Monday, November 11, 2019
The Indiana Supreme Court entered judgment in favor of the accused attorney in a bar discipline matter.
The hearing officer concluded the Commission failed to meet its burden of proving that Respondent committed any professional misconduct, and the Commission has not filed a petition for review.
We have never previously shared a story from Kokomo Perspective
It may be more than a month before the disciplinary complaint leveled at former Howard County Prosecutor James Fleming is resolved, but statistics show the fact the complaint made its way before a special hearing officer is unusual in and of itself.
Last month a hearing convened in the Howard County Courthouse to hear the case relating to multiple alleged violations of professional conduct by Fleming. Those allegations involved what the Indiana Supreme Court Disciplinary Commission believed to be illegal witness payments and inducements Fleming made to the star witness in multiple trials in 2010, which related to a gang-related murder. The hearing concluded with the hearing officer, Robert Reiling Jr., telling the state, “I don’t think you’ve made a case.” Whatever the final findings of the state high court, the case, statistically, is already something of an anomaly.
Each year the Indiana Supreme Court compiles statistics relating to disciplinary complaints filed against judges and attorneys alike. The most recent batch of these statistics, which detail how many complaints are filed, how many are dismissed, and how many result in various actions by the Supreme Court, show that most of those complaints are dismissed summarily.
According to the court’s 2017-2018 annual report, 1,411 were complaints were submitted to the disciplinary commission in the 2017 through 2018 reporting period. Those complaints fuel the primary mission of the commission, which is responsible for investigating attorney misconduct and prosecuting lawyer discipline proceedings. Most of this work, however, is started via complaints submitted to the commission. As noted in the most recent report, the agency is “primarily reactive.”
Of those 1,411 complaints, 90 percent, or 1,267 complaints, were dismissed summarily with “no valid issue of misconduct” being present.
In total, 144 of the remaining complaints resulted in investigations by the commission, as was the case with the complaint filed against Fleming.
The 144 complaints that resulted in investigations were further whittled down, with 75 being dismissed once the commission had investigated them. Of those, 13 resulted in warning or cautionary letters being sent out, and another 42 were “sent back” for not relating to a commission matter or for having no attorney listed or ineligible. Others are referred to other states or even referred to local bar associations for further actions.
By the time the commission went through its investigation process for complaints submitted during the last reporting period, only 25 of the 1,411 complaints resulted in charges being filed by the commission. Verified complaints, when filed with the Indiana Supreme Court, function like probable cause affidavits filed in criminal cases. They allege the wrongdoing and apply it to violations of the Indiana Rules of Professional Conduct.
The case against Fleming is counted among that small percentage of verified complaints. Just 1.77 percent of all complaints filed to the disciplinary commission amount to the filing of verified complaints.
These complaints either result in an arrangement, or plea, between the commission and the attorney in question or can go as far as a hearing before an Indiana Supreme Court-appointed hearing officer, as Fleming’s did.
During those hearings, a hearing officer submits his findings to the Supreme Court, and then the judges on that court make a final finding. If the allegations are found to be credible, the Supreme Court can dole out suspensions, probationary periods, or even disbarment.
In Fleming’s case, the state requested the ability to submit a written argument but asked for a transcript of the hearing’s proceedings. Once that transcript is completed and delivered, the commission has 30 days to submit its closing argument.
Sunday, November 10, 2019
A recent oral argument summarized on the web page of the Tennessee Supreme Court
Thursday, October 3, 2019
James A. Dunlap, Jr. v. Tennessee Board of Professional Responsibility – M2018-01919-SC-R3-BP
Mr. Dunlap, a licensed attorney in the state of Georgia, was granted pro hac vice status to represent his client, a health care company, in its efforts to establish opiate treatment centers in Tennessee. This matter was referred to the Board of Professional Responsibility after Administrative Law Judge Kim Summers (“the ALJ”) revoked Mr. Dunlap’s permission to appear pro hac vice in Tennessee. The hearing panel of the Board determined that Mr. Dunlap violated his duty of candor and engaged in conduct involving dishonesty when he intentionally misled the ALJ by misrepresenting the status of his client’s federal case. Further, the hearing panel determined that Mr. Dunlap attempted to improperly influence the ALJ by threatening to sue the ALJ in federal court for not complying with his requests. Finally, the hearing panel determined that Mr. Dunlap’s actions, which it described as “duplicitous and bullying,” were prejudicial to the administration of justice. As a result of its findings, the hearing panel suspended Mr. Dunlap from the practice of law in Tennessee for twelve months. On appeal, the chancery court affirmed the hearing panel’s determinations as to Mr. Dunlap’s ethical violations and the imposition of suspension as the appropriate disciplinary sanction. On appeal to the Supreme Court, Mr. Dunlap challenges the hearing panel’s factual findings underlying its determinations as to his ethical violations. Mr. Dunlap also contends that there was no material harm as a result of his actions, and, therefore, a one-year suspension is unfair and disproportionate to any purported violations of the Rules of Professional Conduct.
The Tennessee Court of Criminal Appeals affirmed a criminal conviction in rather unusual circumstances
The victim in this case, Mr. Jaramiah Hruska, was an attorney who had been implicated in prior sexual misconduct and arrested for patronizing prostitution. The State attempted to demonstrate that on October 8, 2015, the Defendant and his co-defendant, Ms. Britny Thompson, who were romantically involved, had schemed to place the victim in a sexually compromising position and then to rob and extort him in the hopes that his fear of professional reprisal would prevent him from reporting the crimes. The defense attempted to show that the Defendant was aware of the victim’s past misconduct, that by wielding the [baseball] bat, he was merely protecting the co-defendant from being coerced into sexual activity, and that he lacked the intent to deprive the victim of his property, which the victim offered up in an attempt to escape a jealous boyfriend.
The co-defendant was a client of the victim
The victim was appointed to represent the co-defendant in a criminal matter in 2011, and he subsequently represented the co-defendant’s then-boyfriend, Mr. Jacob Snyder, in a limited hearing on a furlough issue. The victim stated that he charged the co-defendant $100 for his work on Mr. Snyder’s case and that she never paid him but had suggested “that there were other ways to pay.” He asserted that he declined her offer and denied that he forgave the debt in exchange for sex.
The victim testified that he had not had sex with the co-defendant as payment for legal services for Mr. Snyder but that he confessed to doing so because the Defendant had hit him with the bat when he denied it. The Defendant threatened to accuse the victim of rape and report him to the BPR if he attempted to go to the authorities, and the victim ultimately agreed to give the Defendant several thousand dollars at a later date.
The defense sought to explore his past conduct and bar discipline
The trial court held a pretrial hearing on the State’s motion to exclude evidence of the Board of Professional Responsibility’s (“BPR”) investigation into the victim and to exclude the testimony of the victim’s former neighbor and the victim’s former client regarding the victim’s past sexual misconduct. Detective Bobby Anderson of the Cookeville Police Department testified that in July 2015, he investigated allegations that the victim’s neighbor met the victim at his office, where he paid her for sex. The victim initially denied having paid for sex. He ultimately acknowledged that there was an understanding that his neighbor would have sex with him in exchange for money for her car payments. He denied that he represented her as an attorney, but the neighbor told the detective that the victim had given her legal advice.
While the trial court admitted evidence of the victim's past conduct
the court excluded evidence regarding the victim’s “prior prostitution activity” and the documents produced in the BPR investigation.
Prior to the introduction of any proof at trial, the trial court permitted the defense to make an offer of proof regarding the testimony of two witnesses who stated they had been exploited by the victim. The victim’s former client testified that the victim was appointed to be her attorney in 2012 or 2013. Despite the fact that he was her attorney and knew she was homosexual, the victim made sexual comments to her, and the victim’s former client told him she was in a long-term relationship. The victim’s former client later asked the victim if he could help her with money for her child as she reported to jail, and he offered to and ultimately did pay her for sex. She acknowledged she was taking a medication related to opiate addiction at the time of her testimony. The victim’s neighbor likewise testified that the victim paid her for sex after providing her legal assistance. She testified that the victim lived next to her in public housing and that he had offered her legal services if she should need them. He gave her free legal advice at one point regarding a custody issue. The victim then began to send her sexual text messages and to offer financial help at a time when she was struggling financially, and she performed a sex act for money at his law office. She testified that she felt the victim had taken advantage of her desperate circumstances and that she was still angry with him.
The court rejected the defendant's claims of error.
The Herald-Citizen reported on the victim's bar discipline in May 2018
The law license of Jaramiah Justin Hruska was suspended last month following a petition for discipline filed against him in November of 2016 alleging that he pleaded guilty "to the misdemeanor offense of patronizing prostitution for which he received judicial diversion, and for making inappropriate comments to the wife of one of his clients."
At the time of the suspension announcement, the BPR said Hruska would be prevented from practicing law for the first 30 days of the two-year suspension, and the remainder will be served on probation.
Friday, November 8, 2019
A finding of probable cause in a Maine Bar proceeding from Panel A of the Grievance Commission
The Panel incorporates herein by reference the parties’ exhibits in connection with this disciplinary proceeding, and highlights in its Finding of Probable Cause for Filing of an Information ("Finding of Probable Cause") two specific matters of importance:
- The Divorce Judgment in the matter of James M. Leonard v. Lorraine P. Leonard (BANGDC-FM-18-043) was entered by the court on April 5, 2018. Attorney Lunn represents via Board Exhibit #11 that he spent 7.3 hours working on his client’s behalf in connection with the divorce proceeding, earning a total of $1,095 (7.3 hours x $150/hour). By this calculation, Attorney Lunn was obligated to timely refund to his client $1,905, which was the balance of the $3,000 retainer. Attorney Lunn testified during the telephonic disciplinary hearing on September 20, 2019, that he failed to timely return to his client the balance of the retainer on account of Attorney Lunn feeling "nickel and dimed" having reduced his hourly fee from $200/hour to $150/hour at the outset of the representation; and "annoyed" and "angry" with his client for how his client spoke to him and/or treated him during the course of the representation. Attorney Lunn returned $2,500 of the retainer to his client on January 30, 2019, upon being ordered to do so by the Fee Arbitration Panel of the Fee Arbitration Commission ("Fee Panel"), approximately 9 months after the court entered the Divorce Judgment.
- The exhibits Attorney Lunn prepared and submitted in response to GCF No. 18-137 support a conclusion that Attorney Lunn and the public would benefit from ongoing oversight and supervision after his period of suspension concludes. Specifically, Attorney Lunn’s office filing, documentation, and organizational systems; attention to administrative detail; methods of communicating to the court and clients; and systems for recording time spent in connection with legal services he renders and billing clients for the same needs substantial improvement (see, e.g. Board Exhibit #9, paragraph 4; Respondent’s Answer, paragraph 24; Board Exhibits #11, #12).
Therefore, after inquiry of the parties, the Panel accepts the agreement of the parties and concludes that the appropriate disposition of this case is a finding of probable cause for suspension, and directs Bar Counsel to prepare and file an information with the Clerk of the Law Court pursuant to M. Bar R. 13(e)(10)(E)
The order of interim suspension in the Gordon Caplan matter from the New York Appellate Division for the First Judicial Department
On May 21, 2019, respondent was convicted, upon his plea of guilty, in the United States District Court for the District of Massachusetts, of conspiracy to commit mail fraud and honest services mail fraud in violation of 18 USC § 1349 (see 18 USC §§ 1341 and 1346), a felony. On October 3, 2019, respondent was sentenced to one month in prison, one year of supervised release, 250 hours of community service and ordered to pay a fine of $50,000.
Respondent's conviction stemmed from his involvement in the widely publicized college admissions bribery and cheating scandal centered on college admissions consultant William "Rick" Singer who helped parents bribe coaches and test administrators so their children had a better chance of getting into prominent schools.
Specifically, in or about 2018, respondent agreed to pay Singer $75,000 (via wire transfer and the mail) to participate in the college entrance exam cheating scheme. To accomplish this, he flew to Los Angeles, with his daughter, to meet with a psychologist recommended by Singer to obtain medical documentation required to receive extended time on the ACT exam for which she received approval; and he changed his daughter's testing location to a test center in West Hollywood, California so that Singer's associates could proctor her exam, correct her answers to obtain the desired score, and mail the corrected exam to the ACT grading center in Iowa. This resulted in his daughter receiving a score of 32 out of a possible 36 on her corrected exam...
The crime of which respondent has been convicted is deemed a "serious crime." Accordingly, the Committee's motion should be granted, and respondent is immediately suspended from the practice of law pursuant to Judiciary Law § 90(4)(f) and 22 NYCRR 1240.12(c)(2)(ii), and directed to show cause before a referee appointed by this Court, pursuant [*3]to Judiciary Law § 90(4)(g) and 22 NYCRR 1240.12(c)(2)(i), (iii), and (iv), who shall thereupon hold a hearing within 90 days of respondent's release from prison, why a final order of censure, suspension or disbarment should not be made.
Dan Trevas reports on a bar discipline matter from the Ohio Supreme Court
The Ohio Supreme Court today suspended a Pittsburgh attorney licensed to practice law in Ohio who admitted to falsifying evidence in connection with a complaint lodged by a former client.
In a unanimous per curiam opinion, the Supreme Court suspended Samir G. Hadeed for one year with six months stayed on condition that he refund his former client $4,750 and not commit any further professional misconduct.
Lawyer Accepts Fee for Criminal Matter
Hadeed agreed to represent Shaundale Brown in a criminal matter in Lorain County in 2015 for a $15,000 flat fee. Brown paid $9,500 of it. Hadeed did not advise Brown that if he did not complete the representation, Brown might be entitled to a refund of all or a portion of the fee.
Hadeed later withdrew from the case and failed to refund any of Brown’s fee. Brown filed a grievance against Hadeed with the Lorain County Bar Association.
While the bar association was investigating the matter, Hadeed produced a copy of a purported engagement letter he provided to Brown. The letter complied with the attorney conduct rule requiring a lawyer accepting a flat fee to notify the client in writing that the client may be entitled to a refund if the lawyer does not complete the representation. Hadeed later admitted he fabricated the letter after being notified of the disciplinary investigation.
Letters of Support Garnered without Full Disclosure
As part of Hadeed’s response to the bar association’s investigation of the grievance, Hadeed submitted 28 “letters of support” from various individuals, including lawyers and judges. Hadeed told investigators the authors were aware of the circumstances that led to his disciplinary matter, but he later acknowledged that some of the authors were not aware of the grievance or the purpose for which he intended to use the letters.
In 2018, the bar association filed a complaint with the Board of Professional Conduct, charging Hadeed with violating several rules governing the conduct of lawyers practicing in Ohio. The parties stipulated to some of the misconduct, including that Hadeed knowingly made a false statement in connection with a disciplinary matter when he gave the bar association the fabricated letter.
The Court agreed with the board’s recommendation to suspend Hadeed for one year, with six months stayed, and directed him to refund half the fee Brown paid — $4,750 — within the next 60 days.
The Nevada Supreme Court has reinstated an attorney after a suspension for the following
This court previously suspended Pengilly for six months and one day for violating RPC 8.4(d) (misconduct) when, during a deposition, he "used vulgarities, called the deponent derogatory names, aggressively interrupted the deponent and opposing counsel, answered questions for the deponent, . . . repeatedly made inappropriate statements on the record," and "displayed a firearm he had holstered on his hip to the deponent and opposing counsel." In re Discipline of Pengilly, Docket No. 74316 (Order of Suspension, Sept. 7, 2018). Pengilly filed his petition for reinstatement on March 25, 2019, after his suspension ended. Following a hearing, the panel unanimously recommended that he be reinstated to the practice of law.
Based on our de novo review, we agree with the panel's conclusion that Pengilly has satisfied his burden of proof in seeking reinstatement.
The case is IN THE MATTER OF REINSTATEMENT OF JAMES W. PENGILLY, BAR NO. 6085. (Mike Frisch)
An Illinois Hearing Board recommends disbarment of an attorney
According to the admitted allegations, Respondent engaged in dishonesty by: 1) using a client's credit card to make personal and business purchases in the amount of $1,708.68 without the knowledge or authority of the client, and 2) falsely telling the client that it was Respondent's brother who had used the client's credit card. (Counts I, II). In addition, Respondent knowingly made false statements of material fact to the ARDC during the disciplinary investigation and knowingly failed to comply with a subpoena to appear and provide a sworn statement to the ARDC. (Counts III, IV).
In aggravation, Respondent's misconduct was not an isolated incident, he failed to fully cooperate during the disciplinary investigation, he did not participate in this disciplinary proceeding, and he has not made restitution. Based upon Respondent's overall conduct, there is a serious question as to whether he is able or willing to practice law in an ethical manner.
The Panel considered in mitigation that Respondent has not been previously disciplined, but this factor alone does not warrant recommending a different sanction.
A disbarment from the Louisiana Supreme Court in a representation of a slip-and-fall plaintiff
In September 2015, respondent was hired to represent Beverly Bailey in a claim for injuries she sustained following a slip and fall accident at a Walmart store. Shortly thereafter, respondent sent Mrs. Bailey to Capitol Spine and Rehabilitation Clinic (“the clinic”) for treatment. He also gave her an $800 loan.
The client retained new counsel when she was unable to contact him.
The new attorney learned the case had been settled.
Over the next two years, Mrs. Bailey had difficulty communicating with respondent regarding her case. In November 2017, Mrs. Bailey sought assistance from attorney John McKay. Mr. McKay contacted the Walmart claims department and learned that the case had settled in June 2016 for $16,000. Upon receiving a copy of the check from Walmart, Mr. McKay noted that the check was made payable to “Beverly Baily & Leroy Baily, indiv & as husb & wife & the Law Offices of Michael T Bell LLC.”1
However, Mr. and Mrs. Bailey were not aware of the settlement, and neither of them signed the check or received any settlement proceeds therefrom.
Respondent’s conduct meets virtually all the criteria for disbarment. As noted by the hearing committee, respondent acted with a dishonest and selfish motive. He settled Mrs. Bailey’s case without her authorization, charged interest on money that he loaned to her, and then retained settlement funds that belonged to her. Clearly, respondent did not act in a manner consistent with his client’s interest. In addition, the certified document examiner expert determined that the signatures on the back of the settlement check were not those of Mr. or Mrs. Bailey. Finally, the duration of the deprivation of funds has been extensive, as respondent still has not made restitution to Mrs. Bailey or to the chiropractor who treated her. Considering that respondent has also failed to cooperate with the ODC in its investigation, we agree that disbarment is the appropriate sanction in this case.
Thursday, November 7, 2019
The Florida Supreme Court rejected a proposed dismissal and remanded a bar case for further proceedings
We disapprove the referee’s findings of fact and recommendation that Schwartz did not violate any Bar rules in his use of two defense exhibits during a pretrial deposition, and we remand to a newly appointed referee for further proceedings consistent with this opinion. We also disapprove the referee’s order that the parties bear their own costs.
The underlying criminal case
The exhibits at issue included two photocopied versions of black and white police photo lineups in which the victim had originally signed her name and identified the defendant by circling both the defendant’s photograph and the designation below it of subject number five. The exhibits also included the signature of the police officer who conducted the photo lineup. The disciplinary issue here centers on the fact that Schwartz altered the photo lineup by replacing his client’s image in one exhibit with the image of an alternate suspect whom witnesses other than the victim had identified as the perpetrator and by changing the client’s image in the other exhibit by imposing the alternate subject’s hairstyle on the client’s image. Although the images in the exhibits were altered in this manner, they nonetheless retained the circle around subject number five and the signatures of the victim and police officer below the photographs.
The alleged violation
Bar Rule 4-8.4(c): Bar Rule 4-8.4(c) provides in pertinent part that “[a] lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” To sustain a violation of that rule, “the Bar must prove intent.” Fla. Bar v. Brown, 905 So. 2d 76, 81 (Fla. 2005). The element of intent can be satisfied, however, “merely by showing that the conduct was deliberate or knowing.” Id. Therefore, the motive underlying the lawyer’s conduct is not determinative; instead the issue is whether he or she purposefully acted.
As to motive
notwithstanding the referee’s credibility findings and her finding that Schwartz did not subjectively intend to deceive the witness, this finding does not address the undisputed fact that Schwartz knowingly and deliberately created the defense exhibits by altering photocopies of the police lineups and showing them to the victim at the deposition. Those exhibits included the victim’s circle of subject number five and the victim’s and detective’s signatures, along with a photograph of the so-called alternate subject replacing the
defendant’s image, and a photograph altering the defendant’s image by imposing the alternate subject’s hairstyle.
While the referee repeatedly stated that Schwartz’s use of the defense created exhibits was either not contrary to, or was consistent with, honesty and justice, the exhibits themselves establish the opposite. In light of the discussion pertaining to Bar Rule 4-8.4(c), we disapprove the referee’s recommendation that Schwartz did not violate Bar Rule 3-4.3.
Tuesday, November 5, 2019
The California State Bar Court Review Department tripled a proposed sanction and increased the proposed discipline from 30 to 90 days
In 2014, David Leon Speckman filed a fraudulent insurance claim for a commercial property he owned in Nevada, and he was prosecuted the following year by the Nevada Office of the Attorney General. He ultimately pleaded nolo contendere to a misdemeanor conviction for disorderly conduct. Later, Speckman made misleading statements to the State Bar of Nevada (Nevada Bar) in its attorney disciplinary investigation of the criminal matter. The hearing judge found that the facts and circumstances surrounding his conviction in Nevada involved moral turpitude, concluding that his "overall misconduct demonstrates a disregard for honesty." She recommended discipline that included an actual suspension of 30 days.
The Office of Chief Trial Counsel of the State Bar (OCTC) appeals, asserting that Speckman’s misconduct warrants at least six months of actual suspension. It also asks that we find more acts of moral turpitude or, alternatively, aggravation for bad faith, lack of candor, or dishonesty, along with additional weight for aggravation and less weight for the mitigation found by the hearing judge. Speckman does not appeal. In his responsive brief on review, he states that he "accepts the hearing judge’s factual findings and conclusions of law" that his conviction involved moral turpitude, and asserts that greater discipline is not warranted.
After independently reviewing the record (Cal. Rules of Court, rule 9.12), we reject OCTC’s challenges and agree with the hearing judge’s findings of fact and conclusions of law, while making minor modifications to her mitigation and aggravation factors. However, given the seriousness of the misconduct, we recommend an actual suspension of 90 days to protect the public, the courts, and the legal profession.
The insurance claim
Speckman, who resides in California, owned a commercial building in Las Vegas, Nevada, which he leased to a baseball academy owned by Andrew Concepcion. The building was equipped with three 20-ton HVAC (heating, ventilation, and air conditioning) units located on the roof. In March 2011, thieves vandalized two units by removing copper from them. Speckman submitted an insurance claim and paid for repair of the units. In May 2013, the same two units were again vandalized. Speckman submitted another insurance claim, but it was not approved until February 2014. Because that insurance claim had not been approved by the end of 2013, the two units remained unrepaired and only one 20-ton unit was functioning...
During its investigation, Travelers interviewed the insurance broker who obtained the Colony policy and Concepcion, who informed the investigator that the date of loss was December 31, 2013. On June 23, 2014, Travelers denied the claim, finding that the loss occurred outside the policy period.
A Michigan hearing panel found cause to delay a proceedings and order an interim suspension
Prior to the scheduled hearing in this matter, respondent advised both the Attorney Discipline Board and counsel for the Grievance Administrator that she would be unable to appear for the October 23, 2019 hearing for the reason that she was reporting to jail in Washtenaw County on October 21, 2019.
In accordance with MCR 9.115(H)(2), the hearing panel determined that respondent's reason for her inability to appear warranted an interim suspension from the practice of law until further order of the panel. The panel issued an order of interim suspension of respondent's license, effective October 24, 2019.
The Ohio Supreme Court has declined to admit an applicant as told by Dan Trevas
An aspiring lawyer from Findlay will be allowed to see the results of the bar exam she took 28 years ago, but has lost her latest request for admission to the practice of law, the Ohio Supreme Court ruled today.
A divided Supreme Court found Gillian K. Holzhauser-Graber failed to prove she possesses the “character, fitness, and moral qualifications” to be admitted to the Ohio bar. The Court’s per curiam opinion stated that Holzhauser-Graber has engaged in “multiple instances of dishonest conduct during legal proceedings, including in at least four previous attempts to seek admission to the Ohio bar.”
Holzhauser-Graber graduated from law school in 1988 and was initially permitted to take the 1989 bar exam, which she failed. She took the exam again in 1991, but after questions about her past actions in legal proceedings were raised, the Court sealed her exam results. Today the Court unsealed the results of Holzhauser-
Justices Judith L. French and Michael P. Donnelly joined the per curiam opinion.
Chief Justice Maureen O’Connor and Justice Melody J. Stewart concurred in part and dissented in part without a written opinion, but stated they would not unseal or release the 1991 bar exam.
Justices R. Patrick DeWine and Patrick F. Fischer concurred in part and dissented in part, without a written opinion, but stated they would not allow Holzhauser-Graber to reapply for admission to practice law.
Justice Sharon L. Kennedy concurred in part and dissented in part with a written opinion, stating the Holzhauser-Graber should not be allowed to learn the results of her bar exam until she demonstrates that she has met the character and fitness requirements to be admitted to practice.
Applicant’s Truthfulness Questioned
Holzhauser-Graber first applied to register as a candidate for admission to the Ohio bar in 1988. The Board of Commissioners on Character and Fitness received allegations that in two 1984 probate cases, Holzhauser-Graber had engaged in improper activities regarding the assets of her deceased mentor. While the allegations were unsubstantiated, the board found Holzhauser-Graber lied about the probate cases while under oath during her bar admission hearing. Based on the hearing, the board recommended Holzhauser-Graber not be allowed to take the 1989 bar exam. However, the Supreme Court allowed her to take exam, but ordered the results sealed until the February 1991 bar exam results were released.
Holzhauser-Graber was ordered to supplement information about her character and fitness to practice law before the 1991 results were revealed. The board approved her character and fitness in January 1991. The results of the February 1991 bar exam were released in May, and Holzhauser-Graber learned she failed the exam. Because her character and fitness had been approved, she applied and received permission to take the July 1991 exam.
After taking the July test, but before the results were released, the Findlay/Hancock County Bar Association informed the board that Holzhauser-Graber had committed perjury during the civil trial of a case that she filed against Blanchard Valley Hospital. Based on the allegation, her 1991 bar results were sealed, pending further review of her qualifications to practice law.
The board concluded that she did perjure herself during the trial, and the Court agreed with the board’s recommendation that she not be permitted to reapply for admission for two years and that the results of her 1991 exam remain sealed until the board approved of her character and fitness.
Multiple Applications for Admission Rejected
Since 1991, Holzhauser-Graber’s requests for admission have been denied several times as questions about her conduct in legal matters and the accuracy of her responses to the board were questioned.
Today the Court ruled on Holzhauser-Graber’s August 2016 application. In 2017, the Findlay/Hancock County Bar Association’s admissions committee recommended that the board reject her application and permanently bar her from reapplying. The board determined Holzhauser-Graber continued to have “great difficulty providing complete and truthful answers” during the character-and-fitness proceedings.
The board recommended that the Court not permit her to seek admission, but release the results of her July 1991 bar exam.
Holzhauser-Graber objected to the board’s recommendation, arguing she is qualified to be admitted to practice law pending her passage of the bar exam, and that if the Court rejects this application, she should be allowed to reapply.
Court Considers Case History
The Court’s lead opinion explained that Holzhauser-Graber must prove by clear and convincing evidence that she meets the qualifications to be admitted. Her conduct must justify that she can gain “the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them,” the opinion stated, noting that a deficiency of “honesty, trustworthiness, diligence, or reliability” may lead to denial.
While Holzhauser-Graber presented evidence from a clinical psychologist and other witnesses that characterized her as reliable and truthful, the Court found it was not enough to overcome her lack of candor during the admission proceedings. The Court noted that in this application she failed to completely disclose her past involvement in litigation and gave less-than-candid explanations of her application history.
The Court made no final determination on whether Holzhauser-Graber will be permanently barred from reapplying.
Applicant Has Not Earned Right to See Exam Results, Dissent Stated
In her opinion dissenting in part, Justice Kennedy wrote that Holzhauser-Graber has done nothing since her results were sealed in 1991 to earn the right to see them. She stated that the lead opinion can be read as “telegraphing the hope that the results will reveal” Holzhauser-Graber failed the 1991 bar exam and that her decades of “on-again, off-again attempts” to prove her character and fitness will come to an end.
The dissent stated that those applying to be lawyers must first demonstrate they have the character and fitness to practice law before being allowed to take the bar exam, and it follows that only those applicants who have demonstrated that they have the character and fitness to practice law can see their exam results.
Justice Kennedy noted that the Court reiterated in a 1996 review of Holzhauser-Graber’s case that “the applicant’s results from the July 1991 Ohio bar examination remain sealed until such time as she is approved as to her character, fitness, and moral qualifications for admission to the practice of law.” Justice Kennedy wrote that Holzhauser-Graber has yet to meet the requirements the Court imposed, and that unsealing the 1991 results now “weakens this court’s rules, lowers the standard of behavior for bar applicants, and disregards this court’s prior orders.”
“The guiding light in discipline and admissions cases is our precedent, and this court will have to explain away the result in this case in cases to come,” Justice Kennedy concluded.
From the dissent
the majority rewards Holzhauser-Graber for her consistent and persistent mendacity. Although she has failed time and again in receiving approval of her character and fitness for purposes of being able to practice law in Ohio, she still gets to peek at her bar-examination results to spare this court and the committee another unnecessary character and fitness evaluation if it turns out that she failed the 1991 bar examination (assuming she does not reapply for the bar examination). It may seem like a practical solution, but at what cost? Holzhauser-Graber has done nothing since this court sealed her results from the 1991 bar examination to merit an unsealing. By breaking that seal, the majority weakens this court’s rules, lowers the standard of behavior for bar applicants, and disregards this court’s prior orders. The guiding light in discipline and admissions cases is our precedent, and this court will have to explain away the result in this case in cases to come.
Monday, November 4, 2019
An interim suspension has been ordered by the Oklahoma Supreme Court as a result of a criminal conviction
The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), has forwarded to this Court certified copies of the Information and Judgment and Sentence on a plea of guilty, in the matter of State of Oklahoma v. Julia Marie Ezell, CF-2018-3403, in Oklahoma County. On October 16, 2019, Julia Marie Ezell pled guilty to misdemeanor counts of 1) Use of a Computer to Violate Oklahoma Statutes in violation of 21 O.S.2011, § 1958, and 2) False Reports of a Crime in violation of 21 O.S.2011, § 589. On October 16, 2019, the Court entered a 5 year deferred sentence on the first misdemeanor count, with restitution of $21,810 paid in full upfront, and a 5 year deferred sentence on the second misdemeanor count, with both counts to run concurrently until October 15, 2024.
The Norman Transcript reported
A top attorney overseeing the state’s new medical marijuana regulations made up claims that she was being threatened, according to a criminal complaint filed Tuesday.
Authorities allege Julia Marie Ezell, 37, of Edmond, admitted she created an email account called “MaryJame” and sent herself a series of threatening messages before and after a critical board vote that set the regulatory framework for medical marijuana, according to the criminal complaint filed in Oklahoma County.
One email titled “marijuana laws,” warned that people could show up in force to stop it if the government thought it could take away rights and erase laws, according to the complaint.
“We will stop you and you’re (sic) greed,” an email read. “Any way it takes to end your evil and protect what is ours. We will watch you.”
In another, the sender noted: “We would hate to hurt a pretty lady.”
Ezell was charged Tuesday with two felonies and a misdemeanor for allegedly threatening herself, falsely reporting a crime and creating false evidence.
Ezell resigned Friday as Oklahoma State Department of Health’s general counsel, according to her resignation letter made public Tuesday by the state agency.
Her two-sentence letter made no reference to the criminal probe, but ended with “I am so sorry.”
A Health Department spokeswoman said the department had no comment on Ezell’s resignation or the criminal charges.
The criminal complaint did not say why Ezell allegedly sent herself the emails, but noted investigators were able to trace the messages back to Ezell. She told investigators she acted alone and no one else knew she had written the emails, according to the complaint.
Ezell’s attorney Edward Blau did not immediately return a call seeking comment.
Ezell was one of the Health Department officials tasked with drafting the regulatory framework for the fledgling medical marijuana industry, and presented the public synopsis of the regulations at the July 10 meeting.
She also warned the Board of Health, which is supervising implementation, against adopting a ban on the sale of smokable forms of the drug and adding a requirement that pharmacists work at dispensaries. The board adopted the restrictive and controversial changes anyway.
Two lawsuits have already been filed over the rules.
Ezell’s resignation is just the latest in a series of issues facing the beleaguered Health Department, which is now on its fourth director since October.
The agency has faced allegations it mismanaged millions in taxpayer dollars and unnecessarily laid off hundreds of employees.
A grand jury probe ultimately determined the mismanaged funds stemmed from a lack of clear accounting processes, but the Legislature still gave the agency $30 million in unnecessary, emergency funding.
She is required to show cause
in writing why a final order of discipline should not be imposed, to request a hearing, or to file a brief and any evidence tending to mitigate the severity of discipline. The OBA has until January 6, 2020, to respond.
An attorney admitted in 1967 has been disbarred by the Georgia Supreme Court for misconduct in a post-divorce matter
The facts as admitted by virtue of Farmer’s default are as follows. Farmer, who was admitted to practice in 1967, was retained in 2008 by a client (hereinafter, “Wife”) to pursue a malpractice action against the attorney who had handled her 2006 divorce. The crux of the claim was that the divorce attorney’s negligence had resulted in a shortfall of approximately $50,000 from the division of marital property. In 2010, after Wife’s ex-husband (hereinafter, “Husband”) had been joined as a defendant in the litigation, Farmer refused Husband’s settlement offer for the full $50,000 and threatened to make the case “expensive and painful” unless he paid $150,000. Husband ultimately acceded to the demand.
In 2011, Husband filed a petition in Coweta Superior Court to modify the parties’ child custody arrangement, and Wife again retained Farmer. Throughout his representation in the custody litigation, Farmer employed litigation tactics that he himself referred to as “Conflictineering,” the purpose of which was to disrupt the judicial process to the point that either the court or the opposing party would simply capitulate for the sake of restoring order. In furtherance of this strategy, Farmer filed repeated frivolous motions and pursued baseless appeals, ultimately yielding more than 500 filings in the case, and routinely made ad hominem attacks against parties, the trial judge and court staff, and participants who took positions contrary to those of his client. See, e.g., Murphy v. Murphy, 328 Ga. App. 767, 773-774 (759 SE2d 909) (2014) (imposing frivolous appeal penalties on Farmer and his client).
In one emblematic episode, Farmer counseled Wife to refuse to participate in the custody evaluation and, in direct violation of an express court order, discussed substantive issues involved in the custody litigation with the parties’ children. He then willfully refused to appear at the resulting contempt hearing, after which both he and Wife were held in contempt.
He threatened witnesses and
In addition, purporting to act on Wife’s behalf, Farmer filed suit against the trial judge’s court reporter – against whom he had also filed a professional grievance – and the Board of Court Reporting, which had rejected said professional grievance. After the trial court dismissed the suit on summary judgment, Farmer appealed and, after submitting filings accusing the trial judge of bias and corruption, was subjected to frivolous appeal sanctions.
On this record, we have little difficulty concluding that disbarment is the appropriate sanction in this matter.
Sunday, November 3, 2019
The Kentucky Supreme Court ordered a three-year suspension retroactive to the date of his interim suspension
On October 10, 2017, Mark Wickersham, while intoxicated, picked up his minor son from school and fell asleep while driving his son on a local interstate highway. Wickersham’s son had to awaken him. The son then contacted his mother, who in turn contacted law enforcement.
The criminal case was resolved by a guilty-plea agreement in Madison Circuit Court on March 8, 2018, providing for pretrial diversion for a period of three years. By operation of SCR 3.166, Wickersham’s license to practice law was temporarily and automatically suspended upon entry of the guilty plea...
Since the alcohol-related incidents in October 2017, Wickersham has reportedly been in, and remains in, active substance-abuse recovery. He acknowledges that he has an alcohol-abuse problem and has accepted personal responsibility for his conduct that led to the criminal proceedings. Wickersham has also reportedly taken steps to address these problems, including in-patient counseling and treatment, which continues today.
He accepted the sanction
After reviewing the allegations, Wickersham’s previous disciplinary record, his willingness to cooperate with KYLAP and other treatment programs, his demonstrated dedication to continuing his sobriety, and the cases cited by the KBA, this Court concludes that the discipline proposed by Wickersham, and agreed-to by the KBA, is appropriate.
The period of suspension could be reduced
Wickersham is suspended from the practice of law for three years, retroactive from March 8, 2018, or until Wickersham has satisfied in full the terms and conditions of his pretrial diversion in the Madison Circuit Court criminal proceedings, whichever event first occurs.
There are severe potential consequences if he violates the dversion
In the event Wickersham violates the terms of his pretrial diversion, the Office of Bar Counsel may seek to revoke the disciplinary suspension imposed and may seek the permanent disbarment of Wickersham.
Friday, November 1, 2019
From the web page of the Idaho State Bar
On October 30, 2019, the Idaho Supreme Court issued a Disciplinary Order suspending Blackfoot attorney Kevin C. Peterson from the practice of law for six ( 6) months, with four ( 4) months of that suspension withheld. The Disciplinary Order provides that upon reinstatement, Mr. Peterson will be placed on probation for two ( 2) years.
The Idaho Supreme Court found that Mr. Peterson violated I.R.P. C. 8. 4( b) Commission of a criminal act that reflects adversely on a lawyer' s honesty, trustworthiness or fitness as a lawyer in other respects]. The Idaho Supreme Court' s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.
In March 2019, Mr. Peterson pleaded guilty to two ( 2) misdemeanor petit theft counts and one ( 1) misdemeanor count of public intoxication. The petit theft charge related to merchandise stolen from a motorsports store. The public intoxication case related to Mr. Peterson appearing in a public place while under the influence of five ( 5) prescribed medications which, because they caused Mr. Peterson to be confused and lethargic, satisfied the City code requirement that he endangered himself or others. In the criminal case, Mr. Peterson paid a fine, restitution and was sentenced to a two ( 2) year supervised probation.
Following reinstatement, Mr. Peterson will serve a two ( 2) year probation upon the terms of probation specified in the Disciplinary Order. Those terms include compliance with his criminal probation, continued treatment and counseling, and that he will serve the withheld suspension if he violates any of those conditions or if he admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any professional conduct during the period of probation.
East Idaho News.com reported
According to court documents, authorities received a report from the owner of Elmer’s Import’s that she had seen surveillance video of a man take several items, place them in his coat and down his pants then walk out of the store without paying.
The man reentered the store and took several more items without paying.
Investigators reviewed the video and reportedly identified Peterson as the man who took the items.
He allegedly took Lucas Oil worth $9.29, Battery RCB9 L-B worth $17.60, Activa Socks worth $9.95 and Special Effect Graphics Stickers $18.36.
Authorities later identified Peterson’s vehicle at the Bingham County Courthouse. Looking inside the vehicle’s windows, they saw a battery box and a Lucas Oil container matching the stolen items, according to documents.
When investigators questioned Peterson about the items, he admitted to taking them.
He said he hadn’t planned on taking the battery and oil, but decided to while he was waiting for the store clerk to locate an item he had asked for.
He said he took the other two items “for the thrill of it,” when he reentered the store after taking the first two.
He said he didn’t open any of the items.
According to documents, Peterson said this wasn’t the first time he’d stolen items. He said he’d already made amends with the owner of the store he’d stolen from before.
Peterson explained he’d been struggling with depression and impulse control. He said medications were also a part of his struggles.
While conducting the interview, investigators reported they noticed Peterson’s speech was slow and he seemed confused or dazed.
They took a blood sample, and Peterson was taken into custody. Results of the blood test were not available in the court documents.
Wednesday, October 30, 2019
Mike Frisch has written insightfully, in blog posts and articles, about bar association (or bar discipline process) politics. Another colleague worth noting for his decades-long support of a state bar, who is reaping a bitter harvest, is my colleague Dane Ciolino (well, he teaches at Loyola nearby, but really he also visits regularly enough to teach ethics at Tulane that I hope he considers me a colleague). His recent post at his Louisiana ethics blog tells the tale of Dane, while representing a lawyer suing the bar, being so identified with the lawsuit that some in the bar organization shun him. And yet he does himself identify with the client in this case. Seems to me Dane makes a good case, especially since it's part of a position that prevailed in California courts a while ago. Consider reading his post: On Being Forced Into and Excluded from the Bar Association. (Alan Childress)
Unfortunately this post has a far-too-familiar feel about the organized bar and its lack of tolerance for dissenting views.
My experience representing a member of the D.C. Board on Professional Responsibility who was denied reappointment for the crime of committing truth by occasionally pointing out the challenged reasoning of her colleagues was a stark reminder of how bars operate.
Real dissents that articulate the public interest in fair bar regulation are like unicorns.
Some people believe in em; others require evidence.
For me, mandatory bar membership for any reason save regulation puts the lie to the old Groucho Marx joke about membership in an organization.
I sent the club a wire stating, "PLEASE ACCEPT MY RESIGNATION. I DON'T WANT TO BELONG TO ANY CLUB THAT WILL ACCEPT PEOPLE LIKE ME AS A MEMBER".
Telegram to the Friar's Club of Beverly Hills to which he belonged, as recounted in Groucho and Me (1959), p. 321
The Ohio Supreme Court (per Dan Trevas) has sanctioned two attorneys
The Ohio Supreme Court today disbarred one attorney and suspended another for engaging and assisting in the unauthorized practice of law.
In a per curiam opinion, the Supreme Court found Timothy R. Dougherty allowed Christopher T. Cicero to assist with Dougherty’s representation of clients while Cicero was under suspension. Cicero, of Columbus, who has been previously disciplined by the Court three times, was disbarred. Dougherty, now of Las Cruces, New Mexico, was suspended for two years, with one year stayed with conditions, including that he pay restitution totaling $6,050 to two former clients.
Justices Sharon L. Kennedy, Judith L. French, R. Patrick DeWine, Michael P. Donnelly, and Melody J. Stewart joined the majority opinion.
Chief Justice Maureen O’Connor and Justice Patrick F. Fischer dissented, stating they would not stay the second year of Dougherty’s suspension.
Lawyer Switches Practice Focus, Moves into Suspended Attorney’s Offices
Cicero was first suspended by the Court in 1997, then again in 2012 and 2014. He has remained under suspension since 2012. Dougherty primarily practiced civil law, mostly in the areas of contracts and healthcare, but decided to learn criminal law in late 2012. He met Cicero, who had a criminal-law background. Cicero was looking for an attorney to handle some of his cases during his suspension. Within months, Dougherty moved into the building that served as Cicero’s law office for more than 20 years.
The Office of Disciplinary Counsel charged the two attorneys of violating several rules governing the conduct of Ohio lawyers, mostly around Dougherty’s reliance on Cicero to assist in the handling of criminal cases without disclosing to the clients or potential clients that Cicero was under suspension. The Board of Professional Conduct agreed with most of the charges that related to five client matters.
Clients Register Complaints
One of allegations against the pair was brought by Nick Kean, who retained Dougherty in 2016 to represent him in a murder case. Cicero helped Dougherty prepare Kean’s defense. During the trial, Dougherty and Cicero exchanged text messages about the trial’s progress. Kean stated he was never informed in writing that Cicero was suspended.
In 2017, David Kasser met with Dougherty and Cicero to discuss Kasser’s pending criminal case. Kasser proposed a potential defense theory. Dougherty persuaded a skeptical Cicero to represent Kasser and pursue the theory, and Kasser claimed Cicero quoted him a $6,000 flat fee for the representation. Kasser also stated that neither lawyer notified him that Cicero was suspended.
About 11 months into the case, Dougherty sought to withdraw as Kasser’s lawyer. The professional conduct board found that Dougherty divulged confidential information and potentially attorney-client privileged communications and “cast his client in a poor light,” when asking the court for permission to withdraw. Kasser requested a refund and Dougherty refused.
Later, Dougherty admitted he failed to complete the representation and the board found he violated the rules against revealing confidential client information without permission and not promptly refunding unearned fees when withdrawing from the case. The board concluded that Dougherty owed Kasser $3,200.
One Attorney Objected to Proposed Suspension
The board found Cicero disobeyed prior suspension orders and continued to practice law while under suspension. The board also found he engaged in deceitful conduct regarding the status of his license, and violated other rules. Cicero did not object to his disbarment.
Dougherty argued that the witnesses against him “lacked credibility,” and that he should be disciplined for only failing to maintain a client trust account.
The Court majority stated that the record contains ample evidence to support the board’s finding that Daugherty assisted Cicero in the unauthorized practice of law, engaged in other misconduct, and owes restitution to Kasser and another former client.
The board wrote Dougherty has a “substandard” understanding of the professional conduct rules and recommended that he be required to pass the Multistate Professional Responsibility Exam as a condition of reinstatement.
“We agree with the board that Dougherty needs time away from the practice of law to learn or relearn the Rules of Professional Conduct and to incorporate the appropriate procedures into his practice,” the opinion stated.
The Court imposed several conditions that Dougherty has to meet to stay the second year of his suspension and return to practice. He must provide proof within 60 days that he paid restitution to his clients, not commit any further misconduct, and pay half the cost of the disciplinary proceedings. To be reinstated, Dougherty must pass the professional responsibility exam, and upon reinstatement, he must serve two years of monitored probation.
The Court concluded that Cicero has “proven time and time again,” that he cannot act as an ethical attorney.
“Considering Cicero’s history of misconduct, his flagrant disobedience of our prior suspension orders, the number of aggravating factors here, and the lack of any mitigating evidence, we conclude that he is not fit to practice law in Ohio. Disbarment is the only appropriate sanction,” the opinion stated.
Cicero also must pay for half of the disciplinary proceedings.
Tuesday, October 29, 2019
An Ad Hoc Hearing Committee of the District of Columbia Board on Professional Responsibility has issued an 129-page report in a matter involving three consolidated complaints.
This caught my eye
A hearing was held on June 15-18, 2015...
the Committee finds that Respondent violated Maryland Rules 3.3(a)(1), 3.4(c), 5.5(a), 5.5(b)(1), 8.4(c), and 8.4(d), and D.C. Rules 1.4(a), 1.4(b), 1.6(a)(1), 1.6(a)(2), and 1.6(a)(3), 5.5(a), and 7.1(a)(1), and should be suspended from the practice of law for a period of six months.
In re Deni-Antionette Julia Mazingo may be accessed here. (Mike Frisch)