Wednesday, November 9, 2022

Not On Netflix

The New York Appellate Division for the Second Judicial Department has disbarred an attorney for misappropriation of a portion of the proceeds of a real estate transaction

The respondent has admitted that she represented Murray in the sale of the Madison Street property, and that she received the proceeds of that sale. The respondent’s escrow bank records confirm that she deposited the proceeds of the Madison Street property sale, in the approximate amount of $770,000, into her escrow account. Although the respondent disbursed some of the sale proceeds at the direction of Murray, the respondent’s escrow bank records confirm that the remaining funds in excess of $630,000 did not remain on deposit in the respondent’s escrow account. The respondent concedes that she used Murray’s escrow funds to promote the respondent as an author and radio show host. The respondent claims that such use of the escrow funds was authorized by Murray, with whom she had a longstanding personal relationship, as an investment and to reimburse the respondent for legal services she claims to have rendered to Murray’s family members. Breanna Rochelle Coy, the respondent’s daughter, testified that she recalled the respondent getting oral authorization from Murray to use Murray’s funds. As to the purported investment transaction, the respondent admits that she did not follow the ethical rules relating to engaging in financial transactions with a client, and did not reduce the authorization to a written document.

The client denied giving such authority

In her testimony during the hearing, Murray denied ever giving the respondent authorization to use the proceeds from the Madison Street property sale as an investment or to pay for her family’s legal bills purportedly owed to the respondent.

Sanction

In determining an appropriate measure of discipline to impose, the Court has considered, in aggravation, that the respondent misappropriated substantial funds from her client, a senior citizen; that she has failed to make full restitution to her client; the respondent’s lack of remorse and acceptance of responsibility; and her disciplinary history, which consists of an admonition. In mitigation, the Court has considered the respondent’s character evidence and charitable and community activities.

Under the totality of the circumstances, we conclude that the respondent’s conduct warrants her disbarment.

The Daily Mail reported that a New York with that name had represented Anna Sorokin.

Fox News Five also reported

She hired Thomas in 2020 for her appeal and immigration case after dropping her trial lawyer Todd Spodek, who is a notable character in the trending Netflix series "Inventing Anna" starring Julia Garner.

(Mike Frisch)

November 9, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Giuliani Update

The cases of public interest link on the District of Columbia Board on Professional Responsibility has posted four new documents in the prosecution of Rudolph Giuliani.

Respondent has moved the admission of exhibits in support of his claim of good faith in challenging the Pennsylvania results.

Disciplinary Counsel does not object to admission but suggests the documents should be accorded little or no weight as they originate with "convicted felon" Bernard Kerik and were not available when the allegedly frivolous litigation was brought.

Respondent rejoins that Kerik is a "pardoned" convicted felon. (Mike Frisch)

November 9, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Unactionable Hackery

The United States District Court for the District of Columbia has dismissed a suit brought under the Ku Klux Klan Act 

Lieutenant Colonel Alexander Vindman’s name entered the public lexicon in 2019. Vindman was serving a detail on the National Security Council on July 25 of that year when he listened in during the now-infamous phone call between former President Donald Trump and Ukraine’s President Volodymyr Zelensky, which conversation would lead to Trump’s first impeachment. Vindman alleges that, after he reported concerns about the call through official channels and testified before the House Intelligence Committee, a group of conspirators formed an agreement to intimidate and unlawfully retaliate against him. He brings this action against some of those alleged conspirators — namely, Donald Trump, Jr., Rudolph Giuliani, Julia Hahn, and Daniel Scavino, Jr. — alleging that they thereby violated provisions of the Ku Klux Klan Act of 1871, codified at 42 U.S.C. § 1985(1) and (2). Defendants now move to dismiss the case.

History will be the final judge of Vindman’s actions and the former Administration’s response. This Court’s task is to adjudicate something far narrower: whether Plaintiff’s Complaint pleads facts sufficient to state a claim for civil conspiracy under Federal Rule of Civil Procedure 12(b)(6). As the Court will explain, Vindman must allege facts that plausibly suggest two things: first, that each Defendant agreed with others not just to vigorously defend their boss, but to unlawfully intimidate or injure Vindman; and second, that one of the co-conspirators committed an unlawful act — e.g., defamation — to further such scheme.

Plaintiff’s pled facts, taken as true, certainly suggest that Defendants leveled harsh, meanspirited, and at times misleading attacks against him. But political hackery alone does not violate § 1985. Because Vindman does not sufficiently allege a violation of the 1871 Act, the Court will grant Defendants’ Motions to Dismiss.

The opinion was authored by District Judge Boasberg. (Mike Frisch)

November 9, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, November 8, 2022

"A One-Time Incident Done Without Malice"

The Oklahoma Supreme Court has granted reinstatement to an attorney convicted felony manslaughter

 On August 27, 2017, Arnett was at a party where she consumed several glasses of wine. While driving home that night, Arnett struck Christopher Brown (Brown)--a pedestrian in the roadway--with her vehicle. Emergency Medical Technicians transported Brown to the hospital, where he died several hours later. Arnett was taken to the hospital for a blood alcohol test, which showed her blood alcohol content was 0.142.

On December 1, 2017, Arnett was charged with the felony crime of Manslaughter in the First Degree, to which she pled guilty. On July 23, 2018, the district court sentenced Arnett to four years in custody and eight years suspended.

She had been suspended since 2018.

Moral character

Arnett has never faced disciplinary action by the OBA. She practiced for approximately fifteen years after being admitted into the OBA and maintained good standing with the OBA until her suspension in 2018. Prior to the incident involving Brown, Arnett volunteered by fostering dogs, participating in the Ask A Lawyer program that is part of the OBA's Law Day celebrations, and coaching a mock trial team...

The only question as to Arnett's moral character arises from her continued use of alcohol. Arnett admitted that she has on a couple of occasions consumed alcohol since her release from prison, which is a violation of the terms of her probation. Arnett testified that she understands that she cannot drink alcohol and testified that she would not do so again. Arnett continues to attend AA meetings and is involved in LHL. Even with this concern, the OBA does not contest Arnett's reinstatement.

We find by clear and convincing evidence that despite Arnett's alcohol use since her release from incarceration, Arnett possesses the moral fitness necessary for reinstatement.

She met the remaining requirements

Here, Arnett's criminal actions were also extremely serious, and we do not take that lightly. However, the record indicates it was a one-time incident done without malice that did not involve clients. Arnett also has no disciplinary history. As in Morgan, we find Arnett has satisfied our inquiry into the factors we consider for reinstatement. Id

(Mike Frisch)

November 8, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Ethical Violations In Dealing with Diminished Capacity

The Ohio Supreme Court has imposed a fully-stayed 18 month suspension for an attorney's ethical violations in dealing with a client of diminished capacity

Jarvis...made no effort to establish or maintain a normal client-lawyer relationship with a client whose capacity was known to be diminished. Jarvis never met with Frank to assess his capacity or ascertain his wishes for his end-of-life care and the disposition of his estate before preparing the necessary documents. Instead, he drafted the documents pursuant to the instructions of Frank’s family members. Jarvis directed his employee to obtain the client’s signature on those documents outside of his presence and then fraudulently notarized them under jurats falsely stating that Frank had personally appeared before him and voluntarily signed the instrument. Jarvis further attested that Frank appeared to be of sound mind when he signed two of those documents—even though he was not present when those documents were signed and had no personal knowledge of Frank’s mental status. Jarvis’s multiple failures opened the door to allegations that Frank and Lenor had been unduly influenced or coerced to modify their estate plan, which led to another six years of estate litigation and more than ten years of malpractice litigation.

The presumption of actual suspension for dishonesty was rebutted

the mitigating factors present in this case are sufficient to rebut the presumption that Jarvis’s dishonesty requires an actual suspension from the practice of law. We believe that an 18-month suspension, stayed in its entirety on the conditions recommended by the board, is the appropriate sanction in this case.

(Mike Frisch)

November 8, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 7, 2022

Fore!

A one-year suspension has been imposed by the New Jersey Supreme Court of an attorney with prior discipline that included a three month Connecticut suspension described in the report of the Disciplinary Review Board

In that matter, a Burlington County Grand Jury indicted respondent on one count of third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d), and one count of fourth-degree criminal mischief, contrary to N.J.S.A. 2C:17-3(a)(i). Those charges arose from respondent’s involvement in an August 15, 2014 “road-rage” incident in Evesham Township, during which he threw a golf club at the victim’s car and then approached the car with the club.

While suspended in New Jersey

The disputed facts at the hearing involved whether, in July 2017, respondent represented himself to be an attorney or engaged in the unauthorized practice of law in connection with the potential driver’s license suspension of his friend, Christopher D. Stoner.

Findings below

Based on its determinations, the DEC found respondent violated all the charged RPCs. However, the DEC found that respondent violated RPC 3.3(a)(1) in only one instance, when he falsely represented himself as [licensed attorney] Underwood to the MVC, on July 18, 2017. Further, the DEC found that respondent violated RPC 3.3(a)(5) only to the extent that he failed to disclose that he was a suspended attorney, but not for failing to disclose that he was not Underwood.

DRB

we agree with the DEC that respondent twice engaged in the unauthorized practice of law, in violation of RPC 5.5(a)(1). First, during the July 13, 2017 telephone call, while suspended, he identified himself as an attorney and requested and adjournment on behalf of Stoner. Second, on July 18, 2017, while suspended, he appeared on behalf of Stoner, at the MVC, in a representative capacity.

...In sum, we find that respondent violated RPC 3.3(a)(1) (two instances); RPC 3.3(a)(5) (two instances); RPC 3.4(c); RPC 5.5(a)(1) (two instances); and RPC 8.4(c) (two instances).

November 7, 2022 in Bar Discipline & Process | Permalink | Comments (0)

"Eyeglasses And A Concealed Camera"

The New York Appellate Division for the First Judicial Department has disbarred an attorney

The charges against respondent arose from three separate matters. First, in 2018, respondent was retained to file a notice of appeal on behalf of client M.C. and was tasked with obtaining trial transcripts for evaluation. The client gave respondent a check for $3,500 expressly earmarked for the transcripts. Respondent deposited this check into his business account but never paid the court reporter or obtained the transcripts. Respondent made withdrawals from this account to pay for his business and personal expenses, leaving a balance of approximately $70.

Respondent's principal defense to these conversion charges was that he believed the $3,500 check, which bore the notation "Court's Transcripts [M.C.]," was a retainer check to spend as he wanted. The Referee found this defense incredible and concluded that respondent: (1) had converted the $3,500 in violation rules 1.15(a) and 8.4(c) of the Rules of Professional Conduct (22 NYCRR 1200.0); (2) neglected a legal matter by [*2]failing to obtain the transcripts in violation of rule 1.3(b); and (3) commingled client funds with personal funds by depositing the client's check into his business account in violation of rules 1.15(a) and 1.15(b)(1).

Second, the Referee found that during a matrimonial trial, respondent made an unauthorized recording of the court proceeding by wearing eyeglasses with a concealed camera. Respondent admitted this wrongful act and the Referee sustained this charge, finding that respondent's actions constituted conduct prejudicial to the administration of justice in violation of rule 8.4(d).

The third series of charges related to a $100,000 loan respondent obtained from a client in 2017 to start his law practice. Despite the self-dealing nature of this transaction and potential for a conflict of interest, respondent drafted the loan agreement and his repayment plan. The client, who was 61 years old, claimed respondent only paid back $25,000 and filed a complaint with the AGC. The Referee found that respondent failed to advise the client that he should retain separate counsel when negotiating the terms of the loan agreement in violation of rule 1.8(a)(2).

Proffered defenses and contentions on appeal

Substantively, respondent claims that the AGC engaged in prosecutorial misconduct by failing to comply with disclosure requirements under 22 NYCRR 1240.8(a)(3) by allegedly withholding e-mail correspondence between the AGC and the complainant M.C.

Respondent further argues that this proceeding should be transferred to the Fourth Department because it is unclear whether the First Department can impartially adjudicate the matter due to his 2017 representation of a now former First Department employee who claimed to have been sexually harassed by a more senior employee. Respondent finds it coincidental that the AGC commenced this disciplinary proceeding against him around the same time of this representation.

Lastly, respondent argues that the Referee failed to give the proper weight to his mitigation evidence, which included an altercation with the NYPD where respondent was injured and arrested. The charges were dropped, and respondent claims the police severely injured his back, requiring pain medication, surgery and causing him to suffer post-traumatic stress disorder, depression, and other problems.

As an alternative to discipline, respondent requests that this Court allow him to certify as retired with OCA, so he can continue to do pro bono work and "make up for all the damage [he has] caused the Bar and profession as a whole."

The AGC opposed and the Court denied the proposal. (Mike Frisch)

November 7, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Friday, November 4, 2022

Annulled By Consent

The West Virginia Supreme Court of Appeals has annulled an attorney's license, imposing a three-year suspension in one matter and accepting license annulment in a second

This matter involves two lawyer disciplinary actions brought against Respondent David R. Tyson (hereinafter “Mr. Tyson”), a member of the West Virginia State Bar. In Case No. 20-1027, the Office of Lawyer Disciplinary Counsel (hereinafter “ODC”) filed formal charges against Mr. Tyson regarding alleged overbilling of the Public Defender Services Corporation (hereinafter “PDS”) as well as complaints from Mr. Tyson’s former clients. As a result of stipulations entered into in Case No. 20-1027, the parties agreed to certain proposed sanctions including a two (2) year suspension. The Hearing Panel Subcommittee (hereinafter “HPS”) adopted most of the recommended sanctions but increased the length of Mr. Tyson’s recommended suspension. The HPS recommended that Mr. Tyson’s law license be suspended for a period of three (3) years. A few months following the issuance of the HPS’s recommendations in Case No. 20-1027, the Office of Lawyer Disciplinary Counsel filed a petition, Case No. 22-0342, requesting that this Court accept, with the voluntary consent of Mr. Tyson, the annulment of Mr. Tyson’s license to practice law in the State of West Virginia pursuant to Rule 3.25 of the Rules of Lawyer Disciplinary Procedure.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we adopt the recommendations of the HPS in Case No. 20-1027. In addition, we grant the Petition for Disbarment in Case No. 22-0342 and order that Mr. Tyson’s license to practice law in the State of West Virginia is annulled by voluntary consent.

Overbilling

Pursuant to the stipulations entered into with the ODC, Mr. Tyson admitted that by charging over 24 hours on each of four different days along with charging 15 hours or more each day on an additional eleven days, he violated Rule 1.5(a)  of the Rules of Professional Conduct.  Mr. Tyson also admitted that he violated Rule 3.3(a)(1) of the Rules of Professional Conduct  by submitting billing vouchers which misrepresented the time expended for services performed before circuit judges and/or appointing tribunals, which resulted in overpayments of fees from the PDS. Mr. Tyson also admitted that because he engaged in improper and/or unsubstantiated billing with regard to cases in which he was appointed to represent indigent clients on behalf of the PDS, he violated Rule 8.4(c) and (d) of the Rules of Professional Conduct.

(Mike Frisch)

November 4, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 3, 2022

More Than A Sum Of The Worst Moments

Rejecting a 6-5 unfavorable recommendation of its Character and Fitness Board, the Washington State Supreme Court admitted an applicant with a past criminal history

Stevens has been convicted of multiple serious crimes, he violated his probation in 2013, he is subject to sex offender registration requirements, and he was denied admission to the Arizona State Bar Association based on character and fitness concerns. These facts are all relevant to our inquiry. However, like all of us, Stevens is more than the sum of the worst moments of his life. In order to provide the individualized inquiry that our precedent requires, we must consider Stevens’ wrongful conduct in context.

Stevens’ most serious offenses occurred when he was a teenager. As an adult, he has abstained from engaging in any unlawful conduct since 2013. In that time, he has graduated from college and law school, he has been steadily employed, and he has developed a supportive network of friends and family. It is apparent from the record that Stevens has taken responsibility for his prior misconduct and shows remorse. We therefore hold that despite his past wrongdoing, Stevens has met his burden of showing that he is currently a person “of good moral character” who “possesses the requisite fitness to practice law.” APR 24.1(c). As a result, we grant his application for admission to the WSBA.

Arizona has a presumption against admission of applicants with felony convictions

We hold that Stevens’ bar denial in Arizona is relevant, but we give less weight to this factor than we would give to a bar denial in a jurisdiction with admissions standards more similar to our own or in a case where it appears that the applicant is engaged in forum shopping.

Four justices dissented in an opinion of Justice Madsen

The majority says that it recognizes the serious nature of Stevens’ convictions but contextualizes that behavior in a way that sanitizes and minimizes the ongoing consequences of that behavior. Specifically, at the time of his most serious offenses he was 19 years old and was involved in the sexual exploitation of children. Additionally, he was required to register as a sex offender. The majority overlooks that Stevens’ most serious violations occurred when he was an adult, at the ages of 19 and 26. Moreover, the offenses involved victimized youth who were significantly younger than Stevens. I disagree, and I would therefore deny Stevens’ application for admission at this time.

..given the totality of these factors, I would hold that Stevens has failed to show by clear and convincing evidence that he has good moral character and possesses the moral fitness to be admitted to the Washington bar at this time. That is not to say that Stevens is forever precluded from applying to the Washington bar or that his past actions are an indelible mark clouding his future. While we must judge an applicant based on their past, the past does not control the future. Prior applicants have shown a path forward. E.g., Simmons, 190 Wn.2d at 386-99. Undoubtedly, other paths can be forged. It is my hope that if and when Stevens addresses the concerns discussed above (satisfying his continuing legal obligations among them), he would reapply for admission.

Justice Yu authored the opinion. (Mike Frisch)

November 3, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Sanction For Domestic Violence

The New York Appellate Division for the Third Judicial Department had a harsher view of an attorney's domestic violence than its sister state of New Jersey.

The court ordered a three-year suspension

we take note of the serious nature of respondent's aggravated domestic assault in New Jersey which, as described by
the DRB, occurred after respondent and the victim – his fiancée at the time – engaged in a heated argument in a parking lot that resulted in respondent "grabb[ing] the victim's head and "smash[ing] it against the [vehicle] door frame twice," causing a gash to the victim's head. As the victim screamed that she was bleeding, respondent fled and a police officer dispatched to the scene called for an ambulance to take the victim to the hospital for treatment. Although respondent ultimately pleaded guilty to aggravated assault as noted above, he thereafter failed to provide notice of his conviction to the New Jersey disciplinary authorities, one of the factors in aggravation noted by the DRB. The DRB also viewed respondent's claims of remorse as unconvincing, noting respondent's attempts to downplay his criminal conviction and his submission of statements from the victim blaming herself for her injuries. Ultimately, a majority
of the DRB concluded that – after noting that a three-month suspension is "the ordinary measure of discipline" for attorneys convicted of acts of domestic violence in that state – the presence of these significant aggravating factors outweighed any mitigating circumstances in respondent's favor and warranted an enhanced six-month suspension, a recommendation that was subsequently accepted by the Supreme Court of New Jersey.

The court noted that the attorney had failed to report the conviction and offered no  mitigation. (Mike Frisch)

November 3, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Tangible Benefits

An attorney suspended in 2019 for failure to pay comply with annual registration requirements has been reinstated and blessed by the New York Appellate Division for the Third Judicial Department

her reinstatement is likely to have a tangible benefit. Respondent, a former New Jersey public defender, is now focused on "creating policy to reduce mass incarceration in this country" and it is submitted that her career focus on assisting marginalized and disadvantaged populations would be well served by her restoration to practice in New York (see Matter of Becker, 202 AD3d at 1432).

Accordingly, having determined that respondent has satisfied her burden in every respect, we grant her application for reinstatement.

Petitioner is  "currently employed in a policy role with a not-for-profit organization in Kings County." (Mike Frisch)

November 3, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Infected Findings Draw Reduced Sanction

The District of Columbia Court of Appeals has issued a significant opinion on the interaction between the findings of a bar hearing committee, the Board on Professional Responsibility and the Court

The Board on Professional Responsibility recommends we disbar Evan J. Krame based on his conduct as trustee of three special needs trusts. That recommendation stems from two central conclusions.

First is the Board’s conclusion that Krame “engaged in a pervasive dishonest scheme for personal gain” by knowingly making false statements to the Probate Division of the D.C. Superior Court when seeking compensation for administering the trusts. Krame’s alleged scheme related to his persistent efforts to be compensated based on a percentage of the trust funds he administered, with Krame sometimes resorting to dishonesty to evade court orders directing that he instead be compensated on an hourly basis.

Second is the Board’s conclusion that, on two separate occasions, Krame misappropriated entrusted client funds when he issued duplicate payments to himself (from the trusts) for the same services. While Krame maintained that those double payments resulted from the administrative oversights of his staff, and not any wrongdoing on his part, the Board found that Krame himself acted negligently with respect to those duplicate payments. Disciplinary Counsel goes one step further and now contends that a “culpable state of mind is not an element of misappropriation,” which it deems “essentially a per se offense,” (quoting In re Cloud, 939 A.2d 653, 660 (D.C. 2007)), so that “[a]ny unauthorized use of entrusted funds is misappropriation.”

The Court ordered an 18-month suspension.

My cursory initial review did not see any mention of the fact that the investigation of one of the matters began in 2007; the other in 2012.

The BPR Report was issued in July 2019. 

Because the BPR proposed disbarment, Respondent has been suspended on an interim basis for longer than the term of suspension that the Court imposed.

The third anniversary of the interim suspension was celebrated on October 15. 

As I read this decision - and assuming that Respondent filed the required affidavit - its effect is the reinstate him from that interim suspension.

Fifteen years from soup to nuts is - to put it charitably - nuts. 

Both sides had excepted from the BPR report

We partly agree with Krame’s contentions that the Board improperly intruded into the Hearing Committee’s role as factfinder. Namely, the Board failed to accept certain credibility findings made by the Hearing Committee, and some of the more serious violations found by the Board were infected by that misstep. As for the negligent misappropriation charges, we agree with the Board that Krame engaged in negligent misappropriation in at least one instance, and therefore do not need to resolve the parties’ disagreement about the extent to which misappropriation is a per se offense that can be found in the absence of a culpable mindset. Ultimately, based on the type and number of Rule violations we sustain, we consider the Board’s recommended sanction of disbarment to be too harsh. We instead suspend Krame from the practice of law in the District of Columbia for eighteen months.

The court noted a longstanding tension between the BPR's role in respecting hearing committee findings and its own authority to find facts

Our recognition of those limited bases for revisiting the Hearing Committee’s credibility determinations does not affect our prior rulings that credibility findings must be accepted and can have a foreclosing impact on ultimate facts and legal conclusions, so long as they are supported by substantial evidence and uninfected by legal error...

Neither we nor the Board have carte blanche to revisit the Hearing Committee’s credibility determinations simply because we disagree with them and they speak to some ultimate fact. To hold otherwise would “endanger th[e] basic allocation of decisionmaking responsibility” between the Board and the Hearing Committee. In re Anderson, 778 A.2d at 341. While our precedents have admittedly not always been clear on this point, we are not aware of any that conflict with the principles articulated above—stemming from In re Micheel, In re Temple, and In re Evans—and Disciplinary Counsel points to no genuinely conflicting authority.

Here

Had the Board accepted the Hearing Committee’s credibility finding—that Krame did not intentionally falsify his time entries, but instead tried to recreate them based on his experience and records (however misguided that attempted recreation might have been)—it would have had no choice but to accept that Krame’s conduct was no more than reckless, rather than intentional.

Violations

In sum, with respect to Krame’s oversight of the Brown and Baker trusts, we conclude that Krame violated Rules 3.3(a)(1) and 8.4(c) when he intentionally misled Judge Wolf into believing he did not have useful time records pertaining to the first fee petition filed in relation to the Brown trust; Rules 3.3(a)(1) and 8.4(c) when he intentionally did the same to Judge Wertheim pertaining to the second fee petition filed in relation to the Baker trust; Rule 3.4(c) when he defied Judge Wolf’s orders by expensing litigation costs to the Brown trust and failing to promptly repay certain of those costs; and Rules 1.5(a) and 8.4(c) and (d) when he recklessly submitted altered time entries. 

Mitigation

However, we also acknowledge the following substantial mitigating factors: Krame’s otherwise unblemished record; his cooperation with Disciplinary Counsel’s investigation; his long history of serving the disabled and elderly communities; the significant time Krame has devoted to the profession, including his service on the steering committee of the Bar’s Estates, Trusts, and Probate Section; and the amicus brief that over a dozen of Krame’s longstanding clients filed on his behalf, attesting to his valuable services, professionalism, upstanding character, and ethical conduct.

One unusual aspect of the case were two amicus briefs filed by Respondent's supporters and clients on his behalf. 

Associate Judge Deahl authored the opinion. (Mike Frisch)

November 3, 2022 in Bar Discipline & Process | Permalink | Comments (0)

No Automatic Reinstatement

The Indiana Supreme Court suspended an attorney without automatic reinstatement

We find that Respondent, Ralph W. Staples, engaged in attorney misconduct by dividing attorney fees without his client’s permission, disobeying court orders, making false statements to the Disciplinary Commission, and failing to timely respond to the Commission’s demands for information. For this misconduct, we conclude that Respondent should be suspended for not less than one year, without automatic reinstatement.

The attorney had agreed to represent the client in several matters with the $11,500 fee (never reduced to writing) to be paid by the client's mother.

Respondent paid an attorney who he shared office space with to appear for the client and withdrew shortly thereafter

By the time Respondent withdrew, Client’s mother had paid him $4,300, $1,148 of which Respondent had paid to [attorney] Draving without consent from Client or his mother. Client’s mother requested a full refund from Respondent but never received one. So, Client’s mother sued Respondent in case number 49D11-1911-CC-46864 (“Refund Case”).

Respondent defaulted in that case and failed to cooperate with the bar investigation

In this case, Respondent made no meaningful effort to represent Client. Not only did he foist representation of Client on an unaffiliated attorney without Client’s knowledge or assent, but for three years he has refused to refund Client the fees he collected but did not earn—even after judgment was entered against him in a separate lawsuit. Respondent’s obstinance and dishonesty continued during these disciplinary proceedings, during which he made a false statement to the Commission, missed a hearing, disregarded orders from the hearing officer, and generally continued his pattern of noncooperation.

He must pay the judgment as a condition of reinstatement. (Mike Frisch)

November 3, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Calling Fred McMurray

A Connecticut law firm sued a person who allegedly had failed to attend a foreclosure sale to bid on behalf of its client Bank of America.

The Vermont Superior Court granted judgment on the pleadings because any damage suffered as the result of the breach was to the client (not a party to the suit) not the law firm

This suit is really an action for indemnity disguising as a negligence or breach of contract suit. According to the Complaint, the law firm’s client, Bank of America, N.A., realized a loss of $59,852.63 when Hayden failed to appear at the auction, and the law firm “was then liable to its client for the client’s loss in connection with this property” (Id., ¶13). The law firm now seeks to recover that $59,852.63 loss from Hayden, not because Hayden’s actions caused the law firm to sustain the loss, but because the law firm was allegedly liable to its client for the client’s loss. That is a classic indemnity claim. Such claims can be based upon either an express or implied indemnification agreement, but, either way, the claim is separate and distinct from a negligence and breach of contract claim, and indemnity claims come with their own separate set of defenses. See, for example, Quality Market v. Champlain Valley Fruit, 127 Vt. 562, 566 (1969) (“To protect the indemnitor’s right to defend against liability, a voluntary payment by an indemnitee, without notice to the person sought to be charged, may foreclose restitution.” (citation omitted)).

Assuming the allegations of the Complaint are all true, the Plaintiff law firm cannot sustain a claim against the Defendant for either negligence or breach of contract.

(Mike Frisch)

November 3, 2022 | Permalink | Comments (0)

Wednesday, November 2, 2022

Seven Of Eight Badges Of Fraud

The Alaska Supreme Court rejected as unduly lenient a sanction proposed by the Bar Association's Disciplinary Board

The same day an attorney’s long-existing law firm was ordered to return over $643,000 to a former client, the attorney closed that firm and began transferring its assets to a recently formed law firm and to himself. The attorney then told the former client that the old law firm did not have sufficient assets to return the funds. In subsequent civil litigation between the attorney and the former client, the superior court found the attorney and both law firms liable under a consumer protection statute for nearly $2 million in damages.

The Alaska Bar Association initiated disciplinary proceedings against the attorney. After a four-day hearing, an area hearing committee found that the attorney had intended to defraud his former client by transferring the old firm’s assets to the new firm and to himself and had misrepresented his old firm’s ability to pay in violation of professional conduct rules. The Bar Association’s Disciplinary Board adopted the hearing committee’s findings and conclusions and recommended that we suspend the attorney from the practice of law for one year and order him to pay $3,000 in fees and costs. The attorney appeals, arguing that there is insufficient evidence to support the area hearing committee’s (and therefore the Board’s) finding, by clear and convincing evidence, that he intended to defraud the former client.

We agree that the attorney’s conduct violated professional conduct rules, but we conclude that the Board’s recommended sanction is too lenient. We therefore suspend the attorney from the practice of law for four years and order him to pay $3,000 in fees and costs to the Bar.

The representation of the client - a Native American corporation - spread over 30 years and involved both Respondent and his father.

In civil litigation

The superior court also found that seven of eight badges of fraud were present which “weigh[ed] strongly in favor of finding that the capitalization of [Merdes Law Office] with the assets of [Merdes & Merdes] was done with the intent to defraud [client] Leisnoi and prevent payment of the debt owed to Leisnoi.”

The court here sustained the findings of misconduct.

Sanction

The Board did not specify the reasons it concluded that the “selfish or dishonest motive” aggravator applied. But the record shows that Merdes fraudulently conveyed more than a million dollars from Merdes & Merdes to his new firm and over two million dollars to himself to keep the money his old firm owed to Leisnoi. His reasons for doing so were his belief that his father had earned the money and his anger over the insults Leisnoi had levied against his father. We conclude that the Board properly found “selfish and dishonest motive” as an aggravating factor...

Lawyers must act with integrity.114 We have previously emphasized that because “[s]ociety allows the legal profession the privilege of self-regulation . . . . it is of the utmost importance that the public have confidence in the profession’s ability to discipline itself.”  Therefore “our paramount duty[] ‘lies in the assurance that the public will be protected in the performance of the high duties of . . . attorney[s].’ ” Yet Merdes’s conduct in this case “contributes to the perpetuation of the stereotype of lawyers as unscrupulous and unprincipled.

(Mike Frisch)

November 2, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 1, 2022

Award for 2022 Zacharias Prize Announced

News reported from Samuel J. Levine at Touro Law:

The committee has made its selection for the thirteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  

This year's winner is:

Matthew Kim, "For Appearance's Sake: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession," 83 Ohio St. L.J. 529 (2022).

Congratulations! (Posted by Alan Childress)

November 1, 2022 in Professional Responsibility | Permalink | Comments (0)

Changes Proposed In DC BPR Rules

The District of Columbia Board on Professional Responsibility has given notice and the opportunity to comment (editor's note: Bravo!) of several proposed changes/additions to its present rules.

One new proposed rule of note

Rule 2.5 (Deferral of Docketing Determinations Regarding Declared Candidates in Upcoming Elections)

If a complaint raises allegations of misconduct against a declared candidate for public office in an election to be held in any jurisdiction within 90 days of the filing of the complaint, Disciplinary Counsel shall defer its docketing determination under Rule 2.4 until after the election in question has concluded. Disciplinary Counsel shall promptly notify the complainant of the deferral.

Editor's note: Did not know that Disciplinary Counsel was the functional equivalent of the United States Department of Justice in election matters; some comfort to future election deniers.

Proposed new Rule 2.6

After making its docketing determination, Disciplinary Counsel shall provide complainant with a notification that includes: the criteria for docketing set forth in Rule 2.4; its conclusion as to whether the allegation(s) in the complaint satisfy those docketing criteria and, if applicable: (1) a statement that the complaint is under investigation; (2) a statement that the subject matter of the complaint against the attorney involves materially identical factual allegations of misconduct as those in a complaint previously received and screened against the same attorney; (3) a statement that the determination to investigate a matter is not a determination that any violation has occurred; and (4) an explanation of the procedures involved in any future disciplinary proceedings, including the right of respondent to a fair hearing
on the allegation(s) of misconduct, should Disciplinary Counsel decide to bring formal charges. In instances where Disciplinary Counsel has determined not to docket a complaint against an attorney, and the complaint is not related to the subject matter of an existing investigation against the same attorney, in its notification to the complainant Disciplinary Counsel may provide further explanation as to why a complaint does not meet the criteria set forth in Rule 2.4.

Editor's note: Glad I'll never write one of these letters again.

The remaining changes appear to be more technical than substantive. (Mike Frisch)

November 1, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Florida Bar Sanctions Summaries November 2022

The monthly discipline summaries of the Florida State Bar include

Vegina Trimetrice Hawkins, 4824 S.W. 24th St., West Park, suspended for 90 days with automatic reinstatement pending a Florida Lawyers Assistance, Inc., evaluation, effective immediately following an October 6 court order. (Admitted to practice: 2004) While a circuit judge in 2019, Hawkins placed her hands near or on a court employee’s neck and made back and forth shaking motions for less than two seconds. The Judicial Qualifications Commission filed charges and suspended Hawkins during the investigation. Ultimately, Hawkins resigned from the bench. (Case No: SC22-590)

Brian Alfred Mangines, 1515 N. Federal Hwy., Suite. 300, Boca Raton, suspended for two years, nunc pro tunc, effective August 24, 2022, per the October 13 court order. (Admitted to practice: 1997) Mangines pled guilty to one count of Patient Brokering, a third degree felony, and was sentenced to 24 months of probation, which included a condition that he could not engage in the practice of law during probation. The Florida Supreme Court suspended Mangines on August 24, 2022, after the Bar filed a Notice of Determination or Judgment of Guilt following his guilty plea. The court then suspended Mangines for two years after he entered into a consent judgment with the bar. (Case No: SC22-1110)

I confess that I was unfamiliar with the crime of Patient Brokering.

Robert Laurence Pelletier, 233 E. Bay St., Suite 1020, Jacksonville, public reprimand and attendance at ethics school within six months of a September 1 court order. (Admitted to practice: 2012) Pelletier was hired to represent a client in a criminal matter. He was hired to represent the client by a co-defendant to the criminal charges pending against the client he was hired to represent. Pelletier did not obtain a waiver from the parties involved related to the potential conflict. Pelletier failed to diligently pursue his client’s criminal cases and failed to adequately communicate with the client. Pelletier also failed to timely respond to the Bar’s inquiries. (Case No: SC22-397)

Thomas Edward Stone, P.O. Box 292, Madison, disciplinary revocation with leave to seek readmission effective 30 days following a September 29 court order. (Admitted to practice: 1976) Stone, an assistant public defender, was assigned to represent a defendant in several criminal matters that included felonies. The client violated probation related to her plea of the criminal matters. Stone was again appointed to represent the client in the violation of probation matters. Thereafter, Stone admitted that he engaged in a sexual relationship with the client who he still represented at the time. The client reported she felt pressured to engage in the inappropriate relationship because Stone was handling the client’s criminal matters.  (Case No: SC22-945)

(Mike Frisch)

November 1, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Innocent Clients Victimized By Attorney

The North Carolina Court of Appeals affirmed sanctions imposed on an attorney who had taken advantage of two clients who had served 31 years for a rape and murder they did not commit and lacked the capacity to understand their fee agreements

In August 2014, Rose and Vernetta Alston, also an attorney with the Center for Death Penalty Litigation, filed an MAR alleging McCollum was innocent based in part on results of DNA testing done on a cigarette butt found at the scene of the murder; the DNA did not match either brother, but instead matched an inmate “then serving a life sentence for the murder of a woman in the same area as Buie, a month after Buie’s murder.” Brown filed a similar MAR through separate counsel. The trial court granted McCollum’s and Brown’s MARs, vacated their convictions and judgments, and released them from prison after having served 31 years,

The representation of the brothers post-release is set out leading to

On 20 September 2018, the North Carolina State Bar filed a disciplinary action against Defendant alleging that Defendant had engaged in professional misconduct in his representation of McCollum and Brown. The case was tried before the DHC, and the DHC concluded that Defendant violated the Rules of Professional Conduct involving, inter alia, “dishonesty, excessive fees, [and] conduct prejudicial to the administration of justice.” The order of discipline (“Order”) suspended Defendant’s law license for five years and allowed Defendant to seek a stay of the balance of the suspension after three years if he complied with certain conditions, including a $250,000 restitution payment to McCollum and Brown. Defendant filed notice of appeal.

Vulnerable clients

McCollum and Brown were easily manipulated and were particularly susceptible to manipulation and financial coercion, given their intellectual disabilities, decades in prison, and relative poverty.

Findings

clear, cogent, and convincing evidence supports the Order’s findings of fact, and the findings of fact support the DHC’s conclusions that it was dishonest for Defendant to enter into the representation agreement with McCollum and Brown; that it was prejudicial to the administration of justice for Defendant to have McCollum sign the settlement agreement and deceitful for him to represent to the Court that McCollum had consented to the settlement; and that it was dishonest for Defendant to claim to Multi Funding that he explained the terms of the loan agreements to McCollum and Brown.

The court also affirmed a $250,000 restitution order. (Mike Frisch)

November 1, 2022 in Bar Discipline & Process | Permalink | Comments (0)

Monday, October 31, 2022

See You In Discovery

Another day, another defeat for the defendant/respondent formerly known as America's Mayor.

Chief Judge Howell of the United States District Court for the District of Columbia denied in total his motion to dismiss a defamation and related actions brought by two Georgia poll workers

Giuliani seeks complete dismissal of this lawsuit, claiming that plaintiffs have failed to state a claim on all three counts in their Amended Complaint. For the reasons set forth below, Giuliani is wrong. Plaintiffs have stated a claim as to each of the three counts, and Giuliani’s arguments to the contrary are unpersuasive.

The complaint

Despite the repeated debunking of the Trump Campaign’s claims of voter fraud in the election in Georgia by state officials and private organizations, Giuliani persisted in pushing those very claims—and began taking direct aim at plaintiffs in the process. That began in December 2020, when Giuliani orchestrated and implemented a strategic plan “to educate the public on the fraud numbers, and inspire citizens to call upon legislators and Members of Congress to disregard the fraudulent vote count and certify the duly elected President Trump.” Id. ¶¶ 57, 58; see also “Strategic Communications Plan[,] Giuliani Presidential Legal Defense Team” (the “Strategic Plan” or “Plan”) at 2, ECF 26-3. A section of the Plan was dedicated to exposing the alleged voter fraud schemes in Georgia. See Am. Compl. ¶¶ 62, 63. Freeman was named in the Plan as being “under arrest” and part of “coordinated effort to commit voter/election fraud.” Id. ¶ 63. Giuliani specifically accused Freeman and the other workers in the Edited Video of “ballot stuffing” by
rolling out “suitcases” filled with ballots when “press and all third parties were required to leave the premises”—an event the Strategic Plan calls “Suitcase Gate.” Id. On December 23, 2020, Giuliani, on his podcast, named Freeman as someone with “a history of fraud participation,” and claimed that she, with the help of other election workers, counted  the same ballots “eight times,” “cheating” in manner that “look[ed] like a bank heist.” Id. ¶¶ 66, 67. On December 25, 2020, Giuliani, again on his podcast, accused “Ms. Freeman and her crew” of attempting to scan ballots multiple  times, likening them to “crooks spr[i]ng[ing] into action.” Id. ¶ 69

The court

Giuliani’s weak effort to distance himself from authorship of the Strategic Plan also falls. Given that the title of the Strategic Plan specifies Giuliani by name, see id. at 2 (emphasis added) (“STRATEGIC COMMUNICATIONS PLAN GIULIANI PRESIDENTIAL LEGAL DEFENSE TEAM”), that this document identifies “Rudy Giuliani” as the first person under “Key Team Members,” see id. at 7, and that Giuliani’s conduct after its publication shows he was integrally involved in “launch[ing],” “orchestrat[ing],” and “execut[ing]” the Plan, see Amend. Compl. ¶¶ 9, 57, 136; see also id. ¶¶10–12, 58–64, 134, 137, 190, plaintiffs have done more than  plausibly to allege that Giuliani bears at least “some degree of authority and some degree of responsibility” over authoring the Plan. See Nyambal, 344 F. Supp. 3d at 191.

Next up is Giuliani’s claim that purportedly defamatory statements, which do not mention Freeman and Moss by name, should be dismissed because no reasonable listener would plausibly read them as concerning Freeman and Moss, respectively. Giuliani fails to cite, address or distinguish the holding of Croixland Properties Limited Partnership v. Corcoran, where the D.C. Circuit explained that a plaintiff can satisfy the first element of defamation—that the defendant made a false and defamatory statement “of and concerning” the plaintiff—without specifically identifying the plaintiff by name.

Defamation

Freeman has plausibly alleged Giuliani made statements about her criminal activity/history with actual malice. When taken together, these allegations at least plausibly suggest that Giuliani fabricated Freeman’s arrest and criminal record out of whole cloth: Giuliani accused Freeman of election fraud before the Strategic Plan was allegedly published, even though the Strategic Plan (which Giuliani was at least plausibly an author) noted that the Trump Campaign still needed
evidence that she was arrested for that very criminal activity. Cf. Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 284 (D.D.C. 2017) (denying defendants’ motion to dismiss on actual malice grounds in a defamation case because plaintiffs alleged that defendants “failed to uncover a single reported piece of evidence corroborating [the sole source’s] outlandish claims”). When viewing the Amended Complaint’s factual allegations in the light most favorable to the plaintiffs, this evidence is enough to suggest that Giuliani recklessly accused Freeman of being arrested for election fraud.

There is also sufficient evidence of intentional infliction of emotional distress and civil conspiracy

The Strategic Plan and other conduct provide ample circumstantial evidence of a civil conspiracy between Giuliani and members of the Trump Campaign. The stated goal of the Plan was to engage in a “[n]ationwide communications outreach campaign to educate the public on the fraud” in the election to “inspire citizens to call upon legislators and Members of Congress to disregard the fraudulent vote count and certify the duly-elected President Trump.” Am. Compl. ¶ 58. One of those acts was to accuse Freeman of “ballot stuffing” by rolling out “suitcases” filled with ballots when “press and all third parties were required to leave the premises”—an event the Strategic Plan calls “Suitcase Gate.” Id. ¶ 63. The Plan lists Giuliani and others as “[k]ey [t]eam [m]embers,” Strategic Plan at 7–8, which also suggests that the Plan was a coordinated action. Furthermore, Trump also employed the Strategic Plan’s description of “Suitcase Gate” in his call with Secretary of State Raffensperger, when he alleged Freeman and others “stuffed” ballot boxes with fake ballots hidden in suitcases. Id. ¶ 80–81. A reasonable jury could accordingly infer that (1) Giuliani, Trump, and the “[k]ey [t]eam [m]embers” listed in the Strategic Plan (2) created a plan to sow doubt in the outcome of the 2020 election by (3) launching a misinformation campaign, which included accusing Freeman, Moss, and others of participating in schemes of electoral fraud, and (4) injuring plaintiffs in the process. Plaintiffs have pled a plausible civil conspiracy.

The court set out the harassment suffered by the Plaintiffs

Moss enjoyed her job before Giuliani’s actions, but she eventually left because her “workplace became a toxic environment.” Id. ¶ 159. Moss must order groceries online because she now fears for her life in public. Id. ¶ 160. Like Freeman, Moss has retreated from public and social life because of continued violent threats and harassment. Id. ¶¶ 160–62

Discovery will proceed. (Mike Frisch)

October 31, 2022 in Current Affairs | Permalink | Comments (0)