Thursday, January 3, 2019

Firearm Casualty

Ohio Disciplinary Counsel has charged the former managing partner of a Cleveland law firm with a form of conversion in violation of Rules 8.4(c) and (h).

The firm represented a "retailer of firearms and related products" who owed the firm over $27,000 in legal fees. 

The attorney allegedly received product from the client and unilaterally applied a credit to extinguish the bill. 

His answer admits the most of the alleged facts - and contends that some of his partners were aware of the situation - but denies that he violated ethics rules as charged. He also made full restitution to the firm. 

The documents can be found here. (Mike Frisch)

January 3, 2019 in Bar Discipline & Process | Permalink | Comments (3)

Monday, December 31, 2018

The Errant Fax In Virginia

The Virginia State Bar has proposed a significant revision to Rule 4.4(b) and its comments

Proposed Amendments to Rule 4.4

Rule 4.4 Respect For Rights Of Third Persons

(a)  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information is privileged and was inadvertently sent shall immediately terminate review or use of the document or electronically stored information, promptly notify the sender, and abide by the sender’s instructions to return or destroy the document or electronically stored information.

Comments

[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

[2] Paragraph (b) recognizes that lawyers sometimes receive a document or electronically stored information that was mistakenly sent or produced by opposing parties or their lawyers.  A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently and is privileged, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures and to abide by any instructions to return or destroy the document or information that was inadvertently sent. Regardless of whether it is obvious that the document or electronically stored information was inadvertently sent, the receiving lawyer knows or reasonably should know that the document or information was inadvertently sent if the sender promptly notifies the receiving lawyer of the mistake. If the receiving lawyer lacks actual or constructive knowledge that the document or electronically stored information was inadvertently sent, then paragraph (b) does not apply. Similarly, the lawyer may know that the document or electronically stored information was inadvertently sent but not that it is privileged; in that case, the receiving lawyer has no duty under this rule.

This Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. For purposes of this Rule, ‘‘document or electronically stored information’’ includes, in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as “metadata”), that is subject to being read or put into readable form.  Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer and that it contains privileged information.

[3] Preservation of lawyer-client confidences is such a vital aspect of the legal system that it is appropriate to require that lawyers not take advantage of a mistake or inadvertent disclosure by opposing counsel to gain an undue advantage. See LEO 1702. This means that the lawyer is prohibited from informing the lawyer’s client of relevant, though inadvertently disclosed, information, and that the lawyer is prevented from using information that is of great significance to the client’s case. In such cases, paragraph (b) overrides the lawyer’s communication duty under Rule 1.4. As stated in Comment 1, diligent representation of the client’s interests does not authorize or warrant intrusions into privileged communications. 

Where applicable discovery rules, agreements, or other law permit the recipient to contest the sender’s claim of privilege, use of such a process does not constitute “use” as prohibited by this rule, and the recipient may sequester the document or information pending resolution of that process. When there is no such applicable law, such as in a matter that does not involve litigation, the recipient lawyer must abide by the sender’s instructions to return or destroy the document. See also LEO 1871.

Status

At its meeting on December 12, 2018, the Standing Committee on Legal Ethics approved the [above] proposed rule for presentation to [Bar] Council at its February 2019 meeting.

The present ABA version of the Rule

(b)  A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

(Mike Frisch)

December 31, 2018 in Bar Discipline & Process | Permalink | Comments (0)

"Directly Related" Fees And Costs Recovery Allowed In Florida

The Florida Supreme Court answered a question of the interpretation of its pre-2014 version of Rule 3.4(b)

This case involves a dispute over the recoverable amount of prevailing party fees and costs. The issue presented is whether the pre-2014 version of Rule Regulating the Florida Bar 4-3.4(b), which addresses witness payments and the prohibition against offering inducements to witnesses, prevents the prevailing party in this case from taxing as costs certain payments made to fact witnesses for their “assistance with case and discovery preparation.” This Court has for review Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 228 So. 3d 1184, 1191 (Fla. 2d DCA 2017), in which the Second District Court of Appeal concluded that the witness payments were permitted under rule 4-3.4(b) and were thus recoverable. The Second District then certified the following as a question of great public importance...

Based on our analysis of the issue presented by this case and consistent with the text of the rule, we rephrase the certified question as follows:

 Does the pre-2014 version of rule 4-3.4(b) of the Rules Regulating the Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation that is not directly related to the witness preparing for, attending, or testifying at proceedings?

We answer the rephrased question in the negative and remand for further proceedings consistent with this opinion.

The case

The relevant events began in August 2005 when Petitioner, Trial Practices, Inc. (“TPI”), entered into an agreement with Jack J. Antaramian to provide litigation consulting services to Antaramian concerning a multi-million-dollar dispute with his business partner, David E. Nassif, about commercial real estate holdings (the “Nassif suit”). The consulting agreement provided that TPI would receive 5% of Antaramian’s “gross recovery” in the Nassif suit. After the Nassif suit ended in a mistrial, Antaramian and Nassif resolved their dispute by entering into a complex settlement agreement involving various entities. The principal architects and drafters of the settlement agreement were Antaramian’s longtime tax and business attorneys with the Boston-based firm Burns & Levinson LLP.

In the wake of the settlement agreement, TPI claimed the 5% fee based on the value of certain transferred property and the settlement of related litigation involving Antaramian and Nassif. Antaramian denied owing TPI the 5% fee, asserting that the settlement agreement with Nassif was a “walk away” agreement with no “gross recovery” to either side. In June 2006, TPI sued Antaramian for breach of the consulting agreement. Extensive discovery ensued regarding Antaramian’s finances and his dealings with Nassif.

At trial in 2011, TPI presented several expert witnesses who testified that the settlement agreement in the Nassif suit resulted in a gross recovery to Antaramian of up to $100 million based on certain economic benefits including cancellation of indebtedness. Antaramian presented his own expert witness as well as ten fact witnesses, seven of whom testified in some manner to the issue of “gross recovery.” Those seven witnesses—all licensed professionals involved in the Nassif suit and the resulting settlement agreement—included: (1) two of Antaramian’s attorneys in the Nassif suit;  (2) one of Nassif’s attorneys in the Nassif suit; (3) three lawyers from Burns & Levinson LLP; and (4) Antaramian’s longtime accountant who prepared Antaramian’s federal income tax returns. The gist of their testimony was that the settlement agreement was designed to provide no recovery to either Antaramian or Nassif, and that there was no tax fraud or cancellation of debt income.

Antaramian won at trial and sought costs and fees.

We are asked to determine whether rule 4-3.4(b) of the Rules Regulating the Florida Bar permits a party to make certain payments to fact witnesses. This issue presents a pure question of law that is subject to de novo review...

We think the more appropriate inquiry is whether the witness’s “assistance with case and discovery preparation” is directly related to the witness “preparing  for, attending, or testifying at proceedings.” Although less than perfectly precise, viewing the payments through that narrower lens is consistent with the language of the rule and avoids prejudicing parties in highly complex cases such as this where they are dependent upon professionals. Indeed, not only was Antaramian required to defend himself, including against accusations of tax fraud, but it appears the professionals upon whom he was dependent also had to defend themselves against accusations of wrongdoing. One of Antaramian’s former trial attorneys testified at the fee hearing regarding the “very adversarial” nature of the litigation, the “[t]ons  of documents,” and TPI’s “theory of the case . . . that everybody on Mr. Antaramian’s side of the transaction was a crook, was actually a thief and a liar.” That testimony was consistent with that of others, including Antaramian’s longtime accountant as well as the Burns & Levinson attorney who was the principal architect of the settlement agreement. That Burns & Levinson attorney also testified regarding “a host of complicating factors” in the case.

It would be unfair and prejudicial to conclude that, beginning the moment TPI filed suit, Antaramian’s longtime professionals who had the necessary knowledge for him to begin to defend the suit, who were involved in the transaction that was the very subject of the suit, and whose own actions and character were seemingly in question, could not be reasonably compensated for any “assistance” regarding complex matters about which they would later be called to testify. We conclude that the rule does not require such a result. But we reiterate that a fact witness’s “assistance” must be directly related to the witness “preparing for, attending, or testifying at proceedings.”

The court has a spiffy new website design. (Mike Frisch)

December 31, 2018 in Billable Hours | Permalink | Comments (0)

Sunday, December 30, 2018

Bankrupt In Indiana

The Indiana Supreme Court has disbarred an attorney who committed serious misconduct in multiple bankruptcy matters

Respondent stole clients’ funds, neglected clients’ cases, and disregarded court orders, all serious transgressions. See Matter of Pierce, 80 N.E.3d 888, 890 (Ind.  2017). Respondent’s misconduct also involved pervasive dishonesty toward clients and the bankruptcy court, and Respondent falsified her attorney registration with the Clerk of this Court. Further, Respondent has evaded numerous attempts by clients to contact her, and she has failed to accept service or participate in these disciplinary proceedings. The seriousness and scope of Respondent’s misconduct, and her failure to participate in these proceedings, persuade us that Respondent should be disbarred.

An example

Respondent represented “Client 1” in bankruptcy proceedings. Client 1’s case eventually was dismissed due to failure to make plan payments. Respondent had withdrawn the necessary funds from Client 1’s account, but rather than forwarding those funds to the bankruptcy trustee, Respondent instead used the funds for her own personal benefit or for the benefit of other clients. Respondent failed to provide a court-ordered accounting. Respondent issued a personal check to the court to cover the funds she had converted from Client 1, but that check was rejected for insufficient funds. When Respondent failed to appear for a subsequent hearing, the U.S. Marshal’s office seized Respondent and brought her to court. Respondent provided conflicting statements to the court regarding the whereabouts of Client 1’s funds and falsely told the court that she could not reach Client 1 and that Client 1 had failed to provide her with the trustee payments.

The court had earlier imposed an interim suspension for non-cooperation with the disciplinary matters. (Mike Frisch)

December 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Abby Road

The New Jersey Supreme Court has accepted a consent to disbarment.

The United States Attorney for the District of New Jersey announced last month

A former New Jersey lawyer today admitted his role in a money laundering scheme, U.S. Attorney Craig Carpenito announced.

Michael W. Kwasnik, 49, of North Miami Beach, Florida, pleaded guilty before U.S. District Judge Robert B. Kugler in Camden federal court to Count 12 of a superseding indictment, charging him with money laundering.

According to documents filed in this case and statements made in court:

Kwasnik was previously associated with a law firm, Kwasnik, Rodio, Kanowitz and Buckley P.C. – and its successor firm, Kwasnik, Kanowitz and Associates P.C. – with offices in Cherry Hill, New Jersey, and Philadelphia. His father, and co-defendant, William M. Kwasnik, of Marlton, New Jersey, owned and operated an insurance company, Abby Grant, with offices in Cherry Hill and Lakewood, New Jersey.

In April 2011, Michael Kwasnik induced a client to establish an irrevocable family trust to settle his mother’s estate, with promises that any money deposited in the trust would not be invested, but rather held for the client’s benefit. With the client’s consent, Michael Kwasnik established the trust and named himself as the trustee. Based on Michael Kwasnik’s promises, the client gave Michael Kwasnik $125,774, which the client received after his mother’s death, to deposit in the trust account. Michael Kwasnik deposited the money into the trust account and the next day, transferred $125,000 to Abby Grant’s bank account, and then to the Kwasnik, Rodio, Kanowitz and Buckley P.C. bank account, without the client’s knowledge or permission. Michael Kwasnik admitted that he did so to conceal and disguise the source of the money and that it was the proceeds of a mail fraud or wire fraud scheme.

The money laundering offense to which Michael Kwasnik pleaded guilty carries a maximum penalty of 20 years in prison and a $500,000 fine, or twice the gross gain or loss from the offense. Under terms of the plea agreement, he must also forfeit $125,000 and pay restitution.

The charges against William Kwasnik remain pending, and he is presumed innocent unless and until proven guilty.

(Mike Frisch)

December 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, December 29, 2018

Thou Shalt Not Mulct

The California State Bar Court Hearing Department recommends disbarment for an attorney's abusive billing practices

Respondent's procedures for dealing with complaining clients constituted overreaching. When clients complained about her billings, she would threaten to sue or file liens against them. “The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed . . . is in a superior position to exert unique influence over the dependent party.” (Beery v. State Bar (1987) 43 Cal.3d 802, 813.) Respondent exploited her position as an attorney and intimidated her clients. The Supreme Court has long recognized that the right to practice law “is not a license to mulct the unfortunate.” (Recht v. State Bar (1933) 218 Cal. 352, 355.) Respondent did just that by filing invalid liens against DeMarco and threatening to sue Berg for $100,000, based on an hourly agreement that never existed. As a result, Berg panicked and was forced to give Respondent four parcels of land. She claimed that Berg did not pay her a dime for costs; when in fact, Berg had paid her $1,000 for filing fees and $600 for travel expenses. Respondent charged Rojas $1,524.95 on a blank check when the client clearly told her to tear up the check and terminated her employment.

Editor's note - I learned a new word "mulct"  -  to extract money from (someone) by fine or taxation.

In the DeMarco matter, Respondent intimidated opposing counsel Hylton and Thakor with threats of reprisal. Respondent threatened to sue Hylton if Respondent's name was not included on DeMarco's settlement checks. Respondent then filed a state bar complaint against Hylton for not paying her share of DeMarco's settlement funds. And when Respondent threatened to file a state bar complaint against Thakur, she withdrew from the case.

And

 Respondent's lack of candor is a significant aggravating factor...

Respondent is dishonest and abusive towards her clients, opposing counsel, and others. Indeed, Respondent engaged in multiple acts of deception for personal gain. Her '‘lack of insight makes [her] an ongoing danger to the public." (In the Matter of Song, supra, 5 Cal. State Bar Ct. Rptr. 273, 279.) She has no recognition of her wrongdoing and has flagrantly breached her fiduciary duties. Her extreme dishonesty to this court and to her clients raises concerns as to whether her misconduct may recur and is particularly troubling to this court.

Here, the attorney was brought down by taking a fee interest in client property. It is much harder to prove the more common form of mulcting, i. e. bill padding. (Mike Frisch)

December 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wisconsin Suspends Attorney Who Practiced While On Administrative Suspension

The Wisconsin Supreme Court suspended an attorney for nine months for practice while on administrative suspension

Attorney Schiltz was admitted to practice law in Wisconsin in 1987. He had no disciplinary history prior to the filing of this complaint. His law license has been administratively suspended for failing to comply with CLE reporting requirements since May 31, 2016, and for failing to pay annual bar dues and to provide a required trust account certification since October 31, 2017.

He practiced in several matters while suspended including

At the time of his May 31, 2016 suspension for failure to comply with CLE reporting requirements, Attorney Schiltz had been the attorney for a particular town for several years, including acting as municipal prosecutor. Attorney Schiltz did not timely inform the town or the town's municipal judge of his suspension, nor did he timely advise the town to seek successor counsel.

From June of 2016 through at least April 30, 2017, Attorney Schiltz continued to represent the town in municipal court and other proceedings.

When he petitioned the Board of Bae Examiners for reinstatement

On October 6, 2016, Attorney Schiltz filed a petition for reinstatement with the BBE. In it, Attorney Schiltz stated, "I have not practiced law during the time of my suspension." This statement was false.

He defaulted

We agree with the referee that Attorney Schiltz should be declared in default. Although the OLR effected personal service of its original complaint and mailed the amended complaint to both Attorney Schiltz's office address registered with the State Bar and the address at which he was served with the original complaint, he failed to appear or present a defense. Accordingly, we deem it appropriate to declare him in default. In addition, the referee properly relied on the allegations of the complaint, which were deemed admitted.

The court did not impose the referee's 18-month suspension

Under the unique circumstances of this case, we conclude that a nine-month suspension is appropriate. In imposing this suspension, we agree with the referee's view that
the six-month suspension requested by the OLR in its amended complaint is insufficient.

The court was influenced by the absence of prior discipline. (Mike Frisch)

December 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 28, 2018

The Intentional Infliction Of Bar Admission Distress

The United States Court of Appeals for the District of Columbia Circuit reversed the dismissal of claims brought by a bar applicant against the Committee on Admissions and the Mayor's office

In 2010, the District of Columbia Court of Appeals Committee on Admissions (“Committee”) denied Clarence Jackson’s application to sit for the D.C. Bar Examination (“Bar”). Since then, Jackson has challenged that decision and, in turn, the handling of his challenge. His case reached the federal district court in 2016. The district court dismissed his  complaint based on three alternative doctrines: the Rooker-Feldman doctrine, the Younger abstention doctrine and the doctrine of res judicata. Because none of the three doctrines applies, we reverse.

The facts

Clarence Jackson sat unsuccessfully for the Bar four times. In 2010, he applied to sit a fifth time. He failed to pay the required fees or to provide proof of law school graduation and the Committee denied his application.

Five years later, Jackson sued the Committee in the D.C. Superior Court (“State Complaint”). He alleged that the denial of his application violated the Fourteenth Amendment to the United States Constitution, constituted a breach of contract and resulted in the intentional infliction of emotional distress. On April 1, 2016, the Superior Court granted without explanation the Committee’s motion to dismiss the State Complaint.

On or around April 5, 2016, Jackson submitted a petition to the D.C. Mayor’s Office in an apparent attempt to seek review of the decision denying him a further opportunity to take the bar exam. The Mayor’s Office denied his petition on the ground that he had already filed a lawsuit making the same claim. Jackson then petitioned for review in the D.C. Court of Appeals, but his petition was denied as untimely.

On April 7, 2016, Jackson asked the Superior Court to explain why it dismissed the State Complaint. The request remained pending for more than one year.

He then filed this federal case and here appealed the dismissal

The Rooker-Feldman doctrine prevents a federal district court from hearing “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Because Jackson did not ask the district court to review and reject the Superior Court’s dismissal of the State Complaint, Rooker-Feldman does not apply. The Younger doctrine prevents a federal court from interfering with certain categories of ongoing state proceedings. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72–73 (2013). We need not decide whether Younger applied at the time of the district court’s decision; because Jackson’s state court proceedings are not currently ongoing, Younger does not apply. See Stanton v. D.C. Court of Appeals, 127 F.3d 72, 74 (D.C. Cir. 1997).

Nor does D.C.’s doctrine of res judicata apply. The full faith and credit statute dictates that D.C. law governs this issue...

A dismissal for lack of jurisdiction does “preclude relitigation of the precise issue of jurisdiction that led to the initial dismissal.”

No dismissal on these bases

For the foregoing reasons, the judgment of the district court is reversed. The case is remanded for further proceedings consistent with this opinion. The district court is free to consider, inter alia, the alternative bases for dismissal set forth in the Defendants’ motion to dismiss.

(Mike Frisch )

December 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Hungarian Survivor Claims Reinstated

The United States Court of Appeals for the District of Columbia Circuit reinstated claims brought by U.S. citizens arising from the Holocaust in Hungary that had been dismissed by the district court

“Nowhere was the Holocaust executed with such speed and ferocity as it was in Hungary.” Simon v. Republic of Hungary, 812 F.3d 127, 133 (D.C. Cir. 2016) (internal quotation marks and citation omitted). More than 560,000 Hungarian Jews—68% of Hungary’s pre-war Jewish population—were killed in one year. Id. at 134. In 1944 alone, a concentrated campaign by the Hungarian government marched nearly half a million Jews into Hungarian railroad stations, stripped them of all their personal property and possessions, forced them onto trains, and transported them to death camps like Auschwitz, where 90% of them were murdered upon arrival. Id. at 133–134.

Fourteen of the very few survivors of the Hungarian government’s pogrom (collectively, “Survivors”), including four United States citizens, filed suit against the Republic of Hungary and Magyar Államvasutak Zrt. (“MÁV”), Hungary’s state-owned railway company. As relevant here, the litigation seeks compensation for the seizure and expropriation of the Survivors’ property as part of the Hungarian government’s genocidal campaign. See Simon, 812 F.3d at 134.

Majority holding

Winston Churchill described the brutal genocidal expropriations, deportations, and mass extermination of Hungarian Jews at Nazi death camps as “‘probably the greatest and most horrible crime ever committed in the history of the world.’” Simon, 812 F.3d at 132. The district court erred in declining to exercise statutorily conferred jurisdiction over the Survivors’ effort to obtain some measure of reparation for those injuries both by wrongly requiring them to adjudicate their claims in Hungary first, and by misapplying the law  governing the forum non conveniens analysis. We deny the Survivors’ request that the case be reassigned, and remand for further proceedings consistent with this opinion.

KATSAS, Circuit Judge, dissenting: The district court concluded that this foreign-cubed case—involving wrongs committed by Hungarians against Hungarians in Hungary— should be litigated in Hungary. In so doing, the court permissibly applied the settled law of forum non conveniens.

The majority opinion is authored by Circuit Judge Millett joined by Circuit Judge Pillard. (Mike Frisch)

December 28, 2018 in Current Affairs | Permalink | Comments (0)

Tech Challenged

A New York town court justice has resigned as announced in a press release from the Commission on Judicial Conduct

Judge Scolton was served with a Formal Written Complaint dated November 19, 2018, containing three charges alleging that he (1) failed to make timely reports and deposits of court funds to the State Comptroller, despite two previous cautionary letters for such derelictions; (2) failed to make proper notifications to the Department of Motor Vehicles as to 2,612 defendants in motor vehicle cases who were convicted, or failed to pay a fine or failed to answer the charge; (3) failed for more than three years to monitor his official court email account or respond to emails received by that account; and (4) failed for at least a year to activate or utilize a computer and software provided to him by the Office of Court
Administration for the purpose of facilitating the court’s financial and case administration.

The commission's order is linked here. (Mike Frisch)

December 28, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Law School Misconduct And Candor Concerns Lead To Denial Of Admission In Wisconsin

The Wisconsin Supreme Court agreed with its Board of Bar Examiners that admission was properly denied on character and fitness grounds

This is a review, pursuant to Supreme Court Rule (SCR) 40.08(7), of the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Daniel R. Hausserman, satisfied the character and fitness requirements for admission to the Wisconsin bar set forth in SCR 40.06(1). The Board's decision was based primarily on  Mr. Hausserman's conduct in 2015, and his failure to disclose certain matters on his bar application.

The issues

There are, essentially, two concerns here. The most significant involves Mr. Hausserman's conduct over a period of approximately seven months during and after his final year of law school. The other involves certain shortcomings with his application for admission to the Wisconsin bar...

We have, as counsel for Mr. Hausserman urged, focused carefully on the facts of this record. Mr. Hausserman attended Drake University Law School. In February 2014, when he was 25 and in law school, Mr. Hausserman met B.F., a Drake University undergraduate student, and they began dating. The relationship was serious. In December 2014 the relationship ended. Some communication continued, however, and Mr. Hausserman thought the relationship would resume.

 On March 5, 2015, B.F. filed a complaint with Drake University stating that she was receiving unwanted communications from Mr. Hausserman. Mr. Hausserman's actions between March and September 2015 are the primary reason his Wisconsin bar application was denied.

On March 9, 2015, Drake University officials advised Mr. Hausserman of the complaint and directed him to cease any further contact with B.F. Within two weeks Mr. Hausserman had contacted B.F. by email at least twice. On March 27, 2015, Mr. Hausserman sent B.F. three more emails and had called her.

On March 30, 2015, Drake University again directed Mr. Hausserman to have no contact with B.F. On April 2, 2015, following a meeting between University officials and Mr. Hausserman, the University sent a letter to Mr. Hausserman stating that he had violated the harassment provision of the school's code of conduct. Mr. Hausserman was barred from campus except for his academic classes.

On April 15, 2015, Mr. Hausserman sent B.F. another email which began: "I am aware this is in violation of the no communication/contact order and places me at risk of certain arrest." Two days later and in an apparent attempt to reach B.F., Mr. Hausserman sent a text message to her mother, also in violation of Drake University's no-contact directive. Thereafter, Mr. Hausserman was banned from the University except for completing his final exams and attending his graduation ceremony. He was advised that after his law school graduation, he would be barred indefinitely from the university campus.

On May 16, 2015, hours after his law school graduation, Mr. Hausserman left B.F. a telephone message. B.F. contacted the City of Des Moines Police Department.

A few days later, the police spoke with Mr. Hausserman, who said that he thought his graduation terminated the restrictions on communicating with B.F. The police told him to cease all contact with B.F. and warned him that if he violated that directive he would be criminally charged. Approximately one week later, B.F. contacted the City of Des Moines Police Department again, to report that Mr. Hausserman had sent her several more text messages.

On May 28, 2015, Mr. Hausserman was criminally charged in Iowa with Harassment in the Third Degree. He pled guilty in June of 2015 and received a deferred judgment, was placed on probation for 12 months, and ordered to have no contact with B.F.

He graduated but was not permitted to sit for the Iowa Bar.

Then 

In late September 2015, B.F. reported to police that she had received a Snapchat friend request from Mr. Hausserman. Following an interview with police, Mr. Hausserman admitted that he had contacted B.F. again because he had reason to believe she was involved in derogatory internet postings about him, and he wanted to discuss that with her. He acknowledged this action violated the terms of his deferred judgment. He was arrested and his home searched. He was found to be in possession of four firearms, two of which were loaded, in violation of his deferred prosecution agreement.

Mr. Hausserman was found in contempt of court, sentenced to 30 days in jail, given a year of probation and supervision, and ordered to complete a mental health assessment. The mental health evaluation revealed no drug or alcohol issues, but recommended that Mr. Hausserman undergo treatment to address his behavior. The record indicates that Mr. Hausserman has not attempted any further contact with B.F. since September 2015.

He applied in Wisconsin in November 2015 and took and passed the bar exam.

When Mr. Hausserman first applied to take the Wisconsin Bar Exam in November 2015, he responded affirmatively to Question 20 which asks, in part, whether the applicant has been disciplined or placed on probation by a law school. Mr. Hausserman explained that he had been placed on academic probation for one semester. He failed to disclose the restrictions Drake University imposed on him related to B.F.

There were other disclosure concerns

Mr. Hausserman disclosed an underage drinking ticket from 2007 and a 2012 citation for failing to have proof of automobile insurance in connection with a traffic stop. However, the Board was troubled by his description of these events. He explained the ticket this way: while at a Badger football game he was "grabbed by police because he had one foot on the sidewalk." He explained the traffic citation like this: he was driving his father's car and was pulled over because "police don't like young kids driving nice cars."

Mr. Hausserman failed to report an incident from 2003 (when he was 15) in which he and a friend were cited for destroying a mailbox. He had reported the incident on his law school application.

The court looked to prior cases where admission was granted such as

Most recently, we admitted an applicant who had submitted a heavily plagiarized paper in law school, failed a required Professional Responsibility class, and failed to report three underage drinking citations on his law school application.

That decision is linked here. The Journal Sentinel reported on the case. 

In contrast

Crucial to these decisions are several common factors that are not present in the record before us. These factors include excellent character references, particularly from people who are aware of the troubling conduct compromising the application. These cases also include some affirmative evidence of rehabilitation. In some cases, where mental health or substance abuse issues may have been causally related to the underlying conduct, and the applicant provided evidence of having sought and pursued counseling or treatment. In other cases the applicant has demonstrated an interest in and commitment to the community, through the investment of time which also speaks to character. And, a critical factor is the passage of time. As time passes with no concerning conduct, we are increasingly likely to be persuaded that the applicant has addressed whatever concerns initially precluded admission...

In closing, we observe that nothing in SCR 40.04 or elsewhere in SCR Ch. 40 precludes Mr. Hausserman from again seeking admission to this bar when he believes he can demonstrate his character and fitness to the satisfaction of the Board and this court.

(Mike Frisch)

December 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Troubled Waters

An Iowa attorney recently was reprimanded by the Attorney Disciplinary Board for failing in his duties as local counsel for an Illinois lawyer

The Court first notes the clear inference that agreeing to be an Iowa co counsel with Paul Caghan was worrisome. Thorson was well aware of the troubled waters navigated by Caghan. As such, he should reasonably have had a clear understanding as to Caghan's duty to adhere to lowa's standards of ethical practice and to submit to Thorson's directives regarding same. Because Caghan has a proven track record of frivolous filing, it is a sanctionable dereliction of the duty of an "in-state attorney" to simply step aside and allow an "out-of-state" attorney to needlessly exacerbate the costs of litigation through frivolous and false filings.

Thorson knew, or should have known, Caghan would not willingly abide by Iowa's rules because he has a history of frivolous filings and has been previously sanctioned for such conduct. It does not appear Thorson entered into a carefully executed written agreement with Caghan in which Thorson would exercise his ethical duty to fully supervise Caghan's conduct in Iowa. Rather, is appears Thorson essentially stepped aside, once the petition had been filed and with a few pretrial motions were dealt with/ and let Caghan conduct himself at will. Thorson's written communications with or directed to Caghan often were not answered. However/ Thorson took limited steps to supervise Caghan or, finding that Caghan was out of control and unwilling to be supervised by his Iowa attorney, Thorson did nothing to withdraw his pro hac vice request for admission of Caghan. Nor did Thorson take reasonable steps to involve the Court to restrain Caghan's unethical conduct.

In mitigation, the Board  found his "wrongful conduct is more that of omission than commission" and noted his 41 years of discipline-free practice.

Try this link. (Mike Frisch)

December 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 27, 2018

Reinstated After Conviction: Foot Injury Led To Marijuana Grow Operation

The New York Appellate Division for the Third Judicial Department granted reinstatement to an attorney suspended for a criminal conviction

By July 2016 decision, this Court found that respondent had perpetrated a "serious crime" in New Jersey and suspended him from the practice of law for two years (141 AD3d 827, 828 [2016]; see Judiciary Law § 90 [4] [f], [g]). This order stemmed from respondent's August 2015 plea of guilty to the crime of manufacturing, distributing or dispensing marihuana (see NJ Stat Ann 2C:35–5). Respondent now moves for his reinstatement (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [a]). The Lawyers Fund for Client Protection indicates that it has no objection to respondent's application, and the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) similarly advises that it does not oppose the application and defers to the Court's discretion.

Given the length of his suspension, respondent properly submits a sworn copy of the form affidavit applicable to attorneys suspended for longer than six months (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [b]; part 1240, appendix C). Respondent also provides proof that he successfully completed the Multistate Professional Responsibility Examination in August 2017, as is required for attorneys seeking reinstatement following suspensions of six months or more (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [b]). Moreover, having reviewed respondent's affidavit, exhibits and supporting documentation, we are satisfied that he has fully complied with the order of suspension and the rules of this Court, that he has the requisite character and fitness for the practice of law and that it would be in the public's interest to reinstate him to the practice of law in New York (see Matter of Sommer, 150 AD3d 1530, 1530-1531 [2017]; Matter of Ebrahimzadeh, 146 AD3d 1145, 1146 [2017]). Accordingly, we grant respondent's motion.

NJ.com reported on the arrest in July 2015

A Basking Ridge couple was arrested Monday after police arrived at the home on a first-aid call and found nearly 60 marijuana plants in the basement while looking for cleaning supplies in the home.

On July 6 at 12:44 p.m., Bernards police arrived at the residence of Joel A. Padilla, 35, and his wife, Jill Hyun-Lee, 42, on a 9-1-1 call of a male with a glass slice to his foot, according to an affidavit written by Detective Sgt. Scott Ward of the township police.

Padilla suffered the injury and was taken to the hospital, the affidavit states. Afterwards, officers, aware the couple had small children, remained in the residence to help clean up blood and broken glass at the scene so they wouldn't get injured or see the bloody scene, the affidavit states.

The affidavit didn't state how Padilla was injured.

While looking for supplies to clean up the scene, an officer opened a basement door and smelled a strong odor of raw marijuana, the affidavit said. Upon further inspection of the room, officers found a jar of marijuana, a ventilation system and grow tents, the affidavit said.

Later, a search warrant was secured and 59 marijuana plants and evidence and equipment consistent with a marijuana production facility and distribution were discovered, the affidavit said.

Padilla, and his wife, were charged with first-degree manufacturing, distributing or dispensing a controlled dangerous substance and first-degree maintaining or operating a controlled dangerous substance facility, the affidavit said.

(Mike Frisch)

December 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Dancing To Suspension

The Ohio Supreme Court (per Dan Trevas) has decided a bar discipline matter

The Ohio Supreme Court today suspended a Cleveland attorney for two years, with 18 months stayed, for neglecting the immigration matter of a Bulgarian ballroom dancer, then lying about his legal misconduct.

A divided Supreme Court suspended Harlan D. Karp and placed conditions on the stayed portion of his suspension. The Office of the Disciplinary Counsel, which charged Karp with 10 violations of the rules governing the conduct of Ohio lawyers, and Karp proposed that he receive a fully stayed suspension.

In a per curiam opinion, the Court stated it “found that an actual suspension from the practice of law is particularly appropriate when an attorney has made deliberately false statements to a client.”

Chief Justice Maureen O’Connor and Justices Judith L. French and R. Patrick DeWine joined the lead opinion.

Justices Patrick F. Fischer and Mary DeGenaro concurred with the opinion and stated they also would require a period of law practice monitoring following the suspension as recommended by the Ohio Board of Professional Conduct.

Justices Terrence O’Donnell and Sharon L. Kennedy dissented with separate written opinions. Justice O’Donnell would grant the fully stayed suspension, but require the practice monitoring. Justice Kennedy stated she should would grant the fully stayed suspension.

Dancer Seeks Performer Visa
In 2015, a New Jersey dance studio filed a petition seeking an O-1B Visa for Veronika Gadzheva. The United States Citizen and Immigration Services (USCIS) granted the petition for the visa, which is allocated to someone with extraordinary artistic ability or achievement in film and television. Gadzheva entered this country with a visa that expired in February 2018, and soon received an offer from Patricia West, owner of a California dance studio, to work for her.

In July 2015, Gadzheva agreed to pay Karp $750 and a $325 filing fee to transfer her O-1B visa to West’s studio, and Karp told Gadzheva she could move to California and start working with West once the visa petition was filed. Karp also told Gadzheva that West would need to sign some forms and it could take about a week to file the petition.

Later in July, Gadzheva emailed him about 500 pages of information regarding her visa and paid the filing fee. In mid-August, Karp asked West to answer questions for the visa transfer and West responded a week later. Three weeks later, Gadzheva asked Karp if he had filed for the petition, and Karp falsely responded by email, “Yes. Sent.” A few weeks later, Gadzheva sent Karp his $750 fee.

In early October 2015, Gadzheva told Karp she was moving to California with hopes the transfer would be approved soon. Karp, who had not yet filed the petition, told her confirmation should be approved within the week and that he would inform her.

Dancer’s Visa Request Revoked
Later in October, the New Jersey dance studio requested that Gadzheva’s original petition be revoked. Karp was unaware of the request and did not learn of the petition revocation until several months later.

Gadzheva continued to ask Karp what she was allowed to do while awaiting the visa approval. In December she asked if she could take a trip back to Europe “when the papers still aren’t ready.” Karp assured her it was safe to travel.

Through April 2016, Gadzheva and West continued to seek proof from Karp that the petition was filed and he consistently said it had. When West demanded Karp provide a receipt number for the petition, Karp filed the petition with USCIS the next day, seven months after he said he did. Karp also signed West’s name twice on the petition.

The USCIS sent Karp and West a common request for more information. In the document, the agency noted that Gadzheva’s original employer’s petition had been revoked. A week later, Karp emailed a complete copy of Gadzheva’s file to West with the belief that his representation of the two had ended, even though there was no evidence that they communicated such an intent to him or that the USCIS was informed. The agency sent Karp a second request for information that he did not respond to, and the USCIS denied Gadzheva’s petition, deeming it as abandoned.

Client Hires New Lawyer
Gadzheva hired a new lawyer who filed a new petition for an O-1B visa, which was granted. Because her original petition was revoked, the immigration status that allowed her to be in the country until early 2018 was not valid. Gadzheva had to leave the country to activate her new visa. But Gadzheva stated she was afraid to leave the country because the revocation of her first visa may have caused her to accumulate days of “unlawful presence” in the United States, which could result in her being banned from three to 10 years.

Gadzheva filed a grievance with the disciplinary counsel against Karp. During the investigation of the matter, the disciplinary counsel questioned whether Karp had West’s permission to sign her name to the visa transfer and Karp indicated he did. Karp provided versions of the form that he said he filed with notations that he had West’s approval, but those were not the copies actually sent to the government.

The disciplinary counsel charged Karp with violating multiple rules, including not acting with reasonable diligence when representing a client; not informing the client of any decision or circumstance in which the client’s informed consent is required; making a false statement in connection with a disciplinary matter; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Board Consider Sanction
When the professional conduct board recommends a sanction, it considers aggravating circumstances that could increase the penalty it imposes and mitigating factors that could lead to a lesser sanction.

The board noted Karp committed multiple offenses and caused harm to Gadzheva by rendering her immigration status as “extremely vulnerable.” The board also found he acted with a dishonest motive and engaged in deceptive practices with his client and during the disciplinary process.

The board also concluded that Karp had no prior discipline, made restitution, provided evidence of his good character, and presented evidence of a qualifying mental disorder. Dr. Sherif Soliman, a psychiatrist, testified that Karp suffered from hypothyroidism and major depressive disorder.

The parties recommended to the board that Karp receive a fully stayed two-year suspension with conditions that he enter into a contract with the Ohio Lawyers Assistance Program (OLAP), comply with all treatment recommendations from OLAP and his treating professionals, and provide quarterly reports of his compliance.

The board indicated it was “troubled by his failure to appreciate the gravity of his misconduct — which included a pattern of misrepresentations to Gadzheva, West, the federal government and relator [disciplinary counsel] — and the very serious consequences that his misconduct may have on Gadzheva and her immigration status.” The board recommended suspending Karp for two years but staying 18 months of the suspension on the conditions proposed by the parties, with additional requirements that Karp not commit further misconduct, pay for the disciplinary proceedings, and serve two years of monitored probation when reinstated to practicing law.

Karp Objects to Sanction
Karp objected to the sanction, arguing a fully stayed suspension is appropriate. He maintained the board did not give sufficient weight to his mitigating evidence and that the fully stayed suspension is a comparable sanction to two other attorneys whom the Court found committed similar misconduct.

The Court rejected Karp’s arguments. It noted that he began taking medication for his depression in March 2017 and started psychotherapy in June 2017, but questioned whether Karp achieved the “sustained period of successful treatment” necessary for his mental disorder to qualify for maximum mitigating effect. It also noted the Karp exhibited dishonesty during the disciplinary investigation, and had several more aggravating factors involved in his case than the two cases Karp cited as similar.

The Court imposed the suspended sentence with the conditions recommended by the board, except it did not include the two-year period of monitored probation.

Justices Dissent
Justice O’Donnell stated in his dissent that the majority failed to accord sufficient weight to the mitigating factors in the case, including Karp’s lack of prior discipline, payment of restitution and that he would adopt the sanction agreed to by the parties: a fully stayed two year suspension on conditions of an OLAP contract and a period of monitored probation. Recognizing that the purpose of sanctions in disciplinary cases is to protect the public, Justice O’Donnell concluded that the foregoing measures would achieve that goal.

In her dissent, Justice Kennedy noted the disciplinary counsel described Karp’s behavior as “blips” in an “otherwise nearly 30-year-admirable career,” and provided ample evidence of good character and reputation.

She also maintained that the Court majority discounted the mitigating effect of Karp’s mental disorder. Contrary to the majority, she found that Karp established that he completed a sustained period of successful treatment for his depression and hypothyroidism. Further, she wrote that the expert testimony supported finding that Karp’s mental disorder caused both his neglect of the legal matter and his misrepresentations to conceal that neglect. She concluded that Karp is entitled to the full mitigating weight for his mental disorder and the appropriate sanction is the fully stayed suspension conditioned on compliance with an OLAP contract and orders from treating professionals.

2018-0254. Disciplinary Counsel v. Karp, Slip Opinion No. 2018-Ohio-5212.

Video camera icon View oral argument video of this case.

Our earlier reporting on the charges is linked here. (Mike Frisch)

December 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, December 26, 2018

Not That There 's Anything Wrong With It

An agreed upon admonition has been imposed by the Arizona Presiding Disciplinary Judge

Ms. Tarascio represented Father in a family law matter and believed Mother had kidnapped their baby with the assistance of Mothers’ parents. According to the Agreement this ultimately proved to be true. It states that through the efforts of the FBI, and Mesa Police, the baby was eventually located, reunited with Father and both the Grandparents and Mother were found to have taken the child in violation of court orders. They each pled guilty to custodial interference in an associated criminal matter.

But the end does not justify the means

To obtain information regarding the whereabouts of the child and Mother, Ms. Tarascio contacted a professional acquaintance, Karl Weiss who is a loan officer at Independent Mortgage in Scottsdale. Ms. Tarascio improperly obtained and provided Grandparents’ personal identifying information to her acquaintance. She also provided the Mother’s information to the same officer. She did not have their permission or court permission to do so. Their ploy was to use the personal credit information of each of their victims to run credit checks/credit under the guise that Mr. Weiss had loan applications from each. Ms. Tarascio says she was unaware there was anything wrong in this. Through that intentional subterfuge the loan officer verbally provided Ms.Tarascio with the credit histories verbally. This gives the strong appearance of the avoidance of an evidentiary trail of these fake applications.

The claimed ignorance by Ms. Tarascio that she did not know that she needed permission to obtain the financial information of apparently any opponent she chooses is more than troubling. Rather than straight up acknowledge that her desperation to help find her client’s child clouded her judgment, she instead blames her friend Karl Weiss. She bluntly blame-shifts that he should have known better and informed her of such impropriety. It is apparent from the documentary evidence in Grandparents’ objection that neither Ms. Tarascio nor her accomplice Mr. Weiss told his employer that they knew each other before she sought this financial information and that he was her “professional acquaintance.”

Subterfuge and cover-up is best accomplished without documentary evidence. The objection suggests that Ms. Tarascio obtained the credit history information but was careful not to receive written documentation of that information, but rather only verbal. Regardless, her conduct casts a dark image that lawyers are above the law. In a world where people often pay monthly fees to be alerted of such hacking and where the news often broadcasts the latest breech of client’s financial information, she and her friend used much older tried and true method that is never available to an ethical lawyer; intentionally being untruthful.

She then used the personal credit information to identify which financial institutions to issue subpoenas. Grandparents learned about the credit applications when the received a “Notice to the Home Loan Applicant” from Fairway Independent Mortgage which states, “In connection with your application for a home loan, the lender must disclose to you the score that a consumer reporting agency distributed to users and the lender used in connection with your home loan…” (Emphasis added.)

Their 124-page objection to the Agreement suggests multiple areas of continuing concern, including cover up. When grandparents objected to the invasion of their privacy, Ms. Tarascio apparently told the court there were no loan applications submitted. The evidence is to the contrary. But the stipulated evidence is that Grandparents received the loan rejection from Fairway Mortgage. The objection also points out that the defense by Ms. Tarascio to the court was her factual assertion that there was never a real loan application received. But that is only because there was no real person applying for credit, any more than any hacker turns in a real loan application. That she says she didn’t consider its illegality because of her apparent disinclination to research the issue and apparently didn’t even ask the question of her banking friend is defenseless.

Sanction

mitigation properly looks at the misconduct during its occurrence. Solely on that basis it is considered. The PDJ rejects the mitigating factor of remorse. Remorse does not consist of a feigned emotion that is more akin to sorrow that one has been caught. It is demonstrated by actions taken that acknowledge the wrong and seek to mitigate the consequences of that misconduct. There is no remorse. To the contrary there appears to be a pride that the ends justify the means. The character letters are noted but given no weight. Full and free disclosure to disciplinary board or cooperative attitude toward proceedings is always significant. The absence of prior disciplinary offenses has weight.

All cases involving any prosecution revolve around evidence, perception and resources. The State Bar has discretion in its prosecution and determines how best to proceed. This matter appears to warrant a reprimand. The parties agree the mitigation submitted warrants a reduction in the presumptive sanction of reprimand to admonition.

(MIke Frisch)

December 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The $90,000 Ring

An interim order of suspension has been imposed by the Arizona Presiding Disciplinary Judge.

ADI reported

Prominent Scottsdale attorney, Scott Allan Maasen, was sentenced to 18 months in prison after pleading guilty to one count of concealment of assets in bankruptcy.

Maasen also was sentenced to three years of supervised release and ordered to pay nearly $1.4 million in restitution to the United States Small Business Administration.

Maasen filed for bankruptcy in late 2009 after he stopped making payments on a $1.5 million loan guaranteed by the Small Business Administration. As part of his plea, Maasen admitted that, while his bankruptcy proceedings were still pending, Maasen purchased a $90,000 engagement ring for his fiancé. Maasen admitted he did not disclose the ring or his payments to purchase the ring in his bankruptcy proceedings, although he was obligated to do so. Maasen used credit card and bank accounts in his father’s name to make the payments to give the false appearance that Maasen’s father had purchased the ring.

The investigation in this case was conducted by the Internal Revenue Service—Criminal Investigation and Small Business Administration—Office of the Inspector General.

From AZ Central

High-profile lawyer Scott Maasen tooled around in a Maserati when he wasn't buying million-dollar homes, leasing a beachfront condo or swearing to a federal judge he couldn't pay his bills, authorities said.

But it was a $90,000 engagement ring that will land Maasen in a federal prison for 18 months beginning in January. 

The former Maricopa County prosecutor, who transformed himself into a Scottsdale-based criminal-defense attorney and DUI specialist, was sentenced in federal court Tuesday for concealing the ring when he filed for bankruptcy in 2009.

That was 18 months more than Maasen said he deserved when he petitioned the judge for probation and no jail time last week.

"The facts surrounding this case are but a small blip on the radar of Scott Maasen's life," Maasen's lawyer wrote in a motion that stressed his public service, his devotion to his daughters and even cribbed a line from Spider-Man comics.

"He (Maasen) knew that with great power comes even greater responsibility, and his prosecutorial reputation was one of honesty and fairness," his lawyer wrote. "It cannot be overlooked that Mr. Maasen spent years helping hundreds and possibly even thousands of clients who were often experiencing the very worst stretch of their lives."

Judge David Campbell instead gave Maasen about two months before he must surrender himself to the Bureau of Prisons on Jan. 11. The judge also sentenced  Maasen to three years' probation upon his release.

Maasen, who admitted to concealing the ring as part of a plea deal in April, faced up to five years in prison. 

Neither Maasen nor his attorney could be reached for comment Wednesday.

Maasen, his father and his girlfriend were indicted last year on multiple charges, including conspiracy and concealment. They were accused of disguising assets and of lying to the court about who owned them.

Investigators with the Internal Revenue Service outlined a series of complex financial transactions they say Maasen orchestrated with his father, David Maasen, and his girlfriend, Heather Holm, to shield purchases from the court and creditors.

Days before filing for bankruptcy in 2009, Maasen arranged to buy a $1.1 million home on Camelback Mountain, which he put in his father's name, according to the indictment.

Authorities also said Maasen:

  • Falsely told creditors meeting about his bankruptcy that he had no interest in any property other than a piece of vacant land.
  • Negotiated a $450,000 settlement on a $1.5 million Small Business Administration loan in 2012 that he had used to purchase a Scottsdale condominium for his law firm. 
  • Applied for a $725,000 mortgage loan with Holm for a $1.2 million home in Scottsdale's Silverleaf community at the same time he claimed he couldn't repay the SBA loan.
  • Transferred the Silverleaf house into his father's name, then helped Holm and his father on a $1.8 million refinancing loan for the home by serving as their attorney
  • Used funds from his law firm to lease a Maserati Quattroporte in David Maasen's name. 
  • Used his law firm's business account and Holm's checking account to make $25,000 in lease payments on a beachfront condo in La Jolla, California, without disclosing it to the court.
  • Concealed his ownership interest in an investment group.
  • Hid hundreds of thousands of dollars he received while acting as a broker on a property sale.

Charges dropped in plea deal

Maasen was initially charged with 12 counts ranging from making false statements to the SBA and concealment of assets in a bankruptcy to fraudulent transfer of property and conspiracy. 

In exchange for Maasen's guilty plea, federal authorities agreed to drop charges against his father and girlfriend. Maasen also has to repay $1.4 million to the SBA.

Maasen admitted using his father to purchase a $90,000 engagement ring for Holm in 2012 from a California jeweler. In court filings last week, Holm was described as Maasen's former fiancée.

"This was done so it looked like my dad was the owner of the engagement ring, which he was not," Maasen said in his plea agreement. "Shortly thereafter, I proposed to my fiancée with the engagement ring."

He and Holm later insured the ring on their homeowner's policy.

Maasen's lawyers said in last week's motion that he was motivated by love and beseeched the court to consider the ring and not the related allegations, which remain unproven.

"Make no mistake, while in bankruptcy, Mr. Maasen devised a way to propose to the woman he loved with a magnificent ring that was not reported in his bankruptcy proceedings," the lawyer wrote. "He does not minimize that conduct or seek to avoid criminal responsibility for it. He simply asks this Court to focus on what is known beyond a reasonable doubt."

Suspended from legal practice

An Arizona Supreme Court judge overseeing discipline of lawyers suspended Maasen last month from practicing law.

The judge, citing past disciplines and Maasen's guilty plea in the bankruptcy case, suspended Maasen for six months and a day. The extra day means Maasen will have to reapply for his law license and show that he has been rehabilitated if he wants to go back to being a lawyer.

Scott Maasen graduated from ASU in 1993 with a bachelor's degree in political science and served as student-body president in 1992-93. He received his law degree from California Western School of Law in San Diego.

The State Bar of Arizona shows Maasen has been disciplined in multiple cases. He has received admonitions, a reprimand and has been placed on probation three times. 

A 2016 case involved a mentally disabled minor accused of sex crimes, who "contacted several 13-15-year-old girls on Facebook and engaged in explicit sex talk with them," according to state Bar records. Maasen allowed his client to plead guilty and avoid jail time without taking any steps to determine if his client was mentally competent.

A judge later threw out the guilty plea and the conviction.

The state Bar put Maasen on probation, citing several aggravating circumstances, including: "prior disciplinary offenses, selfish motive, refusal to acknowledge wrongful nature of conduct, vulnerability of victim, substantial experience in the practice of law, and indifference to making restitution."

(Mike Frisch)

December 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Unwanted Touching

A justice of the Maine Supreme Judicial Court has ordered a three-year suspension of an attorney who had engaged in "unwanted physical advances that rose to the level of  criminal conduct in the form of unlawful sexual touching and assault."

He had groped a female tenant and assaulted her by "pulling her head against his crotch."

He was also found to have both intentionally and negligently violate an order of interim suspension, in one respect for running for the office of District Attorney while suspended .

The judge further found he had engaged in witness tampering by - through his counsel - attempting to pay off the complainant in the bar case.

And his filing of a "baseless" lawsuit against the the persons involved in the bar prosecution was an aggravating factor. 

The Lewiston Sun Journal reported on the judge's findings

Carey, 43, who lives in Auburn, but owns a house in Rumford, was suspended from practicing law in Maine in 2016, but was able to get that suspension lifted by agreeing to specific conditions. In April, the board filed a petition for his immediate suspension in connection with the claims made by the woman who lived at his home. The court ordered an interim suspension after reviewing the evidence presented in district court during the protection from abuse hearing.

In his recent findings filed Friday, Warren focused on three events that took place at Carey’s Rumford house.

During Thanksgiving 2017, the woman was awakened in the middle of the night to find Carey’s hands touching her legs and between her thighs. He suggested she sleep with him. She told him to leave her room. He did.

In 2018, Carey tried to pull the woman into his bedroom and proposed having sex. Another time, the woman was sitting on the couch when Carey “stepped in front of her, pulled her head against his crotch and in crude terms requested oral sex.”

(Mike Frisch)

December 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, December 24, 2018

Two State Solution

Reciprocal discipline has been imposed in Colorado for Nevada misconduct

This reciprocal discipline case arose out of discipline imposed in Nevada. On September 7, 2018, the Nevada Supreme Court entered an order suspending Pengilly for six months and one day, with the automatic requirement that he petition for reinstatement. This discipline was premised on Pengilly’s conduct at a plaintiff’s deposition where Pengilly was representing himself as the defendant. The Nevada Supreme Court determined that during the deposition Pengilly used vulgarities, called the deponent derogatory names, aggressively interrupted the deponent and opposing counsel, answered several questions for the deponent, and repeatedly made inappropriate statements on the record. Further, he asked the deponent if he was “ready for it” while positioning his hand near his hip, and soon thereafter displayed to the deponent and opposing counsel a firearm he had holstered on his hip. As a result, the deposition was cancelled and the underlying litigation was placed on hold.

He was suspended for six months and a day in Colorado.

Our coverage of the Nevada sanction is linked here. (Mike Frisch)

December 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

An Eight-Hour Course

A stayed year and a day suspension has been approved by the Colorado Presiding Discipline Judge

Wiegand, a Denver attorney, hired a female associate in 2009. Around that time, he also hired a female office manager. Wiegand’s office shared two unisex bathrooms with an adjoining convenience store. Wiegand and his wife were the sole members of the entity that owned the commercial spaces. One day in 2012, the associate changed her clothes in one of the bathrooms and later discovered a surveillance camera there. She suspected that Wiegand had placed the camera in the bathroom. She presented the camera to Wiegand and suggested calling the police. Wiegand did not agree to immediately do so. He opened the battery compartment and handled the batteries in front of the associate. Ultimately, the police were contacted, but the investigation was later closed.

In addition, the parties agree that Wiegand 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. However, it is disputed whether the statute of limitations would bar disciplinary claims based on those behaviors.

The associate and the office manager left the firm. They both filed discrimination claims with the Colorado Civil Rights Division. In a deposition, Wiegand 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 Wiegand 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 standard of proof in lawyer discipline proceedings is clear and convincing evidence, and the disciplinary stipulation states that it does not resolve the question of whether Wiegand placed the camera in the restroom. Wiegand denies having done so. The civil rights claims court also found that Wiegand’s firm lacked appropriate discrimination or harassment policies and procedures. He has since addressed those issues.

He will subject to two years probation as the suspension is

all stayed upon the successful completion of a two-year period of probation, effective November 21, 2018. The probationary requirements include attending ethics school and completing an eight-hour course related to sexual harassment or human resources.

(Mike Frisch)

December 24, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, December 22, 2018

Anatomy Of A Judicial Disaster

You won't read a much harsher assessment of judicial misconduct than that found in a recent Special Master report before the Michigan Judicial Tenure Commission.

The high-profile hearing took eight hearing days in October. A further hearing on additional charges was held on November 19

Perhaps the most serious charge proven against respondent Theresa Brennan is her failure to disqualify herself from the case of People v. Kowalski, Livingston County Case No. 08–17643-FC, because it was not only serious misconduct, but also one that infected the integrity of a serious criminal proceeding, a charge of double homicide firstdegree murder that resulted in a sentence of life imprisonment without parole.

The Kowalski case was assigned in March, 2009 to Judge Brennan, who was crossassigned to the circuit court. Michigan State Troop Detective Sean Furlong investigated the case, was the co-officer in charge, took the confession of the defendant, and was the principal witness before and during the trial.

After finding the two were socially intertwined to an extent concealed from the parties

The foregoing was more than sufficient to have required Judge Brennan’s disqualification. The denial of disqualification was all the more egregious, however, because, by the time of the disqualification motion and for a significant period before, Judge Brennan had a romance with detective Furlong. Yes, a romance...

What appears, then, is the trajectory of a romance between Judge Brennan and Detective Furlong that started sometime before her birthday in 2007 and continued at least until sometime in late 2013 when, Judge Brennan says, they first had sexual relations. January 4, 2013, the date of the disqualification motion, fell at the hottest part of that trajectory.

Thus

Should Judge Brennan have agreed to disqualify herself at the time of the motion? The answer seems to be obviously “yes,” but as a practical matter it was a near impossibility for her to do it at the time, because a recusal in response to the motion would have acknowledged the travesty of having presided for 4 years over a criminal prosecution when she’d had a close relationship with the investigator, officer in charge, and principal witness.

So, what could or should Judge Brennan have done? When the Kowalski case was first assigned to her, she could have quietly recused herself sua sponte, with a vague reference to preserving the appearance of propriety. That would have saved us, and herself, that much of this travail.

The respondent’s concealment of her relationship with Detective Furlong and failure to recuse herself was gross misconduct that violated Canons 1, 2, and 3 C of the Michigan Code of Judicial Conduct.

She did not recuse herself from her own divorce for six days leading to another series of rhetorical questions

What could possibly explain a 6-day delay for a judge to sign a disqualification order in her own divorce case, especially when an emergency motion was pending? Why would a judge have to speak with a lawyer before signing such an order? And why did Judge Brennan lie in her insinuation to Ms. Pratt on December 6 that she had not yet spoken to her lawyer when she had in fact spoken to him the previous day? The evidence commands the conclusion that her intent was to stall for time in order obliterate the data on the phone so that it would not be available as evidence against her. Between the time respondent was apprised of the ex parte motion and December 8, she asked her courtroom staff and a police officer for assistance in deleting information and an email account from the cell phone. On December 8 she asked her court recorder, Felicia Milhouse, to try to delete the Hotmail account from the phone. After Ms. Milhouse was unable to do so, the judge instructed her to leave her duty as court recorder to continue the effort, which she did by means of an extensive Google search. On or shortly before December 8 Judge Brennan bought a new cell phone and, one way or another, caused the original phone to be reset to its factory settings, a procedure that erased all data from the old phone.

More likely than not, Judge Brennan’s attempts and eventual success in obliterating the data from the cell phone rendered her guilty of the felony described in MCL 750.483a(5)(a)...

She failed to recuse herself in cases where her very close friend and her firm were counsel.

The combination of all of the foregoing elements alone should have been enough to require Judge Brennan to provide a recusal - or at least a disclosure - in cases assigned to the judge where Ms. Pollesch or her firm were counsel...

All of the foregoing is aggravated by the fact that Judge Brennan did deny two disqualification motions brought on the basis of relationship with Ms. Pollesch, without a word from the judge about the circumstances listed above.

And abused those whose paths she crossed

The evidence establishes that Judge Brennan has been consistently abusive to attorneys, litigants and witnesses, and to her own court staff as well, as was the universal opinion of any witness who testified about the judge’s demeanor.

A number of examples are provided

David Kaplan, an attorney with 44 years experience in the courts, characterized Judge Brennan as “unique,” for having the worst demeanor of any judge before whom he had appeared in his lengthy career. Her behavior included degrading attorneys in front of their clients, he said, when there was no necessity to do so...

Carol Lathrop Roberts is an attorney who practiced in Livingston County for 30 years and appeared before Judge Brennan 4 or 5 dozen times, she estimated. She found respondent’s courtroom behavior appalling, abusive and routinely unpleasant disrespectful and intimidating to litigants and attorneys. Roberts deemed the judge “a black smear on the judiciary.”

...According to several witnesses, the judge was conspicuously and continually abusive to her secretary/court recorder, Kristi Cox, who herself testified to the same. She was diagnosed with posttraumatic stress disorder as a result of working for Judge Brennan.

And there is this finding

The scope of Judge Brennan’s willingness to give false testimony under oath is breathtaking. She testified falsely in depositions, in sworn answers to Commission questions, and during the hearing as well. If this opinion should attempt to address each instance or even most of them, it would be verbose in what has already been a lengthy process. Accordingly, we’ll note instead that the Examiner has painstakingly enumerated the instances of the respondent’s false testimony in a document entitled “Appendix 2 – False Statements.” Attached to this report, it is adopted as accurate.

She also used staff to run personal errands and in her campaign.

A stain on the judiciary spread  elsewhere

Jessica Yakel Sharpe was a law clerk and magistrate who worked for Judge Brennan for 2 ½ years. Among the things that Ms. Sharpe did for the judge was to stain the deck at her home over three days, two of which passed while she was being paid by the county. It’s no justification, of course, that the judge also paid Ms. Sharpe for that work.

WXYZ Detroit reports that prosecutors will agree to vacate the Kowalski conviction and grant him a new trial in light of this report. (Mike Frisch)

December 22, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)