Wednesday, February 21, 2024

No Thanks For Sharing

A juror's outside research amounted to misconduct and warrants a new trial, according to a decision of the Tennessee Court of Appeals

A major issue at trial was whether Dr. Roussis fell below the standard of care by failing to administer epinephrine to Plaintiff when she had an anaphylactic reaction during labor. The jury found for Defendants. However, it emerged that a juror had gone home and looked at the warning on an epipen which said that epinephrine should only be used when the potential benefit justifies the potential risk to the fetus. The juror shared this information with the rest of the jury. Plaintiff filed a motion for a new trial, which the Trial Court first granted and then denied. Plaintiff appeals.

The case

In June 2009, Plaintiff was admitted to the Hospital in connection with her pregnancy. Plaintiff tested positive for Strep B and was given ampicillin. Plaintiff had a major anaphylactic reaction. Dr. Roussis arrived and documented his observations, writing in part:

Called to see patient because of SOB [shortness of breath]. . . . She is cyanotic with difficulty breathing. . . . BP [blood pressure] 140/95. P [pulse]:150-155 in severe distress. . . . Patient was on O2. In view of this [reaction] patient given Benadryl and solu-medrol IV and SQ brethine[.] No epi pen on floor at that time. . . . By 10:55, patient was doing better. . . .

Plaintiff later gave birth to Chayce, who suffered from brain damage. In October 2012, Plaintiff sued Defendants in the Trial Court alleging health care liability in Chayce’s delivery. The case was tried by jury.

(Mike Frisch)

February 21, 2024 | Permalink | Comments (0)

Tuesday, February 20, 2024

Employment Practices Draw Proposed Suspension

I have closely monitered the proceedings against two Respondents in the District of Columbia and was thus surprised that a November 2023 Hearing Committee report finding misconduct was only recently posted on the Bar's web page

The Hearing Committee concludes that each Respondent has committed multiple violations of each Rule cited by Disciplinary Counsel other than Rules 5.1(a) and 5.3(a)—twenty-eight by Mr. Tully and thirty-four by Mr. Rinckey—and recommends a ninety-day suspension for each Respondent.

I had previously blogged on the "cutting edge" charges.

Respondents refer to themselves as the “Founding Partners” or “Managing Partners” of Tully Rinckey. Until 2020 and at all relevant times, they were the only lawyers with an equity interest in the Firm. Respondents actively managed the Firm. All other lawyers reported to them either directly or indirectly. Respondents established, delegated, approved, and enforced Firm policies, practices, and procedures, many of which were set forth in the Firm’s Standard Operating Procedures (SOPs). Respondents also approved and enforced the provisions of certain document templates, including engagement agreements (aka retainer agreements), employment agreements, confidentiality agreements, and separation agreements.

Findings

The Respondents were well aware of—and indeed, directed and ratified—repeated conduct of their lawyer and non-lawyer subordinates that violated the D.C. Rules of Professional Conduct. This conduct included the provisions in employment agreements and separation agreements that levied liquidated damages, mandated referral fees, prohibited client contact, and prohibited post-employment association with other Firm alumni. Indeed, the Respondents have not claimed that their subordinates acted without their knowledge, and the record amply demonstrates that during the period in question, micromanagement by whichever Respondent was serving as the Firm’s overall managing partner was the order of the day at Tully Rinckey. This course of conduct by the Respondents violated Rules 5.1(b), 5.1(c)(1), 5.1(c)(2), and 5.3(b).

The Firm had a practice of transferring the clients of departing lawyers to other Firm lawyers, barring the departing lawyers from contacting those clients in connection with their departures, and advising those clients—sometimes unilaterally and sometimes by a joint letter—that their matters had been transferred to other lawyers in the Firm. E.g., FF 58-60, 68, 71, 73, 80-81, 88. Numerous separation agreements implementing this policy were signed for the Firm by each Respondent. FF 60, 73, 81, 88; see FF 101; DCX 45 at 1. When it excluded the departing lawyer from any role in formulating or sending a communication to the clients about their right to choose who would represent them going forward, the latter aspect of this practice arguably violated Rules 1.4 and 5.6(a) because it removed the departing lawyer from the notification process. D.C. Bar Ethics Op. 221 (Oct. 1991). Because the exclusion of departing lawyers was episodic and the Firm’s SOPs contemplated the sending of a joint letter (Tr. 148-49 (discussing RX 21)), however, we do not find a violation of Rule 5.1(a) or Rule 5.3(a).

Similarly, although the Firm’s SOPs did not expressly direct that clients be told where their departing lawyers were going, Mr. Rinckey testified credibly that the Firm’s staff members were instructed to provide that information. FF 112. There was testimony about failures to advise clients of Mr. Watkins and Ms. D’Agostino where their lawyers had gone, FF 21, 112, as well as Ms. Gregerson’s testimony that someone who was not identified told her not to disclose such information even if asked by a client, FF 65, but not clear and convincing evidence that these were systemic. Accordingly, we do not find a violation of Rule 5.1(a) or 5.3(a) in these three failures to advise clients where their lawyers were bound.

A rare "failure to report" violation

Rule 8.3 does not require the reporting of every violation of the Rules. D.C. Rule 8.3 cmt. [3]. Instead, it “limits the reporting obligation to those offenses that aself-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of [the] rule.” Id. As then-Bar Counsel Leonard Becker put it, Rule 8.3(a) “ultimately accords a wide degree of judgment to a reporting lawyer. Except in truly egregious cases, Bar Counsel would be hard-pressed to second-guess . . . judgments [not to report] or to seek discipline by asserting the requisite ‘clear and convincing’ evidence of misconduct in failing to report.” Leonard Becker, “Early Experience Under the ‘Snitch’ Rule,” Wash. Lawyer, Nov.-Dec. 1992, at 8 (emphasis added). Thus, there are violations of the Rules of Professional Conduct whose reporting is not mandatory. The non-cooperation provisions of the various agreements under consideration here prohibited lawyers in the Firm from reporting such violations and this charge accordingly is sustained.

Sanction

The record in this matter reflects dozens of violations—by each of the Respondents and, at their direction, by lawyer and non-lawyer subordinates whom they closely supervised. That their actions were violations of the D.C. Rules of Professional Conduct was—or should have been—apparent well before the issuance of LEO 368. Moreover, some violations occurred even after the issuance of that opinion.

We have carefully considered the Respondents’ Rule violations in light of the sanction factors enumerated above. As the Court recently reiterated, the appropriate sanction must aim “not only to maintain the integrity of the profession and to protect the public and the courts, but also to deter other attorneys from engaging in similar misconduct.” In re Blackwell, 299 A.3d 561, 572 (D.C. 2023) (quoting Martin, 67 A.3d at 1053). On the facts of this case, we cannot conclude that a Board reprimand is a sanction sufficient to meet that standard. On the other hand, we are not persuaded that the Respondents’ misconduct merits a six-month suspension, particularly in light of the factors in mitigation.

For the foregoing reasons, the Committee finds that each Respondent violated the Rules specified in the Appendix and recommends that each should receive the sanction of a ninety-day suspension.  We further recommend that the Respondents’ attention be directed to the requirements of D.C. Bar R. XI, § 14, and their effect on eligibility for reinstatement. See D.C. Bar R. XI, § 16(c).

Channeling Captain Queeg

The Respondents had established video surveillance whereby they could observe the public areas of the D.C. Office from Albany. Tr. 459. In one instance Mr. Tully, who was not physically in the D.C. Office, phoned a lawyer in the D.C. Office to complain that the lawyer’s shirt was not tucked in. Tr. 414-15

Question: Why was a November 2023 decision (a public document) just recently posted on the Bar's web page?

My speculation on the answer is that the concerns that motivated a protective order entered by the Board on Professional Responsibility (described here) trumped any commitment to transparency. ( Mike Frisch)

February 20, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Green Bay Swept

The United States District Court for the District of Columbia (Judge Kollar-Kotelly)  has ordered Peter Navarro to show cause why he should not be held in contempt for failure to produce records to the proper owner the United States.

In sum, based on the Court’s review of Defendant’s random sampling, it is clear that Defendant continues to possess Presidential records that have not been produced to their rightful owner, the United States. It is likewise clear that Defendant’s error rate is not minimal or negligible, and is likely “unacceptably high.” Given Plaintiff’s difficulty in obtaining its Presidential records, additional supervision of Defendant’s compliance with this Court’s judgment is warranted. To accomplish this goal, the Court shall refer this matter to a magistrate judge to ensure that Defendant provides all Presidential records to Plaintiff, including but not limited to the twelve records already identified by this Court.

Accordingly, Plaintiff’s [30] Motion to Enforce is GRANTED. Defendant is ordered to SHOW CAUSE why he should not be held in contempt of the Court’s judgment, on or before March 21, 2024. Upon receipt of Defendant’s response to the Court’s Show Cause Order, theCourt shall refer this matter to a magistrate judge for supervision, with the aim of bringing this litigation to its final resolution. The magistrate judge shall also review the sixteen records in Defendant’s random sampling to determine whether those records are Presidential records or personal records. Meanwhile, the Court directs Defendant to reprocess the remaining records in his possession on or before March 20, 2024, which appears to be approximately 600 records, see ECF No. 31 at 3, in accordance with this Memorandum Opinion and Order to determine whether additional records are identified as responsive and can be produced to Plaintiff prior to this matter being assigned to a magistrate judge. Defendant’s production to Plaintiff shall include the twelve
records (the emails and any corresponding attachments) identified by this Court to be Presidential records: DCD Review 2; DCD Review 6; DCD Review 137; DCD Review 251; DCD Review 389; DCD Review 434; DCD Review 438; DCD Review 452; DCD Review 483; DCD Review 480; DCD Review 519; and DCD Review 526.

(Mike Frisch)

February 20, 2024 in Current Affairs | Permalink | Comments (0)

Not Admitted But Reprimanded

A Tennessee attorney - not licensed in Virginia - has been publicly reprimanded without terms by the Virginia State Bar Disciplinary Board.

A jail inmate had contacted Respondent via his website concerning representation for a sexual assault she allegedly had suffered while incarcerated in Augusta County, Virginia.

The scope of the representation was for "investigative purposes only" but did not disclose that Respondent was not admitted in Virginia or the need for local counsel.

Respondent would testiftythat they had online chats on his website, which indicated his admission was limited to Tennessee.

After some communication issues, Respondent provided a draft complaint to the complainant, which she filed pro se.

After a motion to dismiss was filed, Complainant retained counsel who amended the complaint.

Respondent was sanctioned in Tennessee for trust account issues.

Effective April 20, 2023, the Supreme Court of Tennessee, pursuant to Tennessee Supreme Court Rule 9, Sections 12.2 and 14.1, suspended Troy Lee Bowlin from the practice of law for three (3) years with thirty (30) days served as an active suspension and remainder served on probation with conditions, including completion of the Board Trust Account Workshop, an immediate independent audit and reconciliation of all trust accounts by a certified public accountant, monthly reconciliation of trust account by Mr. Bowlin, with review of the trust account by a certified public accountant every six months, and completion of five additional continuing legal education ethics hours each suspension year.

A Petition for Discipline containing one (1) complaint was filed by the Board on March 1, 2022. Mr. Bowlin failed to properly maintain client and third-party funds in the law firm’s trust account, failed to audit and reconcile the firm’s trust account on a reasonable basis, and failed to make reasonable efforts to ensure his firm had effective measures in place to properly oversee that nonlawyer staff conduct was compatible with his professional obligations.

Mr. Bowlin executed a conditional guilty plea acknowledging his conduct violated Tennessee Rules of Professional Conduct 1.15 (safekeeping property and funds) and 5.3 (responsibilities regarding nonlawyer assistants).

(Mike Frisch)

February 20, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Adams and McAdams

Dan Trevas reported on a disciplinary sanction imposed by the Ohio Supreme Court

The Supreme Court of Ohio today disbarred a Hamilton attorney and ordered him to pay more than $25,000 in restitution to his former clients and others harmed by his misconduct.

The Supreme Court found Dennis L. Adams committed 19 ethics violations in three client matters, including neglect that led to a woman having her Social Security benefits garnished to pay for injuries she suffered in an auto accident.

In a per curiam opinion, the Court found that Adams misled clients, misused their settlement funds, and neglected their cases. The Court stated that Adams’ lack of cooperation in the resulting disciplinary investigations, coupled with the harm he caused vulnerable clients, and his failure to acknowledge the wrongful nature of his actions warranted permanent disbarment.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the opinion. Justice Jennifer Brunner did not participate in the case.

Money Meant for Client Medical Bills Goes Missing

The Office of Disciplinary Counsel filed a complaint against Adams with the Board of Professional Conduct in September 2022. Among the clients that Adams harmed was Teresa McAdams. In July 2017, McAdams and her husband hired Adams to represent them in a lawsuit against a driver of another vehicle who seriously injured McAdams. The couple signed a contingent fee agreement with Adams, entitling him to 33 percent of any amount recovered.

Adams filed a lawsuit in Butler County Common Pleas Court against the driver and against Allstate Fire and Casualty Insurance Company, which provided McAdams’ uninsured/underinsured motorist coverage. A year later, Adams settled the claim with the other driver for $22,000.

Part of McAdams’ treatment for her injuries was paid for by Medicaid and Medicare. Adams told her that he was withholding part of the settlement to reimburse Medicaid $1,726 and Medicare $3,969. Adams paid Medicaid, but not Medicare.

Meanwhile, the lawsuit against Allstate was still pending. In March 2019, Adams voluntarily dismissed that case without telling the couple. He also missed the one-year deadline to refile the case.

In 2019, McAdams received a letter informing her that her Social Security benefits would be reduced by up to 15% monthly to reimburse Medicare for her accident-related treatment. McAdams forwarded the letter to Adams, who did not respond. He eventually met with McAdams and told her he would handle the matter with Medicare and Social Security. He also told her that he expected to settle the case with Allstate at the end of the year without disclosing that he had dismissed that case.

McAdams persistently asked Adams for information about the case, and he offered no substantive responses to her inquiries. He made no payments to Medicare, and by July 2022, her Social Security benefits had been reduced by $3,993 to satisfy the Medicare debt that, with interest, had grown to more than $4,100.

The couple eventually hired a new lawyer who told them that their case against Allstate had been dismissed more than two years earlier and that the time to refile it had expired.

The Board of Professional Conduct determined that Adams was entitled to a $7,260 fee from the $22,000 settlement with the driver. After subtracting the payment of the Medicaid bill, the couple should have received nearly $13,000.

Adams only participation in a disciplinary proceeding regarding the McAdams matter was to appear for a deposition. At the deposition, he could not explain why he had not disbursed any settlement funds to the couple. He maintained that his computer had crashed and that he had health issues that were impacting his memory, concentration, vision, and balance. After the deposition, Adams did not fulfill his promise to provide information to explain what had happened to the missing money.

The board found Adams violated several ethics rules, including failing to keep a client reasonably informed about the status of a matter, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The board also determined he knowingly failed to respond to a demand for information during a disciplinary investigation.

The board recommended and the Court agreed that Adams should pay McAdams $12,971.74 in restitution. The Court also noted that the couple sued Adams in 2022 for malpractice. The couple received a default judgment because Adams did not respond to the lawsuit. The trial court awarded the couple $272,000 in damages.

Adams also engaged in similar conduct with two other clients. He entered into contingent fee agreements and improperly withheld portions of the settlements. As a result of his neglect, his clients had to pay other attorneys to handle their matters and, in one case, another party had to pay for expenses incurred by Adams’ injured client. In addition to paying restitution to McAdams, the Court ordered Adams to pay $12,965 in restitution and court costs in those cases.

2022-1256Disciplinary Counsel v. AdamsSlip Opinion No. 2024-Ohio-559.

(Mike Frisch)

February 20, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Fine For Email

The Quebec Bar Disciplinary Board has ordered a fine as the appropriate sanction for an intemperate email

  In Quebec, on March 20, 2023, while representing the mother in a case before the Court of Quebec, youth division, failed in his duty to act with honor, dignity, integrity, respect , moderation and courtesy to Me A., attorney for the plaintiff, by sending her the following email:

“Stop pissing me off arrogant.... it's your duty, the delays were caused by your client and the father. So get the father's position, rather than pissing me off with useless spam. » (sic)

Thus contravening article 4 of the Code of Ethics of Lawyers 

The email in French

 Arrète de me faire chier arrogante .... fait t devoir, les délais ont été occasionner par ta cliente et le père. Obtient donc la position du père, plutôt que de me faire chier avec t pourriel inutile. » (sic)

Priors

  The complainant's evidence reveals the existence of a warning from the Office of the Syndic of the Barreau du Québec given to the respondent in October 2009 for disrespectful remarks he allegedly made towards a client 

Furthermore, the respondent has a disciplinary history following a decision rendered by the disciplinary council of the Barreau du Québec having imposed a reprimand on him for having communicated with a social worker from a youth center then that she was represented by a lawyer. 

Sanction

After analysis, the Council decides to accept the complainant's suggestion of sanction and to impose on the respondent a fine of $3,500 as well as payment of the disbursements provided for in the fourth paragraph of article 151 C. prof .

Without giving undue importance to exemplarity, the Council considers that this sanction imposed on the respondent sends a clear message to other lawyers not to adopt the respondent's conduct.

This sanction is necessary to ensure the protection of the public . It is sufficiently dissuasive for the respondent and, through its exemplary nature, it will dissuade other members of the Quebec Bar from committing an offense of the same nature.

It also takes into account the respondent's right to practice his profession as well as his rehabilitation.

(mike Frisch)

February 20, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Without Provocation Or Proof

The Tennessee Board of Judicial Conduct has publicly reprimanded a judge for "injudicious comments" in a post conviction proceeding about Shelby County's former District Attorney General and the former judge who had initially handled the case.

Additional, the judge had engaged in ex parte conversations with the prosecutor's office and made statements that suggested she had "predetermined the outcome and directed the actions of the parties to reach a certain result."

The reprimand notes that the sanctioned judge "took time during her oral ruling to unnecessarily and without provocation or proof, call into question the character of members of the judicial system and, indirectly, the system as a whole."

I--believe me. I practiced in there. It was not fun. They just piled up on people.

The judge accepted the sanction, made no excuses for the injudicious remarks, and has no record of prior discipline.

News Channel 3 reported on an unrelated matter involving the judge

A Shelby County judge has filed an order of protection against her brother, who happens to work in the DA’s office and is also a former judge.

Earlier this month, Criminal Court Division 1 Judge Paula Skahan filed a protection order against Gerald Skahan, a former judge.

Attorney Mark McDaniel Senior spoke with WREG by phone. He represents Judge Paula Skahan.

“I think it’s a family feud where I believe emotions just got the better of folks and steps had to be taken to calm the emotions,” McDaniel said. “There were some family health issues that were involved, you know, that kind of created the perfect storm.”

According to the order of protection, Gerald Skahan allegedly threatened to kill his sister.

“There were text messages that were sent on three occasions, one directly to Judge Skahan and the other two to family members. The text messages suggested a threat of bodily injury,” McDaniel said.

One text allegedly sent by Gerald Skahan reads, “She will be lucky if I don’t kill her before I go.”

Gerald Skahan, the DA’s special assistant for post-conviction litigation, allegedly made the threats because he blames his sister for his 2022 election loss and because of a family will.

WREG was not able to reach Gerald Skahan for comment, but we did talk to DA Steve Mulroy.

“I’m sorry we just can’t go into that. It’s a pending matter and a personal matter,” Mulroy said. “My understanding is there’s been an agreement reached that if there’s no further development in six months the case is going to go away. That’s what I heard from all parties involved.”

That agreement could possibly end a high-profile family feud between a sister and brother.

“Fortunately, they have reached an amicable resolution and really don’t anticipate any further problems,” McDaniel said.

The D.A.’s Office also sent a statement to us saying, “We are aware of the order of protection that exists between our employee and a family member. While orders of protection don’t imply guilt, any legal matter involving an employee is always reviewed by our office.”

WREG has also learned a February 1 hearing has been scheduled regarding the dispute, but if there are no further issues the order of protection could be dismissed.

(Mike Frisch)

February 20, 2024 in Judicial Ethics and the Courts | Permalink | Comments (0)

Orphaned

The Rhode Island Supreme Court has accepted an attorney's consent to disbarment.

The Providence Journal reported

The son of a former Central Falls police officer is accused of collecting his father's pension after his father and mother died, according to the Central Falls police.

Raymond J. Haskell, Jr., an attorney, is accused of fraudulently receiving $63,479.28 from the City of Central Falls since June 2014, according to a press release from the Central Falls Police Department.

Haskell turned himself over to police Thursday morning and will be charged with obtaining money under false pretenses, a felony; identity fraud, a felony; forgery, a felony; and giving false documents to a public official, a misdemeanor, the police said.

Yahoo! Finance noted a no contest plea to the charges. (Mike Frisch)

February 20, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Tantamount To Theft

A string of disciplinary violations has resulted in an order of permanent disbarment from the Ohio Supreme Court

No mitigating factors and six aggravating factors are present in this case. As noted above, Vick has previously been disciplined for similar acts of misconduct, including the neglect of six client matters, the failure to reasonably communicate with those clients, the misappropriation of client funds, and the failure to cooperate in the ensuing disciplinary investigation. See Gov.Bar R. V(13)(B)(1); Vick, 168 Ohio St.3d 683, 2022-Ohio-2541, 200 N.E.3d 1118. A significant part of Vick’s misconduct in the Lupica and Rector matters occurred contemporaneously with the misconduct at issue in his earlier disciplinary case. He also failed to cooperate in the investigation of his alleged misconduct with respect to Lupica and Rector and engaged in additional misconduct in the Campbell matter—even as he stipulated to engaging in the same types of misconduct in his earlier case. See Gov.Bar R. V(13)(B)(5).

The four remaining aggravating factors consist of Vick’s selfish motive, his commission of multiple offenses, his failure to acknowledge the wrongful nature of his misconduct, and his failure to make restitution to Lupica and Campbell. See Gov.Bar R. V(13)(B)(2), (4), (7), and (9).

As part of the sanction for his grand-theft conviction, Vick has been ordered to pay restitution of $3,500 to Lupica and $3,000 to Campbell. Therefore, the board recommended that no additional order of restitution was necessary with respect to them. The board also found that the Lawyers’ Fund for Client Protection is entitled to reimbursement of $5,000 for an award it made to another of Vick’s former clients for a fee that Vick collected but did not earn.

“Taking retainers and failing to carry out contracts of employment is tantamount to theft of the fee from the client.” Cincinnati Bar Assn. v. Weaver, 102 Ohio St.3d 264, 2004-Ohio-2683, 809 N.E.2d 1113, ¶ 16, citing Disciplinary Counsel v. Sigall, 14 Ohio St.3d 15, 17, 470 N.E.2d 886 (1984). The presumptive sanction for such acts of misappropriation is disbarment. Id., citing Disciplinary Counsel v. France, 97 Ohio St.3d 240, 2002-Ohio-5945, 778 N.E.2d 573, ¶ 11.

In this case, Vick has also neglected three client matters, failed to reasonably communicate with those clients, failed to comply with their requests for information, made false statements to Campbell, and failed to return Campbell’s file to him. Vick’s misconduct in the Rector matter was prejudicial to the administration of justice in that it deprived Rector of the opportunity to have his legal claim decided on the merits. Vick’s complete failure to cooperate in the resulting disciplinary proceedings has now culminated in the recommendation of relator and the board that we impose the ultimate sanction of permanent disbarment in this default proceeding.

(Mike Frisch)

February 20, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, February 18, 2024

Admissions Draw Amended Charges

The recent resolution of a criminal case led Vermont Disciplinary Counsel to seek amendment to disciplinary charges filed in 2019 and stayed shortly thereafter

In November 2023, as part of a Diversion Resolution Agreement with the Attorney General’s Office, Respondent provided certain personal representations of fact and sworn testimony to the Bennington Superior Court Criminal Division in order to resolve a parallel criminal prosecution of him, State v. Fink. This prosecution concerned the same July 17, 2017 sexual assault by Respondent on JH that formed the original basis for this disciplinary proceeding. Respondent’s recent representations and testimonial admissions to the Bennington Superior Court concerning the non consensual nature of his July 17, 2017 encounter with JH and the intimate areas of her body touched by him directly contradict written representations made by Respondent, through his counsel, to predecessor Disciplinary Counsel in an August 2018 letter.

Therefore, in keeping with Vermont Rule of Civil Procedure 15(a)’s directive that leave to amend “shall be freely given when justice so requires,” Disciplinary Counsel seeks to amend the February 2019 Petition of Misconduct in this matter to allege additional disciplinary rule violations against Respondent under Vermont Rules of Professional Conduct 8.1(a), 8.4(c) and 3.3(a)(1). The proposed amendments seek to charge Respondent with (1) making false representations to Disciplinary Counsel in August 2018 when he unequivocally denied his nowadmitted coercive and lewd physical contact with JH during a July 17, 2017 meeting (proposed Count 2); and (2) for making false statements and/or misleading omissions to the Bennington Superior Court in November 2023 about the full extent and true nature of his sexually violent conduct toward JH on July 17, 2017 (proposed Count 3).

The original charges and answer are linked.

Bennington Banner reported on the criminal case

The victim of a 2017 sexual assault in Peru involving a well-known Vermont attorney wants to set the record straight as to what happened to her over six years ago, her years-long struggle to find justice, and the reason why she ultimately agreed to a lenient outcome for the defendant in the case.

The Banner published a story on Wednesday detailing the deal reached between prosecutors from the Vermont Attorney General’s office and Melvin Fink, 80, of Springfield and his defense lawyer, David Sleigh. The deal allowed Fink, initially charged with three counts of lewd and lascivious conduct, to participate in a diversion program that does not require a guilty plea and — if completed — would erase the case entirely from the record.

Fink filed motions to dismiss two of the charges, granted in 2020 and 2023, leaving one felony count still standing.

When Bennington State’s Attorney Erica Marthage caught wind of the deal on Monday, she immediately raised her objections, filing a notice of opposition on the grounds that the sexual nature of the charges would not qualify for Vermont’s diversion program. She also added that there was no required memorandum of understanding with Bennington’s diversion program. Marthage was especially incensed that Fink would have the whole case erased from the record if he completed the program.

In a hearing Tuesday, Assistant Attorney General Paul Barkus announced that, because of the objection, the state would change the felony charge of lewd and lascivious conduct to a “prohibited conduct” charge, a misdemeanor, qualifying Fink for the program. Barkus also announced that he, at his discretion, would transfer the diversion to Rutland, where it would be accepted.

Backus told the courtroom that the victim agreed with the outcome.

The victim, Jeanne Howell, reached out to the Banner on Wednesday to correct some details from the hearing, but agreed to share her story with us.

Fink was a family court attorney representing a man, John Howell, in a custody case during both 2016 and 2017. On June 6 of that year, Fink recused himself from representing Howell in court for unknown reasons.

However, according to the victim in the case, Jeanne Howell stayed on with the family in a professional, advisory role. Howell told the Banner that Fink told her he could still help with the case, but would have to go through the mother, Howell, instead of directly with John Howell, for future hearings.

On July 17, 2017, according to a police affidavit, Howell told the police that she and Fink exchanged phone calls and emails relating to an upcoming hearing in her son’s case. It was decided that she would meet Fink at his legal office. According to Howell, Fink called back and requested the meeting be switched to her home in Peru. Howell stated that she was home preparing for a showing of her house by a real estate agent when, all of a sudden, she turned around to see Fink in her home, standing several rooms in from the front entrance.

Fink then allegedly told Howell she was “captivating” and asked her if she knew how captivating she was. Still focused on the upcoming case, Howell responded with, “Thank you.” Fink then followed Howell to her kitchen, telling her he “wanted to pleasure her” and asking if she "believed in chemistry.”

Howell stated that he then grabbed the back of her head, pulling it toward him, and pushed his tongue in her mouth. At the same time, Howell says Fink, with his other hand, grabbed her by the back, sliding it down to her buttocks, then pushing his fingers into her anus from outside her clothing.

“This has been going on for the past six years,” Howell told the Banner in an interview a day after the hearing.

Howell told us she wanted to tell her side of the story to clear up any misunderstandings of why she agreed to the diversion and why it matters.

“I was not initially in agreement with that,” Howell said. “I wanted it to stay as a felony and I was ready to go to trial. However, after having multiple meetings with the attorney general and the victim advocate, I was told, 'Okay, if he goes to trial, he wins, or he loses, it doesn't matter, but he will never confess to what he did during that trial.'”

“I wanted him to confess,” Howell said. "At the hearing, we had four or five versions of a statement he would read. They slowly changed it. It finally came back to what we would accept. I want to say I'm part of this diversion, telling the State of Vermont and its residents that this is who he is. I wouldn’t have gotten that chance if it had gone to trial. I just need justice for me, my son, and my granddaughter. This was a way of forcing him to say what happened so everyone knows.”

Howell feels that although the diversion program might eventually erase the case, at least for now there is a record of it, and that maybe some good can come from it.

“I just have not been doing nothing for five years,” Howell said. “It’s not right what happened. I do not want that to happen to anyone else. You know, it was just horrible. I live with that. I want people to know that I have fought to go to trial all these years. I realized what would be the outcome if he did not confess to anything. At least for now he does not harm anyone again. This was the best outcome for the safety of the females. It's time.”

According to the attorney general’s office, Fink will now participate in the diversion program through Rutland.

The Rutland County State’s Attorney, Ian Sullivan, reached out to correct a detail in yesterday’s story which said that his office was part of the decision and allowed the diversion to take place in Rutland. The Rutland State’s Attorney stated he did not participate in the case and did not decide to enable it.

The Vermont Supreme Court previously suspended Respondent for 30 days based on a violation of Rule 4.2. (Mike Frisch)

February 18, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Crossing The Rubicon: Disbarment In Tennessee

In a 79-page opinion, the Tennessee Supreme Court disbarred an attorney

In this lawyer disciplinary case, the lawyer’s conduct compels disbarment. The lawyer sent a series of intimidating, demeaning, embarrassing, and harassing communications to opposing counsel and others. Some targeted family members of opposing counsel, including one family member who was also a former client, and caused well-founded concern for their well-being and safety. In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the purpose of the communications was to intimidate opposing counsel in order to gain unfair advantage in pending litigation. It concluded inter alia that the lawyer’s conduct was prejudicial to the administration of justice, that he failed to respect the rights of third persons, and that he violated his duty to a former client, in violation of Tennessee’s Rules of Professional Conduct.

The trial court had recommended a two-year suspension

Both parties appeal. Here, the lawyer’s conduct was egregious. Victimizing the families of opposing counsel and causing concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. The hearing panel’s decision to deviate downward from the presumptive sanction of disbarment was arbitrary and capricious, and the lawyer must be disbarred. Accordingly, we modify the judgment of the hearing panel and impose the sanction of disbarment.

Respondent

Mr. Manookian was licensed as a lawyer in Tennessee in 2007. That same year, he was hired as an associate in the law firm of attorney C.J. Gideon. The firm principally represented health care providers in malpractice litigation. During Mr. Manookian’s employment, he spent time with Mr. Gideon’s family. They developed somewhat of a friendship.

The relationship deteriorated in 2011 when Mr. Gideon received reports of Mr. Manookian’s poor work performance. Mr. Gideon eventually told Mr. Manookian he would be fired if his performance did not improve. Soon after, Mr. Gideon asked Mr. Manookian about whether discovery requests had been issued in a case, and Mr. Manookian provided a false response. Mr. Gideon then terminated Mr. Manookian’s employment.

After that, Mr. Manookian and Mr. Gideon had little contact with one another. Mr. Manookian later began practicing with Brian Cummings at Cummings Manookian PLC.

He was involved in matters where opposing counsel had died suddenly

The day Mr. Geracioti died, after receiving notice of his death, Mr. Manookian and Mr. Cummings filed a motion for default judgment against Mr. Geracioti’s clients. Four days later, Mr. Manookian sent a letter to Mr. Geracioti’s associate, threatening to assert an $8,000,000 claim against her clients, her law firm, and Mr. Geracioti’s estate.

The judge expressed concern about the conduct of Respondent and his co-counsel

This Court is profoundly disappointed in the conduct of plaintiff’s counsel and the timing and manner in which the Motion for Default was presented. Being a zealous advocate does not mean that one abandons all sense of professionalism, courtesy and common decency.

Mr. Gideon was substituted as opposing counsel in another matter and expressed concern about discovery responses.

Two days later, Respondent emailed

Clarence –

I hear [name of Mr. Gideon’s daughter] is working at [name of daughter’s employer]. What a fantastic opportunity; particularly given her history of academic failure and alcohol and substance abuse.

I happen to have some very close friends at [name of daughter’s employer].

I will make it a point to see what I can do regarding her prospects there.

I am reminded that it is good for us to keep apprised of each other’s lives and the things we can do to influence them.

The email referenced an incident that had taken place when Respondent was employed by Gideon

Mr. Gideon said Mr. Manookian’s email made him sick to his stomach and angry that “anybody would be so low to attack an opponent through their kids.” He said it provoked “unbelievable anxiety over what [Mr. Manookian] was going to do to my daughter” and a helpless feeling that “I wouldn’t be able to do anything about it.” Mr. Gideon saw the intent of the email as a “brushback pitch to get me to back off” in the Shao litigation, to send the message: “Don’t be so vigorous in defending these people against their claims.

Respondent had represented Gideon's son as the victim in an internet "catfishing" scheme

After investigating, Mr. Manookian determined the sender was a man, not the beautiful woman depicted in the photos. Mr. Manookian located the man, sued him on behalf on Mr. Gideon’s son, and the matter was concluded by the defendant paying a financial settlement. Though the lawsuit was not sealed, Mr. Gideon said it never made any headlines, few people knew about it, and it “certainly wasn’t in the public domain.” He said neither he nor his son heard another word about the matter until Mr. Manookian inserted it into the Shao litigation.

Gideon filed a bar complaint and sought sanctions in the litigation.

[Respondent] inserted into his filed response a footnote [“Footnote 1”] that contained information about Mr. Gideon’s son, whom Mr. Manookian had represented on a sensitive sexual matter while he was employed by Mr. Gideon’s firm:

Mr. Manookian’s prior experience with Mr. Gideon’s adult children is limited to having successfully represented his adult son in a matter involving Mr. Gideon’s adult son exchanging sexually graphic emails with a much older man for the sexual gratification of the older man.

The footnote included detail such as the heading of the case naming Mr. Gideon’s son, the court in which it was filed, the docket number, and the pleading with specific page references where the referenced sexual information could be found. Mr. Manookian’s filed response did not explain how the information in Footnote 1 related to the subject matter of Mr. Gideon’s motion for sanctions.

The sanctions hearing

Judge Brothers declined to credit Mr. Manookian’s explanation. Instead, Judge Brothers viewed the email as a “thinly veiled threat.” He likened Mr. Manookian’s email to a scene “in a gangster movie” where a “mobster” says “just want to let you know, I know where you live, I know where your children go to school . . . and I know what kind of car you drive” and adds “y’all have a great day” before he walks away.

There were issues in another matter involving a case inherited from the deceased attorney that led to sanctions and an appeal

The Court of Appeals rejected these arguments. It observed that the Tennessee Rules of Professional Conduct and the Davidson County Local Rules of Practice inherently require attorneys to “conduct themselves in an ethical, civil, and professional manner— and implicit in this requirement is the prohibition on conduct that ‘threatens, insults, disparages, demeans, or embarrasses.’” Id. The appellate court denied Mr. Manookian any relief on his claims. Id.

There was no appeal from the intermediate appellate court’s decision.

An interim suspension was imposed and the matters were heard by a hearing panel which opined

Lawyers make mistakes. Some lawyers make numerous mistakes.

This matter is not about a lawyer making mistakes. Instead, it is about a lawyer who recklessly accused a judge of being corrupt, repeatedly belittled and degraded opposing counsel, and made a threat against another lawyer’s family.

Prior to appearing before this panel, Brian Manookian had a history of failing to adhere to the Rules of Professional Conduct and ignoring warnings from members of the judiciary. He has already been sanctioned and suspended from the practice of law on multiple occasions, yet his unethical conduct continued.

Both sides appealed the proposed two-year suspension.

The court here rejected Respondent's claim of First Amendment protection

In sum, the First Amendment offers no shield to Mr. Manookian from discipline for the ethics violations in this appeal. As in Gentile, Mr. Manookian “as a citizen [cannot] be denied any of the common rights of citizens.” 501 U.S. at 1074 (quoting In re Cohen, 166 N.E.2d 672, 675 (N.Y. 1960)). But he stands before this Court “in another quite different capacity, also. As a lawyer he was an officer of the court, and, like the court itself, an instrument of justice.” Id. (quoting In re Cohen, 166 N.E.2d at 675) (cleaned up).

The court sustained the findings of Rule violations.

Sanction

Mr. Manookian engaged in this long pattern of intimidating and degrading conduct in order to succeed in Shao by coercing opposing counsel into standing down to avoid personal humiliation and emotional distress for them or their families. A business model of sorts, based on fear. In re Sitton, 618 S.W.3d at 307 (describing lawyer’s pattern of misconduct as essentially cultivating “a business model as a ‘liar for hire’”) (quoting Matter of Edson, 530 A.2d 1246, 1249 (N.J. 1987)).

The length to which Mr. Manookian went to obtain detailed private information about opposing counsel also warrants comment. Mr. Manookian explained he used tracking applications imbedded into routine litigation email to give him detailed personal information about each person who opened the email, followed by a second service used by private investigators to obtain an even greater level of private information. Mr. Manookian’s matter-of-fact testimony almost made it sound as though using private-investigator-level intrusive tools on everyday litigation correspondence to secretly extract private information to weaponize against opposing counsel is normal business behavior for a lawyer. It is not.

Most important, victimizing the families of opposing counsel and causing well-founded concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. Lawyers in litigation may be expected to assume the risk of a certain amount of rough-and-tumble. Their families do not. In preying on the families of opposing counsel, Mr. Manookian crossed the Rubicon...

This Court does not lightly impose on an attorney the sanction of disbarment. Here, it is clearly justified. We agree with the trial court that the suspension imposed by the hearing panel conflicts with its factual findings. Our role as guardians of the public trust requires us to impose disbarment.

A dissent by Justice Lee

While this Court has inherent jurisdiction over attorney disciplinary matters, attorneys must be afforded fair notice and an opportunity to be heard. For the first time, this Court has increased an attorney’s discipline through the exercise of the Court’s inherent jurisdiction outside of the process outlined in Rule 9 by disbarring Brian Philip Manookian without giving fair notice of its intent. I dissent from the Court’s decision to disbar Mr. Manookian and would affirm the hearing panel’s finding of a twenty-four-month suspension. Neither the hearing panel nor the trial court erred.

The dissenting justice "declined to debate" the ten-paragraph footnote of the majority opinion responding to her dissent

There is no dispute that Mr. Manookian violated disciplinary rules and should be sanctioned. There is simply a difference of opinion as to whether the Court should have given Mr. Manookian notice of its intent to increase his sanction through the exercise of the Court’s inherent jurisdiction outside of the procedure of Rule 9. By disagreeing with a legal argument made by the Board, this dissent does not “gratuitously swipe[]” at the Board. This Court should treat the Board the same as any other party—no better, no worse.

In sum, no matter how offensive the Court deems Mr. Manookian’s conduct, the Court in its haste to disbar Mr. Manookian should rule in a respectful, unbiased, and even-handed manner and not dispense with notice and an opportunity to be heard.

A case summary is posted on the court's web page, which noted the procedural issue identified by the dissent

The hearing panel found Mr. Manookian violated multiple ethics rules and determined its guidelines showed he should be disbarred. But, without giving a reason, the panel recommended a two-year suspension instead of disbarment. 

Mr. Manookian appealed to the chancery court, where the Board again asked for disbarment. The chancery court agreed Mr. Manookian should be disbarred, but it affirmed the suspension because of procedural rules that required the Board to file a separate appeal.  

(Mike Frisch)

February 18, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, February 17, 2024

New Ohio Ethics Opinions

New opinions from the Ohio Board of Professional Conduct 

The Ohio Board of Professional Conduct has released two advisory opinions concerning in-house counsel and lawyers serving in the dual role of guardian ad litem/lawyer. Each opinion replaces an earlier opinion that analyzed the issue presented under the former Code of Professional Responsibility.

Advisory Opinion 2024-01 addresses the ethical issues that can arise when an in-house lawyer for a corporation privately represents a customer of the corporation. The board advises that the representation should be avoided due to potential issues with conflicts of interest, the impairment of the lawyer’s independent professional judgment, the unauthorized practice of law, and the impermissible sharing of fees with a nonlawyer. This opinion replaces Adv. Op.1992-17.

Advisory Opinion 2024-02 concerns a lawyer’s communication with a represented party when the lawyer serves in the dual role as guardian ad litem and lawyer for a child in juvenile or domestic court matters. The Rules of Professional Conduct generally prohibit communication with represented parties unless the opposing lawyer gives permission, or the conduct is permitted, by law or court order. The board concludes that communication with a represented person, usually the child’s parent, is permitted when the sole purpose of the communication is to obtain information about how to initially contact the child. This opinion replaces Adv. Op. 2006-05.

February 17, 2024 | Permalink | Comments (0)

The Most Egregious

A client complaint against an attorney was withdrawn but the investigation uncovered trust account violations and resulted in a disbarment order by the Montana Supreme Court.

The Billings Gazette reported on criminal charges.

Respondent

Doud has been licensed to practice law in Montana since 2006. She joined a law firm after graduation from law school. She left the firm approximately a year later, forming a partnership with her husband, who is also an attorney licensed to practice law in Montana. Doud’s father, Timothy McKeon, who had been licensed to practice law in Montana since 1987, later joined the firm. In 2015, Doud’s husband left the firm.

Misconduct

Doud was the sole authorized signatory on the firm’s trust accounts and bore responsibility for monitoring trust account activity and abiding by trust account auditing requirements. She failed to maintain those accounts consistent with applicable rules and safeguards for the period from at least January 1, 2016, through March 31, 2020, during which time the firm transferred funds on an almost daily basis from its trust accounts to its operating account, other firm accounts, and Doud’s and McKeon’s personal accounts. The transferred amounts were almost always in even amounts that were not consistent with earned contingency fees or cost reimbursements related to a particular client’s case.

Doud did not keep a ledger for the firm’s trust accounts or separate cost ledgers for firm clients. She never reconciled the firm’s trust accounts, checking accounts, or client settlement statements with the firm’s bank statements. Her failure to properly maintain the accounts meant that record-keeping errors went undetected and the misappropriation and commingling of client funds was concealed. The firm’s trust accountings were “abysmally deficient” and distributions Doud routinely made from the firm’s trust accounts violated trust requirements and the Montana Rules of Professional Conduct.

The reconciliation by the Office of Disciplinary Counsel led to this finding

As of March 31, 2020, based on its own records, the firm owed clients $238,016.66 and third parties $384,738.18, or a total of $622,754.84. However, these amounts include charges for staff employee time based on an hourly rate ranging from $120 to $175 per hour. If such employee costs are deducted, the amount owed to clients on that date was $531,449.86 and to third parties $834,683[.]33, or a total of $1,366,133.19. Yet the [trust] account balance on that date was only $44,331.01. The ODC’s reconciliation exhibits clearly establish the firm’s [trust] account was routinely below the client funds that should have been on deposit.

And

The firm’s practice of billing clients for staff time under the guise of “medical consulting services” and “paralegal consultant services” had “disastrous financial consequences” for those clients. Hennelly, who received only $14,000 of a $1.2 million settlement, was billed $387,935,80 for firm staff time. As of March 31, 2020, the firm improperly billed 15 clients a total of $743,378.35 for services provided by the firm’s employees.

Doud also knew of, and benefitted from, McKeon’s practice of charging clients an additional contingency fee for negotiating liens and/or medical-related debt in disregard of the contingency fee agreement and applicable ethical obligations. In some instances, McKeon charged this additional contingency fee before undertaking such negotiation, expressing an intent to negotiate the debt later, and on the theory that the firm was entitled to take the fee up front because the firm would “eventually” earn it.

She alleged that her counsel in the bar matter had a conflict in representing both her and her father, who took a disability suspension

We agree with ODC that Doud received the process due her in this disciplinary proceeding. We fail to appreciate how the alleged conflict precluded her from taking actions she alleges she may have otherwise taken in this matter. Although Doud indicates dissatisfaction with some admissions made in her response to the amended complaint, she provides no explanation for how an alleged conflict dictated those admissions. The fact that McKeon transferred his Bar status to inactive/disability in no way affected Doud’s ability to do, or not do, the same. Doud does not explain how a conflict prevented her from offering mental state defenses or arguing she was relying on advice of counsel. She does not explain how the alleged conflict affected the depositions the Commission entered into evidence. Finally, her insistence that she and McKeon would have been witnesses against each other at their respective disciplinary hearings but for the conflict is belied by the fact that both were called to testify at Doud’s disciplinary hearing, and both invoked their Fifth Amendment right against self-incrimination. Ultimately, Doud neither persuades us that a nonwaivable conflict existed nor that any alleged conflict affected her due process rights in any meaningful way.

Recommended sanction

In recommending disbarment, the Commission asserted that the scope and magnitude of Doud’s ethical failures were “unequaled in the Commission’s collective experience,” and this case proved the most egregious and extensive trust violation and misappropriation/commingling case to ever come before it.

The court rejected attacks on the findings of fact. (Mike Frisch)

February 17, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Friday, February 16, 2024

Failure To Pay Support Leads To Jail And Suspension

Failure to pay child support drew a six-month suspension from the New York Appellate Division for the First Judicial Department

In 2004, respondent and his ex-wife were divorced in New Jersey. In 2008, the New Jersey Superior Court, Monmouth County set respondent's monthly support obligation at $8,600 ($6,500 for alimony, $1,600 for child support and $500 for equitable distribution). At some point in 2011, respondent moved to New York. By order dated June 29, 2015, the New York Family Court, New York County registered the New Jersey support order as enforceable in New York.

The matter first came to the AGC's attention in 2015, when the ex-wife filed a complaint with the AGC alleging that respondent had failed to make any family support payments since 2011 and calculated $232,000 in total arrears from January 2012 up to the filing of the complaint. In December 2015, the ex-wife also petitioned the Family Court to enforce the support obligation. On May 12, 2016, the Family Court found that respondent owed support arrears in the amount of $429,300 and that his failure to pay the same was willful and entered judgment in the ex-wife's favor in the amount of $324,400. A notice to appear was thereafter issued directing respondent to appear before the court on June 16, 2016, and to submit proof of his income and assets to ascertain his ability to pay.

At respondent's request, the matter was adjourned to July 12, 2016, and respondent was issued another notice to appear, which warned that respondent could be subject to arrest if he failed to appear. Respondent failed to appear at the July hearing and failed to submit proof of his income; he was thereafter arrested and brought before the Family Court on July 17, 2016. On that same date, the Family Court committed respondent to serve a six-month jail term of weekend confinement based on its previous finding that respondent willfully violated the support order. Respondent served weekend jail time over 26 weeks from July 19, 2016, to January 22, 2017, approximately 78 days.

In his answer to the ex-wife's complaint, respondent admitted that he failed to make the support payments as alleged because he lacked the ability to pay due to financial hardship, as he was unable to secure professional employment and was being financially supported by his live-in girlfriend. Despite AGC's request, however, respondent declined to provide state or federal tax returns documenting his financial hardship, because he had last filed such returns for the 2010 tax year. Respondent did not maintain a bank account and acknowledged that any funds placed into a bank account bearing his name would be subject to seizure due to multiple outstanding tax liens and warrants. He further acknowledged that in 2011 and 2018 he had earned approximately $30,000 to $40, 000 annually as a consultant and deposited same into the accounts of his friends and relatives, which they allowed him to use for payment of his living expenses.

The parties have also stipulated to the following aggravating factors:

Respondent's recalcitrance in failing to comply with his family support obligations and to appear in court and produce records of his finances was motivated by increasing acrimony over the matrimonial dispute with his ex-wife and a desire to avoid payments that were mandated by the court. Because of his noncompliance, the New York Family Court was compelled to order respondent confined to jail. As a result, respondent served 78 days of weekend confinement in the County Jail.

Further, the resolution of this matter was delayed, in part, for over three years since the AGC filed the petition due to respondent's deliberate inattention to this matter.

Mitigation

Since the filing of the AGC petition, respondent has paid all child support arrears. As a result of the acrimony generated by the divorce proceedings, respondent lost employment and his passport was taken, further impeding his ability to obtain employment as a lawyer and to earn a steady income to satisfy his support obligations. Respondent was forced to file bankruptcy petitions in New York and New Jersey and had to institute proceedings in federal court to regain his passport, after satisfying his child support obligations. As for his tax obligations, respondent has retained and is working with a tax accounting firm to resolve his outstanding obligations to state and local tax authorities. Tax enforcement proceedings have never been commenced against respondent. Respondent fully recognizes the severity of his misconduct and is fully committed to meeting all his federal and New York State tax obligations in the future.

Further, no other complaint has been received against respondent in 24 years of practicing law, and respondent's misconduct did not adversely affect any client matters or jeopardize any client interests. Respondent's misconduct did not involve the misuse or misappropriation of client funds nor any form of unjust enrichment using client funds. Finally, respondent has acknowledged the serious nature of his misconduct, is sincerely remorseful, and has accepted full responsibility for it.

Sanction

While there is no one case that is on all fours with respondent's specific acts of misconduct, the parties' compilation of cases provides solid ground for the agreed-upon discipline. There are no factors in aggravation or mitigation that warrant departing from the parties' agreed-upon discipline of a six-month suspension.

(Mike Frisch)

February 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Home Alone Is Not A Crime

I recently watched a video of an excellent argument before the Iowa Supreme Court in an appeal of a child endangerment conviction.

I was convinced that the conviction would be reversed and, for once, I was right

A parent commits child endangerment under Iowa Code section 726.6(1)(a) (2021) when the parent “[k]nowingly acts in a manner that creates a substantial risk to a child or minor’s physical, mental or emotional health or safety.” (Emphasis added.) Here we consider whether a mother of six children “create[d]” such a risk by leaving her oldest five children, whose ages ranged from twelve to five, asleep in their home while the mother went to Walmart for groceries. Id. Under the facts presented, we do not believe that the mother created a risk that violated section 726.6(1)(a). Accordingly, we reverse the mother’s conviction of child endangerment.

Facts

In 2021, Paula Cole lived in an apartment at 1009 South Hackett Road in Waterloo. Paula’s apartment was part of a complex of apartments in a secured building. You need a key or a card to get into the building.

Cole lived with her six children. She had four boys and two girls. The oldest boy was twelve. The second oldest boy was ten. The oldest girl was nine. There were two younger boys, ages seven and five. The youngest girl was an infant.

On the morning of July 2, 2021, Cole decided to drive to Walmart to get diapers, toilet paper, and groceries. She took her infant girl with her. She left around 11 a.m. The evidence is mixed as to whether Cole woke up any of the children before leaving. The jury could have found that she left them sleeping in the apartment.

While Cole was gone, a controversy arose among the children. The nine-year-old girl, C.C., had a disagreement with one of the younger boys. The disagreement was about leftover food. C.C. threatened to “put hands” on the younger boy, but then the ten-year-old boy, Q.C., intervened. C.C. backed off but decided to leave the apartment building.

9-1-1 was called

The 911 dispatch sent Officer Shawn Bram to the apartment complex. In his testimony, Bram said that dispatch had told him that “a child had called in reporting that their sibling had run away.” But the 911 recording does not include any reference to any child running away. Rather, as noted, Wheeler told the dispatcher that C.C. was “right outside the building.”

When Bram arrived at the apartment building, he was greeted by several of the children. Bram testified that, in his conversation with these children, he was told that C.C. had said “she was going to run away,” and that Q.C. “was worried for his sister’s safety.” But Bram also testified that, when he arrived, C.C. was with the other kids who greeted him in front of the building. “She never actually took off and ran away that I’m aware of,” Bram confirmed.  Bram also confirmed that: • None of the children had actually run away. • No child was lost. • No child was crying. • No child was bleeding. • No one was hurt at all.

The children let Bram into the apartment. Bram found that the twelve-year-old boy was either sleeping or pretending to sleep.

Meanwhile, dispatch contacted Cole. Cole arrived back at the apartment about twenty minutes after dispatch called her. She was carrying the infant and bags from Walmart when she came into the apartment.

Life is inherently risky

In light of the many risks that confront families in the course of ordinary life, as well as the inherent difficulty for parents in trying to balance those risks, courts must exercise special caution when deciding whether a parent has “create[d]” a particular risk and, therefore, may be subject to criminal liability under section 726.6(1)(a). Iowa Code § 726.6(1)(a)

Here

In summary, for purposes of Iowa Code section 726.6(1)(a), a parent creates a risk when that risk is clearly outside the range of risks that accompany ordinary life. This requirement is satisfied when the risk results from (1) a parent’s independently unlawful behavior, (2) a parent’s overtly abusive behavior, or (3) other parent behavior that creates an identifiable risk that falls clearly outside the risks of ordinary life.

Applying these principles here, we conclude that Cole’s behavior did not fit into any of these three categories. To begin with, the State does not contend that Cole’s actions were independently unlawful. No Iowa statute prohibited Cole from leaving her five oldest children alone while she took the youngest to Walmart. Indeed, no Iowa statute sets a minimum age at which children can be left home alone. Officer Bram confirmed that this is true.

Similarly, no evidence suggests that Cole was overtly abusive toward her children. She did not hit them or otherwise harm them. And no child was harmed while Cole was absent. Officer Bram verified that no child was hurt or even crying. Finally, we see no evidence that Cole otherwise “create[d]” an identifiable risk that fell outside the range of risks that accompany ordinary life. Id. Cole left to get groceries and diapers while her oldest children, ages five through twelve, slept in their home. No evidence suggests that this strategy created any extraordinary risk.

Indeed, no evidence shows that leaving the kids home was any riskier than driving them to Walmart (even assuming she had a vehicle that big).

The court's opinion is linked here. (Mike Frisch)

February 16, 2024 | Permalink | Comments (0)

Hit And Run Complicity Draws Indefinite Suspension

A former judge has been indefinitely suspended by the Ohio Supreme Court as a consequence of a felony conviction

Just after midnight on June 4, 2020, Warner—then a judge of the Marion County Court of Common Pleas—and his wife were returning home from social gatherings where they had consumed alcohol. Warner’s wife was driving a Jeep Wrangler, and she failed to yield to an oncoming vehicle. The Warners’ jeep struck the other vehicle, a BMW X3, causing it to go off the road and hit a utility pole. Witnesses saw a man and a woman walking around the crash site and look into the BMW before driving away without calling 9-1-1 or waiting for first responders to arrive. One of the witnesses called 9-1-1. The victim had to be extracted from his vehicle with the jaws of life, and he suffered serious injuries. After arriving home, the Warners left their jeep in their garage and waited approximately nine hours before contacting law enforcement. Warner’s wife admitted to driving the jeep during the crash, an admission that was confirmed by the investigation.

Warner was charged with two counts of complicity to commit vehicular assault and one count each of complicity to leaving the scene of an January Term, 2024 3 accident and complicity to tampering with evidence. Before trial, the two vehicular-assault counts were dismissed. After a bench trial, Warner was convicted of the two remaining complicity counts, and the trial court imposed an aggregate two-year prison sentence. The Third District Court of Appeals affirmed, rejecting Warner’s claims that his convictions were supported by insufficient evidence and were against the manifest weight of the evidence as well as his argument that the trial court deprived him of a fair trial. State v. Warner, 3d Dist. Marion No. 9-2115, 2021-Ohio-4182, ¶ 1, 82. We declined Warner’s appeal. 166 Ohio St.3d 1448, 2022-Ohio-994, 184 N.E.3d 158.

Sanction

“ ‘Because they are so important to our society, judges must be competent and ethical, and their actions must foster respect for their decisions as well as for the judiciary as a whole. Given that they hold positions of considerable authority and are entrusted with a great deal of power and discretion, judges are expected to conduct themselves according to high standards of professional conduct.’ ” O’Neill at ¶ 57, quoting Shaman, Lubet & Alfini at 1-2. Warner failed to live up to those high standards.

Accordingly, Jason Daniel Warner is indefinitely suspended from the practice of law in Ohio with no credit for time he has served under his interim felony suspension. Costs are taxed to Warner.

Justice Fischer concurred

To be consistent with the disciplinary sanctions that we have previously imposed on judges who had been convicted of felony offenses and to ensure respect for and trust in our system, we cannot award a judge who has been convicted of a felony offense with time served under the interim felony suspension. Because this court today appropriately returns to its pre-Hunter precedent and does not award Warner credit for time served under his interim felony suspension, I respectfully concur.

(Mike Frisch)

February 16, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 15, 2024

Jeffrey Clark's Attorneys Attack President Biden

A motion in limine in the Jeffrey Clark bar prosecution has been posted today

ODC’s brazen and politically motivated efforts to breach the confidentiality and loyalty rules is it sworn to enforce should be rejected by the Hearing Committee. In Disciplinary proceedings, ODC serves in the capacity of a prosecutor, whose independence and devotion to the cause of justice must be apparent to all, including those charged or under investigation. See RPC 1.7(b)(4) (“The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party.”)

Heaven forbid that brazen political suggestions infect this proceeding

Finally, recent events raise two significant questions regarding claims that President Biden actually “waived” President Trump’s executive privilege. At a minimum, the President himself must have waived the privilege after having first been advised by counsel of the legal and constitutional implications of the purported waiver. RPC 1.6(e)(1) (“A lawyer may use or reveal client confidences or secrets: (1) with the informed consent of the client.’). 2.1 (“In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client’s situation.”) Where, as here, the Department of Justice claims that the President has waived the privilege, his predecessor and those who are bound by Rule 1.6 are entitled to demand proof that is was the President, not a subordinate, who authorized the purported waiver.

Recent events raise even more serious questions concerning President Biden’s cognitive capacity to waive President Trump’s privileges, or even to govern at all. There is abundant evidence that President Biden has suffered significant cognitive impairment and is no longer able to carry out the duties of his Office. This was most painfully demonstrated by the recently released report of Special Counsel Hur and the President’s press conference on February 8, 2024. While angrily disputing Special Counsel Hur’s assessment of his mental capacity, President Biden mistakenly called Egypt’s President Abdel Fattah el-Sisi the president of Mexico while mistakenly indicating Mexico had something to do with the southern border of Gaza. President Biden’s intemperate demeanor and compound confusion served only to confirm the Hur Report’s conclusions, which themselves confirm what is obvious to the whole world—President Biden suffers from significantly diminished cognitive capacity, stirring discussion of invoking the 25th Amendment. There is a more than reasonable basis for doubting that President has sufficient mental capacity to waive executive privilege for a former President, particularly given the thorny legal and policy considerations involved.

Words fail. Those with a strong enough stomach can access this "pleading" here. (Mike Frisch)

February 15, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Ongoing Threat Not Required For Temporary Suspension

The Kentucky Supreme Court has ordered a temporary suspension of an attorney

The Commission’s petition details that Worthington drafted and made himself trustee of the Wayne Jones Trust. Subsequent counsel for the trust, Thomas Miller, found discrepancies in the accounting and asked Worthington about them. Worthington admitted to misappropriating funds totaling $184,098.95. An agreement was entered into on December 31, 2020, acknowledging Worthington’s debt and agreement to repay said funds. Worthington has apparently failed to abide by the terms of the agreement.

Worthington was also executor and attorney for the Estate of Clarence Stuber. When Worthington was replaced as executor, discrepancies were discovered involving $151,000 in withdrawals that are not presently accounted for. The new executors filed a civil action against Worthington, alleging malpractice either for negligent withdrawals or fraudulent withdrawals. Worthington has denied wrongdoing in that case, but documentary evidence shows that Worthington made several withdrawals between June 2021-22, totaling $151,690.

The suspension is appropriate nothwithstanding averments that the attorney was winding up his practice

But SCR 3.165(1)(a) allows for temporary suspension upon probable cause to believe “an attorney is or has been misappropriating funds the attorney holds for others to his/her own use or has been otherwise improperly dealing with said funds[.]” (emphasis added). The rule does not require a present or continuing threat of misappropriation of funds—that probable cause exists to believe a misappropriation of funds has occurred in the past is sufficient. In Inquiry Commission v. Arnett, this Court imposed temporary suspension when evidence supported the belief that the attorney had misappropriated $75,000 given to him to hold in trust during a divorce action; as well as a further misappropriation of $178,315 from multiple other client funds. 439 S.W.3d 168, 169 (Ky. 2014). Likewise, evidence in this case supports a probable cause belief that Worthington has misappropriated funds totaling more than $300,000 from two separate clients. Therefore, temporary suspension per SCR 3.165(1)(a) is appropriate.

(Mike Frisch)

February 15, 2024 in Bar Discipline & Process | Permalink | Comments (0)

Fee Fight Remanded

The District of Columbia Court of Appeals remanded a fight among law firms over an arbitration of fees

After the law firm Quinn, Racusin & Gazzola Chartered (“QRGC”) moved to vacate an arbitration award arising from a dispute with several other law firms, the other firms opposed the motion and sought confirmation of the arbitration award. The trial court dismissed the vacatur motion on the grounds that it had been both filed and served out of time, and it subsequently confirmed the arbitration award. QRGC now appeals that decision, but in an effort to invalidate the entire proceeding, claims for the first time in its reply brief that the Superior Court lacked subject-matter jurisdiction to entertain the original vacatur motion because the arbitration award at issue was a non-final interim award. We conclude that the trial court had statutory authority to review the interim award. Additionally, although we hold that QRGC timely filed its vacatur motion, we agree with the Superior Court that service was untimely and affirm the court’s dismissal on this basis. Finally, we hold that the trial court erred by confirming the arbitration award under D.C. Code § 16-4423(e) based solely on its dismissal of QRGC’s motion, and we remand for the trial court to consider whether the arbitration award should be confirmed on the merits.

The underlying suit

In 2009, Wye Oak Technology, Inc., sued the Republic of Iraq in the United States District Court for the District of Columbia over a contractual dispute relating to the refurbishing of Iraqi military equipment. The litigation continued for roughly ten years until Wye Oak obtained a substantial monetary judgment in 2019. The Republic of Iraq successfully appealed that decision, and litigation has continued.

QRGC served as Wye Oak’s counsel leading up to the litigation and was heavily involved in its initial stages. Wye Oak later retained Pavich Law Group to assist, and QRGC’s role gradually diminished as the litigation progressed. Wye Oak retained two more firms (Whiteford, Taylor & Preston and Kalbian Hagerty), and, in December 2019, all four firms drafted an “Agreement Concerning Attorneys’ Fees” to resolve disputes over compensation. The agreement established a collective 46% contingency fee for all four firms and further provided that “[a]ny claim or dispute between any of the aforementioned parties arising out of or relating to this Agreement . . . including any fee owed to any party, w[ould] be resolved by arbitration in the District of Columbia.”

Pavich Law invoked arbitration

On August 12, 2021, the arbitrator resolved various questions of liability in favor of the Pavich Law Group and the other appellees. As a result, it issued an interim award allocating the agreement’s 46% contingency fee as follows: 27.5% to Whiteford, Taylor & Preston; 18% to Pavich Law Group; 0.5% to Kalbian Hagerty; and 0% to QRGC. The interim award did not give any attorneys’ fees to QRGC because the arbitrator concluded that QRGC had “tortiously interfered with [Pavich Law Group]’s contractual relationships with Wye Oak Technology.” The arbitrator additionally stated that “[i]t is not intended that this Interim Award be subject to judicial review.”

Bottom line

Because we hold that that trial court “dismissed” rather than “denied” QRGC’s vacatur motion, the trial court was not required to confirm the arbitration award. We therefore remand for the trial court to consider whether, on the merits, the award should be confirmed.

(Mike Frisch)

February 15, 2024 in Billable Hours | Permalink | Comments (0)

Ohio Suspension

A decision of the Ohio Supreme Court is summarized by Dan Trevas

The Supreme Court of Ohio today suspended a Toledo lawyer for one year for multiple ethical violations, including knowingly making a false statement in a municipal court proceeding and failing to comply with a disciplinary investigation.

This is the second time, the Supreme Court suspended Sarah A. Miller Driftmyer. In 2018, Driftmyer was suspended for six months with the entire suspension stayed with conditions. In today’s per curiam opinion, the Court also ordered Driftmyer to pay restitution to one of her clients and complete additional continuing legal education focused on criminal law and law-office management.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, Michael P. Donnelly, Melody Stewart, and Joseph T. Deters joined the opinion. Justice Jennifer Brunner did not participate in the case.

Client Disputed Lawyer’s Fee

In January 2021, Ralpheal Reynolds, who was serving a prison term, asked Driftmyer to file a motion for judicial release, and she verbally agreed to represent him. Reynolds maintained that Driftmyer agreed to represent him for a flat $250 fee, which he paid. Driftmyer stated the agreed fee was $500, with an initial payment of $250 and a second $250 payment when the motion was filed.

The fee agreement was never in writing, and Driftmyer did not follow the rule requiring that she inform Reynolds in writing that he may be entitled to a refund of all or part of his fee if she failed to complete the representation.

Driftmyer drafted the motion and told Reynolds she required an additional $250 payment to file it. He did not pay her, and she did not file the motion. Reynolds filed a grievance against Driftmyer with the Toledo Bar Association. The bar association sent Driftmyer a letter in May 2021 about the grievance and instructed her to reply in 15 days. Driftmyer ignored the bar association’s efforts to reach her and waited nearly three months to  file a written response to its inquiries.

Driftmyer agreed to provide information requested by the bar association but did not follow up until after the association filed a complaint against her with the Board of Professional Conduct. Driftmyer also told the bar association she would refund $250 to Reynolds, but at the time the board conducted her disciplinary hearing in May 2023, she had not issued a refund.

The board found Driftmyer violated several ethical rules.  Among other things, she charged a nonrefundable fee without advising the client that the client may be entitled to a refund, and knowingly failed to respond to a disciplinary authority’s demands for information.

Lawyer Misleads Court About Home Ownership
A second complaint against Driftmyer was filed by the parties in a disputed home sale. In 2020, Diana Dunsmore wanted to sell her home without a realtor and was contacted by potential buyers, April Ross and her husband. Driftmyer had previously represented Ross in another legal matter, and the Rosses asked Driftmyer to accompany them to the inspection of Dunsmore’s home.

During the inspection, Dunsmore and the Rosses agreed on the terms of sale and Driftmyer agreed to draft the necessary documents. Driftmyer did not use a standard purchase form agreement made available free online by the local bar association and board of realtors, but instead drafted a half-page handwritten agreement.

The agreement called for the Rosses to pay off Dunsmore’s $59,000 home equity loan and pay Dunsmore $88,500 in cash. Driftmyer prepared a deed for the sale.

In October 2020, six days before the sale was to close, the Rosses paid Dunsmore’s loan in full, and Dunsmore signed over the deed. Driftmyer also gave Dunsmore an $88,500 check from the Rosses.

The parties disputed some of the terms of the sale and, when Dunsmore went to cash the Rosses check the next day, the bank informed her it would take 10 days for the check to clear. Dunsmore said she would not deliver possession of the property until the check cleared.

The Rosses responded by stopping payment on the check. The couple requested that Driftmyer record the deed. April Ross then served Dunsmore with an eviction notice.

After recording the deed, Driftmyer learned the Rosses had stopped payment on the check. Despite knowing the Rosses had not fully paid for the house, Driftmyer filed the eviction complaint against Dunsmore in Toledo Municipal Court.

At the court hearing, Driftmyer presented the recorded deed and argued the Rosses were entitled to possess the home and evict Dunsmore. Driftmyer also held up two envelopes that purportedly contained two checks from the Rosses to Dunsmore that represented the balance of what was owed. She did not give the checks to Dunsmore or to the court that day. Because the Rosses had not paid for the house at the time they filed the eviction, the court dismissed the lawsuit.

The board found Driftmyer failed to provide competent representation to the Rosses and made a knowingly false statement to the court regarding the couple’s actual ownership of the property.

Supreme Court Decides Sanction
In determining a sanction for Driftmyer, the Court considered that she violated 12 rules in this case and had a previous suspension. As part of her 2018 suspension, Driftmyer was required to submit to an assessment by the Ohio Lawyers Assistance Program (OLAP) and comply with all recommendations arising from that assessment.

If Driftmyer is reinstated to practicing law, she must also serve one year of monitored probation focused primarily on her use of her client trust account and compliance with any OLAP treatment recommendations. She was also ordered to make restitution to Reynolds and to pay the cost of the disciplinary proceedings.

2023-0978Toledo Bar Assn. v. DriftmyerSlip Opinion No. 2024-Ohio-540.

(Mike Frisch)

February 15, 2024 in Bar Discipline & Process | Permalink | Comments (0)