Friday, December 7, 2018

Dissents: Opioid Crisis Merits Reconsideration Of Bar Sanction

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

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

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

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

Justice Weimer authored one of the dissents

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

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

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

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

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

Respectfully, I would therefore grant a rehearing.

Justice Crichton opined

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

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

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

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

Disbarment Vacated In Michigan

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

The road to near-disbarment started with this matter

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

A show cause was issued for alleged violation of the conditions

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

Then things got worse.

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

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

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

Despite the contact with the prosecutor

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

The communications are quoted at length.

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

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

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

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

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

The board notes

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

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

And

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

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

(Mike Frisch)

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

Mail Anxiety

A public reprimand from the South Carolina Supreme Court

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

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

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

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

Thursday, December 6, 2018

Ex-Spousal Support May Facilitate Reinstatement

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

He was admitted in 1980 with a problem

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

He engaged in misconduct in nine criminal defense matters.

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

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

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

But he has made great strides

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

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

(Mike Frisch)

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

Former AUSA Disbarred In Louisiana For Anonymous Blog Comments

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

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

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

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

The court rejected mitigation based on post traumatic stress

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

Sanction

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

Justice Crichton

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

(Mike Frisch)

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

Heirs Unapparent

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

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

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

Justice Weimer concurred and dissented

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

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

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

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

Sex Crimes With Child Involve Moral Turpitude

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

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

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

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

(Mike Frisch)

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

Unethical In Deed

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

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

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

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

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

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

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

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

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

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

(Mike Frisch)

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

Wednesday, December 5, 2018

More Louisiana Crimes And Mischief

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

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

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

He was admitted to practice in 1996.

But eventually he got the Bar's attention

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

Sanction

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

(Mike Frisch)

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

Criminal Mischief

The Louisiana Attorney Disciplinary Board has adopted a hearing committee recommendation for a suspension of a year and a day

The story

This disciplinary matter arises solely in regard to Respondent's criminal convictions for simple battery and criminal mischief. These convictions stem from an incident involving Respondent and a New Orleans cab driver, Hervey Farrell.

On April 6, 2012, Respondent was a passenger in Mr. Farrell's taxicab. The two had a sexual encounter in the taxicab. Mr. Farrell used his cellphone to take a bawdy video of Respondent. Following the encounter, Mr. Farrell reported to police that he was sexually assaulted in his cab by Respondent. Respondent was subsequently charged in the Orleans Municipal Court with simple battery.

On April 5, 2013, Mr. Farrell filed a civil lawsuit against Respondent in Orleans Parish Civil District Court, alleging that he suffered tort damages arising from the taxicab incident.

While the civil litigation and the simple battery charge were pending, Respondent went to the Third District Station of the New Orleans Police Department to report that she was a victim of the crimes of extortion and video voyeurism by the alleged perpetrator, Mr. Farrell. Respondent's report to police essentially asserted that Mr. Farrell emailed Respondent a copy of the video of the April incident, indicating that if he received $1 ,000.00, the video and charges he filed against the video [sic] would "go away."

While investigating Respondent's complaint against Mr. Farrell, the State charged Respondent, on October 1, 2013, with one count of false swearing for the purposes of denying a constitutional right, a violation of La.R.S. 14:126.2. The State later amended the bill of information to charge Respondent with one count of false swearing for the purposes of violating public health or safety, a violation of La.R.S. 14:126.1.

On April 2, 2014, Respondent was found guilty in the Orleans Municipal Court for simple battery, a violation of Code of the City of New Orleans, Sec. 54- 96, and fined costs. Following Respondent's denial of a Motion for New Trial, Respondent's conviction for simple battery became final.

Despite being charged with a felony, on January 16, 2015, following a bench trial, Respondent was convicted of the lesser, misdemeanor offense of criminal mischief, a violation of La. R.S. 14:59.

Sanction

Considering all of the circumstances presented here, including Respondent's convictions, her discontinuance of the practice of law six years ago, her failure to respond to the Formal Charges or participate in the proceedings before the committee, and her demeanor and presentation before the Board panel, and considering the ABA Standards and jurisprudence discussed above, the Board recommends a suspension from the practice of law for a period of one year and one day. This sanction is in accord with the jurisprudence. Further, the recommended sanction will necessitate an application for reinstatement pursuant to Rule XIX, Section 24, should Respondent desire to resume her law practice which requirement the Board finds to be appropriate given the unique circumstances of this matter.

Details may be found in the decision affirming the conviction. (Mike Frisch)

December 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Fear Of BPR Not Disabling

The Tennessee Supreme Court accepted findings that a suspended attorney's asserted disability did not unduly impair his ability to respond to bar charges

We agree with the hearing panel and chancery court that the attorney has not shown by a preponderance of the evidence that he lacked the capacity, by reason of mental illness, to respond to or defend against his disciplinary complaint.

The claim

Mr. Mabry testified that he had experienced suicidal ideations in the time leading up to a disciplinary hearing, manifested in the thought that “maybe it might be best if [he] jumped off one of the cliffs . . . where [he] hike[d].” Mr. Mabry explained that he participated in extreme hiking and rappelling and that he was a recovering alcoholic. He testified that, anytime that he had to do anything related to the practice of law, he was “basically in a panic mode.” He further testified that he was “very paranoid about what the Board of Professional Responsibility has done and can do to” him and that, when those thoughts entered his mind, it was debilitating. Mr. Mabry also said that the shame associated with disciplinary proceedings “builds up sometimes into thoughts of maybe [he] just would be better off not existing.”

Insufficient evidence

Mr. Mabry submitted proof that he has generalized anxiety disorder and suicidal ideations. Mr. Ernst [a licensed clinical social worker] wrote that Mr. Mabry tied his anxiety and suicidal ideations to his disciplinary proceedings, but Mr. Ernst did not opine whether Mr. Mabry’s mental illness had any impact on his capacity to respond to or defend against the disciplinary complaint. Likewise, Mr. Mabry did not testify that his disability made it impossible for him to respond to or defend himself against the disciplinary complaint. Because there is no evidence that Mr. Mabry’s disability makes it impossible for him to respond to the disciplinary complaint, we agree with the hearing panel and chancery court that he has not met his burden of proof.

Result

We affirm the chancery court’s conclusion that Mr. Mabry has not shown by a preponderance of the evidence that he has a disability making it impossible for him to respond to or defend against disciplinary proceedings. Consequently, we order that his disability inactive status be removed and that any pending disciplinary proceedings against him shall be resolved prior to the effective date of any reinstatement. Mr. Mabry’s suspension pursuant to the opinion and the judgment order entered December 30, 2014, in case number E2013-01549-SC-R3-BP, from which he has never sought reinstatement, remains in full force and effect.

(Mike Frisch)

December 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)

That Touch Of Minks

The Oklahoma Supreme Court has disbarred an attorney who had been interim suspended from practice 

The respondent was previously suspended from the Oklahoma Bar Association in an order of immediate interim suspension on May 7, 2018. A disciplinary hearing was held on July 25, 2018. Because the respondent has not participated, the Bar Association seeks to have the allegations against him be deemed admitted pursuant to Rule 6.4 of Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A. The respondent's disciplinary proceedings demonstrate that disbarment is warranted.

The Poteau Daily News reported in March

A controversial Poteau attorney was again arrested Wednesday on contempt, only to receive additional charges while in custody at the LeFlore County Detention Center.

Attorney Steven Minks failed to appear for two felony dockets in cases he is representing, which led to him receiving two $500,000 bonds for contempt.

The LeFlore County Detention Center said Minks on Thursday then received new charges while in custody of assault on a detention officer, destruction of county property and had a warrant for a bogus check. He will remain in the jail on the new charges and is set for an arrangement Friday afternoon with Judge Jennifer McBee.

Minks has other charges already filed in LeFlore County court.

In November, he was arrested in Panama during the early morning hours on complaints of improper parking on a roadway, public intoxication, resisting arrest and obstruction. Minks claimed he had been targeted by police.

In December, law enforcement with the LeFlore County Sheriff's Office arrested Minks for protective order violation and driving under the influence of drugs. Minks' wife had been granted a protective order against him but he refused to leave the protective order zone, Sheriff Rob Seale reported at the time.

Court records show he also received a misdemeanor reckless driving charge in February. His misdemeanor docket call in the cases is slated March 26.

(Mike Frisch)

December 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Moral Fibre

The Upper Canada Law Society Tribunal Hearing Division has denied a paralegal license

On November 24, 2016, Ms. Valiente applied to be licensed as a paralegal. In her application, Ms. Valiente disclosed that approximately three years prior, while under the influence of an abusive relationship and addicted to crystal methamphetamine, she had a number of convictions for Fraudulent Use of Credit Card Data and Breach of Probation. This hearing was held to determine whether she is currently of good character.

Ms. Valiente was an impressive witness and has accomplished much in the three and one-half years since her last arrest. She has returned to live with her parents, gotten off drugs, undergone therapy, taken a part-time job, graduated from a two-year paralegal program, returned to her church, paid one restitution order of $7,000 (but not a second judgment for $10,000), completed 165 hours of community work and started working full-time outside the legal services world.

Despite those many accomplishments, we were not satisfied that sufficient time had passed or evidence led to enable us to conclude she is currently of good character. Ms. Valiente did not call independent evidence of her good character primarily because she had not disclosed her criminal past to those who might have provided that testimony. In those circumstances, we were not satisfied that she had the moral fibre to do what was right in uncomfortable situations. Ms. Valiente is still on probation, has not paid about $1,000 in victim surcharges and has not yet started to repay a $10,000 judgment in favour of a shop owner who was a victim of her criminal misconduct. We encourage her to complete her probation, work on the outstanding payments, reflect on her ability to acknowledge her past and apply again in future.

The applicant is 26 years old and was forthright in her disclosures

  Ms. Valiente has come a long way in the past three and one-half years, but that is a short time. She still has some work to do. She must complete her probation and make some outstanding payments. She must also learn to live with her past. She cannot choose to ignore it in circumstances where it is relevant.

Good character requires the moral fibre to do what is right no matter how uncomfortable that may be. Ms. Valiente is an impressive young woman but has not led evidence to persuade us that she has that moral fibre in uncomfortable circumstances. Ms. Valiente has not established that she is presently of good character.

The application is dismissed. We encourage Ms. Valiente to apply again after some additional time has passed.

(Mike Frisch)

December 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, December 4, 2018

Attorney Suspended For Violation Of Court Sanction Requirements

The Rhode Island Supreme Court suspended an attorney for failure to make full restitution and submit a plan for 25 hours of community service as the court had ordered as a sanction

She paid all but $50.75.

The facts giving rise to this proceeding, as found by the Board, are as follows. Kristine Foster (Foster) and Stephen Lucas (Lucas) purchased a residence in Riverside, Rhode Island, in September 2014. As a result of a clogged sewer line, sewage backed up into the home, requiring remediation work. Foster and Lucas hired JDM Enterprises, Inc., d/b/a ServePro of Providence (ServePro), to perform the required cleaning. Foster allegedly advised the ServePro representative that, due to a pre-existing respiratory ailment, she could not tolerate the use of any chemical cleaning agents in her residence—an allegation denied by ServePro. ServePro performed the cleaning service and billed Foster and Lucas for the work performed. Foster and Lucas refused to pay the invoice, claiming that Foster was physically injured by ServePro’s use of chemical cleaning agents while performing the work.

ServePro initiated a book account action in the District Court seeking payment for the services rendered. The respondent agreed to represent Foster and Lucas in defending the action, and further agreed to represent Foster in her claim for personal injuries against ServePro.

However, respondent failed to communicate to Foster and/or Lucas in writing the scope of the representation to be provided or the basis or rate of any fees or expenses to be charged, in violation of Article V, Rule 1.5 of the Supreme Court Rules of Professional Conduct, which mandates the use of written retainer agreements.

The attorney failed to provide competent representation, failed to communicate and

Most egregiously, respondent, without the knowledge or consent of Foster or Lucas, unilaterally entered into a stipulation with counsel for ServePro agreeing that judgment would enter against Foster and Lucas in the amount of $3,110.94 on ServePro’s book account claim. The respondent’s failure to advise her clients and obtain their consent prior to settling their case violated Rule 1.2. Further exacerbating this violation, respondent did not inform Foster or Lucas for several months that she had stipulated to this adverse judgment.

Despite a 29-year discipline - free career, she failed to comply with court orders in the bar case

However, respondent has failed to substantially comply with our Order adopting the Board’s recommendation, and has provided this Court with no explanation for her failure to do so, despite our specific warning that her failure to comply could result in the imposition of a more serious sanction. Also, respondent’s unexplained failure to appear before this Court on her own behalf raises a serious concern about her present ability to adequately represent clients.

Accordingly, we deem it appropriate to impose a more serious sanction. We hereby suspend the respondent, Patricia M. Watson, from the practice of law in this state, effective thirty (30) days from the date of this Order, and until further order of this Court. Forthwith, the respondent shall make arrangements to obtain new counsel for her clients, or return any active client files to these clients, within this thirty (30) day period. The respondent shall not assume the representation of any new clients or the representation of existing clients on any new matters during this period.

(Mike Frisch)

December 4, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Actual Suspension Required For Systematic Practice While Administratively Suspended

The Louisiana Supreme Court rejected the sanction of a public reprimand and imposed a six-month suspension with all but 30 days deferred for an attorney's practice while administratively suspended.

The attorney had appeared as counsel in a juvenile detention hearing and the judge checked his status

Judge Haney instructed his law clerk to contact respondent to inform him that he was listed as ineligible to practice law by the LSBA. Respondent told the law clerk that he would investigate the matter and report back to the court, but when Judge Haney had not heard from respondent, he filed a complaint with the ODC.

On two occasions, the ODC forwarded a copy of the complaint to respondent and requested a response. Respondent failed to file a written response to the complaint, necessitating the issuance of a subpoena to obtain his sworn statement. Respondent appeared for the statement but refused to answer any questions, stating that he would be hiring an attorney to represent him and that he would not participate in the sworn statement at that time. Two weeks later, respondent reappeared at the ODC’s offices, accompanied by his attorney, and gave a sworn statement, during which he admitted that he had engaged in the active and continuous practice of law from September 9, 2015 to June 8, 2016, a significant portion of the time that he was ineligible to practice.

At the hearing committee level

...the committee recommended respondent be suspended from the practice of law for six months, with all but thirty days deferred, followed by one year of unsupervised probation.

Respondent objected to the hearing committee’s report, arguing that the recommended sanction was too harsh.

The Disciplinary Board imposed a public reprimand.

The Office of Disciplinary Counsel appealed.

The court

Respondent (who has been ineligible for seven of thirteen years since his admission to the bar in 2005) was declared ineligible in 2014 for failing to comply with his professional obligations. During this time, he made at least one court appearance on behalf of a client. Considering respondent’s “repeated past failures to comply with his professional obligations,” his conduct cannot be excused as “a simple oversight.” Therefore, as we found in Oldenburg, it is clear that “an actual period of suspension is warranted.”

By contrast, the cases cited by the disciplinary board do not reflect respondent’s lengthy history of failing to fulfill his professional obligations and practicing law while ineligible. As noted in the hearing committee’s report, respondent had an additional period of ineligibility (September 9, 2014 through February 4, 2015) not included in the formal charges. The several mitigating factors present in this case are simply not enough to overcome this history.

Considering the jurisprudence, we find that an appropriate sanction in this matter is a six-month suspension, with all but thirty days deferred, followed by a one-year period of unsupervised probation. We will also order respondent to attend Ethics School.

Justice Hughes would uphold the board's sanction. (Mike Frisch)

December 4, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, December 3, 2018

Attorney Absolved Of Armenian Genocide Settlement Funds Misappropriation

Dismissal of ethics charges has been ordered by the California State Bar Court Review Department

In this contested proceeding, Rita Mahdessian was charged, inter alia, with misappropriating in excess of $385,000 in cy près settlement funds awarded to a California nonprofit corporation established for the education and remembrance of the Armenian Genocide of 1915–1918, and with misleading the district court judge who approved the award. The hearing judge dismissed the charges of misleading the judge, but found that Mahdessian committed acts of moral turpitude by both (1) misappropriating $30,000 from the nonprofit, and (2) engaging in tax fraud by falsely reporting this and another $26,000 in taxable payouts to her children and their law school as donations or loan repayments, charges that were not contained in the Notice of Disciplinary Charges (NDC). Considering Mahdessian’s three prior disciplinary suspensions, the hearing judge recommended disbarment.

Both Mahdessian and the Office of Chief Trial Counsel of the State Bar (OCTC) appeal. OCTC supports the hearing judge’s disciplinary recommendation, does not challenge the considerable narrowing of the misappropriation charge, and requests review only as to the limited issue of whether Mahdessian engaged in additional acts of moral turpitude, by withholding material information from the district court judge.

Mahdessian disputes culpability and requests a full dismissal. Her argument is twofold: (1) OCTC did not charge her with either tax-related transgressions or breach of fiduciary duties; and (2) the evidence falls short of establishing the actual charged allegations of misappropriation and misrepresentation because (a) the nonprofit board approved all at-issue fund transactions, and (b) Mahdessian did not file any pleadings, make any court appearances, or have any proven duty to provide information to the district court judge.

Upon our independent review (Cal. Rules of Court, rule 9.12), we too find fatal deficiencies in the notice and evidentiary record in this case. Conduct in the nature of tax fraud was not alleged in the NDC against Mahdessian. Moreover, we find no clear and convincing evidence to support culpability as to the charged misconduct. The evidence fails to establish that Mahdessian made any unauthorized fund withdrawals from the nonprofit or that she was ever involved in the district court litigation such that she had an obligation to disclose information. Accordingly, we dismiss this proceeding without prejudice.

Background

Mahdessian was admitted to the practice of law on November 20, 1989. At all times pertinent to this proceeding, Mahdessian and her husband, Yeghiayan, practiced law together at the variously named Yeghiayan and Associates, Yeghiayan Law Corp., and Law Offices of Vartkes Yeghiayan. Since 2009, Mahdessian has maintained her own law practice under the name Law Offices of Rita Mahdessian.

Yeghiayan, on behalf of Yeghiayan and Associates, was counsel of record and co-lead counsel in two class actions lawsuits filed in 1999 and 2002—Marootian, et al. v. New York Life Insurance Company, Case No. C99-12073 CAS (MCx) (NYLIC class action) and Kyurkjian, et al. v. AXA, S.A., et al., Case No. 2:02-cv-01750 (AXA class action). The litigation was brought on behalf of heirs and descendants of victims of the Armenian Genocide of 1915–1918, seeking to enforce survivor benefits under life insurance policies sold by New York Life and AXA. The cases were eventually related and singly assigned to the Honorable Christina A. Snyder of the United States District Court for the Central District of California.

One case settled for $20 million; the other for $17.5 million.

Mahdessian was an attorney with Yeghiayan and Associates. Her name appeared on the docket in the AXA class action as one of many “lead attorney[s] to be notified.” She testified that her name was entered into PACER’s electronic case filing system at some point by the law firm so that she could receive notices about the case. No evidence was produced at the disciplinary trial that she directed any of the civil litigation, filed any pleadings, or appeared in court in any representative capacity in either class action matter. Rather, it was Yeghiayan and two other lead class counsel who had these roles.

One of the other class counsel was Mark. Geragos.

She was involved in charitable foundations set up to administer the funds

Evidence is undisputed that a substantial portion of CAR’s funding came directly from Yeghiayan, frequently in the form of loans to the organization, and that he, Mahdessian, and their children did considerable work for CAR and incurred expenses for work-related activities. Further, as attested to by several witnesses, CAR’s Executive Committee knowingly approved all at-issue transactions in this case with no evidence of improper or undue influence from Mahdessian.

Although the report below found misappropriation

We note that these findings differ from the judge’s statements on the record at trial, where he expressed concerns about: (1) the evidence supporting misappropriation, asking, “To the extent that I have evidence from multiple witnesses that all of the transactions were approved by the board, how can I conclude there was a misappropriation if I conclude that everything was approved by the board?”; and (2) the relevancy of any tax-related issues under the NDC, inquiring, “What’s the relevancy of the these documents [CAR’s general ledgers] being wrong, listed as a charitable donation? [¶] Have you charged her with filing a false tax return . . . .?” As discussed below, we find the judge’s reactions during trial to the respective lack of notice and evidence in this case to be most apt.

...the hearing judge dismissed the vast majority of the misappropriation allegations against Mahdessian. Since we find that the tax issues were not properly charged in this case, we are left with only the hearing judge’s limited finding that Mahdessian misappropriated $30,000 from CAR. Upon our independent review, we find factual flaws and insufficient evidence to support this finding.

First, the hearing judge found that Mahdessian created a ShareBuilder brokerage investment account using the name and personal information of her daughter without her daughter’s knowledge or permission. Mahdessian, however, testified it was her husband, Yeghiayan, who opened the account for his daughter. Based on the thin evidence presented at trial, we cannot say with certainty that Mahdessian established the account. OCTC produced a copy of an account statement in Mahdessian’s daughter’s name, containing the daughter’s address, social security number, and other identifying information—no other authorized or ancillary users are listed. While OCTC also produced a separate printout showing that email addresses belonging to Mahdessian and Yeghiayan accessed the account, OCTC failed to call a custodian of records from the account to testify. Without any evidence of user verification or information of how this ShareBuilder account was established and operated, and in the absence of any credibility findings, we are left to speculate who created the account.

Second, the hearing judge found that Mahdessian transferred $30,000 of CAR funds into the ShareBuilder account, and purported to justify that transfer with the explanation that it represented a loan repayment from CAR to the daughter when, in fact, no such loan had ever been made. Again, the evidence does not support this finding. Mahdessian’s unrefuted testimony was that her daughter (through the ShareBuilder account) was the secondary recipient of the funds, and that the money was actually Yeghiayan’s. Mahdessian testified that Yeghiayan was owed approximately $40,000 as payment for books he published in Armenia. On October 28, 2009, CAR received an overseas wire payment of $39,971, of which CAR approved and earmarked $30,000 to partially recompense Yeghiayan. According to Mahdessian, Yeghiayan directed that the $30,000 be deposited into the ShareBuilder account, and Mahdessian transferred the money accordingly on October 30, 2009.

Moreover, to the extent CAR’s general ledger listed the transaction as a loan, Karine Ghapgharan (a manager at CAR and the person responsible for recordkeeping in 2009) testified that Mahdessian did not make ledger entries. That was done by Ghapgharan or an outside accountant. Ghapgharan further testified that Mahdessian did not direct whether to characterize a payment as a “loan.” Rather, that decision was made independently, and she indicated it could have been the result of an “English [translation] [¶] problem.” She explained that when someone did work for CAR and they were owed money, whoever was doing the ledger treated it “like a loan . . . . But most of them [were] reimbursement[s] . . . . [¶] Instead of ‘reimbursement’ we wrote ‘loan payment’ [or] ‘loan repayment.’”

Third, the hearing judge found that Mahdessian continued to maintain control over the ShareBuilder funds, which the daughter had no knowledge of until being subpoenaed by the State Bar to testify in this matter. Again, the record does not demonstrate who managed the portfolio or maintained control over the investment funds.

In light of the foregoing, we do not find clear and convincing evidence that Mahdessian misappropriated $30,000 from CAR. CAR, as a nonprofit, is not the subject of these disciplinary proceedings and we have no basis to question the financial decisions of CAR or its board, which approved the transaction. Under the circumstances, and the uncontroverted evidence that CAR knowingly approved the fund transfer, we are unable to find that any unauthorized transaction occurred.

(Mike Frisch)

December 3, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Hello I Must Be Going

The Illinois Review Board proposes that an attorney not admitted in the jurisdiction be disbarred for unauthorized practice

In a four-count amended complaint, the Administrator charged Respondent with engaging in the unauthorized practice of law in Illinois and other misconduct in connection with Respondent's handling of eight matters for his former landlord. After the Court rejected a petition to impose discipline on consent, the matter was scheduled for a contested hearing.

Respondent, who represented himself throughout his disciplinary proceedings, brought a motion to appear at the hearing remotely, arguing that financial and medical issues prevented him from traveling to Chicago from Florida for the hearing. The hearing panel chair denied Respondent's motion, and held the hearing on the scheduled date. Respondent did not appear. The hearing panel chair therefore struck Respondent's answer and deemed the allegations of the complaint admitted, and the hearing proceeded as a default.

The Hearing Board found that Respondent handled eight matters while he was living in Illinois even though he was never admitted to practice in Illinois; knowingly did not appear for his sworn statement; sought to have his client execute an agreement granting Respondent an interest in his client's business without advising the client in writing that he may seek the advice of independent counsel; and did not reduce a contingent fee agreement to writing in connection with one of the eight matters. The Hearing Board found significant aggravation, and recommended that Respondent be suspended for one year and until further order.

Respondent filed exceptions, arguing that the Hearing Board erred in denying his motion to appear at his hearing remotely, and that the disciplinary proceedings against him violated his right to due process because the hearing panel relied on misinformation in reaching its decisions. He asked this Board to vacate the Hearing Board's report and recommendation and remand the matter for a new hearing.

The Review Board found no error in the Hearing Board's pre-hearing rulings or findings of misconduct, and therefore affirmed them. It recommended that Respondent be disbarred from practice in Illinois.

(Mike Frisch)

December 3, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, December 1, 2018

Bristol Stomp

A former juvenile and domestic relations court judge has been suspended for nine months for improper contact with potential witnesses in a federal case in which his spouse was under indictment.

The spouse was the CFO of the Bristol Virginia Utilities Authority. One of the potential witnesses was the president of the company who was installed after the alleged crimes - corrupt practices and tax fraud - had taken place.

The judge sent him this note

Hi Don:

I just wanted to sincerely thank you for your kindness and understanding and support for Stacey during these horrible times. By now I am sure you would agree she is absolutely honest, truthful, ethical, and innocent! It is horrible what our government is doing to her. She will be proven innocent. Thank you for believing in her.

Kurt Pomrenke

Another witness got this voice mail message

Hey Connie, this is Kurt, um, when you're testifying in that trial there might be a couple of things that you could do that would really help Stacey. If you could kinda slip in when you have a chance just little remarks like, how Stacey did a great job, or Stacey was the one that took care of the employees, or Stacey is just an honest ... just any, any kind of little comments you can make to support her or, Stacey was the one that always looked out for the employees, or, just something like that even though it's not directly in response to the questions, if you could figure out a way to, to do that I really think that would help and make a huge difference. I'm sorry you're caught up in this, but we feel real good about the outcome and sure appreciate your help. Thank you, bye.

Neither witness was called at the trial, where the spouse was convicted of 14 counts. 

WJHL reported on the sentencing. 

He was removed from office for violating judicial ethics

By written opinion dated November 27, 2017 (the "Opinion"), the Supreme Court of Virginia found that the Commission had proven by clear and convincing evidence that Respondent violated Canons 1, 2A, and 2B and ordered that Respondent "be removed immediately from the office of Judge of the Twenty-Eighth Juvenile and Domestic Relations Judicial District[.]"

He also violated a court order in the criminal case by using discovery materials in his judicial ethics defense

Following bench trial on or about September 13, 2017, Respondent was convicted of one count of criminal contempt in violation of 18 U.S.C. Section 401.

On November 30, 2017, the Federal Court entered a Judgment in a Criminal Case sentencing Respondent to a two-month term of imprisonment for criminal contempt.

Respondent served his criminal sentence from January 17, 2018 until March 15, 2018, at which point he was released from federal prison.

The Bristol Herald Courier reported on the sanction. (Mike Frisch)

December 1, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, November 30, 2018

Death Be Not Disclosed

A recent complaint filed by the Illinois Administrator who sought to negotiate a personal injury settlement knowing that the client had died. 

On February 17, 2017, Respondent sent a demand letter to Richard Grayla of Sedgwick, demanding $50,000 for the injuries suffered by Christopher, and $100,000 for the injuries suffered by Christian. When Respondent sent the letter, he knew that Christian was deceased, and that he was not authorized to settle her claim against Lopez for $100,000, or for any amount.

On or about May 17, 2017, ELCO advised Respondent that he should negotiate any settlement of the claims with Sedgwick.

Between May 17, 2017 and October 24, 2017, Respondent communicated with Sedgwick to effectuate a settlement on behalf of Christian resulting from the incident referred to...above. At no time during those negotiations did Respondent inform anyone from Sedgwick that Christian had died. During those negotiations, Respondent knew that he no longer had Christian’s authority to settle the claim because she had died.

On or before July 24, 2017, Respondent learned that Laura Tague of Sedgwick would be handling the claims related to both Christopher and Christian. On that date, Respondent e-mailed Ms. Tague a copy of his February 17, 2017 demand letter he had previously sent to Richard Grayla. Respondent requested that Ms. Tague respond as soon as possible because the statute of limitations for Christian’s claim required him to file suit by or before November 28, 2017.

On or about October 24, 2017, Respondent and Ms. Tague verbally agreed to settle Christopher’s claim for $32,500, and Christian’s claim for $40,000. When Respondent reached this agreement with Ms. Tague, he knew that Christian had died, that he had not disclosed that fact to anyone at Sedgwick, and that he no longer had her authority to settle her claim for $40,000, or any amount.

 On October 24, 2017, Ms. Tague sent an e-mail to Respondent regarding the release of Christian and Christopher’s claims. In that e-mail, Ms. Tague asked Respondent to have both Christopher and Christian complete the claim release forms in order to finalize their settlements. Respondent received her e-mail shortly thereafter, on October 24 or 25, 2017.

On October 25, 2017, Christopher went to Respondent’s office and signed his claim release form. Also on that date, Respondent directed Christopher to sign Christian’s name on her purported claim release form. Christopher signed Christian’s name on her claim release form. Respondent did not direct Christopher to initial the signature or make any other notation that would indicate that Christopher, and not Christian, had signed Christian’s name to the claim release form.

 Also on October 25, 2017, Respondent sent a letter to Ms. Tague, which included Christopher’s signed claim release form. In that letter, Respondent informed Ms. Tague that he hoped to have Christian’s claim release form to her as soon as possible.

By November 28, 2017, the two-year statute of limitations to file Christian’s personal injury claim had run, and Respondent had not fully settled Christian’s claim with Sedgwick, nor had he filed a personal injury claim on behalf of her estate.

In January 2018, in the course of reviewing open claims, Sedgwick discovered that Christian died in June 2016. Upon learning that information, Sedgwick began a fraud investigation because Respondent had continued to pursue Christian’s claim after her death, never notified Sedgwick of her death, and had not presented or filed a claim on behalf of her estate.

He also is charged with failure to preserve the claims within the statute of limitations. (Mike Frisch)

November 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)

They Showed Him

The Kansas Supreme Court has rejected a jurisdictional argument and suspended an attorney

This contested attorney discipline proceeding arises out of two separate matters handled by David P. Crandall. After the Disciplinary Administrator filed a formal complaint, the chairman of the Board for Discipline of Attorneys appointed a hearing panel. The hearing panel conducted an evidentiary hearing, at which Crandall appeared in person and through counsel. The panel later issued its final hearing report in which it concluded Crandall violated six provisions of the Kansas Rules of Professional Conduct (KRPC): KRPC 1.1 (2018 Kan. S. Ct. R. 289) (competence), KRPC 1.3 (2018 Kan. S. Ct. R. 292) (diligence), KRPC 1.4(b) (2018 Kan. S. Ct. R. 293) (communication), KRPC 1.5(a) (2018 Kan. S. Ct. R. 294) (fees), KRPC 1.7(a) (2018 Kan. S. Ct. R. 302) (concurrent conflict of interest), and KRPC 8.4(d) (2018 Kan. S. Ct. R. 381) (conduct prejudicial to the administration of justice). The panel majority recommended this court suspend Crandall from the practice of law for a period of six months. A dissenting voice would have imposed a one-year suspension.

Before this court, Crandall contests many of the panel's factual findings and raises several legal arguments. To begin with, he challenges this court's subject matter jurisdiction over one of the complaints. Crandall, who was licensed in Kansas in 1999, later received licenses to practice law in Missouri and California. He argues the Kansas Supreme Court has no say when his clients were residents of Missouri and he was acting under his Missouri license. He also contends the imposition of discipline would result in violations of the First and Fourteenth Amendments to the United States Constitution, the disciplinary hearing panel erred in not admitting investigators' reports at the disciplinary hearing, and the panel's conclusions that he violated various rules of professional conduct are unsupported by clear and convincing evidence.

As fully detailed below, after reviewing each instance of misconduct found by the panel, we find clear and convincing evidence Crandall violated the six provisions of the Kansas Rules of Professional Conduct as found by the hearing panel. In assessing discipline, we consider the facts and circumstances of each violation; the ethical duties Crandall violated; the knowing nature of his misconduct; the injury resulting from his misconduct; any aggravating and mitigating factors; and the applicable American Bar Association (ABA) Standards for imposing discipline. After applying this framework, a majority concludes Crandall's misconduct warrants a six-month suspension. A minority would impose a lesser punishment.

Oral argument video linked here. (Mike Frisch)

November 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)