Month: June 2019

Lawyer is Reprimanded For False Statement In Motion for Extension of Time.

The case is In re Ryan Kenneth Melcher, 2018 PR 88. Melcher was employed as an assistant federal publid defender in the office of the Colorado federal defender. Melcher’s error was a mistatement of fact in a routine motion for extension of time. The Panel describes the error in this way;

2. In November 2016, Respondent was appointed to represent Rocky Allen (“Allen”) before the Tenth Circuit Court of Appeals (“Tenth Circuit”) in relation to Allen’s appeal of his 2016 federal criminal conviction for tampering with a consumer product and obtaining a controlled substance by deceit or subterfuge. The matter was captioned United States v. Rocky Allen under case number 16-1450.

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3. On April 26, 2017, while representing Allen, Respondent filed a motion in Allen’s matter before the Tenth Circuit entitled “Appellant’s Unopposed Motion for 14-Day Extension of Time to File Reply Brief.” In his motion, Respondent informed both the court and his opposing counsel at the U.S. Attorney’s Office for the District of Colorado that he had multiple matters scheduled for oral arguments, and needed additional time to prepare, and included the following information in his motion:

“I also have been working on the following cases with upcoming deadlines in this Court: United States v. Archuleta, No. 16-1297 (oral argument set for May 9, 2017); United States v. Ivory, No. 15-3238 (oral argument set for May 10, 2017); United States v. Olea-Monarez, No. 16-1330 (opening brief due May 15, 2017); United States v. Allen, No. 17-1083 (opening brief due June 5, 2017).”

4. In writing that another client’s matter in United States v. Ivory was set for oral argument on May 10, 2017, Respondent knowingly made a false statement to both the court and his opposing counsel as United States v. Ivory was not set for oral argument, which Respondent knew at the time he filed his motion.

When the mistake was recognized, it was quickly corrected. Despite the correction, the ARDC made a finding that the lawyer engaged in fraudulent conduct in violation of Rule 8.4(d).

5. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a. knowingly making a false statement of fact or law to a tribunal, by filing a motion for extension of time and including language that he needed additional time to prepare for oral argument in United States v. Ivory when Respondent knew there was no oral argument pending in the Ivory matter, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);

b. knowingly making a false statement of material fact or law to a third person, by serving government counsel with a motion for extension of time in which Respondent wrote that he was preparing for oral argument in United States v. Ivory when the Ivory matter was not set for oral argument, in violation of Rule 4.1(a) of the Illinois Rules of Professional Conduct (2010); andc. engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, by purposely including false language that United States v. Ivory was set for oral argument when Respondent knew there was no oral argument pending, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010

The Panel acknowledges that the lawyer made only one false statement in the motion and that he recevied no personal benefit from that false statement. In addition, the respondent lost his job and has now been publicly embarrassed.

Comment: in my opinion this small error should have been dealt with by a private reprimand, not a public finding that the lawyer violated Rule 8.4(c). This is disciplinary overkill.

California Bar Seeks to Place Michael Avenatti on Inactive Status

The California Bar has filed a motion to place Michael Avenatti on inactive status. The Petition and Exhibits are over 500 pages long and list numerous claims that Avenatti converted funds belonging to his clients. http://www.calbar.ca.gov/About-Us/News-Events/News-Releases/state-bar-of-california-files-to-place-attorney-michael-j-avenatti-on-involuntary-inactive-status Given the allegations against Avenatti and the two pending federal indictments against him, I would imagine that the petition will be granted. That will remove Avenatti from the practice of law during the disciplinary case.

Oklahoma Imposes 90-day suspension on Attorney.

A lawyer signed a settlement agreement for a client. The Oklahoma Supreme Court concluded as follows:

¶16 The formal release of claims against Pappy, et al. (excluding Barnes and Plaxico), was signed by Respondent (using Ms. Miller’s name) and the “signature” was caused to be notarized by Respondent on September 17, 2015. Respondent admits that he tried to replicate Ms. Miller’s signature as close as possible before having it notarized. Respondent also admits that he had no power of attorney or other legal authority authorizing him to sign this agreement using Ms. Miller’s name. However, Respondent alleges that he did have oral authorization to execute the formal release. However, Ms. Miller contended that she did not give Respondent permission to sign this formal release of claims against Pappy, et al….

¶23 Rationale for the “disciplinary process, including the imposition of a sanction, is designed not to punish the delinquent lawyer, but to safeguard the interests of the public, those of the judiciary and of the legal profession.” State ex rel. Okla. Bar Ass’n v. Combs, 2007 OK 65, ¶ 36, 175 P.3d 340, 351 (citations omitted). The measure of discipline imposed upon an offending lawyer should be consistent with the discipline visited upon other practitioners for similar acts of professional misconduct. Id. (citation omitted).

¶24 When we examine the actions taken by Respondent in the case before us, we hold that Respondent violated ORPC Rule 1.15 when he initially and subsequently received settlement checks from the defendants and deposited each into his operating account, a clear violation of the rules of professional conduct resulting in commingling of client funds and personal funds. Respondent acknowledges this violation and accepts full responsibility for it. We evaluate a commingling infraction based on three different levels of culpability, those being (1) commingling, (2) simple conversion, and (3) misappropriation or theft by conversion; each of which must be proven by clear and convincing evidence. State ex rel. Okla. Bar Ass’n v. Combs, 2007 OK 65, ¶ 13, 175 P.3d 340, 346; see also State ex rel. Okla. Bar Ass’n v. Cummings, 1993 OK 127, ¶ 23, 863 P.2d 1164, 1172; State ex rel. Okla. Bar Ass’n v. Parsons, 2002 OK 72, ¶ 12, 57 P.3d 865, 868. Each level represents a more serious infraction and thus demands more serious disciplinary action. In this case, Respondent not only commingled the settlement money with his personal funds in the operating account, he reached a point after paying his client the monies due to her, on December 23, 2015, where the balance available in his operating account was only $300.08. At that point, while payments were still due and unpaid for out-side attorney claim interests (approximately $700.00 to Gould and $7,500.00 to Van Meter), the balance in his operating account was only $300.08. By operation of law, at this point there was clear and convincing evidence that his infraction became more than commingling and included simple conversion. However, we find no clear and convincing evidence that he was guilty of level three commingling which involves theft by conversion or otherwise. He never attempted to misappropriate the monies to his personal benefit.

¶25 Respondent’s actions were also a violation of ORPC Rules 8.4(a) and (c). The PRT Report found that Respondent violated Rule 8.4(c) when he endorsed the Formal Release of Claims for the Pappy, et al. settlement, signing his client’s name. Although he claimed that the signature was done with his client’s permission, she disputed that fact. But more seriously, he acknowledged that after he signed the settlement agreement, he caused that signature of his client’s name to be notarized, and by his admission, attempted to make the signature look as much as possible to the client’s signature. Though Respondent claimed to have had the client’s oral consent to affect the signature, his actions reveal that it was not, at the very least, in accord with legal procedures. He admitted that he no power of attorney or other legal authorization to sign his client’s name…

¶31 There is also no question that Respondent violated ORPC Rules 8.4(a) and (c). The more serious violation here is 8.4(c) which states that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Respondent here acknowledged that he endorsed the settlement agreement with Pappy, 238 *238 et al. with his client’s name, attempting to make it look like his client’s signature, and then having that signature notarized. Though he claimed to have oral consent to do this, he acknowledged that he did not have any legal written authority to do it and his client disputes the oral consent. However, the fact that he acknowledges trying to replicate his client’s signature for notarization established an attempt at misrepresentation.

¶32 Assessing Respondent’s actions and professional conduct violations, we must keep in mind that the disciplinary process is not designed to punish the lawyer but to safeguard the interests of the public, judiciary and the profession itself. Combs, 2007 OK 65, ¶ 36, 175 P.3d at 351. We must also consider that the discipline imposed should bear resemblance to other practitioners for similar violations of misconduct. Id. Although this was Respondent’s first experience as a sole practitioner, we cannot and do not excuse the seriousness of his infractions.

445 P.3d 229

Conversion of Client’s Money To Feed Gambling Habit Leads to Disbarment in Pennsylvania

The case is Office of Disciplinary Counsel v. John Kelvin Conner, 29 DB 2018. The case involved a lawyer who encourged a client to execute a durable power of attorney, naming the lawyer as the agent. The client was an elderly woman who needed round the clock healthcare. Instead of acting in the interest of the client, the lawyer withdrew over $95,000 from her account to feed a gambling habit. The Pennsylvania Supreme Court disbarred the lawyer.

ARDC Recommends 60-Day Suspension for False Statement In Motion

The ARDC Review Board has recommended a 60-day suspension for a lawyer who made a material misstatement in a motion to vacate a conviction. In Illinois an old conviction, even if you have led a blameless life, can lead to dire consequences because you are forever barred from holding any professional license – even one to cut hair. This harsh rule has been criticized and challenged but it has stood the test of time. Here a lawyer made a false statement in a motion to vacate a conviction and the Review Board has recommended a 60-day suspension.

In March 2017, Respondent agreed to represent Courtney Chester in an effort to have her 2001 battery conviction voided so that she could apply to nursing school. Chester was 17 when she was charged with battery, but she had turned 18 on the day before she pled guilty to the charge. Thus, she was 18 at the time of her guilty plea and conviction. Respondent knew she was 18 when she pled guilty.

“Respondent began conversations with Assistant States Attorney Joseph Lesner about Chester’s situation. Lesner told him to get a motion on file. Respondent thus prepared and filed with the court a motion to vacate Chester’s guilty plea and conviction. In the motion, Respondent stated that Chester was 17 at the time she was charged and sentenced. He further stated: “As [Chester] was only 17 at the time of the plea and conviction[,] her plea and conviction should properly be voided.” (Admin. Ex. 1 at 5.) He knew that statement was false when he filed the motion, because he knew that Chester was 18 when she entered her guilty plea and was sentenced.

Respondent also sent a cover letter to Lesner explaining the motion, in which he stated that Chester was “trying to become a nurse and to do so she needs to remove her conviction for battery in 2001. She was 17 at the time and was eligible for court supervision.” (Admin. Ex. 1 at 6.)

About a month after filing the motion, Respondent appeared in court on the motion to vacate, in front of Winnebago County Circuit Court Associate Judge Brian Shore. Judge Shore questioned him about the basis of the motion, pointing out that Chester was 18

when she pled guilty and that the motion, on its face, was not correct. Respondent told Judge Shore that he did not look at the actual plea date and that, when he wrote the motion, he believed Chester was 17 at the time of her plea, but subsequently determined that she was over that age. The judge continued to press Respondent about the incorrect statement, and Respondent continued to assert to the judge that he did not intend to state something false. The judge dismissed the motion to vacate because of the “blatantly false allegation.” (Admin. Ex. 3 at 3-8.) At his disciplinary hearing, Respondent acknowledged that his statements to Judge Shore that he did not look at the actual plea date and that he believed when he wrote the motion that Chester was 17 when she pled guilty were false. (Report of Proceedings at 34-35.)”

If you have a legal ethics issue and would like to discuss it with us, do not hesitate to contact us. Also, please review our legal ethics webpage. https://www.clintonlaw.net/legal-ethics.html

The ARDC Hearing Board Has Decided Novoselsky II – And Recommended Disbarment

The ARDC Hearing Board has weighed in on the second case that it filed against David Novoselsky, In re David Alan Novoselsky, 2015 PR 00007 (“Novoselsky II”). The Hearing Board has recommended that Novoselsky be disbarred.

The ARDC has been in continuous litigation with David Novoselsky since 2011. In Novoselsky I, decided on September 21, 2015, the Supreme Court ordered a six month suspension. By the time Novoselsky I was decided, the ARDC had already filed Novoselsky II.

The charges in Novoselsky II arose out of the death of Claudia Zvunca. The respondent was alleged to have engaged in a lengthy series of violations of the Rules of Professional Conduct related to the Zvunca litigation, including the filing of multiple frivolous lawsuits against other attorneys involved in the Zvunca litigation. The Hearing Board, after a trial lasting several days, found that the respondent engaged in all of the charged misconduct.

The ARDC recommended disbarment and explained the rationale for its decision as follows:

“In arriving at the appropriate discipline, we consider those circumstances which may mitigate and/or aggravate the misconduct. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). We have little to consider in the way of mitigation in this case other than Respondent’s cooperation in these proceedings. While he expressed some regret for certain of his actions, such as remarks made to Judges Zwick and Connors, his contrition did not encompass the misconduct for which he was actually charged, that being his frivolous filings, his efforts to embarrass or burden other counsel, or his dishonest statements.

The aggravating circumstances, on the other hand, are extremely serious and expansive. Notably, Respondent did not recognize his misconduct to be improper, express remorse for his actions, or apologize to the many attorneys whose lives he disrupted. See In re Lewis, 138 Ill. 2d 310, 347-48, 562 N.E.2d 198 (1990).

We also consider the fact that Respondent’s actions were not limited to an isolated instance of misconduct; rather, he engaged in a pattern of wrongdoing which extended over the course of several years. See In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896 (1995). While only two client matters were involved, Respondent’s initiation of frivolous issues and proceedings complicated those matters to extreme levels and expanded the sphere of litigation to include additional courts and judges at the trial and appellate levels in both federal and state courts.

Respondent’s motivation for engaging in the misconduct, which we see as having been purely for personal gain, is another aggravating factor we consider. As to the Zvunca proceedings, the Administrator argued throughout the hearing that Respondent was attempting to disrupt the existing attorney/client relationships in the wrongful death litigation and insert himself into the proceedings as counsel for the plaintiff in order to reap large fees for himself. We believe this to be true, but in reviewing both the Zvunca and Kuc litigation we conclude his motivation was also rooted in his own over-zealous desire to beat down and out-trick his opponents by any means and at any cost, whether that cost was to his own clients or, ultimately, to himself. His determination to control the proceedings and his refusal to accept defeat was displayed repeatedly by his filing and re-filing of meritless cases, his endless motions for substitution of judges, his specious requests for reconsideration and appeals, and other behavior which a reasonable attorney would recognize as meritless and contumacious. Not only did Respondent not recognize his initial wrongful conduct, the imposition of sanctions seemed to have no effect in reforming his behavior.

With respect to those sanction awards, the evidence showed that Respondent racked up thousands of dollars of sanctions imposed by a federal judge and two separate circuit court judges. Respondent is in bankruptcy and most of the sanction orders remain unsatisfied.

While the foregoing factors are egregious and will impact our ultimate determination, the most disturbing factor that aggravates Respondent’s conduct is the astonishing amount of harm he caused to numerous individuals, including clients and opposing attorneys. See In re Saladino,

71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be “closely linked to the harm caused or the unreasonable risk created by the

lack of care”).

The list of persons or entities who were damaged by Respondent’s conduct include:

Cristina Zvunca – Respondent’s maneuverings delayed the progression of her case and her recovery. After seizing control of the litigation, he agreed to settle the case for an amount less than what had been discussed by the parties, and for less than the ultimate settlement amount;

Jeanine Stevens, Marina Ammendola and John Cushing – the attorneys spent a vast amount of time responding to Respondent’s motions and lawsuits, paid thousands of dollars in fees to other attorneys to defend them against spurious allegations, suffered increases in their malpractice insurance premiums, and had less time to spend on their other client matters;

Stevens and Ammendola – both testified they continue to suffer embarrassment and answer inquiries about the unfounded allegations made against them, which were not only personal and offensive in nature but, as to Stevens, could have subjected her to an unwarranted investigation by child services or worse;

Gus Santana – incurred attorney’s fees in defending himself against baseless motions and accusations and was embarrassed by the proceedings, which took time away from his other clients;

Eugene Kuc – received bills from Respondent’s firm which included work for the sanctions proceedings against Respondent. Further, he had to reimburse his mother’s estate when payments made to Respondent were not approved by the court and Respondent refused to refund the overage.

James Ayres – had to defend a lawsuit brought by Respondent seeking contribution for the sanctions imposed against Respondent and his law firm, and no longer has a relationship with his family member Eugene Kuc;

Multiple courts – both federal and state judges had their dockets taxed by frivolous litigation that took time away from their other cases. Judges Propes and Connors testified to the tremendous amount of time spent in reviewing pleadings and transcripts.

In addition, as discussed in a previous section, Respondent’s actions played a part in Judge Locallo’s order of September 2009 which removed the key players from the wrongful death litigation. That order was ultimately reversed, causing months of proceedings and the settlement of the case to be unwound.

As a final factor for consideration, Respondent was suspended for six months in 2015 for engaging in misconduct which included, among other things, making dishonest statements and using means that have no substantial purpose other than to embarrass or burden third parties. The misconduct in that case occurred between 2003 and 2011, and was charged in a complaint filed in 2011 and amended in 2012. The Hearing Board report indicates the Administrator was investigating Respondent’s conduct in that case and requesting information from him as early as February 2009. (Hearing Bd. Rpt. at 46, 97). The conduct charged in the present case occurred between mid-2008 and mid-2011.

Prior discipline weighs most heavily against an attorney when he or she commits additional misconduct after the Supreme Court has imposed discipline, thereby indicating a failure to learn from the previous misconduct. In re Starr, 06 CH 78, M.R. 23127 (Sept. 22, 2009) (Review Bd. at 9). Given the timing of the misconduct and prior discipline in the present case, Respondent is not a recidivist in the ordinary sense and therefore his prior discipline merits less weight than in a typical case involving a repeat offender. See In re Starr; In re Brown, 04 CH 73, M.R. 22127 (Mar. 17, 2008) (Review Bd. at 16). The Court has stated, however, that it is appropriate to consider the totality of an attorney’s discipline even when he or she is not a typical recidivist. In re Teichner, 104 Ill. 2d 150, 166-68, 470 N.E.2d 972 (1984). Further, we believe from early 2009 onward, Respondent should have been particularly cognizant of his ethical obligations since he was under investigation for his prior offenses at that time. See In re O’Brien, 2015PR00023, M.R. 28493 (Mar. 20, 2017) (Hearing Bd. at 35). Given the foregoing

circumstances, we conclude Respondent’s earlier discipline deserves some consideration, but the weight we give it is minimal compared to the other aggravating factors.

The Administrator urged us to recommend that Respondent be disbarred and cited several cases in support of her position. Respondent, on the other hand, argued that no misconduct occurred and therefore no sanction is warranted.

The Administrator presented the following cases, which we view as instructive. In In re Zurek, 99 CH 45, M.R. 18164 (Sept. 19, 2002), the attorney was disbarred for misconduct arising out of a dispute with his former employer. After filing frivolous pleadings which led to sanctions, the attorney then made false and unfounded accusations against the judge and opposing counsel. He also made offensive remarks to a deponent during a deposition. The attorney’s misconduct was aggravated by his conduct during the disciplinary proceedings, including filing frivolous pleadings. In In re Konan, 05RC1503, M.R. 20127 (May 20, 2005), a reciprocal discipline case, the attorney was disbarred for pursuing positions that lacked merit, filing an unfounded motion for sanctions, and attempting to mislead the Court. In aggravation, he showed no remorse for conduct which resulted in five sanction orders and a contempt finding, and he had been previously reprimanded. In In re Ditkowsky, 2012PR00014, M.R. 26516 (Mar. 14, 2014) the attorney was suspended for four years until further order of court for making false statements and sending hundreds of emails falsely alleging corruption and criminal conduct by guardians ad item and judges in order to gain an advantage in a guardianship proceeding. The attorney’s previous discipline twenty years earlier was given little weight.

We also considered In re Romanski, 03 CH 90, M.R. 20589 (Jan. 13, 2006) in which the attorney was suspended for three years for advancing a frivolous claim in connection with a personal dispute and then continuing to assert the claim after it was rejected by the court. He also communicated with a represented party, made misrepresentations to the court, and took actions intended to force the removal of a judge, including manufacturing a conflict that would require the judge to recuse himself. The Review Board was especially concerned with the attorney’s attempted manipulation of the court system and his inability to recognize his wrongdoing. (Review Bd. at 15). As in the instant case, the attorney expressed no remorse and refused to acknowledge the wrongfulness of his calculated plan. In contrast to the instant case, the attorney’s actions involved only one dispute, he filed no lawsuits against counsel, and the harm was confined to legal costs of the opposing party and the risk of damage to the judge’s reputation.

We are aware that cases involving frivolous pleadings or actions taken for purposes of harassment, when those actions were not accompanied by dishonesty or severe aggravating circumstances, have resulted in only mild sanctions. See In re Messina, 2014 PR00002, M.R. 28368 (Jan. 13, 2017) (Review Bd. at 22-23). Those cases do not apply here. The calculated scheme employed by Respondent in both the Zvunca and Kuc cases, which resulted in far-reaching and damaging consequences, sets this case apart. In particular, while we recognize the Zvunca case was complicated long before Respondent entered it, the tangled web that ensued was prompted by Respondent, for Respondent. As a result, several courts were burdened, progress in numerous cases was delayed, unnecessary fees were incurred, professional anxiety was induced, and professional and personal time was stolen.

Respondent knowingly engaged in a sustained campaign of unfounded litigation and manipulation and failed to conform his actions to the requirements of the professional rules after adverse rulings by courts. Despite his testimony that he has now changed and will no longer engage in destructive behavior, his failure to be deterred by sanctions and his recent activity in a federal case in Wisconsin speak to the contrary. In light of the misconduct that occurred and the relevant case law, and in order to protect the public and the integrity of the profession, we conclude that disbarment is warranted.

Accordingly, we recommend that Respondent David Alan Novoselsky be disbarred.”

Update on September 21, 2020, the Illinois Supreme Court entered an order disbarring Novoselsky.

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