Sunday, November 11, 2018
The Supreme Court of the Virgin Islands has granted an applicant's petition to sit for the bae examination
This matter comes before the Court pursuant to a June 11, 2018 motion filed by Eddy G. Robert, an applicant for regular admission, which requests that this Court permit him to sit for the July 2018 administration of the Virgin Islands Bar Examination notwithstanding the Committee of Bar Examiners’ May 16, 2018 decision that he is not “a graduate of an accredited law school approved by the American Bar Association.” V.I.S.CT.R. 204(d)(5). Because we conclude that Robert is a graduate of such a law school, we reinstate Robert’s application for regular admission, and shall permit him to sit for the July 2018 administration of the Virgin Islands Bar Examination.
On May 1, 2018, Robert filed an application for regular admission to the Virgin Islands Bar. As part of his application, Robert submitted a Dean Certificate executed by the University of Massachusetts Dartmouth School of Law, along with an official transcript. The Dean Certificate stated that Robert attended the Southern New England School of Law from August 2006 through May 2010 and graduated with a Juris Doctor degree. However, the University of Massachusetts also provided a statement explaining that Southern New England School of Law ceased operations on July 1, 2010, and that the University of Massachusetts assumed control of the school at that time. Although the University of Massachusetts obtained accreditation by the American Bar Association in June 2012, the former Southern New England School of Law had never obtained
such accreditation. However, the University of Massachusetts further stated that “[t]he only significant changes to the curriculum [Robert] completed and our current approved ABA curriculum is a Pro-Bono 30 hour requirement and a 90 credit degree requirement versus 89 credits.
The committee denied him on accreditation grounds.
Robert filed a motion with this Court on June 11, 2018, requesting that this Court permit him to sit for the Virgin Islands Bar Examination by equitably waiving the requirements of Supreme Court Rule 204(d)(5). To support his request, he emphasizes that the University of Massachusetts Dartmouth School of Law is the successor to Southern New England School of Law, that the school obtained accreditation from the American Bar Association two years after his graduation with only minimal changes to the curriculum, and that he was admitted to the Massachusetts Bar after successfully passing the Massachusetts Bar Exam in 2014.
While the Committee focused on whether the former Southern New England School of Law was accredited at the precise moment that Robert graduated, the plain text of Rule 204(d)(5) contains no such requirement. Rather, the rule requires only that one be “[a] graduate of an accredited law school approved by the American Bar Association.” It is undisputed that Southern New England School of Law and the University of Massachusetts Dartmouth School of Law are the same law school, with the University of Massachusetts assuming control of the Southern New England School of Law as a result of a negotiated merger and changing its name...
Because Robert earned his Juris Doctor from the Southern New England School of Law, and that institution is now accredited by the American Bar Association, he has satisfied the educational requirement set forth in Supreme Court Rule 204(d)(5). Therefore, we direct that Robert be permitted to sit for the July 2018 administration of the Virgin Islands Bar Examination. Because Robert satisfies the requirements of Rule 204(d)(5), an equitable waiver of the rule is not necessary, and his motion for equitable waiver shall therefore be denied as moot. We emphasize to both Robert and the Committee of Bar Examiners that our decision herein is limited solely to whether Robert has satisfied the requirements of Rule 204(d)(5) and should not be construed as a holding that Robert has satisfied any other requirement for admission, including that he demonstrate that he is a person of good moral character. See V.I.S.CT.R. 204(d)(3).
A disinherited son lost his legal malpractice case in the Idaho Supreme Court which affirmed the grant of summary judgment by the district court.
The court considered a matter of first impression: the problem of a "hypothetical appeal."
Thomas Lanham (Thomas) appeals from the district court’s dismissal of his legal malpractice action against his former attorney, Douglas Fleenor (Fleenor). Fleenor represented Thomas in a will contest regarding the will of Gordon Lanham (Gordon), Thomas’s father. After the magistrate court ruled against Thomas at the summary judgment stage, Fleenor filed an untimely appeal, which was rejected on that basis.
Because the appeal brought by Fleenor was untimely, Thomas brought a legal malpractice action against Fleenor in district court. Thomas alleged that the failure to timely appeal the magistrate’s ruling proximately caused him financial loss because he had a meritorious appeal that he never got to pursue due to Fleenor’s negligence.
The facts in this case are largely undisputed. On November 16, 2010, Gordon began dictating his Will via an audio recording device. Gordon recorded his Will intermittently on nine separate days, concluding on January 7, 2011. On January 19, 2011, the ten dictated paragraphs were transcribed into his written Will. On February 19, 2011, the Will was signed, witnessed, and notarized. Thomas has not contested the validity of the Will.
In his Will, Gordon explicitly limited the inheritance of Thomas and Thomas’s brother Keith Lanham to one dollar and one wooden bed each.
After Gordon died
Thomas later retained Fleenor to challenge certain portions of the Will. Fleenor filed a motion for summary judgment arguing that the Will failed to properly dispose of the residue of Gordon’s estate (including the subject properties); the effect of which would mean any property not specifically devised would pass to Thomas and Keith as Gordon’s intestate heirs. In response, Judd, acting on behalf of Gordon’s estate, filed a cross-motion for summary judgment arguing Thomas’s claim should be dismissed because Gordon’s intent to disinherit his sons was clear and the Will fully and properly disposed of all of Gordon’s property.
When Thomas lost
Fleenor filed a notice of appeal to the district court on August 13, 2014, forty-nine days after the magistrate’s written judgment was filed. (The time for filing an appeal is forty-two days. I.R.C.P. 83(b)(1)(A).) The district court dismissed the appeal as untimely and found that the June 20, 2014 motion to reconsider did not toll the period for appeal, because the magistrate’s written decision was filed after the motion for reconsideration was filed.
the district court ruled that a determination of whether an underlying, unperfected appeal would have been successful, if pursued in a timely way, was a question of law for the court to decide. (An unperfected appeal giving rise to a legal malpractice suit will be referred to in this decision as a “hypothetical appeal.”)
The court here found that the attorney was properly awarded summary judgment by the district court
Although this Court has decided many legal malpractice cases, it does not appear to have decided one in which the basis for the legal malpractice claim was an unperfected appeal. Consequently, we must decide, as a matter of first impression, if the potential success of a hypothetical appeal is an issue of fact to be decided by a jury, or rather is it a question of law for the court to decide. We conclude, as have twenty-eight other jurisdictions (twenty-seven states and the District of Columbia, 4 RONALD E. MALLEN, LEGAL MALPRACTICE § 33:118 at n.9 (2018 ed.)), that it is a question of law to be decided by the court.
An appeal would have lost
In reviewing the tripartite test set out in Krokowsky each component has been met. Gordon intended to create an unfettered power allowing Judd to distribute his estate “in any way he sees fit”; he granted the authority to his “friend and cousin” Judd Lanham; and he specified the property over which the power existed: “all my personal and real property” not bequeathed in the Will.
The fact that Gordon also clearly and unequivocally disinherited Thomas in the Will supports the conclusion that Gordon intended to convey a general power of appointment to Judd and that he did not want the residue go to Thomas. As Gordon wrote in his Will:
Thanksgiving is over and I just wanted to add to this program that my son, Thomas Everett Lanham, 48 years old, has already been given all he needs to have and that I am going to leave $1 more dollar [sic] against whatever is legal to him and then he is going to be on his own.
Giving Gordon’s Will the technical interpretation Thomas suggests would only frustrate Gordon’s intent.
Thomas is not obligated to pay attorney's fees
In this case, Thomas is not asking this Court to second-guess evidence or findings of fact. The core issue turns on an unsettled question of law. The issue before this Court is a matter of first impression. The Will did not include the phrase “power of appointment.” It was therefore reasonable for Thomas to appeal in order to have an unsettled question of law answered.
Consequently, Fleenor’s request for attorney’s fees is denied.
Shout out to Mike Oths and Concordia Law students who make up our Idaho readership. (Mike Frisch)
Reciprocal discipline of a two-year suspension has been imposed by the New York Appellate Division f or the Third Judicial Department in a matter where New Jersey had imposed a three-month suspension on a revoked attorney
In 2013, respondent's license to practice law in New Jersey was revoked owing to his failure to pay the required fees to the New Jersey Lawyers' Fund for Client Protection for seven consecutive years (see NJ Court Rule 1:28-2 [c]). Subsequently, by May 2017 order, the Supreme Court of New Jersey suspended respondent for a three-month term based upon his 2010 conviction of the offense of lewdness (see NJSA 2C:14-4 [a]) and lengthy record of inappropriate sexual conduct (Matter of Sicklinger, 228 NJ 525, 159 A3d 371 ). According to that order, respondent's suspension was set to take effect upon his application for readmission from his 2013 revocation, which readmission would be conditioned on respondent submitting proof of his sobriety and fitness to practice law as attested to by a mental health professional.
As to sanction
The sexually-based misconduct underlying respondent's conviction in New Jersey warrants a significant sanction as it "diminishes the public's trust in the legal profession and 'evidenc[es] a disregard of the high standards imposed upon members of the bar'" (Matter of Walter, 160 AD3d 1335, 1337 , quoting Matter of Rothschild, 127 AD3d 178, 180 ; see also Matter of Swedick, 81 AD3d at 1033-1034; Matter of McCallig, 79 AD3d at 1360). In aggravation of the misconduct resulting in his conviction, we note that respondent's actions were not isolated to a single incident, as the decision of the Disciplinary Review Board in New Jersey outlines a pattern of inappropriate sexual conduct detailing four separate arrests stemming from respondent masturbating in public (see generally Matter of Walter, 160 AD3d at 1336; see also ABA Standards for Imposing Lawyer Sanctions § 9.22 [c]). Further aggravating respondent's misconduct is his failure to advise this Court and AGC of his New Jersey suspension (see Matter of Graham, 164 AD3d 1520, 1521 n ; Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.13 [d]) and his persistent registration delinquency spanning the last four registration periods.
Our post on the New Jersey proceedings is linked here.
Here, we determine to assess the sanction for respondent’s misconduct solely on the 2010 Bradley Beach lewdness conviction for masturbating in a Quick Chek parking lot. We considered the remaining three matters as aggravating factors, as follows.
The Lake Como lewdness conviction occurred in 2015, long after respondent’s New Jersey license to practice law already had been revoked. The Point Pleasant Beach and Belmar Borouqh incidents did not constitute criminal convictions. Because these matters involved violations of local ordinances, they cannot serve as a basis for imposing a sanction in a motion for final discipline.
We consider, however, in aggravation, that respondent has engaged in a pattern of inappropriate sexual behavior, as demonstrated by the Lake Como, Point Pleasant Beach, and Belmar Borouqh matters...
The four incidents here span a period of eight years, the last one occurring as recently as last summer. For respondent’s years-long pattern of inappropriate sexual conduct, and based on respondent’s seeming indifference to the seriousness of his actions, we determine that a three-month suspension is warranted.
Finally, we are mindful that the sanction imposed on respondent will not become effective unless and until he is reinstated to practice law in New Jersey. Nevertheless, should respondent ever seek reinstatement, we require him to provide proof of both sobriety and fitness to practice law, as attested by a mental health professional approved by the OAE.
Member Gallipoli voted for a one-year suspension with the above conditions. Member Singer voted to censure respondent, with the above conditions. Vice-Chair Baugh and Member Zmirich did not participate.
An attorney who recently entered guilty pleas in state and federal court has been struck from the roll of attorneys by the New York Appellate Division for the Fourth Judicial Department.
WGRZ reported on his recent pleas
Long-time political power broker Steve Pigeon plead guilty to conspiring to illegally cause a $25,000 campaign donation from a foreign source to a New York state official running for reelection.
Investigators say Pigeon assisted one of his clients, a Canadian CEO, in making a campaign donation of $25,000 to a "public official" running for re-election to a statewide office in 2014. That donation was rejected by the campaign because the donor was not a US citizen. Pigeon then had another party, a US citizen and an employee for the Canadian CEO, make the donation. That employee was expected to reimbursed by the CEO. That donation allowed Pigeon and the CEO be granted access to a political fundraising party in New York City.
“Steven Pigeon undermined the transparency and integrity of the electoral process by funneling foreign money into a campaign,” said Assistant Attorney General Brian A. Benczkowski in a release. “The Criminal Division and our law enforcement partners are committed to protecting our electoral process and we will aggressively pursue those who seek to circumvent our campaign finance laws.”
The guilty plea in federal court comes nearly two weeks after Pigeon pled guilty in State Supreme Court.
Pigeon and former State Supreme Court Judge John Michalek were allegedly engaged in favor-swapping. Michalek, who pleaded guilty to state charges, sought Pigeon's help getting jobs for family members. Emails obtained by investigators also indicated the judge wanted Pigeon to put in a good word with Governor Andrew Cuomo about a nomination to be an Appellate Court judge.
Pigeon will be sentenced in January on federal charges.
The state bribery plea is described by Niagara Gazette
A high-profile Western New York political operative has accepted a plea deal in connection with a bribery case involving a sitting judge.
New York State Attorney General Barbara Underwood announced that former Erie County Democratic Party Chairman G. Steven Pigeon entered a guilty plea on Friday to a count of bribery in the third degree, a class D felony.
Pigeon, 58, a longtime local attorney and political consultant, entered the plea before Erie County Supreme Court Judge Donald F. Cerio, Jr.
“Now, he’s being brought to justice,” Underwood said. “We have zero tolerance for public corruption. New Yorkers deserve to be able to trust the integrity of their officials – and my office will continue to do everything in our power to hold accountable those who violate that trust."
According to prosecutors, from February 2012 through April 2015, Pigeon and Michalek exchanged emails and text messages, which reflected that Pigeon offered, conferred, or agreed to confer benefits to Michalek upon an agreement or understanding that Michalek’s official actions would be influenced.
Prosecutors contended that the communication between them showed Pigeon offered Michalek assistance in obtaining employment and appointments to positions for two of his family members and in helping Michalek obtain a judicial appointment to the Supreme Court, Appellate Division, Fourth Judicial Department. Pigeon also gave Michalek and his family member two free tickets to box seats for two separate Buffalo Sabres hockey games and gave one of Michalek’s family members a free ticket to a $1,000 political fundraiser.
During the same time, Pigeon engaged in what prosecutors described as "ex parte communications" with Michalek concerning multiple lawsuits pending before Michalek in which Pigeon had an interest.
On June 29, 2016, Michalek pleaded guilty in connection with the same scheme, for receiving bribes from Pigeon and filing a false document with the New York State Office of Court Administration. He is awaiting sentencing. Following his conviction, Michalek resigned from the judiciary and was disbarred.
Pigeon's plea is also in satisfaction of the December 2017 indictment against Pigeon for crimes under the New York State Election Law relating to illegal campaign coordination during the 2013 Democratic primary races of two candidates for the Erie County Legislature. The Attorney General's prosecution of Kristy Mazurek and David Pfaff remains ongoing.
Judge Cerio set Dec. 21, 2018 for sentencing for Pigeon, who was allowed to remain free on $10,000 bail. His passport was confiscated at his arraignment. Pigeon faces up to one year in jail. Pigeon will also lose his law license.
The Tennessee Supreme Court has posted videos of oral arguments held in October 2018.
Of possible interest
Dialysis Clinic, Inc. v. Kevin Medley, et al.-This case considers whether the attorney-client privilege applies to communications between an attorney and a corporate client’s third-party agent. The trial court in this case denied the defendant’s motion to compel the production of roughly 200 emails based on attorney-client privilege. The defendants argue that the trial court denied them their procedural due process rights and that there is an absence of law regarding the standards for determining third-party agency privilege in Tennessee. In response, the plaintiff argues that the trial court properly held that communications by and between plaintiff’s counsel and the third party were protected by the attorney-client privilege. The plaintiff also argues that the Tennessee Supreme Court already has determined attorney-client privilege as it pertains to a third-party agent.
Saturday, November 10, 2018
Another recent California disbarment reported in the California Bar Journal involves a Texas attorney who also practiced psychiatry
From the recommendation of the State Bar Court Hearing Department
Between February 1, 1981 and August 28, 2015, respondent was a board licensed psychiatrist in Texas, license no. F-9026.
In 2010, the DEA, while monitoring the prescription writing habits of numerous doctors statewide, focused on respondent based on complaints by local pharmacies that respondent was writing an inordinate number of prescriptions for pain- treatment narcotics and other controlled substances that were not related to medical specialty as a psychiatrist.
He wrote prescriptions for two undercover DEA agents where there was "no medical need" to do so.
The attorney was subject to discipline by the Texas Medical Board on a variety of issues and a series of criminal indictments in Texas for a variety of alleged crimes.
He twice was criminally charged with sexual assault on a patient. The prescription writing led to a felony conviction.
These actions were not reported to California authorities as required by rule.
The State Bar Court Review Department concluded that the misconduct as a Texas psychiatrist merited disbarment notwithstanding his 34 years of discipline-free legal career.
Information on his Texas resignation can be found here.
DailyTrib.com had the story of his losing his Texas medical license.
And to complete the coast-to-coast reverberations, we have a 2015 decision of the New York Supreme Court on his medical license revocation there.
Petitioner, a board-certified psychiatrist, resides in Texas but has been licensed to practice medicine in New York since 1967. In February 2013, the Bureau of Professional Medical Conduct initiated a referral proceeding against petitioner based upon disciplinary actions taken against him in Texas. Specifically, the Texas Medical Board found in 2009 that petitioner had engaged in a sexual relationship with a patient. Pursuant to an agreed order, petitioner was publicly reprimanded for his conduct and directed to both successfully complete a course in professional boundaries and pay an administrative penalty of $3,000. The Texas Medical Board further found in 2011 that petitioner had failed to maintain adequate medical records for four of his patients, and he consented to an order directing him to successfully complete continuing medical education courses related to medical recordkeeping...
Turning to the issue of the penalty imposed, “the refusal to accept responsibility for prior wrongful conduct is a significant factor in assessing an appropriate penalty,” and the record reflects that the ARB appropriately considered that issue in deciding to revoke petitioner's license (Matter of Celestin v. Novello, 43 AD3d 545, 546  ). Moreover, this Court has repeatedly held that the penalty of license revocation is appropriate in cases where a physician engages in sexual misconduct, and we do not find its imposition here to be “so incommensurate with the offense as to shock one's sense of fairness” (Matter of D'Amico v. Commissioner of Educ. of State of N.Y., 167 A.D.2d 769, 771 ; accord Matter of Singh v. New York State Dept. of Health Bd. of Professional Med. Conduct, 74 AD3d at 1393).
The sanction was proposed by the California State Bar Court Hearing Department for domestic assault based on these facts
On January 15, 2017, Respondent physically attacked his wife causing her to break her wrist. He then threw Vitamin bottles at her, striking her body. Thereafter, on January 16, 2017, Respondent vandalized his home using a wooden sword, dragged his wife by the shirt, placed her against the wall, and punched the wall next to his wife’s face two times. Respondent then threw pillows at his wife’s head.
On January 29, 2017, Respondent forced his wife to get on her knees and ask for forgiveness. Respondent then repeatedly hit his wife’s stomach, torso, cheek, and top of her head with a wooden stick. He repeatedly struck his wife’s face with his hand, grabbed his wife’s hair and shook her head causing her to become dizzy. Resp0ndent’s wife was scared for her life and thought Respondent may kill her. After the attack, Respondent remarked, “Thank you for making me a wife beater.”
On February 25, 2017, Respondent caused his wife to feel threatened after he placed a paper target riddled with bullet holes above her bed.
He was charged with various crimes
On May 31, 2017 , Respondent pleaded guilty to all six charges and was sentenced to three years of formal probation, 212 days in jail, a batterers’ treatment program, and eight hours of community service, among other conditions.
The attorney defaulted on the bar charges. (Mike Frisch)
Friday, November 9, 2018
A fascinating (and frankly disturbing) tale is told in a recent report and recommendation for a reprimand adopted by the New Jersey Supreme Court.
I recently posted some criticism of a District of Columbia decision as unduly considerate of the interests of lawyers over the protection of the public.
The disposition of that case was an unfortunate byproduct of a rogue hearing committee and not reflective of a court that almost invariably strikes an appropriate balance between the competing interests posed in bar discipline matters.
Things are far worse in New Jersey.
The Disciplinary Review Board recounts an attorney's interactions with the law practice of his deceased best friend and his rather curious formation of a formal law partnership at or about the time he died.
Respondent and Keith Burns, Esq. were best friends, who enjoyed a relationship forged in the 1990s, during their hectic, overlapping New Jersey municipal court practices. Respondent fondly described their friendship, recounting their daily telephone conversations; parallel interests including golf, baseball and gambling; and joint family vacations. Burns was both a certified civil and matrimonial attorney, and focused his practice primarily on divorce cases.
When Burns received his fatal diagnosis, Respondent (with the consent of the law that employed him as an associate) began to assist Burns
In October 2010, respondent began assisting with Burns Law work, with the consent and support of Garces & Grabler. In April 2011, respondent moved into the Burnses’ home in Chester. He was going through a bitter divorce, needed a place to live, and was willing to help [Burns's wife] Angela care for Burns.
There was disputed testimony as to whether Respondent and Burns became partners as nothing was reduced to writing.
The findings on that key issue (as they so often do in bar discipline) favored the accused attorney.
On June 4, 2011, Burns died. Respondent testified that, by this time, he "was running the law practice" known as Burns Law. Respondent conceded, however, that he was formally associated with Burns, at most, from May 31 to his death on June 4, 2011.
On June 14, 2011, ten days after Burns’ death, respondent formed Burns & Speck Attorneys at Law, LLC (Burns & Speck), of which he was the sole owner. The firm used the same office, in Iselin, that Burns Law had occupied.
He assumed control over the Burns Law practice, taking over the firm's accounts receivable and debts owed.
Respondent did manage to persuade a court to appoint him as the attorney-trustee for Burns Law.
Despite the overtures that respondent had made to the court in his appointment request, he neither conducted an accounting of Burns Law’s assets and debts, as required of an attorney-trustee, nor paid any of Burns Law’s fee arbitration or client debts.
Angela learned of the court appointment when respondent locked her out of the law offices.
The specific charges involved estate funds that had been held in the Burns trust account for many years.
The board rejected the Office of Attorney Ethics efforts to establish disbarable conduct
Given the unique circumstances of this case, where respondent was attempting to navigate (i) the formation of a new law firm (2) the assumption of Burns Law’s debts and continuing client obligations; and (3) the death of his best friend all within a relatively short period of time, we conclude that the OAE’s Siegel theory of knowing misappropriation is not supported by clear and convincing evidence. Rather, respondent’s conduct, while not on all fours given the unique facts of this case, was most akin to the facts of Bromberg, in that respondent had a reasonable belief of entitlement to use the funds, based on his partnership interest in Burns & Speck.
Unique circumstances is putting it mildly.
And isn't there a wee problem with establishing and assuming a partnership with a dead man?
The widow Burns certainly thought so.
Angela maintained, however, that the partnership had never actually been formed. Moreover, she testified that respondent had promised her that he would take care of her., representing that she would receive about $100,000 after he wound down Burns Law. Over time, she claimed, that $100,000 promise shrunk to $65,000, then to $50,000, and, ultimately, respondent claimed that she actually owed the firm money.
The DRB bought his story and excused his conduct as they put it as occurring
In the fog within which he was operating.
Perhaps a fog of his own making but the key finding absolved him
Given our finding that a partnership existed between Burns and respondent, prior to Burns’ death, we further determine to dismiss the charges that respondent’s use of the firm name "Burns & Speck" on letterhead and advertising.
As per usual in New Jersey DRB matters, member Gallipoli sees through the fog
Member Gallipoli voted to recommend respondent’s disbarment, finding that respondent offered no evidence of entitlement to the Katenkamp funds that he took, which he understood to be legal fees earned by Burns decades prior to the formation of their partnership. Given those circumstances, Member Gallipoli concluded that respondent’s wielding of the partnership agreement with Burns, as a sword, to defend the Wilson charge, while providing sworn testimony that he believed the Katenkamp funds were a legal fee earned by Burns, leads to the inescapable conclusion that respondent must fall on that sword.
In New Jersey, disciplinary swords are converted into plowshares.
If Member Gallipoli's views held sway, the legal profession in New Jersey would be far more honorable.
Note: The links do not seem to work. The case is Matter of Michael Speck. (Mike Frisch)
In the preceding post, we reported that the Iowa Supreme Court suspended an attorney for the premature taking of a probate fee to which he had a colorable cliaim.
In an unrelated case, the court revoked the license of an attorney who took fees without such a claim and engaged in other misconduct
Moran collected flat fees from both CDL Consultants and from Tharp. There is no evidence that he deposited the funds into a client trust account. Moran subsequently performed little to no work on many of the cases. He ceased communicating with his clients, resulting in missed court appearances. His clients suffered harm as a result, including loss of their commercial driver’s licenses and employment...
Moran converted client funds for his own personal use. His behavior is antithetical to the standards of ethics and professionalism we demand from Iowa attorneys, and we agree with the commission and Board that revocation is the appropriate sanction.
The CDL representation
CDL Consultants provides safety and compliance services to motor carriers and professional drivers nationwide. As part of its services, CDL Consultants hires attorneys to represent its customers who have received traffic citations that may affect their commercial driver’s licenses. The goal of the legal representation is to resolve the citations in a manner avoiding loss of driving privileges and employment. CDL Consultants hired Moran to represent its customers who received traffic citations in Iowa.
He performed badly (or not at all)
Complaints against Moran were made by thirty-four professional drivers in thirty-five cases (one driver had two separate cases). Moran pocketed fees totaling $6900 from CDL Consultants to represent these clients. In four cases, Moran failed to enter an appearance or take any action. In nine cases, Moran entered an appearance and plea of not guilty, but then failed to perform further work or notify the clients of court dates, leading to their convictions when no one appeared for trial. In twenty-two cases, Moran entered guilty pleas without the client’s consent.
The Tharp matter involved a child custody claim. (Mike Frisch)
The Iowa Supreme Court suspended an attorney for his premature taking of probate fees
This attorney disciplinary proceeding requires us to address the recurring problem of attorneys who take premature probate fees. Before work was completed on an estate—in fact, over a year before the final report was filed and the court costs were paid—an attorney billed and collected the second half of his probate fee. Notably, the attorney had been publicly reprimanded for the same type of misconduct just a year and a half earlier.
The Iowa Supreme Court Attorney Disciplinary Board (Board) charged the attorney with violating several rules, including Iowa Rules of Professional Conduct 32:1.5(a) and 32:1.15(c). The parties stipulated to facts and rule violations and jointly recommended a thirty-day suspension in light of the attorney’s recent, prior reprimand for the identical misbehavior. The Iowa Supreme Court Grievance Commission agreed with that recommendation and passed it along to us. We, too, find violations of rules 32:1.5(a) and 32:1.15(c) and agree with the recommended sanction. Accordingly, we impose a thirty-day suspension on the attorney’s license to practice law in Iowa.
The attorney was admitted in 1986 and practiced in Spirit Lake
This case centers on Saunders’ actions at the end of 2015. Saunders knew that the Steven Wallace estate was not yet closed, work remained to be done, the final report had not been filed, and the costs had not been paid. Nevertheless, he demanded early payment of his remaining fee. After getting some pushback from the client, Saunders offered a slight discount for this not-yet-due payment. When he received the $7500.00 he had unjustifiably demanded, Saunders deposited it into his business account, not his trust account.
He stipulated to the misconduct, which violated governing probate rules.
This case presents an important aggravating factor. On June 30, 2014, just a year-and-a-half before the misconduct at issue in this case, Saunders had received a public reprimand for essentially the same misconduct. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Nelissen, 871 N.W.2d 694, 701 (Iowa 2015) (finding a recent public reprimand for similar misconduct to be “a significant aggravating factor”). According to the Board’s letter of reprimand, Saunders took the second half of an ordinary probate fee at least three years before costs were paid and the final report was filed. The Board concluded that Saunders’ conduct violated rule 32:1.5(a) and publicly reprimanded him.
His substantial experience was also an aggravating factor. (Mike Frisch)
A divided Indiana Supreme Court rejected a convicted murderer's claim that he should be granted relief for the alleged ineffectiveness of both trial and appellate counsel
While Weisheit’s trial counsel made mistakes and could have done things better, counsel’s performance was not deficient. In any case, Weisheit has not demonstrated that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Accordingly, Weisheit’s ineffective assistance of trial counsel claims fail.
Weisheit’s ineffective assistance of appellate counsel claim also fails because appellate counsel’s performance was not deficient. Counsel made a reasonable decision to quote certain language from the transcript although it is not Weisheit’s preferred quotation. Further, given the similarities between the language chosen and the language not chosen and this Court’s thorough review of relevant portions of the record, Weisheit has not demonstrated prejudice.
Finally, we note that in the post-conviction court’s 81-page order, some of its findings seem to contradict its ultimate conclusions. However, after an exhaustive review of the record and in light of our standard of review that requires us to affirm the post-conviction court unless there’s no way within the law it could have come to the result it did (Stevens, 770 N.E.2d at 745), we believe the post-conviction court came to the right conclusion on all issues. Thus, we affirm the post-conviction court.
Justice Slaughter concurred
I agree with the Court that Weisheit is not entitled to post-conviction relief, and that the trial court’s judgment upholding his convictions and death sentence should be affirmed. But I reach that result for different reasons. Unlike the Court, I conclude that trial counsel’s performance during the penalty phase was deficient, but that Weisheit failed to show prejudice.
On the performance issue, I share the dissent’s view that Weisheit’s trial counsel were deficient during sentencing for all the reasons the Chief Justice outlines in her thoughtful and thorough opinion. Counsel’s performance was indeed substandard and not the product of reasonable professional judgment or strategic choice in three respects: failure to pursue the Boys School records, failure to call Dr. Harvey about testifying for Weisheit, and failure to lay a proper foundation and make a clear offer of proof for Aiken’s testimony.
Chief Justice Rush concurred and dissented
There is no question that the murders of Alyssa and Caleb were unequivocally horrific. And Weisheit’s guilt for those disturbingly reprehensible crimes is clear. I thus agree with my colleagues that Weisheit has no right to a new trial on his guilt. His convictions should stand.
I also agree that Weisheit’s many claims of ineffective assistance at the penalty phase of trial fail individually. But in my view, Weisheit has met his burden on his cumulative-effect claim.
“[D]eath is different,” Ring v. Arizona, 536 U.S. 584, 606 (2002), and the “qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed,” Lowenfield v. Phelps, 484 U.S. 231, 238–39 (1988) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)). See Monge v. California, 524 U.S. 721, 732 (1998). Here, the evidence and the post-conviction court’s findings compel the conclusion that counsel’s penalty-phase performance suffered multiple deficiencies. While none of those deficiencies, in isolation, is prejudicial enough to warrant relief, in the aggregate, they deprived the jury of enough essential information about Weisheit’s background and mental health that his death sentence is not as reliable as the constitution requires.
Tristatehomepage reported on the sentencing. (Mike Frisch)
A disbarred attorney is now a permanently disbarred attorney per an order of the Louisiana Supreme Court.
The disbarment came on the heels of a disciplinary probation gone wrong
In October 2015, the ODC filed formal charges against respondent, alleging that he settled a personal injury case for $52,500 without his clients’ consent, forged his clients’ signatures on the settlement documents, misled his clients as to the status of the case, failed to disburse the settlement proceeds to his clients for five years, failed to reduce the contingency fee agreement to writing, and made cash withdrawals from his client trust account. In November 2017, we disbarred respondent for this misconduct.
But another complaint surfaced
The record in this deemed admitted matter supports a finding that respondent forged his client’s signature on a settlement check, converted $75,000 in client funds, misled his client and his co-counsel about the conversion, fabricated documents to conceal the conversion, failed to account for or make restitution of the converted funds, and failed to cooperate with the ODC in its investigation, including lying to the ODC in his written response to the disciplinary complaint. Respondent’s misconduct is a clear violation of the Rules of Professional Conduct as alleged in the formal charges.
When respondent engaged in the instant misconduct, the ODC had already filed formal charges against him Fontenot II. Despite having received notice that his conduct addressed in Fontenot II was problematic, respondent engaged in the instant similar conduct by forging the client’s signature on the client’s settlement check and failing to disburse $75,000 of the client’s funds to the client. Under these circumstances, it is highly likely respondent will continue to engage in this type of misconduct in the future if given the opportunity. Therefore, we find permanent disbarment is warranted in order to protect the public and maintain the high standards of the legal profession.
Thursday, November 8, 2018
A Connecticut attorney's trust account overdraft led to the filing of a presentment (i.e. bar charges).
The attorney sought to appeal the presentment on alleged due process grounds, leading to this rejection from the Connecticut Appellate Court
This court’s decisions in Miniter and Rozbicki are dispositive of the plaintiff’s appeal to this court. In both cases, this court, in holding that an order of presentment is not a final judgment for the purposes of appeal, stated: ‘‘An order of presentment is an initial step in disciplinary proceedings against an attorney. Following the filing of a presentment complaint, a hearing on the merits is held after which the court renders judgment on the presentment complaint. See Practice Book § 2-47 (a). The committee’s decision directing that a presentment be filed in Superior Court is interlocutory in nature and not a final judgment from which an appeal to the Superior Court lies.
The statewide bar counsel filed a grievance complaint, dated July 28, 2014, against the plaintiff, an attorney, alleging that he overdrafted funds from his IOLTA account. After an audit and a full hearing, the reviewing committee found by clear and convincing evidence that the plaintiff committed unethical conduct and violated rules 1.15, 1.3, and 8.4 of the Rules of Professional Conduct, as well as Practice Book § 2-27. On November 20, 2015, the reviewing committee, pursuant to Practice Book § 2-35 (i), ordered that the
plaintiff be presented to the Superior Court. On February 3, 2016, the Chief Disciplinary Counsel filed a presentment against the plaintiff.
The Ohio Supreme Court has suspended a former magistrate for six months for work-related misconduct
...disciplinary counsel, alleged that while serving as a magistrate in the Cuyahoga County Court of Common Pleas, Juvenile Division, Wochna violated the Code of Judicial Conduct and the Rules of Professional Conduct by failing to accurately report his work hours and leave on his timecard.
The parties entered into stipulations of fact, misconduct, and aggravating and mitigating factors and jointly recommended that Wochna be suspended from the practice of law for six months, all stayed on condition. Based on those stipulations and the evidence adduced at the hearing, a panel of the Board of Professional Conduct agreed that Wochna committed the charged misconduct and found that the parties’ recommended sanction was reasonable and appropriate. The board adopted the panel’s report and recommendation, and no objections have been filed.
We adopt the board’s findings and recommended sanction.
As a magistrate, Wochna was required to work eight hours a day, 40 hours a week. If he worked less than eight hours a day, he was required to use his accrued leave time to make up the difference. Pursuant to the juvenile court’s flexible-schedule policy, Wochna submitted a request to work from 7:00 a.m. to 3:00 p.m. beginning in December 2015. The court approved his request.
But flexibility has its limits
Following a September 2016 disciplinary hearing conducted by his employer, Wochna was found to have violated seven workplace rules prohibiting (1) falsification of documents, (2) dishonesty and misrepresentation, (3) misuse or theft of county property, (4) conduct unbecoming a court employee, (5) job abandonment and/or failure to report for duty as scheduled, (6) leaving one’s work area without permission, and (7) other acts of misfeasance, malfeasance, or nonfeasance. The court terminated his employment effective October 3, 2016.
The District of Columbia Court of Appeals has in a per curiam decision affirmed the most pro-attorney, anti-public protection recommendation in the history of the D.C. discipline system .
As a consequence, attorneys who clearly engaged in a gross conflict of interest get off scot-free for horrific elder abuse.
A hollow tsk tsk is all the court can muster
In sum, although we fully understand Disciplinary Counsel’s concerns about the Szymkowiczes’ conduct in this case, we accept the Board’s conclusion that the Szymkowiczes were not shown by clear and convincing evidence to have violated Rule 1.7.
The court majority's "full understanding" offers faint if no hope to future victims. And does nothing to instruct the Bar and public on the ethics of elder care abuse.
Rather, the court's discussion of burden shifting has no practical consequence but to tie the hands of Disciplinary Counsel in proving conflicts.
There is no case in the history of the D.C. disciplinary where a hearing committee, the board and the court so studiously ignored the proven facts to achieve the desired result
The lone voice of concern can be found in the dissent of Senior Judge John Steadman
I disagree that the structure of criminal law presents a fair analogy. Bar discipline proceedings are designed to ensure that attorneys abide by the rules of professional conduct that their license demands and to protect the public accordingly.
From my earlier post on this case
The evidence in the case supports a conclusion that the attorneys, in the course of representing the woman's son, purported to represent her as well and caused her to execute a series of documents giving control or complete ownership of her property to him. The result was the significant depletion of the woman's financial resources (and she paid for the ensuing litigation brought in her name), the withdrawal of two of the attorneys after a judge had raised the conflict issue and a court determination by one of the most respected jurists in the District of Columbia that the woman had not been competent to sign the documents that the attorneys had drafted for the benefit of the son.
After they withdrew, the two attorneys continued to stage-manage the dual representation by hiring and paying successor counsel (with the woman's money) and drafting legal documents for the woman's signature.
The hearing committee, throughout its report, repeatedly states that there was "no evidence" of any ethical violations. In fact, there was the testimony of twelve witnesses called by Bar Counsel and the orders of Superior Court judges that provided compelling evidence of the charged misconduct. The hearing committee simply chose to ignore it.
The injustice perpetrated in these disgraceful proceedings was a direct result of the court and board's unwarranted deference to the dereliction of duty of the hearing committee as I blogged
When I read the report, I wondered about the background of the committee chair and surprise, surprise: He's an elder care lawyer. He signed (and presumably authored) an opinion that makes it nearly impossible to prosecute lawyer elder abuse. A classic "fox guards henhouse" approach to bar discipline.
And then, this from the committee chair's law partner hits my in box:
My partner, John Quinn, chaired a Board on Professional Responsibility panel which decided the attached case against Bar Counsel and in favor of the lawyers involved.The case spanned several years and the opinion is 219 pages. It is the only case known to the Hearing Committee that squarely deals with the difference between legal compentency and legal capacity. I recommend reading it in that it involved charges of Bar Counsel of conflicts of interest, dishonesty, fraud and other ethical violations against several attorneys alleging that they represented a client who Bar Counsel alleged was "incompetent…suffered from cognitive impairment..and memory problems." The report cites the relevant cases and other authorities that are pertinent and useful to practitioners.
I find this shocking, but at least it makes the agenda of this report crystal clear: protect the profession, trash the victim of misconduct (and discourage other victims from coming forward), make future Bar Counsel prosecutions virtually impossible and use the whole thing as a marketing tool.
It also is noteworthy that it took the hearing committee over 2 1/2 years to produce this whitewash, notwithstanding a rule that requires that the report be filed within 120 days of the close of the hearing.
In its wisdom, the board refused to consider the above email. Ignoring it was more convenient.
During the pendency of these proceedings, I reached out to respected members of the probate bar who uniformly expressed horror at what these lawyers did but were reluctant to speak out in public.
This is - simply put - Exhibit One in anyone's indictment of the "self-regulating" District of Columbia legal profession.
A very disappointing day.
Update: I posted this comment after reading a New Jersey decision
The disposition of [this] case was an unfortunate byproduct of a rogue hearing committee and not reflective of a court that almost invariably strikes an appropriate balance between the competing interests posed in bar discipline matters.
That needed to be said here. (Mike Frisch)
A justice of the Massachusetts Supreme Judicial Court ordered a suspension of an attorney for misconduct in three matters.
From the summary on the Board of Bar Overseers web page is a finding of "failing to provide fee agreements that complied with ethical rules" anong other conclusions.
The problem was a "hybrid" contingent fee
In the second case, a client retained the respondent in connection with a civil claim arising from an automobile repair. The respondent prepared, and he and the client executed, a hybrid flat fee agreement and contingent fee agreement that did not comply with the Mass. R. Prof. C. 1.5(c). The client paid $500 at the commencement of the representation. Over the course of the litigation, the respondent failed to communicate adequately with the client and failed to act with diligence in connection with the litigation. The client terminated the respondent’s services and requested a refund of her fee. The respondent failed to respond or to refund the unearned portion of the fee.
In the third case, the client retained the respondent to represent him in collecting a judgment from a former tenant. The respondent prepared, and he and the client executed, a
hybrid flat fee agreement contingent fee agreement that did not comply with Mass. R. Prof. C. 1.5(c). and the client paid $1,500 at the commencement of the representation. During the litigation, the respondent failed to serve the defendant with the collection action. The defendant died suddenly and the client tried for several weeks to contact the respondent. The respondent failed to respond. The case was dismissed for lack of service of process. The client requested that the respondent refund the $1,500 and return his file. The respondent failed to respond or to refund the unearned portion of the fee.
Massachusetts Rule 1.5(c) provides in pertinent part
A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. Except for contingent fee arrangements concerning the collection of commercial accounts and of insurance company subrogation claims, a contingent fee agreement shall be in writing and signed in duplicate by both the lawyer and the client within a reasonable time after the making of the agreement.
Wednesday, November 7, 2018
In re Karen Cleaver-Bascombe is one of key sanction cases in the District of Columbia disciplinary system.
The respondent had submitted false vouchers for payment in court-appointed criminal cases and presented false evidence in the bar discipline hearing.
After much back-and-forth on sanction, the Court of Appeals rejected a proposed two-year suspension with fitness and ordered disbarment, expressing the view that the false evidence merited the ultimate sanction.
Whenever the Court ratchets up a Board on Professional Responsibility sanction, it's an important precedent (my favorite here).
This is true because the Court (mistakenly, in my view, but pursuant to rule) defers to the board on sanction and thus grants the board great discretion.
The respondent (now petitioner) has tried twice to achieve reinstatement. The most recent attempt has been firmly rebuffed by an Ad Hoc Hearing Committee.
The committee noted
During Petitioner’s period of disbarment, she repeatedly engaged in conduct bearing a striking resemblance to that for which she was disbarred – namely submitting false information on court forms for financial gain.
The misconduct was a false statement of financial affairs in a bankruptcy
Petitioner did not disclose on the SOFA that on August 22, 2012, approximately three weeks before filing the bankruptcy petition, Petitioner sold real estate located at 1806 Monroe Street, N.W., Washington, D.C. for $990,000.00 (Monroe Street transfer), and netted $127,666.26 from the sale. (DCX 9 at 2.) She deposited the proceeds into her personal checking account the next day, August 23, 2012, and by September 4, 2012, Petitioner withdrew at least $110,000 to pay expenses related to a construction project in Jamaica.
When that conduct was uncovered
the bankruptcy court dismissed the bankruptcy proceedings on December 6, 2012, with prejudice.
The committee rejected her inadvertance claim
We do not find credible Respondent’s explanation that she submitted an erroneous bankruptcy petition because she failed to read the SOFA form. The SOFA contains 25 questions on eight pages.
There was also job-related misconduct
During her period of disbarment, Petitioner was employed from October 2009 to May 2015, as a Civil Rights Investigator and Examiner at the United States Department of Agriculture (USDA). (DCX 2 at 4 (Petitioner’s Reinstatement Questionnaire, Question 4); (Tr. 69:6-9).) While at USDA, Petitioner violated USDA policy by using her government-issued business cell phone to make excessive personal international phone calls. Indeed, Petitioner admitted to making the phone calls (Tr. 69:21-70:4), and the evidence showed that USDA issued Petitioner a cell phone with instructions to use it only for work-related purposes, and limited personal calls.
Here, too, her explanation failed to persuade
Even at the hearing, Petitioner resisted taking responsibility for the unauthorized cellular bill. Initially, she testified that the calls may have been the result of a “purse dial” or “butt dial” but she “manned up and paid [the bill]” because the calls were made from her phone.
The burden of proof for restoring the license was not met
Given Petitioner’s equivocating testimony at the hearing, misleading statements at the October 12, 2012 bankruptcy creditors’ meeting about the actions that led to her disbarment, and the lack of knowledge by two of her witnesses of her specific misconduct, we find that, while earnestly making expressions of remorse, Petitioner has failed to present clear and convincing evidence that she recognizes the seriousness of her misconduct. Indeed, the evidence presented at the hearing shows that Petitioner does not recognize the seriousness of her misconduct. Petitioner cannot minimalize or deflect her wrongdoing when she believes it may best serve her.
The recommendation can be found here. (Mike Frisch)
The District of Columbia Board on Professional Responsibility concludes that a sex offense inherently involves moral turpitude and merits disbarment.
News Leader reported on the crime.
A former Department of Defense official ensnared last spring in a covert online sting operation by Staunton police is headed to prison for five years following his convictions Monday on sex charges.
Dan Haendel, 64, of Fairfax, entered Alford pleas to charges of attempted indecent liberties with a minor and use of electronic means to solicit sex from a child. An Alford plea acknowledges there is enough evidence for a conviction but does not admit guilt.
After hearing the evidence in Staunton Circuit Court, Judge Charles Ricketts III convicted Haendel.
Haendel is a former Army prosecutor and was serving as a senior executive with the Defense Technology Security Administration in Washington with the Department of Defense when arrested, according to previous testimony. Court records stated he earned $167,000 per year.
Anne Reed, an assistant Staunton prosecutor, said Haendel made contact in April with an undercover police officer posing online as a 13-year-old girl in an operation that was targeting online sexual predators.
Using the name "Ned James" and telling the fake teen he was an "older military guy looking for lots of fun," Haendel took the bait and had numerous online conversations with the undercover police officer, Reed said. There were several references to sex, and Haendel also asked about the girl's breast size, her menstruation and suggested they watch pornography together.
Haendel also referenced two movies the girl should watch, "Knocked Up" and "American Beauty," the latter portrays an older man's infatuation with a high school cheerleader.
Haendel made arrangements to meet the fake teen at Gypsy Hill Park in Staunton, where he was arrested May 7 by police who were waiting for him. Officers seized two DVDs, alcohol and condoms.
Following his arrest, Reed said Haendel told police, "I made a mistake."
In a previous court filing, it was noted that Haendel has had symptoms consistent with post-traumatic stress disorder since the terrorist attacks of Sept. 11, 2001, which included an attack on the Pentagon. Haendel was in the Pentagon's fourth ring and was "very close to where the aircraft struck," the filing stated. The Pentagon was hit by an American Airlines passenger plane, one of four hijacked by terrorists that day.
In a letter written to the court, a friend of Haendel's noted he graduated with a law degree from the University of Pennsylvania in the 1970s, got a master's degree and a Ph.D., all within five years at the Ivy League school. The letter also noted he held the highest DOD security clearance.
In a plea agreement with the Staunton prosecutor's office, Haendel was sentenced to five years in prison and placed on 10 years of probation.
The board report may be accessed here. (Mike Frisch)
The Louisiana Supreme Court followed the recommendation of its Attorney Disciplinary Board and disbarred an attorney who had littered the landscape with bad checks
The board determined respondent violated duties owed to the public, the legal system, and the legal profession. She acted knowingly and intentionally by issuing multiple worthless checks over a three-year period, using worthless checks to pay for office furniture and for law firm employee wages, and failing to appear in criminal court, remaining a fugitive. Her misconduct caused actual harm to her employees, members of the public, and the legal profession. Much of the harm she caused has not been rectified. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is disbarment...
The record of this matter supports a finding that respondent engaged in a pattern of issuing worthless checks over a three-year period and presented a check drawn on a closed account in the name of her mother to pay for office furniture. This conduct amounts to a violation of the Rules of Professional Conduct as charged. Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct.
Tuesday, November 6, 2018
An attorney admitted in 1969 should have his license revoked rather than be permitted to resign per a decision of the Tribunal Hearing Division of the Upper Canada Law Society.
The misconduct was indeed grave
The Lawyer was an active volunteer with the Catholic Church. In 2003, he was asked to serve as Chair of the Cemetery Committee for the St. Patrick’s Roman Catholic Cemetery of the Archdiocese of Ottawa.
Mr. Houlahan, as Chair, had specific financial duties. These included ensuring payments were made into a perpetual care account, filing tax returns and otherwise ensuring annual financial, auditing and reporting requirements were met.
In 2011 the Director of Cemeteries for the Archdiocese became concerned about compliance with these requirements and requested that Mr. Houlahan turn over the financial records for the cemetery. The Lawyer did so.
Mr. Houlahan was subsequently removed from his position. The Roman Catholic Episcopal Corporation of Ottawa (the “Complainant”) filed a complaint against him with the Law Society. It also initiated a civil suit claiming damages for deceit, conversion, negligence, and breach of fiduciary duties.
Deloitte & Touche was retained by the Complainant to conduct an audit. Their report was completed in 2012. It concluded that a considerable amount of cemetery money ($365,871) appeared to have been mishandled during the Lawyer’s tenure. Roughly $250,000 of this amount went to the Lawyer, apparently for his personal benefit.
The audit revealed
Mr. Houlahan was paid honorariums even though he was serving as a volunteer.
Mr. Houlahan failed to make deposits of approximately $173,695 into a cemetery care and maintenance trust fund as required by the Funeral, Burial and Cremation Services Act, 2002, SO 2002, c. 33.
Mr. Houlahan had not filed annual income tax, audit or other financial reports for the cemetery.
Portions of the unsupported payments to Mr. Houlahan had been allocated to the operating expenses of his legal practice. These payments included phone and cell phone, internet, insurance, cable, personal credit cards, accounting services and wages for his legal assistants.
Mr. Houlahan has engaged in theft over many years. This was not an isolated incident or singular act of human frailty. It started in 2003 and did not conclude until 2011. That was when Mr. Houlahan was removed from his position.
Mr. Houlahan took for his personal benefit $173,695 that was required by law to be placed in a trust fund. That fund was meant to pay for the perpetual care and maintenance of the cemetery for which he was responsible.
This conduct eventually came to the attention of the police and criminal charges resulted in 2014. Mr. Houlahan did not advise the Law Society, even though he was aware he was required to do so. He retained his status as a practising lawyer until 2016.
His actions were egregious. They were planned, calculated, deliberate and ongoing over the course of years. There is no compelling medical evidence explaining why this may have occurred. There is no evidence of duress or mitigating financial distress of the sort described in Bishop.
By any measure the nature and extent of such serious dishonesty call for the presumptive penalty of revocation, absent exceptional circumstances. This is compelled by the need to ensure public confidence in the legal profession and promote general deterrence.
Mr. Houlahan has argued that exceptional circumstances exist, which should allow him to resign. He has been a good lawyer for 48 years as reflected by his character references. He pled guilty and made some restitution. His health is poor. He has been ruined financially. He has retired and has no intention of working as a lawyer again.
We have sympathy for Mr. Houlahan’s current medical difficulties. We appreciated receiving his character references. We acknowledge his acceptance of guilt and attempt to make some restitution. However, to our minds, none of these go beyond normal mitigating factors so as to establish exceptional circumstances that could lead to a deviation from the presumptive penalty.
Mr. Houlahan’s current unfortunate situation is a direct result of his own appalling actions. He cannot avoid the consequences. The public interest and the need for public confidence in the legal profession demand that the Lawyer’s licence be revoked.