Law Firm Lacks Standing To Sue Client’s Insurer For Fees

The moral of the story here is: get it in writing if you wish to collect your legal fees.

The opinion in Mintz Fraade Law Firm, P.C. v. Federal Insurance Co., 2021 2021 NY Slip Op 02607, Appellate Division, First Department is short and to the point. The key language:

Plaintiff law firm lacks standing to recover its legal fees under the insurance policy, to which it is not a named party (Miller & Wrubel, P.C. v Todtman, Nachamie, Spizz & Johns, P.C., 106 AD3d 446 [1st Dept 2013]). Plaintiff was merely an “incidental beneficiary to its client’s malpractice insurance policy” (id.). Thus, the motion court properly found that plaintiff’s sole recourse was against the insured, its client, and not its client’s insurance provider.

Plaintiff’s argument that it had a direct contract with defendant on account of the various correspondence between itself and one of defendant’s employees also fails. Indeed, these letters merely confirm, consistent with the policy’s requirement that the insurer’s consent of the insured’s choice of counsel not be “unreasonably withheld,” that defendant consented to the insured’s continued retention of plaintiff.

Lawyer’s Lawsuit Against Online Reviewer Is Dismissed

One piece of advice I give consistently to lawyers is to ignore any negative reviews. If you respond substantively, you might disclose a confidence and subject yourself to discipline. Accept the bad review as a badge of honor and work on productive matters. The case of Gurstein v. Doe, No. 352225, Michigan Court of Appeals (Unpublished) addresses another issue: whether the lawyer can sue for libel.

According to the opinion, a “John Doe” posted a one star review of the law firm. The review contained no text. Gurstein sued for libel. The trial court dismissed the lawsuit and the Court of Appeals affirmed that decision.

The reasoning:

“We conclude that, as a matter of law, a one-star wordless review posted on Google Review is an expression of opinion protected by the First Amendment. Edwards, 322 Mich App at 13. We have previously held that “[t]he context and forum in which statements appear also affect whether a reasonable reader would interpret the statements as asserting provable facts.” Ghanam, 303 Mich App at 546 (quotation marks and citations omitted). In the context of Internet message boards and similar opinion-based platforms, statements “are generally regarded as containing statements of pure opinion rather than statements or implications of actual, provable fact . . . .

Indeed, the very fact that most of the posters [on Internet message boards] remain anonymous, or pseudonymous, is acue to discount their statements accordingly.” Id. at 546-547 (quotation marks and citations omitted). As plaintiffs note, Google Review is an online consumer review service where posters can share their subjective experience with, among other things, a business, a professional, or a brand. We therefore conclude that Google Review is no different than the[I]nternet message boards in Ghanam; that is, it contains purely a poster’s opinions, which are afforded First Amendment protection.Plaintiffs, however, argue Doe 2’s one-star Google review was a defamatory statement by implication. Plaintiffs assert that “Google review is an [I]nternet-based consumer review service” where individuals can post reviews of a business or professional on the basis of their actual experience; therefore, by posting a wordless one-star Google review, the poster implies that his or her experience with that business was a negative one. Because Doe 2 failed to establish that he or she was a prospective, former, or current client, plaintiffs contend that the review is defamatory as it was implied that Doe 2 had an actual attorney-client experience and received legal services from plaintiffs. But plaintiffs fail to establish how Doe 2’s one-star review was materially false. American Transmission, Inc, 239 Mich App at 702. Indeed, plaintiffs do not even know Doe 2’s true identity. While plaintiffs urge this Court to assume Doe 2 is a competitor-attorney because Doe 1 was identified as such, this is mere speculation without any factual basis.

Similarly, plaintiffs argue Doe 2 was only permitted to post a review that evaluated their attorney-client experience with plaintiffs. Google’s policy states that “content should reflect [the poster’s] genuine experience at the location and should not be posted just to manipulate a place’s ratings.” Because Google’s policy does not limit aposter’s experience to an attorney-client experience, it could reflect any experience with plaintiffs, including their website, physical location, blogs, in-court interactions, or appearance. Accordingly, even if Doe 2’s wordless one-star Google review was “couched in opinion,” it was not actionable defamation because it contained a subjective rating of plaintiffs’ business without any further words or statements describing that experience. Such a review could not imply an assertion of objective fact, but onlyan opinion, that is protected under the First Amendment. Ghanam, 303 Mich App at 545.

Therefore, the trial court did not err in concluding that the wordless one-star Google review was incapable of defamatory meaning as a matter of law. See Thomas M Cooley Law Sch, 300 Mich App at 269-270; Ghanam, 303 Mich App at 529.”

It is unfortunate that lawyers overreact to negative reviews. Don’t do it. It isn’t worth it and nothing good will come of a complaint about a negative review. I would encourage a lawyer to ignore this review and spend your time on productive matters.

Should you have a question about a legal ethics issue, do not hesitate to contact us at 312-357-1515.

Reciprocal Discipline For Violations of Rule 1.9

The District of Columbia Circuit has imposed reciprocal discipline on Larry Klayman for violations of Rule 1.9. Klayman, who at one time worked at Judicial Watch, represented clients who were adverse to Judicial Watch. The opinion sets forth the facts in this fashion:

“Larry Klayman founded Judicial Watch in 1994 and served as its general counsel until he left in 2003. Since then, he has worked as “a public interest attorney and advocate.” Br. 13.

Following the filing of a complaint with the District of Columbia Bar in 2013, the Bar’s Hearing Committee Number Nine concluded that Mr. Klayman violated Rules 8.4(d) and 1.9 of the District of Columbia Rules of Professional Conduct.

See Report and Recommendation, In re Klayman, No. 13-BD-084, slip op. at 2 (D.C. Bd. of Prof. Resp. Hearing Comm. June 19, 2017). Rule 1.9 provides that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.” D.C. Rule of Professional Conduct 1.9. According to the comments to Rule 1.9, the relevant “matter” is not limited to litigation: “[w]hen a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests clearly is prohibited.” Id. The D.C. Bar complaint against Mr. Klayman focused on his representation of three clients in suits against his former employer, Judicial Watch.

The first client, Sandra Cobas, served as director of Judicial Watch’s Miami Regional Office. While there, Cobas alleged that she faced a hostile work environment, and Mr. Klayman, as general counsel, advised Judicial Watch about her complaints. After ending her employment with Judicial Watch, Cobas filed suit against the organization in Florida state court. The Florida court dismissed her complaint, calling it “silly and vindictive.” In re Klayman, 228 A.3d 713, 716 (D.C. 2020) (internal quotation marks omitted). Then, after Mr. Klayman left Judicial Watch and without seeking its consent, he entered an appearance on Cobas’s behalf and filed a motion asking the court to vacate its order of dismissal. When the motion was denied, Mr. Klayman initiated and briefed an appeal. The appellate court affirmed the dismissal.

The second client was Louise Benson, from whom Mr. Klayman, while serving as Judicial Watch’s chairman and general counsel, solicited a commitment to donate $50,000 for a fund to purchase a building. She made an initial payment of $15,000, but Judicial Watch ultimately did not purchase a building. Years later, after Mr. Klayman had left Judicial Watch, Benson sued the organization, seeking the return of her donation. She was initially represented by another attorney, but Mr. Klayman later entered an appearance as co-counsel, again without seeking consent from Judicial Watch. Judicial Watch asked Mr. Klayman to withdraw, pointing out that he had “organized the fundraising effort” and that “Benson had identified him as a fact witness.” Id. When Mr. Klayman failed to withdraw, Judicial Watch moved to disqualify him, but the motion was never resolved because the parties agreed to dismiss the case.

Last is Peter Paul. Judicial Watch represented Paul with respect to several legal issues, including an investigation and potential litigation arising from Paul’s fundraising activities during his campaign for the New York State Senate. On behalf of Judicial Watch, Mr. Klayman prepared the representation agreement and authorized its signing as well as a subsequent modification. Judicial Watch lawyers later represented Paul in a civil lawsuit in California state court. After Mr. Klayman left Judicial Watch, the organization’s lawyers withdrew from the representation. Paul then sued Judicial Watch in the United States District Court for the District of Columbia, alleging that the organization’s lawyers had breached the representation agreement. Although Paul was initially represented by other counsel, Mr. Klayman later entered an appearance—again without seeking Judicial Watch’s consent.

Judicial Watch moved to disqualify Mr. Klayman, and the district court, then-Chief Judge Royce Lamberth, granted the motion. Paul v. Judicial Watch, Inc., 571 F. Supp. 2d 17, 27 (D.D.C. 2008). He first concluded that “it [wa]s clear that Mr. Klayman’s representation of Mr. Paul” was an “unambiguous violation” of Rule 1.9. Id. at 21. The representation, Judge Lamberth explained, was “the very type of `changing of sides in the matter’ forbidden by Rule 1.9.” Id. (quoting D.C. Rule of Professional Conduct 1.9). And although “not unsympathetic” to the prejudice that Paul might suffer due to Mr. Klayman’s disqualification, Judge Lamberth explained that he “simply [could not] condone such a flagrant violation of a Rule of Professional Conduct essential to the proper functioning of our system of justice.” Id. at 27.

Following a hearing, Hearing Committee Number Nine found that “Mr. Klayman violated Rule 1.9 (or its Florida equivalent) in all three” representations. In re Klayman, 228 A.3d at 717. The Hearing Committee also found that Mr. Klayman’s representation of Paul violated Rule 8.4(d), which prohibits lawyers from “[e]ngag[ing] in conduct that seriously interferes with the administration of justice.” Lastly, it found that Mr. Klayman gave false testimony before the Hearing Committee. The Committee recommended that Mr. Klayman “be suspended for ninety days, with reinstatement contingent upon a showing of his fitness to practice law.” Id.

The Board on Professional Responsibility agreed that Mr. Klayman had violated Rule 1.9 and recommended that he “be suspended for ninety days.” Id. The Board, however, “disagreed with the Hearing Committee’s finding that Disciplinary Counsel proved a violation of Rule 8.4(d),” as well as with its finding that Mr. Klayman had “provided false testimony,” and it rejected the Hearing Committee’s reinstatement condition. Id.

In the District of Columbia Court of Appeals, Mr. Klayman chose not to challenge the Board’s conclusion that he had violated Rule 1.9. See id. at 717 (“Before this court, neither Mr. Klayman nor Disciplinary Counsel takes issue with the finding that Mr. Klayman violated Rule 1.9 or its Florida equivalent.”). On June 11, 2020, the Court of Appeals accepted the Board’s findings; suspended Mr. Klayman for ninety days, effective July 11, 2020; and required that he complete a continuing legal education course on conflicts of interest as a condition of reinstatement.

Under Rule X of this court’s Rules of Disciplinary Enforcement, Mr. Klayman was obligated to “notify the Clerk of this Court in writing within ten days of such discipline”— his suspension by the D.C. Court of Appeals. D.C. Cir. Rules, App. II, Rule X. He failed to do so.

On July 24, this court received notice from the D.C. Court of Appeals of Mr. Klayman’s ninety-day suspension. See Certified Copy of Order, In re Klayman, No. 20-8511 (D.C. Cir. Aug. 4, 2020). Almost two weeks later, on August 4, we ordered Mr. Klayman to “show cause . . . why the imposition of identical discipline by this court would be unwarranted.” Order, In re Klayman, No. 20-8511 (D.C. Cir. Aug. 4, 2020). In response, Mr. Klayman filed the brief now before us. Mr. Klayman was reinstated to the District of Columbia Bar effective December 10, 2020….

Because Mr. Klayman has failed to carry his “burden of showing why the court should not impose reciprocal discipline,” In re Sibley, 564 F.3d at 1340, we shall impose a ninety-day suspension. Mr. Klayman protests that he “has already served a 90-day suspension period,” claiming that from August 12 to December 18, he made no appearances in the D.C. Circuit. Br. 15.

This argument rests on a flawed assumption: that our ninety-day suspension will apply nunc pro tunc to the date when the D.C. Court of Appeals imposed its suspension. Although we sometimes do impose reciprocal discipline retroactively, we do so only in limited situations, such as where the attorney, pursuant to Disciplinary Rule X, promptly notifies this court of the discipline imposed, and/or refrains from representing clients in this court while suspended before another court. Mr. Klayman did neither.

When asked at oral argument why he had failed to notify the court pursuant to Rule X, Mr. Klayman offered no coherent explanation. See Oral Arg. Tr. 10-12. In a self-styled “Supplement to Respondent’s Initial Brief,” filed just after oral argument, Mr. Klayman told us that “[t]he reason that he did not immediately inform” this court of his suspension “was because” his petitions for rehearing and rehearing en banc of his suspension “were pending [in the D.C. Court of Appeals] at the time and Mr. Klayman believed that he would be successful in obtaining a favorable ruling.” Supplement to Respondent’s Initial Br. 2. This is an astonishing argument. Rule X is crystal clear: “an attorney admitted to practice before this Court” who is “subjected to public discipline for professional misconduct. . . shall so notify the Clerk of this Court in writing within ten days of such discipline.” See Disciplinary Rule X (emphasis added). “Shall” means shall, and, unsurprisingly, the rule contains no exceptions for lawyers who think they might successfully challenge their discipline on appeal.

With respect to the second basis for considering imposing discipline retroactively—voluntary withdrawal from practice before this court—Mr. Klayman failed to withdraw from representing three clients until after we issued our order to show cause. See Motion to Withdraw as Counsel, Luhn v. Scott, No. 19-7146 (D.C. Cir. Aug. 10, 2020); Motion to Withdraw as Counsel, Lovelien v. United States, No. 19-5325 (D.C. Cir. Aug. 12, 2020); Motion to Withdraw as Counsel, Corsi v. Mueller,No. 19-5314 (D.C. Cir. Aug. 12, 2020). Indeed, Mr. Klayman failed to mention one of those cases in his brief, see Br. 15, and even filed a brief on behalf of one client two days after his D.C. suspension took effect, see Appellants’ Final Reply Br., Lovelien v. United States, No. 19-5325 (D.C. Cir. July 13, 2020).

For the foregoing reasons, Larry Klayman is suspended from practice before this court for ninety days, effective as of the date of this opinion and the accompanying order. Mr. Klayman is prohibited from holding himself out to be an attorney at law licensed to practice before the United States Court of Appeals for the District of Columbia Circuit during the suspension. In addition, pursuant to Disciplinary Rule II(d), this matter is referred to the Committee on Admissions and Grievances for recommendations about any further discipline warranted by Mr. Klayman’s failure to comply with Rule X.

So ordered.

Comment: should you have a question or concern about a legal ethics issue or matter, I am available to assist you. My email is ed@clintonlaw.net. We can be reached at 312-357-1515.

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

New York Appellate Division Suspends Lawyer For Varsity Blues Conviction

The Respondent was a well-known attorney and a chairman of a large law firm. Unfortunately, he became involved with Rick Singer and paid Singer to enable his child to get preferential treatment on a college entrance examination. He was indicted, pleaded guilty and served one month in prison and did 250 hours of community service. The New York Appellate Division suspended him for two years. The lawyer obtained a terrific result from the Appellate Division. Disbarment was certainly a possibility. His decision to plead guilty and accept responsibility was undoubtedly helpful to his cause.

The explanation is as follows:

Respondent cooperated with the AGC and has no disciplinary history. He testified how he disgraced his family and his firm, how he betrayed his former partners, colleagues and his [*4]profession, and he acknowledged that he had several chances to reconsider the wrongness of what he was doing. When asked how he reconciled his statement to Singer that he was not concerned about the moral issue of what he was doing with the person who he thought he was, respondent stated —

“it’s an anathema to me . It’s an enormous disappointment to me that that’s where my head was at .It doesn’t matter how I got there. It doesn’t matter what I was thinking . It was just abhorrent. I always thought I’d be the guy who would hang up on something like this . But when I was tested in this instance, I went for it.

* * *

“This was hubris. It was arrogant. It was about me, not about my child. That took a lot of self-realization. It was deep insecurity, I think. I frankly think a lot of people in my former profession have this notion of having to

prove yourself all the time. It overwhelmed me and it destroyed my life. I destroyed my life.”

The Referee noted that the record itself showed that respondent’s criminal actions were “out of character with his professional life and his desire to make amends.” Respondent presented his pre-sentencing memorandum with some 70 letters of support from, among others, family, friends, former colleagues and Greenwich policemen, all of which showed “the breadth and depth of Respondent’s extensive pro bono activities, his help to others in need, his millions of dollars in financial contributions and hours of personal service to Fordham Law School and Cornell University and his numerous acts of generosity and kindness throughout his career.” Respondent became well known in the legal community, writing articles and presenting at conferences; he was named “Dealmaker of the Year” by American Lawyer in 2018; and he became more involved with Fordham Law School, providing contributions and becoming a member of the Dean’s Advisory Planning Council, for which he was recognized in 2016 with a public service award.

At the hearing, the former Chairman of the law firm where he worked testified that, inter alia, he had worked with respondent for nearly 20 years and knew him quite well due to their management positions, and there was “universal respect and affection” for him. He explained that anybody who knows respondent saw his misconduct as “a real aberration, understood by everyone to be an act of zealousness and protectiveness for his daughter. But it doesn’t change anybody’s views who know him as to his reputation.” The founder of Publicolor testified to respondent’s extensive financial and hands on involvement with the organization assisting struggling schools and their students in poorer neighborhoods in New York City with advancing their education. This included serving as a Board member for 10 years (5 years as Chairman), until he was charged with the subject crime, painting with the kids, and being a mentor to many of the high school students. Even after he resigned from the Board, respondent continued to mentor students.

Recalling [*5]his one-month incarceration respondent testified that it was “deeply, humbling, extraordinarily eye-opening” “horrific on many levels” and it “changed my life forever. I don’t know for better or for worse, but it’s definitely changed the way I view life.” During his incarceration he conducted continuing education seminars for other inmates on their lives after prison and how to start and run a business and met with them individually to make sure they understood the materials. In prison respondent “was a kind, caring, and humble man deeply contrite about his actions and earnestly seeking forgiveness and redemption” who “never minimized his conduct or attempted to shift the blame to someone else” and “desire[d] to atone by helping others at Loretto [prison]”, with several inmates commenting that “his seminar transformed their own post-release plans.”

Prior to his misconduct most of his charitable work was “ironically enough” with education; however, following his experience in prison, respondent wanted to work with an organization that helps inmates and their families and so his community service work was with the Aleph Institute based in Los Angeles which provides “social and religious services focused around the needs of prisoners and their families.”

Since his immediate suspension and release from prison, respondent has been getting his “own house in order” and has been working on business issues related to companies regarding negotiations and investing or strategy around transactions.

In considering a proper sanction, the Referee noted that, as respondent admitted before the sentencing judge, “[t]his was not a victimless crime. The real victims are the kids and the parents who played by the rules in the college admissions process.”

The Referee also considered the importance of “[t]he attorney’s attitude toward the obligations and duties implicit in taking the oath of office” and “notice to the profession that certain conduct will not be tolerated” (Matter of Nearing, 16 AD2d 516, 518 [1st Dept 1962]). The Referee found respondent’s “deep and genuine” remorse “expressed over and again” —

“from his allocution at his sentencing in Federal court, his [EUO] before the Committee and the hearing, and from observing his forthright demeanor at the hearing, it is clear that Caplan has learned his lesson — painfully and traumatically. It is difficult, if not impossible, to imagine Caplan ever again deliberately crossing the line and acting criminally or unethically.”

However, the Referee suggested that the mitigation could not obscure the purpose of the proceedings, “the protection of the public” and imposing a sanction —

“Respondent was at the very top [of] the legal profession in June 2018 when he had his first conversation with Rick Singer. He was co-chair of one of the country’s leading law firms, he had a large and extremely remunerative law practice, he was highly respected by all. Despite all that, when faced with a clear ethical choice, he failed [*6]badly. He knew in that first conversation that Singer was proposing “cheating” the college admissions process. But rather than hanging up the phone, Caplan said yes, signing onto an illegal, criminal scheme that brought shame to himself and to his family.

“In making that choice, Caplan completely disregarded his professional and civic duties. Rather, he used his skills as a lawyer and the rewards of his successful law practice to circumvent the rules, not to honor them, to try to protect himself against the consequences of his clearly ethical and criminal conduct, rather than to choose to avoid any such behavior.

“In these circumstances, the balancing test this proceeding requires weighs against a shorter suspension, but not so heavily, given the weight and consequences of the lessons Caplan has learned, as to require disbarment. I recommend that Caplan be suspended for a period of two years, retroactive to the date of the Appellate Division suspension order of November 7, 2019.”

The AGC now moves for an order confirming the findings of fact, conclusions of law and recommendation of the Referee to impose a two-year suspension, nunc pro tunc to November 7, 2019 (date of his interim suspension) in this “serious crime” proceeding. Although he urged a one-year suspension before the Referee, respondent has submitted a separate Memorandum of Law in support of the Committee’s request for a two-year suspension and provides a detailed presentation of the evidence in mitigation and case precedent. In view of all of the foregoing, and that the purpose of this proceeding is to protect the public as opposed to punishment (Matter of Samuel, 103 AD3d 134, 137 [1st Dept 2013]), the Referee’s report including the sanction recommendation is confirmed.

Within weeks of his arrest, respondent pleaded guilty to conspiracy to commit mail fraud and honest services mail fraud (18 USC § 1349 [see 18 USC §§ 1341 and 1346]), a federal felony, for his participation in a scheme which involved two trips to California and extended for eight months until he was arrested. Almost immediately respondent accepted full responsibility for his criminal and unethical wrongdoing and expressed sincere remorse, not only in court and in public, but to essentially anyone he came into contact with. His honesty about his failings, his shame and the devastating consequences his criminal behavior has had on his personal and professional lives was palpable in his testimony before the sentencing judge, before the AGC (in his EUO) and before the Referee. Respondent’s years of mentoring people from all walks of life and participation in charitable and pro bono activities was not done for appearances but involved a substantial commitment of his time and effort, not just financial. Indeed, the numerous letters submitted on his behalf describe the positive impact respondent has had on people’s lives spanning decades, and not just with family and friends but with acquaintances and even strangers. [*7]Even the Committee acknowledges that his character evidence is “impressive” and that “there is little reason to believe that he will engage in similar criminal conduct.”

Nonetheless, it is clear that respondent’s focus at the time was not on the immorality and illegality of his actions but on not getting caught, and he continued with the scheme despite numerous opportunities to walk away. Although no case is directly on point, this Court has faced somewhat similar matters where attorneys have engaged in deceptive conduct and/or bribery resulting in discipline ranging from suspension to disbarment (Matter of Davis, 109 AD3d 154 [1st Dept 2013]; Matter of Bertel, 268 AD2d 112 [1st Dept 2000]; Matter of Holtz, 239 AD2d 24 [1st Dept 1998]; Matter of Stone, 230 AD2d 481 [1st Dept 1997]; Matter of Goldberg, 190 AD2d 269 [1st Dept 1993]; Matter of Lefkowitz, 105 AD2d 161 [1st Dept 1984]).

Additionally, in the 1990’s there were several misdemeanor commercial bribery/scheme to defraud cases involving attorneys who participated in the “ten percenter” bribery scheme in which they paid insurance adjusters to influence the handling of insurance claims, resulting in sanctions ranging from censure to disbarment (see e.g. Matter of Kreitzer, 281 AD2d 35 [1st Dept 2001], lv denied 97 NY2d 609 [2002]; Matter of Fields, 280 AD2d 104 [1st Dept 2001]; Matter of Rotter, 241 AD2d 81 [1st Dept 1998]; Matter of Ingber, 239 AD2d 58 [1st Dept 1998]).

A two-year suspension retroactive to his 2019 suspension properly balances respondent’s criminal conduct with the substantial evidence in mitigation, the protection of the public, maintaining the honor and integrity of the profession and as a deterrence to others from committing similar misconduct (22 NYCRR 1240.8 [b][2]).

Accordingly, we grant the AGC’s motion to confirm the Referee’s findings of fact, conclusions of law and recommendation, and respondent is suspended from the practice of law in the State of New York for a period of two years, nunc pro tunc to November 7, 2019, and until further order of the Court.

All concur.

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 for 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 lawyer who receives a prohibited 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 turn the images over to law enforcement. (There is a big “unless” here. If the client would be criminally charged, the lawyer cannot turn over the images for to do so would be to reveal a confidence to the detriment of the client). 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. It would be even better if the statute were amended to allow a parent or lawyer to act in good faith.

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.