NO OFFICE - NO PRACTICE

Fred Barakat, a Delaware attorney, has had his law license suspended for 2 years after the Delaware Supreme Court found that he failed to maintain a bona fide office and adequate books and records.  Barakat mainly worked from his home, but had an "office" listed for his firm.  This "office" did not include any designated office space that was exclusively his.  The employees of the landlord at this building collected his mail and greeted any visitors he had.  These visitors would then be directed to the 4th floor where a receptionist was stationed.  Barakat would then rent a conference room to met with the client.  Barakat's presence at this office was described as "sporadic and unscheduled".

Delaware Supreme Court Rule 12 requires Delaware attorneys to maintain a "bona fide" office for the practice of law.   This required at a minimum, a "responsible person action on [his] behalf - i.e., accountable and answerable to you, by employment or by contract." This was not done in even the slightest of ways the court held. 

Barakat books and records were deficient based upon his failure to prepare bank reconciliations or client subsidiary ledgers and the inability to prove cash receipt entries to deposit totals. 

Throughout the  6 year investigation in Barakat, he routinely denied any wrong doing.

The lesson from this case: if you practice in Delaware, even a tiny little office will do, as long as you regularly show up!  Also, don't lie about your mistakes, it only makes them worse.

BACK AT IT SOON!

Well, it has been quite a while since my last post.  No, I didn't quit... I was on Active Duty for the Army for a while and when I got back, I was given a promotion at work so I have been trying to settle back into things.  But now that I am settled, I will begin posting again.  Hopefully tomorrow will bring something exciting!

2 YEAR SUSPENSION FOR PERFORMING NON-LEGAL WORK

The Louisiana Supreme Court has suspended an attorney, Katherine Guste, for two years for charging a nursing home resident client her normal billing rate of $125 per hour for performing non-legal services such as grocery shopping and picking things up. 

 

The Louisiana Supreme Court held that Kathering Guste charged "an unreasonable fee and took advantage of her client."  The lone dissenter thought that there was insufficient evidence to show that the client was taken advantage of and that a less harsh penalty would be sufficient.

 

The elderly client suffered from Huntington's disease and, according to the Louisiana Supreme Court majority, had diminished capacity.

 

The lesson to learn from this is that if you are going to help a client out with any non-legal business, you likely should not charge your normal legal billing rate, no matter if performed during your normal hours.

 

RELIGIOUS FOR-PROFIT GETS JUDGE IN TROUBLE

Leon County Florida Judge Judith Hawkins is facing an ethics charge for apparently trying to sell books related to her for-profit religious ministry at the county courthouse.  The Florida Judicial Qualifications Commission charged Judge Hawkins with trying to sell materials for her ministry, Gaza Road Ministries, in the courthouse, parking garage, in chambers and even in the courtroom.  Her actions have, according to the commission, prevented her from focusing on her judicial duties.  Conflicts are a potential as well since many of the buyers of Judge Hawkins' materials also appear before her.  The Commission had this to say to Judge Hawkins:

 "Your involvement with Gaza Road Ministries has caused you to devote less than your         full time and attention to your judicial duties," the filing alleges. "You have explained that as a judge, you and your judicial assistant have a great deal of free time, so you feel free to use your judicial chambers and out-of-court free time to conduct your for-profit business and schedule business appointments. You often take time away from your judicial duties to promote your business to the detriment of the prompt and efficient administration of justice."

 

"DISABLED" LAWYER LOSES LICENSE DUE TO LYING ABOUT DISABILITY

California attorney, Leah Harmuth, has had her law license cancelled due to a false statement she used to get extra time on her bar exam due to an alleged disability.

 

For the July 2009 California bar exam, Harmuth claimed that she had been given disability testing accommodations while in undergrad at the University of Pennsylvania.  However, Harmuth only had been given testing accommodations by only one professor; she never had any official accommodations given to her by the University.  Due to this false statement, Harmuth was given time and a half in a semi-private room for the California bar exam. 

 

Her false statement came to light when the New York State Board of Law Examiners notified California that Harmuth had requested accommodations under the penalty of perjury for the Febraury 2011 New York bar exam.  Harmuth stated again that she received accommodations from the Uniersity of Pennsylvania.  After investigating and determining that this was not true, New York disqualified her from taking the exam as well as applying for admissiion to be a lawyer in New York for two years.  Harmuth self-disclosed the New York finding in September 2011.  California then conducted its own invetigation and recommended Wednesday that her license be canceled.  It appears that Harmuth agreed to the penalty.  The California Supreme Court must still approve. 

PORN LEADS TO JUDICIAL DISCIPLINARY ACTION

Will County, Illinois, Judge Joseph Polito has admitted to being addicted to pornography and viewing it on his chamber's computer and using it "as a crutch to deal with my feelings of inadequacy." 

 

Polito was charged in July with two counts of violating the Judicial Code of Conduct (bringing the judicial office into disrepute and not conducting himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary) after the Chicago Sun-Times ran an article that stated he looked at pornography regularly on his office computer.  Polito admits that his actions brought the judicial office into disrepute, but denies the second charge.  Polito states that his looking at porn in his chambers had "absolutely no effect on the hundreds of decisions" he had made as a judge.

 

Polito has sought help for a compulsive sexual disorder and attends a Sexuality Anonymous support group twice a week.  The courts commission, which will issue a written ruling at a later date, could discipline Polito with anything from a reprimand to termination.

 

Viewing porn on work computers has resulted in the dismissal of other state employees in the past, but Polito's public admission will likely help him avoid such a severe punishment. 

UPDATE: FORMER NAVY JAG FACES SUSPENSION FOR GITMO RELEASE

An update on a post from last week.

 

Matthew Diaz, a former Navy JAG lawyer who mailed a classified list of GITMO detainees to the Center for Constitutional Rights, is now also a former Kansas attorney. 

 

The Kansas Supreme Court disbarred Mr. Diaz this week.  Diaz's attorney has asked for leniency since his client had already been court-martialed by the Navy and convicted of four felonies, which resulted in his dismissal from the Navy and serving six-months in prison. 

 

While arguing that his "motive was virtuous" in that he was protecting "the Guantanamo Bay detainees' habeas corpus rights declared in the United States Supreme Court opinion of Rasul v. Bush," the court focused on how Diaz failed to voice his concerns to his superior officers and that the information he leaked potentially could have lead to detainee interrogators being identified, putting their lives at risk.  Also, Diaz by his own admission, admitted not wanting to go to his superiors because "he didn't want to ruin his career."

 

The court stated that disbarment was warranted due to the nature of Diaz's criminal violations and his “admitted selfish reasons for the clandestine disclosure of classified information.”

 

JUSTICE SERVED!

 

The opinion can be read here.

FORMER NAVY JAG FACES SUSPENSION FOR GITMO RELEASE

Matthew Diaz, a former Navy Judge Advocate, is looking at a possible three year suspension from practicing law.  However, the suspension would be retroactive to 2008, allowing Diaz to apply immediately for reinstatement.  The Kansas Supreme Court heard arguments on the recommended suspension (which Diaz's attorney supports) a few weeks ago. 

 

Diaz, while on duty as a Navy Judge Advocate, mailed a classified list of the names of the person being detained at Guantanamo to the Center for Constitutional Rights.  Diaz claimed he was torn between following his orders and his desire to ensure that detainees received legal representation.  Diaz apparently tried disguising the list by enclosing it in a Valentine's Day card. 

 

Diaz was court-martialed, put in the brig, and discharged from the Navy after the discovery of his actions. 

 

From a purely personal side, as a Judge Advocate myself, I find Mr. Diaz's actions reprehensible.  The detainees at GITMO, are not American citizens, and therefore do not enjoy the same rights as American citizens.  They are however treated better than some prisoners here in the US.  They are given access to attorneys, and all their religious needs are attended to.  Mr. Diaz was not being issued an illegal order and he had the moral responsibility to follow orders and do his duty to the best of his ability as a Navy Judge Advocate. 

WESTLAW USE LEADS TO REPRIMAND

Everett Walton, an attorney licensed in Oregon and Hawaii, but practicing in Hawaii, was publicly reprimanded by both the Oregon and Hawaiian Supreme Courts for his use of Westlaw after he left his job as a prosecutor. 

 

While a prosecutor for the Republic of Palau, Walton was given a three-year, flat rate contract to use Westlaw.  After he left this position, he tried without success to cancel the Westlaw contract, and then used it for 14 months after while working for the Legal Aid Society of Hawaii.

 

Oregon's opinion noted how Walton had "an unblemished record in 35 years" of practicing law and this infraction did not seriously reflect on his fitness to practice law.  Since his misconduct did not personally benefit him (the Court stated that the true beneficiaries of his misconduct were the Legal Aid Society of Hawaii and its clients) and did not harm anyone, a public reprimand was sufficient.  The Oregon Disciplinary authorities had asked originally for a six month suspension of Walton's license. 

ACCOUNTING ERRORS - ALWAYS LOOK IN THE SOCK DRAWER

An Iowa attorney, was suspended one-month for not depositing a number of client retainers (in cash) into her trust account.  Instead, she deposited them into her law firm operating account or in books on her bookshelf for her own personal use. 

 

Her former paralegal blew the whistle on Ms. Kersenbrock's unethical behavior and also testified for the prosecution in the disciplinary case.  Ms. Kersenbrock stated that "she wasn't required to deposit most of the retainers into her trust account, because they had already been earned when she put them into her operating account."  She admitted to putting a $3,000 cash retainer into her drawer once for several weeks.

 

Due to there being several violations, Kersenbrock was given a one month suspension, instead of the public reprimand that the disciplinary committee recommended.   

FORMER PROSECUTOR'S "DEVIANT BEHAVIOR" MAY GET HIM SUSPENDED

A former Connecticut prosecutor, David Holzback, who was fired recently due to his secretly filming women's legs in and around the courthouse, may be suspended for his voyeuristic behavior as well. Suzanne Sutton, the Chief Disciplinary Counsel for the State of Connecticut, is asking for Holzback's license to be suspended immediately on an interim basis. In support of her request, she states, "[Holzback} cannot be trusted to avoid voyeurism of prospective clients, witnesses or other counsel" and "[he] poses a substantial threat of irreparable harm to his clients or prospective clients" because he "cannot control his deviant behavior as is evident by the long history of behavior and prior reprimands associated with this behavior."

It is alleged that Holzback used a "spy pen" to film females at the courthouse without their permission. He was previously reprimanded by the prosecutor's office twice before - in 1992 for filming courthouse staff in the hallways, offices, and parking lot as well as in 2006 for taking photos of a female intern in the prosecutor's office.

SEX WITH JAILED CLIENT LEADS TO ARREST

Curtis Cannon, a Nevada attorney, has been charged with a felony count of voluntary sexual conduct between a prisoner and another person, according to the Las Vegas Sun, after being caught on tape performing sexual acts.  The alleged incident happened in the Clark County Detention Center.  Detectives with the Metro Police initiated an investigation into Cannon's behavior with female clients after receiving numerous complaints about his alleged misconduct with female inmates.  The Metro Police installed a camera in a detention visiting room which only recorded video so that it did not violate attorney-client confidentiality.  The video showed his client, Crystal Wallis, groping Cannon's groin and apparently performing oral sex on him.  Afterwards, both Wallis and Cannon admitted to the act when questioned.  

TAKING CLIENT'S KIDS FOR A RIDE LEADS TO SUSPENSION

Indiana Attorney, Cecelia Hemphill, was suspended 6 months for taking a client's children for a ride without alerting the children's mother.  Hemphill, believed that the mother's boyfriend had molested one of the children and that the children were in grave danger.  The daughter, claimed that the mother's boyfriend had touched her inappropriately. 

Since Hemphill wanted to talk to the children alone, she had the father write a note to the principal of the children's school stating she had permission to pick the children up from school.  Hemphill, was questioned by the secretary of the school but was eventually was allowed to pick the children up early from school.  Hemphill then called the children's sitter and told her that she (Hemphill) had the children and that they were going to meet with the father for dinner. During this time, Hemphill questioned the children about the possible molestation but it was never mentioned.  After dinner with their father, Hemphill continued to drive them around for a few hours before returning them (after 6 hours) to their mother, who had working with the Sheriff's department to find them. 

Indiana's Supreme Court Disciplinary Committee charged Hemphill with violating Indiana Professional Conduct Rules 4.1.(a) [Knowingly making a false statement of material fact to a third person in the course of representing a client], 4.4(a) [Using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person], 8.4(a) [Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation], and 8.4(d) [Engaging in conduct prejudicial to the administration of justice].

The Supreme Court of Indiana held that the Commission failed to met the burden of proving by clear and convincing evidence regarding Rules 4.1(a) and 8.4(a).  Regarding violating Rule 4.4(a), the Supreme Court sated that "[B]y intimidating the school secretary into releasing the children to [her] and by causing Mother great anxiety over their safety, [Hemphill] used means that had no substantial purpose other than to burden third persons in violation Professional Conduct Rule 4.4(a)."  The Court stated that Hemphill's purposes could have been accomplished by more appropriate means.  Finally, with regards to Rule 8.4(d), the Court felt that by failing to abide by the orders and procedures of the divorce court and the child protective services and by only using her own judgement instead that of the courts and child protective services, Hemphill engaged in conduct that was prejudicial to the administration of justice.  Hemphill took matters in her own hands while ignoring the laws and agencies that are designed to deal with allegations of child abuse. 

The Supreme Court suspended Hemphill from practicing for 6 months without automatic reinstatement. 

SUSPENDED ATTORNEY SUSPENDED AGAIN, THIS TIME FOR GHOSTWRITING

Minnesota attorney Vincent Grigsby found an interesting way to help a client during an appeal despite being suspended for 60 days - ghostwrite. 

After being suspended for 60 days for unrelated conduct, Grigsby was unable to find another attorney to write an appellate brief for a client.  So, Grigsby wrote the brief himself, didn't charge the client, and signed the client's name to the "pro se" brief.  He then filed it and forwarded a copy of it with an explanatory note to the client. 

Grigsby argued that he had done nothing wrong, and that the rules required him to do what was necessary to protect his ex-client's interests in this emergency situation.  The Minnesota Supreme Court disagreed with this, and stated he had violated the rules by drafting the brief while suspended, signing his ex-client's name and falsely stating that the the ex-client was "pro se."  The Court stated that Grigsby had other options available in this situation, such as seeking an extension of time from the appeals court or getting an advisory ethics opinion about what to do.  However, the Court only imposed an additional 60 day suspension on Grigsby, not the nine months recommended, due to the fact that Grigsby had not applied for reinstatement during this lengthy ethics investigation. 

The ghostwritten document was discovered by an assistance county attorney assigned to defend the conviction.  Grigsby actions appear to be have been worth it for his ex-client though, as the ex-client won a reversal of his conviction. 

POKER LEADS TO JUDICIAL DISCIPLINE

District Judge Paul Hensley, a New York Judge, was recently censured for playing poker at a social club in 2008. 

The New York Commission on Judicial Conduct decided to censure Judge Hensley for playing poker and apparently asking for preferential treatment at the Fraternal Order of Eagles clubhouse, Northport, NY, since it appears that he lended his approval to the illegal gaming. 

Since the judge was remorseful and had no prior disciplinary action, a censure was deemed appropriate. 

ROOMATE'S DRUG ACTIVITIES LEADS TO POSSIBLE DISBARMENT

Aaron Isaacson, an Illinois attorney, is facing possible disbarment for "[not] thinking anything of it [his roommate's drug activities] at the time."  His roommate, Ryan Yoselowitz, apparently dealt drugs from their shared home in Logan Square.  Isaacson apparently witnessed rug deals going down as well as using marijuana and cocaine himself.  Isaacson knew his roommate's income came only from dealing drugs. 

Isaacson worked as a Lake County prosecutor handling, occasionally, misdemeanor drug cases and traffic cases until 2009.  Yoselowitz was arrested in 2009, and Isaacson was given immunity for testifying against him.  Yoselowitz is now serving a 12 year sentence. 

Isaacson's lawyer, his uncle who is a lawyer at DLA Piper told the Illinois Attorney Registration and Disciplinary Committee about Isaacson's great character, is asking for a significant suspension instead of disbarment. 

THREATENING ETHICS COMPLAINT LEADS TO ETHICS VIOLATION

Julia Dimick, an Indianapolis lawyer, has been publicly reprimanded after she threatened to report an opposing lawyer to the ethic's board, an act which was deemed prejudicial to the administration of justice. 

According to the stipulated facts in the discipline order, Dimick was representing a woman against the woman's former attorney over the handling of settlement funds.  Dimick sent the opposing attorney a letter alleging the opposing attorney of a conflict of interest, lack of candor, and conversion of the settlement funds.  Dimick then stated that the opposing attorney had a "window of opportunity" to solve the matter, but it required a settlement offer.  Dimick stated that if she did not receive a settlement offer soon, she would file a grievance with disciplinary commission. 

While agreeing that her conduct violated Indiana Professional Conduct Rule 8.4(d) [prohibits engaging in conduct prejudicial to the administration of justice], Dimick had some mitigating factors. Specifically, Dimick had no disciplinary history and she was cooperative with the commission.  Therefore, the commission agreed that a public reprimand was the appropriate punishment.  

The order can be found here. 

DUNKIN' DONUTS DEPOSITION

Richard Celler, a Florida attorney from Morgan & Morgan, has been removed from a case by a U.S. District Judge after scheduling depositions at a Dunkin' Donuts, showing up in t-shirts and shorts, and drawing pictures of male genitalia to mock opposing counsel while also playing games, namely Angry Birds, during the depositions.  Celler had sued a limousine service and corporate officers in the case and disparaged opposing counsel in front of clients.  In removing both Celler and Morgan & Morgan, the District Judge stated: "It is evident that Celler's actions with respect to Defendants, and throughout this case have so damaged the adversarial process that any trial may well be tainted. [G]iven the small size of the Morgan & Morgan labor practice, the Court is not convinced that a Chinese wall ... would have any effectiveness." 

The order can be found here.

ANOTHER EXAMPLE OF HOW YOUR MOUTH CAN GET YOU IN TROUBLE!

A Texas attorney, Martin Sweeney, a former partner at Cozen O'Connor, has been accused of using inappropriate language in a motion for sanctions filed by the opposing attorney.  In a string of emails discussing the scheduling of depositions, the attorney, Martin Sweeney, made threatening and rude comments to Chad Arnette.

It all started with Sweeney emailing Arnette: "That's bulls**t Chad. I told you I would get dates in March.  I'll quash and Rule 11 you otherwise. Don't jack with me."  Arnette responded by saying: "Not sure where that came from, but if you are committed to getting us dates in March, that would be swell."  Sweeney then replied by saying: "It came from ME. F*** with me and you will have a huge a**hole. ... I meant Rule 13 by the way, and I will make sure it comes out of your tight little pockets."  Sweeney continued to berate Arnette even after Arnette told him he would be filing a motion for sanctions.  Sweeney called Arnette a "pansy," "ignorant slut" and "gutless attorney."  Sweeney then gave Arnette his home address because, as he stated, "I'd love to meet you in person to fully express myself." 

Cozen O'Connor released a statement stating that Sweeney is no longer with the firm and that the firm "expect[s] all of [their] attorneys and professional staff to maintain the highest standards of professionalism and civility at all times in their conduct on behalf of our firm clients." 

"SLUT" COMMENT LEADS TO SUSPENSION

An Arizona attorney, Meyer Ziman, has been suspended for violating a number of Arizona rules, one of which was quite interesting.  Ziman, who has been practicing since 1970, contacted a medical file copying service in June 2010 to complain that he had received the wrong medical file and request the correct one.  The woman, Ms. Rascon, he spoke with told him that he would need to resubmit his request, which angered Ziman and he began to berate her.  Ms. Rascon told him in the future to only contact Ms. Hudson, which only infuriated Ziman more because, as he stated, "everyone tells him to call back to speak to someone else."  After Ziman finished yelling a string of expletives at Ms. Rascon, he hung up.  Later in June, Ziman contacted Ms. Hudson to express his frustration that he had requested medical records for his clients but only received records for the client's son.  Ms. Hudson asked him to re-fax the request and she would look into it.  Ziman began yelling expletives at her to which she responded by stating, "excuse me but you are talking to a lady."Ziman responded that she was not a lady and "was nothing but a slut who worked for a copy service."  Ziman then repeated the word "slut" slowly to make sure Ms. Hudson heard him. 

In finding that Ziman violated Rule 42, Ariz.R.Sup.Ct., specifically Rule 31(a)(2)(E) and Rule 41(g), failing to refrain from engaging in unprofessional and offensive conduct by adhering to the provisions set forth in the Supreme Court Rules, the Panel noted that Ziman's testimony was implausible.  After first testifying that he had no recollection of the alleged phone call, he than testified with a vivid recollection of the call and stated he said "slug", not "slut", to refer to the process being slow, sluggish and cumbersome.  He also testified that he believed that it was not inappropriate to use either "slut" or "slug" in a business setting.  The Panel, however, disagreed and in conjunction with other violations of the Rules, Ziman was suspended for 1 year and given 2 years probation after his reinstatement. 

The opinion can be found here.