Saturday, April 13, 2019

Thy Father's Guardian

The Indiana Supreme Court has imposed a 90-day suspension

In 2008, Respondent left a prosecutorial position in California and returned to Indiana to care for her father, who was in deteriorating health. Respondent’s father also was in the midst of a separation from his wife (Respondent’s estranged mother), who was sequestering and possibly dissipating marital assets.  That fall, Respondent’s father executed a power-of-attorney appointing Respondent as his attorney-in-fact and stating, in part, that Respondent “shall be entitled to reimbursement for all reasonable expenses incurred on my behalf and . . . may also be entitled to reasonable compensation for any services provided.”

In 2010, a guardianship was opened in Hamilton Superior Court and Respondent was appointed as guardian of her father’s person. In 2012, Respondent was appointed by the guardianship court as successor guardian of her incapacitated father’s estate.

In the first several years following her return to Indiana, Respondent expended considerable sums of her own savings on her father’s behalf. During this time Respondent also experienced significant health issues of her own, resulting in major medical bills and Respondent’s inability to consistently maintain a law practice in Indiana. Respondent’s personal savings and assets soon were depleted, and she alternately found herself living temporarily with friends or out of her own vehicle.

At some point in late 2013 or early 2014, the guardianship received about $40,000 in proceeds from the sale of Respondent’s parents’ marital residence. Beginning around the same time, Respondent made dozens of payments and withdrawals from the estate to herself without obtaining the requisite court approval and in violation of a restraining order that had been issued by the guardianship court. During that period, Respondent also failed to file required accountings and failed to comply with several court orders to do so. In early 2016 the guardianship court held Respondent in contempt, appointed a successor guardian, and again ordered Respondent to provide an accounting. Respondent did not do so and was held in contempt again in November 2016. Meanwhile, Respondent’s father passed away in September 2016.

The commission appealed the failure to find a  Rule 8.4(b) violation

The hearing officer found, among other things, that even assuming Respondent’s exercise of control over guardianship funds was unauthorized, Respondent reasonably believed under the circumstances that her actions were authorized. In so finding, the hearing officer expressly credited Respondent’s own testimony and evidence in support, as well as relevant testimony from the judge who had presided over the guardianship matter.

...Because the Commission failed to establish that Respondent committed criminal conversion or exploitation, we find in favor of Respondent on the Rule 8.4(b) charge. We also find that Respondent violated Rule 3.4(c) as charged and admitted, and we turn now to the matter of sanction.

Turn turn turn

...Respondent was striving under very difficult circumstances to help her ailing father, and in the big picture her various expenditures of personal and guardianship assets resulted in a net gain for her father. None of this excuses her repeated disobedience of court orders (nor does Respondent suggest it does), but we agree with the hearing officer that it presents compelling mitigation in this case...

We also credit the hearing officer’s view, informed by his firsthand observation of four days of witness testimony in this matter, that Respondent’s transgressions “trace[ ] to the unique, extremely difficult circumstances” with which she was confronted and “do[ ] not otherwise raise serious concerns about Respondent’s general character and fitness to practice law.” (HO’s Report at 17).

With these considerations in mind, we conclude that a suspension of 90 days with automatic reinstatement is appropriate discipline for Respondent’s misconduct.

(Mike Frisch)

April 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Disqualified Attorney Reprimanded

The Ohio Supreme Court has publicly reprimanded a side-switching attorney

In a complaint certified to the Board of Professional Conduct on November 30, 2017, relator, Cleveland Metropolitan Bar Association, alleged that Hackerd committed several ethical violations by representing the former spouse of a former client in a child-custody case and opposing the former client’s motion to disqualify him from that representation.

The story

In November 2006, Hackerd agreed to represent Rainie Krenn, the wife of his longtime friend and former client Tim Krenn, in a child-support and visitation matter involving Ms. Krenn’s daughter from a previous relationship. Mr. Krenn later agreed to adopt the child, and Hackerd represented the couple in the stepparent-adoption proceeding. The Krenns divorced in 2015, and Hackerd did not participate in those proceedings.

In January 2017, Ms. Krenn initiated postdecree proceedings seeking to have Mr. Krenn cited for contempt, to modify the court’s prior school-placement order, and to enforce the parenting-time and child-support orders. Mr. Krenn retained Hackerd to represent him in the postdecree proceedings.

In March 2017, Ms. Krenn asked the trial court to disqualify Hackerd from representing Mr. Krenn in the proceedings. At a hearing on the motion, Ms. Krenn testified that when Hackerd was representing her, she told him personal, and possibly inflammatory, things about her past, and she expressed concern that this information might be used against her in the pending litigation.

On March 15, 2017, the trial court granted Ms. Krenn’s motion. Five days later, Hackerd appealed the judgment. While that appeal was pending, the trial court issued an order suspending Mr. Krenn’s parenting time. Hackerd moved the court of appeals to vacate that ruling and filed a brief opposing Ms. Krenn’s motion to dismiss the motion to vacate. The court of appeals denied Hackerd’s motion and later affirmed the disqualification entry. On October 19, 2017, Hackerd withdrew from the case.

Sanction

Based on our independent review of the record in this case and our precedent, we agree that Hackerd’s continued representation of Mr. Krenn in violation of the trial court’s disqualification order violated Prof.Cond.R. 8.4. Given this single rule violation, the absence of any aggravating factors, and the presence of significant mitigating factors, we agree that a public reprimand is the appropriate sanction in this case. 

 

April 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Mental Issues Did Not Cause Thefts

The Law Society of Ontario Tribunal Hearing Division has revoked an attorney's license

In a decision dated October 16, 2018, we found that Mr. Reble misappropriated $110,000 of settlement funds that were to be held in trust for two clients and borrowed $300,000 from a third client to prosecute the client’s litigation, which he was unable to repay. We found he failed to act with integrity when he made excuses to the first two clients for delay in paying out the settlement funds long after he had spent the money, and in misleading the third client about the status of the litigation by creating false documents evidencing a settlement for an action which he never commenced.

Mr. Reble’s licence is revoked effective immediately. The facts do not support the conclusion that there are exceptional circumstances sufficient to depart from the presumptive penalty of revocation in cases where the lawyer has engaged in fraudulent or dishonest conduct.

His mitigation

 Mr. Reble gave evidence about those circumstances. He testified that he believed he had mental health issues after the death of his son in 2011. He told us about his contributions to the profession and the impact revocation could have on a project on which he was working. Mr. Reble’s firm closed in 2000 after the amalgamation of the City of Toronto, which terminated the existence of the firm’s big client, the City of Etobicoke. He practised primarily from his home after that time. He acted for the Town of Pickering until 2006 and for various small municipalities. He acted for individuals as well, typically with municipal zoning issues. He described himself as a good lawyer but not a great businessman. He said he never had a trust account.

In September 2007, his grown son had a cardiac arrest that forced him to return to living with his parents. In February 2008, his son either collapsed or was hit by a car in a snowstorm and was taken to hospital. At some point, his son was transferred to a rehabilitation hospital, Bridgepoint, and stayed there until his death in March 2011. We accept that these events were traumatic for Mr. Reble and his family.

 Mr. Reble’s practice declined after his son’s collapse. He said he visited his son every day in hospital. His son was fine mentally but could not walk. He underwent four surgeries. Mr. Reble said he tried to practise but he found it very difficult. His billings went way down. It was during 2010, while his son was in hospital, that he accepted retainers for the first two clients and the third as well. He said that he probably should not have, but needed the money to pay bills and income tax. He testified that his practice collapsed after his son’s death. In 2014, his marriage also dissolved.

Mr. Reble testified that he went to a psychiatrist when his son got sick but did not find it helpful. He went to another psychiatrist after his son died who was excellent. He said he realized that he was not well and that his wife and other sons were suffering as well. Mr. Reble said he could not afford to have the psychiatrist prepare a medical report. This was evidence that Mr. Reble had repeatedly promised to call, as set out in our decision on his request for an adjournment dated January 16, 2019.[2]

Mr. Reble did not testify that he had requested a medical report or tell us how much the report would cost. He said if he had to do it over again, he would find the money for a psychiatric report and believes it would have shown that he had a mental condition that caused him to “steal and lie.”

 Mr. Reble also testified about the volunteer work he did with Ontario Lawyers Assistance Plan in the late 1980s and 1990s. Mr. Reble is a recovered alcoholic who quit drinking in 1982 and has not had a drink since that time. Because of his experience, he was well-positioned to provide peer assistance to lawyers who were seeking help for addictions.

Mr. Reble testified that since 2002 he has been working with a group from Waterloo on the development of a software program designed to simplify access to zoning and other planning-related information. He fears that if he cannot surrender his licence, the stigma of revocation could impact the project’s success. This project is a potential source of income for him as he has no pension and no savings. It is only if this project is successful that he will be in a position to repay the Compensation Fund.

Mr. Reble did not present any character evidence that would assist us with his past or present character or provide insight into his dishonesty.

The division declined to permit resignation

 There is simply no psychiatric evidence at all, much less compelling psychiatric evidence, that credibly indicates that the misconduct was out of character and unlikely to recur, or explains why it occurred. Mr. Reble’s statement that psychiatric evidence would have shown that his mental condition caused him to steal and lie is not founded in any evidence presented to this panel.

(Mike Frisch)

April 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Ontario Accords Preclusive Effect To U.S. Disbarments

The Law Society of Ontario Tribunal Appeal Division rejected the appeal of an attorney disbarred in Illinois, permanently disbarred in Florida (where the original proceeding occurred) and the subject of serious criminal charges

The Lawyer practised law in Florida and was also a member of the bars of Illinois and Ontario. He was disbarred by the Florida Supreme Court in September 2010, and was later reciprocally disbarred by the Illinois Supreme Court in January 2011. In Florida, a disbarred lawyer may apply to be reinstated as a member of the bar. However, while disbarred in Florida, the Lawyer’s conduct resulted in a further contempt application being brought before the Florida Supreme Court. This application resulted in the Lawyer being permanently disbarred by the Florida Supreme Court in 2014. Some of the conduct that resulted in the permanent disbarment also resulted in the Lawyer being criminally charged with having engaged in an organized scheme to defraud contrary to Florida law. The criminal charge related to the Lawyer’s activities in connection with an estate, which occurred after his initial disbarment by the Florida Supreme Court. That charge was ultimately resolved by a diversion program that saw the Lawyer enter into a deferred prosecution agreement, pursuant to which he paid $45,000 to a charity in lieu of restitution and admitted that he was guilty of the allegations giving raise to the offence.

Below the border

The Lawyer practised law in Florida and was also a member of the bars of Illinois and Ontario. He was disbarred by the Florida Supreme Court in September 2010, and was later reciprocally disbarred by the Illinois Supreme Court in January 2011. In Florida, a disbarred lawyer may apply to be reinstated as a member of the bar. However, while disbarred in Florida, the Lawyer’s conduct resulted in a further contempt application being brought before the Florida Supreme Court. This application resulted in the Lawyer being permanently disbarred by the Florida Supreme Court in 2014. Some of the conduct that resulted in the permanent disbarment also resulted in the Lawyer being criminally charged with having engaged in an organized scheme to defraud contrary to Florida law. The criminal charge related to the Lawyer’s activities in connection with an estate, which occurred after his initial disbarment by the Florida Supreme Court. That charge was ultimately resolved by a diversion program that saw the Lawyer enter into a deferred prosecution agreement, pursuant to which he paid $45,000 to a charity in lieu of restitution and admitted that he was guilty of the allegations giving raise to the offence.

His concerns

The Lawyer has raised a number of issues with respect to the process before the Florida Supreme Court. The Florida Bar was represented in the proceedings brought against the Lawyer by Michael Soifer, who filed the complaint commencing a disciplinary proceeding with the Florida Supreme Court against the Lawyer. Mr. Soifer brought a motion for sanctions against the Lawyer as a result of his failure to appear at his deposition. This resulted in a flurry of motions brought by the Lawyer, including a motion to disqualify Mr. Soifer from the disciplinary proceedings based on a civil claim that the Lawyer had commenced against Mr. Soifer and Ms. Robbins. This motion was denied by the referee, and in turn the Lawyer brought a motion to disqualify the referee, asserting that his handling of the motion to disqualify Mr. Soifer was tainted by bias. This motion was also dismissed by the referee. Mr. Soifer brought a second emergency motion for sanctions against the Lawyer as a result of his repeated failure to appear for the deposition. The Lawyer did not participate in the motion, and Judge Moe made an order striking the Lawyer’s pleadings and entering a default judgment. As default judgment was entered, all allegations in the complaint were deemed admitted.

Disbarment was imposed after he failed to participate in the appeal. 

Nevertheless he persisted

 In April 2012, the Florida Bar filed a contempt proceeding against Mr. Kivisto. The contempt proceeding was heard by Judge Usan who acted as a Referee for the Florida Supreme Court. There were four counts. The first three counts involved allegations that Mr. Kivisto engaged in the practice of law or held himself out as a lawyer while disbarred. The fourth count involved his creating and using false court documents relating to the estate of Leo Jaakkola for his own benefit.

And led to permanent disbarment. 

The division here describes the lengthy history of the prior and present proceedings and finds no substance to his attack on the Florida process

 The Lawyer argues that recognition of the referee’s reports in the Florida discipline decisions should be refused because the manner in which they were prepared was a breach of natural justice. In particular, the Lawyer submits that the first draft of both referees’ reports were prepared by counsel for the Florida Bar, who was also the prosecutor. In Beals, the Supreme Court considered the defence of natural justice, and held that the domestic court must be satisfied that minimum standards of fairness have been applied to the Ontario defendants by the foreign court. The defence of natural justice is restricted to the form of the foreign procedure, and does not relate to the merits of the case. A condition precedent to the defence is that the party seeking to impugn the judgment must prove that the foreign proceedings were contrary to Canadian notions of fundamental justice. The basic requirements of natural justice are a right to notice, a right to be heard, and a right to an independent and impartial decision‑maker.

... In its reasons, the hearing panel found that in Ontario there is a prohibition against a party to a proceeding preparing a judgment in that proceeding because it creates “an appearance of bias.” However, the panel went on to note that in the context of the recognition of foreign judgments, a party seeking to avoid recognition of a foreign judgment on the basis of bias must go beyond showing a reasonable apprehension of bias and prove actual bias.

Preclusion

the hearing panel correctly stated the law and its decision to give preclusive effect to the Florida and Illinois discipline decision was reasonable.

Thus

These proceedings have been long and protracted, both before the hearing panel and this appeal panel. The hearing panel delivered comprehensive reasons on the various motions and on the application itself, which carefully addressed all of the Lawyer’s arguments. In our view, the hearing panel made no reversible error, and accordingly, this appeal is dismissed.

(Mike Frisch)

April 13, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 11, 2019

Exposed To Revocation

The Virginia State Bar Disciplinary Board reciprocally revoked the license of an attorney sanctioned in West Virginia. 

Herald Mail Media reported

A Charles Town attorney accused of exposing himself to a female client at his law office in May 2017 was sentenced Wednesday to one day in jail, fined $500 and ordered to register as a sexual offender for 10 years.

John Michael Cassell, 65, was sentenced after he pleaded no contest to one misdemeanor count of indecent exposure in Jefferson County (W.Va.) Magistrate Court.

Cassell's plea was accepted by Berkeley County (W.Va.) Magistrate Harry L. Snow, who suspended all but one day of a one-year jail sentence for the conviction and placed the attorney on one year of unsupervised probation after the jail sentence.

As a condition of probation, Snow ordered Cassell to report to the Jefferson Day Report Center "to try to get his life turned around."

"I feel for the victim," Snow said after imposing the sentence.

In a tearful statement to the court, the victim asked the magistrate to order Cassell to be confined for an hour so he knows what it feels like to be trapped like she felt when Cassell initiated sexual contact with her at his law office on May 13, 2017.

The victim, who was 45 at the time, said that the defendant was her attorney in a previous case more than 12 years ago and "never once was out of character" with her at that time.

But in her May 13 meeting Cassell regarding a Social Security issue, the victim said she felt trapped by the defendant's actions and didn't know how to get out of the building.

During the encounter, the victim said she found herself gasping for air and thought "my life is going to end with him."

Jefferson County Assistant Prosecuting Attorney Timothy D. Helman said that Cassell exerted his power and influence as an attorney to pursue sexual contact with a client.

"He invited her there on a nonbusiness day," Helman said.

Defense attorney James T. Kratovil described the incident as a tragedy for all parties involved and issued an apology on Cassell's behalf.

Kratovil also said that Cassell faces civil punishment by the state as a practicing attorney and that would be another tragedy for him.

Cassell, who was admitted to the West Virginia State Bar on Jan. 22, 1985, served as a Jefferson County assistant prosecuting attorney from 1985 to Feb. 1, 2005, and acted as legal adviser on the county's zoning ordinance.

Cassell didn't speak during the hearing, and Kratovil said afterward that his client had no comment.

The victim told police last year that she initially contacted Cassell regarding a Social Security benefits claim and that Cassell had offered her a job to do light-duty work at his office.

The woman had told police that Cassell said that her role at the office would be as a “fill-in” and that he asked her if she would be willing to learn anything else, court records said.

At one point during the meeting, the woman told police that Cassell asked her what she thought about being his “playmate,” then started kissing her face, records said.

The woman told police that the defendant exposed himself to her shortly after being kissed, and that he initiated more physical contact with her, records said.

Charles Town Police Department Detective Cpl. Alissa J. Meeks said Wednesday that it is her belief that Cassell took advantage of a community member, describing the defendant's actions as "appalling."

(Mike Frisch)

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

The One Lawyer Rule

After a lengthy hiatus the Florida Supreme Court is issuing opinions again.

One involves the public reprimand of a judge

During a felony criminal trial, Judge Dennis Daniel Bailey ordered his courtroom deputy, loudly and in front of the jury, to remove one of the defendant’s attorneys from a sidebar conference. He then improperly denied the defendant’s disqualification motion. Judge Bailey and the Judicial Qualifications Commission have stipulated that he violated the Code of Judicial Conduct and should be publicly reprimanded.  We approve the stipulation.

There were two defense attorneys

[w]hen one of the attorneys tried to help his colleague articulate a point during the sidebar, Judge Bailey repeatedly attempted to quiet him by saying, “One lawyer at a time,” “Only one lawyer argues,” followed shortly thereafter by, “You have a hard time understanding me? Two lawyers can’t argue one argument.”

There was no standing order that only one attorney per side was allowed to argue a point, and this was the first time Judge Bailey communicated such an order to counsel.

As the attorney who was trying to help his colleague started to say, “Judge I mean no disrespect,” Judge Bailey raised his voice over the “white noise” that he turned on during the sidebar conversation and ordered his courtroom deputy to approach the bench and “return this attorney to his table.” “The attorney immediately retreated away from the sidebar and back to counsel table as soon as he saw the deputy approaching.” Had the attorney not retreated to counsel table, Judge Bailey “would have allowed the deputy to use physical force, ‘if necessary.’ ” All of this was “in full view and hearing of the jury.”

Ms. Espejo’s non-removed attorney then moved for time to file a disqualification motion. Judge Bailey allowed a forty-five-minute break to draft and file the motion to disqualify, and then denied it as legally insufficient. Judge Bailey improperly denied the motion because he believed it was a “trial tactic” and he could be fair to the parties. He “did not consider the motion from the defendant’s perspective when considering whether or not to grant it.”

In the judicial misconduct proceeding, the judge admitted he had behaved intemperately.

A mitigator

Judge Bailey, on his own, signed up for stress management counseling “so that in the future, he is better equipped to handle stressful situations, and does not resort to knee-jerk reactions.” He has also apologized, in writing, to Ms. Espejo’s attorney for what happened during the trial.

He also had no prior record of judicial discipline. (Mike Frisch)

April 11, 2019 in Judicial Ethics and the Courts | Permalink | Comments (0)

Trust But Verify

The Ohio Supreme Court has publicly reprimanded a highly-experienced bankruptcy trustee who had failed to properly supervise a thieving employee

Respondent, David William Davis, of Bridgeport, Ohio, Attorney Registration No. 019639, was admitted to the practice of law in Ohio in 1973. Davis served for 32 years as a part-time judge of the Belmont County Court and for 30 years as a bankruptcy trustee.

In 2017, Davis’s longtime bookkeeper was convicted of stealing funds from Davis’s client trust account. Relator, disciplinary counsel, thereafter charged Davis with failing to perform the required monthly reconciliations of his client trust account and failing to adequately supervise his staff. Based on the parties’ stipulations and Davis’s hearing testimony, a panel of the Board of Professional Conduct found that he had engaged in the charged misconduct and recommended that he be publicly reprimanded. The board issued a report adopting the panel’s findings of fact, conclusions of law, and recommended sanction. The parties have jointly waived objections and requested that we adopt the board’s report.

Details

In 1980, Davis’s then law firm hired Jayne Sliva as a legal secretary. In 2001, Davis established a solo law practice and retained Sliva to serve as his secretary, bookkeeper, and office manager. In 2003, Sliva began stealing from Davis. Specifically, Davis practiced bankruptcy law and received significant amounts of cash payments from clients, either for legal fees or court costs. Although Sliva recorded those payments on a client ledger, she regularly converted all or a portion of the funds for her own use, rather than depositing the money into Davis’s client trust account or his law firm’s general operating account. In other words, Sliva skimmed money from client cash payments that she should have deposited into one of Davis’s bank accounts.

In 2012, Sliva left Davis’s office to pursue other employment, and in 2014, he decided to merge his law practice with another attorney’s. In preparing to close his solo practice, Davis audited his books and discovered that money was missing from both his client trust account and his operating account. In January  2015, he filed a police report, which led to the Ohio Attorney General’s office conducting a forensic audit of the accounts. The attorney general determined that between 2003 and 2012, Sliva had embezzled $185,365.75 from Davis: $125,948 that should have been deposited into his operating account and $59,417.75 that should have been deposited into his client trust account.

In 2017, Sliva pleaded guilty to aggravated theft by deception and tampering with records. The Belmont County Court of Common Pleas sentenced her to 36 months of incarceration and ordered her to make restitution to Davis for the amount stolen. In September 2017, Sliva paid Davis an initial $100,000. He also received $10,000 from a bonding company.

Reprimand sufficient but

We reiterate that although “[d]elegation of work to nonlawyers is essential to the efficient operation of any law office,” “delegation of duties cannot be tantamount to the relinquishment of responsibility by the lawyer” and “[s]upervision is critical in order that the interests of clients are effectively safeguarded.”

WTOV 9 Fox had the story of the  criminal case. (Mike Frisch)

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

Wednesday, April 10, 2019

The Philadelphia (Judge) Story

The Legal Intelligencer reports on sanctions imposed on two former judges by the Pennsylvania Supreme Court

Former Philadelphia Court of Common Pleas Judge Angeles Roca and former Philadelphia Municipal Court Judge Dawn Segal have both had their law licenses suspended for one year and one day.

The Pennsylvania Supreme Court issued separate orders Tuesday adopting the recommendations of a three-member panel of the Disciplinary Board, which were based on joint petitions in support of discipline on consent filed by the Office of Disciplinary Counsel, the two ex-judges and their counsel.

A suspension of more than a year means both Segal and Roca will need to reapply to have their law licenses reinstated.

Roca and Segal were found in 2016 to have violated the state constitution and the Code of Judicial Conduct by engaging in ex parte contact with former Municipal Court Judge Joseph C. Waters Jr., who was later charged criminally and sentenced to 24 months in prison for fixing cases of political donors.

They were initially suspended from the bench before eventually being removed and barred from ever holding public office again by the Court of Judicial Discipline in December 2016.

The CJD determined that Segal violated four judicial canons and three articles of the state constitution, including prohibitions against engaging in ex parte communications, allowing others to believe they could influence her, failing to report the communications, failing to disqualify herself, and interfering with the normal operations of the court.

The charges focused on allegations that Waters contacted Segal four times, and asked for special consideration in the cases of Houdini Lock & Safe v. Donegal Investment Property Management ServicesCommonwealth v. Khoury and City of Philadelphia v. Rexach, a tax enforcement case against Roca’s son, Ian Rexach.

The CJD found that Roca’s actions brought her office into disrepute, prejudiced the proper administration of justice and failed to promote confidence in the integrity and impartiality of the judiciary.

Roca contacted Waters in 2012, seeking to enlist his aid in having the tax enforcement complaint issued against her son dismissed, according to the CJD’s October 2016 opinion. She asked Waters to intervene in the matter by contacting Segal, which he did. Segal later told Waters that she “took care of it,” and the case was ultimately withdrawn by another judge without prejudice.

Roca, Waters and Segal were unknowingly being recorded by the FBI during their phone calls.

The joint petitions in support of discipline on consent for both Roca and Segal noted that, unlike most Pennsylvania judges who have been removed from the bench in the past, neither were ever charged with or convicted of a crime, and neither engaged in criminal conduct.

Still, the board found their cases were most closely related to that of former Lancaster County Magisterial District Judge Kelly Ballentine, who was suspended on consent for one year for dismissing her own traffic tickets in 2010 and 2011.

The board said there were differences between Ballentine’s case and those of Segal and Roca. For one, Ballentine pleaded guilty to three counts of misdemeanor tampering charges. For another, Ballentine was suspended from the bench for 15 months and placed on probation for 18 months, while Segal and Roca were both removed and barred from office.

However, the petitions said, all three former judges engaged in misconduct that benefited themselves.

“While there are variance’s between Ballentine’s and respondent’s case,” both petitions said, “in looking at all the factors, and the sanctions imposed by the Court of Judicial Discipline, there is support that a one year and one day suspension is appropriate in respondent’s case, and will subject respondent to the requirements of reinstatement pursuant to Rule 218, Pa.R.D.E.”

Roca’s attorney, Samuel Stretton of West Chester, said his client and the Office of Disciplinary Counsel had initially agreed to a one-year suspension, but the Disciplinary Board rejected that agreement.

“I thought it was wrong but it wasn’t worth fighting,” Stretton said, noting that the license reinstatement process can begin as early as eight months before the final day of suspension. “I’ll start her reinstatement in four months and I don’t think there’s any question that she’ll be reinstated.”

Counsel for Segal, Stuart Haimowitz of Philadelphia, could not immediately be reached for comment.

(Mike Frisch)

April 10, 2019 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Law In Action

Whenever a court improves access to information, I am moved to applaud.

Today's nachas to the Tennessee Supreme Court, which now provides online links to oral arguments bef ore the court.

Of interest 

Polly Spann Kershaw v. Jeffrey L. Levy - M2017-01129-SC-R11-CV

This case is a legal malpractice lawsuit in which the plaintiff claims she suffered financial harm and was convicted of criminal contempt as a result of the defendant’s negligent representation of the plaintiff in her divorce case.  The defendant moved for summary judgment, arguing that the plaintiff’s claims were barred under the judicial estoppel doctrine.  The trial court granted summary judgment, and the Court of Appeals affirmed the trial court’s judgment.  The plaintiff argues before the Supreme Court that the doctrine of judicial estoppel should not apply when the defendant’s own negligence caused the plaintiff to “settle in a compromised position.”

Dialysis Clinic, Inc. v. Kevin Medley, et al M2017-01352-SC-R11-CV 

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.

Enjoy! (Mike Frisch)

April 10, 2019 in Current Affairs | Permalink | Comments (0)

Bad Husband, Bad Father, Bad Lawyer

The Arizona Presiding Disciplinary Judge accepted a two-year consent suspension of a control-challenged attorney. 

The misconduct is briefly summarized. In 2014, Mr. Nicholas represented a client in criminal matters involving identity theft, shoplifting, and probation revocation. He repeatedly engaged in a conflict of interest by continuing a sexual relation with this client. To cover his sorties he lied to his wife, ignored that his sexual relationship with his client began after he became her lawyer, and then actively avoided his professional responsibilities. In August of 2014, Respondent fathered a child with the client. He willfully ignored the possibility of his paternity through apparent self interest, avoidance and lack of caring. He avoided his parental responsibilities with a will. The DNA evidence confirmed he was the child’s father in December 2017. As with his professional responsibilities he took no personal responsibilities. The messages between them, that he hid from the State Bar, evidences more than avoidance to his responsibilities as a lawyer but rather blatant disregard for even his own child.

One need not be clairvoyant to recognize by the messages of his client that his use of her had left her betrayed, and the resulting damage to the client-lawyer relationship predictable and impaired. Respondent’s sexual misconduct assured that his representation would be materially limited by the relationship. He did not blink. Instead he actively failed to preserve and produce evidence of text messages between him and the client when he knew the State Bar was investigating this matter.

Mr. Nicholas was on probation with the Member’s Assistance Program in File No. PDJ-2017-9010, which involved Respondent’s criminal assault of his incarcerated client. Like his client in this matter, that client was also helpless and handcuffed to a table when he struck him. Mr. Nicholas violated Rule 41(g) and ER 8.4(b) and (d).

Through MAP, the tools to avoid his misconduct were before him but he demonstrated again that his preference is to embrace his lack of self-control. It is exceedingly serious when an attorney is so lacking in self-control that he has no ability, even when in counseling, to so no let alone stop. His driving desire and lack of control is strong evidence of his complete absence of professionalism.

Two years is enough

The PDJ is mindful that Agreements for Discipline by Consent bring certainty where there is seen and unforeseen uncertainty in aspects of evidence, testimony, and persuasive force. This Agreement provides certainty and requires that Respondent prove by clear and convincing evidence in formal reinstatement proceedings that he is not a danger to the public and should be permitted to return to the practice of law.

The details are set forth in an extensive stipulation.

KTAR beat me to the story. (Mike Frisch)

April 10, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Noted, Not Ignored, Rejected: The Limits Of Bar Sanctions

The Arizona Presiding Disciplinary Judge approved an agreement to impose a suspension of six months and a day

The misconduct is briefly summarized. Mr. Crane represented clients in personal injury and civil litigation. In multiple matters, he failed to adequately communicate with clients and diligently represent them. Specifically, Mr. Crane failed to draft or file a lawsuit on behalf of clients and misrepresented the status of the matters to clients. He made false statements to other clients and opposing counsel to cover up his lack of diligence and deleted critical emails from clients and the Court. His lack of diligence caused one matter to be dismissed and the statute of limitations to run in another matter. In a separate matter, he failed to convey a settlement offer and allowed the acceptance deadline to expire.

Mr. Crane further falsified financial documents as part of his loan rehabilitation packet when seeking aid regarding his student loans. Specifically, he provided false information regarding his monthly income in violation of the U.S. Criminal Code and 20 U.S.C 1097. In addition, he presented a false resume to multiple employers which contained inconsistencies and omissions.

An aggrieved complainant had objected

Under Rule 53(b)(3), notice and an opportunity to object was provided to the Complainant(s) by letter and email on February 11, 2019. One objection was filed on February 19, 2019 stating that disbarment is a more appropriate sanction based on the harm that occurred in his case, and that compensation is appropriate for his injuries, loss of career, pain and suffering, and the wrongful death of his wife.

In considering this agreement the PDJ has noted, considered, and not ignored the objection. It has merit. Notwithstanding, the Court has held that consequences such as monetary damages and restitution are best left to civil courts. Restitution through the attorney discipline system should not be a substitute for a malpractice action. Matter of Murphy, 188 Ariz. 375, 936 P.2d 1269 (1997). However, nothing within this ruling is a comment on whether monetary damages should be awarded to Complainant(s). Such awards are not available in disciplinary proceedings and clients may seek redress in the form of a malpractice claim or civil lawsuit.

In an unrelated matter, an unhappy complainant got the same response in a matter involving a stipulated eighteen month suspension for neglect and false statements

Under Rule 53(b)(3), notice and an opportunity to object was emailed to the complainant(s) on February 22, 2019. An objection was filed on March 4, 2019 requesting restitution. Complainant(s) state restitution is appropriate in this matter as they and their minor son has experienced irreparable harm including an unreasonable contingency fee, poor work by Respondent, and at times during the representation, client abandonment.

In considering this agreement the PDJ has noted, considered, and not ignored the objection. It has merit. Case law is clear on this point. Consequences such as monetary damages and restitution are best left to civil courts. Restitution through the attorney discipline system should not be a substitute for a malpractice action. Matter of Murphy, 188 Ariz. 375, 936 P.2d 1269 (1997). Nothing within this ruling is a comment on whether monetary damages should be awarded to Complainant. Such award is simply not available in a disciplinary proceeding.

The agreement's consequence

The conduct of Respondent is troubling. However, such agreements bring certainty where there is seen and unforeseen uncertainty in aspects of evidence, testimony, and persuasive force. This Agreement brings certainty, assures an independent evaluation, and requires Respondent to prove to a hearing panel clearly and convincingly that Respondent should be permitted to return to the practice of law.

(Mike Frisch)

April 10, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, April 9, 2019

28 Years After

A suspended attorney's unauthorized practice drew a five-year suspension from the New York Appellate Division for the First Judicial Department

Prior to 2015, respondent last registered with OCA in 1987, at the time of her admission, but for the 28 years thereafter, she did not register, did not pay the required fees, nor did she update her residential and business addresses as required by 22 NYCRR 118.1(f). As noted, effective March 6, 1998, respondent was suspended until further order of this Court for failure to meet her registration obligations. Respondent asserts that she never received any registration forms, nor notices or calls from OCA advising of her delinquency, and she was unaware of her suspension until late 2014.

Respondent admits that she engaged in the unauthorized practice of law prior and subsequent to her March 6, 1998 suspension: from 1986 to 1987 respondent was employed as an Arbitration Counsel with the New York Stock Exchange (NYSE), the commencement of which pre-dated her January 1987 admission; from September 2004 through January/February 2006, respondent, while suspended, resumed her employment as an Arbitration Counsel with the NYSE; and between 1989 and 2014 respondent served as an arbitrator for the Financial Industry Regulatory Authority (FINRA) during which period she held herself out as a duly registered attorney ; and commencing in 2007 respondent served as a volunteer for the New York City Bar Association's (NYCBA) Monday Night Law (MNL) program (which provides free legal advice to members of the public who make appointments to meet with two partnered attorneys) in which capacity respondent held herself out to the NYCBA and the public as a licensed attorney and dispensed legal advice to MNL's "clients." Respondent continued to participate in the MNL program after she learned of her suspension.

Respondent admits further that she made false statements to the courts, OCA, and the AGC. In May 2015, respondent submitted an affidavit to the Second Department to change the name under which she practices law in which she falsely stated that she was in good standing at the bar and not suspended from practice. Respondent asserts that her claim of good standing was done by mistake, which she tried to correct by contacting the Second Department upon learning of her error.

On May 28, 2015, two days after she executed this false affidavit, respondent registered with OCA, paid delinquent fees for 1987-1989 and 2011-2016, but falsely certified that she was retired under 22 NYCRR 118.1(g)from 1991 through 2010 (during which period respondent was employed as an Arbitration Counsel with the NYSE [2004-2006]) and, therefore, was exempt from paying registration fees for this period. Respondent asserts that she certified as retired for the aforementioned period because she received erroneous information from court personnel, but upon learning of the error she rescinded her retirement claim and paid the fees due.

Additionally, on her May 28, 2015 registration form respondent affirmed that she had completed 196 CLE credits, had retained certificates of attendance/completion for such, and was in full compliance with 22 NYCRR Part 1500's CLE requirements. Respondent, however, produced certificates documenting completion of only 142.85 CLE credits (she needed at least 192 CLE hours at that time). Respondent admits that she reported an incorrect number of CLE credits on the OCA registration form but that this "was an unintentional error made during a stressful time of trying to be reinstated to the New York Bar so that she [could] be financially independent of her emotionally and financially abusive husband, [from] whom she [has] been separated for 17 years."

In July 2015, respondent submitted an affidavit to this Court in support of her motion for reinstatement in which she stated "[t]he reason for my default in registration is that I stopped practicing law in November 1992 and have [n]ot resumed the practice of law, I did not realize I still needed to pay registration dues to remain in good standing. I thought that my registration would lapse without any consequences. In March of 2015, I learned that I misunderstood the New York [S]tate Bar Rules for non-practicing attorneys." Respondent admits that she did not cease the practice of law in 1992 as represented and evidenced by her employment as an Arbitration Counsel with the NYSE between 2004 and 2006, as well as by her participation in the NYCBA's MNL program commencing in 2007.

Mitigation and sanction

Respondent asserts that: she did not willfully fail to comply with her attorney registration requirements as she was unaware of the actual requirements; when she was hired in 1986 she was given the title of Arbitration Counsel by the NYSE which was aware that she had just passed the New York bar exam, and she was in training and under the guidance of a senior attorney until she was admitted to the New York Bar; she did not know of her March 6, 1998 suspension, was never notified of such, and never received any attorney registration forms until May 2015; respondent cooperated with the AGC and paid all registration fees with the exception of the 2017-2018 biennial period due to financial hardship; she has been unable to work in the legal field for the last three years; and her financial situation is dire and it is necessary for her to work and support her family;

Respondent is 65 years old, she has Multiple Sclerosis and is a cancer survivor, she has been cancer free for 18 months, and the procedures connected to her cancer diagnosis continue. The parties assert that while this Court has generally disbarred attorneys who engage in the unauthorized practice of law in violation of a disciplinary suspension order, there are no cases directly on point involving an attorney disbarred for violating a suspension order based on failure to register; and they agree that under the circumstances respondent should be suspended for five years retroactive to September 21, 2015 (date of this Court's order denying prior motion for reinstatement).

The parties assert further that in cases involving intentional misrepresentations to courts, the sanction has ranged from suspensions of varying length to disbarment, depending on the particulars of the misconduct and the aggravation and mitigation presented and they reiterate their position that a five-year suspension retroactive to September 21, 2015 is the appropriate sanction herein.

(Mike Frisch)

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

Just "Call Me" Not Saul

Dan Trevas summarizes a decision of the Ohio Supreme Court issued today

The Ohio Supreme Court today issued a one-year suspension, with six months stayed, to an Ashland lawyer who was caught in a police sting for soliciting a prostitute and having a sexual relationship with a client.

In a unanimous per curiam opinion, the Supreme Court suspended Thomas L. Mason for violating rules governing the conduct of Ohio attorneys. Mason maintained during disciplinary hearings that he was innocent of the criminal solicitation charge against him and pleaded guilty to avoid negative publicity. However, the opinion stated the trial court record “contained strong evidence of actual guilt.”

The Office of Disciplinary Counsel charged Mason with violations for two separate incidents that began in 2015. The Board of Professional Conduct recommended that Mason’s suspension in part be stayed with conditions, and the Supreme Court adopted the board’s recommendation.

Response to Craigslist Ad Leads to Arrest
In May 2015, Mason indicated he responded to a Craigslist advertisement stating something like “Call me. We can help each other out.” Mason met with the woman who answered the call, and they had sex on several occasions.

Local law enforcement discovered Mason’s conduct in a sting operation and charged him with misdemeanor counts of soliciting sexual activity for hire, possession of criminal tools, intimidation of a witness, obstruction of justice, and falsification.

In December 2016, Mason entered an Alford plea to the solicitation charge in exchange for the dismissal of the remaining charges. He maintained he engaged in “consensual dating relationship” with the woman and did not know she was a prostitute. The trial court noted that Mason concluded it was in his interest to plead guilty, “notwithstanding his belief that he is innocent.” However, the trial court found the record contained strong evidence of actual guilt and Mason’s plea was “motivated either by a desire to seek a lesser penalty or fear of the consequences of a jury trial or both.”

Mason was fined $500 and the costs of the court proceedings.

At his disciplinary hearing, Mason insisted he was innocent and that the accusations against him were made by a detective seeking retribution for Mason’s “tough” cross-examinations in other cases. Mason also insinuated the woman involved had been acting as a police informant and lied about the matter.

The board found Mason “accepted little or no responsibility for his criminal conduct.” It stated that he minimized his role by blaming others and “the only remorse he expressed was for his own embarrassment and public humiliation.” The board found Mason engaged in conduct that adversely reflected on his fitness to practice law.

Representation in Divorce Leads to Sexual Relationship
Mason was hired by a woman identified in court records as M.S. to represent her in a divorce. Shortly after meeting, the two began a sexual relationship. In the first three months of 2015, the two exchanged more than 300 text messages, many of which contained sexually explicit language and innuendos.

Mason represented M.S. through her divorce proceedings, which concluded in October 2015. The woman then asked Mason to address some unresolved legal matters with her ex-husband, and in the following months, the two exchanged more than 1,400 texts messages, many of them sexual in nature.

The parties stipulated and the board found that Mason violated the rule against engaging in a sexual relationship with a client unless a consensual sexual relationship existed prior to the client-lawyer relationship.

“They also agreed that Mason’s conduct in this regard was so egregious as to warrant an additional finding that it adversely reflects on his fitness to practice law,” the opinion stated.

Behavior Warrants Actual Suspension
The parties jointly proposed to the board that Mason be suspended for one year with the entire suspension stayed with conditions. When the board considers a sanction to recommend to the Court, it considers aggravating circumstances that could increase the penalty and mitigating factors that could lead to a lesser sanction.

The board found Mason acted with a dishonest and selfish motive, committed multiple offenses, and caused harm to a vulnerable client. The board also noted that Mason had no prior disciplinary record, cooperated with disciplinary proceedings, and submitted evidence of his good character and reputation.

Mason testified that he was addicted to a medication prescribed to treat a sleep disorder, but the opinion noted that he offered no evidence that the medication contributed to his ethical violations, and told the board that he reached out to his doctor and the Ohio Lawyers Assistance Program (OLAP) for assistance just two weeks before his disciplinary hearing.

The board found that Mason’s misconduct justified a greater sanction than proposed by the parties, and the Court agreed. The Court accepted the board’s recommendation that the final six months of his suspension be stayed on the conditions that he not engaged in further misconduct, and submits to an OLAP evaluation. If OLAP determines treatment is necessary, he must comply with OLAP’s treatment recommendations.

2018-0538. Disciplinary Counsel v. Mason, Slip Opinion No. 2019-Ohio-1269.

(Mike Frisch)

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

Monday, April 8, 2019

The Camera In The Bathroom

The Louisiana Supreme Court imposed reciprocal discipline based on sanctions ordered in Colorado.

The facts

By way of background, respondent was admitted to practice in Colorado in 1976. He operates his law practice in a commercial condo space in Denver, Colorado, which is owned by respondent and his wife. Part of the building is leased to a convenience store, which shares a common hallway and two unisex bathrooms with respondent’s law office.

In 2009, respondent hired a female associate. Around that time, he also hired a female office manager. One day in 2012, the associate changed her clothes in one of the bathrooms and later discovered a surveillance camera there. She suspected that respondent had placed the camera in the bathroom. She presented the camera to respondent and suggested calling the police. Respondent replied he did not believe there was any immediate need to call the police. According to the associate, respondent’s behavior made her think he was involved in placing the camera in the bathroom. Ultimately, the police were contacted, but the investigation was later closed.

Respondent had also engaged in various behaviors that made the associate and the office manager uncomfortable and caused them emotional harm, including touching the associate on her back, tapping the office manager on her buttocks with a rolled-up magazine, making comments about women wearing swimsuits at office pool parties, and asking about gynecological care when setting up health insurance.

The associate and the office manager left the firm and filed discrimination claims with the Colorado Civil Rights Division. In a deposition, respondent initially testified that he never handled the camera batteries. He later testified that he did so in his associate’s presence. After a trial in 2016, the court found in favor of the associate and the office manager on their claims of premises liability and sexual discrimination; the office manager also prevailed on her claim of intentional infliction of emotional distress. The court found by a preponderance of the evidence that respondent was either directly responsible for or complicit in placing the camera. The court stated, however, that it could not make this finding beyond a reasonable doubt. The civil rights claims court found that respondent’s firm lacked appropriate discrimination or harassment policies and procedures. Respondent has since addressed those issues. He also denies placing the camera in the bathroom.

In Colorado he stipulated to the above-cited facts

the presiding disciplinary judge accepted the parties’ proposed agreement and suspended respondent from the practice of law for a period of one year and one day, all stayed upon the successful completion of a two-year period of probation, subject to conditions, including attendance at ethics school and completion of an eight-hour course related to sexual harassment or human resources.

Ditto here

it is appropriate to defer to the Colorado judgment imposing discipline upon respondent. Accordingly, we will impose the same discipline against respondent as was imposed in Colorado.

(Mike Frisch)

April 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Fled To Pascagoula

The Louisiana Supreme Court has permanently disbarred an attorney

The attorney's discipline history

In 2007, he received an admonition for engaging in a conflict of interest and in conduct prejudicial to the administration of justice. Then, in 2008, the ODC commenced an investigation into allegations that respondent neglected legal matters, failed to communicate with clients, and failed to promptly refund unearned fees. Thereafter, respondent failed to cooperate with the ODC in the investigation. Respondent was placed on interim suspension pursuant to a joint motion of the parties. In re: LeBlanc, 08-1688 (La. 7/29/08), 987 So. 2d 248. Thereafter, we accepted a petition for consent discipline and suspended respondent from the practice of law for three years, retroactive to the date of his interim suspension, for the above misconduct. In re: LeBlanc, 12-1487 (La. 9/14/12), 98 So. 3d 288 (“LeBlanc I”). Respondent has not been reinstated and, thus, remains suspended from the practice of law.

The issue

On August 4, 2017, the ODC was contacted by law enforcement for the Jackson County Sheriff’s Department in Pascagoula, Mississippi. The ODC was advised that respondent was the subject of an arrest warrant alleging that he had committed embezzlement and forgery.

The ODC opened an investigation into these allegations. The ODC learned that respondent had committed the alleged crimes while employed as an accountant with Premier Craneworks (“Premier”) in Pascagoula. Upon reviewing his bank statement, the president of Premier noticed that two checks – one in the amount of $1,955.83 and another in the amount of $1,956.38 – had been written on the company’s account but were issued out of sequence. An investigation by law enforcement established that respondent, without permission, consent, or authority, had taken the checks and made them payable to his girlfriend, who then cashed them. After the stolen checks were discovered, respondent left his employer’s office and fled the jurisdiction of Mississippi. Law enforcement described respondent as a fugitive from justice. Respondent was recently apprehended on an open warrant while in Florida and has been extradited to Mississippi.

He did not contest the bar charges

The record in this deemed admitted matter supports a finding that respondent stole approximately $4,000 from his employer. This misconduct is a clear violation of the Rules of Professional Conduct as alleged in the formal charges.

Sanction

This case falls squarely within the requirements of Guideline 9. Standing alone, respondent’s current misconduct, which is criminal in nature, constitutes serious attorney misconduct and warrants disbarment. This misconduct was preceded by LeBlanc I, wherein respondent received a three-year suspension for serious attorney misconduct.

Accordingly, we will accept the board’s recommendation and permanently disbar respondent.

Genovese, J., would impose disbarment. (Mike Frisch)

April 8, 2019 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, April 7, 2019

Court Rules Against Attorney In Civil Misappropriation Case That Was Whitewashed In Bar Discipline

The Connecticut Appellate Court affirmed a verdict favoring a former client who had filed a civil claim of misappropriation

The parties’ fee agreement provided for a contingent fee of 40 percent. Id. On June 29, 2004, an arbitration panel awarded Yuille $1,096,032.93 in damages. Id., 153. Parnoff sent an invoice to Yuille that included an attorney’s fee representing 40 percent of the gross settlement proceeds. Id. Yuille objected to the fee and Parnoff subsequently brought an action against Yuille to recover the fee. Id., 154. Parnoff’s action alleged breach of contract, quantum meruit and bad faith. Id., 154–55. Following a trial, the jury found in favor of Parnoff on the breach of contract counts and, thus, did not reach the quantum meruit count. Id., 157–58.

On appeal, this court held that the parties’ fee agreement exceeded the cap contained in General Statutes § 52-251c and, therefore, was unenforceable as against public policy. Id., 169, 172.

After remand

The trial court later rendered judgment for Yuille on the quantum meruit count, which this court affirmed on appeal, concluding that an attorney ‘‘who is barred from contract recovery because of the contract’s failure to comply with the fee cap statute cannot recover under the doctrine of quantum.

For the attorney, things went from bad to worse

In 2013, Yuille commenced the present action alleging that Parnoff had misappropriated funds that had been held in escrow pending resolution of the parties’ fee dispute. The operative amended complaint alleged conversion, statutory theft pursuant to General Statutes § 52-564,4 and breach of fiduciary duty. At the conclusion of the evidence, the court denied Parnoff’s motion for a directed verdict. The jury returned a verdict in favor of Yuille on the counts alleging conversion and statutory theft, and for Parnoff on the count alleging breach of fiduciary duty. The court subsequently rendered judgment for Yuille on the conversion and statutory theft counts in the total amount of $1,480,336.37.

Parnoff then filed the present appeal. Additional facts will be set forth as necessary.

The court rejected the attorney's claims regarding his counsel's withdrawal

Specifically, after noting the complicated history between these parties and the disputed attorney’s fees, the motion indicated that in December, 2016, Parnoff had advised in writing that the law firm was required to obtain his authorization prior to performing any further work on his file. After attending the status conference in which the matter was ordered to trial, Lynch indicated that he repeatedly requested authorization from Parnoff to work on the file; Parnoff, however, did not provide the necessary authorization. Under these circumstances, Lynch and the law firm requested permission to withdraw their appearance in this matter.

He thus was the author of his own travails

we disagree with Parnoff that the court abused its discretion by ordering this matter to trial. It is important to note that six years had elapsed between June 29, 2004, the date that Yuille received her arbitration award in this matter; Parnoff I, supra, 139 Conn. App. 153; and July 26, 2010, the date that Parnoff misappropriated the funds that had been placed in escrow pending resolution of the parties’ dispute. Another six and one-half years had passed before the court’s January 26, 2017 order directing that this matter was scheduled for trial. During this time, in addition to Parnoff I, supra, 147, and Parnoff II, supra, 163 Conn. App. 273, Yuille had also filed a grievance against Parnoff, alleging that he had violated the Rules of Professional Conduct by transferring and commingling the funds; this proceeding resulted in a formal reprimand being issued against Parnoff. Disciplinary Counsel v. Parnoff, 324 Conn. 505, 511, 513, 152 A.3d 1222 (2016). Moreover, Parnoff, an attorney with an active law license, as noted by the trial court, was a party to all of this litigation and would have had firsthand knowledge of the underlying proceedings and complicated history involving the disputed funds.

And rejected his "inconsistent verdict" contentions

It was a reasonable hypothesis for the jury to believe that at the time Parnoff converted the funds in 2010, he was no longer acting as Yuille’s attorney. Accordingly, because the jury’s answer to the interrogatory can be harmonized with the verdict, Parnoff cannot prevail on his claim that the verdict is irreconcilably inconsistent.

Notably (and I would have to say lamentably) Disciplinary Counsel v. Parnoff has the bar discipline story which involved the taking of the funds after the attorney had won the trial verdict that was reversed on appeal

“[The defendant] held the funds in escrow continuously [until] July 26, 2010, when the Chase Certificate of Deposit containing the funds, then in the amount of $363,960.87, was not renewed. The funds were transferred into [the defendant's] personal savings account.

As to knowing misappropriation

In the present case, the disciplinary proceeding before the court involved the defendant's alleged violation of rule 1.15(f) of our Rules of Professional Conduct. The alleged violation was based on (1) the defendant's failure to continue to safeguard funds that were the subject of the parties' long-standing fee dispute in an escrow account and (2) the commingling of those funds with the defendant's personal funds. The court found by clear and convincing evidence that the defendant had failed to keep the disputed fees in escrow and that he impermissibly allowed those funds to be transferred into his personal bank account. As Disciplinary Counsel aptly notes in her brief, scienter is generally not required to establish a violation of our rules of professional responsibility; see Daniels v. Statewide Grievance Committee, 72 Conn.App. 203, 211, 804 A.2d 1027 (2002); and the court did not require Disciplinary Counsel to prove as much in concluding that the defendant had violated rule 1.15(f).

In so ruling, however, the court, in essence, emphasized that the defendant lacked the knowledge that the funds belonged to Yuille. The court explained that the parties' fee dispute had a tortuous and very confusing procedural history, and that the defendant had acted in this case on the basis of an unreasonable belief that he no longer was required to maintain the disputed funds in the escrow account. Put in other terms, the court found that the defendant acted with carelessness rather than with the awareness necessary to find that the defendant violated Practice Book § 2–47A. Having made these findings, the court expressly found that the defendant's conduct “[d]id not give rise to a knowing misappropriation of funds pursuant to Practice Book § 2–47A.”

...In short, Disciplinary Counsel has failed to convince us that the court applied an incorrect legal standard in determining that the defendant's actions in the present case did not amount to a knowing misappropriation. Accordingly, her claim fails.

As did Disciplinary Counsel's other contentions

Finally, Disciplinary Counsel claims that a reprimand was an insufficient sanction given that the defendant unilaterally and unreasonably determined that the fee dispute had been resolved and allegedly misappropriated $363,760.86 of his client's funds. Accepting, as we must, the facts found by the court, we are not convinced that the court abused its discretion by only reprimanding the defendant.

Closing whitewash

In the present case, the court heard three days of testimony and arguments regarding the defendant's actions as they pertained to his safeguarding of the funds in dispute. This included testimony from the defendant. The court found that although the defendant failed to exercise properly his fiduciary and professional responsibilities to keep the disputed funds safe and separate from his personal account, he did not engage in a knowing misappropriation of the funds; rather, his conduct was negligent, based on a unreasonable belief that he no longer was required to keep the disputed funds in escrow. As we have already indicated in part II A of this opinion, the court's finding that the defendant's actions were negligent is supported by the record as a whole and, when viewed with the requisite presumption of correctness, rationally supports the court's exercise of its discretion to impose a more lenient sanction. Accordingly, we cannot conclude that the court's imposition of reprimand rather than the suspension or disbarment sought by Disciplinary Counsel was a clear abuse of discretion.

Our review of the record leaves us with no doubt that the actions of the defendant were, at best, unreasonable. We also fully agree with the statements of the court in In re Wilson that misappropriation of a client's funds cuts to the very heart of the trust that the public places in attorneys every day and in our legal system generally.  It is a fundamental duty of attorneys to safeguard and protect with the utmost diligence any property held by the attorney on behalf of his or her clients. “[T]he fiduciary relationship between an attorney and a client requires absolute perfect candor, openness and honesty, and the absence of any concealment or deception.” (Internal quotation marks omitted.) Disciplinary Counsel v. Smigelski, 124 Conn.App. 81, 89–90, 4 A .3d 336 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004, cert. denied, U.S., 132 S.Ct. 101, 181 L.Ed.2d 28 (2011). Nevertheless, the mere fact that a more severe sanction might have been justified given the nature of the violation does not mean that the court here manifestly abused its discretion in imposing a lesser sanction or that the discipline imposed amounted to an injustice that must be remedied by a reversal.

"At best, unreasonable" is, at best, a timid approach to enforcing a sacred fiduciary obligation. 

The Connecticut Supreme Court affirmed the above-recited conclusions of the Appellate Court. (Mike Frisch)

April 7, 2019 in Bar Discipline & Process, Billable Hours | Permalink | Comments (0)

Friday, April 5, 2019

Immaterial

Plaintiff Madonna Ciccone (popularly known by her first name) lost her fight against a condo association

The first and second causes of action challenge the propriety of defendant cooperative corporation's amendments of the lease and allege that defendant cooperative corporation acted in bad faith, and are therefore barred by the four-month statute of limitations on proceedings against bodies such as cooperative boards (see CPLR 217; 7802[a]; 7803[2]; Katz v Third Colony Corp., 101 AD3d 652 [1st Dept 2012], citing Buttitta v Greenwich House Coop. Apts., Inc., 11 AD3d 250, 251 [1st Dept 2004]). Defendant amended paragraph 14 of the proprietary lease to provide, in pertinent part, that "the children, grandchildren, parents, grandparents, brothers and sisters and domestic employees of the Lessee or Lessee's spouse or domestic partner" may occupy the apartment "while the Lessee or the Lessee's spouse or domestic partner are in residence." In the first cause of action, plaintiff seeks a declaration that paragraph 14 is void and unenforceable as against public policy and may not be enforced as against her, and that members of her family and one other occupant (and their children) may occupy her apartment whether or not she is "in residence." In the second, she alleges that the coop board amended paragraph 14 with the intention of interfering with her ability to use her apartment in a manner consistent with the original proprietary lease and that the board's actions were taken in bad faith. On appeal, plaintiff characterizes her claim as seeking a declaration of the meaning of the ambiguous phrase "in residence." However, that characterization conflicts with the claims asserted in her complaint.

The opinion of the New York Appellate Division for the First Judicial Department is linked here. (Mike Frisch)

April 5, 2019 | Permalink | Comments (0)

A Legend Passes

I learned yesterday of the passing of Jacob A. Stein, the undisputed dean of the Washington, D.C. Bar and the most universally respected and beloved attorney in the history of the City.

Many are respected; few are truly loved. 

I first got to know Jake as opposing counsel when I was a bar prosecutor in the 1980s. For some reason, he seemed to take a liking to me. 

I came under his wing when I left for Georgetown Law. As the ultimate "lawyers lawyer," every attorney in trouble came to Jake for advice and counsel. I became his ethics guy.

I served as an expert witness for his firm, provided ethics advice to his clients on a regular basis, served as a co-expert witness in litigation, co-authored an article for the Washington Lawyer magazine that advocated in favor of consent discipline, co-presented innumerable ethics talks (called the Jake and Mike Show) and had this unique and wonderful man as a mentor for the past twenty years.

Jake for many years wrote the back page of the monthly Bar magazine. Generations of lawyers knew him through these monthly gems. Anyone who can find the published collection Legal Spectator & More is in for a most enjoyable read as Jake's insightful vignettes are priceless.

His office was unique, no windows, wall-to-wall books. If those walls could talk they would cover 60 years at the center of the Washington arena - Watergate to Whitewater to Lewinsky and much more. 

Jake describes his office here. 

Did you know that Jake came out of the Watergate trial as a winner having secured an acquittal for defendant Ken Parkinson?

I have known a number of prominent people who on a personal level did not live up to their public image. 

Fortunately I have also known several who were as humane and decent in private as in public. Father Robert Drinan and Sam Dash immediately come to mind.

Jake Stein was as humble as he was great. 

If you were fortunate enough to get a call to go out to lunch, a stroll on Connecticut Avenue from his office to the lunch venue next to Jake was the best treat. Everyone knew Jake! A one-block walk would average a half dozen handshakes and stops to chat. 

He had a sparkling sense of humor. When he was appointed as Independent Counsel in the Ed Meese investigation, he was quoted as saying that he was gratified that, at an age where his other faculties were declining, he had acquired subpoena power. 

He had a genius for friendship and mentored generations of lawyers as he truly - more than anyone I have ever known - loved the practice of law and those who toil in the trenches.

He probably gave out more free advice than any lawyer in history as money was not what drove him to show up at the office - immaculately dressed and indisputably Jake - every day well into his 90s.

From Disciplinary Counsel Phil Fox

 His practice was  unusual in that while he was a figure of national stature—he later became an Independent Counsel himself—he had a truly local practice.  He wrote a treatise that was the Bible for D.C. torts law.  He served on the BPR and was president of the D.C. Bar.  But he did not seem to be a lawyer with a national practice, always traveling to other cities.  He was a D.C. guy.  He was also beloved for his eccentricities.  A visit to his law office was worth paying for.  No windows, every wall lined with book shelves, full of interesting and offbeat books and gimcracks of all shapes and sizes.  He used to run in long white pants, ala Big Bill Tilden.  He was a warm, kind soul about whom I never heard a negative word. 

And this was a man who spent a lifetime in litigation. 

We are poorer for his loss but immeasurably richer to have known such a wonderful person. (Mike Frisch)

April 5, 2019 | Permalink | Comments (0)

Thursday, April 4, 2019

Massachusetts Sanctions For Sex With Divorce Client And Child Porn Conviction

An attorney has been sanctioned by the Massachusetts Supreme Judicial Court for sex with a client

The client engaged the respondent in January 2011, to represent her in extending a temporary restraining order, that the client had obtained a few days earlier, against her husband. At some point, the respondent informed the client that he was also a former licensed social worker. In April, the client engaged the respondent to represent her in seeking a divorce from her husband.

From the beginning of the representation, the respondent’s correspondence with the client was unusually personal in tone. In early April 2011, the client was hospitalized because she had overdosed on drugs and alcohol. The respondent visited the client in the hospital. During May and June 2011, the respondent and client met in his office for a total of at least nineteen hours. During the final week of June 2011, the client was again hospitalized after overdosing on an over-the-counter pain reliever. The respondent again visited the client in the hospital.

At some point in the representation, the respondent and client began a romantic and sexual relationship. In August 2011, the client recognized the danger of being sexually involved with her divorce lawyer and spoke to him about obtaining new counsel. The respondent, however, continued to represent the client in the divorce until her death on October 1, 2011, resulting from an overdose of drugs and alcohol.

By representing the client in a divorce when his representation was materially limited by his own interest in his personal and sexual relationship with her, the respondent violated Mass. R. Prof. C. 1.7(b) (as in effect prior to March 26, 2015).

Sanction

This matter came before the Board of Bar Overseers on a stipulation of facts and disciplinary violations and a joint recommendation for suspension. On February 11, 2019, the Board voted to accept the stipulation and file an Information with the Supreme Judicial Court recommending that the respondent be suspended for one year and one day.

Another recently posted summary involved disbarment of a convicted attorney 

On September 29, 2016, the respondent pleaded guilty in the Hingham District Court to four counts of possession of child pornography, in violation of G.L. c. 272, § 29C, a felony. The respondent was sentenced to eighteen months in the house of correction, suspended for three years on various probationary terms.

The respondent’s conviction was based on the following facts. On March 8, 2009, the respondent brought his computer to a computer service for repairs. During the repair process, the technician identified several images of what he suspected was child pornography, and contacted the Hingham Police Department. The police obtained a search warrant and conducted a forensic analysis that showed that the respondent created and therefore possessed child pornography movies on four dates between September 2, 2008 and January 15, 2009. In each of the movies there were images of persons appearing to be under the age of eighteen engaged in acts of sexual conduct involving the sex organs of the child and the sex organs of another person. The respondent reasonably should have known that the person in the images was under age eighteen, and the respondent knew of the content and nature of the movies and images.

(Mike Frisch)

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

Bad Brother

A disciplinary summary from the web page of the Massachusetts Board of Bar Overseers

The respondent’s conviction was based on the following facts. The respondent was appointed by the Veterans Affairs Administration in the late 1990s to be a fiduciary and to
administer VA benefits for his brother-in-law, a veteran suffering from a mental disability. The respondent received his brother-in-law’s VA benefit payments and paid authorized expenses. At some points between October of 2008 and September of 2011, the respondent also misappropriated some of his brother-in-law’s funds to pay his own personal and family expenses totaling approximately $137,493. When asked by the VA to provide an accounting for the time period during which he had misappropriated funds, the respondent initially falsely claimed that he had earned legal fees in representing his brother-in-law in various matters. He later admitted his misappropriations in a voluntary statement to VA agents.

After conviction

The respondent admitted the charges set forth in the petition and did not request an opportunity to be heard in mitigation. On April 9, 2018, the board voted to recommend that the respondent be disbarred, retroactive to June 1, 2016, the date the respondent was temporarily suspended pending further disciplinary proceedings.

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