Sunday, August 11, 2019

Waiting For Dewey And Howe

A recent sanction summarized on the web page of the Alabama State Bar

On April 24, 2019, an attorney received a private reprimand for violating Rules 8.2(a) [Judicial and Legal Officials], 8.4(a), and 8.4(g) [Misconduct] of the Alabama Rules of Professional Conduct. The respondent attorney was a candidate for District Court Judge. The respondent attorney’s campaign produced a mailer containing an erroneous caricature of the incumbent indicating he paid cash to a former Governor in a “back room deal” to secure an appointment to the Court. The respondent attorney also authored a letter stating the incumbent judge would appoint his “friends and cronies” as Guardians ad Litem continuing to “ride [the incumbent’s] gravy train.” This letter was posted to both the personal and campaign Facebook pages of the respondent attorney without correction. The respondent attorney denied anyone requested the erroneous information be corrected. This denial was not true.

An unrelated matter involved disbarment

 In 2009, after a son satisfied a mortgage, the son’s father agreed to have the title to the home transferred to the son. [Attorney] Cheatham was retained to have a title transferred from the father’s name into the son’s name. Cheatham informed them they first needed to execute a quit claim deed transferring the home from the father to one of Cheatham’s businesses, Cheatham Group, LLC. Cheatham informed the son that she would then execute a statutory warranty deed from her business to him. In July of 2009, Cheatham had the father execute a quit claim deed in which the home was deeded from the father to Cheatham Group, LLC. That same day, Cheatham had the son sign a fraudulent settlement statement indicating that the son had paid the Cheatham Group, LLC $80,000.00 to purchase the property. Cheatham subsequently failed to deed the home from her business to the son. In January of 2011, a federal tax lien was placed on the son’s property for approximately $22,000.00. At the time, the property was still recorded in the name of the Cheatham Group, LLC. The federal tax lien was issued against the Cheatham Group, LLC for unpaid payroll and employment taxes. Only after the tax lien had been filed on the property did Cheatham file a statutory warranty deed transferring the property from the Cheatham Group, LLC to the son. In 2012, the son began attempting to sell the property and only then learned a federal tax lien had been filed against the property. The son contacted Cheatham in an effort to get her to resolve the tax lien so he could sell the property. Cheatham repeatedly assured him that she was working to resolve the lien with the IRS and through her bankruptcy proceeding. However, Cheatham’s Chapter 7 bankruptcy petition was dismissed in May of 2013 for her failure to appear. Cheatham texted the son and informed him she was awaiting a court order and would be moving forward with resolving the debt with the IRS. Cheatham did not inform him that her bankruptcy petition had been dismissed. Cheatham offered to sign a repayment agreement if the son chose to sell the property and use the sale proceeds to satisfy the tax lien on her behalf. Relying on Cheatham’s promise to repay him, the son used the sale proceeds from his home to satisfy Cheatham’s federal tax lien in the amount of $22,131.79. Cheatham subsequently agreed to repay him $1,000.00 a month beginning in August of 2013. However, Cheatham failed to do so. Cheatham agreed to repay him a lump sum payment amount of $15,000.00 by December 15, 2013.

(Mike Frisch)

August 11, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 10, 2019

Bar Charges Blagojevich

With talk of a possible pardon in the offing, the Illinois Administrator has filed a complaint alleging misconduct against convicted former Governor Rod  Blagojevich

In November 2002, Respondent was elected Governor of the State of Illinois, and was sworn in as the 40th governor on January 13, 2003, having previously served as an assistant state's attorney with the Cook County State's Attorney's Office, and a member of both the Illinois House of Representatives and the United States House of Representatives. Respondent was re-elected to the office in November 2006, and was sworn in for a second term on January 8, 2007.

Beginning in or about 2002 to on or about December 9, 2008, Respondent, along with others, devised and participated in a scheme to deprive the people of the State of Illinois of their right to honest services of Respondent in his capacity as Governor. As part of that fraudulent scheme, Respondent used the powers of the Office of the Governor to take governmental actions to obtain financial benefits for Respondent. Respondent's actions included:

  1. attempting to obtain campaign contributions and employment in exchange for appointing a United States Senator to fill the vacancy created by then President-Elect Barack Obama;

  2. soliciting $25,000 in campaign contributions from Patrick Magoon, Chief Executive Officer of Children's Memorial Hospital, in exchange for enacting legislation to increase the Illinois Medicaid reimbursement rate for specialty-care pediatric physicians; and

  3. soliciting $100,000 in campaign contributions from racetrack owner John Johnston in exchange for enacting legislation for the renewal of a subsidy requiring Illinois casinos to share a portion of their profits with Illinois racetracks.

As part of Respondent's conduct, Respondent made and participated in several telephone calls on October 17, 2008, November 12, 2008, November 13, 2008, and December 4, 2008 with various parties regarding details to execute the fraudulent scheme, described...above.

In addition to Respondent's conduct, described in paragraphs 7 and 8, above, in March 2005, Respondent made material false statements to agents of the Federal Bureau of Investigation ("FBI") during their investigation into potential corruption and fraud within the Illinois Governor's Office by stating, in summary, that he attempted to keep politics and government separate, and did not keep track of campaign contribution amounts or sources.

Bar charges were on hold (with an interim suspension) until the appeals process ran its course

Respondent sought to appeal his matter in relation to the amended judgment and sentence to the U.S. Supreme Court. On April 16, 2018, the U.S. Supreme Court denied Respondent's petition for writ of certiorari. As a result, Respondent had exhausted all available remedies and appeals, which left standing Respondent's 13 convictions and corresponding sentences on Counts 3, 7 through 13, 15 through 18, and 24, of the second superseding indictment.

The interim suspension was entered in October 2011, so he already has served a full term of disbarment. (Mike Frisch)

August 10, 2019 in Bar Discipline & Process | Permalink | Comments (1)

Friday, August 9, 2019

North Carolina State Bar Charges Prosecutor With Failure To Notify Victim, False Statements

A very interesting bar discipline complaint alleging misconduct was just filed by the North Carolina State Bar.

The charges to some extent mirror the controversy concerning the prosecutors in the Jeffrey Epstein Florida case.

The bar here charges the District Attorney for Henderson, Polk and Transylvania counties with ethics violations in handling a sex assault case involving a minor victim V.O. 

The investigation led to an indictment for a number of serious felonies.

Respondent (referred to as "defendant" in the complaint) allegedly met with V.O. and was aware of her wish to be advised of and involved in the criminal process.

North Carolina has a victim-notification statute (N.C. Gen. Stat. section 15A-832(c)) obligating prosecutors to comply with such requests. 

(c) The district attorney's office shall notify a victim of the date, time, and place of all trial court proceedings of the type that the victim has elected to receive notice. All notices required to be given by the district attorney's office shall be given in a manner that is reasonably calculated to be received by the victim prior to the date of the court proceeding.

Nonetheless, it is alleged, Respondent let the defendant plead to a misdemeanor without advising V.O. 

The charges allege that the failure to notify constituted conduct prejudicial to the administration of justice. 

Further, it is alleged that Respondent falsely told the sentencing court that V.O. did not wish to be present or make any statement.

Finally, Respondent allegedly made false statements in responding to the Bar investigation. (Mike Frisch)

August 9, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Has Ethics Opinions (And The Best Bar Discipline And Ethics Transparency)

A staff report on the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct has issued four advisory opinions in response to requests for advice. Three replace opinions previously issued under the former Code of Professional Responsibility. 

Advisory Opinion 2019-5 advises part-time law directors engaged in private practice that they may not represent private clients in matters related to their employing municipality. However, the opinion discusses the ability of lawyers associated with a law director’s firm to handle client matters with the municipality when appropriate screening and the apportionment of fees are implemented.

Advisory Opinion 2019-6 explains a lawyer’s duty to return a former client’s file that the lawyer has maintained for a substantial period of time after representation has ended. The opinion reviews what constitutes a client file, advises lawyers to return the client file in an accessible format if it was retained digitally, and suggests the implementation of an office file retention policy that permits the transfer or destruction of files with notice to the client. This opinion replaces Advisory Opinion 92-08.

Advisory Opinion 2019-7 concludes that a lawyer’s donation of legal services to a charitable organization for a fundraising auction or raffle is improper because it constitutes the giving of a thing of value to another for recommending the lawyer’s services. The board also considers the lawyer’s donation misleading, because the lawyer may ultimately be unable to provide the legal services donated due to conflicts of interest, the complexity of the legal matter or the lawyer’s relative skill and competence. This opinion replaces Advisory Opinion 2002-5.

Advisory Opinion 2019-8 addresses a lawyer’s duty to report to disciplinary authorities that a criminal defense lawyer is serving as a court-appointed counsel while associated in the same law firm as a county prosecutor. State law prohibits a partner or employee of a prosecuting attorney from accepting court appointments in criminal cases in any jurisdiction. The board concludes that a defense lawyer’s disregard of the state law barring representation and the conflict rules raises questions about a lawyer’s fitness to practice law. This opinion replaces Advisory Opinion 1989-09.

As I have had occasion to note, this web page sets a standard of transparency that most jurisdictions can only dream about. This is in part because the state bars really do not want any more transparency than is forced upon them.

Every action of the Board and disciplinary prosecutors is easy to find, in large part because such actions are given a prominent place on the web page.

For example see here. 

Ohio has become the model jurisdiction for discipline transparency because it devoted study and effort into becoming so.

I infer that a commitment to such transparency starts at the top with the state Supreme Court. (Mike Frisch)

August 9, 2019 | Permalink | Comments (0)

Thursday, August 8, 2019

Lawyer As Witness In New Jersey

The New Jersey Appellate Division reversed a disqualification order

Defendants David Mazie and his law firm, Mazie Slater Katz & Freeman, LLC, appeal on leave granted by the Supreme Court  from a September 5, 2018 Law Division order disqualifying Mazie and every attorney at Mazie Slater, other than Adam Slater, from representing either Mazie or the firm in depositions or trial of a malpractice action brought against them by plaintiff Noemi Escobar, their former client. We reverse.

Although the malpractice complaint was filed in November 2017, motion practice directed to the complaint resulted in very little, if any, discovery having occurred by the time the disqualification order was entered the following September. Accordingly, the facts are not well developed. What we know is that defendants represented plaintiff in a representative capacity in a civil suit against the State of New Jersey and two of its employees as well as two hospitals and several other individuals for catastrophic injuries to her infant grandson at the hands of his father. N.E. for J.V. v. State Dep't of Children & Families, Div. of Youth & Family Servs. , 449 N.J. Super. 379, 383-84 (App. Div. 2017). After plaintiff settled her claims against the private entities for $7,000,000, a jury found the State 100 percent liable for the baby's injuries and awarded her $165,972,503.2 Id. at 384-85, 87. The court denied the State's motion for new trial and judgment notwithstanding the verdict, and the State appealed. Id. at 387.

While the appeal was pending in this court, the State, which had argued qualified immunity in the trial court, made efforts to settle the case. The parties engaged the services of a mediator, and the State reportedly made different offers to settle, including a cash offer of $10,000,000 made after argument. After plaintiff rejected all of the State's settlement offers, we reversed the judgment, finding the State employees entitled to qualified immunity, N.J.S.A. 59:3-3. N.E. 449 N.J. Super. at 408. The Supreme Court subsequently denied plaintiff's petition for certification. N.E. v. State, Dep't of Children & Families, 231 N.J. 214 (2017).

The gist of the malpractice claim against defendants is that they failed to properly advise plaintiff of the risks on appeal, rendering her unable to make an informed decision about settlement. Plaintiff also takes issue with the retainer agreement, claims Mazie took disbursements for general overhead not legally permissible and failed to file suit on her individual behalf. Defendants counterclaimed for contribution and indemnification in the event of a judgment in the minor's favor.

Defendants were represented initially in this malpractice action solely by counsel appointed by their malpractice carrier. In January 2018, however, Mazie Slater partner Adam Slater also entered an appearance on behalf of defendants, prompting plaintiff to move to disqualify defendants from representing themselves in defense of her affirmative claims and on any counterclaim.

The issue

Plaintiff argued that Mazie and the attorneys at Mazie Slater would be necessary witnesses at trial, and thus New Jersey Rule of Professional Conduct 3.7 barred their participation as counsel for defendants in any phase of the litigation. Plaintiff contended any hardship to defendants by such a ruling was "non-existent," because they were already represented by well-qualified counsel. Defendants countered that they had a right to represent themselves in any phase of the case, and because RPC 3.7 is expressly limited to lawyers acting as advocates at trial, it was premature to preclude any Mazie Slater lawyer from acting as counsel for defendants in any event. Defendants further argued that because the case centered on "the nature and value" of their legal services to plaintiff, the exception in RPC 3.7(a)(2) applied as well.

The trial court granted the motion.

And got it wrong

We agree that RPC 3.7 is a rule addressed only to a lawyer acting as an advocate at trial. Accordingly, the trial court judge erred in relying on it to bar all Mazie Slater lawyers from representing defendants at depositions or in any other pre-trial matters. The judge overread Main Events to hold "that other proceedings in the case," such as depositions, "might so closely resemble the trial as to also implicate the rule." The holding in Main Events is exactly to the opposite. Id. at 356-57.

In referring to pre-trial proceedings that might implicate RPC 3.7, Judge Debevoise was referring not to depositions, but to a pre-trial evidentiary hearing where the attorney would testify. Id. at 357...

Accordingly, we agree with defendants that any decision to disqualify any Mazie Slater lawyers based on RPC 3.7 at this stage of the proceeding was premature. We offer the following for guidance in the event the motion is renewed in advance of trial.

Guidance

As the burden of establishing disqualification is on the movant, Trupos, 201 N.J. at 462-63, it will be for plaintiff to establish that specific Mazie Slater lawyers will be necessary witnesses at trial. Further, RPC 3.7 does not have an imputed disqualification provision applicable here.

And

As Mazie has the same rights as other individuals in our courts, he can appear on his own behalf at trial even if he is likely to be a necessary witness.

But the issue may resurface

The September 5, 2018 order disqualifying defendants from appearing at depositions and trial pursuant to RPC 3.7 is reversed. Plaintiff is free to renew, at an appropriate time, a motion to disqualify those Mazie Slater lawyers, other than David Mazie who may appear on his own behalf, whom she can establish will likely be necessary witnesses from acting as counsel at trial in accordance with RPC 3.7 and this opinion.

(Mike Frisch)

August 8, 2019 | Permalink | Comments (0)

Wednesday, August 7, 2019

As Portrayed By Russell Crowe

A consent disbarment accepted by the New Jersey Supreme Court involves an attorney with a Wikipedia page

Roberts was a former law enforcement officer who worked as a detective in the Essex County Prosecutor’s Office and Essex County Bureau of Narcotics. After completing a law degree at Seton Hall University and passing the bar examination, Roberts served as an Assistant Prosecutor in the Essex County Prosecutor's Office.

Roberts is recognized for his role in the investigationarrest, and prosecution of Harlem "drug kingpin" Frank Lucas, who operated a heroin smuggling and distribution ring in the New York City neighborhood. In addition to bringing down Lucas's operation, Roberts's investigation also uncovered police corruption connected with the drug trade.[citation needed] Lucas's criminal enterprise and the investigation by Roberts was the subject of the 2007 film American Gangster, starring actor Denzel Washington (as Lucas) and Australian actor Russell Crowe (as Roberts). After Lucas was incarcerated, Roberts entered private practice as an attorney specializing in criminal defense, and was retained by Lucas as defense counsel.

In April 2017, Roberts pleaded guilty to tax crimes after an investigation against him by the Internal Revenue Service's criminal division and investigators from the U.S. Attorney's Office.

North Jersey.com reported on his sentencing

Richard “Richie” Roberts, the former Essex County assistant prosecutor famous for helping take down Harlem drug lord Frank Lucas in the 1970s, was sentenced to three years’ probation Thursday for failing to pay his taxes, the U.S. Attorney’s Office said.

Roberts, 80, of Bloomfield, pleaded guilty in federal court in April to one count each of failing to pay payroll taxes and failing to pay personal income taxes, according to a statement from Craig Carpenito, the U.S. Attorney.

On Thursday, U.S. District Judge Esther Salas sentenced Roberts to probation, 10 months of home confinement and 100 hours of community service, the statement said. Salas also ordered Roberts to pay $224,962 in restitution.

Roberts, whose law license is suspended, was represented by Lisa Mack, an assistant federal public defender. Neither Mack nor Roberts could be reached for comment Thursday.

Roberts was portrayed by Russell Crowe in the 2007 film, “American Gangster,” which was a fictionalized account of his efforts to bring down Lucas. Lucas, played by Denzel Washington, led a massive heroin-smuggling operation from his Teaneck home until his 1975 arrest.

Roberts, a defense attorney who owned a Newark law practice, had not paid personal income taxes since at least 2000, the statement said. He also failed to pay payroll taxes from 2009 through 2011.

(Mike Frisch)

August 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Stetch In Time

The New York Appellate Division for the Second Judicial Department ordered a two-year suspension for an aggravated failure to supervise an attorney employee

At the disciplinary hearing, the respondent admitted that he was negligent in his supervision of Stetch, that there was a breakdown in internal controls, and that he should have been more attentive and should have done more in his supervision of Stetch. The issue in contention revolved around the existence of early warning signs, because had those early warning signs been heeded by the respondent, who was the sole owner and partner of the firm, the fraudulent and illegal conduct committed by Stetch could have been detected, prevented, or at least curtailed. In the Grievance Committee’s view, the warning signs, which took place over a span of 2½ years, were many, including, for instance, Stetch’s failure to provide the respondent with disbursement sheets for transactions that she handled or her provision of disbursement sheets that were incomplete; Stetch’s failure to provide client information in the memorandom section of checks, thereby preventing the respondent from performing a reconciliation of the firm’s escrow accounts; the issuance of checks containing forged signatures; and the issuance of checks with no signature that cleared. The respondent conceded that early warning signs existed and that they were not properly addressed. However, he claimed that he did take some action—for example, he hired an outside accountant—and did not ignore the warning signs completely. The respondent claimed that he would have had to conduct a forensic accounting, which he did not do, in order to have discovered the fraud.

There was mitigation but

Notwithstanding the above enumerated mitigating circumstances, we find that the respondent committed serious professional misconduct. In view of the multiplicity of warning signs, including one that even the respondent concedes was a sign that his employee was engaged in illegality (checks with forged signatures or no signature), repeated mistakes by Stetch, her ineptitude with record keeping, and her outright lies, the respondent’s failure to conduct a forensic accounting, which would have required him to examine the files, was patently unreasonable. The respondent, a certified public accountant with years of experience at a major accounting firm, was eminently skilled and trained to undertake such a review. Had he done so earlier, the respondent could have contained the damage, which was significant, approximately $2.3 million. To make matters worse, although the respondent fired Stetch in June 2010 upon learning that Stetch made disbursements that contradicted his instructions, he immediately rehired her on the belief that she could be of assistance. Soon thereafter, the respondent permanently fired Stetch, but only after she caused more damage. If the respondent’s failure to supervise, which is conceded, was negligent, his decision to rehire Stetch was simply reckless.

(Mike Frisch)

August 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Wrong Way Throughout Yonkers

The New York Appellate Division for the Second Judicial Department has censured an attorney

By felony complaint dated May 18, 2017, and filed in the City Court of Yonkers, County of Westchester, the respondent was charged with reckless endangerment in the first degree, in violation of Penal Law § 120.25. The complaint alleged that on May 18, 2017, at approximately 2:28 a.m., the respondent drove his vehicle while in an intoxicated condition and, for approximately 10 miles, drove his vehicle in the wrong direction on various parkways throughout Yonkers.

On December 14, 2017, the respondent pleaded guilty in the County Court, Westchester County, before the Honorable Susan Cacace, to driving while intoxicated, in violation of Vehicle and Traffic Law § 1192(3), and reckless driving, in violation of Vehicle and Traffic Law § 1212, in satisfaction of the charges. At his plea allocution, the respondent admitted that he operated his motor vehicle while in an intoxicated condition and in a manner which unreasonably endangered users of the public highway.

The difference between a felony as opposed to a misdemeanor conviction is profound

In determining an appropriate measure of discipline to impose, we note that, in his submissions to this Court and in his testimony at the hearing, the respondent has been candid and repeatedly acknowledged the wrongfulness of his decision to operate a motor vehicle after consuming alcohol and a controlled substance. He has accepted responsibility for his actions and demonstrated sincere remorse for his conduct. In that regard, the Special Referee reported that he was “convinced that the [r]espondent’s remorse is real and honest and that currently he is committed to never repeating such actions again.” We have also considered the respondent’s compliance with the terms of probation, his voluntary rehabilitative efforts, and the testimony and numerous letters in support of his good character, as well as the isolated nature of the conduct by an attorney with an unblemished disciplinary record.

Under the totality of the circumstances, the respondent is publicly censured.

(Mike Frisch)

August 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Lost At Sea With With Broken Glasses

An attorney's false statements to a tribunal drew an indefinite suspension with a right to reapply after 120 days from the Minnesota Supreme Court.

Respondent is an experienced criminal defense attorney who had previously been suspended and reinstated.

During a lunch recess in a criminal matter

At some point during the break, the Wright County prosecutor received a call from Sea advising him that Sea would be a half-hour late. He said that he was on his way back from Saint Paul because he had to pick up his spare pair of eyeglasses after his original pair broke. When Sea did not appear, the Wright County clerk called him at 1:46 p.m. At that time, Sea told the clerk that he would be another half-hour late. The clerk called Sea at 2:01 p.m. and again Sea said that he would be another half hour. He was called a third time at 2:22 p.m., and Sea told the clerk he was in Maple Grove. The district court began the hearing at 2:24 p.m. without Sea. When Sea finally arrived at Wright County District Court at 2:41 p.m., the proceedings had ended for the day.

The referee found that the criminal trial was delayed due to Sea’s non-appearance because the district court was unable to rule on pretrial motions and two defense witnesses under subpoena missed work and were unable to testify. One of the witnesses was scheduled to leave the country the next day.

Additionally, Sea’s client, F.B., was unrepresented during the proceedings and unaware of his attorney’s whereabouts. The district court judge testified at an evidentiary hearing held by the referee that she was concerned for the defendant and was unable to communicate with him because his attorney was not present. The defendant had neither the assistance of counsel nor the ability to consult with counsel until Sea finally arrived.

At the opening of court proceedings the next day, the district court conducted a private, sealed, transcribed inquiry with Sea about his excuse, if any, for being late. Sea stated that his absence was due to his eyeglasses. The court resumed public proceedings and asked Sea to explain where he was the afternoon before. Sea responded:

Once again, good morning, Your Honor. Unfortunately yesterday I broke my glasses. I have bifocal glasses, and I cannot see at all without them. And unfortunately the one I have is in Saint Paul. And I had to—I had to run down there to get it—get my spare one. And I thought—I’m showing you the one I wore yesterday before (shows glasses) it’s broken. It’s bifocal. I cannot see at all without them. So I had to run down to Saint Paul. I don’t have the court’s phone numbers, so I called [M.E., the prosecutor]. And I told him, you know, that I will be back in Saint Paul after picking up my—my spare glasses. I thought I could make it back before 1:30, or maybe a few minutes late, you know. Unfortunately, the traffic was bad and I was not able to. I could not be able to see anything, Your Honor, yesterday at all without the glasses. And I thought to be able to read anything or see anyone, I must have this. Driving down with this, Your Honor (showing glasses) I have this—like this in my eye while I’m driving. And I could not operate my vehicle even safely on my way down there. Upon my return, Your Honor, I apologized to [M.M., counsel for defense witness scheduled to potentially testify the afternoon of April 18], you know, and the—and his client [potential defense witness]. I also apologized to [M.E.]. Now right now, Your Honor, I apologize to the court, you know. I am very sorry, you know. It wasn’t—I mean I didn’t plan on not being here. I was just hoping that I can rush down here and pick it up and come—and come right back maybe a few minutes late. But unfortunately the traffic was very bad and I wasn’t able to get here. When I—when I got here though, [M.M.] and his clients were still here. So we were able to—to discuss more in details about the testimony of his witnesses. Once again, Your Honor, I sincerely apologize.

When the court pressed Sea again a few days later, after he was once again 30 minutes late for the proceedings, for an explanation for his absence on April 18, Sea again only referenced his broken glasses and traffic as reasons for causing his delay.

The statements that Sea made to the district court and the prosecutor regarding the reason for his lateness were false. In reality, Sea was driving to and from Dakota County District Court to represent another client, A.H., in a bail hearing on April 18. Sea filed a certificate of representation in Dakota County on April 17, 2017, and was aware that the
Dakota County proceeding for which he had filed a Notice of Appearance was scheduled for 11:00 a.m. on April 18, 2017. Sea told the Dakota County clerk that he would arrive by 12:30 p.m. for the hearing. In his testimony at the evidentiary hearing, Sea admitted that he did not inform the Wright County District Court about the bail hearing in Dakota County because he believed that he “would have sufficient time to travel from Wright County to Dakota County” during the lunch recess of the Wright County proceedings. He testified that his glasses broke and he had to go to Saint Paul first to pick up his spare glasses before going to Dakota County. When Sea arrived in Dakota County the court had to call an interpreter and the proceedings were delayed while waiting for the interpreter to arrive. Sea testified that once the bail hearing began it “took maybe five to ten minutes at the most.”

The trial court

After learning that Sea had actually been driving to and from Dakota County representing another client and Sea was still untruthful about his whereabouts, the district
court imposed sanctions. It ordered Sea to reimburse Ridgeview Medical Center (where the two witnesses under subpoena were employed) $1,712.94. Sea paid the sanctions. 

The bar misconduct

Sea argues that the statements he made regarding his eyeglasses and the traffic delays were not false and therefore he did not violate the Minnesota Rules of Professional Conduct. We disagree. Sea contends that, because the referee found Sea’s statements about his broken eyeglasses and having to go to his office in Saint Paul to pick up a spare pair were false, the referee clearly erred. The referee rejected Sea’s testimony from the evidentiary hearing that those were true statements. The referee has the power to do so.

Sea not only knowingly made false statements to the district court, he also knowingly omitted key information that he should have shared with the court. Even if Sea was truthful regarding his eyeglasses and his need to drive back to Saint Paul to pick up a spare pair, he knowingly made a false statement to opposing counsel and the court when he claimed that he was on his way directly from Saint Paul to Wright County, instead of disclosing that he had made a significant detour to Dakota County District Court. The Wright County District Court asked Sea multiple times about the reasons for his absence and he consistently failed to tell the truth.

Majority sanction

consistent with our previous decisions and the specific circumstances of this case, we conclude that an indefinite suspension with no right to petition for reinstatement for a minimum of 120 days is the appropriate discipline.

Dissent on sanction by Justice Thissen

Sometime that morning, Sea’s eyeglasses broke. The record discloses nothing to refute Sea’s clear testimony on that point. Consequently, he was forced to stop at his Saint Paul office to get a replacement pair of eyeglasses before heading to the Dakota County bail hearing. No evidence in the record contradicts that fact either. The bail hearing was delayed as the parties waited for an interpreter for Sea’s client. Needless to say, Sea was late getting back to Wright County and did not arrive before 2:25 p.m., when the judge left. As it turned out, the parties resolved many of the issues related to the motion to quash, and the felony trial proceeded as scheduled in the following days.

Sea did not inform the prosecutor, his client, or the district court that he had appeared at the Dakota County bail hearing. He blamed his tardiness solely on the fact that he broke his eyeglasses. He maintained his half-truth story even when the district court gave him more chances to be fully forthcoming. In the end, the truth came out after the district court checked the court record system and saw that he had appeared with his immigrant client in Dakota County midday on April 18. But, as the joint stipulation of facts stated, Sea “asserts he was wrong in not disclosing to the Wright County District Court that he appeared in Dakota County District Court.”

Lawyers are human

At the most fundamental level, my analysis starts with the simple observation that lawyers are humans and are therefore imperfect, a point made plain in the recent Call to Action seminar, a joint effort between our court, the Director’s office, and the Minnesota State Bar Association to address the impact of lawyer well-being on client relationships, among other impacts. When I step back, what I see in this case is a lawyer who responded to a desperate call to respond to an emergency facing a former client who did not speak fluent English, who likely could not pay for a lawyer, and who was sitting in jail. He made(unwisely as it turned out) a gamble that his morning matter in Wright County would be resolved in time for him to assist the former client at a Dakota County bail hearing at midday. Then, as is the case for all of us at some point or another, life happened and made things worse. The lawyer’s eyeglasses broke, forcing him to stop by his office in Saint Paul on the way to Dakota County—still holding out hope that he could get back to Wright County, late, but in time to resolve the motion to quash. And I see a lawyer who knew that he made a mistake, panicked, and did not tell the whole truth to cover up a messy situation. In no way does that excuse the behavior. It was wrong. He is receiving a serious sanction. But the backstory should inform how we understand the nature of Sea’s ethics violations and how we should proceed. And that backstory tells me that a sanction on the harshest end of the range of punishments we have imposed in similar cases is not right.

Why it matters

One may ask why a two-month difference in suspension length matters. To any practitioner—and particularly a solo practitioner like Sea—two months without a way to earn an income is not at all insignificant. Moreover, if a lawyer is suspended for a period of more than 90 days, the lawyer must petition for reinstatement, undergo an investigation by the Director inquiring into the “appropriateness of the . . . reinstatement” and obtain a recommendation on reinstatement from a panel of the Board of Professional Responsibility. Rule 18(a)–(c), RLPR. After that, the lawyer must appear before us and we may grant the reinstatement petition or deny it.

If less than 90 days

No investigation. No panel recommendation. No hearing before us. Consequently, by choosing to impose a 120-day suspension, the court is imposing a much more significant sanction on Sea than a mere 60 days of suspension. And based on the facts in the record, including the backstory leading up to the afternoon of April 18, I would hold that the protection of the public and maintenance of public trust in our courts do not require us to exercise the additional supervisory functions over Sea set forth in Rule 18(a)– (d), RLPR. I therefore respectfully dissent from the court’s imposition of a 120-day suspension.

(Mike Frisch)

August 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Remand For Sanction Of ADA

A busy day yesterday in the North Carolina Court of Appeals included an appeal of a trial court order suspending an assistant district attorney 

Phillip Entzminger (“Respondent”) appeals from an order of discipline, which suspended his license to practice law for two years, with possibility of a stay of the balance of the suspension after six months. We affirm the order appealed from in part, reverse in part, and remand for further hearing on the appropriate discipline to be imposed.

The underlying matter was a DUI case assigned to the ADA on the day of trial. The defendant had a military spouse and had flown from Hawai'i for trial.

The prosecutor's office was previously aware of the unavailability of the essential witness.

When the case was called after waiting for two days

After determining no subpoena was present in the court file or had been issued for Officer Sinclair, the trial court denied the State’s motion to continue. The State dismissed the DWI charge against Aguilar and accepted her plea on the driving after consuming while underage charge.

Then

The next day, Respondent completed a document entitled “Prosecutor’s Dismissal and Explanation” which included Respondent’s version of the reason for the State’s dismissal of the DWI:

This 2014 case was set in superior court. The analyst was unavailable due to training with the Huntersville Police Department (North Carolina). The State made a motion to continue which was denied. Oddly enough, the judge indicated the DWI case should have been set further up in calendar because defendant was from Hawaii. All defendants simply need to move out of state after being charged with a crime if that is the case.

[The State] could have proved all the elements but a superior court judge denied the motion to continue for lack of an analyst to show the .12

Judge Foster saw and reviewed the dismissal document and spoke with Officer Sinclair concerning her absence for training and learned the true history, including her prior notice of her unavailability and absence as a witness on trial day. After consulting with other judges, Judge Foster “made the decision to begin this action.” Judge Foster felt Respondent’s comments on the dismissal document “called the Court into disrepute,” and were “disrespectful,” “inappropriate,” and “unnecessary.”

Judge Foster entered an order for Respondent to show cause why he should not be held in contempt or disciplined. The order alleged Respondent: (1) showed “a disregard for the dignity of the Court”; (2) “demonstrated undignified and discourteous conduct”; (3) “[m]isled the Court by making statements he knew or should have known to be false”; and, (4) “[a]cted to create a false record.”

Bar Counsel was appointed to prosecute the contempt.

On appeal the court sustained some findings of misconduct

...competent evidence supports the superior court’s disciplinary order. Respondent made two statements to Judge Foster regarding Officer Sinclair’s availability that implicated rules 8.4 and 3.3. First, when Judge Foster questioned why Officer Sinclair was not present to testify, Respondent replied, “I could not tell you. Ms. Stroud in our office told me today that she was in Huntersville. And I want to say actually [she] has a job in Huntersville in training with the police department.” Second, in response to Judge Foster’s question to Respondent of when “did y’all know that [Officer Sinclair] was going to be unavailable,” Respondent stated, “I found out today, your Honor, at approximately 12:15.” (Emphasis supplied).

Respondent’s statements could be found to be a misrepresentation of facts that could have misled the court to believe the District Attorney’s office had learned of Officer Sinclair’s absence only that day. This potential to mislead the court may have prompted Atwood to interject and clarify Respondent’s statements, by saying, “I was made aware Monday. [Officer Sinclair] contacted our office and said she is in training with the police department.”

No misrepresentation re the court's docket

The trial court’s finding and conclusion that this statement was a material misrepresentation of fact to the court is not supported by competent evidence. Respondent relied upon the trial docket and calendar and represented facts he believed to be true, with the qualification of “in my understanding.”

The trial court properly concluded that his apology was unavailing.

Remand was ordered because of the vacated finding of misrepresentation. (Mike Frisch)

August 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

A Necessary Witness

An interlocutory appeal of a disqualification order based on Rule of Professional Conduct 3 .7 was allowed but the order was affirmed by the North Carolina Court of Appeals.

The attorney represented herself, her partner spouse and their two-person firm in defending a claim for non-payment for office computers

Everbank subsequently filed a motion to disqualify Mrs. Hunoval as counsel for Mr. Hunoval and the Hunoval Law Firm. In its motion, Everbank claimed Mrs. Hunoval should be disqualified from acting as counsel under Rule 3.7 of the North Carolina Rules of Professional Conduct because she “is a necessary witness to this case, and she has none of the exceptions to Rule 3.7(a) . . . that would allow her to testify and serve as an advocate for all parties.” In response to Everbank’s motion, Mrs. Hunoval argued that she was not a necessary witness because her testimony was obtainable by other means. In support of her argument, she submitted an affidavit by Mr. Hunoval, in which he claimed that “[t]estimony as to any material facts in dispute could be provided by [him] as witness during the trial of this case” and Mrs. Hunoval “does not have any different or additional knowledge of any facts related to the case.”

Necessary Yes

The underlying action for which Mrs. Hunoval attempts to serve as counsel was a dispute over a lease agreement for computer and electronic equipment. Mrs. Hunoval was one of the two individuals guaranteeing the lease agreement, with the other individual being Mr. Hunoval. Mrs. Hunoval argued, and Mr. Hunoval submitted in his affidavit, that her testimony was not necessary because it was obtainable by other means through Mr. Hunoval as the other individual guaranteeing the lease agreement. However, in its motion to disqualify, Everbank argued it intended to call Mrs. Hunoval as a witness and that her testimony was necessary because “[i]t appears that [Mrs.] Hunoval’s testimony will contradict the testimony of her co-defendant, [Mr.] Hunoval . . . .” Everbank expanded upon this contention at the hearing before the trial court, arguing, “She’s denied that they breached the contract. Mathias Hunoval, her husband, sent an email to my client acknowledging the debt to both Everbank and CSI. So there’s a direct conflict right there.” Given this, the trial court’s determination that Mrs. Hunoval’s testimony was unobtainable by other means and that she was likely to be a necessary witness was supported by reason.

Substantial hardship No.

But the disqualification was too broad

There was no evidence or argument before the trial court as to why Mrs. Hunoval should be disqualified from legal representation outside of trial. The trial court’s order also does not state any reasoning behind its decision to extend Mrs. Hunoval’s disqualification to all matters in this case. We conclude this decision was an abuse of discretion and accordingly reverse.

(Mike Frisch)

August 7, 2019 | Permalink | Comments (0)

Tar Heel EDiscovery

The North Carolina Court of Appeals articulated governing principles of electronic discovery and concluded that a trial court's disclosure order was an abuse of discretion.

Despite the general disdain of courts for discovery disputes, in the words of Dorothea Dix, “[a]ttention to any subject will in a short time render it attractive, be it ever so disagreeable and tedious at first.” Dorothea L. Dix, Conversations on Common Things; Or, Guide to Knowledge. With Questions. For the Use of Schools and Families. 270 (4th ed. 1832). This appeal presents this Court with our first opportunity to address the contours of eDiscovery within the context of North Carolina common and statutory law regarding the attorney-client privilege and work product doctrine.

The interlocutor y appeal was from an order that permitted opposing counsel's expert free access to electronic documents

Defendants appeal from an order compelling discovery that allows Plaintiffs’ discovery expert access to Fayetteville Technical Community College’s (“FTCC”) entire computer system prior to any opportunity for Defendants to review and withhold documents that contain privileged information or are otherwise immune from discovery. Defendants argue that the order compelling discovery constitutes an impermissible involuntary waiver of those privileges. Plaintiffs argue that the trial court’s order, in conjunction with a stipulated protective order consented to by the parties, adequately protects Defendants’ privileges such that no waiver will occur. After careful review, we hold that the trial court abused its discretion by compelling production through a protocol that provides Plaintiffs’ agent with direct access to potentially privileged information and precludes reasonable efforts by Defendants to avoid waiving any privilege. We therefore vacate the order and remand for further proceedings not inconsistent with this opinion.

Plaintiffs allege retaliatory dismissal for whistleblower activities.

The landscape

North Carolina authority regarding eDiscovery is bare bones, generally providing that “discovery of [ESI] stands on equal footing with discovery of paper documents.” N.C. R. Civ. P. 34, Comment to the 2011 Amendment (2017); see also N.C. R. Civ. P. 26(b) (defining ESI and including it within the scope of discovery subject to the same privileges as paper documents).

No statute, procedural rule, or decision by this Court or the North Carolina Supreme Court has delineated the parameters of eDiscovery protocols with respect to the protection of documents and information privileged or otherwise immune from discovery...

Although the advent of eDiscovery has undeniably altered how discovery is conducted by parties and overseen by courts, it has not thus far influenced North Carolina law regarding privileges. Fundamentally, the attorney-client privilege and work-product immunity doctrine attach to ESI in the same manner and to the same extent they apply to paper documents or verbal communications.

The search

While the use of search terms assists in preventing disclosure of privileged materials, it is far from a panacea. “[A]ll keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review.”

The trial court order

In short, the Protocol Order provides Plaintiffs’ agent direct access to privileged information, which disclosure immediately violates Defendants’ privileges. It furthers that violation by directing that agent, having attempted to screen some privileged documents out through the use of search terms, to produce potentially responsive documents without providing Defendants an opportunity to examine them for privilege. If, following that continued violation, Plaintiffs—their agent notwithstanding—receive privileged documents, Defendants must attempt to clawback that information, reducing their privilege to a post-disclosure attempt at unringing the eDiscovery bell. Such compelled disclosure of privileged information is contrary to our law concerning both attorney-client privilege and work-product immunity. Cf. In re Miller, 357 N.C. at 333-35, 584 S.E.2d at 786-87; N.C. R. Civ. P. 26(b)(3). As a result, we hold the trial court misapprehended the law concerning attorney-client privilege and the work-product immunity (however understandably given its undeveloped state within the eDiscovery arena), vacate the Protocol Order, and remand for further proceedings.

The trial court may appoint a special master

we vacate the Protocol Order for an abuse of discretion and remand for further proceedings not inconsistent with this opinion

August 7, 2019 | Permalink | Comments (0)

Sanction: Reprimand And Retire By The End Of 2019

A Massachusetts attorney agreed to a public reprimand conditioned on his retirement from practice for a series of conflicts of interest as summarized on the Board of Bar Overseers web page. 

The respondent engaged in conflicting representations and related violations arising out of a real estate transaction and a guardianship and conservatorship petition not involving self-dealing or fraud.

Respondent was counsel to a bank. The nephew of a disabled aunt sought to remove her as owner of her residential property

Prior to the closing, the nephew asked the respondent to prepare a deed transferring the property from the nephew and aunt as joint owners to the nephew as sole owner. Although preparing the deed was not within the scope of the respondent’s services as counsel for the bank, he prepared the deed for the nephew without charge per the nephew’s instructions. The deed did not reserve a life estate interest for the aunt and recited a consideration of $1 to the aunt for transferring her one-half interest to the nephew. The nephew brought his aunt to the respondent’s office, and the respondent notarized their signatures on the deed. The respondent, who had never met the aunt before, only spoke to the aunt briefly. He did not explain the transaction to her and held himself out as disinterested. Although he knew that the aunt was not represented by counsel and reasonably should have known that she misunderstood his role in the matter, the respondent did not make reasonable efforts to correct the aunt’s misunderstanding, in violation of Mass. R. Prof. C. 4.3.

As bank’s counsel at the December 11, 2015 refinance closing, the respondent had the nephew sign a loan application and occupancy affidavit. The nephew stated on the loan application that he intended to use the property as his principal residence. The respondent notarized the occupancy affidavit even though the nephew failed to answer a question declaring whether he intended to use the property as his principal residence. After the closing, when respondent learned that the nephew did not live at the property and was not intending to make the property his primary residence, the respondent did not disclose this information to the bank.

Other relatives sought a conservatorship for the aunt

The nephew paid the respondent a $7,500 flat fee that day to represent his mother, grandmother, the proposed ward’s son, and the proposed ward. Before accepting payment of his fee from the nephew, the respondent did not seek the informed consent of the proposed clients, in violation of Mass. R. Prof. C. 1.8(f)(1).

Things unravelled but he continued on

In March and April of 2016, the respondent agreed to represent the nephew in serving a notice of no trespass prohibiting the proposed guardian/conservator from entering the property where the proposed ward lived. The respondent also agreed to represent the nephew in seeking to evict the proposed ward’s brother who was sharing an apartment with her at the property, and in opposing a restraining order obtained by the brother after a confrontation with the nephew at the property. The respondent undertook his representation of the nephew in these matters which were opposed to the proposed ward’s interests while simultaneously purporting to represent the proposed ward in the guardianship and conservatorship proceedings, without first obtaining the proposed ward’s informed consent confirmed in writing, in violation of Mass. R. Prof. C. 1.7 and 1.16(a)(1).

At a court hearing in April 2016, the respondent first learned that the nephew had allegedly lied to the proposed ward in the fall of 2016 to get her to sign the deed transferring her interest in the house to him. Shortly thereafter the respondent stopped representing the nephew in any legal matters.

But

On about July 27, 2016, the proposed ward notified the respondent that she was discharging him as her counsel. The respondent did not withdraw his appearance for the proposed ward in the guardianship and conservatorship matters.

On December 2, 2016, the proposed ward’s mother filed assents to the petitions for guardianship and conservatorship. The respondent did not promptly seek to withdraw his appearance on behalf of the mother as attorney-in-fact for the proposed ward in opposition to the guardianship and conservatorship.

Sanction

On April 30, 2019, the parties filed an amended stipulation of the parties and joint recommendation for a public reprimand, conditioned on the respondent’s immediate cessation of taking on new client matters and his agreement to close his law practice and assume retirement status by no later than December 31, 2019. On May 13, 2019, the Board voted to accept the amended stipulation of the parties and impose a public reprimand.

(Mike Frisch)

August 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Non-Standard

A public reprimand summarized on the web page of the Massachusetts Board of Bar Overseers

The respondent received a public reprimand for his simultaneous representation of a seller and buyer in a residential real estate transaction. The respondent failed to adequately explain the conflict and obtain the informed consent of the buyer.

On June 1, 2018, the respondent represented both the seller and the buyer in a non-standard residential real estate closing transaction. The seller provided the financing to the borrower and thus the respondent simultaneously represented the lender and the borrower and acted as settlement agent.

It was not reasonable for the respondent to believe that he could provide competent and diligent representation to each affected client. At the closing, the buyer executed a number of documents setting forth unusual terms and conditions that favored the seller. The terms of the loan would not have been included in any loan transaction from any recognized lending institution.

On the day of the closing, the respondent requested that the buyer review and execute a conflict letter (the letter). The letter disclosed, among other matters, that the respondent had represented the seller for years in his real estate business. The letter correctly stated that the parties had previously agreed to the financial terms of the transaction without the intervention of the respondent. In the letter, the respondent represented that he was acting as a “scrivener.” The letter acknowledged that the buyer was made aware of the potential conflicts, but did not describe what those potential conflicts might be or what disadvantages there might be to the multiple
representation, including that an independent attorney would likely have recommended against consummating the transaction upon the proposed terms.

The buyer was not told orally, by the letter or otherwise, that the terms of the transaction as provided in the deed and escrow agreement were unusual, that she was potentially waiving consumer rights provided in state law and that some of the terms of the transaction may not be enforceable as contrary to state statutes and regulations providing protections for mortgagors of mortgages secured by residential property. The buyer did not receive the diligent representation that she would have received if represented by independent competent counsel.

Sanction

There were no factors in aggravation. The respondent had no prior discipline. In mitigation, there was no ultimate harm. A little more than two months after the closing, the buyer was able to refinance with a conventional lender upon reasonable terms. After the transaction, the buyer retained counsel who, in November 2018, sent a demand letter to the respondent and to the seller, alleging that the transaction was unfair to the buyer. The respondent notified his malpractice carrier and the demand was settled with the respondent and the seller within weeks. In addition, the respondent played no role in the buyer’s decision to initially enter into the transaction with the seller.

(Mike Frisch)

August 7, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 6, 2019

The Order Of The Silver Crescent

The South Carolina Advisory Committee on Standards of Judicial Conduct  opines

FACTS

The inquiring judge is a retired, but still active, circuit court judge. The county’s Chief Public Defender (“CPD”) is retiring and the inquiring judge has been asked to submit a letter recommending that the Governor award The Order of the Silver Crescent to the CPD. The inquiring judge has been personal friends with the CPD for over forty years, and the friendship began before the judge ascended to the bench and before the CPD occupied his current position. The two attend the same church, live in the same subdivision, and their spouses are friends. The judge would not be submitting the letter on judicial letterhead and would not reference the judge’s judicial position.

CONCLUSION

A retired circuit court judge may provide a letter recommending a retiring Chief Public Defender for an award (The Order of The Silver Crescent).

(Mike Frisch)

August 6, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Marching Out Of Georgia

An attorney's third brush with bar discipline has drawn disbarment by the Georgia Supreme Court

We have reviewed the record in these matters and agree that disbarment is the appropriate sanction, particularly given the number of violations, Sakas’s prior disciplinary history, and his failure to engage honestly in the disciplinary process.

He was admitted in 1973 and had failed to respond to multiple complaints

As deemed admitted, the facts show that in multiple matters Sakas purported to represent clients while he was suspended from the practice of law due to a prior disciplinary violation. See Sakas II, 301 Ga. at 51. With regard to two other matters, Sakas was retained by clients but did not perform the agreed-upon work and failed to respond to inquiries from his clients about the status of their matters. When the clients eventually terminated the representations, Sakas failed to return the unearned portion of the fees they had paid. With regard to one of the clients, Sakas initially attempted to refund the retainer to the client with a check that was dishonored by his bank, and later claimed to the State Bar that the client was not entitled to a refund as the retainer had been earned.

With regard to the other client, whose representation Sakas took on while he was suspended from practice, Sakas submitted a response to the Notice of Investigation indicating that he was working on the client’s bankruptcy matter, while the evidence showed that the client was proceeding pro se.

In another matter, Sakas was hired to assist a couple in their efforts to recover an overpayment on their mortgage, but after Sakas failed to take any action on their behalf, they terminated the representation and demanded a refund. When Sakas failed to return their retainer, they filed a petition for fee arbitration. While suspended from the practice of law, Sakas answered the arbitration petition with a letter in which he identified himself as an attorney and made numerous false statements about the type and amount of work he had performed for these clients. Sakas retracted some of those misrepresentations at the fee arbitration hearing, but he still failed to document any work he had actually performed on the clients’ behalf, and was ordered to refund the entire retainer.

In the final matter, a client hired Sakas to handle the appeal of an eviction order obtained by the client’s mortgage lender. Although Sakas filed the appeal, he failed to respond to a dispositive motion and advised his client to ignore the court’s order that the client pay his mortgage payments into the court’s registry. As a result, the court granted the lender’s motion for summary judgment and issued it a writ of possession. Sakas later filed a separate complaint in an attempt to stave off the eviction, but his request for
injunctive relief was denied and his failure to respond to a motion to dismiss resulted in dismissal of the suit. When this client later requested the return of his file, Sakas failed to do so, making excuses that the special master determined not to be credible based on Sakas’s consistent failure to respond to the State Bar in the matter.

(Mike Frisch)

August 6, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Monday, August 5, 2019

Fit To Return

Reinstatement should be granted to an attorney convicted of a false statement on a loan application who consented to disbarment, as proposed by an Illinois Hearing Board

His background

After receiving his law license in 1983, Petitioner worked for Continental Bank, reviewing loan documents. He then worked for Prudential Insurance Company as associate regional counsel in the realty group, and the law firm of Albert, Bates, Whitehead and McGaugh, where his practice included handling real estate mergers and acquisitions. (Tr. 180-86, 344-38). In 1998, he became associate dean for institutional research and planning at John Marshall Law School. (Tr. 187).

At John Marshall, Petitioner was responsible for diversity and inclusion and strategic planning. He increased recruiting of diverse students and created a national diversity mock trial competition to generate interest in the law school. (Tr. 197-201). During Petitioner's time at John Marshall, enrollment of students of color increased from 15 percent to 33 percent. (Tr. 202). Petitioner also worked with students who had impairments or disabilities and created programs to provide academic support to students who needed it. (Tr. 203-208). In addition, he taught a course on real estate transactions as an adjunct faculty member. (Tr. 191, 348).

Beginning in 2005, Petitioner experienced family and financial difficulties. His sister died and his father had Alzheimer's disease. Petitioner brought his mother to live with him after his sister's death. (Tr. 248-49). Petitioner's older daughter started college in 2005 and was experiencing health issues. Petitioner and his wife consulted multiple doctors and obtained inpatient and outpatient care for her, incurring $63,000 in debt for medical expenses. (Tr. 249-50). Petitioner also incurred debt for both daughters' college tuitions. Because Petitioner's expenses were greater than his income, he fell behind in his real estate taxes in addition to accumulating a substantial amount of debt. (Tr. 251-53). Petitioner felt he was responsible for keeping his family in their home to maintain a sense of stability.

Proof on reinstatement

We find Petitioner has met his burden of establishing his rehabilitation. While Petitioner engaged in serious misconduct, we consider that his wrongful acts were part of a misguided attempt to keep his home, no matter the cost, during a difficult and stressful period of time. He cooperated with the government, acknowledged his guilt, and has not practiced law for six years. We find credible the testimony of Petitioner's witnesses that his misconduct was an aberration, and Petitioner is a person of high character who contributes significantly to his community. Based on our observations of Respondent, we find he understands the wrongfulness of his past conduct, is remorseful, and is fully rehabilitated. He has maintained his knowledge of the law by completing 36 hours of continuing legal education. We believe he will be able to return to practice without harm to the public and has much to contribute to the legal profession.

We recognize that Petitioner is still in debt, but we have confidence he will continue to meet his financial obligations and will not repeat his misconduct.

(Mike Frisch)

August 5, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, August 4, 2019

Injustice Of The Peace

The Louisiana Supreme Court disqualified a justice of the peace from exercising any judicial function.

The Advocate reported

A Baton Rouge judge on Friday denied bail for the local justice of the peace and former Baton Rouge police officer facing allegations of horrific domestic abuse that lasted more than a decade. 

Moses Evans, 55, was arrested earlier this month and accused of brutally abusing his now ex-girlfriend and her children, causing severe injuries and permanent disfigurement — until the woman ran from their shared house in July 2018. He's now being held without bond. 

Evans' arrest came after his ex-girlfriend reported to law enforcement last month that he had recently slapped and punched their two biological children during unsupervised visitation. A judge had awarded Evans joint custody of the children despite allegations having surfaced in multiple court filings several months earlier about his abusive treatment of his family members.

The mother said the number of times Evans had assaulted her throughout their relationship "is too many to count," according to court documents. She said the assaults involved him striking her with "any number of objects including rocks, flashlights, wrenches, screwdrivers, hammers, jumper cables, rakes, hoes and anything else that was within reach when he went into a rage."

She said Evans didn't let the children "go to school, socialize or nothing."

She asked the court to grant her sole custody in light of the allegations.

Evans denied the abuse, claiming his ex-girlfriend provided insufficient evidence and arguing she shouldn't be awarded sole custody, court documents show. He referred to having home-schooled the children. 

Evans was ultimately granted joint custody. He was allowed unsupervised visitation after completing anger management classes.

Now he's is being held without bond after a ruling Friday from 19th Judicial District Judge Bonnie Jackson, according to East Baton Rouge District Attorney Hillar Moore III. Jackson ruled Evans poses a potential threat to his family. 

Evans was elected justice of the peace as a Democrat in his north Baton Rouge district in 2008 and then reelected in 2014. His current term is set to expire in 2020. He retired from the Baton Rouge Police Department as a corporal in 1993.

(Mike Frisch)

August 4, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Battering Prosecutor Suspended

An order of interim suspension from the Indiana Supreme Court

...due to Respondent being found guilty of a crime punishable as a felony. The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of the following offenses under Indiana law: Criminal Confinement, a level 6 felony; Domestic Battery, a class A misdemeanor; Identity Deception, a level 6 felony; and Official Misconduct, a level 6 felony entered as a class A misdemeanor.

The Indiana Business Journal (reposting from Indiana Lawyer) reported in June 2019

Questions still linger involving the case of Johnson County Prosecutor Bradley Cooper, who pleaded guilty nearly two months ago to three felony charges and a misdemeanor domestic battery count.

The prosecutor—who admitted to wrongdoing—is still in his elected office after he allegedly battered and confined his fiancee, to the dismay of some in the county south of Indianapolis.

The case began to unfold just three minutes before midnight on March 4, when the Johnson County Sheriff’s Department responded to a call of a woman who had fled a Trafalgar home and banged on a neighbor’s door asking for help. Deputies noted the woman’s right eye was swollen and bruised, according to an incident report provided by Indiana State Police, and she was transported to a local hospital for her injuries.

The woman informed law enforcement that she had been battered and confined by Cooper, who she said also sent messages through her Facebook account without permission, pretending to be her.

But upon learning that the allegations were lodged against an elected official, the sheriff’s department requested that state police assume the investigation. Cooper ultimately pleaded guilty on April 15 to criminal confinement, identity deception and official misconduct, all as Level 6 felonies, as well as Class A misdemeanor domestic battery.

Cooper appeared before Special Judge Dan E. Marshall in Hancock Superior Court 2, with special prosecutor Doug Brown, chief deputy prosecutor of Decatur County, presenting the allegations to the court.

As part of his agreement, Cooper acknowledged that he would be removed from office as an elected official pursuant to Indiana Code 5-8-1-38(b) for pleading guilty to a felony. He received no jail time, however, and is instead set to serve 540 days of supervised probation if the judge accepts the plea agreement, which is currently under advisement, Brown said.

Switching gears

The Johnson County Republican Caucus would appoint Cooper’s replacement after he is no longer in office, said Zach Osowski, spokesperson for the Indiana Prosecuting Attorneys Council. Beth Boyce, Johnson County Republican Party chairwoman, said she would have a minimum of 10 days to submit written notice to 135 precincts after the prosecutor’s conviction.

“If nothing else changes, the vacancy would occur at that time and we would have 30 days to hold the meeting,” Boyce said of the caucus. The final decision will be ultimately made by the chairman, vice president, secretary and treasurer, Boyce said.

Neither Cooper nor his attorney, Stephen Andrew Oliver of Boren, Oliver & Coffey LLP, responded to requests for comment.

Still in office

In the interim between Cooper’s foreseeable leave of office and the caucus’ potential appointment of a successor, state law stipulates that chief deputy Joseph Villanueva would assume the prosecutor’s role.

But until the judge decides to accept or reject the plea agreement during a sentencing hearing scheduled for July 17, Cooper will remain in his elected office. As of now, he’s still the prosecutor, the Johnson County Prosecutor’s office confirmed to Indiana Lawyer.

That angers some community members, including Whiteland pastor Mark Powell, who says the situation “stinks to high heaven.” Cooper’s current presence in the prosecutor’s office is causing concern for some locals, Powell said.

“They’re frightened about it, too. This guy’s still in office and he could still prosecute somebody,” Powell said. “You have an entire community of people that just want to keep their mouths shut and their heads low.”

As a pastor, Powell expects others to have a concern for equal justice. While few people have spoken out about the case, Powell said he won’t keep silent.

“If you have the sheriff and all the judges that have recused themselves that are all Republican, and you have a criminal, currently and until July 17 at least, that is the prosecutor, who wants to say a peep about that?” he said.

Domestic violence survivor and Franklin resident Patti Doan agreed, noting that the community is afraid of the potential repercussions they could face for speaking out about Cooper’s case.

“The police can bully you in this town,” Doan said. “This county is very corrupt. It’s not a big secret.”

Doan said she thinks it’s unfair that Cooper wasn’t arrested the night of the events to which he pleaded guilty.

“It’s a slap in the face of every victim,” Doan said. “I think he should be punished more because he knew better. He was the one in judgment of all these offenders, and now he’s getting a slap on the wrist.”

“He definitely shouldn’t be in judgment of those … doing the same offenses, or even worse,” she added.

The Johnson County Prosecutor’s Office declined to say whether Cooper has continued to practice and perform the duties of his office while awaiting sentencing.

Positions of power

Kerry Hyatt Bennett, legal counsel for the Indiana Coalition Against Domestic Violence, said it seems clear that privilege played a role in how Cooper’s case was handled.

“When it comes to access to justice, there should not be special rules for special people—in any case,” Bennett said. “But in domestic violence cases, it is unconscionable when a convicted domestic abuser can continue to use what power he or she has to sidestep the transparency and accountability that the system mandates.”

Rules are in place for reason, she added. Bennett said she hopes that during Cooper’s sentencing hearing it will be clear that those rules apply to all.

Pursuant to the provisions in his plea agreement, Cooper could have all three of his Level 6 felony charges reduced to Class A misdemeanors. The Level 6 felony criminal confinement charge could be lowered under alternative misdemeanor sentencing.

Likewise, Cooper could petition to have his identity deception charge converted to a Class A misdemeanor three years after his guilty plea, or have his official misconduct charge lowered immediately upon completion of probation.

“Persons convicted of a felony are not eligible to run for state and local office,” said Dale Simmons, co-general counsel for the Indiana Election Division. “… If a felony is subsequently reduced to a misdemeanor under the criminal code, the person is still ineligible.”•

(Mike Frisch)

August 4, 2019 in Bar Discipline & Process | Permalink | Comments (0)

An Alleged Personal Interest Draws Bar Charges

I may have mentioned that the web page of the Vermont Professional Responsibility Board is at the forefront (nobody beats Ohio) of regulation transparency, with easy access to every pleading in all pending matters.

A recently-filed Petition of Misconduct alleges that the respondent attorney was retained by a couple to assist in the purchase of real property from a former client. It is further alleged that the client purchasers were unaware that respondent had handled the seller's divorce until two days before the scheduled closing.

He allegedly made disclosures to the buyers in violation of his confidentiality obligations to the seller.

Further, it is alleged that he sought payment of his former client's bill from the proceeds of the sale and filed a collection action against the seller and a writ of attachment against the property.

The matter of the fee was resolved, the attachment withdrawn and the property sold.

Answer linked here. (Mike Frisch)

August 4, 2019 in Bar Discipline & Process | Permalink | Comments (0)