Albert gained a degree of renown several years ago when, as an assistant district attorney, he was a prosecutor in the animal cruelty case against Beth Lynn Hoskins, an East Aurora woman accused of neglecting dozens of Morgan horses she owned for show and sale. Albert was fired from the District Attorney's Office in June 2013 because of a relationship he was having at the time with a woman who worked for the SPCA of Erie County, which had conducted the raid that led to Hoskins’ arrest.
Sunday, February 14, 2021
The Vermont Supreme Court Court has imposed a three-month suspension and, in so doing, provides guidance on what constitutes "disadvantageous use" of information against a former client in violation of Vermont Rule 1.8(b)
The attorney was admitted in 1986 and has no prior discipline.
He initially worked in a small firm before opening his solo practice about twenty years ago. Respondent’s primary area of practice is real-estate law, but he also offers additional services “typical of small-town Vermont lawyers.”
The charges related to the attorney's alleged interference with a property closing of a former client
Respondent is correct that only uses of representation-related information which disadvantage a client violate Rule 1.8(b). See V.R.Pr.C. 1.8, cmt. 5 (“The rule does not prohibit uses that do not disadvantage the client.”). However, respondent misapprehends the meaning of “disadvantage” as used in Rule 1.8(b). In arguing that a showing of disadvantage requires “actual harm,” respondent conflates “disadvantage,” as required to show a violation of 1.8(b), with injury, a factor we consider in determining the appropriate sanction where a violation has been established. See Disadvantage, Merriam-Webster Online Dictionary https://www.merriamwebster.com/dictionary/disadvantage [https://perma.cc/HDW3-QHJD] (explaining that “disadvantage” may mean both “loss or damage especially to reputation, credit, or finances” or “an unfavorable, inferior, or prejudicial condition,” i.e., “a quality or circumstance that makes achievement unusually difficult”). A finding of “disadvantage” does not require that a client experience material damage or loss as a result of her attorney’s use of representation-related information; rather, disadvantage may be found where added difficulty or prejudice arise from the same.
Thus, contrary to respondent’s suggestion, the purchase did not have to fall through, be substantially delayed, or take place on terms less favorable to wife to support a finding that wife was disadvantaged by respondent’s conduct..
Rather, it was sufficient that respondent’s self-serving conduct put wife in a less-advantageous position relative to the closing on the property than she had been in before respondent intervened to promote his own interests. By filing the writ, respondent substantially reduced the likelihood of a timely closing, and risked undermining the sale entirely to further his unrelated pursuit of compensation from a former client. That, in itself, was a disadvantage to wife.
In short, there is ample evidence from which the panel could draw the very reasonable inference that when respondent used information gleaned from his professional representation of wife to obtain a writ of attachment on the property she was under contract to purchase, she experienced unnecessary worry, stress, anxiety, and concern.
Trust and confidence form the foundation of the attorney-client relationship. See 2 Mallen and Smith, Legal Malpractice § 14.1, at 230 (4th ed.) (“The fiduciary obligations are the foundation of the attorney-client relationship and enable a client to fully reveal confidences and to repose unhesitating trust in the attorney’s ability to represent the client’s interests diligently and competently.”). In straying from these fundamental obligations, an attorney risks eroding public trust in the profession as a whole—a trust without which our legal system cannot function. People ex rel. Dep’t of Corps. v. Speedee Oil Change Sys., Inc., 980 P.2d 371, 379 (Cal. 1999) (“The effective functioning of the fiduciary relationship between attorney and client depends on the client’s trust and confidence in counsel.”). Therefore, the appropriate sanction must be weighty enough to counter this serious risk. See Accident & Injury Med. Specialists, P.C. v. Mintz, 2012 CO 50, ¶ 25, 279 P.3d 658 (en banc) (describing attorney-client relationship as “distinctly a fiduciary relationship . . . founded up a special trust and confidence” and explaining that “[t]o such trust and confidence, attorneys are governed by rules of conduct overseen by [the state Supreme Court]”). Here, “[m]erely to express disapproval, or censure, would be to treat lightly matters vitally affecting the integrity of the profession and the interests of society.” Themelis, 117 Vt. at 24, 83 A.2d at 510-11 (imposing three-month license suspension as sanction). We conclude that a three-month suspension is necessary here, not as punishment, but in order to maintain public confidence in our legal institutions.
Friday, February 12, 2021
An attorney who had been suspended for 14 months for accepting "side fees" while employed by a law firm has been denied reinstatement by the Wisconsin Supreme Court for failure to make restitution to the firm
The requirement to make restitution in SCR 22.29(4m) may include amounts due to those harmed by the lawyer's misconduct, even if restitution is not expressly ordered in the original disciplinary proceeding...
We are under no obligation to reinstate an attorney who has made no effort at all to make restitution to or settle all claims of persons injured or harmed by his misconduct. Lathrop v. Donohue, 10 Wis. 2d 230, 237, 102 N.W.2d 404, 408 (1960) (observing that the practice of law is not a right but a privilege); In re Disciplinary Proceedings Against Hyndman, 2002 WI 6, ¶4, 249 Wis. 2d 650, 638 N.W.2d 293 (stating that a petitioner seeking reinstatement does not enjoy a presumption of rehabilitation upon the expiration of a term of suspension). Upon a showing that Attorney Parks has sought in good faith to address the requirements of SCR 22.29(4m), we will be more favorably disposed to a future reinstatement petition. Although a petitioner typically must wait nine months before seeking reinstatement after denial of a reinstatement petition, in this case we exercise our discretion to reduce that time. SCR 22.33(4); In re Disciplinary Proceedings Against Carroll, 2004 WI 19, 269 Wis. 2d 172, 675 N.W.2d 792. Attorney Parks may seek reinstatement when he can demonstrate that he has addressed SCR 22.29(4m).
Two justices dissented and would grant reinstatement. ( Mike Frisch)
Sunday, February 7, 2021
An attorney's conditional admissions of misconduct led to a six-month suspension and until further order from the New York Appellate Division for the Fourth Judicial Department.
As to one client
in December 2016, he began representing a client in a domestic relations matter and, for several weeks over the course of the representation, he engaged in a romantic relationship with the client that involved sexual relations.
A second client
in January 2017, he commenced a romantic relationship that involved sexual relations with a different woman and, while that relationship was ongoing, he agreed to represent the woman in a child custody matter without charging her a legal fee. Respondent admits that opposing counsel in the matter moved to disqualify respondent based on his relationship with the client and, although respondent opposed the motion, Family Court disqualified respondent from representing the client in the matter, albeit without specifying the grounds for the disqualification. Respondent admits, however, that before he was disqualified he sent text messages to the client threatening to inform the father of the client’s child that the client was purportedly abusing alcohol and engaging in sexual misbehavior. Although respondent did not follow through on the threats, he admits that those threats demonstrate that his sexual relationship with the client gave rise to a significant risk that his professional judgment would be adversely affected by his own personal interest in his relationship with the client.
With respect to charge three, respondent conditionally admits that, while he was engaged in the relationship with the client referenced in charge two, he and the client had a physical altercation at respondent’s home in June 2017 during which respondent, inter alia, slapped the client on her ear and placed his hands around her throat. Respondent admits that he was thereafter arrested, charged with various crimes, and served with a three-month stay away order of protection in favor of the client. Respondent also admits that, despite his knowledge of that stay away order of protection, he subsequently had multiple consensual contacts with the client, including telephone conversations, text messages, and in-person visits at respondent’s home.
He pleaded guilty to a misdemeanor.
In a court case
in 2014, he appeared in Sardinia Town Court on behalf of a client to contest a “dangerous dog” complaint made by law enforcement officials under Agriculture and Markets Law § 123. Respondent admits that, during the appearance, he took issue with certain procedural and substantive rulings of Town Court, which prompted respondent to repeatedly interrupt the proceeding in an unprofessional and discourteous manner. Although respondent apologized to Town Court prior to the conclusion of the proceeding, the next day respondent published comments on social media stating that there was “no doubt” that the Town Justice was “in the[ ] pockets” of the law enforcement officials and that, when respondent raised that issue in Town Court, the Town Justice “tried to have [respondent] locked up.”
We have also considered, however, the matters in mitigation submitted by respondent, including his statement that the misconduct occurred while he was from alcohol, substance abuse, and mental health issues, and that he has since successfully sought treatment for those issues.
Buffalo News reported that he is a former prosecutor.
Saturday, February 6, 2021
From the monthly discipline summaries of the Florida State Bar
Andrew Spark, 13201 Roosevelt Ave., PMB 818085, Flushing, N.Y., disbarred retroactive to July 15, 2019, when he was suspended because of a felony conviction, following a. Jan. 21 court order. (Admitted to practice: 1991) Spark abused his privilege to practice law and used his law license to engage in deception with the intent to access private rooms provided to attorneys in two separate jail facilities for the purpose of soliciting prostitution. Spark video recorded these encounters with the goal of creating an adult pornographic film for his own prurient and/or financial interest. He pleaded guilty to three separate charges and was sentenced in each case to probation. (Case No: SC19-1163)
Beth Ann Maliszewski, P.O. Box 2425, Fort Myers, disbarred, effective immediately because of the current suspension. (Admitted to practice: 2001) Maliszewski is a party in a paternity action involving visitation and paternity rights over her child. After becoming aware of a potential paternity action, Maliszewski filed an injunction against the child’s prospective father and had him arrested, resulting in him receiving a no contact order with the child. On the day the paternity action was filed, Maliszewski, via counsel, voluntarily dismissed the Petition for Injunction. Maliszewski avoided service in the paternity action, refusing to appear in court. She stopped working, turned off her phone and disappeared with the child. In a second matter, Maliszewski was appointed and paid $1,000 for a Guardian ad Litem family law matter and failed to fulfill her duties. She did not respond to The Florida Bar or participate in the disciplinary proceeding. (Case No: SC20-813)
Frank T. Blainey, 455 Alt. 19 S., G107, Palm Harbor, suspended for 91 days and probation for three-years effective 30 days following a Dec. 28, 2020, court order. (Admitted to practice: 2006) In 2016, Blainey was drinking socially with a client, resulting in a physical altercation. On July 20, 2018, Blainey was convicted of misdemeanor battery. In addition to being intoxicated at the time of the incident, Blainey has a history of DUIs and issues with alcohol. After his arrest, Blainey failed to provide The Bar with updates regarding his criminal case. (Case No: SC19-372)
Tampa Bay Times reported on the Sparks case
Shauna Boselli and her husband Richmond McDonald made adult films starring Boselli. But videos they made featuring a 7-year-old led them to the Pinellas County Jail in November 2017 while awaiting their federal court sentencings.
On Nov. 25, 2017, two days before Boselli would get 40 years in federal prison and McDonald would get life, Spark visited Boselli. He knew them from meeting the couple at an earlier porn convention. Between then and the prison visit, Spark wanted to shoot some porn with Boselli, but, Gualtieri said, they couldn’t agree on a price.
To speak with her on his Nov. 25, 2017, visit to the jail, however, Spark flashed his Florida Bar identification, acted as if he was Boselli’s attorney and was allowed to meet with her.
“He really duped the system because he shouldn’t have access to her,” Gualtieri said. “He wasn’t her lawyer; he wasn’t representing her. But as an attorney, he’s given the courtesy of going into the jail to meet with clients.”
Spark told Boselli he was making a series of porn videos of female inmates giving him oral sex. In return, he’d put money in their jail commissary account. He also bragged he’d done similar videos with another inmate named “Rose.”
Boselli told family members who told law enforcement. Investigators found Antoinette Rose Napolitano, for whom Spark had done pro bono work before her arrest on drug charges. Gualtieri said Spark also had been a sex customer of Napolitano after meeting her through backpage.com.
Investigators found that Spark had visited Napolitano on Oct. 12, 2017, the referee’s report said, also “under the guise of official attorney business and entered a secure, unmonitored, attorney/client visitation room with the inmate.”
Spark used his tablet to record Napolitano giving him oral sex. Cops convinced Napolitano to be an undercover agent for them.
When Spark returned on Dec. 17, 2017, to see Napolitano, he again used his Florida Bar ID and attorney privileges to take her into the attorney/client room. Spark prepared for the usual arrangement to commence.
“Law enforcement then entered the room and arrested [Spark], who had his zipper down,” the referee’s report said
Friday, February 5, 2021
The North Carolina State Bar has filed ethics charges against an Assistant United States Attorney in his investigation and prosecution of allegedly fraudulent activity by an officer of GrandSouthBank.
He allegedly called a witness before the Grand Jury who he suspected was involved in the criminal activities and misrepresented to her that she was not a subject or target of the investigation.
Rather, he allegedly advised her that she "was merely being called as a factual witness."
The complaint alleges that these statements were deceptive and misleading.
The Grand Jury later returned a multi-count indictment against the witness.
The rule violations charged are Rules 8.4(c) and (d). (Mike Frisch)
A part-time judge was subject to both bar and judicial discipline and has been suspended from his judicial office for two years with all but six months stayed by the Louisiana Supreme Court.
The sanction was imposed retroactively to the date of the bar discipline.
In January 2017, Judge Hardee attended a bachelor party in Park City, Utah celebrating his upcoming wedding. He visited a local bar and consumed excessive amounts of alcohol, becoming extremely intoxicated. It is undisputed that he grabbed the buttocks of a waitress without her consent, Park City Police were called, he did not immediately produce identification, and he failed to cooperate with police at the scene.
Judge Hardee was charged with the following crimes, all misdemeanors under Utah law: (1) Sexual Battery, in violation of U.C.A. 76-9-702.1; (2) Failure to Disclose Identity, in violation of U.C.A. 76-8-301.5; (3) Interference with Arresting Officer, in violation of U.C.A. 76-8-305; and (4) Intoxication, in violation of U.C.A. 76-9-701. He pled no contest to these charges and has fully satisfied all terms and conditions of the plea.
He was sanctioned as an attorney
The consent discipline resulted in Judge Hardee being suspended from the practice of law for one year with all but six months deferred, followed by probation coinciding with the remainder of his JLAP monitoring agreement. If successfully completed, JLAP monitoring will end on December 5, 2022.
This matter involves judicial discipline and the extent of necessary supervision
Judge Hardee disputes his diagnosis and the need for additional monitoring. He has executed a five-year JLAP monitoring agreement and, assuming he remains compliant, monitoring will end on December 5, 2022. Nevertheless, the Commission, which did not act on this matter until after the ODC and Judge Hardee agreed to attorney discipline, now recommends extending monitoring through December 31, 2026. We reject that recommendation.
But on the merits, not by res judicata as the judge had argued
While under the circumstances of this case we find it appropriate that the probation period for judicial discipline be co-extensive with that for Judge Hardee’s attorney discipline, we emphasize this is not required. We can impose additional discipline. In fact, in the event Judge Hardee violates the terms of his probation, he will be suspended for two years as a judge as opposed to one year as an attorney. However, we find the length of probation and JLAP monitoring imposed for attorney discipline and the fact that Judge Hardee has remained compliant with all terms of that discipline does not warrant either extension of the probation period or additional monitoring. Nevertheless, we feel constrained to express Judge Hardee’s argument for the application of res judicata has no merit.
Judge Hardee’s criminal acts in this case are more serious because he is a judge. The fact that he broke the law erodes the integrity of the judiciary and the public’s confidence in it. His conduct was clearly prejudicial to the administration of justice and has brought disrepute upon his judicial office.
Chief Justice Weimer
Expert medical evaluators, all chosen by respondent, have diagnosed the respondent with some form of substance abuse disorder. The respondent’s denial of those diagnoses through lay testimony and his own belief that he does not meet the diagnostic criteria for a substance abuse disorder is meritless.
While I commend the respondent for the strides he has made, I agree with the Judiciary Commission’s recommendation that the respondent be subjected to an extended period of JLAP monitoring. Accordingly, I would require the respondent to execute a new five-year agreement with JLAP. Accordingly, I respectfully I concur in part and dissent in part.
Ohio - the national model of disciplinary transparency and efficiency - has issued its annual report focusing on the effect of the pandemic on their work.
Csaba Sukosd has a summary
The disposition of dozens of cases and a sudden shift in how the Ohio Board of Professional Conduct held disciplinary hearings amid COVID-19 are at the center of its 2020 annual report.
Given the inability to operate in-person inquiries due to the coronavirus pandemic, the Board of Professional Conduct quickly implemented procedures to host hearings via video conference, ensuring operation would be fair, safe, and efficient.
Last April, the Ohio Supreme Court’s semi-independent body became the first attorney disciplinary board in the United States to conduct a hearing exclusively by videoconference.
In total, the entity produced 31 remote hearings that spanned 37 days.
“In light of the global pandemic, the Ohio Board of Professional Conduct quickly adapted new procedures that allowed disciplinary hearings to take place in a timely and fair manner,” said Richard Dove, the board’s director. “The procedures implemented served as a model for attorney discipline boards in other jurisdictions.”
The advisory group’s main role of case dispositions consisted of 71 separate cases, including 48 that were filed with the Ohio Supreme Court that recommending discipline against an Ohio attorney or judge. The board also dismissed two matters alleging ethical violations due to insufficient evidence.
As part of the disciplinary process, the board held 45 panel hearings and six meetings to review reports from the panels and the board committee.
The board issued 12 formal advisory opinions in 2020, four of which addressed questions of first impression in Ohio, and its staff made 25 education presentations across Ohio to attorneys, judges, magistrates, judicial candidates, and law students.
In March, the board issued its fifth Ethics Guide. It addressed the subject of limited scope representation, which lists the requirements associated with such legal handling and identifies several best practices for lawyers who enter into agreements to provide limited legal services to clients
The Board of Professional Conduct was established in 1957 as a quasi-independent body to assist the Ohio Supreme Court in its constitutional obligation to regulate the practice of law. The board consists of 28 volunteer commissioners appointed by the Supreme Court and employs a staff of four. The board’s activities are funded entirely by attorney registration fees assessed by the Supreme Court.
Thursday, February 4, 2021
A decision of the Ohio Supreme Court summarized by Dan Trevas
The Ohio Supreme Court today fined a northeastern Ohio woman $10,000 for the unauthorized practice of law, including preparing a will for a 93-year-old Navy veteran.
In a unanimous per curiam opinion, the Court ruled Erica Schwab represented to her then-fiancé and his family that she was an attorney, and provided legal services to them. Schwab has never been licensed or authorized to practice law in Ohio. The Office of Disciplinary Counsel brought the complaint against Schwab to the Board on the Unauthorized Practice of Law.
The disciplinary counsel unsuccessfully attempted to notify Schwab of their complaint throughout 2019 at an address in Twinsburg. The board reported she received the notice of the charges while in the Stark County jail, days after she was indicted on a felony charge of receiving stolen property. Schwab never responded to the unauthorized practice of law charges.
Pilot Misled, Widower Deceived
In January 2018, Schwab advised her fiancé at the time, James Gudaitis, that she was an attorney and could assist him in legal matters and serve as the attorney for his church. She prepared a “minor-flight agreement” for Gudaitis, a pilot, allowing for the waiver of the legal liability of transporting a child by airplane. On the document, she identified herself as “Erica L. Deberadinis-Schwab, Esq.” and as “Pilot’s Legal Counsel.”
In March 2018, Gudaitis introduced Schwab to his stepfather, Ray Baker, 93, of Massillon, while they were visiting Gudaitis’ mother who had recently suffered a stroke. She died that month. Schwab told Baker she was a lawyer and could prepare a living will-advanced healthcare directive, a will, and other legal documents for him. On the documents, she identified herself as “Erica L. Schwab, Esq.” Without Baker’s permission, she contacted his insurance agent to obtain a copy of his deceased wife’s life insurance policy, telling the agent she was Baker’s attorney.
Stepdaughter Becomes Suspicious
About a week after Baker signed the documents Schwab prepared, Baker’s stepdaughter reported Schwab to the Jackson Township Police Department in Stark County. Schwab was arrested for allegedly stealing jewelry, money, and prescription drugs from Baker’s home. She was later indicted by a Stark County grand jury and pleaded guilty to one felony count of receiving stolen property. She was placed on three years of community control.
The stepdaughter filed a grievance against Schwab with the disciplinary counsel, alleging Schwab was practicing law without a license.
After failing to receive a response to the charges from Schwab, the board found her actions constituted the unauthorized practice of law. The board determined, and the Court agreed, the actions were flagrant enough to warrant the maximum penalty of a $5,000 fine for each charge. The Court ordered Schwab pay the penalty and cease from engaging in any further unauthorized practice of law.
The Massachusetts Supreme Judicial Court has imposed reciprocal discipline based on a sanction imposed in New York.
From the summary on the web page of the Board of Bar Examiners
The New York court, on the basis of a stipulation of facts submitted jointly by the respondent and disciplinary counsel, determined that the respondent engaged in two separate rule violations. The respondent admitted that he utilized an improper retainer agreement, calling for a nonfundable fee, in violation of New York Rules of Professional Conduct 1.5(d). He also admitted that he engaged in prohibited sexual relations with a divorce client during the representation, in violation of New York Rule of Professional Conduct 1.8 (j) (l) (iii). Massachusetts does not have an identical rule, although Rules 1.7 and 1.8 generally bar engagements that present conflicts of interest. The New York court determined that a one-year suspension from practice was the appropriate discipline for the respondent’s misconduct.
The attorney must secure reinstatement in New York in order to be reinstated in Massachusetts. (Mike Frisch)
Wednesday, February 3, 2021
The Appeal Panel of the Alberta Law Society dismissed the appeal of a hearing panel's finding that an attorney's letter about a newly-appointed judge was deserving of sanction.
The Letter, prepared by Mr. Rauf on his firm’s letterhead, was addressed to the Edmonton Journal, but the newspaper did not publish it. Mr. Rauf provided copies of the Letter to other lawyers and to members of the public. Notably, he left copies of it at the Edmonton Law Courts cafeteria. The Letter is reproduced in the Decision. The full extent of the distribution remains unknown.
The Letter criticized both JAB’s conduct as a lawyer and her appointment to the Bench. The Letter went beyond conduct to also criticize JAB’s personal character, ethics and honour.
In the Letter, Mr. Rauf said he experienced “shock” at JAB’s appointment. He wondered if she was appointed by the same “brilliant judges of character” who appointed another judge to the Bench. He said it was “almost laughable” that JAB would “now go around being referred to as The Honourable [JAB]” when, for Mr. Rauf, she was “anything but honourable.” He said he had “rarely, if ever” seen any Counsel more “ethically challenged”. In so doing, he noted his 40 years of practice across the bar of two provinces and one territory.
After the introduction, the Letter set out five instances of what Mr. Rauf considered JAB’s improper conduct in his multiple interactions with JAB as a Crown prosecutor. Two of these are alleged to be misrepresentations of, or errors respecting, evidence. One is alleged to be an improper questioning approach during cross-examination of a witness. One is alleged to be a misstatement of law, whether in error or otherwise, in expressing the burden of proof at preliminary inquiry. One was argument to a jury that Mr. Rauf alleged ought properly to have been directed to the trial judge in 2005. This last event was later referenced by the Alberta Court of Appeal in a decision ultimately overturning the conviction. These five incidents occurred over a period of 11 or more years prior to JAB’s appointment.
Rauf said the appointment was a “disgrace” and that he had “no respect” for JAB. In some instances, Mr. Rauf described JAB’s conduct as “deplorable”. He said every encounter he had with her left Mr. Rauf with a “sour taste.” Despite his expression of shock and concern, Mr. Rauf neither reported JAB to the LSA prior to her appointment nor to the Judicial Council after her appointment.
Rauf said he did not report JAB because it would have would have been “immoral” to report her. In his words, he was not a “tattletale.” He considered the Code of Conduct obligation to report peer misconduct to be immoral. He also said, “there is a moral obligation not to obey immoral laws.” He compared his conduct in not reporting the accusations to Nazi soldiers who chose not to obey Hitler. He also compared himself, under oath, to a child who does not report sexual abuse at the hands of his abuser until years later. Mr. Rauf said he was obliged to write the Letter. Quoting Lord Denning, and in apparent contrast to his prior silence, he said that “Silence is not an option when things are ill done.” His view was that, with her appointment to the Bench, he should stay silent no longer. He said the public had a right to know that “such a person” was now a judge.
In this case, the language Mr. Rauf employed to criticize a newly appointed judge and the system that appointed JAB was intentionally designed to be a personal attack, to draw the reader in, and to persuade the reader of Mr. Rauf’s viewpoint, that JAB is not worthy of the title “honourable,” that her appointment is a “disgrace” and that it is “laughable” that she should be called “the Honourable JAB.” He wanted the legal community to accept as fact his opinion that JAB was “ethically challenged” and that those who appointed her were poor judges of her character.
In so doing, he used his firm’s letterhead, invoked his extensive legal experience and used a medium of broad dissemination. The Letter was originally intended for publication in a major newspaper. When that approach failed, Mr. Rauf instead opted for broad delivery by personal distribution. He provided the Letter to many lawyers. He left copies of the Letter at the Edmonton Courthouse. The full extent of the distribution is unknown. Mr. Rauf engaged his professional standing to accomplish his ends.
The Hearing Committee considered the evidence before it. The Hearing Committee was alive to the need to balance freedom of expression against a lawyer’s obligations of civility. The Letter, on its face, was an uncivil communication and a personal attack on the character, honour and ethics of a newly appointed judge. When faced with a legitimate concern over the tone, language and content of the Letter, Mr. Rauf responded in a way that undermined his bona fides and belied his motives instead of explaining them.
In responding with biting sarcasm, in writing a letter to report himself for complimentary letters, in invoking Lord Denning’s obligation to speak while simultaneously calling the equivalent Rule in the Code of Conduct bad and immoral, Mr. Rauf provided ample additional evidence that further supported the Hearing Committee’s findings on the important question of bad faith.
Mr. Rauf’s evidence on his views that the Code’s obligation to report misconduct is immoral and should not be obeyed was relevant evidence on good faith because the very premise of Mr. Rauf’s defence was that he was morally compelled to speak out against JAB’s appointment. This stark inconsistency was never adequately explained. The Hearing Committee did not breach the principles of natural justice in considering the evidence. Nor did it conflate the evidence. The evidence was all directed at and considered under the single citation of conduct deserving of sanction.
Accusations in the Letter may have formed a reasonable basis for Mr. Rauf’s personal opinion. However, the Accusations were not the issue nor would it have been proper, in this context, to effectively put JAB on trial for her actions, some of which happened more than ten years prior. The lack of good faith was the driving force behind the citation and the Decision. Given the bad faith finding, the question of a reasonable basis for Mr. Rauf’s opinions falls away.
Had Mr. Rauf’s true intent been to improve the administration of justice, a myriad of options were at his disposal. A timely complaint, with its attendant due process, was one option. Public discourse was another. Mr. Rauf was entitled to hold and express his opinions. He was not entitled to express them in the manner he did. The Hearing Committee had ample evidence to find that Mr. Rauf wrote the Letter in bad faith to lash out at a lawyer, now appointed judge, that he disrespected. He intended to attack JAB’s character and the appointment process. Although allegations of prosecutorial misconduct inherently involve strong statements, Mr. Rauf’s tone, language, and delivery crossed the line. Mr. Rauf breached each of the Rules set out in the single citation. His criticisms were neither made in good faith nor were they expressed with dignified restraint. This was conduct deserving of sanction.
The Indiana Supreme Court has suspended an attorney for at least four years without automatic reinstatement
During the overnight hours of March 4 and 5, 2019, Respondent brutally beat and confined his girlfriend in his home. During this time he used his victim’s cell phone to send various messages while pretending to be her. Eventually the victim managed to flee Respondent’s house and summon help from a neighbor. When law enforcement officers arrived, Respondent locked the victim’s phone and refused to unlock it. Shortly thereafter Respondent made statements to the media falsely accusing the victim of having attacked him.
Respondent was serving as the elected prosecutor in Johnson County at the time he committed his crimes. He was charged with confinement, domestic battery, identity deception, and official misconduct, and pled guilty to those four charges. Respondent resigned his elected office following his sentencing hearing in July 2019, simultaneously with his removal from office by operation of law due to his felony convictions.
The attorney sought a short suspension with automatic reinstatement and cited prior cases
However, any similarity between those cases and this one ends there. Respondent’s acts of battery were more brutal and his victim more vulnerable; his criminal conduct involved not only violence but dishonesty; and he is a repeat disciplinary offender.
The prior discipline was a reprimand for a Rue 8.2(a) violation.
The hearing officer had recommended permanent disbarment.
The court's sanction leaves open the possibility of eventual return to practice
Respondent already has been under interim suspension for about one and a half years. Together with the four-year suspension we impose today, which is effective from the date of this opinion and not retroactive, Respondent will serve well over five years of suspension before becoming eligible to petition for reinstatement. Should Respondent seek reinstatement at that time, his petition will be granted only if he is able to prove his fitness to resume the practice of law by clear and convincing evidence, a burden that will be particularly steep given the severity of Respondent’s misconduct.
The Minnesota Supreme Court has revoked a conditional readmission of an attorney who had failed to timely take and pass the MPRE
In support of his motion, Mulligan argues that he did not take the MPRE in 2020 because he did not know how or where to register for the exam until it was too late to take the exam. Mulligan details his unsuccessful efforts to learn how to register for the MPRE. Mulligan, however, provides no information about what, if any, internet research he performed during these efforts, or whether he reviewed the applicable rules, which identify the exam. Instead, Mulligan states that he first learned in November 2020 that the exam he needed to take was the MPRE and that he could contact the National Conference of Bar Examiners to register for this exam when an employee of the Office of Lawyers Professional Responsibility told him this information. Mulligan asserts that he then registered for the next test date, which is in March 2021.
The court noted that it has "routinely denied" such reques ts. (Mike Frisch)
The Massachusetts Supreme Judicial Court has affirmed the disbarment order of a single justice.
Although the board focused on the misconduct for which the most severe sanction is warranted, intentional misuse of client funds, bar counsel established a far broader swath of misconduct. Considering the cumulative effect of that misconduct reinforces the conclusion that disbarment is the correct sanction
The violations included misconduct in connection with a factoring agreement
In connection with the factoring agreement, the respondent disclosed confidential client information for his own benefit, i.e., obtaining financing for the firm. In so doing, he created a conflict of interest between his contractual obligation to Durham and his professional obligations to his clients. See Matter of Wise, 433 Mass. 80, 90-92 (2000) (six-month suspension for conflict of interest and revealing confidential client information); Matter of Pike, 408 Mass. 740, 745-746 (1990) (six-month suspension for engaging in conflict of interest).
The respondent made material misrepresentations to Durham concerning the firm's solvency and falsely represented that pledged assets had not been previously encumbered.
After learning that the firm's IOLTA accounts were being used to fund the firm's operational needs, and knowing the firm's strained financial condition, the respondent continued to collect his salary and use the firm's funds to pay his own personal expenses. He did not take necessary steps to ensure that IOLTA funds were properly managed, notwithstanding that bar counsel had twice previously investigated the firm when IOLTA checks were returned for insufficient funds. At least one client was not compensated for its loss. He "engaged in more and wider misconduct." Matter of Haese, 468 Mass. 1002, 1008 (2014).
A bar discipline proceeding is not a forum best used broadly to cast blame or aspersions on others. It is a proceeding with a narrow focus: to determine whether there is a preponderance of evidence that an attorney has violated one or more rules of professional conduct and, if so, what sanction is warranted. The respondent's continued focus in these proceedings on matters other than the charged misconduct does him a disservice because evidence of misconduct is neither excused nor obscured by accusations of misconduct by others. With deference to the sanction recommended by the board, we affirm the judgment of the single justice that disbarment is warranted.
A convicted former district attorney should be permanently disbarred according to a recommendation of the Louisiana Attorney Disciplinary Board
Here, Respondent has violated duties owed to the public, the legal system, and the profession. His actions were intentional. The amount of actual injury caused by his misconduct was great; the reputations of both the legal profession and the District Attorney’s Office were severely tarnished by his misconduct. As explained by the Committee, Respondent used his position as District Attorney, and the funds he had collected as contributions to his campaigns, to host social functions for religious leaders and to make contributions to their budgets. Respondent’s true purpose for holding these functions and making these contributions was, in turn, to receive lucrative client referrals from the ministers that Respondent, his law firm, or their affiliates could profitably handle. Respondent also used his position as District Attorney to collect hundreds of thousands of dollars over twenty years from the Hospital Board and kept what should have been public money for himself. These actions and practices reflect disgracefully upon the legal profession, the institutions of justice, and the public office held by Respondent.
The board quoted from the hearing committee findings based on the jury verdict
(1) Respondent spent at least $100,000 from his campaign fund bank account for personal expenses, for recruiting potential clients for his legal practice, and for various expenses of his son. [Indictment, pages 8 and 39].
(2) Respondent spent $2,635 from his campaign fund bank account for a dinner for “Pentecostal Preachers” for the purpose of recruiting them to refer private civil work to him. [Indictment, pages 14 and 45].
(3) Respondent sent $4,701 from his campaign fund bank account to“First Pentecostal Church” for the purpose of recruiting religious figures to refer private civil work to him. [Indictment, pages 18 and 49].
(4) On behalf of the District Attorney’s office, and for approximately 20 years, Respondent accepted stipends of $25,000 to $30,000 annually from the St. Tammany Hospital for legal representation, and he deposited those funds into his personal accounts. He submitted tax documents to the hospital indicating that Forms 1099 were to be sent to the tax identification number of an entity he owned, “Old English Antiques.” [Indictment, pages 24-26, 56-58].
(5) The Court of Appeals noted that the prosecution presented evidence that “Reed was aware that the Hospital Board had repeatedly reaffirmed the D.A.’s office’s [emphasis by the Court] designation as special counsel, and that Reed sent another attorney from the D.A.’s office when he was un able to attend Board meetings. [ODC 3, page 4/74]. The monthly check for this service went into Respondent’s accounts; the Assistant District Attorneys who actually attended were not compensated beyond their standard salary. [Indictment, pages 25 and 57].
(6) The Court of Appeals noted that the prosecution “presented evidence at trial that the same pastor who gave Walter Reed the referral [at a dinner] sought a ‘referral fee’ in the form of a contribution to a church gymnasium, and after his firm declined to provide that fee, Walter Reed ‘donated’ $25,000 of campaign funds for a church gymnasium. [ODC 3, page 3/73]. District Court Judge Fallon also acknowledged this jury finding at sentencing. [Respondent Exhibit 2, page 85].
Nola.com reported on the conviction
Reed had a law enforcement career of more than 40 years. It included stints as a New Orleans police officer, Louisiana attorney general's office investigator and assistant U.S. attorney before he was elected top prosecutor for Louisiana's 22nd Judicial District in 1984, when he unseated incumbent Marion Farmer.
Under his leadership, St. Tammany gained a reputation for tough prosecutions, high incarceration rates and long prison sentences. Some referred to the system as "St. Slammany." Reed embraced the nickname, even giving out awards in that name to prosecutors he thought were especially hard-nosed and aggressive.
Tuesday, February 2, 2021
The Ohio Supreme Court has given an attorney until Thursday noon to respond to a petition for interim suspension.
The Portsmouth Daily Times reported on the criminal charges
New documents filed in the case of Michael Mearan allege the former Portsmouth City Councilman and attorney demeaned several female clients and used them in sex-for-hire appointments.
According to documents filed by prosecutors Friday, Jan. 8, Mearan allegedly pocketed money raised in sex-for-hire appointments, verbally abused women, and called them “the product.” The documents accuse Mearan of using his position as an attorney to cultivate and exploit relationships with vulnerable females he was representing, satisfying his sexual needs and those of his co-conspirators.
“Defendant frequently targeted women who had drug addictions, were indigent and were facing criminal charges,” records state. “Defendant both implicitly, and explicitly, linked his continued representation of the women to their continued compliance. Defendant used women’s fear of imprisonment on their criminal charges, their desperation, and their drug addictions to compel them to engage in sexual activity for hire at his direction and for his benefit.”
In the documents, victims were not named, but their accounts were shared with the courts. One client stated Mearan bragged about his crimes stating, “he had been under investigation for 20 years and nothing had happened to him.”
Other women shared that Mearan would often have “Johns” at his office who would belittle the women and would not hesitate to grope them. The environment was likened to a “meat market” and the women were referred to as ”the product.”
“Jane Doe 4 reported that Defendant verbally threatened her, often making her feel like a ‘dirty piece of sh—t,’” according to documents. “Jane Doe 4 complied with Defendant’s demands, as he continued to represent her in court throughout all of this. If she told him no, he would often respond with threats to not “help” her anymore.”
The documents also allege Mearan kept in contact with his clients while incarcerated and paid them to find more women to offer to “Johns.”
The new documents detail many of the same incidents reported in an article by the Cincinnati Enquirer in March 2019 after the newspaper investigated allegations of sex trafficking in Portsmouth.
Ohio Attorney General Dave Yost and Scioto County Prosecutor Shane Tieman announced Friday, Oct. 23, the indictment of Mearan on 18 felony counts related to human trafficking spanning 15 years.
Mearan pleaded not guilty to all 18 charges at the County Common Court of Pleas, where his bond was set at $300,000. Mearan posted his $300,000 bail Wednesday, Oct. 28, through the Jim Peach Bail Bond Services.
According to court records, Mearan is representing himself in court. On Nov. 18, Mearan requested a Notice of Appearance and court records filed from that date show Mearan as his own counsel. Mearan also filed a Motion to Compel Discovery on behalf of himself, which is a request for evidence, documents, and other information from the opposition.
“I’m waiting to find out who the people (alleged victims) are,” Mearan told The Enquirer om Jam 12. “At this point, I still don’t know what I’m accused of doing(…) It doesn’t say when, where, who. Nothing.”
Prosecutors are expected to file with the court not to allow Mearan to represent himself. If Mearan is permitted to represent himself, he will have the ability to cross-examine his alleged victims. Mearan’s next court date is slated for Jan. 21.
Reach Adam Black at (740) 353-3101 ext. 1927, or by email at email@example.com.
Thursday, January 28, 2021
The Kentucky Supreme Court imposed a consent sanction for a criminal incident in a courthouse
Just after 8:00 a.m. on July 17, 2019, a deputy heard a voice call for help from the second floor of the Jefferson County Hall of Justice. The deputy responded and found the victim restraining Scott with both men covered in blood. The victim, also an attorney, said Scott had attacked him with an aerosol can for no reason. The victim suffered multiple head and facial lacerations for which he was transported to the hospital and received stitches.
On July 22, 2019, Scott was arraigned on a charge of second-degree assault, a Class C felony. On August 30, 2019, he pled guilty to an amended charge of fourth-degree assault, a Class A misdemeanor, for which he agreed to serve 180 days, conditionally discharged for two years, provided he commit no new offenses, have no contact with the victim, and participate in mental health/anger management treatment. Commonwealth v. Scott, Jefferson District Court 19-F-007691.
Scott acknowledges he suffered from Major Depressive Disorder and Chronic Post Traumatic Stress Disorder at the time of the incident. He currently participates in mental health treatment through the VA Medical Center in Louisville, Kentucky.
In 1983, Scott was convicted of raping and attempting to kill the wife of a fellow Marine but was ultimately exonerated. Scott maintains eight years of incarceration before being freed “had a profound and lasting effect on him.”
Based on the foregoing authorities, Scott’s lack of prior disciplinary record, and his cooperative nature throughout the proceedings, the KBA concluded a 180-day suspension, probated for two years with conditions, was the appropriate sanction in this matter. After reviewing the allegations, Scott’s lack of prior disciplinary record, and the cases cited by the KBA, this Court concludes the discipline proposed by Scott, and agreed to by the KBA, is appropriate.
A California attorney admitted pro hac vice has been reprimanded by the South Carolina Supreme Court for frivolous litigation in a family matter
Respondent's great-aunt passed away in February 2009, and through a series of frivolous pleadings, motions, and appeals, Respondent raised various challenges to the will and protracted the related litigation for over ten years until the Supreme Court of the United States finally denied her petition for a writ of certiorari. See Fisher v. Huckabee, 140 S.Ct. 59 (2019) (denying certiorari); Fisher v. Huckabee, 422 S.C. 234, 811 S.E.2d 739 (2018) (rejecting Respondent's legally flawed claims). In our opinion addressing the lower court's award of sanctions against Respondent, this Court concluded Respondent lacked standing and repeatedly pursued claims that were meritless and wholly without evidence to support them. Fisher v. Huckabee, Op. No. 2018-MO-039 (S.C. Sup. Ct. filed Dec. 12, 2018) (withdrawn, substituted, and refiled Jan. 16, 2019). In doing so, we observed Respondent "has certainly engaged in abusive litigation tactics that amount to sanctionable conduct" under Rule 11, SCRCP. Id. at 3. Respondent's misconduct resulted in a substantial waste of time, judicial resources, and estate assets.
Rule 11 sanctions were imposed in the underlying matter. (Mike Frisch)
The Florida Supreme Court sustained misconduct findings but increased a referee's proposed 90 day suspension to two years
This case arises from Phoenix’s involvement with Cay Clubs Resorts and Marinas (Cay Clubs), a company that pitched to investors the opportunity to buy and profit from the management of vacation rental units. Phoenix was Cay Clubs’s lawyer, in one way or another, from 2005 until 2007. The trouble is, Cay Clubs turned out to be a Ponzi scheme: it made so-called “leaseback” payments to initial investors using money from new investors and failed to disclose this practice on federal mortgage loan documents. As Senior Vice President and General Counsel of Cay Clubs, Phoenix knew about and participated in Cay Clubs’s Ponzi scheme. When the scheme collapsed, the U.S. Attorney’s Office for the Southern District of Florida (USAO) investigated and prosecuted Cay Clubs’s executives and legal representatives. Phoenix cooperated with the USAO in exchange for its agreement that he would not be prosecuted. He never told The Florida Bar (Bar) about that agreement. Years later, the Bar found out and initiated disciplinary proceedings against Phoenix for his role in Cay Clubs’s Ponzi scheme. Phoenix has repeatedly denied any wrongdoing. He challenges virtually all elements of the proceedings as improper and specifically alleges that the referee’s findings of fact are not supported by competent evidence.
As to sanction, the court considered his non- prosecution agreement: "we need consider nothing else."
On its face, in its first paragraph, the NPA provides that the USAO will “not criminally prosecute [Phoenix] for any crimes related to [his] participation in the criminal conduct set forth” in an attachment to the NPA. There is no ambiguity about whether the conduct it recounts is criminal in nature. It is. Phoenix may have avoided prosecution for his involvement in that criminal conduct, but by entering into the NPA, Phoenix “admits, accepts, and acknowledges responsibility for the conduct set forth” in the agreement.
Here, the court rejected a number of challenges to the proceedings and findings below.
The successor referee characterized Phoenix’s narrative as casting “other Cay Clubs executives in the role as villain, and himself in the role of hero. Essentially, he argues that he alone tried to thwart the illegal practices, did so valiantly, and singlehandedly shut down the sales operations when [his] attempts were ultimately thwarted.” We cannot square that description of his role with his admissions in the NPA or with his .decision not to bring the NPA to the Bar’s attention.
The Wisconsin Supreme Court has revoked a convicted attorney's license
On August 16, 2013, Attorney Dudas was charged with 31 criminal counts in Outagamie County Circuit Court. On April 30, 2014, following a trial, an Outagamie County jury found Attorney Dudas guilty of 30 criminal counts, including felony first degree sexual assault, felony second-degree reckless injury, felony substantial battery, 14 counts of felony second-degree sexual assault, 11 counts of felony strangulation and suffocation, one count of misdemeanor battery, and one count of misdemeanor intimidation of a victim.
The criminal appeals were not concluded until 2020
The court of appeals affirmed the judgment of conviction on February 18, 2020. On June 16, 2020, this court denied Attorney Dudas' petition for review.
Sanction and timing
Having reviewed the stipulation and the OLR's memorandum in support of the stipulation, we approve the stipulation and adopt the stipulated facts and legal conclusions of professional misconduct. Given the extreme seriousness of the felony criminal convictions that underlie the misconduct allegation contained in the OLR's complaint, we agree that the revocation of Attorney Dudas' license to practice law in this state is an appropriate level of discipline. Consistent with this court's treatment of discipline imposed in proceedings that are filed following an SCR 22.20 summary suspension, we agree that it is appropriate to set the commencement date of the revocation for May 21, 2014, the effective date of the underlying SCR 22.20 summary suspension.
The Court of Appeals opinion is linked here and describes a July 2013 incident
That evening, one of Jane and Dudas’ five children called 911 after Jane ran from her bedroom, covered in blood, and screamed for help. Jane subsequently informed law enforcement that Dudas had physically and sexually assaulted her, and that he had videotaped himself doing so. She also stated that he had committed similar assaults during the past year, and that he had also videotaped some of those incidents.
Law enforcement searched Dudas’ house and located eighteen DVDs. Seventeen of those DVDs contained recordings of Dudas engaging in violent activity with Jane. This activity included Dudas: pushing and holding Jane’s head against his penis during fellatio, to the point that Jane choked, gagged and vomited; placing his fingers into Jane’s mouth to the point that she choked, gagged and vomited; rubbing Jane’s vomit onto her face; pulling and twisting Jane’s nipples to the point that a pus-like substance began to discharge from them; anally penetrating Jane while she expressed pain and asked him to stop; pinning Jane’s arms behind her back after she indicated that he was hurting her; and placing his hand around Jane’s throat and squeezing until she struggled for air.
Police determined that the DVDs depicted activity that took place between March 2012 and July 2013. They further determined that none of the DVDs depicted the specific events of July 21, 2013. The Information ultimately charged five counts relating to the July 21 event, with the remaining counts corresponding to recordings found on ten of the recovered DVDs.
Post Crescent reports he received a 30-year prison sentence. Mike Frisch)
Wednesday, January 27, 2021
The Illinois Supreme Court has acted in a number of bar discipline matters described in this Announcement by the Attorney Registration & Disciplinary Commission
Ms. Calloway, who was licensed in 1994, was suspended for one year and until further order of the Court. She made false statements to a federal judge about her authority to settle a case, then made additional false statements to her supervisors about the case’s status. She also settled a separate case without authority and made false statements to another attorney about the status of that case.
Mr. Cohn, who was licensed in 1983, was suspended for six months and until he completes the ARDC Professionalism Seminar. He engaged in conduct with no substantial purpose other than to embarrass, delay, and burden a third person in the course of pending litigation by using vulgar and abusive language toward his female opposing counsel during a deposition. The suspension is effective on February 11, 2021.
Our earlier post on this matter linked here.
Mr. Field, who was licensed in 2011, was suspended for three years and until further order of the Court. He made false statements in federal court pleadings and in communications with opposing counsel and court personnel alleging a fictitious illness as his reason for seeking extensions of time in matters. He also made false statements on his law school and bar admission applications and to the ARDC.
Mr. Freund, who was licensed in 1984, was disbarred on consent following his criminal convictions for the crimes of aggravated battery of a child, involuntary manslaughter, and concealment of homicidal death.
Our prior coverage here
Mr. McWard, who was licensed in 2017, was suspended for 90 days. While acting as an Assistant State’s Attorney, he provided incomplete or false information to a judge in order to cause the judge to set a lower bond amount for an individual under arrest. He also made false statements to his supervisors regarding his involvement in the matter and his telephone conversation with the judge. The suspension is effective on February 11, 2021.
Mr. Wettermann, who was licensed in 1995, was disbarred on consent. Over a five-year period, he submitted more than 380 requests that his firm reimburse him for travel, lodging, and dining expenses relating to client matters, totaling approximately $360,000. The firm’s subsequent review of those requests determined either that the trips had not been taken or that there was insufficient proof to show that the expenses had actually been incurred.