from her escrow account amounts in excess of the retainers then on deposit (after the retainers had been exhausted), thereby misusing the funds of other clients in violation of Mass. R. Prof. C. 1.15(b) and 1.15(c). The statement acknowledged, however, that none of these clients was deprived of any funds.

The statement further outlined how, in 2015, respondent executed a settlement agreement of a fee dispute with a former client which contained an explicit provision that, as a condition of settlement, the former client was prohibited from filing a complaint with bar counsel. Both parties were represented by counsel but, in executing a clause in a settlement agreement requiring a party to refrain from filing a complaint with bar counsel, respondent violated Mass. R. Prof. C. 8.4(g) (failure without good cause to cooperate with disciplinary authorities), 8.4(h) (other [*2]conduct that adversely reflects on fitness as a lawyer), and MA S.J.C. Rule 4:01 § 10 (improperly conditioning settlement on not filing disciplinary complaint).

Finally, the statement alleged that, from December 2012 until September 2017, respondent maintained an IOLTA account for which she failed to keep: (1) required records, namely, timely or contemporaneous individual client ledgers reporting each receipt of funds, the dates thereof, and the amounts; (2) a ledger of bank fees and charges; and (3) a prompt or contemporaneous record in check register or clients ledgers of receipts and disbursements on behalf of clients, which resulted in inaccurate and unbalanced three-way reconciliations in violation of Mass. R. Prof. C. 1.15(f)(1)(B)-(E) (failure to maintain required bookkeeping records).

In response to the statement of charges, respondent, represented by counsel, tendered an affidavit in which she stated that she desired to resign from the practice of law in Massachusetts as a disciplinary sanction for the misconduct set forth by the BBO, waived her right to a hearing, and agreed not to contest the facts underlying the charges, the rule violations charged therein, nor the resulting discipline in Massachusetts or "in any other jurisdiction." The Massachusetts Office of Bar Counsel and the BBO recommended that respondent's resignation be accepted and, by order entered October 26, 2018, the Supreme Judicial Court of Massachusetts accepted respondent's affidavit of resignation as a disciplinary sanction and her name was stricken from the roll of attorneys.

The Attorney Grievance Committee sought disbarment

Respondent opposes the imposition of reciprocal discipline, emphasizing that her discipline in Massachusetts was the result of settlement. She asserts that many of the charges would not necessarily have been provable, and that, had the matter been litigated, any discipline would not have been greater than an admonition or censure for inadequate record keeping which would have allowed her to continue to practice law. She further claims that the Massachusetts disciplinary proceeding was largely the result of complaints from dissident shareholders in the pharmaceutical company in which she was an executive/shareholder, the goal of which was to gain advantage in a federal lawsuit they brought against her, which was ultimately dismissed with prejudice at the election of the plaintiff and without any finding of wrongdoing on her part.

Respondent also outlines certain mitigating circumstances. She claims that she spent over a year responding to the Massachusetts Bar Counsel's "dense requests for information on an almost monthly basis" which, in conjunction with the closing of her law practice and an IRS [*3]audit, reawakened traumatic childhood memories of the India-Pakistan War and, while she submits no medical evidence, caused her to develop post-traumatic stress disorder. Additionally, during the period at issue, respondent was in a state of grief and shock because her mother (for whom she was the primary caretaker) succumbed to brain cancer and passed away, and three weeks later her ex-husband suddenly died.

Here

Regarding respondent's substantive defenses, they are irrelevant in a reciprocal disciplinary proceeding, as noted above. Further, as a general rule, in reciprocal disciplinary matters, this Court gives significant weight to the sanction imposed by the jurisdiction in which the charges were initially brought (see Matter of Peters, 127 AD3d 103, 108-109 [1st Dept 2015]; Matter of Cardillo, 123 AD3d 147, 150 [1st Dept 2014]; Matter of Jaffe, 78 AD3d 152, 158 [1st Dept 2010]).

But

Turning to the allegations here, disbarment is not a sanction that would ordinarily be imposed under the circumstances. This Court has imposed sanctions ranging from public censure to suspensions of varying length for misconduct of the same general nature as that at issue here (see e.g. Matter of Peskin, 173 AD3d 47 [1st Dept 2019]; Matter of Teichberg, 121 AD3d 319 [1st Dept 2014]; Matter of Novins, 119 AD3d 37 [1st Dept 2014]; Matter of Edelman, 86 AD3d 96 [1st Dept 2011]; Matter of Fong, 308 AD2d 19 [1st Dept 2003]).

Notwithstanding respondent's decision to resign as a disciplinary sanction in Massachusetts, we find that, under all of the circumstances, including respondent's mitigation evidence, a suspension of three years is the appropriate sanction.

I dealt with a similar situation as disciplinary counsel in a hotly contested (all the way to cert denied) matter involving an attorney who resigned in Florida and failed to report it to the District of Columbia.

We learned of the Florida action through a report from the ABA National Lawyer Regulatory Data Bank. 

That report kept me mighty busy for several years. 

Reciprocal disbarment was imposed.

We conclude that because Day's resignation from the Florida Bar while a disciplinary proceeding was pending against her constituted “discipline,” and none of the exceptions to reciprocal discipline apply to her case, the Rules of the District of Columbia Bar require the imposition of reciprocal discipline.   We also conclude that Day's due process rights are not violated by the imposition of reciprocal discipline.

(Mike Frisch)

January 14, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 13, 2020

The Dormant Season

A complaint recently filed by the Illinois Administrator

 Respondent was employed at the Chicago law firm of Vedder Price, P.C., from 2005 (when he was hired to work as a summer associate) through October 2, 2019 (when his employment was terminated as a result of the events described in this complaint). During his time at the firm, Respondent was involved in the representation of a financial institution ("the client") in various finance and leasing matters involving other companies. The client's agreements with its lessees allowed for the firm's fees for services it provided the client to be billed to the lessees (i.e., the client's customers) under certain circumstances.

In 2009, the firm performed services for a separate client (a construction company) in connection with a contract dispute. The firm assigned that matter an internal number that it used for billing purposes, and Respondent was aware of that number because he was the billing attorney responsible for the matter. That billing number became dormant in 2011, about two years after the firm's involvement in the contract dispute ended.

Prior to January 17, 2018, attorneys and others at the firm performed services having a value of $23,782.50 for the client in connection with the novation of a lease from one lessee to another lessee (an affiliate of the original lessee). Around that time, Respondent instructed the firm's accounting department to reactivate the formerly dormant billing number associated with the matter referred to in paragraph two, above, and he fabricated a billing invoice addressed to the client's customer that asked the customer to pay the firm $23,782.50. Respondent later caused that fabricated invoice to be sent to the client's customer, which paid the full amount listed in the invoice to the firm.

When the firm received the $23,782.50 payment in response to the fabricated invoice, Respondent directed the firm's accounting department apply that payment as a credit to the formerly dormant billing account, which he controlled.

Respondent also caused the client to be billed separately for the legal services the firm provided in connection with the novation of the lease, using the client's actual billing number. When the firm received payment from the client, it applied that payment to the client's account.

Between January 31, 2018 and September 27, 2019, Respondent fabricated an additional eight invoices to the client's customers, each of which used the formerly dormant billing account number rather than the client's actual billing number. At least some of those invoices asked that payment be sent to Respondent's home rather than to the firm. As payments totaling $108,674 were received in connection with those invoices, Respondent caused those amounts to be transferred to the dormant account that he controlled. At the same time, Respondent continued to bill the client for the same legal services, and to apply any payments resulting from those invoices to the client's account.

Respondent did not tell anyone associated with the client or with the firm about the fact that he was billing both the client and its customers for certain legal services, or that he was using a formerly dormant billing number to receive payments resulting from the fabricated invoices.

In 2018 and 2019, Respondent caused business and personal expenses that he incurred (including golf fees, dining and travel expenses) to be charged against the formerly dormant account, and requested and received payment of at least $79,790.43 from that account. Respondent knew that neither the firm nor the client were aware that he was charging those expenses to the formerly dormant account, and that neither the firm nor the client had authorized him to use those funds or that account to pay for his business and personal expenses. Respondent's receipt and use of those funds constitutes conversion.

(Mike Frisch)

January 13, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, January 12, 2020

Short Suspension Required "To Deter Others"

A recent report and recommendation from the Illinois Review Board

The Administrator charged Respondent with misconduct arising out of her representation, in a criminal case, of a man with whom she had a decades-long close personal relationship.

The Hearing Board found that Respondent had committed some but not all of the charged misconduct. It found that she made false statements to a court by misrepresenting her client's monthly income in connection with bond proceedings, in violation of Rules 3.3(a)(1) and 8.4(c); and communicated with and gave legal advice to an unrepresented person whose interests were potentially adverse to those of her client, in violation of Rule 4.3. It recommended that she be reprimanded for her conduct.

The Administrator appealed, challenging the Hearing Board's sanction recommendation and asking that she be suspended for 90 days.

The Review Board recommended that Respondent be suspended for 30 days for her misconduct. It recognized the unique circumstances involved in the matter, which, like the Hearing Board, it found mitigating. However, it determined that Respondent's actions in making false statements to a court on three separate occasions warranted more than a reprimand. It found that a 30-day suspension would recognize the seriousness of Respondent's misconduct but would not be so harsh as to constitute punishment.

The client was charged with telephone harassment for allegedly making threats against three individuals

The charges against Respondent arose out of her representation of Danny French, with whom Respondent had a close personal relationship. Respondent began dating French in 1993, when she was 17 years old. They lived together from 2002 until French's death in 2017.

Sanction

The misconduct in the present matter is similar to the misconduct in the cases cited by the Hearing Board, as well as the additional authority noted above, in that the false statements occurred during the course of a single representation and over a short period of time; did not extend, delay, or cause additional judicial proceedings; and did not involve false statements to the ARDC. As in most of those cases, Respondent's conduct was not self-serving.

And while the mitigation in those cases is arguably stronger than that in this matter, the Hearing Board clearly was struck by the unique circumstances of this matter, and considered those circumstances to be strongly mitigating and indicative of the fact that Respondent is not likely to commit misconduct in the future.

We, too, are struck by the unique circumstances in this matter, and are convinced that Respondent will not engage in misconduct again and poses no risk whatsoever to clients. However, we believe that her actions in making false statements to a court warrant more than reprimand, regardless of her reasons for making them and irrespective of the fact that her false statements did not appear to affect the court's decisions. We simply cannot countenance an attorney being anything less than entirely honest and forthcoming with a tribunal, no matter the reason for or context of the lack of candor.

We believe that a short suspension would recognize the seriousness of Respondent's misconduct, which included deliberately misrepresenting material facts to the court on three occasions, including once in a brief, on the subject of her arguments before the court, but would not be so harsh as to constitute punishment.

Accordingly, we recommend that Respondent be suspended for 30 days for deliberately making false statements to a court on three occasions. We find that this sanction is commensurate with Respondent's misconduct, consistent with discipline that has been imposed for comparable misconduct, and necessary to serve the goals of attorney discipline and deter others from committing similar misconduct.

(Mike Frisch)

January 12, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 10, 2020

14-Day Suspension Proposed For Attorney Who Drafted Documents For Elderly Client He Failed To Meaningfully Consult With

Vermont Disciplinary Counsel has filed a memorandum  of jointly proposed conclusions of law and a 14-day suspension of an attorney who

drafted or facilitated the signing of seven estate planning-related documents over the course of 2015-2016 without ever once speaking privately  with his elderly client EM either on the telephone or in person. 

He followed the direction of the client's son and the documents instituted changes that redounded to the son's benefit, including the transfer of EM's home and an IRA account, her power of attorney and health care directives and created a living trust for the son's benefit

without speaking with her directly in any level of detail about the significance or possible consequences.

The agreement cites violations of duties to a client with diminished capacity and failure to communicate. It does not cite potential conflicts of interest or failure to abide by the client's wishes regarding the objectives of the representation. 

Vermont has a very transparent bar discipline page that provides links to all the pleadings and exhibits in a matter

(Mike Frisch)

January 10, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 9, 2020

Federalism And Bar Discipline

An excellent and thoughtful hearing committee report from the District of Columbia

Respondent, Donald R. Harris, is charged with violating Rules 1.4(b) (failure to explain a matter to a client), 1.5(a) (charging an unreasonable fee), 1.15(a) (failure to maintain records; commingling; and intentional or reckless misappropriation), 1.15(e) (relating to treatment of advanced unearned fees), 8.1(a) (knowingly false statement of fact in connection with a disciplinary matter), and 8.4(c) (dishonesty, fraud, deceit, and misrepresentation) of the District of Columbia Rules of Professional Conduct (the “Rules”), arising from his representation of Victoria and Armond Bailey in challenging the actions of Children Services in Lucas County, Ohio, and seeking the returned custody of five children while their appeal was pending before the Ohio Court of Appeals. Disciplinary Counsel contends that Respondent committed all of the charged violations, and should be disbarred as a sanction for his misconduct and ordered to refund the fee paid by his clients as a condition of reinstatement. Respondent admits violating the recordkeeping requirements under Rule 1.15(a), but contends that he did not violate Rules 1.4(b), 1.5(a), 1.15(a) by commingling or misappropriation, 1.15(e), 8.1(a), and 8.4(c).

As set forth below, Hearing Committee Number Eleven finds that Disciplinary Counsel has proven by clear and convincing evidence that Respondent violated Rules 1.4(b) by failing to explain the matter to his client, 1.15(a) and (e) by intentionally misappropriating the clients’ advance fees and failing to maintain proper records, and 8.1(a) by knowingly making a false statement of fact during the disciplinary investigation, but did not prove a violations of Rules 1.5(a) (charging an unreasonable fee), 1.15(a) (commingling), or 8.4(c) (dishonesty, fraud, deceit, and misrepresentation). The Hearing Committee recommends that Respondent be disbarred for intentional misappropriation.

One troubling aspect of this matter warrants discussion at the outset. All the conduct in question here transpired in Ohio. The Baileys live in Ohio. Respondent operates his law practice in Ohio. Respondent is not and has never been a member of the Ohio bar. His efforts to gain admission to that Bar have been unsuccessful.

Respondent has relied on the federal practice exemption to Ohio’s unauthorized practice of law rules to maintain a law practice over many years in Ohio. As the Ohio courts have had occasion to observe, because the Respondent is not a member of the Ohio bar his practice is not regulated in Ohio.

The federal practice exemption is grounded in federalism, which is surely an important part of our system. It creates an accountability gap—or at least a ready accountability gap—in cases like this. If Respondent had actually filed a case in the Ohio federal courts he might have been called to task before those courts, but Respondent did not. Were we to accept Respondent’s rendition of the facts he took the Baileys’ money, thought about federal law issues, and then the attorney and client parted ways. The Baileys did what surely few clients will have the wherewithal and stamina to undertake, which was to contact the home Bar and ultimately travel across the country to press their case.

In contesting this matter Respondent has relied on (inconsistent and inadequate in our view) disclaimers that his practice was limited to federal law. While the implications of such a disclaimer may be apparent to a practitioner, we think it clear from the record that this nuance was never thoroughly explained to the Baileys, and certainly the implications as to what Respondent could and could not do were not understood by the Baileys.

What the Baileys knew was that the State of Ohio was taking their children away, and they needed a lawyer. What they got was, at best, a lawyer who considered but did not file a moonshot federal claim in the quintessentially state-law area of child protection. Adding insult to injury, they then had to travel halfway across the country to seek redress. Where a lawyer is not locally barred we believe it should be made explicit that the onus under Rule 1.4(b) sits squarely on the lawyer to fully explain in writing (not boilerplate or labels) what the lawyer can and cannot do for their potential client.

The committee links to a 2004 order of the Ohio Supreme Court denying his admission.

In this case, the applicant has failed to establish by clear and convincing evidence that he has the necessary character and moral qualifications to be admitted to the practice of law. As the panel noted in its February 2002 report, “when questioned about his financial affairs, Mr. Harris answered the questions with irrelevant information and was very evasive.” Because of his complex financial dealings, the relator and the panel requested financial records to support the applicant’s assertions. Despite several requests, the applicant never furnished the information requested. Nor did the applicant respond in writing to the panel’s specific demand in June 2002 for financial documents.

Based upon the applicant’s neglect of his financial affairs and his repeated failures to furnish requested financial information, we disapprove his application to register as a candidate for admission to the practice of law. Applicant may, however, reapply for admission to the practice of law by filing an entirely new application to register as a candidate and undergoing a new character and fitness evaluation.

He was admitted in the District of Columbia on March 1, 2004.

The hearing committee report is signed by Chair Matthew Herrington, public member Trevor Mitchell and Patricia Millerioux.

In re Donald Harris can be accessed here. (Mike Frisch)

January 9, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Courting Clergy

A Louisiana Hearing Committee recommends permanent disbarment of a convicted former district attorney

The Committee is mindful that the decision to impose permanent disbarment relies upon the facts of each particular case and involves great discretion. In this case, a number of aggravating factors are present. The Respondent abused his position of public trust for his own personal financial benefit. He involved religious leaders who, wittingly or unwittingly, were corrupted into making choice legal referrals which, again, personally benefitted Respondent.

The Committee finds that two of the crimes for which Respondent was convicted are especially egregious from the perspective of the Rules of Professional Conduct. First, Respondent used his position as District Attorney, and the funds he had collected as contributions to his campaigns, to host social functions for religious leaders, and to make contributions to their budgets, for the purpose of receiving lucrative client referrals from the ministers that Respondent, or his law firm, or their affiliates could profitably handle. Second. Respondent used his position as District Attorney to collect hundreds of thousands of dollars over twenty years from the St. Tammany Hospital Board and kept what should have been public money for himself.

These actions and practices reflect disgracefully upon the legal profession, the institutions of justice, and the public office held by Respondent. In mitigation, the Committee has considered Respondent's high repute as a police officer and his courageous actions in ending the terrible Essex rampage in which numerous policemen and civilians were killed. Respondent long served, without disciplinary issues, as the St. Tammany Parish District Attorney, though this fact weighs more heavily as an aggravating than a mitigating factor: he should have known better than to engage in the crimes for which he was convicted. It is also apparent that Respondent is experiencing serious health problems.

Weighing the mitigating factors against the aggravating factors, the Committee is of the unanimous opinion that Respondent should be permanently disbarred from the practice of law.

Nola.com noted the reference to the Essex rampage

Defense attorney Richard Simmons Jr. asked the judge to consider Reed's lifetime in law enforcement, including a stint as a New Orleans police officer who put his life on the line making undercover drug buys and seeking out sniper Mark Essex during the 1973 Howard Johnson's shooting rampage that brought the city to its knees.

(Mike Frisch)

January 9, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 8, 2020

Heir Unapparent

An unusual complaint filed by the Illinois Administrator alleges misconduct that came in the wake of an attorney's efforts to find his birth father

 Respondent was adopted shortly after his birth in 1964. As an adult, he made efforts to determine the identity of his biological parents, and received information from the Illinois Adoption Registry and Medical Information Exchange indicating that Thomas Felix DeBoeuf of Missouri may have been his father. Beginning in 2006, Respondent contacted Mr. DeBoeuf and made efforts to spend time with him. Mr. DeBoeuf, though, was not Respondent’s biological father and during Mr. DeBoeuf’s lifetime Respondent never took a DNA or other test to prove that he was related to Mr. DeBoeuf.

After Mrs. DeBoeuf died, Mr. DeBoeuf signed a will drafted by Respondent

The will Respondent prepared for Thomas DeBoeuf listed Respondent as one of Mr. DeBoeuf’s ten children (eight of whom were still alive in 2013, including sons named Charlie, Matthew and Tony DeBoeuf), and nominated Respondent to be the executor of Mr. DeBoeuf’s estate, which consisted of an 80-acre farm located in Gasconade County, Missouri, and various items of personal property. Attached to the will was a list, prepared by Respondent, purporting to dispose of Thomas DeBoeuf’s personal property. That list provided for the distribution to Respondent of all of Thomas DeBoeuf’s handguns, several rifles, a clock, a kitchen bowl, a knife, a purse and its contents, a newly-purchased van, a vintage farming combine and other items. The will also provided that the remainder of Thomas DeBoeuf’s real and personal property was to be sold, with the proceeds to be divided between Respondent and Mr. DeBoeuf’s children after payment of Respondent’s fees as personal representative of the estate.

Then

Thomas DeBoeuf died on May 10, 2014. Sometime thereafter, the last will and testament prepared by Respondent was filed in the Circuit Court of Gasconade County to initiate the matter entitled Estate of Thomas Felix DeBoeuf, docket number 14GA-PR00029.

Respondent received some, but not all, of the items listed in the attachment to Thomas DeBoeuf’s last will and testament, referred to...above. Among the items Respondent received were a tractor that he later sold for $14,000, another vehicle he sold for $3,000 and handguns having a value of at least $6,000.

On August 14, 2017, the Hon. Robert D. Schollmeyer entered an order in the DeBoeuf estate finding that Respondent was not an heir of Mr. DeBoeuf’s. On January 23, 2019, a special master appointed by Judge Schollmeyer made recommendations for the distribution of the remaining items from the DeBoeuf estate.

Count One alleges that respondent wrote a will that benefitted himself and practiced in Missouri without a license. 

The will rule

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

Does this situation suggest a "close, familial relationship?"

Is a good faith belief that a familial relationship exists a defense to the charge?

And while we ponder the answers there is...

Count Two

After Thomas DeBoeuf’s May 10, 2014 death, Respondent took various actions, including visiting a location near Mr. DeBoeuf’s former farm on May 16, 2014 and firing two shots while he was located within sight of some of Mr. DeBoeuf’s children. During that time, Respondent also called some of Mr. DeBoeuf’s children, either in his capacity as someone with an interest in the DeBoeuf estate or in his capacity as the estate’s personal representative. In those calls, Respondent made the following statements:

  1. On May 13, 2014, Respondent left a voicemail message for Tony DeBoeuf in which he said, in part: "This is Bruce Bonebrake. Do not call me back. Um, I just wanted to give you fair notice that as of this afternoon I have all the legal rights your father had prior to his death. And, um, I’m giving you fair notice as well that you are not to go to the property. If you step foot on Tom’s property I will have you arrested immediately. And, uh, I want you to know that you are not welcome on that property ever again. Ever."

  2. On May 14, 2014, Respondent left a voicemail message for Matthew DeBoeuf in which he said, in part: "…if any guns – and I have a list of Tom’s firearms, long guns and handguns – and guns are missing, I will swear out a warrant and classify you a felon, I don’t want to do that, but you have every single fucking gun out there and if you’ve taken any antiques or jewelry I’d advise you to bring it back as well because you’re the only one that's been responsible for the control of that property. So, um this is going to get bad if you don't cooperate. If any gun is missing, I will say you took it and you will be arrested, put in jail for violating, uh, well for quid pro- for a felony, a separate felony conviction, being in possession of a gun, uh, and if any guns are missing, I believe you either know where they're at and, um, or you'll be responsible for their theft."

  3. On May 16, 2014, Respondent left a voicemail message for Tony DeBoeuf in which he said: "Uh, Tony this is Bruce Bonebrake and, um, I just want you to know that, um, you have no idea what you're fucking with um I'm curious as to whether you want to be arrested at your job or at home. And furthermore, um, if I wasn't such a nice guy, uh, you wouldn't be around any longer. So you fucked around with the wrong person and you will pay the price."

  4. On May 19, 2014, Respondent left a voicemail message for Matthew DeBoeuf in which he said: "Uh, hello Matt this is Bruce Bonebrake and, um, I was going to leave a message for you. I'm trying to figure out what's a good time to conduct a deposition, I need a court reporter there, and, um, may want to talk to your employer, that if you want me to I can to see if there is a place that, uh, we can sit down with an attorney and go over some of the issues related to your possession of the guns as well as, um, your molestation apparently of [another family member], uh, should be part of the, um, public record of the will. I was gonna have Robby there as well but I found out today that he's a convicted felon as you, um, so, um, I'm not sure if he's staying with you but it would probably not be appropriate for both of you to have a deposition together. So anyway, I'll, um, I'll have my attorney send all of that to you in writing, uh, I will send it, uh, if you want I'll make a copy of the request of the deposition to your employer and maybe that way we can do it, uh, when you're taking a break from work or over lunch hour, et cetera, so I'll stay in touch with you. I hope you got my message that you are not to use the truck and, uh, more than likely given your behavior you will not, uh, take possession of anything, so certainly not the truck. Uh, you can call me back and leave a message or moreover or why don't we just expect to get this in writing. Why don't you bring any request you have in writing."

  5. On May 21, 2014, Respondent left a voicemail message for Matthew DeBoeuf in which he said: "I do not want Charlie or Tony there and they're not to be there this weekend. If I come down like I did last weekend and there's hullabaloo that went on this time the sheriff will arrest and they will be forcibly evicted. If you're willing to protect the property, I don't have a problem with you staying there until you work out where you're going to reside but again, if I find that any stuff is missing or titles have been transferred I'm just telling you, Matt, I got a fucking judiciary duty, I got a law license to protect and I will go fucking ballistic and you and I will never have a relationship in the future, so please do the right thing. And I'll see you this weekend."

  6. On May 23, 2014 Respondent left a voicemail message for Matthew DeBoeuf in which he said: "Ya, Matthew, I told you I was coming out to the property today, this is Bruce Bonebrake and, um, apparently you got the, uh, that fucking little gate up. Um, what's the deal, what the fuck man? I don't even want you on the property, I thought I'd be nice to you by allowing you to be on it. If I go out there tomorrow and that fucking chain is up I'm going to chainsaw everything down, I'll kick the fucking door open and if you try to get on the property, I'll have you arrested immediately. I'm sick of the bullshit. I'm sick of your fucking bullshit and I'll tell you what, goddamn it, I was trying to be nice to you, you're pushing my buttons and I've had enough and I'm telling you that and again, Tony, that motherfucking piece of shit and Charlie are never ever allowed on that property again. If they are, I'll have them arrested and if I'm there, I'll tell you what they will not be allowed on the property I assure you and frankly, at this point, I'm thinking that's gonna be the same case with you, too."

  7. On July 23, 2014 Respondent left a voicemail message for Matthew DeBoeuf-"Yeah, this is Bruce, I went to the farmhouse today, saw all the things that were missing and of course that place was a huge mess. Um, I'm assuming, and while I'm assuming, I'm hoping that you put things in storage and that the valuables, the antiques, uh, milk glass and the other things are protected and safe and, um, not subject to, um, theft. And in reality I think you, um, are going to be responsible for everything that's missing there so this will be the last time, last time I call you by phone, next time will be a subpoena and/or a court document that compels your testimony and, um, may compel you to, um, produce all the things you have taken. I blame everything on you that's missing, including Charlie's stuff that's at, um, well my tractor that’s at Charlie's house. Um, I don't know what you have at the double EE property, I suspect you have things there as well so um I'm not sure what your thoughts are, Matt, but, uh, you- you're not going to get away with stealing from your, from the remaining heirs and from your father. I don't know, so think about that now and spend a lot of time in the future thinking about it."

(Mike Frisch)

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

Monday, January 6, 2020

To Suspend Or Not

This Wednesday before the Ohio Supreme Court

Disciplinary Counsel v. Anthony P. Spinazze, Case No. 2019-1075
Lucas County

The Board of Professional Conduct proposes a six-month suspension for a former Sylvania assistant prosecutor who intentionally made false representations to a municipal court judge, then lied about his conduct to his superiors, when he agreed to reduce a drunken driving charge to a lesser sentence.

Anthony Spinazze argues that based on sanctions levied on other attorneys who committed similar misconduct, he should receive a fully stayed six-month suspension. He maintains the board didn’t adequately credit him for taking responsibility for his actions when it proposed the suspension.

Charge Reduced Without Officer’s Consent
Spinazze was in private practice and a part-time Sylvania assistant prosecutor, when in November 2017, two Lucas County sheriff’s deputies stopped Jeremiah Johnson. Deputy Jeff Bretzloff joined the two officers, and after administering a field sobriety test, arrested Johnson for operating a vehicle under the influence of alcohol (OVI). Bretzloff was wearing a body camera, and Johnson admitted to him that he had consumed alcohol and never denied driving the vehicle. The police report indicated the other two officers observed Johnson driving his truck.

Johnson, appeared before Sylvania Municipal Court Judge Michael Bonfiglio. Johnson’s lawyer filed motions to dismiss the case and suppress the evidence. The day of the April 2018 hearing to consider the suppression request, Spinazze, Johnson’s lawyer, and Breztloff watched the bodycam footage from the arrest. Johnson’s attorney requested a reduction of the OVI charge to loss of physical control. The deputy stated he would object to the proposed reduction, and the case was continued.

Later that month at a pretrial hearing, Spinazze agreed to recommend the reduced physical control charge. Johnson’s lawyer took the written recommendation to the court. Knowing Johnson had two previous alcohol-related driving convictions, Judge Bonfiglio asked Spinazze to appear in court and explain the reduction.

During an exchange with the judge, Spinazze said there was “a question as to the driving and the observation by the police” of Johnson driving. Judge Bonfiglio asked if Bretzloff and the other officers agreed with the reduction, and Spinazze said they did. The judge stated that in light of the Spinazze’s recommendation and the agreement of the arresting officers, he would amend the charge to physical control and accepted Johnson’s guilty plea to it.

Supervisor Questions Change
The city’s chief prosecutor, Christy Cole, who was Spinazze’s supervisor, heard about the plea and reviewed the case file. In the case file, Spinazze wrote “court was going to dismiss case,” even though the court never indicated it intended to dismiss the case. Cole asked Spinazze if he had the officers’ consent to reduce the charge, and he admitted he didn’t. But he didn’t tell her that he misrepresented to the judge that he had the officers’ consent. Cole later listened to the audio recording of the court proceeding and told Spinazze she was concerned that he may have misled the court.

Spinazze claimed he made a mistake and that he relied on Johnson’s attorney’s account of the information, without noting he met with the attorney and the officer to watch the video. Bretzloff later met with Cole on another case. He informed Cole that Spinazze’s version of the events wasn’t accurate and told her that he voiced his objection when the defense attorney suggested reducing the charge.

Spinazze met with Cole and the city prosecutor, and acknowledged the misstatement to the judge. The law director placed Spinazze on unpaid leave, and Spinazze wrote an apology letter to Judge Bonfiglio. He reported the incident to the Office of Disciplinary Counsel.

Costs Incurred Pursuing Sentence Change
Cole sought to vacate Johnson’s plea to the reduce charge and requested that a special prosecutor handle the case. Johnson’s attorney withdrew from the case, and a public defender was assigned. An acting judge presided over the hearing and vacated the plea. Later Johnson pled no contest to a third-offense OVI. He was sentenced to jail and fined.

Based on Spinazze’s behavior, the disciplinary counsel charged Spinazze with violating several rules governing the conduct of Ohio attorneys. After a hearing, the board found Spinazze knowingly made a false statement to the court; engaged in conduct that was prejudicial to the administration of justice; and engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation. The board recommended the six-month suspension.

Attorney Objects to Board Claims
Spinazze concedes that the disciplinary counsel and the board correctly characterize the events of the matter, but that part of the reasoning for the actual suspension was that Spinazze didn’t take full responsibility for his misconduct. He maintains the record of the disciplinary hearing contains several references to him acknowledging wrongdoing and accepting responsibility for his actions.

Based on his self-disclosure of the rule violations, his cooperation with the investigation, his acknowledgement of wrongdoing and expressing remorse for his action, and other factors, Spinazze maintains he deserves a fully stayed suspension.

Disciplinary Counsel Supports Suspension
The disciplinary counsel maintains that Spinazze overstates the weight given to the board’s conclusion that he didn’t accept responsibility for his actions, and that the six-month suspension is warranted based on his behavior. The disciplinary counsel wrote that as an assistant prosecutor, Spinazze made 10 different misrepresentations when offering an “ill-advised” sentence reduction, including six to a judge. He also attempted to “cover his tracks” by falsifying his case notes and making three more misrepresentations to his supervisor, the disciplinary counsel adds.

The disciplinary counsel notes the prosecutor’s office had to apologize to the municipal court for Spinazze’s actions and the city incurred additional expenses to vacate the reduced charge and pursue the OVI conviction. That misconduct warrants an actual suspension, the disciplinary counsel concludes.

Dan Trevas

(Mike Frisch)

January 6, 2020 in Bar Discipline & Process | Permalink | Comments (2)

Crimes May Draw Disbarment

A bar discipline oral argument before the Ohio Supreme Court Tuesday

Columbus Bar Association v. Javier H. Armengau, Case No. 2019-0500
Franklin County

Javier Armengau objects to the disbarment proposed by the Ohio Board of Professional Conduct based on his criminal convictions. In July 2014, a Franklin County jury found Armengau guilty of rape, kidnapping, public indecency, two counts of gross sexual battery, and four counts of sexual imposition.

Attorney Loses Appeal, Sent to Prison
Following Armengau’s convictions, the Columbus Bar Association filed a disciplinary complaint against him in December 2014. The Supreme Court Rules for the Government of the Bar of Ohio mandates that the Board of Professional Conduct defer pending disciplinary hearings based on criminal convictions until all direct appeals have concluded.

In June 2017, the Tenth District Court of Appeals issued a decision in Armengau’s appeal. The court affirmed in part, reversed in part, and sent the case back to the trial court for resentencing. The Ohio Supreme Court declined to review Armengau’s appeal of the ruling.

At resentencing, Armengau received a 13-year prison sentence, was designated a Tier 1 sex offender, and will be subject to five years of postrelease control when released from prison.

Disciplinary Process Moves Forward
In July 2018, the board returned Armengau’s disciplinary case to the docket because his direct appeal of his conviction was done. In August, the board agreed to hold a hearing for Count 1 and a separate hearing on Counts 2 through 14. This case is based on Count 1, which involves Armengau’s convictions for eight felonies and one misdemeanor. (The other counts allege professional misconduct not directly related to the convictions.)

The board’s report notes that criminal convictions upheld on direct appeal are conclusive proof in a disciplinary proceeding. Armengau wanted to assert in the disciplinary proceedings that he is innocent, but the board states that it doesn’t have the authority or jurisdiction to address factual and legal issues resolved by his direct appeal.

The board found that, based on his convictions, Armengau violated the attorney conduct rule prohibiting an illegal act that reflects on the lawyer’s honesty or trustworthiness. The board also found two violations of the rule against conduct that adversely reflects on the lawyer’s fitness to practice law.

Board Reviews Aggravating and Mitigating Factors
The bar association pointed out to the board that Armengau’s victims were employees, clients, and client family members. Describing the record as “uniquely sparse,” the board panel that heard the disciplinary case turned to the Tenth District’s decision for additional facts to understand the nature of Armengau’s relationships with each of his victims. In one situation, Armengau was convicted of the rape and kidnapping of a woman who first had been a client, then an employee.

The board identified several aggravating circumstances, including the vulnerability of and harm to two victims who were Armengau’s clients. The board panel declined to accept as aggravating two factors the bar association suggested – that Armengau has refused to acknowledge the wrongful nature of his conduct and that he made false statements. The board report stated that it “decline[d] to strip [Armengau] of his belief in his innocence and his right to stand on that belief in this proceeding without adverse impact.”

As mitigating factors, the board noted four “credible and sincere” witnesses who testified positively about Armengau’s character, diligence, and dedication; Armengau’s actions toward making restitution to certain former clients; and the 13-year prison sentence he is serving as a penalty for his actions. However, the board stated it must “hold supreme” the established convictions.

The board recommends that the Court disbar Armengau from the practice of law in Ohio.

Attorney Cites Other Pending Appeals, Insists on His Innocence
Armengau maintains that he was convicted of crimes he didn’t commit and crimes for which he wasn’t indicted, based on claims about which county the crimes took place. He argues that his disciplinary hearing should’ve been delayed while his other appeals are pending. The board panel had the authority to do so to ensure a fair result, he asserts. He also believes that one of his pending appeals is a direct appeal, which required a stay of his disciplinary hearing.

He contests the panel’s decision to bar him from presenting evidence at the hearing about the nature and character of the offenses for which he was convicted – which is an aspect of one of the rule violations. Yet the board relied on the Tenth District’s opinion for specific facts, he notes. He argues doing so denied him a fair hearing because the court’s opinion isn’t proper evidence.

On the recommended sanction, the lawyer’s brief states: “[D]isbarment, if accepted, will forever preclude Mr. Armengau from reobtaining his law license should this Court or another court conclude that he was innocent of the charges. Because the future is unknown, an indefinite suspension would be a more appropriate sanction. This would allow Mr. Armengau the opportunity to request reinstatement of his law license in the event his convictions are overturned.”

Columbus Bar Rejects Procedural Claims
The bar association maintains that Armengau’s ongoing appeals aren’t direct appeals, which would mandate a stay of the disciplinary case. The association also stresses that the panel had the discretion, but wasn’t required, to grant a continuance of the hearing and was permitted to move forward with the proceedings once the direct appeals were exhausted.

It was clear that Armengau wanted to introduce evidence that he was wrongly convicted, but Supreme Court rules and precedent prohibit lawyers from attacking their convictions in a disciplinary hearing, the bar association states. It notes that the Tenth District’s decision is public record and that it’s not unusual for the Court to rely on court decisions about a lawyer’s convictions for information.

Given the “heinous” nature of Armengau’s crimes – rape, kidnapping, and sexual battery – Armengau shouldn’t be permitted to practice law in Ohio any longer, the bar association concludes.

Kathleen Maloney

(Mike Frisch)

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

Friday, January 3, 2020

The $4 Million Whopper: An "Exceedingly Poor Choice"

The Illinois Review Board recommends a three-year suspension of an attorney for Burger King - related misconduct

The Administrator brought a two-count complaint against Respondent charging him with misconduct arising out of his participation in a purported deal to purchase Burger King franchises and related property. The deal, in reality, was part of an FBI sting, which culminated in Respondent's arrest and eventual entry into a deferred prosecution agreement. Because of his role in the purported deal, Respondent was charged with assisting a client in conduct the lawyer knows is fraudulent, in violation of Rule 1.2(d); making statements of material fact or law to a third person which the lawyer knows are false, in violation of Rule 4.1(a); failing to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, in violation of Rule 4.1(b); committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer, in violation of Rule 8.4(b); and engaging in dishonesty, in violation of Rule 8.4(c).

Following a hearing at which Respondent was represented by counsel, the Hearing Board found that he had committed the charged misconduct, and recommended that he be disbarred.

The review board favors a lesser sanction

The Hearing Board's report sets out all of the facts underlying this matter. This report focuses only on the facts that are relevant to the issues on appeal.

Around 2012, Respondent became friends with Joseph Vaccaro, a business manager for athletes. In 2014, the FBI learned from an informant, Billy Crafton, that Vaccaro had an interest in possibly defrauding clients in financial transactions. The FBI set up an investigation in which Crafton recorded conversations and meetings with Vaccaro in order to gather evidence of potential crimes. Vaccaro introduced Respondent to Crafton and asked Respondent to look at a deal that Vaccaro and Crafton were discussing, involving the purchase of 13 Burger King restaurants in Virginia. Thereafter, Respondent participated in conversations and meetings that Crafton recorded.

FBI agent Mark Pennebaker, in an undercover role as a financial advisor to a potential investor in the Burger King deal, also spoke with Respondent once on the phone, and attended one meeting with Respondent, Crafton, Vaccaro, and another undercover FBI agent. Those conversations also were recorded.

The crux of the deal was that the putative investors would put up $20 million to purchase 13 Burger King franchises in Virginia, the actual cost of which was $16 million. Respondent, Vaccaro, and Crafton planned to split the $4 million that the investors would unwittingly pay above and beyond the actual cost, as well as secretly own 50 percent of the restaurants without having to expend funds to purchase their share.

While his contentions on the merits were rejected

We believe that the mitigating and aggravating factors present in this matter, combined with Respondent's serious misconduct, support a lengthy suspension but not disbarment. Respondent was convicted of misprision of a felony. The Hearing Board found that he actively participated in the attempted fraud of athletes that would have resulted in potentially millions of dollars in harm to victims.

In mitigation, Respondent has no prior discipline, cooperated in his disciplinary proceedings, presented character evidence, and engaged in charitable activities. In aggravation, the Hearing Board found that Respondent did not acknowledge his misconduct, take responsibility for it, or express remorse, but rather portrayed himself as a victim and blamed others for entrapping him. It found that Respondent's participation in the scheme was not a simple failure of judgment but rather that he engaged in a calculated course of conduct for his own personal financial gain. It found it especially troubling that Respondent used his position as an attorney to perpetuate the fraud and lend credibility to the transaction. It also found that the risk of loss was great, amounting to hundreds of thousands of dollars to each investor. We defer to its findings, which were based upon its observation of Respondent at hearing and other evidence in the record.

Nonetheless, we believe that relevant authority supports a suspension of three years, rather than the disbarment recommended by the Hearing Board. Respondent is, of course, culpable for his exceedingly poor choice to engage in a fraudulent scheme, and should receive a sanction commensurate with his actions. However, it is clear from the record that Vaccaro was the principal architect of the fraudulent scheme and the initial target of the investigation, and that, after he was contacted by the FBI's informant, Vaccaro brought Respondent into the scheme to help implement it. See, e.g., Goulding, 91 CH 208 (Review Bd.), at 15-16 (distinguishing the case from those in which attorneys were disbarred by noting that respondent was not the architect of the scheme to deprive the federal government of tax revenue; rather, the government initiated idea of tax evasion through its sting operation and respondent participated by suggesting the means to accomplish the undercover agent's expressed desires).

In addition, while we do not consider it mitigating that the fraud was not effectuated, see In re Segall, 117 Ill. 2d 1, 8, 509 N.E.2d 988 (1987) (an attempted deception is as serious as a successful one), it is undeniable that no clients or third parties were actually harmed, because the "deal" was part of an FBI sting and thus the fraud never would have been accomplished. Cf. Rice, 95 CH 210 (law firm actually paid out $155,000 because of respondent's false billing); Mallick, 2014PR00175 (respondent's actions enabled misbranded, non-FDA-approved drugs that violated federally mandated strict temperature controls to be distributed to customers); Glennon, 2009PR00137 (respondent's misconduct deprived government of bond funds, and $700,000 of those improperly obtained bond funds went to respondent); Broyles, 2010PR00035 (visa-seeking immigrants lived in substandard conditions, were not given the jobs that had been promised to them, and were exploited financially because of the fraud that respondent helped perpetuate); Schmieder, 92 SH 323 (respondent's actions caused loss of $60,000 to insurance company).

These two distinguishing factors, combined with the mitigation in this matter, lead us to conclude that a three-year suspension is commensurate with Respondent's misconduct, consistent with discipline that has been imposed for comparable misconduct, and sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct.

(Mike Frisch)

January 3, 2020 in Bar Discipline & Process | Permalink | Comments (0)

CLE Suspension Unauthorized Practice Draws Proposed 60-Day Suspension

A 60-day suspension has been proposed by an Illinois Hearing Board for an attorney's practice while suspended for failure to comply with post-admission CLE obligations for new lawyers. 

Illinois requires attorneys to obtain minimum continuing legal education (MCLE) credits and report completion of those credits to the MCLE Board of the Supreme Court. Attorneys must complete the credits and report compliance within certain time limits. The MCLE Board oversees and manages the MCLE program. S.Ct. Rs. 792, 793, 794, 796.

Specific requirements apply during the first year after an attorney's admission to practice. Newly-admitted attorneys must complete fifteen hours of MCLE credit. For most newly-admitted attorneys, including Respondent, those credits must include a Basic Skills Course, which covers professional responsibility topics and provides at least six hours approved for professional responsibility credit. S.Ct. R. 793.

Respondent was licensed to practice law in Illinois in November 2015. (Tr. 157-58). Therefore, Respondent had to complete his MCLE credits by November 30, 2016 and report completion by December 31, 2016. (Adm. Ans. at pars. 3, 4).

Respondent did not do either.  Consequently, on January 6, 2017, the MCLE Board sent Respondent a notice of noncompliance. That notice informed Respondent that he had until March 2, 2017 to complete the required MCLE credits, report completion to the Board and pay a $250 late fee, or his name would be referred to the ARDC for removal from the master roll. (Tr. 103-106; Adm. Ex. 3). The master roll is a list maintained by the ARDC of all attorneys admitted and authorized to practice law in Illinois. (Tr. 141).

As of March 2, 2017, Respondent had not reported compliance. Therefore, on March 3, 2017, the MCLE Board notified the ARDC that Respondent had not complied with MCLE requirements. At that time also, although he had called the Board, Respondent had not paid the late fee or requested a waiver in writing, as is required. (Tr. 66-68, 108-109, 146, 153).

On March 16, 2017, the ARDC Registrar's office sent Respondent a notice of impending removal, stating that Respondent would be removed from the master roll if he did not bring himself into compliance by April 14, 2017. (Tr. 146, 153).

As of April 19, 2017, Respondent had not reported compliance to the MCLE Board, and he was removed from the master roll. (Tr. 147-49; Adm. Ex. 11 at 2).

Respondent was employed as an Assistant McLean County State's Attorney from July 5, 2016 through November 29, 2017. (Tr. 158). Between April 19, 2017 and November 21, 2017, Respondent routinely appeared in court on behalf of the State and was responsible for about 300 cases at a time. He practiced law during that time. (Tr. 169-71).

The hearing board describes the various notices and communications between respondent and the MCLE officials.

Respondent identified stress, resulting from two situations, as a factor contributing to his failure to meet the December 31, 2016 reporting deadline. Respondent's wife was pregnant with twins who faced serious potential health problems. After the children were born, in June 2017, they remained in neonatal intensive care for six weeks. Respondent also described unwelcome sexual advances from a co-worker, extending through November 22, 2017, about which Respondent later initiated legal action against his former employer. (Tr. 178, 213-14, 216-18, 225, 268; Resp. Exs. 1 - 6).

McLean County Assistant Public Defender Jon McEldowney and Bishop Jason Heiner testified favorably about Respondent's character and reputation. Assistant Peoria County State's Attorney Shashi Vishwanath also testified, describing a brief acquaintance with Respondent.

Sanction

Respondent continued to practice for seven months after he was removed from the master roll. Over that time, Respondent appeared in court regularly and handled hundreds of cases. The time during which the conduct continued and the number of matters handled are relevant in determining the sanction. See In re Boudreau, 2018PR00089, M.R. 29780 (May 21, 2019).

In imposing discipline, the system seeks, in part, to maintain the integrity of the profession and safeguard the administration of justice from reproach. Edmonds, 2014 IL 117696 at par. 90. We are particularly mindful of these concerns here, given the nature of Respondent's employment. The fact that an Assistant State's Attorney would practice law while not authorized to do so, especially over time, carries a particular risk of diminishing the public's perception of the integrity of the legal system.

The attorney's state of mind is relevant to the sanction. In re Thomas, 2012 IL 113035, par. 77. According to Respondent, he believed he had complied with MCLE requirements, adequately reported compliance and did not know he had been removed. Respondent also suggested he was misled by an MCLE Board employee into believing he was in compliance.

These circumstances could have been mitigating, and might have diminished the significance of the extent of Respondent's unauthorized practice, if we had found Respondent's position credible. We did not. Our observations of Respondent's demeanor, as well as other evidence which we did find credible, contributed to our assessment of Respondent's credibility.

The Supreme Court Rules clearly specify the MCLE requirements for newly-admitted admitted attorneys, the proper method for reporting compliance and the consequences of failing to comply. S.Ct. Rs. 793, 796. Prior to the deadline, the MCLE Board sent Respondent notice of the requirements for newly-admitted attorneys, requirements with which Respondent was required to comply, regardless of whether or not he received that notice. S.Ct. R. 796(a) (2)...

We do not want to unduly penalize Respondent, particularly early in his career. On the other hand, we found it imperative to recommend a sanction which will impress upon

Respondent the seriousness of his misconduct and the importance of fully complying with his duties as an attorney.

For these reasons, we recommend that Respondent...be suspended for sixty days.

(Mike Frisch)

January 3, 2020 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 2, 2020

2020 Starts With Hopeful Sign In D.C.

The District of Columbia Court of Appeals gets the New Year off with a good start by adopting a recommendation for negotiated discipline

In this disciplinary matter, the Ad Hoc Hearing Committee (the Committee) recommends approval of a petition for negotiated attorney discipline. See D.C. Bar R. XI, § 12.1(c). The petition is based on Respondent’s voluntary acknowledgement that she engaged in commingling of funds and failed to maintain complete records of entrusted funds, in violation of D.C. Rules of Professional Conduct 1.15(a). Disciplinary Counsel stipulated that it could not prove Respondent engaged in misappropriation of entrusted funds or that any client or third party was prejudiced or harmed by Respondent’s handling of entrusted funds and failure to maintain complete records of those funds. The proposed discipline is a public censure with conditions.

Having reviewed the Committee’s recommendation in accordance with our procedures in uncontested disciplinary cases, see D.C. Bar R. XI, § 12.1(d), we agree that this case is appropriate for negotiated discipline and that the proposed disposition is not unduly lenient or inconsistent with dispositions imposed for comparable professional misconduct.

The conditions

(1) Respondent shall take three hours of pre-approved continuing legal education related to the maintenance of trust accounts, record keeping, and/or safekeeping client property, and shall certify and provide proof that she met this requirement to the Office of Disciplinary Counsel within six months from the date of this opinion; (2) Respondent shall execute a waiver allowing Dan Mills, Manager of the Practice Management Advisory Service of the District of Columbia Bar and/or the assigned practice monitor to communicate directly with Disciplinary Counsel regarding her compliance; and (3) Respondent shall remain in full compliance with the practice monitor’s requirements for a period of twelve consecutive months, sign an acknowledgment that she is in compliance with these requirements, and file the acknowledgment with Disciplinary Counsel no later than two years after the date of this opinion.

Note that this case was opened for investigation in early 2018. Disciplinary Docket No. 2018-D007 means it was the seventh case opened for investigation that year. 

A two-year trip from soup to nuts in a disciplinary matter involving trust accounts is lightning speed. It was possible because of the agreed disposition.

Still way too slow. (Mike Frisch)

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

Wednesday, January 1, 2020

A Potentially Interesting Oral Argument

A seemingly endless saga may be nearing its culmination before the District of Columbia Court of Appeals in a January 9 oral argument

No. 18-BG-0586 IN RE: ROY L. PEARSON, JR., BOARD DOCKET NO. 15- BD-031, BAR REGISTRATION NO. 955948

Joseph Charles Perry, Esquire
Roy L. Pearson, Jr., Pro Se

For those whose memories have faded, this is the bar discipline case that started with a promise of "satisfaction guaranteed" to clean a pair of pants. 

Our earlier post

Whatever the merits or ultimate resolution, this ugly fact remains undeniable.

Bar Docket No. 2007-D149

To the uninitiated, this means that the bar began its investigation in early to mid 2007. 

Two years of the delay is legitimate as the matter was still in litigation as noted by a hearing committee

This disciplinary proceeding arises out of litigation that Respondent conducted on his own behalf in the Superior Court for the District of Columbia between June 2005 and August 2007 and in the District of Columbia Court of Appeals between August 2007 and March 2009.

Disciplinary Counsel generally defers formal proceedings until related civil litigation is concluded. 

The next 10 years is less justifiable, particularly for a case premised almost exclusively on findings in that litigation.

The Board on Professional Responsibility

Respondent complains that the seven-year delay between Disciplinary Counsel beginning its investigation and the date of the filing of the Specification of Charges deprived him of due process, and that the further delay in the Hearing Committee’s issuance of its Report and Recommendation warrants a dismissal of the charges.

We agree with the Hearing Committee that Respondent failed to establish that he was prejudiced by delay preceding the Specification of Charges. HC Rpt. at 39- 40. Accordingly, we deny Respondent’s Motion to Dismiss.

The board has recommended a 90-day suspension. 

Our post on the hearing committee report is linked here. 

The division of the court consists of Associate Judges Fisher and Easterly; and Senior Judge Steadman

We will update on the oral argument. (Mike Frisch)

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