Some Bad Legal Advice Given On Facebook

The case of Winston Bradshaw Sitton, who was recently suspended by the Supreme Court of Tennessee, is another lawyer discipline case resulting from a social media post. Most discipline cases of this type are the result of a lawyer responding to a negative client review and either saying something unfavorable about the client or disclosing confidences. This one is in another category altogether.

In this case, Sitton read a Facebook post from an acquaintance in which she said she was afraid of her ex-boyfriend and that she was carrying a gun for protection. The Supreme Court of Tennessee set forth the facts as follows:

“For roughly a year, Mr. Sitton was a “Facebook friend” of Lauren Houston but evidently had not met her in person. Around December 2017, Ms. Houston was in the midst of a tumultuous break-up with Jason Henderson, the father of her child. Through his Facebook connection with Ms. Houston, Mr. Sitton became aware of allegations of abuse, harassment, violations of child custody arrangement, and requests for orders of protection.

Against that backdrop, Ms. Houston wrote the following post on her Facebook page: “I need to always carry my gun with me now, don’t I? Is it legal to carry in TN in your car withoutpaying the damn state?” The post was not directed to anyone specifically but rather was aimed at Ms. Houston’s Facebook audience.”

Sitton responded to the post as follows:

“I have a carry permit Lauren. The problem is that if you pull your gun, you must use it. I am afraid that, with your volatile relationship with your baby’s daddy, you will kill your ex _ your son’s father. Better to get a taser or a canister of tear gas. Effective but not deadly. If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.

If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.”

“Replying to Mr. Sitton’s post, Ms. Houston commented, “I wish he would try.”      In response, Mr. Sitton posted further on Ms. Houston’s Facebook page:

As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life _ revenge or premeditation of any sort will be used against you at trial.

Presciently, another Facebook user posted: “He’s likely already seen th[is] thread!”

Consistent with Mr. Sitton’s advice, Ms. Houston deleted her Facebook post. This had the effect of deleting all of the comments to her Facebook post, including her exchange with Mr. Sitton.

Sure enough, Mr. Henderson soon became aware of the Facebook exchange between Ms. Houston and Mr. Sitton. He brought screenshots of Ms. Houston’s public Facebook post and the comments, including those by Mr. Sitton, to the attention of Shelby County District Attorney General Amy Weirich. General Weirich in turn passed the screenshots along to Tennessee’s Board of Professional Responsibility (“Board”).

The Board investigated the matter and received Mr. Sitton’s explanation. In August 2018, it filed a petition for discipline against him. The petition alleged Mr. Sitton violated Rule of Professional Conduct2 8.4(a)–(d)3 by “counsel[ing] Ms. Houston about how to engage in criminal conduct in a manner that would minimize the likelihood of arrest or conviction.”

Mr. Sitton admitted most of the basic facts alleged by the Board in its petition. He contended, however, that his Facebook comments were taken out of context. Mr. Sitton argued his comments could not be considered as counseling Ms. Houston on how to get away with criminal conduct and denied he had violated the Rules of Professional Conduct.4 The hearing on the Board’s petition was scheduled for November 8, 2019.

In re Winston Bradshaw Sitton, BPR#18440, decided January 22, 2021. The Supreme Court held that Sitton had engaged in conduct prejudicial to the administration of justice (Rule 8.4(a) and (d).

The explanation:

As to the rule violations, the hearing panel concluded: “Giving advice as a lawyer about planning in advance how to claim a defense to killing someone is conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d).” It found that this violation “also constitutes a violation of Rule 8.4(a).”

We agree. We hold there is ample evidence to support the hearing panel’s conclusion that Mr. Sitton violated RPC 8.4(a) and (d) and that he is subject to discipline.

The court held that a suspension was appropriate because the advice was not acted upon. The court ordered a four-year suspension with one year on active suspension and three years on probation.

Comment: It is difficult to imagine a lawyer doing something like this, but, as they say, truth is stranger than fiction.

Should you have any questions concerning legal ethics issues, do not hesitate to contact us. We can often be of help in these matters.

https://www.clintonlaw.net/legal-ethics.html

The Noisy Withdrawal Motion

The National Law Journal has a story concerning a lawyer named Jerome Marcus, who filed a motion to withdraw in one of the Trump-related election lawsuits. Marcus alleged that the client “used the lawyer’s services to perpetrate a crime.” I am not a fan of the noisy withdrawal motion where the lawyer reveals some confidences to justify his decision to withdraw.

At the hearing on this motion, the judge could ask Mr. Marcus what the alleged crime was and what his role was in the alleged crime. That would then put Mr. Marcus in a bind. Does he reveal the confidence of a client? Does he withdraw the motion?

Instead I recommend that a lawyer simply state in the motion to withdraw that there is an irreconcilable conflict with the client. Some lawyers believe that the lawyer can offer to discuss the matter with the court in camera. I don’t recommend making such an offer. Instead, withdraw and do not disclose any confidences. Rule 1.6, which governs the lawyer’s obligation to keep client confidences, does not authorize the lawyer to reveal client confidences on an in camera basis.

Should you have an ethics question or issue, do not hesitate to call me. I have 29 years experience and have dealt with many difficult situations. It is often better to discuss an issue with another lawyer who is not as close to the situation as you are before you take some action that could prejudice a client.

Ed Clinton, Jr.

http://www.clintonlaw.net

Indiana Attorneys Should Be Very Cautious In Cases of Suspected Child Pornography

Indiana has a statute that prohibits child exploitation and the possession of child pornography. Burns Ind. Code Annotated § 35-42-4-4. As illustrated by the In the Matter of Blickman case, (Indiana Supreme Court December 9, 2020), the statute poses a serious danger to attorneys. Blickman represented a school where a teacher became involved with a student. The student’s parents discovered pornographic images and reported the conduct to the school. Blickman made copies of the images to preserve evidence. His reward for this appropriate action was that he was charged with possession of child pornography. The Hearing Officer did not uphold the charge and the Indiana Supreme Court affirmed that finding. The opinion discloses a rather serious problem for the Indiana attorney who practices in good faith. The problem is that the statute does not contain an exception for the preservation of evidence or even the transmission of evidence to law enforcement. The Indiana Supreme Court recognized this problem and decided the case correctly, but ducked the more serious issues it raises for the attorney-client relationship.

The discussion was as follows:

The Commission charged Respondent with a second Rule 8.4(b) violation based on Respondent’s handling of the materials provided to him by Father, which the Commission alleges amounts to criminal possession of child pornography. See I.C. § 35-42-4-4 (2015); 18 U.S.C.A. § 2252(a) (2015). The Commission seeks review of the hearing officer’s determination that no violation occurred. Although this Rule 8.4(b) allegation presents a much closer question, we nonetheless agree with the hearing officer and find no violation.

We begin with several straightforward observations. The materials at issue in this case included among other things a digitized image of Student’s vagina. This image was a screenshot taken from a video on Student’s laptop. (The computer specialist at Respondent’s firm tried, but was unable, to copy the video). Father, Miller, and Respondent all knew that Student was fifteen years old. No argument has been advanced that the image and video do not depict sexual conduct, or that in context they have “serious literary, artistic, political, or scientific value.” See I.C. § 35-42-4-4(c) (2015). Without question, this was child pornography.

Respondent argues his intent in possessing these materials was to preserve evidence in connection with Cox’s termination. The hearing officer found as much and the Commission does not challenge this finding. But neither the state nor federal criminal statute requires the possessor to have acted with any prurient or financial intent or other nefarious motive. And while there is a safe harbor for a “school employee” whose possession of child pornography was “performed solely within the scope of the person’s employment as a school employee,” I.C. § 35-42-4-4(e) (2015), Respondent was outside counsel and not a school employee.

Still, there are problems with application of the expansive view urged by the Commission, which seemingly would ascribe criminality under these circumstances not only to Respondent’s possession of these materials but also to Father’s possession of them. Moreover, much like the duty-to-report issue addressed above, application of these statutes to an attorney who comes into possession of the contraband during the course of representing a client has the potential in some circumstances to come into tension with other professional responsibilities.

Having carefully reviewed the record, the hearing officer’s report, and the parties’ briefs, we ultimately conclude, as we did with Respondent’s duty-to-report, that under the circumstances of this case any criminality involved with Respondent’s possession of these materials is not of a nature that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer. This was not a situation where the attorney sought to satisfy his prurient interests by viewing child pornography, see Matter of Raquet, 870 N.E.2d 1048 (Ind. 2007), or by sexually exploiting a client’s underage family member. See Matter of Wood, 489 N.E.2d 1189 (Ind. 1986). Nor are we persuaded by the Commission’s argument that the circumstances surrounding Respondent’s possession of these materials are analogous to Matter of Schalk, 985 N.E.2d 1092 (Ind. 2013), in which an attorney representing a client in a criminal matter enlisted two co-conspirators to purchase marijuana from a witness for the prosecution.

Our narrow conclusion that the requisite nexus between Respondent’s alleged criminality and his fitness has not been proven clearly and convincingly should not be read as an endorsement of Respondent’s conduct. The best course of action for all who took possession of these materials, including Respondent, would have been to promptly involve law enforcement. There was no legitimate reason not to do so here; this was a situation where one would have expected the school and the school’s attorney to have overlapping interests with law enforcement in protecting children from a known predator. As one long-time detective testified, “I’ve never had a school not wish to provide information about a staff member who is committing violent and child seduction, like protect the kid, it didn’t make sense to me[.]” (Tr. Vol. 1 at 270). The quandary in which Respondent found himself was an unnecessary one of his own making, borne of his and his client’s misguided goals to cover up what Cox had done. That any adverse reflection upon Respondent’s fitness in this regard derives from this incompetence, and not from any criminality, does not excuse his poor handling of these materials.

Comment: the Indiana Supreme Court recognizes the problem with the statute – it criminalizes innocent conduct by a parent who receives a prohibited image or a lawyer who receives the image from a client. Since Indiana has decided to interpret the statute in this manner, a lawyer is put in a very difficult situation. The lawyer must not reveal a confidence or harm a client. The lawyer must also not take possession of the prohibited images. The lawyer confronted with such a difficult situation should first consider who is the client and then make sure not to reveal any confidential information. The lawyer should decline to “preserve” or “possess” the images and should instruct the client to preserve the evidence. Given the murky condition of the law and the lack of any safe harbor for good faith actions, criminal lawyers and lawyers for school districts are placed in an almost impossible situation. A test case filed in federal court is warranted because the law makes it impossible for a lawyer to do her job and denies a citizen of Indiana his right to counsel.

Ed Clinton, Jr.

Indiana Reprimands Attorney For Attempting To Silence Student Victim of Sexual Misconduct

The Facts:

“For several months in the fall of 2015, a prominent high school instructor preyed upon a fifteen-year-old student. The discovery of this criminal conduct, and subsequent attempts to cover it up, triggered a sequence of events that culminated in the instructor’s arrest and conviction, the school headmaster’s suicide, and a deferred prosecution agreement reached between the school and federal authorities.

Today we are called upon to consider the role the school’s outside counsel, Respondent Michael Blickman, played in these events. More specifically, we must determine whether the Indiana Supreme Court Disciplinary Commission has clearly and convincingly proven its allegations of professional misconduct against Respondent.

We find that Respondent’s efforts to silence the victim and her family provided the school with incompetent representation and were prejudicial to the administration of justice. We find further that the Commission has failed to sustain its burden of proof on the remaining charges. For Respondent’s professional misconduct, we conclude he should be publicly reprimanded.

At relevant times, Respondent was outside counsel for Park Tudor School. Early in the afternoon of December 14, 2015, the father (“Father”) of a fifteen-year-old female student (“Student”), accompanied by counsel Rob Dassow, met with Respondent and Park Tudor Headmaster Matthew Miller and informed them that Father believed Kyle Cox, a teacher and coach at Park Tudor, had engaged in a series of inappropriate electronic sexual communications with Student. Father brought with him to the meeting Student’s laptop computer, which contained sexually graphic content exchanged between Student and an individual believed to be Cox, as well as printouts of text messages and a graphic screenshot image of Student. At Respondent’s request, Father gave the laptop and printouts to Respondent at the conclusion of the meeting.

Respondent continued to meet with Miller for several hours after Father and Dassow left, during which time they discussed how to handle Cox’s termination and manage public relations once they were able to confirm that Cox had been the individual communicating with Student. During this meeting Miller also asked Respondent if the matter had to be reported to the Department of Child Services (DCS). Respondent told Miller he was unsure of the answer and would have to research this. Respondent left the school around 7:30 p.m., keeping in his possession the materials Father had provided.

At approximately 7:00 a.m. the following morning, Respondent advised Miller by phone a report to DCS was required to be made and should be done right away.[1]Respondent offered to make the call himself, but Miller told Respondent that the school would make the report.

That same morning, Miller and associate headmaster Shants Hart met with Cox, who admitted he was the individual who had been communicating with Student. Miller immediately fired Cox. Later that day though, Park Tudor and Cox executed a written agreement drafted by Respondent whereby Park Tudor agreed to issue a public statement indicating Cox had resigned in exchange for Cox’s agreement not to discuss the matter with anyone.

Hart, with Miller present, called DCS at approximately 2:00 p.m. on December 15 to report the matter. However, Miller had not fully or accurately informed Hart of the circumstances surrounding Cox’s communications with Student. As a result, when DCS asked if any explicit images had been exchanged, Hart told DCS she did not know. Miller did not correct this misleading statement and others despite having heard both the questions and answers on speakerphone. DCS also was not advised during this conversation of the materials Father had provided to Miller and Respondent. Respondent did not participate in this call and testified he did not learn until much later that the school’s report to DCS was inaccurate and incomplete.

Later on December 15, Respondent discussed with Dassow a potential settlement between Park Tudor and Student’s family and began drafting an agreement. Respondent sent the draft agreement to Miller on December 16 for his review and to Dassow on December 17 for his review. Among other things, the proposed agreement included a confidentiality clause that prohibited Student and her family from disclosing matters involving her relationship with Cox “to any other person or entity” besides Dassow and Student’s therapist.[2] This proposed agreement was never executed.

On December 16, Respondent instructed a computer specialist at his law firm to make copies of the sexually graphic images and texts and to place those copies on a thumb drive rather than on the firm’s network. Respondent then placed the thumb drive in a sealed envelope in a cabinet in his office and returned the laptop to Park Tudor, which in turn returned it to Father.

During the next two weeks, DCS and law enforcement personnel reached out to Father and Student, learned of the materials Father had provided to Park Tudor, and scheduled an interview of Student for January 4. When Respondent learned of the scheduled interview with Student, Respondent emailed Dassow, writing that “[d]iscussions with [DCS] and/or IMPD would not be permitted under the agreement” and that “Park Tudor will reevaluate the appropriateness” of entering the agreement “if discussions with [DCS] or IMPD do occur.” Father then cancelled the DCS interview.

On January 5, police went to Park Tudor and attempted to interview Hart, who referred them to Respondent. At the same time police also attempted to interview Miller, but Miller was “literally hiding” somewhere at the school and could not be located. (Tr. Vol. 1 at 175). Respondent refused to provide police with further information.

On January 6, Respondent and Dassow called Marion County Prosecutor Terry Curry hoping to persuade Curry that an investigation would not be in Student’s best interests. Respondent did not disclose that he had copies of the evidence from Student’s computer, nor did he disclose that he had refused to discuss the matter with law enforcement the previous day. After this call, Curry instructed law enforcement to move forward with search warrants.

On January 7, police executed search warrants at Cox’s home, Park Tudor, and Student’s home. At the school, Miller was angry and belligerent toward officers, and Respondent was summoned to the scene. Miller denied that Park Tudor was in possession of the materials Father had provided and claimed not to know where the materials were. Respondent initially told police he did not know where the materials were but they were not at the school. At some point after Respondent conferred privately with Miller though, Respondent informed police he had copies of the materials at his office, but he asserted those materials were privileged. After again conferring privately with Miller, Respondent told police that Miller was willing to waive privilege and that Respondent would turn over the materials. Respondent attempted to avoid doing so until the following day, but the police refused to delay and escorted Respondent to his office to retrieve the copies.

The next day, after the warrants had been executed and Respondent had turned over the materials to police, Respondent sent another email to Dassow indicating that “no obligation of confidentiality shall restrict or limit the ability of the parties . . . to . . . truthfully respond to any inquiry by any authorized law enforcement officer.” (Ex. Vol. at 486).

In the following weeks, Miller committed suicide, Cox was indicted in federal court, and Park Tudor’s board of directors fired Respondent. Later in 2016, Cox was convicted and sentenced to 14 years in prison, and Park Tudor entered into a deferred prosecution agreement with the United States Attorney’s Office under which a prosecution of the school for misprision of a felony would be conditionally deferred. In 2017, Student and her parents entered into a settlement agreement with Park Tudor and Respondent’s law firm.”

The Indiana Supreme Court found violations of Rule 1.1 (Competency) and Rule 8.4(d) (engaging in conduct prejudicial to the administration of justice). The discussion follows:

The hearing officer concluded that Respondent’s efforts to prevent Student and her family from cooperating with law enforcement and DCS amounted to incompetent representation in violation of Rule 1.1. Respondent challenges this conclusion, while the Commission argues that Respondent’s actions violated both Rules 1.1 and 8.4(d). We agree with the Commission.

Respondent argues he did not perform incompetently in this regard because the confidentiality provision was included in the proposed settlement agreement at the mutual wish of both Park Tudor and the Student’s family, Respondent reasonably believed all required reporting already had been done, and neither the family nor Park Tudor had any further duty to disclose information or to cooperate. We observe initially that Respondent’s argument is belied by his own conduct. If the confidentiality provision truly had been mutually intended to encompass communications with DCS and law enforcement, there would have been no need for Respondent to send an email to Dassow on January 4 (the date Student’s family had agreed to meet with DCS) threatening to pull out of the proposed settlement if the family went forward with the meeting. More importantly, Respondent’s professed belief that Park Tudor had made a full disclosure of all relevant facts and circumstances to DCS on December 15, including the existence of illicit texts and pornographic content, undercuts rather than supports his claim of professional competence. If Respondent believed that full disclosure already had occurred, it is difficult to conceive what legitimate objective might be gained from preventing either Park Tudor personnel or the Student’s family from speaking with DCS or law enforcement during any follow-up on that initial report. As the hearing officer succinctly concluded, “[n]o adequate or logical explanation has been advanced by [Respondent]. No legitimate reason exists. It is pure and simple against public policy.” (HO’s Report at 19). Respondent’s pursuit of this aspect of the confidentiality agreement not only lacked legitimate purpose, it ultimately was a significant contributing factor to the reputational harm and criminal exposure suffered by his client. (See Ex. Vol. at 138 (deferred prosecution agreement citing the proposed confidentiality agreement as one of several grounds subjecting Park Tudor to prosecution for misprision of a felony)).

The same facts and conclusions cited by the hearing officer in this regard also point to a Rule 8.4(d) violation for conduct prejudicial to the administration of justice. Although the hearing officer did not directly explain his reasoning for declining to find a Rule 8.4(d) violation, we surmise three possible reasons from findings made elsewhere in his report: (1) the settlement agreement was never executed; (2) Respondent’s actions ultimately did not cause Student or her family to refuse to cooperate with DCS or law enforcement; and (3) Respondent later clarified in his January 8 email to Dassow that the confidentiality provision in the proposed settlement agreement did not prohibit communications with DCS or law enforcement. (HO’s Report at 22-24).

The fact the settlement agreement was never executed is inapposite to a Rule 8.4(d) analysis, because it is the impropriety of the demand that gives rise to the violation. See, e.g., Matter of Campanella, 56 N.E.3d 631 (Ind. 2016) (finding violation of Rule 8.4(d) where attorney threatened to file a disciplinary grievance against opposing counsel if a settlement demand was not met); Matter of Halpin,53 N.E.3d 405 (Ind. 2015) (finding violation of Rule 8.4(d) where attorney threatened to press criminal charges against the opposing party and disciplinary charges against opposing counsel if they did not accede to the attorney’s demands for a venue change). And here, the demand made by Respondent was plainly improper, not simply because it was contrary to public policy but because it actively sought to subvert justice. After all, had the efforts to silence those involved been successful, the result would have been to shield Cox from answering for his crimes and to turn loose a child predator to teach and coach at another unsuspecting school.

Father’s testimony in this matter draws a clear causal connection between Respondent’s January 4 email and the cancellation of the DCS interview. (Tr. Vol. 1 at 98-99). That Father did not cite Respondent’s demand for confidentiality when he called DCS to cancel the interview is hardly surprising, nor does it cure the violation that occurred when the improper demand was made. Respondent’s January 8 email to Dassow similarly was not curative under the circumstances. By the time Respondent sent this email, search warrants already had been executed at the school and Student’s home, and Respondent had been forced to disclose the existence of and turn over the materials in his possession. In context, this email was not a clarification or withdrawal of the improper demand but rather an acknowledgement that the wall of secrecy already had been involuntarily breached.

For the reasons set forth above, we conclude that Respondent’s attempts to prevent Student and her family from cooperating with DCS or law enforcement amounted to incompetent representation in violation of Rule 1.1 and conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

Comment: Confidentiality clauses are very common in settlement agreements. What is unusual here is that the clause did not permit any discussion with law enforcement and, apparently, did not permit the student and her family from responding to a lawful subpoena.

In the Matter of Blickman, Indiana Supreme Court, December 9, 2020.

Oklahoma Suspends Lawyer For Criminal Conviction

For years I have advised lawyers to ignore negative online reviews and comments on sites such as Avvo.com, Yelp or Google Business. Lawyers have been disciplined for angry responses to online reviews. This blog post involves a lawyer who went much further than an angry response and had to plead guilty to federal charges as a result.

An Oklahoma lawyer was suspended for two years and one day after he pleaded guilty to a federal crime. After his old firm dissolved, the lawyer was involved in contentious litigation with his brother and former partner. The lawyer hired a consultant to “manage his online” reputation and build a new website. What happened after that is the subject of a federal indictment and guilty plea:

“¶1 Respondent Bradley Alan Pistotnik was admitted to the practice of law in the State of Oklahoma in 1981 and in the State of Kansas in 1982. Respondent attended the University of Kansas School of Law, and he currently lives in Wichita, Kansas. He maintains clients in both states with the majority of his practice being in Kansas. Respondent’s federal criminal conviction in Kansas arose from his conduct in 2014, after he hired a web developer, David Dorsett, to build a website for his newly formed law firm. Respondent opened this new law office following a contentious dissolution of his old firm and partnership with his brother. The winding up of that business led to competing lawsuits between the brothers, including an action for receivership to retain control over clients, and a court order from a Kansas judge directing them to disable the old website, http://www.pistotniklaw.com, and create their own independent sites. Hr’g Tr., 120-21.

¶2 On September 15, 2014, after receiving an email advertisement from David Dorsett, Respondent reached out, and the two met at Respondent’s law office. During this initial meeting, Respondent hired Dorsett to: 1) build the new website, 2) serve as an information technology expert in the dissolution proceeding, and 3) provide assistance with online reputation management. Respondent was concerned that after the fallout at the firm, his brother may be publishing negative information about him online. At the conclusion of the meeting, Respondent wrote Dorsett a check for $5,000, and gave him full access to his office computers and passwords. Id. at 124.1

¶3 Four days later, on September 19, 2014, Respondent met with Dorsett a second time. Dorsett instructed Respondent to search for his name online to see what results appeared. Respondent did so the following day and located an article on RipoffReport.com describing him as a criminal. Respondent immediately emailed Dorsett the following: “Dave look at this new page from yesterday and tell me how we get rid of it[;] states created yesterday[.]” Complainant’s Ex., 2. Dorsett informed Respondent he had a friend who could “de-index” negative articles and build new positive pages to make the unwanted content appear further down in the search results. Hr’g Tr., 127. Respondent testified that he agreed only to this legal de-indexing service. Id. at 128-29. On September 22, 2014, Respondent also emailed Dorsett: “Dave, can you find the IP address for this site and particular claim number to establish the location of the sender?” Complainant’s Ex., 3. Respondent titled both of these emails: “Ripoff Report” and “Ripoff page,” respectively.

¶4 Six days later, on September 25, 2014, Dorsett sent extortionate threats and initiated a flood of emails to the servers of Ripoff Report2, Leagle3, and the Arizona law firm that represented Ripoff Report, in effort to frustrate the recipients and cause them to remove all information pertaining to Respondent. Resp’s Ex., 4, 2. These emails impaired the servers of Ripoff Report, Leagle, and the Arizona law firm, rendering their communications and data inaccessible. Along with the emails, Dorsett sent the following threat separately to all three victims, each reflecting the particular site’s name:

Remove this page and we stop [link of subject article removed] . . . [I]f you don’t remove it we will begin targeting your advertisers and explain that this will stop happening to them once they pull their ads from leagle.com or leagle.com kills this page . . . [link removed] You have 4 hours before we start hitting your advertisers.

Id.

¶5 Later this day, as the communications were still inundating the businesses, two attorneys from the firm representing Ripoff Report contacted Respondent at his law office. The attorneys advised Respondent they were recording the phone call. This recording is included in the record before this Court. Complainant’s Ex., 7. The lawyers told Respondent that based on the threats regarding negative content about him, Respondent was their only link for determining who was responsible. Respondent denied having any knowledge or involvement and falsely stated that he had never asked or hired anyone to help him with reputation management. The lawyers asked Respondent repeatedly if he knew any information that could help them in any way, emphasizing that their servers were on the brink of crashing unless they identified the attacker. The lawyers informed Respondent they were turning the matter over to the FBI. Respondent then began shifting the blame to his brother, stating how he was involved in contentious litigation with him so he would most likely be the culprit. Respondent said he would “call around” to see if he could find out anything but reemphasized falsely that he had “not hired anybody,” so whoever was responsible was “doing it on their own.”4

¶6 Immediately after hanging up, Respondent called Dorsett, who confirmed the attacks. According to Respondent, he “chewed him out” and “screamed at him,” asking “what the hell was wrong with him.” Hr’g Tr., 156. Ripoff Report ultimately acquiesced in the ransom and removed the negative review the same day. Dorsett also sent Respondent an email detailing his methods and confirming the successful removal. Four days later, on September 29, 2014, Dorsett emailed Respondent again, this time attaching an invoice listing the reputation services related to the attacks and noting: “I’m pretty sure nobody has ever gotten a full removal from either of those sites, and no reputation companies will even attempt it for under $2,500 per page.” Complainant’s Ex., 4. Respondent paid the invoice by check the same day.5

¶7 Even if Respondent was initially unknowing of Dorsett’s plan, after the attacks he chose to persist in the lie, not contact the lawyers, and then pay for the completed scheme. It was not until months later that Respondent learned Dorsett had actually caused the publication of the negative articles in a larger ploy to also extort Respondent in addition to the other three victims. At this point, Respondent went to the FBI and reported Dorsett. Doing so, he described the events as if he was completely innocent in the scheme. In fact, Respondent was initially listed as a victim in the FBI’s investigation initiated against Dorsett alone. Hr’g Tr., 188. The FBI agent who investigated the criminal case testified at the PRT hearing that it was not until later in the investigation against Dorsett that their office discovered Respondent had excluded two incriminating emails from evidence when reporting Dorsett for extorting him. Id. at 195. At this point, the FBI learned the full extent of Respondent’s business relationship with Dorsett. Id. In summary, Respondent accepted and helped conceal the fraud when he believed it was carried out to his benefit and then reported it only after learning the larger scheme was against him as well. Respondent’s dishonesty regarding the true nature of his and Dorsett’s involvement in the attacks led to his criminal conviction.

¶8 On July 17, 2018, after much investigation and several delays in the prosecutions of both men, the United States Attorney’s Office (“USAO”) for the District of Kansas filed a ten-count Indictment against Respondent in United States v. Pistotnik, Case No. 18-CR-10099-01.6 Following plea negotiations, Respondent agreed to plead guilty to three counts of Accessory After the Fact, in violation of 18 U.S.C. § 3.7 The USAO filed the three-count Information on October 15, 2019. The following day, the United States District Court for the District of Kansas accepted the plea, adjudicated Respondent guilty, and sentenced him to payment of a $375,000 fine, restitution of $55,200, and a special assessment of $300, all due immediately in a lump sum of $430,500. Respondent paid this amount in full on the day of his plea and sentencing.”

The Supreme Court of Oklahoma ordered a suspension of two years and one day for the wrongful conduct. The Supreme Court reasoned that the guilty plea removed any ability of the respondent lawyer to deny involvement in the online harassment of the websites.

State ex rel Oklahoma Bar Association v. Pistotnik, 2020 OK 93 (November 24, 2020).

North Carolina Disbars Attorney For Refusing To Produce Documents To Disciplinary Counsel

In North Carolina State Bar v. Phillips, No. COA19-1093, the Court of Appeals of North Carolina affirmed a decision of the trial court to disbar an attorney who failed to comply with court orders requiring him to produce documents concerning his out-of-state clients.

The facts:

Respondent was licensed to practice law in North Carolina, but he advertised himself as available to provide legal services in any state. In January 2017, the North Carolina State Bar (the “State Bar”) Grievance Committee issued Respondent a Letter of Warning for, among other things, engaging in conduct constituting the unauthorized practice of law in another jurisdiction in violation of Rule 5.5 of the Rules of Professional Conduct. Respondent accepted the Letter of Warning.

In May 2017, the State Bar received a new allegation that Respondent was continuing to offer to provide legal services in other jurisdictions. The State Bar sent Respondent a Letter of Notice requiring his response to the allegations. The Letter of Notice requested information about out-of-state clients Respondent represented from 2012 to present. Respondent submitted a response to the Letter of Notice; however, he did not include information about his out-of-state clients. The State Bar modified its request to limit any identifying information from the requested information about out-of-state clients. Respondent submitted another response but still did not provide the requested information.

The Chair of the Grievance Committee issued a subpoena for the requested information, and Respondent moved to quash the subpoena. The President of the State Bar granted Respondent’s motion in part and denied it in part. The Chair of the Grievance Committee then issued a new subpoena to produce the requested information from Respondent modified to be consistent with the President’s order. Respondent moved to quash the second subpoena. A successor President of the State Bar denied Respondent’s motion and ordered him to comply by 16 February 2019.

The State Bar filed a petition on 17 May 2018 in Superior Court, Wake County to enforce the subpoena. The State Bar served Respondent with discovery requests. Respondent objected to the discovery requests and moved for a protective order. Respondent argued that because he had filed grievances against various State Bar counselors and employees after the grievance file was opened, the State Bar had a conflict of interest requiring it to engage outside counsel to investigate him or ask the court to enforce the subpoena. Accordingly, Respondent filed a separate “Motion in the Cause” seeking to require the State Bar to engage outside counsel.

The State Bar moved to compel Respondent to respond to its discovery requests. At a hearing on 5 February 2019, Respondent reiterated his claim that the State Bar had a conflict of interest and was required to engage in outside counsel. The trial court dismissed Respondent’s argument and ordered him to comply with the discovery requests. Throughout this process, the trial court found Respondent in contempt four times for defying its orders compelling him to provide discovery responses. The trial court found that Respondent’s refusal to comply with its orders warranted discipline and disbarred him.

Respondent appeals the following orders: the 12 February 2019 order granting the State Bar’s motion to compel and denying Respondent’s motion for Rule 26(c) protective order, motion to waive Local Rule 5.4, and motion in the cause; the 30 April 2019 order allowing Respondent to amend his pleadings and denying Respondent’s motion to stay pending appeal, motion for judgment on the pleadings, and motion for declaratory judgment; the 30 April 2019 order granting the State Bar’s motion to hold Respondent in civil contempt and denying Respondent’s motion to continue; the 15 May 2019 order granting the State Bar’s motion to hold Respondent in civil contempt; the 31 May 2019 order granting the State Bar’s motion to hold Respondent in civil contempt; and the 31 July 2019 order granting the State Bar’s motion to hold Respondent in civil contempt and the order for disbarment.

The trial court may impose discipline in a matter pending before the court. In re Burton, 257 N.C. 534, 543-44, 126 S.E.2d 581, 588 (1962). Court-imposed discipline is not limited to violations of the Rules of Professional Conduct. Id. “A proceeding against an attorney for alleged dishonest or unethical conduct may result in disbarment.” Id. Respondent has failed to cite a specific finding of fact or conclusion of law that is alleged error. Moreover, Respondent also presented no evidence concerning the discipline that should have been imposed. Indeed, Respondent repeatedly failed to comply with the court’s orders and has failed to show that the disbarment was not the result of a reasoned decision. Accordingly, the trial court did not err.

North Carolina has different procedures than Illinois, but the principle is the same: you must comply with a lawful order to produce documents in a disciplinary case.

Ed Clinton, Jr.

What Should You Do If Your Device Is Hacked?

A few years ago there were bar association advisory opinions on whether lawyers could use email or cloud computing. Now almost everyone uses at least a smartphone with cloud computing capability. What should you do if your device is lost or stolen or you suspect that there may have been a data breach? California has released a new advisory opinion. No. 16-0002. The opinion covers a number of situations where the lawyer has reason to fear or believe that client data was accessed by a hacker. The option discusses several examples, from a lost phone (which is recovered quickly) to a missing laptop. The bottom line is that where there is a reasonable suspicion of an intrusion into a device, the lawyer must notify the clients involved.

In one of the examples an attorney visits a cafe and uses what he believes to be the free wifi. The attorney later learns that the “free wifi” network did not belong to the cafe but was the creation of some bad actor or hacker. The attorney realizes that client documents on his device were accessed. What is the lawyer to do?

According to the opinion, once he learns of the data breach the lawyer must notify the client that there was an intrusion into his laptop and that the company’s confidential information was accessed by some unknown person. The opinion insists that lawyers should not be held to a strict liability standard when it comes to data theft or loss. The example above is distinguished from the typical situation where a lawyer leaves his phone or iPad at a restaurant and retrieves it the next day. Since the device is password protected, there is no danger to clients that the missing device was accessed improperly.

The ABA Opinion No. 18-483

ABA Formal Opn. No. 18-483 (Lawyer’s Obligations After an Electronic Data Breach or Cyberattack) provides a useful list of competence-based duties that explain the requirement of “reasonable efforts” in addressing the potential for inadvertent disclosure of confidential client information due to a data breach:

• The obligation to monitor for a data breach: “lawyers must employ reasonable efforts to monitor the technology and office resources connected to the internet, external data sources, and external vendors providing services relating to data and the use of data.” Id. at p. 5.

• When a breach is detected or suspected, lawyers must “act reasonably and promptly to stop the breach and mitigate damage resulting from the breach.” Id. at p. 6. A preferable approach is to have a data breach plan in place “that will allow the firm to promptly respond in a coordinated manner to any type of security incident or cyber intrusion.” Id. at p. 6.

• Investigate and determine what happened: “Just as a lawyer would need to assess which paper files were stolen from the lawyer’s office, so too lawyers must make reasonable attempts to determine whether electronic files were accessed, and if so, which ones. A competent attorney must make reasonable efforts to determine what occurred during the data breach.” Id. at p. 7.

ABA Formal Opn. No. 18-483 describes a “data breach” as a “data event where material client confidential information is misappropriated, destroyed, or otherwise compromised, or where a lawyer’s ability to perform the legal services for which the lawyer is hired is significantly impaired by the episode.” ABA 18-483 at p. 4.4 Thus, not all events involving lost or stolen devices, or unauthorized access to technology, would necessarily be considered a data breach. Consistent with their obligation to investigate a potential data breach, however, lawyers and law firms should undertake reasonable efforts, likely through the use of individuals with expertise in such investigations, to ascertain, among other things, the identity of the clients affected, the amount and sensitivity of the client information involved, and the likelihood that the information has been or will be misused to the client’s disadvantage. This will assist in determining whether there is a duty to disclose. If the lawyer or law firm is unable to make such a determination, the client should be advised on that fact. Id. at p. 14.

Lawyers and clients may also differ as to what events would trigger the duty to disclose. The key principle, however, in considering whether the event rises to the level of a data breach, is whether the client’s interests have a “reasonable possibility of being negatively impacted.” ABA 18-483 at 11. Certainly disclosure is required in situations where a client will have to make decisions relevant to the breach, such as the need to take mitigating steps to prevent or minimize the harm, or to analyze how the client’s matter should be handled going forward in light of a breach. When in doubt, lawyers should assume that their clients would want to know, and should err on the side of disclosure.

Passwords and Security Measures

If a lawyer failed to protect a device with a password, I believe that there might be grounds for a professional complaint or lawsuit. The opinion does not go this far, but I believe that every device containing client confidences should be protected by a strong password.

If you have a question about an ethics issue, do not hesitate to contact me. The sooner you get impartial advice the better. Many problems can be solved by seeking the advice of a disinterested ethics lawyer.

https://www.clintonlaw.net/legal-ethics.html

West Virginia Suspends Lawyer For Falsely Claiming He Had Malpractice Insurance

West Virginia, like many other states, requires a lawyer to disclose whether or not he has legal malpractice insurance. This disclosure is important because insurance is usually the only way for a lawyer to defend or pay a negligence claim. The case Lawyer Disciplinary Board v. Curnutte, No. 19-0636 discusses this issue in some detail and affirms a recommendation for a three-month suspension.

This lawyer disciplinary proceeding originated with a “Statement of Charges” by the Lawyer Disciplinary Board (“LDB”) against Scott A. Curnutte (“Mr. Curnutte”) alleging that he violated the West Virginia Rules of Professional Conduct by providing false information about his professional liability insurance coverage to the West Virginia State Bar (“State Bar”). For three consecutive fiscal years, Mr. Curnutte submitted his annual Financial Responsibility Disclosure (“FRD”) falsely certifying that he was covered under a policy of professional liability insurance, when, in fact, he had no such coverage. He also lied about having such coverage to a lawyer he employed, causing that lawyer to similarly provide false information to the State Bar.

The Hearing Panel Subcommittee (“HPS”) of the LDB has concluded, and Mr. Curnutte and the Office of Lawyer Disciplinary Counsel (“ODC”) have stipulated, that Mr. Curnutte’s dishonesty violated the Rules of Professional Conduct. The HPS recommends that this Court suspend Mr. Curnutte’s license to practice law for one-hundred days. In addition, the HPS recommends that Mr. Curnutte be required to complete an additional six hours of Continuing Legal Education in ethics; to comply with the duties of suspended lawyers set out in Rule 3.28 of the West Virginia Rules of Lawyer Disciplinary Procedure (“RLDP”); to reimburse the costs of these proceedings; and to fully and accurately disclose to the LDB what efforts, if any, he has made to procure professional liability insurance. After a careful review of the record developed in this disciplinary proceeding, and upon a thorough consideration of the parties’ briefs, their oral arguments, and the relevant law, we conclude that Mr. Curnutte has twice violated a Rule of Professional Conduct as alleged. However, we determine that a ninety-day suspension with automatic reinstatement pursuant to RLDP 3.31, along with the other recommended sanctions modified to comport with automatic reinstatement, provides an adequate sanction for Mr. Curnutte’s misconduct.

Comment: Please get malpractice insurance. Failing to get it can really cause an injured party to lose their recovery. Claiming that you have it when you don’t will result in discipline.

Ed Clinton, Jr.

Kentucky Disbars Attorney Who Practiced While Suspended

Kentucky Bar Association v. Thomas Steven Poteat, 2020 – SC – 00227 – KB (September 24, 2020). A lawyer was suspended for failing to complete continuing legal education requirements. The opinion summarizes the facts as follows:

Poteat was suspended from the practice of law on January 23, 2014, for failure to comply with Continuing Legal Education (CLE) requirements. He has not since been restored to practice. The Notice of Suspension required Poteat to “notify all Courts in which he … has matters pending, and all clients for whom he … is actively involved in litigation and similar matters, of his … inability to continue representation and of the necessity and urgency of promptly retaining new counsel.”

Nevertheless, Poteat continued to represent John Ford in Ohio Circuit Court, 10-CI-00530, in a property dispute. Poteat failed to inform Mr. Ford he was suspended and was unable to continue representation.

As part of that representation, Poteat and opposing counsel discussed entering into an agreed order to determine the property ownership. Poteat represented to his client, Mr. Ford, the agreement would determine the property ownership in his favor, and Mr. Ford consented to the agreement. Poteat signed the agreed order on behalf of Mr. Ford in December 2014, and the circuit court entered it on January 26, 2015. The agreed order referenced a survey dated September 2, 2004, which was previously entered into the record, and provided, “[t]he Counterclaim of Defendant, John B. Ford, including all claims contained therein that assert any ownership rights with respect to any of the property owned by Plaintiffs, as described in the above-referenced survey, is dismissed with prejudice.”

Poteat sent a letter dated April 23, 2015, to the KBA requesting to be restored to active status.

Approximately two years after the Ohio Circuit Court entered the agreed order, Poteat’s client, Mr. Ford, learned that the survey referenced in the agreed order was not what Poteat represented to him, and the property ownership was decided to Mr. Ford’s detriment. Mr. Ford contacted Poteat, who explained he believed the agreed order referenced a different survey that was to Mr. Ford’s benefit and said he would take care of it. Poteat took no further action.

Mr. Ford then consulted another attorney, Cheryl Spalding, who first informed Mr. Ford of Poteat’s suspension. On February 15, 2017, Spalding filed a motion to set aside the agreed order. On May 2, 2017, as part of that proceeding, Poteat testified he was not aware he was suspended when he signed the agreed order.

The Ohio Circuit Court entered an order on September 29, 2017, denying the motion to set aside the agreed order, and Spalding filed a notice of appeal on October 27, 2017. On April 12, 2019, the Court of Appeals affirmed the Ohio Circuit Court’s order denying the motion to set aside the agreed order.

The Inquiry Commission filed a five-count Charge against Poteat on November 14, 2019. The Charge asserted violations of:

SCR 3.130(1.4)(a)(5): “A lawyer shall: … (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”

SCR 3.130(5.5)(a): “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”

SCR 3.130(8.4)(c): “It is professional misconduct for a lawyer to: … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

SCR 3.130(3.4)(c): “A lawyer shall not: … (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”

SCR 3.130(8.1)(b): [A] lawyer in connection … with a disciplinary matter, shall not: … knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.”

Poteat was personally served with the Charge on December 10, 2019. He did not file an answer or respond otherwise. After due deliberation, the Board of Governors voted to find Poteat guilty of violating the five Supreme Court Rules as charged, the vote being 18-0 for each count.

After making the preceding findings and considering Poteat’s disciplinary record, seven known applicable aggravating factors, and no known applicable mitigating factors, fourteen (14) Board members voted in favor of permanent disbarment and payment of costs in this action and four (4) Board members voted in favor of a five-year suspension and payment of costs in this action.

The Kentucky Supreme Court accepted the recommendation.

The Truman Show Comes To Attorney Discipline – With Disastrous Results

The Truman Show was a successful movie starring Jim Carrey in which he played the role of Truman Burbank who lives an ordinary life. What Truman does not know is that the entire world around him is composed of actors. Truman is the star of a television show in which he is the only “real” person. There are many lessons to be learned from this sad case.

Yesterday the Illinois Supreme Court entered an order disbarring Vincent Porter, an attorney who the Court believes engaged misconduct serious enough for disbarment. Porter is an attorney and also acts as a sports agent. He did not realize it, but he came to star in his own version of The Truman Show, which ultimately led to his disbarment.

Vincent Porter came to star in his own version of The Truman Show. The transaction he was involved with was a sting operation set up by the FBI. The main witness against him was Marc Pennebaker, an FBI agent who set up the entire scam and recorded hours of conversations with Porter and others discussing a litany of fraudulent actions he was planning to perform, but never did. There were no investors. There was no deal. There were no victims. There was no financing. All that resulted from the FBI operation was the disbarment of Vincent Porter, whose greatest sin was, in my opinion, that he was duped by the FBI and failed to take measures to protect himself. His disbarment is a direct result of his failure to document precisely who he was representing and what his duties were as a lawyer. He was also fooled by a confidential informant who knew what to say, how to say it, when to say it and to record it.

This is how the Hearing Board described the charges:

The Administrator brought a two-count complaint against Respondent charging him with misconduct arising out of his participation in a purported deal to purchase Burger King franchises and related property. The deal, in reality, was part of an FBI sting, which culminated in Respondent’s arrest and eventual entry into a deferred prosecution agreement. Because of his role in the purported deal, Respondent was charged with assisting a client in conduct the lawyer knows is fraudulent, in violation of Rule 1.2(d); making statements of material fact or law to a third person which the lawyer knows are false, in violation of Rule 4.1(a); failing to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, in violation of Rule 4.1(b); committing a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer, in violation of Rule 8.4(b); and engaging in dishonesty, in violation of Rule 8.4(c). Hearing Board Opinion January 18, 2019 at 2.

According to the ARDC and the Hearing Board, “Respondent was a participant in, and counsel to, a group of individuals that planned to defraud investors in a real estate transaction.” Further, Porter was accused of making false statements and withholding information about the transaction.

Porter became involved with Joseph Vaccaro who was being investigated by the FBI. Billy Crafton, a confidential information, contacted Vaccaro Vaccaro then introduced Porter to Crafton, who held meeting and made recordings. Crafton, Vaccaro and Porter discussed a scheme under which they would create an entity to purchase 13 Burger King Restaurants and sell those restaurants to a group of professional athletes at an inflated price. Porter met with Crafton and Vaccaro and later met with Pennebaker.

Comment

There is an old saying that if you meet with a group of investors and you have not clarified who you represent, it will later turn out that you represented all of them. It apparently never occurred to Porter to prepare an engagement letter which would have identified his client or clients. Had he taken this small step, it is possible that this entire fiasco could have been avoided. Because he did not protect himself or think about the attorney-client relationship, the ARDC alleged and the Hearing Board found that Porter represented a group of investors including himself, a confidential informant (Crafton) and another target of the investigation (Vaccaro).

Back to the Facts:

Respondent testified he also discussed the Burger King deal with Crafton at a restaurant in Chicago. An audio recording of a meeting between Respondent and Crafton on July 22, 2014 reflects the following statements:

Respondent indicated he was conducting due diligence and would be handling the legal side and structuring the LLCs;

Respondent and Crafton agreed that the real purchase price for the restaurants was $16 million, but Crafton would tell investors that the entire $20 million was going toward the deal;

Respondent confirmed that Crafton should not disclose to potential investors that Respondent, Crafton and Vaccaro would be taking $4 million off the top; Crafton should state that the other 50% stake in the Burger Kings would be owned by a group of New York investors whose identity he did not know; Crafton should not reveal that, in actuality, Vaccaro and Respondent would own the remaining 50% of the Burger Kings; and Crafton should deny any ownership interest or receipt of kickbacks;

Respondent indicated he would create multiple LLCs to make it appear that another group of investors would own 50% of the Burger Kings; When Crafton asked for confirmation that he should not disclose the actual structure of the deal, Respondent replied “Yeah, we’d all be committing suicide . . . you know, career suicide;”

Respondent and Crafton referred to a “home run deal” that the investors would not know about, and a “single” deal. The two deals were also characterized as an “A” deal and a “B” deal; and Respondent indicated he has the experience to do more deals in the future.

Hearing Board Opinion at pages 6-7.

Porter then prepared an Operating Agreement an LLC which was to be owned by the investors brought to the deal by Crofton. Hearing Board at 8. (Here again, the engagement letter would have greatly assisted Porter. Had he created an engagement letter he would have had to figure out who his client was. He might have chosen to represent Crofton or he might have chosen to represent the “investors.” Either choice would have been better than no choice at all because he could have then sorted out what his professional duties were.).

The October 1, 2014 Meeting

Porter agreed to meet with Pennebaker (posing as a financial advisor), Vaccaro and Crafton at Crafton’s office in San Diego. Another FBI agent played the role of “potential investor.” The meeting was, of course, recorded and Porter was arrested after the meeting was over. The Hearing Board explained:

On October 1, 2014 Pennebaker, again posing as a financial advisor, met with Respondent, Vaccaro and Crafton at Crafton’s office in San Diego. Pennebaker brought along another undercover FBI agent who posed as a potential investor. Both video and audio recordings were made of the meeting. (Tr. 78-79, 116, 125-26, 139, 150).

Pennebaker testified the purpose of the meeting was to gather more information and evidence relating to the Burger King investment. During the meeting Respondent stated the final details of the transaction had not been negotiated, but funds would be received from a New York investment group which would have a 50% ownership stake. When Pennebaker asked about the $37 million purchase price, Respondent again indicated the price had started higher and had been negotiated down. Respondent indicated he would be handling the legal end of arranging the deal, although the closing would be handled by Virginia attorneys, and he explained he was not taking any stake in the deal because as a lawyer doing the legal work, he did not want to create a conflict of interest for himself. (Tr. 84, 139, 141, 150; Adm. Ex. 11, Oct. 1, 2014, Track 5, 6, 7).

Respondent testified the information he presented at the meeting was given to him by Vaccaro and Crafton. He acknowledged that the pitch they made was based on a valuation of $40 million for the Burger King restaurants, with Crafton’s group of ten investors contributing a total of $20 million for 50% ownership of the Burger Kings and Vicar’s group owning the other 50%. Respondent recalled the purchase price was represented to be non-final at all times, and he advised Pennebaker that all the details would be disclosed once the deal was made. (Tr. 79-82, 207-08).

Respondent testified that no documents were signed at the October meeting and no papers changed hands. He denied knowingly making any misrepresentations to anyone or misrepresenting anything to the point of putting it on paper. (Tr. 81, 209, 214).

The Hearing Board

Porter attempted to defend himself on the ground that he did not represent any of the parties involved. The ARDC alleged that Porter represented a group of investors including himself and Vaccaro. The Hearing Board disagreed and concluded in Delphic fashion “We find that an attorney-client relationship was established.” Hearing Board at 12. (Note the problem – since Porter did not prepare and make everyone sign an engagement letter he lost the opportunity to decide who he would represent.)

The Findings:

We find that an attorney-client relationship was established. Although we did not hear testimony from Vaccaro or Crafton, we reviewed numerous statements made by Respondent during meetings and telephone conversations, which statements demonstrate he was acting as the attorney for the business group proposing the investment. In July 2014, he indicated to Crafton that his role was to handle the legal side of the transaction, conduct due diligence, and structure LLCs. He also drafted a preliminary version of an LLC operating agreement and provided that document to Crafton. When speaking to Pennebaker in September, Respondent stated his role was to handle the legal work for the deal; he was involved in due diligence and negotiations with Burger King; and funds from the investors would be deposited into his attorney IOLTA account. At the October in-person meeting, Respondent again stated that his role was to handle the legal end of the transaction.

While Respondent consistently disavowed that he would handle the actual closing, as that work had to be done by Virginia attorneys, the closing was only a portion of the legal work necessary for completion of the deal. By Respondent’s own representations, he held himself out as being responsible for the legal side of the transaction and took actions in accordance with his role as attorney. We find, therefore, that the predicate relationship for Rules 1.2 and 4.1 has been established.

Rule 1.2(d) – assisting client in conduct the lawyer knows to be fraudulent

The Administrator charged Respondent with violating Rule 1.2(d) by conduct including:

participating in discussions with Vaccaro and the informant about offering an investment deal to their professional athlete clients which concealed the true terms of the purchase of the Burger King franchises (including the ownership and purchase price of the franchises) from their clients;

agreeing to do the legal work to effectuate the scheme;

telling the informant to misrepresent the purchase price and ownership of the franchises to investors;

telling Pennebaker that the purchase price of the franchises was $37 million, and Respondent did not have an interest in the deal; and telling Pennebaker and the other FBI agent that another investor group would own the remaining 50% of the franchises.

We find Respondent engaged in each of the foregoing acts and by doing so, assisted clients Vaccaro and Crafton in furthering a fraudulent scheme. Fraud encompasses a broad range of human behavior, including “anything calculated to deceive . . . whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture.” In re Armentrout, 99 Ill. 2d 242, 251, 457 N.E.2d 1262 (1983).

Pennebaker’s testimony, as well as the recordings that were presented to us, showed that the three individuals plotted, as a group, to present a financial transaction in a way that would conceal the benefit they would personally realize from the transaction. That benefit was twofold. First, they intended to collect $20 million for the purchase of a group of properties that cost only $16 million, and then divide the remaining $4 million between themselves. Second, they planned to take a 50% ownership stake in the properties without making any financial investment whatsoever. Their financial benefit and interest in the transaction would not be disclosed to the investors. As we saw from Respondent’s September 19th telephone call with Pennebaker, Respondent represented that the purchase price was $37 million, which was more than twice the price he had discussed with Vaccaro and Crafton. Further, he falsely stated that a New York group was investing funds for the other one-half ownership, and he would have no ownership interest in the properties. In reality, the second group would be Respondent, Vaccaro and Porter, but their identities would be concealed by layers of LLCs. Respondent’s representations to Pennebaker were contrary to the facts set forth in Respondent’s discussions with Vaccaro and Crafton.

We recognize the investors were not misinformed as to their rate of return, and because the deal was never consummated, no one suffered a financial loss. The absence of an actual loss, however, does not erase the misconduct that occurred. By participating in crafting a deal with secret terms, presenting the deal to a potential investor without disclosing those terms, advising Crafton to misrepresent information, and making affirmative false statements regarding the investment, Respondent assisted in perpetrating a fraud.

We reject Respondent’s claim that he did not knowingly commit any misconduct. Pennebaker’s testimony, as well as the recordings, show that Respondent knew the actual terms of the proposed transaction and yet misrepresented those terms and advised Crafton to do the same. Further, Respondent’s claim that he was merely repeating information given to him by Vaccaro carries little weight in light of his role as the attorney structuring the deal. If the valuations for the properties were constantly changing, as he maintained, he had an obligation to ferret out the truth before passing information to potential investors. Further, we view Respondent’s lack of recall of key conversations, his vague testimony, and his portrayal of himself as a victim as nothing more than attempts to disguise his own involvement in the scheme. All in all, we did not find him to be a credible witness. By contrast, we regarded Mark Pennebaker as a reliable and objective witness who testified with precision and clarity.

Respondent had many opportunities to disagree with proposals made by Vaccaro and Crafton, to advise them to take a different course, or at least withdraw from representation and from the deal, but he did not do so. Instead, he became an active participant and took actions in furtherance of the scheme. Therefore we find that he engaged in misconduct in violation of Rule 1.2(d). Hearing Board Pages 13-15.

The Hearing Board also found that Porter violated Rule 4.1(a) knowingly making false statements of fact material fact to a third person and 8.4(c) dishonesty, fraud, deceit or misrepresentation and 8.4(b) a criminal act.

Rule 4.1(a) Violation

The Administrator charged Respondent with violating Rule 4.1(a) by:

falsely telling Pennebaker on September 19, 2014 that the purchase price of the franchises was $37 million; Respondent had no interest in the deal; and another investors group would own the remaining 50% of the franchises (in return for a $17 investment); and

by falsely telling Pennebaker and another undercover agent on October 1, 2014 that other investors would be investing money and those investors would receive the other 50% ownership interest in the franchises.

We have addressed the foregoing misrepresentations in the prior section and determined that Respondent made those statements and he knew they were false. We further find that the $37 million purchase price and the identity of other owners in an investment, including whether or not Respondent had an ownership interest in the deal, would be material to the investors’ decision in proceeding with the transaction. Therefore, we find a violation of Rule 4.1(a).

Rule 4.1(b) – knowingly failing to disclose material facts when disclosure is necessary to avoid assisting a criminal or fraudulent act by client

While the previous charge involved the providing of false information, Rule 4.1(b) involves the failure to disclose material information. The Administrator charged Respondent with violating Rule 4.1(b) by not disclosing to the undercover agent and Pennebaker that:

the true purchase price of the franchises was $16 million; and

Respondent, Vaccaro and Crafton would have an interest in ownership and would receive $4 million dollars out of the investors’ money.

We find this charge was proved. Respondent did not disclose the true nature of the Burger King transaction during his September 19, 2014 telephone call with Pennebaker, or during the October 1, 2014 meeting with Pennebaker and the second undercover FBI agent. As stated previously, the true purchase price and ownership interest was material information that should have been provided to prospective investors, as was the fact that $4 million of the purchase money would be going directly to Respondent, Vaccaro and Crafton. Respondent’s failure to disclose assisted his clients’ criminal or fraudulent conduct in violation of Rule 4.1(b).

Rule 8.4(c) Violation

The Hearing Board found:

Rule 8.4(c) – dishonesty, fraud, deceit or misrepresentation

In In re Edmonds, 2014 IL 117696, par. 62 the Court stated “there is essentially no way to define every act or form of conduct that would be considered a violation” of Rule 8.4(c) as “[e]ach case is unique and the circumstances surrounding the respondent’s conduct must be taken into consideration.” Rule 8.4(c) “is broadly construed to include anything calculated to deceive, including the suppression of truth and the suggestion of falsity.” Id. at 53. Motive and intent are rarely proved by direct evidence and must be inferred from conduct and circumstances. See In re Stern, 124 Ill. 2d 310, 529 N.E.2d 562, 565 (1988)

The Administrator charged Respondent with violating Rule 8.4(c) by engaging in the exact same conduct that was set forth in the Rule 1.2(d) charge. We found with respect to that charge that Respondent assisted in conduct that was fraudulent by making statements that were false, performing legal work to further the scheme, directing Crafton to misrepresent facts, and failing to disclose information that was material to the transaction. Further, his actions were taken with knowledge of the fraudulent nature of the transaction.

Our prior discussions amply support a finding that Respondent violated Rule 8.4(c). His motive and intent to deceive investors was further demonstrated by his agreement that Crafton should not disclose the actual deal to investors; and by his indication that disclosure would be “career suicide.” In addition, the video of the October 1, 2014 meeting demonstrated to us that Respondent had no trouble providing misleading and inaccurate information to the undercover agents. Indeed, we found his cavalier attitude in misrepresenting facts to be deeply disturbing. For the reasons stated, we find Respondent engaged in dishonesty, fraud deceit and misrepresentation.

The Panel also found a violation of Rule 8.4(c) criminal conduct. The Review Board essentially affirmed all the factual findings of the Hearing Board but recommended a suspension of three years. The criminal case against Porter was resolved by a deferred prosecution agreement. The Illinois Supreme Court disbarred Porter on September 21, 2020.

Comment:

This case is a teaching tool for every lawyer who is in the transactional practice. Porter was unlucky because his mistakes were on tape and on video. He was promised, but never received, a hidden interest in the deal. (That should have been disclaimed in the engagement letter. Porter could have been charged with entering into a contract with a client without advising the client to get his own lawyer, but the ARDC did not bother with that.)

The case worries me. In my career clients have, at times, said all sorts of things to me about what they intended to do. I have tried my best to correct them and stop them from engaging in illegal conduct. Porter did not speak up when the FBI agent and the confidential informant read their lines with Shakespearian skill. He sat mute or agreed or went along with the scheme. He was a dupe or chump. The joke was on him. If you wish to keep your license, you cannot be duped in this fashion. You must speak up when the client proposes something unlawful or inappropriate or just plain deceptive.

Porter did not write an engagement letter or even bother to write emails to the participants so that he could summarize the meetings they held. He had nothing to defend himself with. Because he never did the hard work of figuring out who he represented he never understood his duties to that “client.” Had he done so there is a chance that this fiasco could have been avoided. He should have asked other questions such as “Who represents the investors?” “Has anyone recommended that they engage counsel?” I would have been uneasy at the prospect of doing a deal of that size with no counsel on the other side to protect the imaginary athletes who were investing. That Porter never asked these questions saddens me. He never showed any sign, in my opinion, of trying to protect anyone, client or non-client.

He could also have asked the promoters to get a valuation of the deal by a reputable real estate appraiser. He could have requested audited financials of the “franchises.” Better yet, he should have requested tax returns. That too would have protected him and the investors. The promotors would have made excuses, but Porter could have used that to get out of the deal. (They could never have gotten an appraisal because the Burger King franchises did not exist and no one would sign an appraisal valuing nonexistent franchises. There were no tax returns either because the franchises did not exist.) Corporate lawyers ask questions, lots of questions. It does not appear that Porter asked any questions.

Long ago an experienced lawyer told me “if it looks to good to be true, it probably is.” This is a disbarment that did not need to happen. An engagement letter and a few minutes of careful thought could have avoided all of this.

The most troubling aspect of this case is that Porter never made a dime on the deal and no one lost any money. The deal papers were nowhere near completion and Porter, it appears, was waiting for further information from the “clients.” That is probably why the federal government entered into a deferred prosecution agreement with him. Why is this troubling? There is a chance that Porter is just as much a victim as the supposed investors were. Many lawyers in Illinois have done far worse conduct and not received a disbarment. But for the FBI, this “deal” would never have happened.

In the end of The Truman Show, Truman figures out that he is in a show that his life is onstage that his wife and friends are not real and he leaves the set. “In case I don’t see you, Good Morning, Good Afternoon and Goodnight.” To be a corporate lawyer in our world, you have to be at least as smart as Truman Burbank and know when to walk away.

If you are in the practice of law and you are concerned about something, call an ethics lawyer now. Don’t wait until the “deal” goes bad. Speak up. Ask questions. Ask the questions you would want to know the answers to if you were investing in the venture. Ask for the name of the lawyer or the accountant. If those people don’t exist, you can assume it is a scam of some sort. Warn your clients and protect your license.

Ed Clinton, Jr.

http://www.clintonlaw.net