Tuesday, December 11, 2018

Practice Pointer: Do Not Hit Send

A suspension of one year and until further court order has been imposed by the New York Appellate Division for the First Judicial Department

The first charge related to a decision and order entered February 11, 2010, in which the Hon. Shirley Kornreich sanctioned respondent $28,600 in attorneys' fees for frivolous litigation conduct as a pro se plaintiff in an action entitled Steinberg v Queens Import Motors, et al. (Supreme Court, New York County), and directed him to pay an additional $5,000 to the Lawyers' Fund for Client Protection for what the court characterized as "egregious" conduct. When an automobile at issue in that underlying litigation was sold at a sheriff's auction to satisfy the judgment for legal fees, respondent unsuccessfully challenged the sale as a fraudulent conveyance.

Unrelated charges

The two remaining charges pertained to a four-page ex parte email respondent sent to the Hon. Gerald Lebovits in an action entitled Washington v Manhattan Automobile Repair, et al. (New York City Civil Court, New York County). Respondent represented the defendants in that action pro bono, and wrote the email in response to Justice Lebovits's order and decision imposing contempt fines against respondent's client for failing to abide by a court order directing the defendant to return the plaintiff's vehicle to him. In the four-page long email (which he also mailed to Justice Lebovits's chambers), respondent stated, inter alia,

"[y]ou were irritated at the hearing because you thought you could short-circuit most argument in this case without examination of any of the underlying facts by simply ordering a car returned to its apparent owner. I had frustrated that intention by saying that the Plaintiff had been lying to the court and abusing process for so long (in an attempt to rehear the trial of this case) that the only person who knew the answer to your question of where it was, is lying in bed dying of cancer. With the greatest of respect, while you were entitled to be irritated at not having an answer to your question and not being able to dispose of the case easily, you had no jurisdiction to dispose of the case in a way contrary to the interests of one litigant where you had prevented the litigant from putting forth his case through counsel. Especially after explicitly threatening the party's counsel with prison in an order summarily punishing a contempt' you said was committed in the presence of the court'. Where the only ill was an inability to answer a question you had concerning how the Court could ensure that the Plaintiff's original swindle succeeded.

                                                               * * *

"That you did not find this inexcusable is an egregious failure for a duly appointed New York judge, - though your failure to do this may arise as a result of intentionally blinding yourself to the mass of evidence in this case so that you could find a (serial litigator of abuse of process actions) Plaintiff a credible witness.

                                                            * * *

"Indeed, my affidavit in this very motion, which clearly you had not thought to read demonstrated that the Plaintiff remains in denial about his fraud being uncovered.

                                                                   * * *

"Even in circumstances where you were intentionally blinding yourself to the facts because of your irritation at my client having terminal cancer, it can never be appropriate to prevent counsel putting forth his client's case in the best manner possible, so that those facts do not come to your attention. Especially where you cannot easily write a judgment on the contempt being alleged because the Plaintiff has brought a contempt motion asking for damages for indecipherable reasons' and did not know whether he was claiming damages (in response to your direct question) until it suited him to do so and still does not seem to know what his damages are or where the contempt is.

"I would respectfully suggest that these are not circumstances where based on that, you should write a judgment pretending that I have made allegations solely to discredit me! Such as the allegation that I had said that the Appellate Term was mistaken in not granting a stay.

* * *

"I would respectfully suggest that the only proper course should be for you to recuse yourself voluntarily and over the handling of the contempt hearing to another judge. I say that a hearing which has not allowed proper input by both parties because the judge has overstepped the mark' and threatened one side's counsel out of acting is not a properly conducted hearing; and any judge who has knowingly presided over such an improper hearing should consider no alternative course but to withdraw his judgment immediately."

Respondent did not file an answer specifically addressing the charges. Rather, he filed a motion to, among other things, transfer the matter to the Third Department. This Court denied the motion, granted the Committee's petition to the extent of deeming the charges admitted on default, and appointed a referee to conduct a hearing as to sanction only.

The AGC had sought a two-year suspension.

He must satisfy the sanctions order to secure reinstatement. (Mike Frisch)

December 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Sanctions California Attorney For Unauthorized Practice

The Ohio Supreme Court sanctioned a California attorney for unauthorized practice as reflected in this summary from Dan Trevas

The Ohio Supreme Court today fined a California lawyer and his firm $2,000 for representing an Ohioan in a debt collection case in the state without having a license to practice law in Ohio.

In a per curiam decision, the Supreme Court ruled that Michael J. Klosk and Klosk Law Firm Inc. informed an attorney for CitiFinancial that it represented an Ohio client and sought to negotiate a settlement of the debt owed the institution by the client. Neither Klosk nor anyone associated with his firm is licensed to practice law in Ohio.

Klosk minimally cooperated with Ohio authorities investigating his activities. However, he did indicate that he did not accept any Ohio clients since June 2011 and virtually ceased all activity in the state at that time.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, R. Patrick DeWine, and Mary DeGenaro joined the opinion. Justice R. Patrick DeWine concurred in judgment only.

Firm Engages in Debt Settlements

Klosk and his firm provide counseling and assistance to individuals seeking to reduce their consumer debt. Once retained, the firm contacts their clients’ creditors and attempts to negotiate reductions in outstanding debts.

In January 2010, an Ohio debtor granted Klosk power of attorney to communicate with creditors. Klosk communicated with the Ohio lawyer representing CitiFinancial, and in a letter to the institution indicated the Klosk Law Firm represented the debtor. Klosk also sent CitiFinancial’s lawyer a copy of the power of attorney form.

Bar Association Claims Rule Violation

The Ohio State Bar Association became of aware of Klosk’s activities and filed a complaint with the Board on the Unauthorized Practice of Law in November 2013. Klosk initially responded, admitting some of the conduct, but denied that it constituted the unauthorized practice of law. Klosk asked, and was granted, a delay in responding to the charges by the board.

In December 2015, the bar association served requests for admissions on Klosk and his firm.Nearly a year later, Klosk had not answered those requests, and the board deemed them admitted.  It later granted summary judgment to the bar association, finding Klosk violated the law.

Court Supports Sanction
The Court’s opinion stated that the unauthorized practice of law in Ohio includes both “rendering of legal services for another,” and holding out to the public that one represents oneself as authorized to practice law when the person is not admitted to practice in Ohio.

The Court stated that in prior decisions it has ruled that an individual who negotiates legal claims on behalf of another in Ohio without being admitted to the practice of law in this state is violating the law. It also noted that being granted a power of attorney is not a defense to the charge of the unauthorized practice of law.

The Court stated there is “no doubt” Klosk and the firm violated the Ohio law. Along with the fine, the Court granted an injunction that prevents Klosk and the firm from practicing in the state.

2018-0533. Ohio State Bar Assn. v. Klosk, Slip Opinion No. 2017-Ohio-4864.

(Mike Frisch)

December 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Question Of Authority

The California State Bar Court Review Department found that a charged attorney engaged in no ethical misconduct

Roger Sandberg Hanson, a criminal defense appellate attorney, is charged with two counts of misconduct in one client matter: appearing for a party without authority and engaging in moral turpitude for misrepresentations made during a disciplinary investigation.

The hearing judge found Hanson culpable of both charges and recommended that he be actually suspended for 90 days and placed on probation for two years. Hanson appeals the judge’s discipline recommendation, maintaining that he is not culpable as charged. The Office of Chief Trial Counsel of the State Bar (OCTC) does not appeal and asks this court to uphold the hearing judge’s recommendation.

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we find no clear and convincing evidence to support culpability as to the charged misconduct, and we further find that there appears from the facts to be no other alternative theory of culpability. The evidence fails to establish that Hanson appeared without authority or committed an act of moral turpitude. Accordingly, we dismiss this proceeding with prejudice.

The client's sister initially had retained attorney O'Connell

O’Connell hired Hanson to help him with the Avalos case, which he told Avalos’s sister in late August 2015. On August 29, 2015, Hanson called Avalos’s sister, who expressed her concerns regarding O’Connell’s services. Specifically, she complained that O’Connell had not adequately answered her questions and that he had not yet contacted her brother. At no point during this call did Avalos’s sister inform Hanson that the family wanted to terminate the representation.

 Hanson allegedly had filed a habeas petition without authority and was found culpable by the hearing judge

Although Avalos’s sister did communicate with Hanson about the case, no evidence beyond her own testimony established that she had the authority to act on Avalos’s behalf. Avalos was the client. When Hanson learned from O’Connell that Avalos’s sister was trying to terminate the representation, Hanson immediately called her to inform her that she did not have the authority to do so because only Avalos had the ability to confer such authority. (3 Witkin, Summary of Cal. Law (11th ed. 2017) Agency and Employment, § 144, pp. 197–199 [authority conferred on agent by words or acts of principal].) Hanson and O’Connell did not have notice from Avalos that he had given his free and intelligent consent for his sister to make decisions regarding his representation. O’Connell and Hanson had a duty to protect Avalos and his interests.

As to misrepresentation

We disagree with the hearing judge’s culpability determination. Although Hanson did talk to Avalos’s sister on September 1, 2015, as noted above, she did not have the authority to terminate the representation. The record clearly shows that at all times, Hanson believed that  only Avalos could terminate the representation, which he tried to make clear to Avalos’s sister. Without authority from Avalos, his sister could not terminate either O’Connell or Hanson.

(Mike Frisch)

December 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Calls Allegedly Violated Ethics Rules

The Ohio Disciplinary Counsel has charged three attorneys from Vorys, Sater, Seymour and Pease with violating Rules 4,2 (unauthorized communication with represented party) and 8.4(c)(misrepresentation)  in connection with the representation of a client in civil litigation.

The allegations relate to a matter in which the law firm represented Transtar Industries Inc. in a suit against Saverio Aviolo and his employer in connection with his leaving the plaintiff to join the competitor  employer Viper Transmission Parts LTD.

It is alleged that the junior attorney made telephone calls at the direction of the two more senior attorneys that violated the cited rules. (Mike Frisch)

December 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, December 10, 2018

At Seventeen

An Illinois Hearing Board recommends a 60-day suspension for a false statement

Summary

The Hearing Board found Respondent's motion to vacate his client's criminal conviction, which asserted as its basis that his client was 17 years old at the time of the plea and sentencing, was a frivolous pleading because his client was 18 years old and Respondent knew this. The Hearing Board also found Respondent's false statements regarding his client's age that were contained in the motion constituted knowingly false statements to both a tribunal and a third person. Respondent also made a false statement to a tribunal regarding his knowledge of his client's age at a status hearing on the motion to vacate. In mitigation, the Hearing Board considered Respondent's good character, bar association affiliations, noteworthy volunteer and pro bono work, and lack of prior discipline. Respondent's good intentions in seeking to vacate his client's conviction and lack of personal gain were also considered. Respondent's failure to appreciate the seriousness of his conduct and lack of remorse were considered in aggravation. The Hearing Board recommended Respondent be suspended for 60 days.

The story

On April 6, 2001, Courtney Chester was charged in Winnebago County with the misdemeanor offense of battery. At the time of the offense, Ms. Chester was 17 years of age. On June 13, 2001, Ms. Chester appeared in court and the judge continued her case to August 30, 2001, a date after her 18th birthday. Ms. Chester appeared in court on August 30, 2001. On this date, she pled guilty to the offense of battery and was sentenced. (Amend. Ans. at pars. 1-2, 4-5; Tr. 110-11; Adm. Ex. 2 at 2-17).

Around February 2017, Ms. Chester applied to the nursing program at Rasmussen College, but was denied admission due to her 2001 criminal conviction. On March 1, 2017, Respondent agreed to represent Ms. Chester. He stated he would file a motion to vacate the conviction and talk to the State's Attorney's Office on her behalf. They did not discuss the substance of the motion. At some point, Ms. Chester conveyed to Respondent that she was 18 years old when convicted. Ms. Chester provided Respondent with $750 in exchange for his representation. (Amend. Ans. at pars. 6-7; Tr. 22-24, 111, 168-69; Adm. Ex. 1 at 7-34; Jt. Stip. of Chester at pars. 1-2).

Thereafter, Respondent spoke with Winnebago County Assistant State's Attorney Joseph Lesner regarding whether he would consider agreeing to a motion to vacate his client's conviction. Mr. Lesner told him to file something and he would look into this matter. At no point in the conversation did Respondent tell Mr. Lesner that his client was 18 years old at the time of conviction or that the conviction could not be expunged. He also did not inform Mr. Lesner that he was going to misstate Ms. Chester's age in the motion. He, however, made him aware that an agreement with the State's Attorney's Office was the only avenue for relief. (Amend. Ans. at pars. 8-9; Tr. 25, 29, 49, 72-77, 169-71; Adm. Ex. 8 at 2-3).

On May 17, 2017, Respondent filed a motion to vacate Ms. Chester's 2001 guilty plea. In the motion, Respondent made the statement that "[Ms. Chester] was 17 years of age at the time of charging and sentencing." Respondent also asserted because "[Ms. Chester] was only 17 at the time of the plea and conviction[,] her plea and conviction should be properly voided." Respondent knew when he wrote, signed, and filed the motion that the foregoing statements were false, because he knew Ms. Chester was 18 years old when she pled guilty to battery and was sentenced. (Amend. Ans. at pars. 9-11; Tr. 24-29, 35, 73-75, 122-23, 211-13; Adm. Ex. 1 at 2-6; Adm. Ex. 2 at 16-21; Adm. Ex. 8 at 2-3; Jt. Stip. of Chester at par. 3).

Respondent described his use of false statements in the motion as "legal fiction." Mr. Lesner was unaware that the motion contained false statements. Respondent stated he never intended to deceive the Court or Mr. Lesner and that both of them had Ms. Chester's file available to them and could have researched any of the facts. According to Mr. Lesner, however, the file might not have been easy to locate given its age. (Amend. Ans. at pars. 10-11; Tr. 24-28, 42, 51-58, 61-69, 76-78, 84, 122-23, 192-95; Adm. Ex. 8 at 2-3).

(Mike Frisch)

December 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Further Sanction For Attorney First Admitted In 1956

An attorney who was disbarred in New York had that sanction reduced to no sanction at all  in New Jersey.

The court noted that no sanction was required so long as he does not seek readmission.

The attorney had been admitted in New York in 1956 and was disbarred in 2011.

From the report of the Disciplinary Review Board noting he had engaged in unauthorized practice and recommending a one-year suspension

respondent has the additional misconduct of gross neglect, conduct prejudicial to the administration of justice, and failure to cooperate with disciplinary authorities. His misconduct, especially the level of neglect displayed in Holmes- Williams’ matter, and his dramatic lack of cooperation, is exceptionally more egregious than the conduct of other attorneys guilty of similar violations

Mitigation

In mitigation, the OAE notes, respondent’s unblemished record in New Jersey during his forty-six years of practice, his [Navy] service, and his age (eighty-four at the time of his disbarment in New York)

His licensehad been revoked in New Jersey for failure to pay bar dues.  (Mike Frisch)

December 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Scam And Conviction Leads To Disbarment

The Georgia Supreme Court has disbarred a convicted attorney

The United States attorney's Office for the District of Arizona reported

On March 30 and 31, 2015, U.S. District Judge Neil V. Wake sentenced five defendants to prison for stealing more than $11 million through an elaborate advance-fee scam. Judge Wake sentenced Steven Thomas Brewer of Dallas, TX, to 15 years plus eight months of imprisonment; Joel Stephen Cutulle of Middleton, MA, to nine years of imprisonment; Kenny Ray Kirby of Corinth, TX, to five years of imprisonment; Debra Ann Nickolas of Stanbury Park, UT, and formerly of Scottsdale, Ariz., to five years of imprisonment; and David P. Rachel of Mableton, GA, to three years of imprisonment. Steven Brewer, Joel Cutulle, Kenny Kirby, and David Rachel were found guilty by a federal jury on Oct. 8, 2014, of charges including criminal conspiracy, wire fraud, and money laundering. Debra Nickolas pleaded guilty on Aug. 11, 2014, to conspiracy and tax evasion.

     Evidence at trial showed that the defendants stole more than $11 million by using fake companies-including Platinum Diversified Holdings (PDH) and HS&H Holdings-through which the defendants claimed they could secure loans for the victims’ business projects. At the time of the offense, Debra Nickolas lived in Scottsdale, Ariz., and two of the victims were from Arizona.

     In exchange for purportedly securing the loans, the defendants demanded refundable deposits, which were supposed to be held in an attorney’s escrow account until the loans funded. In reality, the attorneys, Kenny Kirby and David Rachel, were co-conspirators who transferred the victims’ money to themselves and their co-conspirators, often within days. The victims’ money was spent on cars, luxury vacations, interior design services, tickets to sporting events, and other personal items. The scheme continued for years, with the defendants concealing the fraud by providing the victims false bank documents and other assurances to convince them that funding was imminent. The defendants never funded any business loans and the victims never received any of their money back.

(Mike Frisch)

December 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Inexperience No Mitigation For Conversion

A twelve-month suspension has been imposed by the Georgia Supreme Court based on an attorney's voluntary petition for discipline

In her petition, Saunders explains the circumstances leading up to her misuse of the client funds. She explained that her boyfriend, with whom she shared an apartment, had an emotional downward spiral and failed to pay his portion of the expenses. Saunders, who had practiced on her own for less than a year, was unable to meet the couple’s shared financial obligations, her credit was destroyed, and her car was repossessed. Her boyfriend then became abusive, causing Saunders to leave the apartment with only the clothes on her back and to give up her office space so that he would be unable to find her. Then in 2015, Saunders obtained $26,283.50 in an arbitration proceeding on behalf of an
incarcerated client. She used the portion of the funds to which she was entitled as her fee to purchase a car, but the car broke down. Because Saunders was too embarrassed to seek help, she converted the client’s funds for her own personal use to recover from the financial challenges brought on by her former relationship.

In mitigation, Saunders states that the client has been repaid in full; she has no prior disciplinary history; she cooperated with the disciplinary process by submitting a detailed letter of her misconduct to the Investigative Panel member assigned to the case; her actions were due to extreme emotional distress stemming from domestic violence; she has undergone counseling to rebuild her self-esteem to avoid similar problems in the future; she otherwise has good character and reputation as shown by letters of support from the legal community; and she is remorseful.

The court rejected one mitigating factor

The State Bar also argues that there is an additional mitigating factor — Saunders’s inexperience in the practice of law. But inexperience in the practice of law is not mitigating; even a first-year law student should understand that conversion of client funds for personal use is impermissible. Cf. In the Matter of Jones, 293 Ga. 264, 267 (2) n.8 (744 SE2d 6) (2013) (“Whether a lawyer has been practicing for thirty years, or only for a few days, he ought to know that an attorney should not smuggle contraband to a client in jail. This is not the sort of case in which experience in the practice of law has any relevance to the misconduct.”).

(Mike Frisch)

December 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, December 8, 2018

Appeal Denied In Prosecution Of Former Bar Prosecutor

The Michigan Attorney Discipline Board declined to disturb a county panel disposition

On November 17,2014, the Grievance Administrator filed a request for investigation against respondent with the Michigan Supreme Court, pursuant to the provisions of MCR 9.131 (A), because respondent had been employed as an associate counsel with the Attorney Grievance Commission from approximately 1996 to 1998, and at the time, respondent's wife was employed as a secretary at the Commission.  On February 4,2015, the Court entered an order appointing volunteer legal counsel "to investigate this matter as outlined in MCR 9.131(A)(4) and to take further appropriate action pursuant to MCR 9.131(A)(4) through (6)." Approximately two years later, on March 20, 2017, volunteer counsel ("Special Counsel") filed a three-count formal complaint against respondent, pursuant to MCR 9.131 (A)(5) and (6).

At the hearing a technical violation of Rule 1.15 was found

Then, the parties gave arguments as to the appropriate level of discipline to impose. Special Counsel elicited testimony that respondent had no prior misconduct during his then 20-year career as an attorney. After some initial reluctance to suggest a level of discipline "without ... taking it before the [Attorney Grievance Commission]," Special Counsel recommended that the panel reprimand respondent and order him to attend the State Bar of Michigan's course on trust accounting. Respondent's counsel argued for an admonishment with the condition that respondent attend the trust accounting class.

...the panel found that respondent's actions were most closely described in the admonishment standard set forth in ABA Standard 4.14, as his conduct was "negligent at worst," and caused little or no actual or potential injury to a client. While recognizing that they could not admonish respondent, the panel found that the most appropriate sanction was to impose a condition that required respondent to attend a trust account seminar.

The Grievance Administrator appealed

On review, the Administrator argues that the level of discipline that the hearing panel imposed is insufficient for the misconduct found and that there is no basis under the rules and prior precedent for a hearing panel to issue an order of discipline that only imposes a condition.

The board

What must be kept in perspective here is that we are dealing with misconduct on the low end of the spectrum in terms of scienter, impact on clients or the system of justice, and reflection on the respondent's fitness to practice. A case could be made for a reprimand. A case could also be made for dismissal with a caution. And a case could be made for some things in between. Here, a very capable volunteer counsel may not have even considered the possibility of actions other than the filing of a formal complaint because of his unfamiliarity with the practices, policies, and unwritten precedents utilized by the AGC in disposing of the 3,000 or more overdraft notifications it had received between the effective date of MRPC 1.15A in 2010 and the time of the hearing in 2017.

Having given this panel the difficult task of sorting out what is appropriate in such a case, and having reviewed its excellent work, we are not inclined to reverse its decision to take an extra step to protect the public by requiring some continuing education for respondent rather than imposing no discipline or even a reprimand alone.

The panel report is attached to the board order. (Mike Frisch )

December 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 7, 2018

Sex With Client Day In Iowa Bar Discipline

The Iowa Supreme Court dealt with two sex with client matters today with the same 30-day suspension sanction.

From May 2017 through November 30, 2017, Jacobsma maintained an attorney–client relationship with Jane Doe, representing her in various legal matters. On October 1, 2017, Jacobsma began a sexual relationship with Doe. Jacobsma and Doe were not husband and wife at the time of the commencement of the sexual relationship.

On November 22, 2017, after Jacobsma’s two law partners confronted him, Jacobsma admitted to engaging in a sexual relationship with Doe. Jacobsma’s partners informed him that if he did not report his misconduct to the Board, they would file a complaint with the Board as required by Iowa Rule of Professional Conduct 32:8.3(a).

In an email dated November 30, 2017, Jacobsma reported to the Board, “I have violated the provisions of Iowa Rule of Professional Conduct 32:1.8(j) wherein I had a sexual relationship with a client of mine after the lawyer-client relationship was established.”

He stipulated to the misconduct

we find Jacobsma engaged in a sexual relationship with a client, the client was not Jacobsma’s spouse at the time of the sexual relationship, and the sexual relationship did not predate the attorney–client relationship. Consequently, we conclude Jacobsma’s conduct violated rule 32:1.8(j).

The court surveyed the sanctions for comparable conduct

Here, there are no allegations or evidence in the record of Jacobsma deliberately preying on his client’s vulnerable personal, mental, or financial state. See, e.g., Monroe, 784 N.W.2d at 791 (“[T]he situation presented by the facts of this case is less egregious than we have encountered with respect to other violations of rule 32.1:8(j)[, in part because] . . . Monroe’s conduct was not predatory . . . .”); cf., e.g., McGrath, 713 N.W.2d at 703 (“With their relationship with their children at stake and with no financial means, these clients were extremely vulnerable. Preying upon this vulnerability, [McGrath] manipulated these women . . . for his own sexual gratification.”). Nor is there any evidence that Jacobsma and Doe’s sexual relationship was of the “sex-for-fees” variety. Cf. Moothart, 860 N.W.2d at 616. And nothing in the record indicates the relationship was uninvited, unwanted, or harassing toward Doe. Cf. id.; Furlong, 625 N.W.2d at 712, 714.

Sanction

Upon consideration of all of these pertinent factors, we agree with the commission that a thirty-day suspension of Jacobsma’s Iowa law license is the appropriate sanction. We decline to adopt the commission’s recommendation that Jacobsma be required to continue mental health counseling until discharged by his therapist in writing.

Justice Wiggins 

I consider a consensual sexual relationship with a client as requiring a more serious sanction than the one imposed by the majority. We must make the sanction so it acts as a real deterrence, protects the public, and maintains the reputation of the bar.

Therefore, I would suspend Jacobsma’s license indefinitely with no possibility of reinstatement for three months. Before reinstatement, I would require him to obtain counseling and provide this court with a report showing that he is no longer at risk to engage in sexual relationships with a client. Finally, I would require him to file an application for reinstatement with this court.

A sexual relationship with a client is a serious matter. It is time we deal with it as such. We can no long slap the wrists of attorneys who violate rule 32:1.8(j).

Christensen, J., joins this dissent.

(Mike Frisch)

December 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

30 Day Suspension In Iowa For Sex With Client

The Iowa Supreme Court has suspended an attorney for 30 days for sex with a domestic relations client.

An Iowa attorney engaged in an intimate relationship with one of her clients whom she was representing in a marriage dissolution matter. The Iowa Supreme Court Attorney Disciplinary Board charged the attorney with a violation of Iowa Rule of Professional Conduct 32:1.8(j) (sexual relationship with a client). Though the attorney initially expressed her disbelief at the charge when the Board sent her a notice letter requiring her to respond to the alleged misconduct, she admitted her wrongdoing soon thereafter and fully cooperated with the Board.

The parties reached a factual stipulation, agreeing that the charged violation occurred. The grievance commission considered the matter without a hearing and concluded the attorney violated rule 32:1.8(j). The commission recommended the attorney’s license be suspended for thirty days. Upon our de novo review, we conclude that the attorney violated rule 32:1.8(j). We agree with the commission’s recommended sanction and suspend the attorney’s license to practice law for thirty days.

The initial response

“I am appalled at these  allegations, to say the least.”

Then

She admitted engaging in an intimate relationship with Doe but claimed the relationship occurred “at the appropriate time.”

After the Board commenced an investigation into the matter, Nine admitted that she had an intimate relationship with Doe in August 2011 that she later ended. Nine subsequently cooperated fully with the Board and commission. The investigation revealed that Doe did not suffer any financial harm because of the intimate relationship, nor did he claim any emotional or mental harm.

The court

Intimate relationships between an attorney and a client pose a number of issues given “[t]he relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence” and the unequal nature of the relationship. Id. Additionally, “such a relationship presents a significant danger that,
because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment.” Id. Though there are “many gray areas” in the professional responsibility realm, “sexual relationships between attorney and client is not one of these. Such conduct is clearly improper.” 

And noted that such relations are particularly problematic in domestic relations matter.

Finally, though we are sanctioning Nine’s misconduct now, we consider that it took place in 2011. At that time, our most recent attorney disciplinary case regarding a similar violation of rule 32:1.8(j) sanctioned an attorney to a thirty-day suspension of his license...

Attorneys engaging in sexual relationships with clients is becoming a recurring problem, and it is becoming clear from our disciplinary cases involving violations of rule 32:1.8(j) that “our thirty-day suspension is not deterring attorneys from engaging in sexual relationships with clients.” Jacobsma, ___ N.W.2d at ___ (Wiggins, J., dissenting). Sanctions in disciplinary cases serve many purposes, including deterrence. See Monroe, 784 N.W.2d at 790 (“It is important to deter other attorneys in similar circumstances from putting their own self-interest ahead of those of the client, the very antithesis of a lawyer’s professional duty.”). In the future, we may need to implement harsher sanctions to deter attorneys from engaging in sexual relationships with clients.

(Mike Frisch)

December 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Dissents: Opioid Crisis Merits Reconsideration Of Bar Sanction

The Louisiana Supreme Court -over two dissents - denied rehearing in a bar discipline matter. 

The court had imposed a year and a day suspension  with all but 90 days deferred last September. 

In this case, respondent, like a growing number of people in our country, developed an addiction to medications that were validly prescribed by his physician to relieve severe and chronic pain. As shown by the PWEC evaluation, he clearly requires long-term inpatient treatment to successfully address this unfortunate disease, but thus far he has been reluctant to agree to participate in such treatment. In order to fulfill our role of ensuring the public is protected, we conclude it is necessary to fashion a suspension which is responsive to respondent’s current misconduct and provides him with an adequate opportunity to address his substance abuse issues so he may safely practice law in the future.

Accordingly, we will suspend respondent from the practice of law for one year and one day. In view of the mitigating factors, we will defer all but ninety days of this suspension, subject to a two-year probationary period...

Justice Weimer authored one of the dissents

I would grant respondent’s application for rehearing and would order an evidentiary hearing, as indicated in the dissent with which I previously concurred.

The professional evaluation report of the respondent conducted pursuant to a prior order of this court noted: “Mr. Brown is articulate and presents with logical and goal directed thinking ... . His judgment and insight seems to be intact as well.” The report further notes he adopted five children and is a single parent. The respondent was involved in numerous automobile accidents, most of which were not his fault, and one of which was serious. There is no evidence he took illicit drugs. On verbal reasoning, he scored “VERY SUPERIOR,” attaining the 99th percentile rank. This test measures verbal reasoning, concept formation, and acquired knowledge from one’s environment–all of which are valuable in practicing law.

The report concludes: “Mr.Brown’s performance overall is not consistent with any substance induced cognitive decline or other learning or processing deficit.” This was corroborated by witnesses, who testified they never saw any impairment. There has been no allegation or any evidence that any client was ever harmed.

I realize the report also indicates respondent continues to be “deceptive.” The respondent should be afforded a hearing to confront that accusation, which he vigorously disputes.

It has become increasingly obvious that an alarming number of people are confronting issues related to medications that were validly prescribed to relieve pain. This situation has become so prevalent a phrase has been coined recently to describe this unfortunate circumstance: “The Opioid Crisis.”

Respectfully, I would therefore grant a rehearing.

Justice Crichton opined

Respondent has been a respected member of the Louisiana State Bar Association for over 35 years with no prior disciplinary record. However, in 2012, he violated R.S. 14:98 and ROPC Articles 8.4(a) and 8.4(b) by driving a vehicle while under the influence of prescription medication. Undoubtedly, he should receive discipline and, based on the record prior to oral arguments in the case, substance abuse counseling and monitoring.

Following oral arguments, however, he was ordered to undergo an “updated substance abuse evaluation” which, according to the written report, proved positive for opiate consumption. At the post-oral argument stage, he was not allowed the opportunity to confront and cross examine the lab technician as to the methodology involved in the testing and analysis or the opinions expressed within the Professionals’ Wellness Evaluation Center report. Moreover, he was not allowed the opportunity to provide testimony under oath but instead afforded only the opportunity “to file supplemental briefs addressing the report.” In this disciplinary proceeding, referenced by the U.S. Supreme Court as quasi-criminal, respondent is entitled to the procedural due process including an opportunity afforded for cross examination and defense.

Accordingly, for these reasons – and those set forth by Justice Weimer - I would grant rehearing, vacate the suspension, and remand this matter for an evidentiary hearing.

December 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment Vacated In Michigan

With unusually harsh words for the Grievance Administrator, the Michigan Attorney Discipline Board vacated a tri-county hearing panel's disbarment order and granted a hearing to the attorney on probation violations.

The road to near-disbarment started with this matter

This appeal involves a petition for order to show cause filed by the Grievance Administrator, seeking to increase respondent's 90-day suspension for failing to comply with his original discipline conditions. In the underlying matter, the parties submitted a stipulation for consent order of discipline on March 29, 2017. The stipulation contained respondent's admissions to a misdemeanor conviction for allowing an unlicensed driver to operate a motor vehicle, as well as to the factual statements and misconduct allegations set forth in the amended formal complaint. The parties agreed respondent's license to practice law would be suspended for 90 days and that he would be subject to various conditions.

A show cause was issued for alleged violation of the conditions

In respondent's answer to the petition for order to show cause, respondent explained his personal problems and absence from the state that prevented him from receiving his mail, including the letters sent by Ms. Burgess. Respondent stated that shortly after he executed the stipulation for consent order of discipline, he was evicted from his rental horne. He stayed with various friends, at inexpensive hotels, or in his van, but did not have a permanent mailing address. He had no job and no income, and asserted he was too embarrassed and humiliated to share the details of his situation with his family and friends. To make matters worse, his personal belongings that were being stored at a friend's rental space were sold because the rental fee on the storage unit was not being paid. In August of 2017, respondent's van broke down and he was unable to pay for the repairs, so he ultimately began living on the streets the majority of the time from August 18, 2017 until September 24,2017.

Then things got worse.

On September 23, 2017 his father died of a heart attack. He moved to Pennsylvania to deal with family matters.

His siblings gave him an advance on his estate distribution percentage so he could return to Michigan. In April of 2018, when respondent returned to Michigan, he received the petition for order to show cause and quickly responded. Respondent explained his absence, indicated he was extremely remorseful and laid out his plan for complying with the imposed conditions. Respondent also asked for additional time in which to comply. Meanwhile, respondent was in nearly constant contact with counsel for the Grievance Administrator, in order to provide updates on his progress.

In fact, between April 23, 2018 and June 5, 2018, respondent had contacted counsel for the Grievance Administrator, Cynthia Bullington, by email to provide updates at least eight times...

Despite the contact with the prosecutor

Respondent first argues that the hearing panel abused its discretion in denying respondent's motion for rehearing because the evidence supports respondent's claim that he did not have actual notice of the show cause hearing. We agree.

The communications are quoted at length.

On review, the Grievance Administrator asserts that the panel was not misled because it was told about one of respondent's emails - an email sent June 1,2018, the Friday before the hearing. Thus, the Administrator argues, the panel was aware of respondent's contact with the Attorney Grievance Commission. The hearing transcript, however, reveals that there was absolutely no attempt to inform the panel that counsel for the Grievance Administrator had been receiving constant updates from respondent. To the contrary, counsel went so far as to say she had "no idea" what prompted respondent's email, and that she "was very surprised" to have received it. (Tr 6/4/18, pp 5-7.)

When questioned further by the panel, counsel for the Grievance Administrator admitted
respondent had contacted her earlier and had asked to meet:

CHAIRPERSON STERLING: This is the first correspondence you had from him to you?

MS. BULLINGTON: He had earlier contacted me wanting to meet with me and I replied saying I did not want - did not feel a meeting would be productive between he and myself because of his extended noncompliance. Basically said we're going to go to hearing. [Tr 6/4118, p 16.]

Unfortunately, that is not what respondent was told. Respondent's April 23, 2018 email explained that he had been living in Pennsylvania since July of 20 17 because his father fell ill and passed away. He then asked if he could come see Ms. Bullington the next day in order to discuss the case. Ms. Bullington responded: "I really do not see the point in doing so at this time. You have done nothing to fulfill your conditions. My suggestion - file your response. After you file a response, if there is any reason to do so, we can meet." There was never any mention of a hearing, and despite additional requests by respondent, there was never a meeting with the Grievance Administrator's counsel.

The board notes

Here, the hearing panel abused its discretion by completely disregarding the fact that respondent had been in constant contact with counsel for the Grievance Administrator, appeared to be completely unaware of the hearing date, and had been actively attempting to comply with the conditions of the consent order. This evidence, coupled with logic and fairness under the circumstances, should have resulted in respondent being granted a new hearing. Such a conclusion is bolstered by the fact that the hearing panel appears to have been misled about respondent's constant contact with counsel for the Grievance Administrator...

From the tone and content of respondent's message, as well as evidence presented of his reaction to finding out a hearing had been conducted, it is clear respondent was unaware a hearing on the petition for order to show cause had been scheduled. What is also evident is that the panel had the impression that respondent's communications with Ms. Bullington were very limited. Had the panel been aware of respondent's repeated contact and continuous updates regarding his compliance with the conditions imposed in the prior order, perhaps there would have been a different outcome. All of this was eventually laid out by respondent in his motion for rehearing, but it does not appear to have been considered by the panel. For these reasons, we find that the hearing panel abused its discretion in denying respondent's request for a rehearing.

And

Respondent further argues that, even if he had failed to comply with the prior consent order of discipline, the sanction of disbarment is excessive and disproportionate. Again, we agree...

Respondent readily admits he did not timely comply with all of the conditions of the prior consent order of discipline. He has taken responsibility for his actions, and there is no evidence he intentionally disregarded his duty to fulfill his obligations under the consent order; rather, some very unfortunate circumstances prevented him from doing so. Importantly, there is absolutely no evidence of any injury caused by respondent's failure to comply with his conditions.

(Mike Frisch)

December 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Mail Anxiety

A public reprimand from the South Carolina Supreme Court

The complaint against respondent stems from respondent's late responses to initial inquiries in ten disciplinary investigations. Respondent asserts his late responses to the investigations were due to internal mail delivery problems in the business center where he is located. Respondent contends the mail delivery problems resulted in delays in receiving mail from ODC. ODC notes respondent has previously received a confidential admonition for similar conduct and took remedial steps to ensure the internal mail problems did not occur again. However, the problems resurfaced. Respondent acknowledges it is his responsibility to make sure he receives his mail in a timely manner. Accordingly, respondent notes he has obtained a post office box and will check the post office box in a timely manner in order to ensure these issues do not arise again.

Additionally, respondent admits he failed to communicate with his clients in a timely manner because of staffing issues. However, he asserts he has corrected these issues. ODC notes its investigation has not shown any additional misconduct relating to the underlying matters.

The attorney had sought another confidential admonition. (Mike Frisch)

December 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 6, 2018

Ex-Spousal Support May Facilitate Reinstatement

An Illinois Hearing Board has recommended that a suspended attorney be reinstated on conditions.

He was admitted in 1980 with a problem

Petitioner used cannabis every day from the time he was in college until 2006. He began using alcohol at age sixteen. Between 1999 and 2006, he had five to seven drinks per day. He did not use cannabis or alcohol during the work day while practicing law. (Tr. 396-98). During the time period leading up to his suspension, Petitioner's alcohol use escalated and he was experiencing depression and anxiety. (Tr. 98-100).

He engaged in misconduct in nine criminal defense matters.

On November 18, 2008, pursuant to a joint petition to impose discipline on consent, the Court suspended Petitioner for three years and until further order of the Court, with the suspension stayed after six months by probation subject to numerous conditions.

Petitioner relapsed with cannabis in December 2009. At the time of the relapse he was undergoing individual therapy. He did not report the relapse to the Administrator, but it was discovered after a failed drug screen. (Tr. 107-108). Petitioner had another failed drug screen in April 2010, after a second relapse with cannabis. (Tr. 111).

On July 9, 2010, the Court entered an order enforcing a rule to show cause against Petitioner for violating the conditions of his probation by using cannabis and failing to report that he did so. The Court revoked Petitioner's probation, vacated the stay of his suspension, and suspended Petitioner for the remaining two and one-half years of his suspension and until further order of the Court.

But he has made great strides

Petitioner has dedicated the past several years to working with others who suffer from addiction and mental health disorders. His supervisors and coworkers describe him as responsible, trustworthy, and a valued employee. He has worked his way up to a position of considerable responsibility at Loretto Hospital. His efforts speak to his character and demonstrate to us that he has returned to a beneficial, constructive, and trustworthy role.

Given Petitioner's history of addiction, we recommend that his return to practice be subject to oversight and other conditions, should he be reinstated. We incorporate Dr. Gershan's recommended conditions with the exception of the condition that Petitioner obtain a mentor other than Shelby Prusak. We understand Dr. Gershan's concerns regarding Petitioner's former spouse acting in a supervisory role. However, having considered all of the relevant evidence, including Ms. Prusak's testimony before us, we find that Shelby Prusak will be an appropriate supervisor. She has an established practice and will require Petitioner to work as her associate. She is willing and able to monitor Petitioner's work on a daily basis. In addition, having listened to Ms. Prusak's testimony and observed her demeanor, we find she has thoughtfully considered this arrangement and understands her responsibilities. We also consider the evidence that Petitioner has improved his interpersonal skills and he and Ms. Prusak now have an amicable relationship.

(Mike Frisch)

December 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Former AUSA Disbarred In Louisiana For Anonymous Blog Comments

A former Assistant United States Attorney has been disbarred by the Louisiana Supreme Court for his anonymous blogging

The underlying facts of this case are largely undisputed. By way of background, respondent commenced employment as an Assistant United States Attorney (“AUSA”) with the United States Attorney’s Office for the Eastern District of Louisiana (“USAO”) in 1991. At all times relevant to these proceedings, respondent was a Senior Litigation Counsel and the USAO’s training officer.

During the times pertinent to these proceedings, a New Orleans newspaper, The Times-Picayune, maintained an Internet website identified as nola.com. The website typically permitted readers to post comments to news stories using pseudonyms and/or anonymous identities.

Beginning in or around November 2007 and continuing through March 14, 2012, respondent was a frequent poster of comments on a myriad of subjects on  nola.com, including comments on cases which he and/or his colleagues at the USAO were assigned to prosecute. Of the more than 2,600 comments respondent posted, between one hundred and two hundred – less than one percent – related to matters being prosecuted in the USAO. None of the comments identified respondent by name or as an employee of the USAO. Rather, respondent posted on nola.com using at least five online identities: “campstblue,” “legacyusa,” “dramatis personae,” “Henry L. Mencken1951,” and “fed up.”

The court rejected mitigation based on post traumatic stress

the focus of the inquiry in the instant case is on the second factor – namely, whether respondent’s PTSD caused the misconduct at issue. Based on our review of the record, we find no clear and convincing support for the conclusion that respondent’s mental condition had any causative effect on his misconduct. Respondent’s psychologist testified that someone with PTSD can operate at a high level and that respondent knew right from wrong. This testimony is corroborated by respondent’s own admission that even before his conduct was discovered, he knew he should not be engaged in posting extrajudicial comments

Sanction

considering respondent’s position of public trust as a prosecutor, his knowing and intentional decision to post these comments despite his acknowledgment that it was improper to do so, and the serious harm respondent’s conduct has caused both to individual litigants and to the legal profession as a whole, we must conclude he has failed to comply with the high ethical standards we require of lawyers who are granted the privilege to practice law in this state. The only appropriate sanction under these facts is disbarment

Justice Crichton

I agree with the per curiam in all respects, and in particular, that respondent has failed to prove by clear and convincing evidence that Post Traumatic Stress Disorder was the cause for his misconduct. I write separately to note that this case highlights the difference between disbarment and permanent disbarment in attorney disciplinary proceedings. Respondent took a voluntary absence from the practice of law during the pendency of these proceedings (approximately five years), in lieu of receiving an interim suspension. However, as the per curiam discusses in footnote 10, absent a formal interim suspension, La. Supreme Court Rule XIX does not provide authority for respondent to receive credit for self-imposed absence from the profession. Had respondent agreed to interim suspension at the outset and received disbarment upon conclusion of formal disciplinary proceedings, respondent would be legally entitled to file a petition for reinstatement much sooner than under the present circumstances. In other words, the sanction of disbarment imposed at this point in respondent’s profession, at the age of 67, is arguably akin to permanent disbarment and essentially a legal profession death sentence. Whether respondent would ever be readmitted – even conditionally readmitted – is a question for another day, but the sanction of disbarment now precludes any consideration of it for five years from the date of this opinion.

(Mike Frisch)

December 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Heirs Unapparent

The Louisiana Supreme Court on these facts found by a hearing committee imposed a six-month suspension with all but 30 days deferred

After considering the testimony and evidence presented at the hearing, the hearing committee found the following: Respondent admitted he was hired by Cedric’s siblings to open Ethel’s succession and was paid a portion of the fee to be attributed to Cedric. Respondent contended he did not ask, and was not told, that Cedric was an actual heir entitled to a share of the succession. After Ethel’s death, Angela set up an appointment with respondent about handling the succession. Angela, Pamelian, and Cedric were all present at the meeting to discuss the succession with respondent. During the meeting, respondent agreed to handle the succession for a flat fee of $1,800. Respondent received information mainly from Angela, and the petition for possession he prepared did not include Cedric as an heir. The evidence showed respondent prepared an affidavit of death, domicile, and heirship based upon information provided by Angela and Pamelian, and they signed the affidavit under oath; the affidavit did not include Cedric as an heir. Ultimately, Cedric hired Ms. Shapiro to reopen the succession, and respondent filed an answer on behalf of Angela and Pamelian to reject Cedric’s claims. Shortly thereafter, respondent sent Angela and Pamelian a disengagement letter.

Based on these facts, the committee determined that respondent violated the Rules of Professional Conduct as alleged in the formal charges. Respondent engaged in a conflict of interest when he represented Angela and Pamelian after Cedric, his other client, filed a petition to annul the judgment of possession. Once Cedric moved to reopen the succession, respondent should have immediately withdrawn from representing any party in the proceeding. The committee determined that respondent negligently violated duties owed to Cedric, causing Cedric actual harm.

Justice Weimer concurred and dissented

I believe this young attorney found himself embroiled in a contest among siblings, and he naively relied on affidavits submitted from only one side of that rivalry. Therefore, I believe a shorter period of actual suspension would adequately serve the purposes of the disciplinary system. I further note that the hearing committee suggested a fully deferred suspension, and the disciplinary board found no aggravating factors, but several mitigating factors. Those mitigating factors are: the absence of a prior disciplinary record; the absence of a dishonest or selfish motive; full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings; inexperience in the practice of law; and remorse.

Accordingly, I respectfully dissent inasmuch as I would defer a greater portion of respondent’s suspension. I otherwise concur in the sanction and underscore the appropriateness of respondent’s probation with the conditions of successful completion of Ethics School and restitution of $600 plus legal interest to Mr. Duncan.

Justice Hughes would fully defer the suspension. (Mike Frisch)

December 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sex Crimes With Child Involve Moral Turpitude

Sex offenses against a child involve moral turpitude per se requiring disbarment, according to a decision issued today by the District of Columbia Court of Appeals

the Board on Professional Responsibility has recommended that respondent Micah Jared Smith be disbarred from the practice of law after he was convicted in the state of Delaware of one count of Continuous Abuse of a Child, one count of Sex Abuse of a Child by a Person in a Position of Trust,  and three counts of Unlawful Sexual Contact in the First Degree,  urging that at least one of these convictions is a crime of moral turpitude per se. Neither respondent nor Disciplinary Counsel filed any exceptions to the Board’s report.

The court had not previously considered the moral turpitude issue with respect to these state offenses

In this case, respondent’s convictions on one count of Continuous Abuse of a Child and one count of Sex Abuse of a Child by a Person in a Position of Trust were based on his instances of sex abuse of a relative who was a minor and over whom respondent exerted control and authority; therefore, these convictions, at a minimum, constitute crimes involving moral turpitude per se. Therefore, having found respondent committed crimes of moral turpitude per se, the required sanction is to disbar him from the practice of law.

(Mike Frisch)

December 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Unethical In Deed

An attorney who represented a client in multiple matters has been charged with a conflict of interest by the Illinois Administrator

 In the meeting on December 5, 2017, Respondent presented to [client] Gresham a quit claim deed by which Gresham would convey her house and real estate in Wood River, Illinois, to Respondent's law firm, Maag Law Firm, LLC. Gresham resided in the property and had owned it since 2010. The deed that Respondent presented to Gresham recited that the consideration for the conveyance was "$30,000 in legal services in hand paid" to her. Gresham signed the deed. Respondent and Gresham understood and agreed that after the conveyance, Gresham would continue to reside in the Wood River property indefinitely. After the execution of the deed, Gresham continued to reside there.

According to Respondent, Gresham's conveyance of her residence was in payment of the $10,000 fixed fee for representation in the new misdemeanor cases and in payment of $20,000 that Gresham allegedly owed to Respondent for previous legal services. Respondent claimed that he had earned legal fees totaling $20,000 for his services in the child custody and support case (number 07-F-336) which Gresham had not paid.

At no time did Respondent prepare, and at no time did he or Gresham sign, a written agreement that reflected premises, terms or conditions of the real estate transaction.

The attorney recorded the deed and while counsel of record in both criminal and civil matters

On March 2, 2018, while he continued to serve as Gresham's attorney in ongoing legal matters, Respondent sent a letter to her in which he directed her to vacate the Wood River house. In the letter, Respondent offered "to discuss a formal lease" with Gresham in the event that she wished to return to the house, after she vacated it and certain repairs were completed.

On March 3, 2018, Respondent conveyed the Wood River property by quit claim deed from his law firm to Maag Holdings, LLC, which was a business entity in which Respondent owned a 50% interest.

As of April 3, 2018, Respondent continued to represent Gresham in ongoing legal matters, including case number 07-F-336, the lawsuits in case numbers 17-L-284 and 17-L-1653, and the misdemeanor charge in case number 17-CM-100712.

On April 3, 2018, Respondent filed a lawsuit against Gresham seeking her eviction from the house in Wood River and monetary compensation for alleged damage that she caused to the property. The matter was docketed in the Circuit Court for Madison County as case number 18-LM-372, titled Maag Holdings, LLC, Plaintiff, v. Brittany Rose Nicole Gresham, Defendant.

Gresham obtained counsel from Land of Lincoln Legal Assistance Foundation, Inc., to represent her in the eviction matter and filed responsive pleadings, including claims against Respondent of fraud and unconscionability in relation to the transaction for the quit claim deed on December 5, 2017. On May 31, 2018, the court in case number 18-L-372 entered an order that dismissed the litigation on terms that included, among other things, that Respondent convey the Wood River property back to Gresham.

(Mike Frisch)

December 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, December 5, 2018

More Louisiana Crimes And Mischief

A bar discipline recommendation from the Louisiana Attorney Discipline Board for a fully stayed 18 months suspension

By way of history, the Respondent was arrested on February 23, 1993 with regard to allegations of disturbing the peace and obscenity. Records no longer exist regarding the arrest or outcome. On April 28, 2001, the Respondent was arrested for interfering with the police and "public nudity" in connection with Mardi Gras festivities. He consumed alcohol and was apparently in a state of undress on the back of a pickup truck. On October 3, 2002, the Respondent was arrested and charged with operating a vehicle while intoxicated, reckless operation of a motor vehicle, hit and run driving, and failure to use a seatbelt. The Respondent was allowed to plead guilty to a reduced charge of reckless operation of a vehicle under the provisions of Article 894. On March 8, 2003, the Respondent was again arrested and charged with operating a vehicle while intoxicated and exceeding the speed limit. Once again, the Respondent was permitted to enter a guilty plea to a reduced charge under the provisions of Code of Criminal Procedure Article 894.

On June 28, 2003, the Respondent was arrested and charged with simple battery. The incident stemmed from an argument with his girlfriend/wife at their apartment. The matter was ultimately dismissed without prosecution. None of the above enumerated or outlined incidents were ever reported to the Office of Disciplinary Counsel by either the Respondent himself or by any prosecuting authority in the State of Louisiana.

He was admitted to practice in 1996.

But eventually he got the Bar's attention

On November 4, 2013, the Respondent consumed wine with dinner and later took a 10 mg. Ambien "to help him sleep." He continued to drink wine thereafter and estimates that he drank about two bottles of red wine that evening. At some point the Respondent entered his vehicle and drove while in an intoxicated state crashing into a tree. Emergency medical services were called as he sustained a blow to his head when he impacted the windshield. He was taken to the emergency room where a c-collar was placed on him for his safety. The Respondent reportedly removed the c-collar and when a nurse attempted to restrain him and put the collar back on, he bit the nurse leading to a charge of battery. His blood alcohol level at the time registered .2, two and a half times the legal limit. Following his arrest and release, on the next day, November 5, 2013, the Respondent consumed wine yet again. Once again he took a 10 mg. Ambien and blacked out. He once again entered his vehicle and commenced driving and went to a local service station to purchase beer. The Respondent was arrested after driving erratically. Breathalyzer reports came back with a blood alcohol content of .151, nearly twice the legal limit. It is only after these two final incidents in successive days that the matter was reported to the Office of Disciplinary Counsel by the prosecuting authority.

Sanction

After careful consideration, the Board recommends that an eighteen-month suspension, fully deferred, subject to five years of probation with JLAP conditions, be imposed upon the Respondent. This sanction is appropriate given Respondent's assault of the emergency room nurse, as well as his other alcohol and Ambien-related misconduct. This sanction also serves to encourage Respondent's commitment towards recovery, while at the same time protecting the public by providing a mechanism to remove the Respondent from practice if he relapses into substance abuse in the future.

(Mike Frisch)

December 5, 2018 in Bar Discipline & Process | Permalink | Comments (1)