Thursday, December 6, 2018

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)

Thursday, November 29, 2018

Conditional Plea Rejected While Criminal Charges Are Pending

A conditional guilty plea in a bar discipline matter has been rejected by the Nevada Supreme Court

The State Bar filed a complaint alleging that Plunkett allowed a client who was incarcerated at the Clark County Detention Center (CCDC) to use her cell phone when she visited him even though she signed an acknowledgment each time she visited the client that cell phone use was limited to contacting CCDC staff or 9-1-1 and that any other use could result in criminal prosecution. The complaint further alleged that Plunkett lied about the client's use of her cell phone when she was contacted by a Las Vegas Metropolitan Police Department detective who was investigating possible violations of NRS 212.165 by Plunkett and her client.

Reasons

During the hearing on the conditional guilty plea agreement, the parties addressed the fact that Plunkett had been indicted on felony offenses under NRS 212.165 based on the conduct at issue in the disciplinary proceeding, a district court judge had dismissed the indictment, and the State had appealed that decision. They nonetheless suggested that they could not wait for that appeal to be resolved and that if Plunkett eventually were convicted, the convictions would have to be dealt with in a separate disciplinary action. But in recommending that this court approve the conditional guilty plea agreement, the hearing panel stated that it would not have recommended more severe discipline even if Plunkett had been convicted of the criminal offenses.

Considering the relationship between the disciplinary proceeding and the criminal charges against Plunkett that had not been finally resolved, we conclude that the conditional guilty plea agreement is premature. Although a criminal conviction is not a prerequisite to imposing discipline in this matter, the push to negotiate a conditional plea while Plunkett faced the possibility of a conviction for felony offenses based on the same conduct is problematic. In particular, any subsequent conviction for a felony offense would implicate SCR 111, requiring a temporary suspension and referral for a hearing to determine the extent of the discipline to be imposed. So, regardless of the hearing panel's statement that it would not recommend greater discipline even if Plunkett had been convicted, Plunkett would at the very least be subject to an additional temporary suspension under SCR 111(7) following any felony conviction. Even if that appeared to be an unlikely scenario when the plea agreement was presented to the hearing panel because the indictment had been dismissed, this court has since reversed the order dismissing the indictment. State v. Plunkett, 134 Nev., Adv. Op. 88, P.3d (2018). Under the circumstances, we reject the conditional guilty plea agreement.

From the Las Vegas Review Journal

Late Wednesday night, she posted a selfie on her law firm’s Facebook page of Andrew Arevalo, 26, kissing her on the cheek

In a comment accompanying the 11:07 p.m. post, 36-year-old Plunkett wrote: “He that is without sin among you, let him cast a stone at her.”

The next day, Plunkett responded to a Las Vegas Review-Journal email inquiry about why she publicly shared the intimate moment.

“The press will not dictate my relationship with Andrew; that is why I posted a private picture of us — to show that we are PEOPLE and I am not ashamed of him. Never,” she wrote. “I’ve openly been with him for years and have never hidden it from anyone.”

Plunkett told the newspaper she has known Arevalo since 2012.

Investigators also reported that they have video of Plunkett and Arevalo kissing at least three times during afternoon and late-night visits at the Clark County Detention Center in downtown Las Vegas.

Arevalo, a documented member of the Surenos gang who goes by the nickname “Silent” and has felony convictions dating back to 2009, was shot in the face during a 2014 shooting at High Desert State Prison that left another man dead. With Plunkett as his attorney, Arevalo sued the Nevada Department of Corrections and others, including the former director of prisons.

Earlier this year, Arevalo was arrested after police found him with a .45-caliber Smith & Wesson, a .22-caliber Intratec, body armor and 23.7 grams of methamphetamine. He had been driving a 2004 Chevy Avalanche owned by Rogelio Estrada, whom Plunkett also represented. Investigators said Plunkett provided her cellphone to both men at the jail.

Attorney cares ‘deeply’ for inmate

“I care deeply for Andrew and have for many years,” Plunkett wrote Thursday in an email. “My use of the cell phone with Andrew Arevalo or Roger Estrada or anyone else is completely separate from my relationship with one person and I believed I was authorized to make calls.”

Lisa Rasmussen, who represents Arevalo in the cellphone case, said her client maintains his innocence “and looks forward to litigating these issues in court.”

Defense attorneys who carry electronics into the jail are required to sign paperwork that states the equipment is for “specific and limited purposes.” The form states that cellphone use is “only authorized to contact CCDC staff,” but another portion states that equipment can be used for “casework” or “evaluations.”

On Thursday morning, hours after her late-night Facebook post, Plunkett’s lawyer, Robert Langford, filed court papers indicating he wants off her case.

In his motion to withdraw, Langford wrote that “communication between the attorney and the client has deteriorated to the point that there is no communication at all.”

Initially, he declined to elaborate on the request.

But Plunkett responded.

“Langford took THOUSANDS of dollars from me and is withdrawing after a week of representation with no itemized statement and no refund whatsoever,” she wrote in an email.

She also claimed Langford did not like her honesty.

“I agree that we should part ways but he should not be taking my FULL multi-thousand dollar retainer with zero refund and zero proof of how the money was ‘earned,’” she wrote.

She did not say whether she planned to hire another attorney.

After reading Plunkett’s comment, Langford also emailed the newspaper.

Story ‘doesn’t deserve this much attention’

“The first duty of an attorney is to never put your client in a worse position than they already are and that duty continues even after you no longer represent them,” he wrote. “What she claims with regard to the retainer is not accurate or true. What she claims about my personal feelings about her is not accurate or true. I am going to decline to speak further because this is a story that doesn’t deserve this much attention and NO-ONE should continue to comment on it. Certainly, not her soon to be former attorney.”

Plunkett also disputed a police report about what happened between her and Arevalo inside a Nevada prison two years ago.

Corrections investigators reported that they have video surveillance footage that shows Arevalo fondling Plunkett’s breasts during a visit at Ely State Prison, Nevada’s maximum-security penitentiary. Lt. Ronald Bryant reported that he confronted Plunkett about what happened, and she initially denied it before being told that the incident was recorded.

Plunkett said Bryant did not include her entire response. She said she told him: “I’m sorry you caused a scene because nothing happened.”

Langford has said he had advised Plunkett to remove Facebook posts related to the charges against her, and she removed some, including one in which she called the allegations a “witch hunt.”

In the report about Plunkett’s jail visits with Arevalo, Metro Detective Aaron Stanton suggested that Plunkett first noticed a camera hidden in the ceiling on May 4.

The detective described Plunkett entering a room at the jail’s south tower before Arevalo.

“She immediately begins looking around at the ceiling,” Stanton wrote. “Plunkett stands up and begins looking around the ceiling area for approximately 45 seconds. … Plunkett begins looking underneath the table. … Arevalo enters the room. They talk for a few seconds and Plunkett continues to looking (sic) at the ceiling.”

Plunkett told the Review-Journal: “I always knew it was a camera, it was a fake smoke detector. Why do you think I was looking at it all the time. I was ONLY trying to figure out if it had voice recording capabilities because THAT would obviously violate privilege absent a warrant. I always expect to be on camera inside a jail or prison.”

The case is Matter of Discipline of Alexis Plunkett. (Mike Frisch)

November 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Emily Latella Decision

In a highly unusual decision, a division of the District of Columbia Court of Appeals took back a disbarment it ordered in March and made it a one-year suspension.

The case involved failure to pay medical providers with funds entrusted for that purpose contrary to an assignment and authorization.

The court’s original opinion in this matter was issued on March 8, 2018. After its issuance, respondent Brandi Nave petitioned for rehearing and rehearing en banc. On June 21, 2018, an order denying the petitions was issued prematurely and, we have determined, improvidently. Accordingly, the order of June 21, 2018, denying respondent’s petition is hereby withdrawn. Upon consideration by the full Division of the petition for rehearing, a majority of the Division has determined to grant the petition and to issue this amended opinion. The opinion reported at 180 A.3d 86 (D.C. 2018) is hereby vacated. The petition for rehearing en banc is denied as moot.

Footnote 1

We have not simply “changed our mind,” as our dissenting colleague suggests. Post at 25. Rather, we have acted upon a recognition that, as respondent pointed out in her Petition for Panel Rehearing, the original majority opinion and concurrence, like the Hearing Committee and the Board on Professional Responsibility (the “Board”), “overlooked and misquoted material [portions of] [r]espondent’s testimony.”

Having found misappropriation in March, the court now finds otherwise and reduced the sanction accordingly.

The court majority reviewed the evidence at length but in a manner that drew a sharp dissent.

As to sanction, no need to remand

we would remand to the Board for its recommendation regarding a sanction for the Rule 1.15 violations relating to untimely payment to third parties. However, the Board found 34 separate violations with respect to timely paying the medical providers, and we conclude that this warrants a sanction at the higher rather than lower end of the range that both the Hearing Committee and Disciplinary Counsel recommended to the Board. We therefore have determined to impose on respondent the sanction of a one-year suspension...

With automatic reinstatement. 

Which is one reason why remand (at a minimum) is appropriate to consider whether a fitness requirement should be imposed. 

Senior Judge Michael Farrell 

My colleagues have changed their mind and, by focusing on three of the nearly nineteen client matters relied on by the Hearing Committee and the Board on Professional Responsibility, now conclude that Disciplinary Counsel failed to prove by clear and convincing evidence that respondent misappropriated funds received from medical insurers that either should have been paid to medical providers on receipt or held in trust pending resolution of disputes with the provider. Respondent’s dealings with one provider, MSS, are chiefly at issue, but the Hearing Committee found that, as to a second provider as well, Dr. Yousefi, respondent misused funds (in part for personal litigation expenses) and at the evidentiary hearing “duplicitous[ly] characteriz[ed]” her behavior in failing to keep the funds in trust.  I dissent for the reasons stated in our previously issued opinion for the court, reported at 180 A.3d 86 (D.C. 2018).

“A central issue,” the majority recognizes, is when respondent actually received settlement checks from the insurance companies, thereby triggering her duty either to pay the provider or to deposit and hold disputed funds in trust. In now deciding favorably for respondent, the majority first dismisses the Board’s key reliance on respondent’s own “‘repeated[]”’ and “‘insistent[] urg[ing]’” before the Hearing Committee “‘that all settlement funds at issue . . . were timely deposited in her trust fund’” contemporaneously with their receipt well before the twin October out-of-trust dates. Id. at 88 (quoting Board). Its two reasons for disregarding that admission are far-fetched. First, respondent’s multiple concessions that she received settlement checks “on or about” specified dates before October carry no weight for the majority because, in criminal procedure, an indictment charging a crime “on or about” puts a defendant on notice “that a particular date is not critical.” Ante at 11 (citing criminal case authority for much as five months). So respondent, we are asked to believe, could have had in mind the usage in criminal charging documents when acknowledging her receipt of payments, rather than the meaning “on or about” conveys to an ordinary hearer. See On or About, BLACK’S LAW DICTIONARY (10th ed. 2014) (“on or about” means “[a]proximately; at or around the time specified”) (emphasis added). Second, the majority says that Disciplinary Counsel’s reliance on the “account balance methodology” at the hearing surprised respondent such that she had no reason to know in pleading “that more precision in her answers about dates” was required. Ante at 10. But, as Disciplinary Counsel points out, “[u]ntil the post-hearing briefs, [r]espondent never raised any doubt about when she actually received the money she was required to hold in trust for her clients’ medical providers.” And, as an experienced member of the bar, respondent surely knew that lack of “precision” in her admissions would not justify a delay of months between receipt of entrusted funds and their payment to the provider or deposit in escrow

In sum, the Board and the Hearing Committee could properly conclude that respondent, in repeatedly admitting close contemporaneity between the clients’ signing of settlement sheets and her receipt and deposit of insurance payments, was neither misled in her answers nor mentally reserving a (quasi-criminal) defense of receipt of payments much later than she acknowledged.

Notably 

The majority repeatedly appears to credit respondent’s hearing testimony, or to reject the Hearing Committee’s decision to discredit it, or conversely to rely on the Committee’s not having expressly discredited parts of it the majority thinks telling – all related to respondent’s insistence that she was still negotiating matters well after the October dates. But, like the Board, I find ample reason in the record for the Hearing Committee to find appellant’s often-confused testimony about her ongoing negotiation and delay in receiving insurance funds unreliable...

Altogether, as the Hearing Committee found, respondent simply “used further delay of payment as leverage”: although the insurers had “paid settlements . . . without reserving any right to challenge the integrity of medical bills,” respondent “was able to bully or scare MSS into agreeing to some further reductions that inured to the benefit of a few of her clients” – a “windfall for some clients” resulting from “the derogation of her duties to the medical providers” and the accompanying risk of lawsuits by MSS against other clients. These findings, echoing the Committee’s finding of “duplicitousness” in her dealings with Dr. Yousefi and testimony about them, are not clearly erroneous. The unanimous Board therefore had sound reason to conclude, that as to the Proctor, Wooten, and Allen matters, like most others, “[r]espondent’s attempted justification of her tardy payments to MSS relies essentially on her own testimony, which the Hearing Committee rejected” (italics added), and that, in her testimony, respondent “proffered utterly meritless excuses for her failures promptly to pay her clients’ medical providers” or alternatively hold the received funds in trust. Respondent’s repeated shortfalls in her trust account were not severe, but Disciplinary Counsel, aided by respondent’s unconvincing explanations, see In re Thompson, 579 A.2d 218, 221 (D.C. 1990), proved them by clear and convincing evidence.

The per curiam opinion was adopted by Associate Judges Thompson and Beckwith.

Unfortunately, another division of the court recently declined to accord comparable scrutiny to a grossly deficient hearing committee report that ignored the evidence to absolve the lawyers.

The title? See here. (Mike Frisch)

November 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Husband From Hell Gets Disbarred

The Washington State Supreme Court disbarred an attorney for misconduct in his own divorce

This attorney disciplinary action arises out of Russell James Jensen Jr.'s conduct during his own divorce proceedings. Jensen repeatedly violated court orders, engaged in frivolous litigation, made misrepresentations to the court, and made threatening and harassing contacts with parties that he knew to be represented by counsel. He also refuses to accept responsibility for his misconduct. He acknowledges that the protracted litigation has harmed his wife but seems unable to recognize that his own actions were the source of her injuries. Nor did he see fit to show up to his own disciplinary hearing.

Following testimony from his wife, her brother, and her attorney, the Washington State Bar Association (WSBA) hearing officer found that Jensen violated the Rules of Professional Conduct (RPC) and recommended disbarment.

The WSBA Disciplinary Board (Board) unanimously adopted the hearing officer's recommendation. We adopt the Board's recommendation and disbar Jensen from the practice of law.

The wife had multiple sclerosis and needed to sell the family home to move to Nebraska.

Respondent actively interfered with the sale efforts and was subject to a court-order to cooperate but

Therese received a written offer to buy the Mukilteo house. On February 14, 2014, Jensen phoned the buyer's agent. Jensen told the agent that he intended to block the sale by refusing to sign the sale documents. Jensen then offered to sign the documents if the buyer agreed to pay Jensen an extra $50,000 outside of the sale and escrow process. Jensen instructed the agent not to tell anyone about his offer. The agent declined his offer.

He fought the sale in court and appealed when he lost

the Court of Appeals terminated review, finding that Jensen had consented to the sale and there was no basis for discretionary review, and awarded Therese attorney fees. Jensen still refused to sign the documents, and the buyer backed out of the sale. The stress of these events exacerbated Therese's multiple sclerosis symptoms.

As they say, nevertheless he persisted when a second buyer was found

On July 10, 2015, following a motion by Therese, the superior court entered an order finding that Jensen had engaged in vexatious litigation against Therese and requiring that Jensen post a $10,000 bond before filing further pleadings. Even at oral argument, Jensen continued to argue that the superior court lacked authority to compel the sale.

There was misconduct involving land in Minnesota

The Jensens also owned other real property in Minnesota, some of it jointly with Therese's brother, James Brown. Jensen, Therese, and Brown engaged in litigation in Minnesota related to these properties. Therese and Brown were represented in Minnesota by attorneys Stanford Hill and Daniel Olson; Therese was represented in Washington by attorney Sabrina Layman.

Jensen, while acting pro se, repeatedly wrote letters and e-mails to Therese and Brown. These communications included threats—for example, that Brown would go to jail and that if Jensen were disbarred, Therese's alimony would be lowered. Jensen knew that Therese and Brown were represented because he copied their attorneys on these communications. Jensen also harassed the attorneys, calling Olson a "shill" and Layman "dirtball scum." Ex. A-508; FFCL 92. Layman, Hill, and Olson all asked Jensen to stop communicating with their clients, and Brown asked Jensen to stop communicating directly with him.

He was sanctioned for vexatious litigation in Minnesota.

Not the first rodeo

In 1991, the Minnesota Supreme Court reprimanded Jensen for mishandling money held in trust, disobeying a court order to return funds, violating procedural rules of appeal, disobeying Court of Appeals orders, making ex parte communications with Court of Appeals judges, and incompetently representing a client.

In 1995, the Minnesota Supreme Court admonished Jensen for abusive behavior toward someone who had filed an ethics complaint against him. In 1996, the Minnesota Supreme Court suspended Jensen's law license indefinitely for asserting frivolous claims, making false statements to a tribunal, and disobeying obligations under that tribunal's rules, and for conduct involving misrepresentations and conduct prejudicial to the administration of justice. In 1999, Jensen was reinstated to practice law in Minnesota.

Respondent did not participate in the hearing. His various attacks on the process failed to move the court

Jensen did not attend his disciplinary hearing and entered no factual evidence into the record. The hearing officer found that Jensen violated the RPCs and recommended disbarment, and the Board unanimously affirmed. There is substantial evidence in the record for the hearing officer to have reasonably found that Jensen violated the RPCs, and Jensen presents no clear reason to depart from the Board's unanimous recommendation of disbarment. For these reasons, we adopt the recommendation of the hearing officer and the Board and disbar Jensen from the practice of law. As a condition of reinstatement, Jensen must pay all judgments owed by him to Therese Jensen, James Brown, and the Therese Brown Jensen Trust.

(Mike Frisch)

November 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Exoneration Required To Sue Defense Attorney

A decision issued today by the Mississippi Supreme Court

Dalton Trigg and his father, Dr. Stephen Trigg, sued Dalton’s former criminal-defense attorney, Steven Farese Sr., alleging professional malpractice. The Lafayette County Circuit Court held that the claims were premature because Dalton had not yet secured postconviction relief from the underlying conviction, and it dismissed the complaint without prejudice.

This case presents the question of whether a convicted criminal may sue his former defense attorney for negligently causing him to be convicted while that conviction still stands. We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled.

But this holding extends only to claims that stem from allegations of professional malpractice. The Triggs’ claim for an accounting of the substantial retainer paid to Dalton’s attorney, to the extent it is just a fee dispute and does not depend on the quality of legal services rendered, should not have been dismissed. Finally, Dr. Trigg had standing to pursue the accounting claim because he claims he paid the retainer and is entitled to a refund of the unearned portion.

(Mike Frisch)

November 29, 2018 in Billable Hours | Permalink | Comments (0)