Month: August 2015

Colorado Suspends Lawyer for 18 Months For Publicly Shaming Former Clients On the Internet

I can’t say this enough: don’t criticize former clients on the internet or social media. It won’t help you collect your fee bill and it will guarantee discipline from the regulatory body in your state. This social media fiasco was described in a recent case from Colorado.

This case is captioned People v. James C. Underhill, Jr., 15 PDJ 040 (Colorado).

As one might imagine this disaster began with a family law matter in which the lawyer was hired to represent the husband in a post-decree dispute. A fee dispute arose and the clients terminated Underhill.

The opinion states: “The couple [client and his new wife] then posted complaints about Underhill on two websites. He responded with internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions, in contravention of Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client) and Colo RPC 1.9(c)(2) (a lawyer shall not reveal information relating to the representation of a former client).

“Underhill then sued the couple for defamation. Although he knew the couple had retained counsel, Underhill communicated with them ex parte on several occasions, even though their counsel repeatedly implored him not to do so. Through this conduct, Underhill violated Colo. RPC 4.2 (a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by counsel in the matter, unless the lawyer has the consent of the opposing counsel). When the lawsuit was dismissed, Underhill brought a second defamation action in a different court, alleging without adequate factual basis that the couple had made other defamatory internet postings. Underhill thereby violated Colo. RPC 3.1 (a lawyer shall not bring a proceeding unless there is a basis in fact for doing so that is not frivolous) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct that prejudices the administration of justice).”

The court ordered an 18-month suspension to be added to a prior suspension.

Edward X. Clinton, Jr.

Louisiana Disbars Attorney For Social Media Campaign Against Judiciary

IN RE McCOOL, La: Supreme Court 2015 – Google Scholar:

The respondent in this matter was disbarred because she made false and defamatory statements about judges.

“ By way of background, respondent was friends with Raven Skye Boyd Maurer (“Raven”). Following Raven’s divorce in 2006, she and her former husband were involved in a bitter child custody dispute. Raven accused her ex-husband of sexually abusing their two young daughters, H. and Z.,[2] and unsuccessfully sought to terminate his parental rights in proceedings pending in Mississippi before Judge Deborah Gambrell.[3] Respondent is not admitted to the Mississippi Bar and was not admitted pro hac vice in Raven’s Mississippi case, but she did offer assistance to Raven as a friend.

Meanwhile, respondent filed a petition in St. Tammany Parish on behalf of Raven’s new husband, who sought to adopt H. and Z. The presiding judge, Judge Dawn Amacker, stayed the intrafamily adoption proceedings pending resolution of the Mississippi matter. Judge Amacker also declined to exercise subject matter jurisdiction in response to a motion for emergency custody filed by respondent on Raven’s behalf. After Judge Amacker issued her ruling declining to exercise subject matter jurisdiction, respondent filed a writ application with the First Circuit Court of Appeal, which was denied.[4] On August 31, 2011, this Court likewise denied writs. Maurer v. Boyd, 11-1787 (La. 8/31/11), 68 So. 3d 517.
Unhappy with the various rulings made by Judge Gambrell and Judge Amacker and believing those rulings were legally wrong, respondent drafted an online petition entitled “Justice for [H] and [Z]” which she and Raven posted on the internet at change.org, along with a photo of the two girls. With regard to the Mississippi proceeding before Judge Gambrell, the online petition stated:

To Judge Deborah Gambrell, we, the undersigned, ask that you renounce jurisdiction in this matter to the Louisiana court because the children have lived exclusively in Louisiana for the past three years. Their schools, teachers, physicians, therapists, little sister and brother and the vast majority of significant contacts are now in Louisiana. There is also an adoption proceeding pending in Louisiana over which Louisiana has jurisdiction and in the interest of judicial economy, and the best interest of the girls, Louisiana is the more appropriate forum to oversee ensure [sic] the “best interest” of the girls are protected. If you refuse to relinquish jurisdiction to Louisiana, we insist that you remove the Guardian Ad Litem currently assigned to the case, and replace him with one that has the proper training and experience in investigating allegations of child sexual abuse in custody proceedings. We further insist that, in keeping [with] S.G. v. D.C. 13 So. 3d 269 (Miss. 2009), you specifically define the Guardian Ad Litem’s role in the suit; require the new Guardian Ad Litem [to] prepare a written report; require that the report be shared with all parties prior to a hearing; that all proceeding be conducted on the record, with advance notice and opportunity to be heard, and that an evidentiary hearing be conducted to review the allegations of child sexual abuse, and that no visitation be allowed until you have seen all of the evidence.

As to Judge Amacker and the Louisiana proceedings, the petition stated:

To Judge Amacker, we, the undersigned, insist that you withdraw the unlawful stay of the adoption proceedings currently pending in your court, and, in accordance with La.Ch.C. art. 1253, a hearing be set with all due speed to allow the girls’ stepfather to show why it is in the girls’ best interest that they be adopted by him, thereby terminating all parental rights of the girls’ biological father.

Respondent re-posted the online petition on her blog site and in online articles she authored, one of which again included a photo of the two girls. She provided contact information for the judges’ offices and this Court, and added comments in which she solicited and encouraged others to express their feelings to the judges and this Court about the pending cases:

In spite of overwhelming evidence that the girls have been abused by their father, the judge in Mississippi, Judge Deborah Gambrell, of the Chancery Court of Marion County, Mississippi, refuses to even look at the evidence, and has now ordered the girls be sent to unsupervised visitation with their father.

Judge Dawn Amacker, in the 22nd JDC, Division L, for the Parish of St. Tammany in Louisiana also refused to protect the girls, even though she has the power and authority to protect them. RM now has an application to the LA supreme court, asking that it order Judge Amacker to protect the children.

Insist that Judge Amacker and Judge Gambrell do their jobs! If you want more info, go to [website] and read the writ application to the LA supreme court.

Please sign the petition, circulate it to all of your friends and families and call Judge Amacker and Judge Gambrell during the hours of 8:30 to 5:00 starting Monday, August 15 to ask why they won’t follow the law and protect these children. Let them know you’re watching and expect them to do their job and most of all, make sure these precious little girls are safe!

Call the Louisiana Supreme Court and tell them you want the law to protect these girls [phone number]. [A]sk about the writ pending that was filed by attorney Nanine McCool on Friday, August 12, 2011.

Let’s turn this around and be [H’s] hero. Please sign the Care2 petition and continue to call Judge Gambrell to ask her why she is unwilling to afford [H] and [Z] simple justice.

You can sign the petition and lend your voice to this cause here. Or, you can contact directly. Contact information is: [provided contact information for the judges].

In response to the postings made by respondent, on August 14, 2011—two days prior to a hearing in Mississippi on Raven’s motion for contempt and to terminate her former husband’s parental rights—Judge Gambrell’s staff received an e-mail from Heather Lyons, a signer of the online petition. Ms. Lyons stated she lived and voted in Forrest County, Mississippi, and she would “be paying attention” to Raven’s case “due to the fact that Judge Gambrell refused to hear evidence of abuse in the case of little girls who are likely being molested by their father. She has an obligation to protect our most vulnerable children. Please do not let them down judge!””

The Louisiana Supreme Court held that McCool had violated Rule 3.5(a) and (b) and Rule 8.4(a) by conducting an online campaign and by faxing copies of certain online petitions to the courts. The Court further held that McCool violated Rule 8.4(c) by making false statements about the court proceedings in the adoption matter by claiming that the judges had “refused” to hear certain evidence. Lastly, the Court held that McCool had engaged in conduct prejudicial to the administration of justice (Rule 8.4(d)). The court held that McCool was disbarred.

This case is similar to other cases involving similar conduct, such as the JoAnne Denison case in Illinois. Attacking the integrity of judges and the fairness of judicial proceedings in social media will often merit the most severe sanctions. Lawyers who engage in such conduct are risking their professional lives.

It is always good to remember that you can criticize the reasoning of a judicial opinion, but you cannot make false statements impugning the integrity of the judiciary. The courts regard defamatory statements as an attack on the integrity of the entire legal system.

Edward X. Clinton, Jr.

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Reciprocal Reprimand For Male Lawyer Who Solicited Prostitute – But Female Lawyer Receives Three Year Suspension For Similar Conduct

ARDC | Rules and Decisions:

A lawyer, Robert Rosenthal, who received a reprimand in Oregon for soliciting a prostitute has received a reciprocal reprimand from the Illinois Supreme Court.

The Petition for Reciprocal Discipline states in part:

“3. On December 24, 2014, the Oregon State Bar Disciplinary Counsel’s Office filed a stipulation for discipline against Respondent in the Supreme Court of Oregon, a copy of which is attached as Exhibit 2, charging him with, inter alia, paying a prostitute to engage in sexual conduct or sexual contact over an extended period of time, and with being convicted of five counts of patronizing a prostitute, in violation of ORS 167.008, a Class A misdemeanor. (Ex. 2, at paras. 5, 6)

4. The stipulation charged that Respondent violated the Rule 8.4(a)(2) of the Oregon Rule of Professional Conduct, which prohibits a lawyer from committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. (Id., at para. 6) The stipulation listed as mitigation that Respondent had not been disciplined before, that Respondent cooperated with law enforcement and reported his conviction to the Bar, and the fact that Respondent was sentenced to 18 months probation in the related criminal proceeding. (Id., at para. 7(e)) The stipulation listed as aggravation that Respondent engaged in multiple offenses or a pattern of misconduct, that Respondent had substantial experience in the practice of law at the time of his misconduct, and that his misconduct involved a selfish motive. (Id., at para. 7(d)) The stipulation recommended that Respondent receive a public reprimand. (Id., at para. 8, 9).


5. On March 14, 2012, the Oregon Supreme Court entered an Order approving the stipulation between the parties and publicly reprimanding Respondent for violating Rule 8.4(a)(2). A certified copy of the Order of the Oregon Supreme Court is attached as Exhibit 1.”

Comment: there is no issue with the reciprocal discipline. I question whether the ARDC (and perhaps other attorney regulators) are lenient with men who purchase sex from women and extremely harsh with women who find themselves on the wrong side of these encounters. For example, in 2013, Reema Nicki Bajaj was suspended for three years and until further order of court for the following conduct:

“4. Between approximately 2005 and 2008, Respondent placed listings on an online website entitled, “AdultFriendFinder.com” (“Adult Friend Finder”). In the advertisements, she identified herself as “Nikita.”

5. In approximately 2005, Harold Scott Pohl (“Pohl”) contacted Respondent through a listing that Respondent had posted on Adult Friend Finder. After making contact with Respondent, she and Pohl corresponded through emails. In these emails, Respondent offered to perform sexual acts with Pohl for $200 an hour. Between at least 2005 and August 13, 2010, Respondent made approximately 25 appointments to meet with Pohl. On each of those occasions, Pohl paid Respondent $100 in cash for sex acts.
6. In approximately the winter of 2007, Allan Turner (“Turner”) contacted Respondent through a listing that Respondent had posted on Adult Friend Finder. After making
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contact with Respondent, she and Turner corresponded through emails. In these emails, Respondent offered to perform various sexual acts with Turner in exchange for money. Between approximately 2007 and January, 2011, on at least 10 to 12 occasions, Respondent made appointments to meet with Turner. On each of those occasions, Turner paid Respondent either in cash, or equivalent store gift cards or DVDs, for sex acts. In addition, in late 2010 or early 2011, in exchange for a sex act, Turner bought Respondent office supplies for her law office, totaling approximately $70.
7. Between April 7, 2011 and May 10, 2011, Respondent and Turner exchanged various emails. In those emails, Respondent offered to perform various sex acts with Turner and Turner’s friend in exchange for money. In the emails, Respondent arranged to meet with Turner and his friend at Turner’s home on Thursday, May 12, 2011, for the purpose of performing sex acts in exchange for money. On Wednesday, May 11, 2011, Respondent was questioned by the DeKalb County Police and the emails between Respondent and Turner were viewed by the investigating officers. Respondent did not appear for the scheduled meeting with Turner and his friend on May 12, 2011.
8. On May 31, 2011, the Office of the DeKalb County State’s Attorney filed a three-count complaint charging Respondent with prostitution, in violation of 720 ILCS 5/11-14(a).
9. On June 20, 2012, the State agreed to nolle prosse counts one and three of the complaint and Respondent pled guilty to count two, a class A misdemeanor charge of prostitution. The parties stipulated to the factual basis for the charge. Count Two of the complaint set forth the following allegations against Respondent:
on or about August 13, 2010, Respondent committed the offense of prostitution, in violation of Act 5, Section 11-14(a), Chapter 720, Illinois Compiled Statutes, in that she did knowingly agree with Harold S. Pohl to perform an act
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of sexual penetration, sexual intercourse, for money, $100 United States Currency, said offense being a class A misdemeanor.
10. On June 20, 2012, the Honorable Robbin Stuckert accepted Respondent’s plea of guilt and the State’s recommended sentence. Judge Stuckert entered a judgment on the Respondent’s guilty plea and sentenced Respondent to a term of two years of court supervision, ordered Respondent to perform 50 hours of community service, pay fines and costs totaling $2,500, obtain a psychological evaluation, comply with all treatment recommendations, and obtain HIV STD testing.”
There was an aggravating factor in that Ms. Bajaj had made false statements on her bar application concerning the sexual misconduct and whether or not she had used another name. Under the ARDC’s view the use of an online alias was sufficient to be a false statement on Ms. Bajaj’s bar application.
In sum, I don’t have a problem with the reciprocal discipline but I do have a problem with the enormous disparity between the punishment between the two respondents where the male lawyer received a slap on the wrist and the female lawyer was harshly punished. The disparity in punishment is unjustifiable.
Edward X. Clinton, Jr. 

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Review Board Recommends Six Month Suspension for Lawyer Who Notarized A Signature Without Witnessing The Signature

Filed July 30: (In re Russell James Stewart).

This is a decision of the Illinois Review Board which hears appeals from decisions of the Illinois Hearing Board. The respondent was accused (and admitted) to falsely notarizing the signature of a party to a settlement agreement and admitted to making false statements to the court in order to obtain a prove-up based upon that settlement agreement.

The Review Board explained:

“Eva and Andrew Janas consulted with Respondent on October 21, 2010 because Andrew was experiencing business difficulties. They discussed the possibility of obtaining a divorce allegedly so that Eva could maintain possession of a condominium in Florida and Andrew could file for bankruptcy, but Eva did not understand the discussion to be approval to proceed with that action. At no time did Respondent advise Eva to seek independent counsel.

The Administrator alleged that following this meeting, Respondent prepared, on behalf of Andrew, documents to proceed with the divorce, including a marital settlement agreement. Respondent initially claimed, including in his Answer to the Administrator’s Complaint, that he gave a draft marital settlement agreement to Eva at the October 21, 2010 meeting and that she signed it in his presence. When called as an adverse witness during the Administrator’s case at the disciplinary hearing, Respondent again asserted that Eva signed the marital settlement agreement at this meeting. However, after the Administrator prepared to call a forensic expert to testify that an examination of Respondent’s computer revealed that he had not prepared the marital settlement agreement as of October 21, 2010, Respondent finally conceded that he had not drafted the martial settlement agreement as of October 21, 2010.
After the meeting on October 21, 2010, Eva went to Florida. She did not meet with or speak to Respondent again. On November 1, 2010, unbeknownst to Eva, Respondent filed a petition for dissolution of marriage on behalf of Andrew Janas. Respondent filed a pro se appearance for Eva. Respondent then drafted a marital settlement agreement. He testified he gave the marital settlement agreement to Andrew and asked Andrew to have Eva sign it. Sometime thereafter, he testified that Andrew returned a signed agreement to Respondent. Respondent notarized the marital settlement agreement without witnessing Eva’s signature to the agreement, in violation of the provisions of the Illinois Notary Act, and without talking to her to confirm that she had signed it. He proceeded to file the notarized marital settlement agreement with the court in the dissolution matter and obtained a judgment of dissolution. He did not give notice to Eva of the prove-up date and he did not advise her of the entry of the judgment of dissolution.

The Hearing Board found that Respondent engaged in criminal conduct by violating provisions of the Illinois Notary Act in violation of Rule 8.4(b). The Hearing Board also found Respondent engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(c) by intentionally violating the Notary Act and by deliberately failing to notify Eva of the filing of the dissolution matter, the prove-up date, or the entry of the judgment of dissolution.
On January 10, 2011, Respondent appeared before Judge Kathleen Kennedy for the prove-up in the Janas dissolution matter. Judge Kennedy asked Respondent if Eva had been notified of the hearing. Respondent responded, “Absolutely”. He then falsely said that he had talked to Eva the previous week and falsely stated that Eva had signed the marital settlement agreement in his office earlier in the month.
As set out in greater detail in the Hearing Board’s Report, Respondent called Andrew as a witness during the prove-up hearing and elicited testimony Respondent knew was false about Eva’s purported execution of the marital settlement agreement in Respondent’s office and about the receipt of rent for the condominium in Florida. The court entered a judgment for dissolution based on Andrew’s testimony.
Eva did not learn of the dissolution matter until May or June of 2011. She hired a lawyer, who ultimately vacated the judgment of dissolution.”
The Hearing Board found violations of Rules 8.4(b) and 8.4(c). There were also additional rule violations for the false statements to the court, including Rule 1.2(d) (criminal or fraudulent conduct), Rule 3.3(a) (knowingly eliciting false testimony from a witness), Rule 8.4(c) (dishonest conduct) and Rule 8.49(d) (undermined the judicial process).
Comment: Given the conduct the sanction of six months is remarkably lenient. Also, lawyers need to be aware that the ARDC knows that lawyers sometimes forge documents (to make it appear that something was disclosed to a client when it was not disclosed) and that the ARDC retains forensic witnesses who know how to examine computer hard drives.
Edward X. Clinton, Jr.

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