Wisconsin Suspends Attorney Six Months For Fabricating Travel Receipts

The Wisconsin Supreme Court, in an opinion released on December 18, 2019, has disciplined an attorney for submitting false receipts for (a) an ABA meeting and (b) hotel charges for attending another seminar.

The opinion recites the key facts as follows:

¶7 In October 2016, Attorney Bant and her supervisor agreed that Attorney Bant would attend an American Bar Association seminar in New Orleans, Louisiana. On October 31, 2016, Attorney Bant submitted a request for reimbursement of the $1,115 fee listed on a fabricated seminar registration receipt that Attorney Bant had created using computer editing software. The fabricated receipt listed the dates of the seminar as December 8 and 9, 2016, even though the seminar was actually scheduled to take place on November 3 and 4, 2016. Attorney Bant’s employer paid her the requested sum of $1,115 for the seminar fee.

¶8 Attorney Bant told her employer that she would fly to New Orleans for the seminar on Wednesday, December 7, 2016, and would attend the seminar on December 8 and 9, 2016. But Attorney Bant did not go to New Orleans on those dates; as mentioned above, the seminar had occurred over a month earlier. A coworker spotted Attorney Bant in town on the morning of Friday, December 9, 2016.

The lawyer submitted other false documents, including fake Uber receipts, when she was confronted by her supervisor.

The lawyer resigned from the firm and reimbursed the firm for the false charge for the ABA meeting. the investigation also uncovered a bill for a hotel stay that was fraudulent.

The Wisconsin Supreme Court ordered a six-month suspension of the attorney.

¶26 Turning now to the question of the proper level of discipline, we agree with the referee’s recommendation for a six- month license suspension. Our precedent demonstrates that this court takes a dim view of a lawyer’s creation and use of false documentation for the purpose of misleading others. For example, in In re Disciplinary Proceedings Against Donovan, 211 Wis. 2d 451, 564 N.W.2d 772 (1997), this court imposed a six-month license suspension on an attorney who filed false documents with the court in order to obtain favorable treatment for an acquaintance and for a former boyfriend in cases she was prosecuting as a municipal attorney. In In re Disciplinary Proceedings Against Spangler, 2016 WI 61, 370 Wis. 2d 369, 881 N.W.2d 35, this court imposed a six-month suspension on an attorney who created an array of meticulously faked documents to support false representations made to his clients that their lawsuits were pending when in fact they were not. We particularly noted in Spangler that the misconduct involved was not “a passive type of error,” but was rather “an affirmative act of deception and a betrayal of the trust” others had placed in the respondent-lawyer. Id., ¶36.

The case is In the Matter of Bant, 2019 WI 107.

Three Indiana Judges Suspended For Participating In A Brawl at a White Castle

https://www.npr.org/2019/11/14/779339897/3-indiana-judges-suspended-after-white-castle-brawl-that-left-2-of-them-wounded

The NPR story lays out the facts of this bizarre encounter between three very drunk judges and two assailants, Alfredo Vasquez and Brandon Kaiser. The encounter began after a night of alcohol consumption when one of the judges raised her middle finger to Mr. Vasquez and Mr. Kaiser who were driving in a car near a White Castle parking lot. The two men parked the car and an argument began. Things rapidly escalated and there was a brawl between two of the judges and two assailants. One of the assailants had a gun and shot the Judge Adams and Judge Jacobs. The opinion does note that two judges sustained gun shot wounds and that all three judges accepted responsibility and cooperated with the investigation.

The Indiana Supreme Court summarized the facts in this fashion:

At around 12:30 a.m. on May 1, Respondents and Clark Circuit Court Magistrate William Dawkins (“Magistrate Dawkins”) met at a local bar, where they continued to drink alcohol. At around 3:00 a.m., the group walked to a strip club and tried to enter, but found that it was closed.

The group then walked to a nearby White Castle. While Magistrate Dawkins went inside, Respondents stood outside the restaurant. At around 3:17 a.m., Alfredo Vazquez and Brandon Kaiser drove past the group and shouted something out the window. Judge Bell extended her middle finger to Vazquez and Kaiser, who pulled into the White Castle parking lot and exited the vehicle. Judge Bell, who was intoxicated, has no memory of the incident but concedes that the security camera video shows her making this gesture.

A heated verbal altercation ensued, with all participants yelling, using profanity, and making dismissive, mocking, or insolent gestures toward the other group. At no time did Respondents move to another location in the parking lot to avoid a confrontation or de-escalate the conflict.

After a verbal exchange between Judge Bell and Vazquez, a physical confrontation ensued. At one point, Judge Jacobs had Kaiser contained on the ground. With his fist raised back, Judge Jacobs said, “Okay, okay, we’re done, we’re done,” or “This is over. Tell me this is over,” or words to that effect. At another point during the confrontation, Judge Adams kicked Kaiser in the back. The confrontation ended when Kaiser pulled out a gun, shot Judge Adams once, and shot Judge Jacobs twice.

Judge Adams and Judge Jacobs were transported to local hospitals for treatment of their serious injuries. Judge Adams, who sustained a single gunshot wound to the abdomen, had two emergency surgeries, including a colon resectioning. Judge Jacobs, who sustained two gunshot wounds to the chest, also had two emergency surgeries and was hospitalized for 14 days.

The opinion explains the reasoning for the suspensions as follows:

The Commission charges, and Respondents agree, that their respective conduct violated the following provisions of the Code of Judicial Conduct:

• Rule 1.2, requiring judges to act at all times in a manner that promotes public confidence in the integrity, independence, and impartiality of the judiciary; and

• Rule 3.1(C), prohibiting judges from participating in extrajudicial activities that would appear to a reasonable person to undermine the judge’s integrity, independence, or impartiality.

The Commission further charges, and Judge Adams agrees, that his conduct violated Rule 1.1 of the Code of Judicial Conduct, which requires a judge to respect and comply with the law.

Our legal system “is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society.” Ind. Code of Judicial Conduct, Preamble. The effectiveness of the judiciary ultimately rests on the trust and confidence that citizens confer on judges. Judges, therefore, must remain vigilant to guard against any actions that erode that public trust. Respondents’ alcohol-fueled actions during the early morning hours of May 1, 2019, fell far short of the Code’s directive to “aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.” Id.

Respondents acknowledge that their misconduct damaged the public’s respect for and confidence in the integrity of the Indiana judiciary, both within the state and nationally. Their misconduct occurred while they were in Indianapolis for a statewide judicial educational event, and Judge Adams’s misconduct resulted in a criminal conviction.

The Conditional Agreements note, as mitigators, the following factors:

• Respondents have no prior disciplinary history as judges or as lawyers and this misconduct constitutes an isolated incident in their judicial careers;

• Respondents have accepted responsibility and expressed remorse for their conduct;

• Respondents have made efforts to address their behavior by contacting the Judges & Lawyers Assistance Program and by seeing counselors;

• Judge Adams and Judge Jacobs suffered serious physical injuries as a result of the altercation;

• After the physical altercation began, Judge Bell made several attempts to stop the fighting, including seeking help from those inside the White Castle by pounding on the door;

• Judge Bell immediately called 911 after shots were fired;

• Judge Adams and Judge Jacobs have been active leaders in their community; and

• Judge Adams and Judge Jacobs cooperated fully with the Commission and have been forthcoming about the incident.

“The purpose of judicial discipline is not primarily to punish a judge, but rather to preserve the integrity of and public confidence in the judicial system and, when necessary, safeguard the bench and public from those who are unfit.” In re Hawkins, 902 N.E.2d 231, 244 (Ind. 2009). The sanction must be designed to deter similar misconduct and assure the public that judicial misconduct will not be condoned. Id.

Comment: Judge Adams and Judge Jacobs were suspended for 60 days. Judge Bell was suspended for 30 days. The brawl would have gotten any judge or lawyer suspended. What made the incident much worse was the presence of a handgun and the bad decision to shoot the gun. Criminal charges remain pending against Kaiser and Vasquez.

West Virginia Suspends Criminal Lawyer for 120 Days for Failing To Meet Appeal Deadlines

The case is captioned Lawyer Disciplinary Board v. Sayre, 18-0617, West Virginia Supreme Court. Sayre represented a client in a case where the client was convicted of attempted murder. Sayre missed several deadlines in the appeal process. The court set forth the facts as follows:

The events that led to Mr. Sayre’s conduct underlying this disciplinary proceeding first originated in 2016 when Mr. Sayre was appointed to be counsel in a criminal matter arising in Wood County. An order adjudging Mr. Sayre’s client guilty upon a jury verdict of guilty to the offense of second-degree murder was entered by the Circuit Court of Wood County on March 14, 2016. Mr. Sayre and another attorney were then appointed as appellate counsel. On March 15, 2016, Mr. Sayre filed a request for transcripts in the case. Three days later, he filed a notice of appeal with the Supreme Court of Appeals of West Virginia. A scheduling order was entered by the Supreme Court of Appeals of West Virginia on April 1, 2016, setting the deadline for perfecting the appeal as July 15, 2016.

Mr. Sayre did not perfect the appeal before the deadline. On July 22, 2016, a notice of intent to sanction was entered by this Court, directing him to perfect the appeal within ten days and show good cause as to why the appeal was not timely perfected. On August 9, 2016, Mr. Sayre filed a motion to extend the deadline and requested an additional sixty days to perfect the appeal, noting that he had received the trial transcript within the past thirty days. His motion was granted, and the deadline for perfecting the appeal was extended to September 15, 2016.

Mr. Sayre filed two more motions to extend the deadline to perfect the appeal—both of these motions were untimely. In his motion dated September 16, 2016, he requested an additional sixty days to perfect the appeal and asserted that he had not been able to completely review the transcripts or obtain feedback from his client to complete the brief. This motion was granted, and he was ordered to perfect the appeal on or before October 17, 2016. Later, on October 26, 2016, he filed another motion to extend, citing an overload of appointed work and a recent illness, and advised that he would have the appeal perfected by October 28, 2016. Mr. Sayre did not file the appeal by October 28, 2016, and the Court entered another notice of intent to sanction on November 4, 2016, directing him to file the brief within fifteen days, and show cause as to why the appeal was not perfected timely. Mr. Sayre filed his brief on January 4, 2017. This Court considered the appeal on the merits and issued a unanimous decision affirming the order sentencing Mr. Sayre’s client.

Sayre was found to have engaged in the violations of the following rules:

A Statement of Charges was issued against Mr. Sayre, and filed with this Court on July 9, 2018. It set forth the following alleged violations of the West Virginia Rules of Professional Conduct: Rules 1.1[6] and 1.2(a)[7] for failure to provide competent representation to his clients consistent with their stated objectives of timely pursuing appeals; Rule 1.3[8] for failure to diligently pursue his clients’ appeals; Rules 1.4(a)[9] and 1.4(b)[10] for failure to adequately keep his clients informed and for failure to communicate; Rule 3.2[11] for failure to make efforts to expedite appeals consistent with the desires of his clients; Rules 3.4(c)[12] and 8.4(d)[13]because he repeatedly violated the Rules of Appellate Procedure by failing to comply with multiple orders issued by the Supreme Court of Appeals of West Virginia

Sayre was also charge with exchanging text messages of a sexual nature with another criminal client. This was found to violate Rule 1.8(j) and 8.4(a).

ARDC Proposes 3 Month Suspension For “Offensive Language” Targeting Women Lawyers

On October 22, 2019, the ARDC Hearing Board recommended a 3 month suspension for Jason Craddock who, it found, used offensive language with women lawyers.

The respondent made demeaning and insulting remarks to two women lawyers in the course of litigation. The Northern District of Illinois suspended Respondent for six months for his actions.

The ARDC Hearing Panel identified two incidents of inappropriate language. The Opinion states in part:

“September 15, 2016 Incident in the Wyman Matter

The first incident occurred in the hallway of the federal courthouse after a hearing in the Wyman matter. Judge Kennelly had set a briefing schedule on the defendant’s motion for summary judgment. After Respondent failed to file a response, Judge Kennelly, on his own motion, issued a rule to show cause why Respondent should not be sanctioned or held in contempt. (Ans. at par. 3; Tr. 33-35, 115).

The hearing on the rule to show cause was held on September 15, 2016. At the hearing, Respondent requested an additional extension of time to file his response. Ms. Lindbert opposed the request. At the conclusion of the hearing, Judge Kennelly agreed to give Respondent one more opportunity to respond and granted him a final extension. (Ans. at par. 3; Tr. 35-37, 115).

According to Ms. Lindbert, prior to the rule to show cause hearing, she had sent Respondent a letter pursuant to Rule 11 of the Federal Rules of Civil Procedure notifying him she did not believe Wyman’s claim had merit. After they left Judge Kennelly’s courtroom and were walking toward the elevators, she told Respondent she would be filing a motion for Rule 11 sanctions and was going to report him to the ARDC. Ms. Lindbert testified that she had her back to Respondent at the time and asked Respondent if he had heard her. Respondent responded, “I heard you Cuntney.” Ms. Lindbert turned around and said, “Excuse me?” Respondent then repeated, “I heard you Cuntney.” (Tr. 37-39, 60-61).

Ms. Lindbert testified that she was in shock after Respondent’s remarks and did not respond. She returned to the office and met with both Frank Andreou and Luke Casson, the firm’s partners, and they consulted with ethics counsel for advice. (Tr. 39-42; Tr. 51).

Ms. Lindbert testified she experienced a variety of feelings, including anger and embarrassment. She believed Respondent’s use of that word and his incorporation of it into her name was inappropriate anywhere, particularly in the hallway of the federal courthouse. She testified that the situation made her uncomfortable and was a little intimidating. (Tr. 39-42).”

Later the respondent again used inappropriate language in an email as follows:

“The second incident occurred after summary judgment was granted in favor of Evgeros in the Knapp matter. Respondent sought to challenge that ruling and filed a motion to reconsider. Evgeros filed its response to the motion on November 7, 2016. In accordance with the briefing schedule set by the court, Respondent filed his initial reply on behalf of Knapp on November 21, 2016. On November 27, 2016, without leave of court, Respondent filed an additional pleading which he called a “Corrected Reply.” (Adm. Ex. 8T; Tr. 33, 42-43, 121-22).

On December 2, 2016, Ms. Lindbert filed a motion for sanctions and to strike the Corrected Reply. She believed the filing was untimely in the sense that he had filed two pleadings without leave of court. Ms. Lindbert acknowledged that she asserted in her motion that both the original reply and the Corrected Reply were untimely and should be stricken. (Adm. Ex. 8T; Tr. 44-45, 65-67).

On Friday, December 2, 2016, Judge Feinerman denied, without prejudice, Evgeros’ motion for sanctions and to strike. He also directed that if the motion were re-filed, the defendant clarify what it meant by untimely and without leave of court. (Ans. at par. 5; Tr. 45-46, 68).

The next day, Saturday evening December 3, 2016, at 10:46 p.m., Ms. Lindbert received the following email message from Respondent on her work email:

Cuntney Lindbitch, your days of filing unnecessary, frivolous motions and abusing and harassing attorneys with disabilities will come to an end. This last effort by you?trying to prejudice me by claiming that a timely filing was filed “untimely and without leave of court” was over the top. Your client will soon see that it is YOU, not me, who is “bleeding it dry.” (Ans. at par. 5; Adm. Ex. 1; Tr. 46).

Ms. Lindbert viewed the language in the email as threatening. She stated that she was shocked and scared, and no longer wanted anything to do with the situation. (Tr. 47-50). Ms. Lindbert forwarded the email to Mr. Andreou and Mr. Casson, who told her not to respond. The following Monday, she was advised she was being taken off the cases and needed to report the matter to the ARDC. Mr. Casson took over the cases and filed motions for sanctions attaching the email. (Tr. 49-51).”

The Panel found that the Respondent had violated Rules 4.4(a) ([i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person”) and 8.4(d) (prejudice to the administration of justice).

The Panel opinion concluded with these comments;

“After considering precedent, the nature and seriousness of the misconduct, the aggravating and mitigating factors, and the goals of the disciplinary process, we conclude that a three-month suspension is appropriate discipline in this matter. This is within the range of sanctions imposed in cases involving misconduct of this nature. While it is debatable whether Respondent’s misconduct is as serious as in the cases at the higher end of this range, we believe it warrants more than the minimum sanction. This is particularly true since Respondent’s misconduct involved multiple incidents as well as significant additional aggravation.

We also note that while precedent was considered, each case is unique and must be decided based on its own facts. After considering the particular facts and circumstances in this case, we believe that a meaningful period of suspension is necessary to fulfill the purposes of the disciplinary process. Respondent’s misconduct presents a particularly egregious example of incivility as well as the mistreatment of women in the legal profession. Such grossly unprofessional conduct brings the entire profession into disrepute. We believe a message needs to be sent to Respondent as well as the rest of the bar that such conduct is unacceptable, will not be tolerated, and will be met with serious consequences. We also believe that the Illinois bar should be ahead of, not behind, society’s long overdue attention to misogyny. Our sanction recommendation also reflects these concerns.”

I agree with the decision of the Hearing Panel, which, in my opinion, is well reasoned and thoughtful.

ARDC Proposes 30 Day Suspension For Lawyer Who Failed to File Post-Conviction Petition

This is a recommendation of the ARDC Hearing Board decided on September 30, 2019. A lawyer was retained to file a post-conviction petition for a client who had been convicted of aggravated criminal sexual abuse. The lawyer had doubts about filing the petition because more than three years had elapsed since the date of conviction. She was charged with charged with failing to keep a client reasonably informed about the status of the matter, failing to promptly comply with reasonable requests for information and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rules 1.4(a) (3), 1.4(a)(4) and 8.4(c) of the Illinois Rules of Professional Conduct (2010). This appears to be a case where the lawyer could have avoided discipline by (a) refunding the client’s fee; and (b) telling the client the truth that she had not and could not file a post-conviction petition.

In May 2001, Randall Baker was convicted of aggravated criminal sexual abuse. The conviction was based on Baker’s guilty plea, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), which permits a defendant to consent to imposition of a sentence without admitting guilt. Baker was sentenced to probation, which he completed in 2005. An attorney other than Respondent represented Baker in those proceedings. (Jt. Stip. at par. 1; Adm. Ex. 2 at 7, 11). 

As a result of this conviction, Baker was required to register as a sex offender throughout his lifetime. On or about August 10, 2017, Baker consulted with Respondent about challenging this requirement. They agreed that Respondent would represent Baker in filing a post-conviction petition. Baker gave Respondent a check for $10,000 for her fee. (Jt. Stip. at pars. 2, 3, 4).

Respondent and Baker were scheduled to discuss the case on October 26, 2017. That day Respondent sent Baker a text message, stating she needed to reschedule their conference because her son was in the hospital and extremely ill. Respondent knew this statement was false. (Jt. Stip. at pars. 5, 6). 

Between October 26 and November 3, 2017, Baker sent Respondent several text messages asking about the status of his case. As of November 2, 2017, Respondent had not replied to any of those requests. (Jt. Stip. at pars. 7, 8). 

On November 3, 2017, Respondent sent Baker a text message, stating that she had lost her phone at the hospital and had to “regroup and recover all of its info.” (Jt. Stip. at par. 9). That statement was also false because Respondent had not lost her phone. (Ans. at par. 14; Tr. 21). Respondent also stated Baker’s petition was complete and she was “very pleased with it.”

(Jt. Stip. at par. 9). Respondent had done some relevant work, but had not drafted a petition. (Tr. 21-24; Adm. Ex. 2 at 4-6). 

The November 3, 2017 text message was Respondent’s last communication to Baker. (Tr. 24-25). Between November 4 and November 10, 2017, Baker sent Respondent multiple text messages asking about the status of his case. Respondent did not reply to any of those messages. Respondent also did not reply to a letter Baker sent her on December 11, 2017, asking that Respondent notify him if she would continue as his attorney and asking for a refund if she would not continue to represent him. (Jt. Stip. at pars. 10, 11, 12, 13; Adm. Ex. 1 at 5). 

C. Analysis and Conclusions

A lawyer shall keep a client reasonably informed about the status of the matter and promptly comply with reasonable requests for information. Ill. Rs. Prof’l Conduct Rs. 1.4(a)(3), 1.4(a)(4). Rule 1.4(a) imposes a duty on attorneys to take the necessary steps to keep clients informed about their cases, as well as a duty to promptly respond to client questions and requests for information. In re Harris, 2013PR00114, M.R. 27935 (May 18, 2016). A violation of Rules 1.4(a)(3) and 1.4(a)(4) can be found where an attorney has failed to respond to multiple requests from a client about the status of the client’s matter. See Harris, 2013PR00114 (Hearing Bd. at 8-9). Here, as per the parties’ stipulation, Respondent did not respond to multiple inquiries from Baker about the status of his case and thereby violated Rules 1.4(a)(3) and 1.4(a). 

It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Ill. Rs. Prof’l Conduct R. 8.4(c). Clearly, a violation of Rule 8.4(c) can be found where an attorney intentionally misrepresents facts to a client. In re Hyman, 2013PR00110, M.R. 27380 (Sept. 21, 2015). Respondent made false statements to Baker about the reasons for rescheduling their conference, her delay in responding to him and having prepared a petition. As per the parties’ stipulation, Respondent thereby violated Rule 8.4(c).

The ARDC Hearing Panel rejected the Administrator’s claim that the lawyer had violated Rule 1.4(a)(2) – failure to reasonably consult with a client.

The ARDC Hearing Panel appears to have recommended the 30-day suspension because it was convinced that the lawyer had lied to her client.

Source – In re Chandra Lin Justice 2018 PR 00078

ARDC Hearing Board Proposes 60-day Suspension For Lawyer Who Obtained Mortgages on Client’s Homes

A recent decision of the ARDC Hearing Board is worth taking the time to read. A lawyer who assisted clients with Medicaid applications ran into trouble with his method of collecting his fee.The lawyer did the Medicaid work on a flat fee basis. If the client did not have sufficient funds to pay the flat fee, the lawyer would have the client execute a promissory note and a mortgage in the amount of his fee.

Rule 1.8(a) of the Illinois Rules of Professional Conduct provides that:

 (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is informed in writing that the client may seek the advice of independent legal counsel on the transaction, and is given a reasonable opportunity to do so; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

Unfortunately, for the lawyer who obtained a mortgage on his client’s home, the ARDC found that he did not comply with Rule 1.8(a).

The ARDC Hearing Board explained that the transaction did violate Rule 1.8(a) because it created a conflict between the lawyer and the client.

There was nothing inherently improper in Respondent having a client sign a promissory note, committing to pay Respondent’s fee, or in having the client provide security for the promissory note. ABA Comm. on Ethics and Prof’l Responsibility, Formal Opinion 02-427 (2002). A lawyer may acquire a lien authorized by law to secure the lawyer’s fee or expenses. Ill. Rs. Prof’l Conduct R. 1.8(a). However, when a lawyer enters into a transaction whereby the

client agrees to provide non-monetary collateral to secure payment of the lawyer’s fee, the client must be afforded the protections of Rule 1.8(a). ABA, Formal Opinion 02-427.

The Hearing Board found a violation of Rule 1.8(a) and recommended a 60-day suspension for the attorney.

The case, In re Durward Jamison Long, Jr., 2017 PR 0083, can be viewed at http://www.iardc.org.

After Threatening ARDC Employees, Lawyer Files Motion To Be Disbarred.

These allegations come from a pending motion for disbarment on consent.

14. Beginning in December, 2017 and continuing through August, 2018, Movant left a series of hostile and insulting voicemail calls to ARDC Deputy Administrator James Grogan in which Movant threatened to “come after” Mr. Grogan, defined justifiable homicide, and referred to Mr. Grogan engaging in a sex act with Speaker of the Illinois House, Michael Madigan. The voicemails made by Movant after May 15, 2018, were in violation of the terms of his probation in People of the State of Illinois v. Donald Franz, docket number 16119156601, that Movant have no unlawful contact with the ARDC.

15. On October 23, 2018, Movant was arrested and charged with two counts of felony Telephone Harassment, in violation of 720 ILCS 5/26.5(2) and 5/26.5-5(b)(2), in People of the State of Illinois v. Donald Franz, docket number 18 CR 15782.

16. On December 11, 2018, Movant pled guilty to one count of felony Telephone Harassment and was sentenced to 30 months of intensive drug probation with conditions including Global Positioning System (“GPS”) and alcohol monitoring, and 106 days served in custody at the Cook County Department of Corrections, time considered served.

E. McHenry County criminal felony and misdemeanor convictions

17. On January 19, 2017, in the late evening, a Crystal Lake police officer responded to a call of a weaving car on Williams Street in McHenry County. The officer arrived at the location and found Movant in the driver’s seat of a parked vehicle with an open bottle of alcohol in the center console cup holder. The officer noted that Movant was unable to follow commands and smelled alcohol on Movant’s breath. As the officer attempted to arrest Movant, the Movant was verbally abusive, called the officer an ‘asshole’ and struggled with the officer, resulting in an injury to the officer’s right hand and finger.

18. Movant was subsequently arrested, and officers recovered from Movant’s pants pocket a silver colored handgun, Colt semiautomatic pistol with seven rounds of .380 ammunition. The officer determined that Movant had a revoked FOID card and a revoked Concealed Carry License (“CCL”). A search of Movant’s vehicle revealed multiple boxes of rifle ammunition.

19. On January 20, 2017, in the early morning hours, Movant was arrested by Crystal Lake Police on multiple charges including Aggravated Battery to a Police Officer, Aggravated Resisting a Peace Officer, and Aggravated DUI. During a search of Movant’s vehicle, officers recovered two handguns and multiple rounds of ammunition. Movant was charged with multiple counts of Unlawful Possession of a Firearm and Ammunition without FOID Card in People of the State of Illinois v. Donald Franz, number CLPD 17-001291 and the Aggravated DUI was charged in the matter of People of the State of Illinois v. Donald Franz, ticket number 17 DT 43.

20. On January 20, 2017, subsequent to Movant’s arrest on charges as detailed in paragraph 19, Crystal Lake police officers executed two search warrants at Movant’s home and vehicle and seized 56 firearms and 13,066 rounds of ammunition.

21. On March 9, 2017, Movant was charged by way of a Grand Jury Indictment with the Class 2 felony of Aggravated Battery of a Peace Officer, in violation of 720 ILCS 5/12-3 (5/12-3.05(d)(4); the Class 4 felony of Aggravated Resisting a Peace Officer, in violation of 720 ILCS 5/31-1(a) and 5/31-1(a-7); the Class 3 felony of Unlawful Possession of a Firearm without Requisite FOID Card, in violation of 430 ILCS 65/2(a)(1) and 65/14; the Class 4 felony of Unlawful Possession of Firearm Ammunition Without Requisite FOID Card, in violation of 430 ILCS 65/2(a)(2) and 65/14; the Class 4 felony of Aggravated DUI, in violation of 625 ILCS 5/11-501(625 ILCS 5-11-501(a)(2) and 5-11-501(d)(1)(G)); and the Class A misdemeanors of

Possession of a Revoked Concealed Carry License, in violation of 430 ILCS 66/70(g), Possession of a Revoked FOID Card, in violation of 430 ILCS 65/9.5(a)(1) and Unlawful Use of Driver’s License in violation of 625 ILCS 5/6-301(a)(1).

21. On December 13, 2017, Movant pled guilty to the Class 4 felony of Aggravated Resisting of Police Officer, amended charge of Class A misdemeanor DUI, and Unlawful Possession of a Firearm Without Requisite FOID Card. Movant was sentenced to 24 months of probation with conditions, which included that he shall not violate any criminal statute, 10 days confinement in McHenry county jail, compliance with ADES recommendations, and completion of anger management.

22. On November 9, 2018, Special Prosecutor Charles M. Colburn filed a Petition for Revocation of Probation (“PTR”) based upon Movant’s indictment for Felony Harassment by Telephone, alleging that from July 19, 2018 through August 15, 2018, Movant left harassing voicemails directed at Mr. Grogan, the Deputy Administrator of the ARDC.

23. On June 11, 2019, Movant entered a blind plea of guilty to the PTR. Movant’s sentencing date is set for August 13, 2019.

The lawyer had other issues as well related to alcohol consumption.

Should A Lawyer Follow The Example of Alan Dershowitz In Responding to Allegations?

Retired Harvard Law Professor Alan Dershowitz has become embroiled in a public controversy and several lawsuits. Dershowitz represented Jeffrey Epstein and had a role in negotiating a deferred prosecution agreement tor Epstein.

Recently, one of Epstein’s accusers, who is represented by David Boies, has accused Dershowitz of inappropriate conduct. The full details of the allegations are contained in court papers in the case captioned Giuffre v. Dershowitz 19-cv-3377 (S.D. NY). There have been other lawsuits between and among Dershowitz and other lawyers who represented Giuffre or who objected to the extraordinarily lenient terms of the Epstein deferred prosecution agreement. The New Yorker recently ran a story detailing the controversy. Dershowitz has consistently denied the claims of Giuffre. Indeed, Dershowitz has denounced the allegations with such vigor that he has been sued for defamation at least twice, once by Giuffre and once by her former lawyers.

I not offering an opinion on the truth or falsity of the allegations that have been made. I’m more interested in the question of how a practicing lawyer should respond to allegations of this type.

I do not recommend that any lawyer respond to allegations in this manner. Instead, I strongly recommend that, when confronted with allegations of this nature, the lawyer respond to any media inquiries with a general denial (assuming the denial is true) and refusing any further comment. By commenting at length, there is some risk that the lawyer may inadvertently reveal a confidence of a client or make further errors. Each time the lawyer speaks he may contradict himself or offer a slightly different version of the events. In short, my advice is to shut up.

California Dismisses Claims Against Lawyer Who Acted As Trustee for Elderly Client

It is a rare week when I do not read about the abuse of an elderly person by a lawyer – or by someone the lawyer created a power of attorney for. In the case of Drexel Andrew Bradshaw, 16-O-15558, the State Bar Court of California dismissed all charges against Bradshaw. This case is somewhat scary for lawyers because it should not have been brought at all. Bradshaw had to do a great deal of work to extricate himself from the wrongful charges. Indeed, he must have lost quite a bit of sleep as well.

Bradshaw was named as a trustee of a client’s trust. When the elderly client became incapacitated, Bradshaw obtained nursing care for the client and had repairs made to the client’s home. As Trustee, Bradshaw retained a contractor. Previously, Bradshaw had incorporated the contractor. Bradshaw had no ownership interest in the contractor. (If Bradshaw had been the owner of the contractor, retaining the contractor would have violated his fiduciary duty to the trust and his client and would have constituted self-dealing). Because he had no ownership interest in the contractor, there was no self-dealing.

The California State Bar believed that by retained a contractor who he had incorporated, Bradshaw had engaged in self-dealing and a conflict of interest. The hearing panel recommended disbarment. Bradshaw appealed.

On appeal, the Review Department dismissed all of the charges against Bradshaw.

The Review Opinion states:

Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we do not find clear and convincing evidence to support culpability as to the charged misconduct. We reject OCTC’s premise that Bradshaw wanted to start a construction company and used his position as trustee to start his “corrupt” enterprise. Bradshaw served as the successor trustee for a client years after his firm drafted the client’s trust and estate plan, and only after the first two successor trustees were unable to serve. He managed the trust according to its stated purposes and terms in a reasonable and proper manner, including engaging a certified specialist in probate and trust law to assist him in his duties. Further, he adhered to his client’s clearly expressed desires to be cared for in her San Francisco home, and that the equity in the home be used to accomplish that goal. To that end, Bradshaw used the trust assets, which consisted mostly of the home’s $1.6 million equity, to provide his client with quality nursing care and for necessary repairs to ensure her safety in the home, which was built over 100 years ago. For most of the construction projects, Bradshaw hired Bay Construction, a licensed contracting company that he incorporated on behalf of Juan Gonzalez, the owner, who had previously done work for Bradshaw and to whom Bradshaw had provided other assistance in establishing the company. In total, the trust paid BayConstruction

$157,246.76 for various construction projects, including replacement of the back stairs and repair of the home’s foundation, all done competently and at fair market value.

The evidence in the record fails to establish that Bradshaw engaged in any of the acts as alleged by OCTC. Accordingly, we dismiss this proceeding with prejudice. (See In the Matter of Kroff (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 838, 839 [dismissal of charges for want of proof after trial on merits is with prejudice].)

In other words, retaining a former client to do construction work on a home does not constitute a breach of trust or a breach of fiduciary duty. It concerns me that the California disciplinary authorities did not understand the significance of the fact that the lawyer had no ownership interest in the contractor. It is unfortunate that this case was brought at all.

Ed Clinton, Jr.

http://www.clintonlaw.net

The Bradshaw decision is located here: http://www.statebarcourt.ca.gov/Review-Department-Dispositions/Non-Published-Opinions