Wednesday, February 14, 2024
An Illinois Hearing Commitee found that an attorney had altered internal work emails that he had created himself to appear to have been sent by his supervisor.
The substance of the emails involved denial of three claims assigned to him when he was employed by Stewart Title Guaranty Company
Based upon our assessment of witness credibility, our resolution of conflicting testimony, and our evaluation of all of the evidence presented to us, we find that the evidence clearly and convincingly established that Respondent altered emails to make it appear as though Rickenbach had approved the denial of the Wolffe, Summit, and Beck-Quale claims when, in fact, she did not send Respondent emails approving those denials.
We therefore find that the Administrator proved that Respondent engaged in dishonest conduct in violation of Rule 8.4(c).
we have considered his primary theory of defense, which is that, in retaliation for his filing a human resources complaint, Stewart employees manufactured a pretext to fire him by making it appear as though he fabricated the Wolffe, Summit, and Beck-Quale emails when he did not do so. We found the evidence provided by Respondent to be insufficient to cast doubt upon the credible testimony of Rickenbach, McBee, and Vishnevetsky, as well as the documentary evidence that supports their testimony.
We found Respondent’s version of events to be highly implausible. We also found much of his testimony to be vague, confusing, and occasionally contradictory, and therefore not credible. See In re Wilkins, 2014PR00078, M.R. 028647 (May 18, 2017) (Hearing Bd. at 18) (hearing panel is not required to accept testimony that is inherently improbable and contrary to human experience).
In addition, other than Respondent’s own testimony, the record is utterly devoid of evidence that would substantiate his claim that Stewart employees essentially framed him by making it appear as though he altered the emails in question when he did no such thing. We acknowledge that Vishnevetsky could not reach a conclusion as to who altered the emails. However, his definitive and uncontradicted expert testimony that they had been altered, combined with documentary evidence indicating that Respondent sent the emails and the absence of any evidence that another Stewart employee had access to Respondent’s computer or email account, convince us that Respondent altered the emails in an effort to deceive his employer.
Given the minimal mitigation and serious aggravation present in this matter, we find that Respondent’s conduct warrants a six-month suspension. In addition, based upon Respondent’s antagonistic behavior toward his opposing counsel during his disciplinary proceedings, we believe that Respondent would benefit from a review of his professional obligations. We therefore recommend that Respondent be required to successfully complete the ARDC Professionalism Seminar before resuming practice.
A conviction for possession of child pornography drew license revocation from the Ontario Law Society Tribunal Hearing Division
Mr. Martosh had come to the attention of the YRPS Internet Child Exploitation Unit after he uploaded a single image of child pornography on his Microsoft Skype account. Microsoft then contacted the National Center for Missing and Exploited Children in the United States, who then contacted its counterpart in Ottawa, the National Child Exploitation Coordination Centre. The YRPS was then contacted.
Mr. Martosh’s position is that he accepted revocation in order to bring this matter to an end. His position, which is reflected in the criminal sentencing reasons, is that he has taken significant steps to address his misconduct. Mr. Martosh has co-operated and has admitted his misconduct. The consequences of Mr. Martosh’s conviction on his life have been significant. His position is that he has chosen to accept revocation despite the fact that there are significant mitigating circumstances.
There are important questions that arise in cases such as this. Should all child pornography cases be treated in the same way for penalty purposes? Is the importance of general deterrence and maintaining public confidence such that revocation should ordinarily be ordered in child pornography cases? If so, what kinds of mitigating factors should be considered to be effective in reducing revocation to a lesser penalty?
Tuesday, February 13, 2024
The web page of the California State Bar Court notes the summary disbarment of a convicted attorney.
The Orange County Register reported
Attorney Bonnie Roadarmel was well-connected and well-heeled, buying first-class airfaire to Paris and shopping at Hermes, Chanel and Karl Lagerfeld.
Married to a former supervising deputy in the state Attorney General’s Office, Roadarmel was a partner at a top Orange County legal firm, specializing in insurance law.
By contrast, her former boss, Stephen Kanne, an attorney who retired from a successful real estate law practice on the Westside of Los Angeles, lived a much more spartan lifestyle, but not by choice.
In May 2021, Kanne, 89, discovered why, in the words of his 74-year-old wife, Claudia, “we were always broke.”
Roadarmel, who had volunteered decades earlier to manage the couple’s finances for free, had allegedly siphoned more than $500,000 from them in just the past 10 years, according to documents Kanne supplied to police and the State Bar of California.
Some of their money went to pay down multiple American Express cards in Roadarmel’s name, as well as one in the name of her husband, Paul Roadarmel, documents show.
The evidence was solid. Bonnie Roadarmel, 62, pleaded no contest in Los Angeles County Superior Court on May 23 to two counts of felony elder abuse with a fraud enhancement. She had been charged with nine counts.
Roadarmel was sentenced to four years in state prison, but that term was suspended in favor of a sentence of one year in county jail, which could be further reduced for good behavior.
She is in custody at the Century Regional Detention facility in Lynwood and due to be released on Nov. 27. Her law license as well as that of Paul Roadarmel are listed as “inactive.” A notice alerting consumers to Bonnie Roadarmel’s felony case is listed on her bar profile.
In a text message to Stephen Kanne, Bonnie Roadarmel apologized and said her husband knew nothing of her misdeeds.
“I’m sorry for what I did to you and Claudia. There’s no excuse for my action,” Roadarmel texted on May 24, 2021, a week after he discovered the embezzlement, according to a photograph of the text provided by Kanne.
“I will repay you for all I took from you and Claudia. … I hope you won’t prosecute.”
But the Kannes went to the police.
Before her conviction, Bonnie Roadarmel paid $630,251 in restitution, according to a court minute order.
‘I will always despise her’
But the pain remains for Stephen and Claudia Kanne, who live in the Mandeville Canyon area of Los Angeles.
“If she hadn’t been caught, then she would have gone on to deprive me of perhaps the single most important thing in my life — ensuring that Claudia would live in comfort after I passed away,” Stephen Kanne said in his victim’s statement to the court. “And for that I will always despise her.”
At his age, Stephen Kanne told the court, he doesn’t leave home much because of health issues. So the restitution doesn’t do him much good now.
“It was just Bonnie’s way of trying to buy her way out of state prison,” he told Superior Court Judge Katherine Mader.
Bonnie Roadarmel’s attorney, Katherine Corrigan, declined comment. No photographs could be found of Bonnie Roadarmel and the Los Angeles County Sheriff’s Department would not release her booking shot. Paul Roadarmel, who retired in July 2022 from the Attorney General’s Office, did not return an email seeking comment.
The Los Angeles County District Attorney’s Office also declined to comment.
Tale of betrayal
The Roadarmel case is one of heartbreak and betrayal.
In an interview, Stephen Kanne said he first met Bonnie Roadarmel when she applied for a clerking job in his office at the age of 23 in the early 1980s. As his staff dwindled with the sour economy, Roadarmel remained and eventually worked her way up to office manager in 1987, he said. By the time he retired in 1994, there was only him and Roadarmel.
“Anything I asked her to do, she was just the tops,” Stephen Kanne said. “Bonnie handled all of the bookkeeping, including my personal stuff, and I did the legal stuff.”
He said Bonnie asked if she could continue handling his personal finances after he took down his shingle, declining to accept any compensation. She had signing authority on his checks as part of the arrangement
“Whenever I wanted to go on vacation, I would check with Bonnie to see if I had enough money,” Claudia Kanne recalled in an interview.
On birthdays and special occasions, Roadarmel showered the Kannes with expensive gifts: decorative plates and a crystal bowl from Tiffany, extravagant floral arrangements and the like. But Roadarmel never visited the couple.
Claudia Kanne said she always wondered why she and her husband never had any money. They lived frugally, she said.
“I’ve never been in a beauty parlor since the junior prom,” Claudia Kanne said. “I cannot even pronounce (Hermes). I go to the grocery and come home and take care of my husband, because that’s the kind of lifestyle I thought I could afford.”
In her victim’s statement, she told the court, “As far as Tiffany’s, I saw the movie once, ‘Breakfast at Tiffany’s,’ but that’s as close as I’ve gotten, because … we were always broke.”
Meanwhile, Bonnie Roadarmel graduated from Loyola Law School in 1999 and eventually specialized in representing insurance policy holders. She worked her way up to a partnership at Newmeyer Dillion in Newport Beach.
Bonnie Roadarmel no longer works there, but her bio is still on the company website, touting that “she has successfully recovered millions of dollars for policy holders.”
Then the embezzlement scheme unraveled. In May 2021, Stephen Kanne called his bank to make sure one of his checks had cleared. He said he got a call back from a customer service representative asking who Bonnie Roadarmel was. The bank official explained that she had written several checks to herself, Kanne said.
He also learned there were payments to American Express on cards that he did not own. Kanne called an attorney, who then called Irvine police. An officer questioned Roadarmel and she immediately texted Kanne, according to a memo prepared by his attorney, Terry Kaplan, and submitted to the State Bar. A copy also was given to the Los Angeles Police Department, which took over the case.
While Roadarmel had worked as the Kannes’ personal bookkeeper since at least 1994, she turned over to them only 10 years of financial records, beginning in 2011. Among the files was an envelope containing American Express statements for cards paid down by the Kannes.
Scattered among the charges for such sundry items as gas stations, car washes, hair stylists and dry cleaners were a $9,056 round-trip ticket to Paris, France, nearly $70,000 over three years for luxury goods from Hermes, $15,677 for Chanel over a three-month period, and hundreds of dollars in charges for a private car service, according to an accounting submitted by the Kannes to police and the State Bar.
Payments also were made to insurance companies to presumably cover hundreds of thousands of dollars worth of jewelry, according to Kannes’ submission to the police and bar.
“I really thought she was a special person,” reflected Stephen Kanne. “She played me like a Stradivarius.”
The Kannes said they believe Bonnie Roadarmel got a sweetheart deal in court because of her professional and personal connections.
Said Stephen Kanne: “She got a slap on the wrist with a feather.”
Recent discipline reported on the web page of the Alabama State Bar
Discipline Imposed: Public Reprimand With Publication
Discipline Imposed: Public Reprimand With Publication
An Illinois Hearing Board recommends a public censure of an attorney for violation of the sex with a client rule
L.F.’s and Respondent’s testimony about the trajectory of their relationship was generally consistent. Respondent began representing L.F. in August 2014 in a telephone harassment criminal case. (Tr. 25-26, 81). Flirtations between Respondent and L.F. turned into texting of a sexual nature and then a physical sexual relationship. (Tr. 26-27, 30, 38-39, 113-19, 152-53; Adm. Ex. 3). Respondent admitted that he did not have an ongoing sexual relationship with L.F. in August 2014, when he began representing her, and that he and L.F. began a sexual relationship in October or November 2014. (Ans. at pars. 4, 5). Respondent and L.F.’s relationship ended shortly after her criminal case concluded in April 2015. (Tr. 44, 47, 154-55)
L.F. testified that she felt “used” by Respondent, hurt, embarrassed, and angry about his “abuse of power” during their relationship, which she struggled with for years before reporting him to the ARDC in 2022. (Tr. 46-47, 49, 51). She felt a power imbalance between them while her criminal case was pending because she was “in a vulnerable state” at that time and because of Respondent’s role as her attorney, which could affect the case outcome. (Tr. 43).
Respondent acknowledged that a client facing criminal charges trusts her attorney and is in a vulnerable position, but L.F. did not express to Respondent that she felt there was a power imbalance or that he was taking advantage of her during his representation. (Tr. 151-52, 206). Respondent maintained that, although his judgment was compromised in that he chose to have a sexual relationship with his client, it did not affect his ability in the courtroom, and “I would handle that case exactly the same today as I did back then.” (Tr. 200-06). L.F. was charged with telephone harassment for threatening and cursing at an attorney who represented her then-husband’s ex-wife in post-decree litigation. (Tr. 21-22, 55-56). Although this Class A misdemeanor was punishable by up to 364 days in jail and a $2,500 fine, L.F. was sentenced to supervision due to Respondent’s advocacy at her trial. (Tr. 82, 93)
After Respondent and L.F.’s relationship ended in April 2015, Respondent made changes in his life. In 2016, he moved downtown, started weekly to biweekly talk therapy with a psychologist, and met his current wife, who he married in 2019. (Tr. 130, 147, 149). He stopped mental health treatment prior to the pandemic in 2020 because he was no longer depressed. (Tr. 148-49). Respondent reflected, “My life has improved tremendously since then, with not only getting married, but having a baby; having a firm; kind of doing better each year.” (Tr. 150). He further explained, “the biggest thing I learned from therapy is don’t move the goal post. You know, I might not be at the final point that I want to be at, but anytime I’m making progress, I need to look at progress, and not look at the gap.” (Tr. 150-51).
The Administrator sought a short suspension
we find that the Administrator did not prove by clear and convincing evidence that Respondent asked L.F. to promise not to report him to the ARDC. L.F. and Respondent presented conflicting interpretations of their ambiguous text messages about promises. We find that Respondent’s explanation that “do[ing] something you promised you never would” and “promis[ing] me no matter what you would never abandon or hurt me” reasonably refers to his fear, as a divorcee suffering from depression, that L.F. would suddenly end their relationship. We do not find that these text messages, without additional corroboration, refer to a promise prompted by Respondent that L.F. would not report him to the ARDC.
For these reasons, we find that the only proven aggravation is Respondent’s persistence in knowingly violating Rule 1.8(j) for an ongoing period of six to seven months while he remained in a sexual relationship with L.F...
On balance, we determine that censure is the most appropriate sanction in this matter, where the only misconduct is a violation of Rule 1.8(j) and there is minimal aggravation and significant mitigation. In light of Respondent’s recognition of his wrongdoing, genuine remorse, and subsequent life changes, we find that he is unlikely to repeat his misconduct. Because we do not believe he poses a risk to the public or the profession, we determine that a censure fulfills the goals of the disciplinary process.
The Idaho Professional Conduct Board accepted a stipulated reciprocal public reprimand based on a sanction imposed in Utah.
The attorney was the subject of an investigation in Utah that was initiated by a trust account check overdraft.
Mr. Atkin responded by stating that the check was made to himself for fees charged to one client over several months, that the overdraft occurred because he did not realize the account had been depleted to the point that it did not meet that month’s billing, that he withdrew the amount indicated on the check from the account because he had billed his client over a period of months for that amount of work performed and that the money was earned. Mr. Atkin provided a copy of the check causing the overdraft and explained that it was payable to his firm. The check referenced one client’s name in the memo line. Mr. Atkin refused to produce the information requested by the [Utah State Bar Office of Professional Conduct], such as monthly bank statements, billing records, ledgers and accounting records because of his confidentiality obligations to his clients under U.R.P.C. 1.6.
The OPC thereafter sent several letters to Mr. Atkin explaining that certain disclosures of confidential information were permitted under U.R.P.C. 1.6. In these letters, the OPC again requested Mr. Atkin’s monthly financial statements and billing records for the client whose fees were involved in the check that created the overdraft. Mr. Atkin responded but continued to object to the OPC’s request and refused to provide the requested information. The OPC subpoenaed Mr. Atkin’s bank statements but the information was inconclusive without his billing records to determine when the funds connected to the subject client were deposited into his trust account.
Finally, because Mr. Atkin refused to comply with OPC’s demands for his billing records, it filed a Complaint against Mr. Atkin in District Court in December 2022, alleging violations of U.R.P.C. 1.5(a), 1.15(a), 1.15(c) and 8.1(b) by knowingly refusing to respond to a lawful demand for information from a disciplinary authority, by obstructing the OPC’s investigation of the insufficient funds notice, and by failing to provide documents necessary for OPC’s investigation of insufficient funds in his trust account. During the discovery phase of the case, Mr. Atkin still refused to produce the requested documents until the District Court ordered him to and he complied and produced redacted copies.
The misconduct involved failure to fully cooperate in the investigation by asserting client confidentiality in support of his non-disclosure of information to Utah authorities.
In October 2023, the OPC and Mr. Atkin entered into a Discipline by Consent and Settlement Agreement whereby Mr. Atkin admitted that he violated U.R.P.C. 8.1(b) in that he knowingly refused to respond to a lawful demand for information from a disciplinary authority based on his reliance on U.R.P.C. 1.6, that he obstructed and delayed the OPC’s investigation of the insufficient funds notice, and that Mr. Atkin’s failure to provide the documents necessary for OPC’s investigation of insufficient funds in his trust account resulted in a District Court case being filed. In recommending that a Public Reprimand be imposed, the parties stipulated that a mitigating circumstance was the absence of a dishonest or selfish motive because Mr. Atkin believed he was protecting his clients.
The Ontario Law Society Tribunal Hearing Division denied a motion to disclose electronic records
This is a motion by the licensee Rob Moubarak for disclosure of electronic records alleged to be in the possession of two complainants, Persons A and B. Each has complained to the Law Society that he sexually harassed them. The licensee also seeks production of additional records from Persons A and B with respect to their communications with the Law Society. These materials, he says, are “likely relevant” to his motion to set aside an agreed statement of facts (ASF) he executed in this application and to a hearing on the merits.
Sunday, February 11, 2024
The North Dakota Supreme Court has ordered a 30-day suspension of an attorney
The hearing panel concluded Spencer’s conduct violated N.D.R. Prof. Conduct 8.4 by attempting to violate Rule 1.1 regarding competence by showing up to represent a client while under the influence of alcohol and causing the repeated need for the matter to be rescheduled.
The hearing panel considered aggravating factors of prior disciplinary offenses, a pattern of misconduct, and selfish motive. The hearing panel recommended Spencer be suspended from the practice of law in North Dakota for 90 days, be placed on probation with conditions for two years following the suspension, and pay $250 in costs and expenses of the disciplinary proceeding.
Proposed sanction reduced
The Court adopts the hearing panel’s findings and conclusions. It concludes a 90-day suspension is not an appropriate sanction. Instead, it orders a 30-day suspension.
The court further ordered a two-year probation
1. Spencer is required to undergo a mental health evaluation within 30 days of this order to determine the appropriate course and cost of treatment and monitoring by RecoveryTrek, the costs and expenses of which are to be paid by Spencer.
2. Spencer continue meeting with a mental health professional at a frequency determined by the mental health professional to address any mental health and substance abuse issues, the costs and expenses of which are to be paid by Spencer.
3. Spencer attend weekly sobriety support meetings, which will be monitored by RecoveryTrek.
4. Spencer submit quarterly self-monitoring reports to the Office of Disciplinary Counsel addressing compliance with the terms of probation.
Saturday, February 10, 2024
Jeffrey Clark has responded to the motion to compel filed by District of Columbia Disciplinary Counsel with his usual ad hominem attacks on his prosecutors
ODC’s request to “compel” Respondent to comply with this Court’s January 19 order is frivolous. ODC does not cite any legal authorities or, most importantly, specify in what respect Mr. Clark violated the January 19 order. The order itself is phrased in permissive terms and does not require the parties to eliminate some specific number of witnesses or exhibits. Mr. Clark did not violate the order.
In reality, ODC appears flummoxed by Respondent’s assertion that he will make all arguments not foreclosed by January 11 order in support of evidence that will support his defense. However, there is nothing inappropriate about this position and, in fact, a vigorous defense of Mr. Clark requires no less. If Mr. Clark is unable to lay a foundation for post January 3 evidence that is compliant with the January 11 order, then much of the evidence may indeed be excluded. However, there is nothing ex ante compelling Mr. Clark to waive his right to attempt to lay such foundation and he does not so waive. ODC has no valid objections to this position other than to complain that it is not the most conducive for ODC’s preferred trial preparation.
The balance of ODC’s motion consists largely of by-now-familiar ad hominem personal attacks about the defense’s “effort[s] to delay and obstruct these proceedings” by making legal arguments. Respondent will not respond at length to these attacks other than to state that he will defend against ODC’s attempt to steal his livelihood and besmirch his name with all evidence and arguments available to him. The motion to compel should be denied.
The allegations are that Respondent attempted to steal the 2020 election and besmirch democracy.
If Disciplinary Counsel cannot establish those contentions by clear and convincing evidence, the case will be dismissed. If the violations are established, Respondent will face appropriate discipline.
In either event, no theft occurs.
Such is the price one pays for the privilege of bar admission.
Cry me a river. (Mike Frisch)
Friday, February 9, 2024
A petition for writ of certiorari has been filed in the United State Supreme Court seeking review of sanctions imposed on two Maryland lawyers for their criticism of judges
Within a two week span in August of last year, the Supreme Court of Maryland decided Attorney Grievance Comm’n v. Pierre, 485 Md. 56, 300 A.3d 201 (2023), and Attorney Grievance Comm’n v. Weinberg, 485 Md. 504, 301 A.3d 142 (2023). In each case, the justices sanctioned lawyers for impugning the integrity of their colleagues in violation of the Rules of Professional Conduct. See MD. RULES 8.2(a), 8.4(d).
Enacted in all but two jurisdictions, Rule 8.2(a) of the Model Rules of Professional Conduct was designed to preserve, rather than curtail, the First Amendment rights of lawyers. Replacing the strictures of older disciplinary rules, the drafters lifted its language directly from [New York Times v.] Sullivan. Tarkington, The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97 GEO. L.J. 1567, 1587 (2009).
Importing Sullivan‘s “actual malice” test, the rule only punishes speech which the lawyer knows to be false, or which was uttered with serious doubts as to the truth. Like Sullivan, the drafters refused to impose more restrictive standards which would punish lawyers for errors committed during robust debate. Rather than punish the expression of sincere beliefs, the drafters cited Sullivan to explain that “[t]he Supreme Court has held that false statements about public officials may be punished only if the speaker acts with knowledge that the statement is ‘false or with reckless disregard of whether it is false or not.’” Tarkington, infra, at 1587, quoting MODEL RULES OF PROF’L CONDUCT R. 8.2 Legal Background at 206 (Proposed Final Draft 1981). By reciting this language verbatim, “Rule 8.2 is consistent with that limitation.” Id.
This has not stopped states from exceeding this constitutional limitation. Placing the reputations of their colleagues above the First Amendment rights of those appearing before them, a majority have abandoned this Court’s “subjective” test in favor of an “objective” standard which punishes their haste. Sanctioning lawyers for negligence alone, these judges expect them to conduct “reasonable investigations” before engaging in debate.
Faced with conflicting tests employed in various state and federal courts, the Supreme Court of Maryland declined to endorse either. By failing to apply Sullivan’s actual malice test, Maryland has abandoned this Court’s First Amendment principles to the same extent as those courts which have done so expressly.
Without clear standards for punishing such criticism, lawyers in Maryland and in most other states must guess about their constitutional freedoms. Subjected to vague, inconsistent, and non-existent standards, lawyers who dare to criticize judges must risk their careers for speaking truth to power.
As this Court watched in silence, judges have silenced their critics by deviating from its First Amendment principles. After 40 years of errant case law, the time has come for this Court to establish national uniformity and reaffirm the principles set forth in Sullivan. Arising both within and outside of the election context, Pierre and Weinberg provide this Court with ideal opportunities to clarify the First Amendment rights of all lawyers in all situations.
The First Amendment Lawyers Association filed an amicus brief in support of Supreme Court review.
I certainly agree that Rule 8.2 is over-prosecuted against those who "speak truth to power." I am pleased to note that the District of Columbia Court of Appeals declined to adopt Rule 8.2. (Mike Frisch)
A prosecutor's interactions with a criminal defendant drew a three-month suspension from the New Jersey Supreme Court.
The defendant was charged with driving while intoxicated and related offenses and had been accepted for pretrial diversion as described by the Disciplinary Review Board
In the interim, on April 3, 2018, respondent prosecuted K.O. in an unrelated traffic matter, wherein the motor vehicle violation was dismissed. He had not met K.O. prior to this date. After the April 3 proceeding, he followed K.O. out of the courtroom; approached her; complimented her on her smile; gave her his e-mail address; and told her that if she needed anything in the future, she should contact him.
They began to communicate about the related pending municipal court matter
Soon after K.O. contacted him, respondent reviewed the municipal court docket and learned about her pending motor vehicle charges stemming from the car accident. He also learned that, in the Superior Court proceeding on the indictable CDS offense, she had been admitted into PTI. After reviewing this information, respondent wrote to K.O., via text message, stating that he understood she had contacted him because the Superior Court had remanded the traffic charges to the court where he was municipal prosecutor.
Thereafter, respondent continued to communicate with K.O. about her pending municipal court matter. At some point, he learned that the same defense attorney who had represented her in Superior Court also was representing her in the municipal matter. Nevertheless, he continued communicating with K.O. directly about the latter. In the course of these exchanges, he repeatedly advised her that she should not tell her attorney or anyone else about their communications. He also repeatedly complimented her appearance and personality.
He got her matter assigned to him, made false statements to the court and her municipal case dismissed
On dates subsequent to the August 28, 2018 proceeding, respondent sent K.O. additional text messages. In particular, on September 4, 2018, he sent her a number of text messages complimenting her appearance and asking to meet with her. However, by that time – unbeknownst to respondent – K.O. had contacted her relative, who worked in the prosecutor’s office in a different county, regarding respondent’s communications with her. Her relative had forwarded the information to the appropriate authorities, prompting the [Atlantic City Prosecutor's Office] to open an investigation into the matter.
Respondent pled guilty to contempt of court and reported the conviction to disciplinary authorities.
Here, respondent’s messages to K.O. – who knew of his public office as municipal prosecutor – strongly implied that he could assist her in her municipal court matter in ways that were evidently improper, given his insistence that she inform no one of their communications. Asked by her, “how long do you think I’m gonna lose my license for?” he replied, “[y]ou will be fine,” followed by, “[y]ou can never tell [your attorney] we talk[.]” Similarly, his statement (in a sequence of texts discussing the upcoming proceeding), that “[i]t will be fine as long as you NEVER tell anyone we talk EVER,” resoundingly signaled improper influence, whereby her matter would turn out “fine” contingent on her keeping her exchanges with him secret.
...On balance, we determine that the mitigating factors outweigh the aggravating factors and, thus, a three-month suspension is the appropriate quantum of discipline to protect the public and to preserve confidence in the bar.
Member Campelo voted for a censure.
Thursday, February 8, 2024
A former judge who had been retired from office has been suspended for one year by the New Jersey Supreme Court for his contact with the employee of a physician-client.
Effective September 12, 2019, following his arrest for fourth-degree criminal sexual contact, in violation of N.J.S.A. 2C:14-3(b), the Court temporarily suspended respondent from his judicial duties.
On August 31, 2020, respondent retired from judicial office.
The victim here also was a former client of respondent.
The Disciplinary Review Board described the encounter
According to J.D., respondent approached her at the conclusion of their meeting, said happy birthday, and “leaned towards a hug” with outstretched arms. J.D. testified that she previously had never hugged respondent, who is forty-five years older than her, during their twelve-year professional relationship. Although she felt uncomfortable, J.D.testified that she gave respondent a “halfway hug,” at which point respondent pulled her toward him into a prolonged embrace. Respondent also began rubbing her back “up and down” with both of his hands.
J.D. testified that she was “uncomfortable,” and immediately attempted to push respondent away, but respondent placed his hands on either side of her breasts and ribcage and held her tightly. J.D., who is 5’5” continued to resist, however, respondent, who is 5’10” and weighs approximately 280 pounds, placed his hands directly on her breasts and squeezed them, prompting J.D. to push him away.
Respondent then grabbed J.D.’s wrist and, according to J.D., said “come on, let me touch you, let me play with you.” J.D. recounted that all she could think about in this moment was “trying to get out [of the] office because he’s a heavy guy and he’s grabbing my wrist and he’s like, come on, let me touch you, let me play with you and I’m like no, no.” J.D. continued to struggle with respondent, repeatedly telling him “no,” until he eventually released her wrist.
Once respondent released J.D.’s wrist, he reached for his wallet and offered J.D. “birthday money,” which she refused. J.D. testified that she abruptly left respondent’s office, “ran down the steps,” and returned to her workplace, where she told her boss what had just transpired.
Respondent, on the other hand, testified that, after he and J.D. had concluded their discussion relating to the real estate matter, he “got up to escort her out,” and she informed him it was her birthday to which he replied “congratulations, happy birthday.” According to respondent, J.D. then told him to hug her because it was her birthday, to which he replied “I prefer not to.” (OAEbp7;T88). However, J.D. had her arms outstretched, came closer to respondent, and hugged him; in response, he patted her back.
Although he admittedly touched the sides of J.D.’s breasts after reluctantly hugging her, he denied squeezing the front of her breasts. Respondent maintained that he was “embarrassed” and that the touching had been “accidental.”
J.D. went to the police and engaged in a consensual intercept of conversations with Respondent
respondent was arrested and charged with fourthdegree criminal sexual contact, in violation of N.J.S.A. 2C:14-3(b). On March 12, 2020, he was admitted into the pretrial intervention program (PTI). On May 18, 2021, after successfully completing the conditions of PTI, the charge against respondent was dismissed.
Respondent’s additional misconduct – namely, his pervasive and persistent attempts to conceal his misconduct, initially with an offer of money to J.D. and thereafter by testifying falsely before the committee – cemented the committee’s recommendation. The ACJC concluded that respondent’s false swearing and attempts to manipulate the victim “irretrievably impugn [his] integrity and that of the Judiciary.”
Between April 2016 and September 2019, Branigan & Associates, LLC (B&A) embarked upon an extensive advertising campaign throughout New Jersey to solicit clients via direct mail solicitation letters. Although respondent did not personally transmit the solicitation letters, he acknowledged his responsibility for the content of B&A’s advertisements, given his status as the firm’s managing partner. Specifically, respondent claimed that he assigned other B&A attorneys to oversee the mailing of solicitation letters with his “general oversight.” In that capacity, respondent claimed that he took “reasonable steps to ensure quality control” by supervising his employees and by reviewing the templates of the solicitation letters before his staff sent them to prospective clients.
The Committee on Attorney Advertising had reviewed the numerous letters at issue
The CAA analogized respondent’s misconduct to that of the censured attorney in In re Rakofsky, 223 N.J. 349 (2015), who, as detailed below, fabricated his credentials in his attorney advertising. The CAA noted that, although respondent did not fabricate his credentials, he “displayed a similar level of arrogance and disdain for the advertising rules by sending a million noncompliant solicitation letters over an extended period of time, after the [CAA] had notified [B&A] that the letters violated the Rules of Professional Conduct.”
The DRB sustained numerous CAA findings of ethics violations and noted
respondent’s conduct during the disciplinary proceedings was deceitful and, at the very least, demonstrated a disdain for the disciplinary process designed to protect the public. Specifically, contrary to his sworn statements in his verified answer that B&A had, in fact, transmitted most of the solicitation letters presented by the OAE, during the ethics hearing, respondent refused to acknowledge that his firm had transmitted any of the letters and, instead, argued that the solicitation letters were admitted into evidence without any “chain of custody” and could have been found in a “dumpster” or in a “recycling bin in the back of a Walmart.” At other times, respondent baselessly alleged that the solicitation letters were “from a questionable origin” and may have been “manufacter[ed]” by B&A’s “competitors.”
Respondent further accused the OAE and the CAA of embarking upon an “utter witch hunt against him” based, in part, on his unsupported personal view that those entities were in an “unholy alliance” and held a “bias against him.” See In re Cubby, 250 N.J. 428 (2022) (according significant aggravating weight to the attorney’s baseless accusations that disciplinary authorities, prosecutors, and judges had conspired to falsely accuse him of misconduct; the attorney had engaged in a prolonged, scorched-earth strategy to undermine the disciplinary process).
In conclusion, during a three-and-a-half-year period between April 2016 and September 2019, respondent embarked upon an extensive and improper advertising campaign throughout New Jersey, during which his firm utilized grossly misleading letterheads and scare tactics in its attempt to solicit clients. Many of respondent’s letters contained grossly deceptive “COUNTY DIVISION” letterheads, improper “URGENT COURT MATTER!” notices on the envelopes, and misleading information regarding the penal and criminal consequences of committing traffic offenses. Rather than accept genuine responsibility for his firm’s advertising, respondent launched baseless attacks against the integrity of the OAE and the CAA, blamed B&A’s competitors for “manufacturing” the improper letters, and characterized the disciplinary proceedings against him as a “witch hunt.” In light of these aggravating facts, and considering that respondent’s culpability in B&A’s improper advertising campaign was far more egregious than that of Fritz, who received a reprimand, we determine that a three-month suspension is the appropriate quantum of discipline necessary to protect the public and to preserve confidence in the bar.
District of Columbia Disciplinary Counsel is (understandably) losing patience with Jeffrey Clark as reflected by a pleading filed on February 6
Disciplinary Counsel moves to compel Respondent Jeffrey B. Clark to comply with the Chair’s January 19, 2024, Order or else be prohibited from calling witnesses or offering evidence at the March 26, 2024, hearing.
From the outset of these proceedings, Mr. Clark has sought to delay. Delay is a common tactic, but it is not acceptable for Mr. Clark to simply refuse to comply with an order of the Chair, issued in an attempt to make the ensuing evidentiary hearing manageable. By Order dated January 11, 2024, the Chair denied Mr. Clark’s motion in limine seeking to admit evidence coming to light after January 3, 2021, and set a hearing for January 16 to discuss the effect of this ruling on the scheduling, evidence, and preparation of the evidentiary hearing. At that January 16 hearing, Mr. Clark, through counsel, conceded that the ruling on the motion in limine “will have an effect on the number of exhibits and the length of our presentation.” Tr. at 286. Counsel asked for “a little more time to give you a more specific estimate. . .” and also asked permission “to make a proffer as to the evidence that you are excluding so that it could be reviewed on appeal.” Id. at 286-87. The Chair clarified that this would be a written proffer from counsel. Id. at 288. The Chair also asked Mr. Clark’s lawyers to meet and confer with Disciplinary Counsel before January 30, which was the deadline set for Mr. Clark’s submission. Id. at 289-90. Mr. Clark’s lawyer also promised to submit “an updated supplemental report” from “a couple of my experts” by January 30, noting that if the experts could not finish their supplements by that date, “I will ask for more time for them . . . .” Id. at 290-91. These promises and representations were accompanied by the standard appeal for delay. Id. 309-16. Thereafter, by an Order dated January 19, the Chair asked the parties to file amended exhibit lists or witness lists and any change in the anticipated length of the hearing by January 30. If Mr. Clark wished to make any proffer concerning excluded exhibits, he was also to do so by January 30. Disciplinary Counsel complied with this order. Mr. Clark did not.
Instead, Mr. Clark did nothing. His lawyers never contacted Disciplinary Counsel to discuss compliance with the Chair’s Order. He filed nothing on January 30. In fact, after that deadline passed, Disciplinary Counsel emailed Mr. Clark’s lawyers to find out what was going on and received no response.
If Mr. Clark refuses to comply with the Chair’s January 19 Order, then the Hearing Committee should not permit him to present the testimony of others or present non-testimonial evidence, just as the Board Rules provide when a respondent fails to answer but appears at a hearing. See Board Rule 7.7. If the Committee is unwilling to do so, it must find some other way to impose order on these proceedings. For example, the Committee might limit the number of witnesses Mr. Clark can call to some reasonable number, such as fifteen, and require him to designate those fifteen witnesses, and the Committee could limit the total number of exhibits to 100 and require him to designate them. (Fifteen and 100 are more than the amounts Mr. Clark designated in December 2022.)
A reciprocal public reprimand has been imposed by the Louisiana Supreme Court for a Tennessee censure
Respondent purchased a law firm in Tennessee and filed an application for comity admission. Pursuant to Tennessee Supreme Court Rule 7, § 10.97, he was then authorized to practice law “pending admission” in Tennessee.
Respondent later withdrew his application for comity admission to practice in Tennessee. Thereafter, respondent was notified that his ability to practice “pending admission” was revoked.
For approximately sixty days, respondent stated on his website that he was licensed in Tennessee, although his “practice pending admission” had been revoked. This false statement resulted in potential harm to the public.
On October 5, 2023, the Board of Professional Responsibility of the Supreme Court of Tennessee censured respondent for violating Rule 7.1 (communication concerning a lawyer’s services) of the Rules of Professional Conduct.
Why no censure?
Because our rules do not provide for a public censure in bar disciplinary cases, we will impose a public reprimand, which is the closest equivalent available under our rules.
Wednesday, February 7, 2024
A sexual assault of a prospective client has led to a criminal conviction and disbarment by the British Columbia Law Society Hearing Division.
The client sought advice on her husband's bail and possible cohabitation after the husband had a charge of domestic assault
X came to see the Respondent at his place of business late that afternoon. The Respondent appeared disheveled. During the interview the Respondent asked X if she was married and X told him that she had been married for 29 years. X showed the Respondent some photos with respect to her business. He then moved closer to her, putting his head on her chest, rubbing her leg and moving his hand towards her crotch. She tried to stand up; he pushed her down and said, “Nicer you are to me now, the sooner we get your husband home.”
The assault lasted approximately 60 seconds. It was, understandably, very distressing for X, who was in a very vulnerable state. She told a friend about it on her way home from the Respondent’s office. Later that evening, she called the police. The ensuing police investigation resulted in the charge of sexual assault against the Respondent. The incident had a profound negative impact on X’s mental health, and has caused her to distrust not only lawyers, but other professionals.
In this case the Respondent’s conduct was indeed utterly reprehensible. A potential client came to see him in a vulnerable state looking for professional assistance. Instead, the Respondent preyed on the victim, X, and intimated that his assistance was dependent on her cooperation with his sexual advances. As the Panel has noted that these events have had a devastating impact on X, requiring medication, and has made her fearful of not just lawyers, but other professionals where there is a power imbalance.
The Respondent’s professional conduct record was entered into evidence in this proceeding. It is lengthy, and includes a prior citation for alarmingly similar circumstances – inappropriate and offensive behaviour towards a female client.
The Respondent was called to the BC Bar in 2015, after having practiced in California and Washington State. Although the Respondent had not practiced long in BC before this Citation was issued, he amassed a very concerning professional conduct record. The Respondent’s professional conduct record consists of various practice standards recommendations, including a monitored recovery agreement for alcohol or substance abuse. He has had to enter into undertakings not to practice criminal law, not to practice family law, and not to meet with any person under 19 or any female unless there is another person over 19 present in the room.
Taking into account all of the relevant factors, the only appropriate sanction in this case is disbarment. This takes into account the seriousness of the misconduct, the impact on the victim, the Respondent’s previous conduct record (including a six- month suspension for predatory conduct towards a client albeit without a criminal charge and conviction), and the absolute lack of any acknowledgement or remorse by the Respondent raises concerns about the Respondent’s potential for rehabilitation.
A one-month suspension has been ordered by the Ontario Law Society Tribunal Hearing Division
We concluded that the Licensee engaged in sexual harassment contrary to Rule 6.3-3 of the Rules of Professional Conduct (Rules) when he derogatorily described sex trade workers as “hookers” in front of his staff, causing them discomfort. He also engaged in sexual harassment with the use of a gendered expletive, “bitches,” in reference to post office staff with whom he and his staff had encountered difficulties.
We further concluded that contrary to Rules 6.3-3 and 6.3.1-1, the Licensee sexually harassed and discriminated against his receptionist by making multiple comments about her physical appearance, at times in front of clients. The comments had the effect of making the employee uncomfortable to the point where she left her employment.
The second area of misconduct concerns the Licensee’s written communications with two clients in respect of fee disputes. The communications involved two e-mails set to Client A and three e-mails sent to Client B and her father, who had assumed responsibility over a fee dispute.
We found that the Licensee contravened Rule 7.2-4. In response to Client A’s expressed disagreement with an invoice and the services she received, the Licensee replied with two unprofessional communications sent on May 15, 2018. In the first e-mail he referred to the client’s history of abuse of being “beating and been urinated on” as not his problem. In the second e-mail he referred to a conjured desire to get revenge on someone: “I am willing to give you a discount ... to make you [feel] you have got revenge on someone, people often do that to those who have tried to help them…I know you just meant to punish someone to get back at your husband by proxy.”
Tuesday, February 6, 2024
The Georgia Supreme Court has disbarred an attorney
The Special Master found that McCalep had violated the GRPC knowingly and intentionally, and that his misconduct caused serious injury to the grievants due to the loss of funds they paid for services he did not provide, and the loss of their opportunities to hire competent and diligent lawyers to pursue their claims and defend their rights. McCalep’s misconduct also injured the legal profession. The Special Master found that the presumptive penalty was disbarment. The Special Master found the following aggravating factors: prior disciplinary history, in that McCalep received a three-year suspension for violating Rule 1.7, see McCalep, 283 Ga. at 586; dishonest or selfish motive; pattern of misconduct; and multiple offenses. See ABA Standard 9.22 (a) – (d). Moreover, the Special Master found that McCalep refused to acknowledge the wrongful nature of his conduct; his incarcerated clients were vulnerable victims; he had substantial experience in the practice of law; and he was indifferent to making restitution.10 See ABA Standard 9.22 (g)– (j). The Special Master found no applicable mitigating factors.
The Special Master summarized that McCalep’s misconduct involved keeping fees for work he did not appear to have any intention of completing, or otherwise abandoning his office to be mismanaged by his non-lawyer staff, which seriously injured the clients, and McCalep failed to respond to the disciplinary proceedings. Thus, the Special Master concluded that McCalep should be disbarred
Monday, February 5, 2024
An Ad Hoc District of Columbia Hearing Committee recommended a 30-day suspension with fitness for violation of New York RPC 1.18(b)
Respondent...is charged with violating Rules 1.6(a) (disclosing client confidences and secrets)1.18(b) (disclosing information learned in consultation with prospective client), and 8.4(d) (serious interference with or conduct prejudicial to the administration of justice) of the District of Columbia and/or New York Rules of Professional Conduct (the “Rules”), arising from a dispute with a former prospective client, Karim Annabi, who had consulted with Respondent by Zoom video conference and email about filing a civil lawsuit against New York University (“NYU”) in the New York federal courts. As a threshold issue, the Hearing Committee has determined that the New York Rules apply to this matter, but because the facts of this case are unusual, the Hearing Committee analyzes Respondent’s conduct here under both the D.C. and New York Rules.
The proposed representation involved a client who had a claim against the New York University Stern School of Business.
They met by zoom but failed to achieve an agreement; the potential client had paid a $200 consultation fee through PayPal
Mr. Annabi accused Respondent of engaging in a “deceptive . . . bait and switch” by offering a contingency agreement but then presenting him with the hybrid fee arrangement. DCX 14 at 1. A heated exchange of emails followed. DCX 14. Mr. Annabi asked Respondent to refund the consultation fee, but Respondent declined to do so, saying he had earned it. Id. at 2; see DCX 13. Mr. Annabi then threatened to seek a refund from PayPal or from the New York small claims court. DCX 14. Respondent suggested, “Let’s resolve our dispute like two noble Africans who believe in Allah/Hashem. We don’t need a Christian small claims court or PayPal for us to resolve this dispute between us.” Id. at 7. Respondent offered Mr. Annabi different financial terms, but Mr. Annabi rejected these as well. Id.; Tr. 100-02 (Annabi).
Ultimately Respondent and Mr. Annabi could not agree on the terms of the representation, and Mr. Annabi never signed the agreement.
Mr. Annabi acting pro se sued NYU in federal court and Respondent in state court for $1,000
Approximately two hours after receiving Mr. Annabi’s email notifying Respondent of the filed complaint, Respondent replied to Mr. Annabi. DCX 16 at 2. Mr. Annabi responded by email, referring to Respondent’s “garbage legal opinion” and advising him to “[f]ocus on [his] own defense.” Id. Respondent replied in an additional email, to which he added Mr. DiPalma – the attorney representing NYU – on the cc line. Id. at 1-2. Respondent labelled this response as a “Rule 404(b) Letter – Other Wrongs.” Id. at 1.12 In that email, Respondent criticized Mr. Annabi’s lawsuit against NYU and described his own legal advice to Mr. Annabi. First, he stated: “Your lawsuit against NYU, referenced above, has fundamental flaws in law and fact – and I brought that to your attention when I conferenced with you via zoom.” Id. (emphasis added). Respondent stated further: “[A]s I stated during our consult, your legal assertions are mostly frivolous and not based on any established or existing law.” Id. at 2 (emphasis added). He also said: “There are many inconsistencies with your claim against NYU.” Id. at 1. Respondent indicated that he would tell the court in the NYU case about his views of the case and the advice he had given Mr. Annabi, stating: “I will be forced to bring this issue to the federal judge handling this case as it speaks to your credibility in this lawsuit.” Id.
Mr. Annabi did not authorize Respondent to make these disclosures.
Respondent filed a request to be added as an “Interested Party” in the NYU case. DCX 21. In his request, Respondent told the court that Mr. Annabi was “unsatisfied with [Respondent’s] legal advise [sic] – that essentially his legal assertions of ‘deceptive advertising etc’ [sic] are unfounded in law and frivolous.” Id. at 2. He claimed that the NYU lawsuit and his “dispute with Mr. Annabi, share the same nexus of facts and call to question the frivolous nature of Mr. Annabi’s lawsuit and current legal assertions.” Id. at 3 (emphasis in original). Respondent also endorsed NYU’s motion to dismiss filed against Mr. Annabi, describing it as “well-written,” and stating that it “echoes and sums up my concerns
and the warnings I shared with Mr. Annabi during our consultation.” Id. In the last two substantive paragraphs of this document, Respondent advised the court to question “Mr. Annabi’s legal residency,” noting that Mr. Annabi had “filed a lawsuit against me in Jamaica, Queens, New York and yet he is using a United Kingdom address in this aforementioned matter – as an assertion of diversity citizenship.” Id. at 4. Respondent was neither a party nor a representative of a party in the case.
There ensued a series of heated emails between Respondent and Mr. Annabi
On November 19, 2022, Respondent sent Mr. Annabi an email, copying Mr. DiPalma and the Office of Disciplinary Counsel, informing Mr. Annabi that because of Mr. Annabi’s “threats and insults,” he intended to file a motion with Judge Liman “to defend [himself]” and was attaching a “Rule 11.c Notice” before doing so.
Respondent continued to communicate with the New York federal court
Respondent concedes that he violated Judge Liman’s August 3, 2022, order that he not file any documents in the federal case. R. Post-Hearing Br. at 24; Tr. 428 (Respondent). He asserts that his filing was “triggered by” Mr. Annabi seeking to docket what he considered to be “a frivolous sanctions motion against him.”
In the bar hearing
Throughout the hearing and after, Respondent asserted that Disciplinary Counsel and the Chair of the Hearing Committee were “rude” or unfair to him.
Throughout the hearing and after, Respondent asserted that Disciplinary Counsel, the Chair of the Hearing Committee, and the disciplinary system are racist.
After finding Rule violations, the committee opined
Respondent’s ultimate position is that he did nothing wrong and that any flaw in his conduct should be excused because of Mr. Annabi’s conduct. The Hearing Committee finds that Respondent’s lack of understanding of his obligations as a lawyer, his quickness to take offense when challenged, and his mistaken beliefs about his abilities are likely to lead Respondent to engage in similar misconduct in the future, with the strong potential to harm clients. Taken together, these considerations establish by clear and convincing evidence a serious doubt about Respondent’s continuing ability to practice law in compliance with the Rules of Professional Conduct.
Sunday, February 4, 2024
The New York Appellate Division for the Fourth Judicial Department imposed a one-year suspension of an attorney
Respondent conditionally admits that, in or around 2006, he began representing the Village of Earlville (Village) in various legal matters. Respondent admits that, in 2016, he agreed to represent the Village as defendant in a civil action wherein the plaintiff asserted causes of action for malicious prosecution and due process violations. In September 2018, the judge presiding over the matter held a pretrial conference and ruled that respondent was a potential fact witness, thereby precluding him from representing the Village at trial. The trial court subsequently adjourned the trial date on several occasions due to, inter alia, the COVID-19 pandemic. Respondent admits that, from September 2018 through early 2021, he failed to advise the Village that he was precluded from representing the Village at trial or take action to secure replacement counsel.
Respondent admits that the trial judge held a pretrial conference in early 2021 and set a date for trial in December 2021. Respondent admits that, although he subsequently contacted certain attorneys about representing the Village at trial, those attorneys were not retained by the Village, and respondent thereafter failed to respond to inquiries from the trial judge regarding the status of replacement counsel. Respondent further admits that, in late November 2021, he responded to an inquiry from the trial judge by falsely stating that the Village had retained replacement counsel.
Respondent admits that he advised the Village of the need for replacement counsel three days after he made the aforementioned false statement to the trial judge. Respondent further admits that, although he shortly thereafter sent to potential replacement counsel a proposed consent to change attorney form and check issued by the Village as an advanced payment retainer, respondent failed to forward a proposed retainer agreement. One day later, potential replacement counsel advised the trial judge that they were unable to represent the Village at trial on such short notice.
Respondent admits that, several days later, he attempted to appear before the trial court for commencement of the trial, but the trial judge held the Village in default because respondent was precluded from representing the Village. Approximately one month later, the trial court issued a verdict based on the default awarding the plaintiff damages in the amount of $85,000.
Respondent admits that, although the Village retained replacement counsel and moved to vacate the default in March 2022, the trial court denied the motion and issued a decision stating that respondent’s neglect of the matter “was pervasive and ongoing for a significant period of time” and that his conduct constituted a “serious lack of concerned attention to the progress of this action for which no reasonable excuse has been offered” (Kicinski v Village of Earlville, Sup Ct, Madison County, July 26, 2022, Cerio, Jr., J., index No. 2015-1160 at 18 [internal quotation marks omitted]).