Thursday, April 1, 2021
The Massachusetts Board of Bar Overseers accepted an attorney's resignation
In connection with the respondent’s representation of a plaintiff in litigation against the United States government, he signed the name of the Assistant United States Attorney to a settlement document without her knowledge or authorization. In addition, the document in question contained terms that were different than those agreed to by the government. When questioned by the federal judge about the matter, the respondent’s explanation – that the unauthorized signing was inadvertent – was intentionally false, misleading, and deceptive. Also in connection with the same litigation, the respondent intentionally inflated the litigation expenses for which he sought reimbursement out of the settlement proceeds. During the course of the investigation, the respondent made intentional misrepresentations to bar counsel about the foregoing events. The misrepresentations included the submission of falsified invoices to support his claim for expenses in the litigation. He also intentionally misrepresented material facts during an examination under oath by bar counsel, including his unauthorized signature on the settlement document.
Wednesday, March 31, 2021
The New York Commission on Judicial Conduct has admonished a judge for his Facebook posts
The Formal Written Complaint alleged that from July 21, 2020 through October 16, 2020, respondent publicly displayed on his Facebook page: (A) two photographs of himself wearing an Ontario County Sheriff’s uniform, and (B) a post with his personal comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event, which was held to show support for law enforcement. The post and photos garnered hundreds of “likes” and comments from other Facebook users. It was also alleged that respondent engaged in this conduct notwithstanding having been cautioned by the Commission in April 2019 for an inappropriate Facebook post regarding a candidate then running for a law enforcement position.
The photo was taken at his daughter's graduation from the police academy and pictured him in uniform after he had retired
By July 21, 2020, respondent’s “cover photo” had garnered approximately 277 Facebook “likes,” two “shares,” and 37 comments from other Facebook users. His public post containing the text and the second photograph...had garnered approximately 940 Facebook “likes,” 355 “shares,” and 219 comments from other Facebook users. Among the comments was one that identified him as “Judge!”
Respondent now recognizes that individuals viewing his Facebook posts, and seeing him in a law enforcement uniform, would reasonably question his ability to conduct himself in a fair and impartial manner while presiding over cases involving law enforcement.
Respondent takes full responsibility for his actions and has been cooperative and contrite with the Commission throughout its inquiry. He regrets his failure to abide by the Rules in this matter. He pledges to conduct himself in accordance with the Rules for the remainder of his tenure as a judge.
Tuesday, March 30, 2021
Csaba Sukosd explains on the Ohio Supreme Court web page
Many jobs require a background check. Investigations of prospective Ohio attorneys are based on answers they provide and information gathered by the National Board of Bar Examiners.
The group in Ohio responsible for granting clearance is the Board of Commissioners on Character and Fitness.
The 12-member board includes an attorney from each of the state’s appellate districts. It ensures applicants possess the requisite moral qualifications to practice as an attorney.
This evaluation takes place before they can prove their professional competence through the Ohio Bar Examination.
“It’s some of the most rewarding work these board members ever do. They don’t get a lot of recognition because the process is confidential,” said Gina Palmer, the Ohio Supreme Court’s director of the Office of Bar Admissions and Attorney Services.
In essence, the review process determines the requisite character, fitness, and moral qualifications of each applicant.
Crimes, including high-level felonies, do not automatically disqualify a person’s pursuit of becoming a lawyer. The board’s emphasis on character and fitness stresses an individual’s current standing.
However, serious offenses require more investigation and scrutiny to determine whether an aspiring lawyer has been rehabilitated.
A common concern is how a person behaves during the probe, which lasts an average of four to eight months and can be extended to two years if there are multiple investigations and appeals.
“It’s not always the deed itself that gets you pulled,” Palmer said. Instead, she said, it’s the failure to disclose information or “lying, or mischaracterizing.”
The application process starts by registering in the second year of law school with the Office of Bar Admissions. That material is forwarded to the National Conference of Bar Examiners, which compiles a thorough report verifying background information, contacting references and conducting police checks.
Once complete, those details are sent to the admissions committee of a local bar association, where at least two committee members interview the applicant. After the interview, and possibly further investigation, the committee offers its recommendation to the character and fitness board.
If an aspirant is not granted unconditional approval by the local bar, the person can appeal to the board.
If an applicant receives local bar approval but the board is not satisfied that they have shown the proper character and fitness — or if the board wants information — the board will further examine the applicant’s qualifications.
Like the Board of Professional Conduct, three members of the character and fitness board will hear testimony and arguments presented by the applicant and the local bar association’s committee. A report of the hearing — and any additional investigation — is presented at a meeting and voted on by the full board.
“For attorneys, who are used to advocating, that’s a pretty cool thing to sit on the bench and hear cases,” said Palmer. “It’s an important thing. It keeps the integrity of the entire profession.”
If denied final approval by the board, the applicant is entitled to an oral argument before the Supreme Court. The justices then make the final decision on whether the prospect is deemed fit.
Red flags beyond criminal offenses could also include untreated substance use disorders, academic misconduct or neglecting to pay debts.
“If you can’t manage your own finances, how can you be trusted to manage others?” Palmer asked.
Along with approving first-time lawyers, the board also handles applications from out-of-state attorneys seeking an Ohio license.
As part of the process to ensure good standing, the board will examine whether there have been complaints of misconduct, malpractice, issues with fulfilling continuing legal education requirements, multiple firings, and even scrutinize excessive traffic tickets that can question “an applicant’s respect for the law.”
Board members are appointed by the Supreme Court for three-year terms, which they can retain for three cycles.
The Maryland Court of Appeals has explained its reasoning for a disbarment order
This attorney disciplinary matter concerns Respondent Angel Arturo Viladegut, a Maryland attorney who committed various violations of the rules of professional conduct while providing immigration-related legal services in Maryland. Four immigration clients complained, over a relatively short period of time, to Bar Counsel. Those complaints, as documented by Bar Counsel, demonstrated a disturbing pattern of conduct in which Mr. Viladegut charged a fee to represent a recent immigrant at risk of removal from the United States, then did little or no work, and misrepresented the status of matters to the client and immigration court with adverse consequences to the client.
Mr. Viladegut was no more diligent in responding to the inquiries of Bar Counsel. He did not cooperate with Bar Counsel’s investigation into his activities in Maryland, failed to respond to discovery requests in this proceeding, did not appear at the evidentiary hearing before the hearing judge, and did not respond to a show cause order as to whether he wished to participate in oral argument in this matter before this Court.
On March 1, 2021, after considering the matter on the papers submitted, we disbarred Mr. Viladegut and assessed the costs of this proceeding against him. We now explain the reasons why we took that action.
Ohio Disciplinary Counsel has filed a complaint against a Probate Court judge who was in practice with his daughter when he ascended to the bench.
According to the complaint, she is presently the managing shareholder of his former firm with an active probate practice.
In 2017 - 2018, respondent engaged in an unsuccessful year-long effort to convince the Greene County Board of Commissioners and the Greene County Common Pleas Court General Division that the probate court needed a full-sized courtroom. During the contentious dispute, respondent issued an order that attempted to take control of a courtroom that the general division was utilizing.
In a probate matter
On January 1, 2018, Carolee Buccalo died. Carolee had named her granddaughter, Yvonne Martin (“Martin”), as executrix, and Martin retained [the judge's daughter] Brittany to represent her in administering the estate.
Carolee's son Grant signed three waivers of disqualification.
In May 2019, the Ohio Supreme Court ruled against Respondent in the courtroom dispute.
On May 23, 2019, [Grant] Buccalo attended a public meeting of the Greene County Board of Commissioners and expressed his belief that respondent should recuse himself from cases in which “family members” represent parties. He stated that “justice depends on the appearance as well as the reality of fairness in all things. Otherwise, it erodes public confidence in the legal system.” Buccalo further stated that people need to feel that they “got a fair shake” when they leave the courtroom, and that it “wasn’t rigged.”
At the meeting, Buccalo spoke before the commissioners regarding his concerns about respondent for approximately 2.5 minutes. He stated that he wanted to ensure that the commissioners were aware of this practice. Buccalo did not specifically mention his mother’s estate case or express concern about his own involvement with respondent, other than to say that he had never met respondent and wouldn’t recognize him. Buccalo concluded by stating that he planned to file a grievance with relator, and then moved on to speak about a second unrelated concern. The commissioners did not respond to Buccalo’s concerns.
Respondent then set a status hearing in the Buccalo matter after reviewing an audiotape of the remarks
On June 6, 2019, respondent presided over the status conference. Brittany, Martin, and Buccalo appeared in person. All parties were present in-person or by telephone. Buccalo was unrepresented and did not know the purpose of the status conference before attending.
Respondent thanked them “for showing up on such short notice” and explained that there was a “very disturbing incident that has taken place with the estate, and I need to get it today.
After playing the tape in open court
...respondent called Buccalo to the stand, placed him under oath, and informed him that any false statement constituted perjury, a criminal offense.
Respondent then cross-examined Buccalo for almost an hour on issues relating to the Waiver of Disqualification and Buccalo’s comments to the commissioners.
The examination allegedly brought Buccalo to tears.
After questioning Buccalo for almost an hour, respondent turned the questioning over to Brittany.
Brittany asked, “Do you expect that I should have known that you had an issue even though I received a signed waiver from you?” Buccalo attempted to explain his concerns and eventually responded by stating, “I’m not trying to argue with you.” And Brittany replied, “I am.” Respondent still permitted Brittany to proceed with her questioning of Buccalo.
Brittany cross-examined Buccalo relating to conversations and information of which he had no knowledge. She marked her personal notes of a phone conversation with Buccalo’s attorney as an exhibit and questioned Buccalo regarding the conversation and her notes, despite Buccalo not being a party to the conversation. Respondent did not curtail Brittany’s questioning in any way.
After being on the stand for over an hour, Buccalo asked for a glass of water. Respondent replied, “I don’t have any water.” He did not offer Buccalo a break or make any attempt to obtain water for him.
Respondent recused himself and allegedly made several statements
Respondent stated that Buccalo chose to be:
[U]ntruthful to you and the public, to unjustly smear myself and my daughter. That is simply despicable. We do not have a problem in probate court, what we have is a problem with people improperly using this board as a public forum to lodge unfounded and false accusations. I’m disappointed the board even permitted him to proceed in light of the fact * * * that [he was] cautioned * to limit his comments to items that are or have been on the board’s agenda at a regular meeting * * * This is not the proper forum to wage personal vendettas against any public official.
Respondent’s conduct, as alleged above, violated Jud.Cond.R. 2.8(B) [A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control].
The complaint is linked here. (Mike Frisch)
Monday, March 29, 2021
The New York Commission on Judicial Conduct has accepted the resignation of a non-attorney judge who faced an investigation into two allegations
Judge DiVietro was apprised by the Commission in July 2020 that it was investigating allegations that, inter alia, in the fall of 2018, he repeatedly sent text messages to his then-girlfriend that contained threats about a former girlfriend. Many of the text messages were allegedly vulgar, crude, demeaning and/or featured extreme gender-based slurs and profanity.
Judge DiVietro was also apprised by the Commission in July 2020 that it was investigating allegations that, after arraigning the defendant in People v Robert L. Brown on two felony charges and one misdemeanor charge in April 2019, he repeatedly engaged in unauthorized ex parte communications about the case with the defendant and multiple other individuals and, during one of the defendant's appearances in court, allegedly gave the defendant personal advice about how to avoid having his firearms confiscated by law enforcement.
The stipulation is linked here. (Mike Frisch)
Saturday, March 27, 2021
The Maine Grievance Commission has ordered a public reprimand for an attorney's adverse action toward a former client
By way of background, Ms. Mee was a romantic partner to MM from approximately 2013 through October 2017. At some point, MM's parents died and he inherited personal property and money. Some or all of that money was deposited to an account jointly owned by Ms. Mee and MM. In October 2017, MM was incarcerated.
At various times, Attorney Ferris represented Ms. Mee. One of those instances was relevant to this matter. In January 2017, Attorney Ferris was retained by Ms. Mee, MM, and a third person named KK for representation in a civil matter in Somerset County. In August 2018, after MM was incarcerated Ms. Mee and MM were dismissed from the civil action. Attorney Ferris continued to represent KK in that matter.
In that matter, Attorney Ferris represented the defendants. The matter related to a tenancy relationship the three defendants held with the plaintiff in that action, and the documentation of proper payment of certain funds to prove ownership of certain equipment
...In other words, Ferris proved that equipment in KK's possession rightfully belonged to Mee and MM because that equipment had been properly purchased by Mee and MM with funds from the jointly held account.
In January of 2020, Attorney Ferris filed a new civil action against Emily Mee on behalf of MM. In that new action, Attorney Ferris alleged that Emily Mee had improperly converted money belonging to MM from the same account he had characterized as joint in the prior action. Without delving into the questionable validity of a claim for conversion of joint property, Attorney Ferris's conduct violated Rule 1.9.
Here, the matters are substantially related because they involve the same set of transactions from the same account. They also involve the same people associated with that account.
Attorney Ferris does not dispute that the two actions involve the same account. In his final letter responsive to the grievance complaint, he wrote, "...I did not believe at the time that there was a conflict in representing MM in an action involving MM v. Mee. Respondent did not learn that the money at issue was actually deposited in the same account referenced in the KK exhibit until after the onset of this Bar Complaint."
Attorney Ferris now agrees that he should not have undertaken representation of MM against Ms. Mee under those circumstances.
To my knowledge, two jurisdictions - Colorado and Arizona - use a Presiding Disciplinary Judge system that grants significant authority in the disciplinary process to a single person.
Arizona has just announced that a new PDJ has been named.
AZ Central reports on the appointment
A former Maricopa County Superior Court and appeals court judge will preside over attorney discipline, reinstatement and disability cases in Arizona.
Margaret Downie was named Thursday by the Arizona Supreme Court as the new presiding disciplinary judge.
Downie is the second person and first woman to hold the position after it was created in 2010. William J. O'Neil, the first, is set to retire later this year.
She will begin May 17.
"I have been involved in the fields of legal and judicial ethics for more than 35 years and am honored that the Supreme Court has chosen me to serve as Arizona’s next Presiding Disciplinary Judge," Downie said in a statement.
Downie is now executive director of the the Arizona Commission on Judicial Conduct, which investigates complaints against justices, judges and justices of the peace. She has served in the role since 2017.
She served in Maricopa County Superior Court for 11 years, including a stint as the civil presiding judge. She was a judge for the Court of Appeals, Division One for nine years.
Robert Brutinel, chief justice for the Arizona Supreme Court, said Downie's experience as a judge and with the Commission on Judicial Conduct makes her "an ideal choice."
"As does her reputation for integrity and her prior work handling bar discipline cases," he said in a statement. "The judicial branch, the public and the bar will be well served by the new Presiding Disciplinary Judge.”
How attorney discipline works
Downie has served as the chief Bar counsel for the State Bar of Arizona. The State Bar is a nonprofit organization operating under the Arizona Supreme Court. It investigates allegations of misconduct among the more than 18,000 active attorneys in the state and provides legal training.
The Bar reviews allegations to determine if there is enough information to dismiss a case or proceed with a recommendation of discipline. The committee can take any number of actions, including dismissing a case, ordering the Bar to investigate further, or imposing a range of discipline.
An attorney can appeal the committee’s decision to the presiding disciplinary judge. The judge heads a three-member panel that adjudicates discipline. The State Bar or the attorney facing discipline can appeal to the Arizona Supreme Court.
Downie formerly worked at the Jennings, Strouss and Salmon law firm. She graduated from the University of Arkansas and earned her law degree from Georgetown University.
Friday, March 26, 2021
The Star Gazette reported on a recent Pennsylvania interim suspension.
A Pennsylvania disciplinary board has temporarily suspended the law license of Bradford County District Attorney Chad Salsman, who faces multiple accusations of sexual assault and other crimes.
The Disciplinary Board of the Supreme Court of Pennsylvania issued the decision Thursday, effective April 24.
The order does not remove Salsman from elected office, but is limited to the temporary suspension of his license to practice law, the board stated.
Salsman, 44, faces multiple counts of sexual assault, indecent assault, intimidation of a witness or victim, obstruction of justice and prostitution.
The allegations were announced in early February by Pennsylvania Attorney General Josh Shapiro during a news conference at the Bradford County Courthouse in Towanda.
The charges stem from accusations by multiple women who were clients of Salsman during his time in private legal practice. He was elected district attorney in 2019.
At least five women, who did not know one another, came forward and told of how they experienced the same pattern of advances, coercion, and assault at the hands of Salsman when he was a defense attorney, Shapiro said.
Salsman targeted clients who were vulnerable, lacking financial resources and facing difficult charges, the Attorney General added.
In one case, Salsman assaulted a woman whom he knew had been the victim of a prior violent rape, according to the criminal complaint.
In another instance, Salsman assaulted a female client who faced incarceration if he did not help her, the complaint alleges.
The accusations were investigated by Pennsylvania State Police at Towanda and turned over to then-District Attorney Daniel Barrett, who referred it to the Attorney General's Office to avoid a possible conflict of interest.
Barrett retired at the end of 2019 and Salsman succeeded him after defeating former Assistant District Attorney Albert Ondrey in both a Republican primary and the general election.
Salsman, who is represented by Philadelphia-area attorney Samuel Stretton, pleaded not guilty to the charges at his arraignment and was released on bail.
After the charges were announced, Salsman stated he would remain in office as district attorney, but would only handle administrative duties, and would turn all criminal prosecutions over to his assistants.
If Salsman is ultimately found not guilty, he can petition the disciplinary board for a dissolution of his temporary suspension order, but if he's convicted, the Office of Disciplinary Counsel may institute additional disciplinary proceedings.
Salsman will be tried in front of a Bradford County Court jury, but Lycoming County Judge Marc F. Lovecchio will hear the case.
Salsman is due back in court at 10 a.m. April 16 for motions.
The New Hampshire Supreme Court Professional Conduct Committee imposed a public censure with conditions for an attorney's statements in admission applications to the state and federal bars
In 2015, Attorney Forghany was subject to disciplinary proceedings in Connecticut and Massachusetts. Attorney Forghany disclosed the existence of those proceedings in the N.H. Petition. The OBA subsequently requested information regarding the outcome of those proceedings. Although neither the Connecticut State Grievance Board nor the Massachusetts Board of Bar Overseers pursued disciplinary action against Ms. Forghany, she failed to provide information specifically responsive to the OBA's request. Ms. Forghany instead mistakenly provided a "letter of good standing with disciplinary history" from the Connecticut State Grievance Board. Ms. Forghany also failed to disclose on the N.H. Petition that she had previously asserted a medical condition in mitigation in a disciplinary matter.
The Federal Petition seeks broader categories of information than the N.H. Petition. In her Federal Petition, Ms. Forghany disclosed the most significant finding but omitted less significant findings that formed the basis of the Connecticut and Massachusetts disciplinary proceedings. In addition, she failed to disclose she had been a plaintiff in three small claims lawsuits, each of which was resolved in her favor, although she had disclosed these lawsuits in the N.H. Petition.
The issue arose when the federal court sought additional information. At that juncture, the attorney sought to supplement her state application.
Her practice involves a high-volume consumer bankruptcy and foreclosure relief matters.
On the merits of the dismissed bar complaints
she actively manages her stress levels and instituted management practices to ensure she serves her clients effectively. She altered her firm's procedures to ensure no repetition of the circumstances that led to the underlying matter. Finally, Ms. Forghany has never been sued for malpractice and has had no such claims filed against her.
To date, Judge McCafferty has taken no further action with respect to Ms. Forghany's application.
there is no clear and convincing evidence that Ms. Forghany violated Rule 8.1(b), because Ms. Forghany began the process of correcting and supplementing her N.H. Petition in a reasonably timely way following the airing of issues with Judge McCafferty on July 23, 2019.
Mr. Forghany admits that she violated Rule 8.1(a), and that her state of mind was both negligent and knowing. Additional details regarding her state of mind are set forth further herein.
The order sets forth the conditions imposed.
If a Hearing Panel determines that a condition has been violated, the Panel shall impose a one-year suspension. If the Hearing Panel determines that no condition of the Stipulation has been violated, the Stipulation shall continue in force and effect pursuant to its terms. The PCC shall review the decision of the Hearing Panel.
A law firm's claim for quantum meruit recovery against a contingency fee client who had terminated representation depends on whether the discharge was or was not "for cause," according to a decision of the New York Appellate Division for the First Judicial Department
Defendant made a prima facie showing that she discharged plaintiff for cause after plaintiff settled her claim, allegedly without her authorization. Plaintiff merely raises an issue of fact as to defendant's credibility and motive. The fact that defendant's implied legal malpractice claim failed on causation or damages did not dispose of the issue of whether plaintiff was discharged for cause (e.g. Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 12-13 [1st Dept 2008]). The issue of whether plaintiff was discharged for cause prior to the completion of legal services cannot be determined on this record and a hearing is required (id. at 13; see Hee Jun Cheon Lee v Garcia, 80 AD3d 541, 541 [1st Dept 2011]). Should it be determined that defendant discharged plaintiff without cause, then plaintiff's remedy would be the fair and reasonable value of its services as computed on a quantum meruit basis (see Nabi v Sells, 70 AD3d 252, 253-254 [1st Dept 2009])
An attorney whose lax supervision of a non-lawyer employee facilitated a $2.7 million misappropriation has been reprimanded by the New Jersey Supreme Court as reciprocal discipline for a six-month New York suspension.
As explained by the Disciplinary Review Board
When respondent initially trained Teitelbaum, he properly supervised Teitelbaum’s work. Thereafter, respondent failed to regularly review, audit, and reconcile the firm’s attorney trust accounts, or to supervise Teitelbaum. Indeed, as time progressed, respondent delegated more responsibility to Teitelbaum, allowed him to make online bank account transfers, and authorized him to be a signatory on the firm’s attorney trust account. Between 2009 and 2013, as a result of respondent’s utter abdication of his recordkeeping duties, Teitelbaum misappropriated more than $2.7 million from the firm’s accounts, including the attorney trust account, comprising more than $2.1 million in client funds, in more than 200 client matters, and more than $573,000 in law firm funds. Additionally, between 2005 and 2009, respondent improperly deposited more than $15,000 in personal funds in his firm’s attorney trust account, out of ignorance of the Rules of Professional Conduct, rather than for an improper purpose.
Teitelbaum’s scheme came to light when, in June 2013, TD Bank notified the OAE of a $274.47 overdraft of respondent’s New York attorney trust account. Teitelbaum intercepted a letter that the OAE had sent to respondent in connection with the overdraft and replied to it, without respondent’s knowledge. On June 27, 2013, because the TD Bank account was a New York account, the OAE forwarded the notice of overdraft to the Lawyers’ Fund for Client Protection of the State of New York.
The attorney had consented to the New York sanction and made full restitution.
Although respondent consented to a six-month suspension from practicing law in New York, the OAE recommended a reprimand for his violations of the New Jersey Rules of Professional Conduct. New Jersey disciplinary precedent supports that position.
The core of respondent’s misconduct is his failure to supervise his nonlawyer bookkeeper. Attorneys who fail to supervise their nonlawyer staff typically receive discipline ranging from an admonition to a reprimand, depending on the presence of other ethics infractions, prior discipline, or aggravating and mitigating factors.
Thursday, March 25, 2021
The full Massachusetts Supreme Judicial Court increased a single justice's six-month suspension and imposed a two-year suspension as proposed by the Board of Bar Overseers.
In a disciplinary case involving intentional overbilling of multiple clients, bar counsel appeals from the order of a single justice of this court suspending the respondent attorney, Doreen M. Zankowski, from the practice of law for six months. The single justice acknowledged the respondent's "admittedly cavalier attitude toward client billing," but concluded that "the large number of hours she reported in 2015 is not substantial evidence that all or even most of the 450 hours at issue in this case were fraudulently billed." Our focus, however, is not on the quantum of excessive fees that were billed, but on the fundamental dishonesty inherent in the respondent's client billings themselves. It is not the sheer number of unworked hours that establishes the misconduct but, rather, the dishonesty manifested by billing for them at all.
The evidence establishes unequivocally that the respondent intentionally billed for services that were not rendered. It supports the hearing committee's conclusion, adopted by the Board of Bar Overseers (board), that the respondent's conduct involves "dishonesty, fraud, deceit or misrepresentation," in violation of Mass. R. Prof. C. 8.4 (c), as appearing in 471 Mass. 1483 (2015), and adversely reflects on her fitness to practice law, in violation of Mass. R. Prof. C. 8.4 (h). The evidence also establishes violation of Mass. R. Prof. C. 1.5 (a), as appearing in 463 Mass. 1320 (2012). In the circumstances, we accept the board's recommendation that a two-year term suspension is both appropriate and consistent with sanctions imposed in comparable cases.
The attorney was admitted in 1991 and joined a firm in 2011
Before her January 1, 2015, transition to equity partner, the respondent earned approximately $700,000 as an income or partner, exclusive of merit bonuses. As an equity partner, however, she was placed in a lower base salary tier of $575,000. Although she was eligible for a share of the firm's profits and a bonus, and had the potential to earn more than she had as an income or salaried partner, her salary tier as an equity partner was $125,000 less than she had been receiving as an income or salaried partner.
Between March 2015 and November 2015, the respondent added more than 450 hours of time to the hours reflected on her clients' draft bills, primarily with respect to two complex litigation matters, amounting to approximately eight to ten hours per week added to time previously entered. She added approximately one hundred hours to her own time, 110 hours to one senior associate attorney's time, and 240 hours to the entries of five other associate attorneys. Although the testified that the additional hours reflected her own time spent working on those matters, the hearing committee declined to credit the testimony, finding instead that the clients were intentionally, dishonestly, and excessively billed for the time.
..In short, the substantial evidence supports the hearing committee's findings, adopted by the board, that the respondent intentionally billed her clients for legal services that were not rendered by adding hundreds of hours to the bills. To establish the misconduct, bar counsel was not required to prove that each of the 450 hours intentionally adde to the draft bills was fraudulent. It suffices to say that fraudulent billing was established and supported by the substantial evidence.
...we have considered the facts asserted by the respondent in mitigation and agree that mitigation of sanction is not warranted. That said, we recognize that -- by all accounts -- the respondent performed an extraordinary volume of work in 2015. She testified that, to carry that workload, "[s]he neglected her physical health and was often sleep-deprived" due to "routinely work[ing] over 12 hours a day, and regularly . . . on holidays, weekends and even when nominally on vacation." By all accounts, her legal work was of high quality. Her clients, who were in constant contact with her and aware of the work she was doing for them, did not complain about the amount of time she billed to their matters. In addition, the respondent's sister was diagnosed with a serious illness.
The court underscored the importance of lawyer wellness.
the evidence offered in mitigation in this case does not demonstrate a causal connection between the respondent's workload and familial pressures, and her misconduct. Although the evidence is dispositive here, we take the opportunity to acknowledge the role that lawyer well-being plays in the context of both fitness to practice and administration of justice
An unusual decision of the District of Columbia Court of Appeals accepted an attorney's consent to disbarment despite the undeniable fact that he had not formally consented to disbarment.
Rather, he had emailed the following to Disciplinary Counsel in April 2017 after charges were filed.
Please don’t kill trees, waste taxpayer resources and ODC personnel on me. ODC has no credibility or legitimacy to me. Or the drivel you generate. You are simply dishonest lawyers who do nothing to regulate dishonest lawyers. And racists to boot. Rather than wasting time, money, and paper on your sophistries, please disbar me. Disbarment by ODC would be an honor. To date, aside from competing in the triathlon world championships, my greatest honors are my PhD from UCLA and my law degree from Boalt. But a disbarment letter from ODC will be framed and go up right alongside those diplomas. Please do me the honor of disbarring me. I will be so very very proud. Glenn
A hearing was held and misconduct was found; Disciplinary Counsel advised the Board on Professional Responsibility of the email.
The board then issued an order directing the attorney to show cause why consent disbarment should not be imposed
Respondent did not respond to the order to show cause.
Instead, he sent a mailing to the Office of Disciplinary Counsel, in which he enclosed pictures of Flavor Flav (from the hip-hop group Public Enemy) with the words “ODC IS A JOKE” written at the top, and reasserted that ODC attorneys were unethical and racist.
Respondent participated no further after the Board proposed disbarment by consent
Respondent has not objected to that disposition of his case. Disciplinary Counsel also takes no exception to it and “agrees with the Board that the disciplinary system should not have to expend substantial resources where, as here, the respondent-lawyer has thumbed his nose at the system” and has not denied the misconduct found by the Hearing Committee or objected to the proposed sanction.
Our coverage of the board report is linked here.
This is an atypical case. In the usual case of disbarment by consent, the attorney’s affidavit is required because it serves two purposes: (1) it provides assurance that the attorney’s consent is knowing and voluntary, and (2) the admissions required in the affidavit are a substitute for a full-blown adjudication and relieve Disciplinary Counsel of the burden of proving the attorney’s disciplinary violations on a full evidentiary record. Neither of those reasons is important in the unusual circumstances of this case. Respondent’s words and actions dispel any concern that his request to be disbarred and failure to file exceptions were unknowing, improvident, or coerced. Among other things, respondent had the specification of charges and Disciplinary Counsel’s hearing exhibits, and the show cause order provided him the opportunity to reconsider his request. And since a full evidentiary hearing was held, at which Disciplinary Counsel presented its evidence, and the Hearing Committee issued a lengthy and comprehensive decision with findings by clear and convincing evidence, respondent’s admissions in an affidavit were unnecessary.
Associate Judge Deahl concurred
It is never contrary to the Bar Rules for us to impose a recommended sanction that is unobjected to because § 9(h)(2) directs us to do just that, without exception. It is effectively an override switch so that even if the Board runs roughshod over the Bar Rules in reaching its recommendation, the onus is on the respondent to object to that; when he fails to do so, we comply with the Bar Rules by imposing the recommended sanction.
...Perhaps the Bar Rules entitled him to an even greater excess of process, but if so then we can afford him relief only if he asks for it. He did the opposite here, when more than three years ago he insisted that we not “kill trees” or “waste taxpayer resources” on him. We should have been quicker to abide.
Judge Deahl's point is well taken.
It should not take four years to sanction an attorney who refuses to participate in disciplinary proceedings.
In New York, an attorney who ignores a bar complaint is immediately suspended and disbarred after six months.
In many if not most jurisdictions, there are effective default procedures that speed up the process for non-cooperating respondents.
Senior Judge Ruiz dissented and would remand
Because it is clear that the requirements for a disbarment by consent have not been met, D.C. Bar R. XI, § 12, and the court does not have a report and recommendation from the Board on Professional Responsibility based on a substantive review of the evidentiary record and findings of the Hearing Committee concluding that respondent committed the charged Court of the Rules of Professional Responsibility, D.C. Bar R. XI, §§ 9(b), (d), (h)(1), I dissent from the order of disbarment. Instead, I would suspend respondent and remand the case to the Board to conduct the usual substantive review of the Hearing Committee record and make a recommendation to the court on the substantive charges and evidence presented by Disciplinary Counsel.
The dissent notes that this is not a consent to disbarment situation, which is governed by a court rule that requires an affidavit acknowledging disbarment-worthy misconduct
In this case, the Office of Disciplinary Counsel presented its case to the Hearing Committee which in turn considered the evidence and wrote an extensive 252 page report. The Board cannot bypass what the Rules require by devising, after the fact, a non-compliant consent disbarment that was never presented to or by Disciplinary Counsel...
I share the Board’s and my colleagues’ evident frustration with a respondent who has thumbed his nose at the disciplinary system. But the proper response is not to let pique lead to abandoning well-established norms but rather to follow those norms in the usual course. It is the reasoned, sober answer to an accusation that the system is unfair and biased. Moreover, there is no imperative to abandon such norms as the disciplinary system is not without a means to defend itself and the public from respondent’s nonparticipation.
Associate Judge Glickman authored the majority opinion. (Mike Frisch)
An extension of the period of disbarment has been imposed by the Louisiana Supreme Court on an already-disbarred attorney based on findings of unauthorized practice
The ODC proved by clear and convincing evidence that respondent engaged in the unauthorized practice of law after his 2014 disbarment. The testimony provided by Lori Martin indicated that respondent continued to maintain an active extension on his law firm’s telephone system after he was disbarred. Moreover, Ms. Martin’s testimony established that respondent’s personal cell phone number was provided as an alternate number for the law firm as late as 2015. Respondent also continued to maintain an office in the suite that houses the law practice he operated with his son.
The committee was concerned by respondent’s contention at the hearing that he was under no obligation to specifically convey to his clients that he is disbarred. Respondent believed it was not his obligation to inform prospective clients of his disability, in essence placing a sort of caveat emptor standard on members of the public. Moreover, respondent indicated that although he will not “broadcast” the fact of his disbarment, if someone asks him directly if he is “ineligible” to practice law he will respond affirmatively but add that he is not guilty of the misconduct of which he was found guilty.
Respondent held himself out to be a lawyer after his disbarment and engaged in the unauthorized practice of law. This conduct, combined with that involved in his prior disciplinary matters, indicates that respondent lacks the moral fitness to practice law and is a threat to his clients, the legal profession, and the public. Recognizing that respondent is already disbarred, we will extend the minimum period for readmission pursuant to Supreme Court Rule XIX, § 24(A) for an additional five years from the finality of the instant judgment.
Wednesday, March 24, 2021
A former judge has consented to disbarment by the Michigan Attorney Discipline Board
Respondent and the Grievance Administrator filed a Stipulation for Consent Order of Discipline, which was approved by the Attorney Grievance Commission and accepted by the hearing panel. The stipulation contained respondent’s acknowledgment that she was convicted of perjury, a felony, in violation of MCL 750.423, in People of the State of Michigan v Theresa Marie Brennan, Livingston County Circuit Court Case No. 19-025735-FH. In accordance with MCR 9.120(B)(1), respondent's license to practice law in Michigan was automatically suspended, effective December 3, 2019, the date of her felony conviction. In addition, the stipulation contained respondent’s acknowledgment that she was removed from judicial office on June 28, 2019, in a matter titled In The Matter of Theresa M. Brennan, Judge, 53rd District Court, Supreme Court Case No. 157930.
Michigan Lawyers Weekly reported on the high-profile matter
A judicial watchdog agency has recommended the Michigan Supreme Court remove a Livingston County judge for misconduct.
The Judicial Tenure Commission on April 11 also asked the high court to order District Court Judge Theresa Brennan to pay costs, fees and expenses of more than $35,000 because of “her intentional representations and misleading statements” to the commission.
The agency found Brennan tampered with evidence in her own divorce case, lied under oath and failed to disclose her relationship with a Michigan State Police detective who was a witness during a murder trial before her.
Brennan was barred from hearing cases last June after the commission filed its formal complaint. She has continued to receive pay and benefits.
A message seeking comment was left for her attorney.
Our prior coverage is linked here. (Mike Frisch)
Ohio Disciplinary Counsel has filed a complaint alleging misconduct by a Hamilton County Municipal Judge.
The complaint alleges that the judge sent a Facebook friend request to a court reporter (not in his court) which she ("Jane Doe") accepted.
He posted photos of a court celebration, some of which she "liked."
He learned she was a court reporter and invited her to his chambers; after a lengthy Facebook conversation, she allegedly felt she had to give him her telephone number.
He texted and called her.
In one Saturday evening conversation he allegedly "sounded intoxicated, used profanity and talked about his divorce. He also asked Jane Doe to lunch, but she declined his invitation."
After he had asked her out, the conversations became "increasingly one-sided."
He sent her political messages (decidedly anti-Trump) and "messages linked to videos containing offensive and sexually-explicit content..."
She did not respond but advised her boss and a co-worker. The matter was then referred to Disciplinary Counsel by the court administration.
In his answer, the judge admits most but denies some of the allegations and admits that his conduct violated Rule 1.2 of the Code of Judicial Conduct
Respondent admits that on November 12, 2019, he sent a link to an edited version of a prayer session with President Donald Trump, wherein Trump begins to smoke and then catch on fire during the prayer.
The pleadings are linked here. (Mike Frisch)
An opinion of the Massachusetts Supreme Judicial Court
In this case we address the applicability of the attorney-client privilege and the work product doctrine to an internal investigation conducted by the respondent, Facebook, Inc. (Facebook). After public reporting revealed potential widespread misuse of Facebook user data by third-party applications (apps), Facebook hired a law firm, Gibson, Dunn & Crutcher LLP (Gibson Dunn), to conduct a far-reaching investigation to identify the extent to which apps had misused user data and advise Facebook on potential resulting legal liabilities. This investigation is known as the app developer investigation (ADI). Around the same time, the Attorney General opened an investigation into Facebook under G. L. c. 93A, focusing on whether Facebook misrepresented the extent to which it protected or misused user data.
As part of that investigation, the Attorney General served Facebook with several civil investigative demands (demands). At issue are six requests contained within these demands that sought the identities of the apps and developers that Facebook reviewed at various stages of the ADI, other information associated with the review of the identified apps, and internal communications about those apps. Facebook asserted that both the attorney-client privilege and the work product doctrine protected this information. The Attorney General filed a petition in the Superior Court seeking an order compelling Facebook to comply with the disputed requests. A judge concluded that most of the information is neither privileged nor work product, as it was not prepared in anticipation of litigation, and that even if it was prepared in anticipation of litigation, it is all factual information.
We conclude that the Attorney General's targeted requests allow Facebook to tailor its responses to the first five of the six requests to avoid disclosure of communications protected by the attorney-client privilege. We also conclude, however, that the documents sought by the first five requests were prepared in anticipation of litigation and therefore are covered by the work product doctrine. We further conclude that a remand is required to separate "opinion" work product from "fact" work product for at least some of these documents. To the extent the work product is fact work product, we conclude that the Attorney General has satisfied the heavy burden of demonstrating a substantial need for the information. Finally, as for the sixth request, seeking internal communications about the apps, we have determined that this request encompasses both privileged and nonprivileged communications, and therefore requires preparation of a privilege log and further review as determined by the judge.
The investigation arose from the Cambridge Analytica reportage
The 2018 reporting of this incident sparked a wave of litigation against and investigations into Facebook. By the end of 2018, Facebook faced at least five securities class actions, eight derivative actions, three books and records actions, and thirty-nine consumer-based suits, most of which also were class actions. This number swelled to at least sixty-five litigations before the end of 2019. Facebook is also being investigated by a number of State, Federal, and foreign regulators.
Gibson Dunn led an app developer investigation ("ADI") team
Shortly after the media coverage of the Cambridge Analytica incident in March 2018, the Attorney General began investigating Facebook under G. L. c. 93A, § 6. The purpose of the investigation is to identify any other apps that misused user data and assess whether Facebook followed its policies and commitments to its users regarding user data. Over the course of the investigation, the Attorney General has issued three demands.
The first demand was issued in April 2018. The second demand, issued in June 2018, sought information on the apps that Facebook had suspended and information on Facebook's internal policies and procedures surrounding apps. As part of its response, Facebook provided the Attorney General with detailed information on how it has conducted the ADI.
The third demand, issued on November 5, 2018, is the subject of this dispute. In this demand, the Attorney General sought the identities of and information regarding the apps and developers that Facebook identified and reviewed as part of the ADI. Specifically, the Attorney General took the detailed descriptions of the ADI that Facebook provided and used that language in her requests. In response, Facebook provided updated information on suspended apps but refused to comply with several of the requests.
The court noted Facebook's extensive voluntary production and public statements concerning the ADI.
The first five requests do not require the production of any communications between Facebook and counsel during the ADI process.13 Rather, these requests only seek documents "sufficient to identify" the apps that fall within the five categories of requested documents identified supra or lists of the apps themselves, and other information associated with those apps. While this certainly requires the production of factual information relevant to the Attorney General's investigation, and such factual information has almost certainly been contained in attorney-client communications, it does not require the production of the attorney-client communications themselves. This is a crucial distinction...
The sixth request broadly seeks "[a]ll of Facebook's internal communications and internal correspondence concerning" several categories of apps sought in the other requests. Facebook refused to comply with this request and asserted that it called for the production of privileged communications. The judge below ordered Facebook to produce a detailed privilege log identifying any documents it was withholding on the basis of the privilege. While this case proceeded on appeal, Facebook provided the Attorney General with at least two privilege logs responsive to this request.
...We...agree with the judge below that the appropriate course of action is for Facebook to prepare a detailed privilege log so that the Attorney General can challenge any assertions of privilege.
we conclude that the app information required to be produced is clearly covered by the work product doctrine. We also conclude that if this app information is not opinion work product, Facebook must disclose that information, because the Attorney General has demonstrated a substantial need for the information and could not obtain it without undue hardship. The difficult issue is separating fact from opinion work product in the first five requests. We set out the mode of analysis here but remand to the judge its application to the specific requests.
....In sum, we conclude the Attorney General has demonstrated both substantial need and undue hardship for the fact work product about the apps.
Respondent’s most serious misconduct is his knowing misappropriation of client settlement funds. After stealing from his client, who had suffered a brain injury, respondent brazenly prolonged, for years, the discovery of his theft by making representations that he was working with an insurance carrier in behalf of Thornton to pay his medical expenses. It appears that respondent did everything he could to conceal his theft. His audacity trumps his dishonesty.
The attorney represented a client severely disabled in an automobile accident.
Charles Haney was driving his vehicle while intoxicated by alcohol and struck respondent’s client, Branden Thornton. As a result, Thornton suffered a traumatic brain injury and will require lifelong care. Tammy Howard, Thornton’s mother, retained respondent to represent Thornton and entered into an agreement providing for a 25% contingent fee of any recovery in his behalf.
The total recovery was $1.2 million. The exact amount misappropriated is unknown.
After several years of unanswered inquiries, the family retained new counsel and eventually filed a bar complaint
On January 25, 2019, respondent executed a verified resignation by consent before the Disciplinary Board of the Supreme Court of Pennsylvania. In his resignation he admitted that he “knowingly misappropriated a portion of the share of the settlement proceeds that his client . . . was entitled to receive from the $990,000” settlement, and by doing so, violated Pennsylvania RPC 1.15(b), RPC 1.15(e), and RPC 8.4(c).
Sunday, March 21, 2021
A Panel of the Maine Board of Bar Overseers has recommended denial of a second reinstatement to a petitioner who had gotten his license back after a federal conviction
For many years prior to the events leading to his conviction, Prolman regularly used cocaine and sometimes drank alcoholic beverages excessively, with his cocaine use becoming more regular by 2012. At some point in 2012, Prolman’s cocaine dealer introduced him to David Jones, who he soon learned was an illegal drug dealer, primarily involved in sales of large quantities of marijuana. Prolman agreed to assist Jones in incorporating certain business ventures and acquiring real estate for them. He was paid in cash for these legal services. Subsequently, Prolman accepted Jones’ offer to infuse funds into a sports agent business Prolman had started, as well as a separate real estate venture. Prolman accepted $127,875 in cash from Jones, which he deposited into different banks in small amounts so as to avoid federal cash source reporting requirements. He later accepted an additional $50,000, which had been delivered to him by Jones’ girlfriend, in cash. Prolman's plea eventually acknowledged participation in a felony–level conspiracy to launder $177,500 worth of marijuana trafficking proceeds received from Jones or Jones's girlfriend.
He was reinstated in July 2016
On April 17, 2017, less than a year after Prolman’s reinstatement, a client of Prolman’s filed a complaint with the Board. The Board, in turn, filed a Petition for Immediate Interim Suspension against Petitioner on May 26, 2017. After a contested, three–day hearing before Justice Alexander, the Court made the following salient findings: Prolman represented or advised the female complainant in connection with three criminal matters in 2016–2017. In one of these matters, Prolman secured early termination of the client's probation, to be effective in June, 2017, so long as she complied with her terms of probation until then, including the condition that the client not consume alcohol. This probation, and related participation in a closely–supervised diversion program, had been part of the client’s sentence for a felony drug conviction. Another matter the client discussed with Prolman related to the client’s status as a sex trafficking victim. In addition, during the time period that Prolman was representing her, the client lived in Topsham with a boyfriend. This individual was controlling and abusive and he assaulted the client on more than one occasion. Despite the involvement of law enforcement, these assaults were not prosecuted because the client refused to testify against her boyfriend. The situation culminated in a March, 2017, incident where the client sustained serious injuries, including broken bones in her face and marks on her throat due to an attempted strangulation. The Sagadahoc County authorities were concerned that the boyfriend, who had been arrested and held as a result of the incident, would soon return to the shared apartment, and believed the client needed to find other accommodations.
Prolman, who was in the process of returning from a vacation in Florida, spoke to the client on several occasions about the situation. Prolman also spoke with the Sagadahoc County Sheriff’s Deputy who was the client’s diversion supervision officer and told him that there was an apartment above his Saco law office where the client could stay. The Court found that Prolman conveyed the impression to the Deputy that the apartment was vacant and that the client would be living there by herself until she could find a permanent solution. Based on this, the Deputy agreed to place the client in the apartment.
Contrary to the impression given to the Deputy, Prolman was living in the three–bedroom apartment and a third person, who was not present at the time, was also living there. The apparent plan was that the client would occupy the third bedroom and share common areas with the others, including a bathroom next to Prolman’s bedroom.2 Had the client’s diversion officer known Prolman was living at the apartment, she would have terminated the living arrangement. Similarly, Prolman’s federal probation office would have objected to Prolman allowing the client, with a felony drug conviction, to live with him. Prolman did not voluntarily disclose the co-habitation to either officer.
Prolman returned from Florida either late on the day the arrangements were made for the client to move into his apartment, or the next day. Upon his return, he secured a cell phone for the client through his own cell phone account and assisted her in obtaining a waitressing job. At all relevant times, Prolman was aware of his client's history, abuse by and submissiveness to men, and her vulnerability to abusive physical and sexual relationships. Despite this:
On more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her. The client regarded Prolman’s sexual acts as "gross. " While she did not consent, she also did not object to Prolman’s sexual acts, simply submitting to what Prolman demanded – "I went along with it" – as she had done in past relationships with men who had taken advantage of her vulnerabilities.
2017 Suspension Order, at 11-12 ( ¶26) ( Board Exh. 905). It should be noted that this sexual contact occurred between two to fourteen days after an incident when the client had been brutally assaulted, strangled, and had her nose broken.
He was suspended for six months as a result.
Here, the panel found he failed to meet reinstatement criteria
Prolman continues to deny that he had a sexual relationship with the client involved in the 2017 suspension, so he does not acknowledge the conduct at all. Prolman argued at hearing, however, that he has demonstrated recognition of the wrongfulness and seriousness of the conduct because he has educated himself about, and accepts, the wrongfulness of the type of conduct at issue, namely having a sexual relationship with a vulnerable client, even if he does not admit doing it, and that he does regret bringing the client into his home and otherwise blurring the boundaries of his attorney–client relationship with the client.
Prolman may regret bringing the client into his home, but he also appears to continue to place the blame for what happened at the client’s feet
...Perhaps the strongest evidence that Prolman does not accept the wrongfulness and seriousness of the conduct that led to his discipline is the situation that developed with L.L. Despite giving lip service to his work on boundary issues, Prolman blew through all the relevant stop signs when it came to L.L. L.L. was economically vulnerable. There is evidence that she has or had substance use/ abuse issues. Her circumstances were such that she faced repeated criminal charges for which she needed representation and she depended on him for that representation and additional financial support, which he provided. He had frequent meetings with her well after office hours, at his home. Despite his denials, based on the parties’ contemporaneous text messages and other evidence described above, the Panel finds it likely that Prolman indeed had a sexual relationship with L.L. while she was a client, and that she perceived that sexual relationship, to some degree, as a quid pro quo for financial assistance and legal representation. When their attorney–client and personal relationship fell apart, Prolman then engaged in efforts to silence L.L. that continued to blur appropriate boundaries and that potentially exposed her to criminal liability, while then taking advantage of that exposure when it suited him. Much of the conduct described in the preceding sentence occurred after Prolman had submitted his Petition for Reinstatement.
Turning to the issue of integrity, in order to have the integrity needed to practice law, an individual must, at the least, have the reasonable ability to align one's actions with the boundaries, rules, and standards that one is expected to abide by as a practicing Maine attorney. The record in this matter is replete with evidence that Petitioner still struggles with aligning his actions with relevant standards and boundaries in this way. This is particularly so when Petitioner is operating in his "danger" areas, where his inclination to find justifications for ignoring relevant boundaries is high.
The panel propose that petitioner be required to wait three years to re-petition from the date of court's denial. (Mike Frisch)