Wisconsin Declines To Admit Lawyer Who Was Disbarred in Florida

In the Matter of the Bar Admission of David Hammer, 2019AP1974 (Supreme Court of Wisconsin, June 25, 2020), The Wisconsin Supreme Court refused admission to David Hammer who was previously denied admission in Florida. Given the prior misconduct of Hammer in Florida, culminating in disbarment, the Supreme Court of Wisconsin refused to admit Hammer.

¶3 We focus on the Board’s primary reason for declining to certify Mr. Hammer. On August 23, 2010, four years after his admission to practice law, the Supreme Court of Florida issued an emergency suspension against Mr. Hammer’s law license, alleging that he had misappropriated client trust funds. A formal disciplinary complaint followed. Eventually, Mr. Hammer stipulated that in November 2009, Bilzerian had directed that certain outstanding invoices and cost reimbursements not be paid to Mr. Hammer. Mr. Hammer believed these amounts were valid and owed to him. At the time, Mr. Hammer had access to funds in a trust account belonging to another Bilzerian-related entity. In January 2010, Mr. Hammer began taking money from that trust account for his own personal use. In May 2010, the client requested the money held in trust. By then, the trust fund was approximately $27,000 short of funds. To replace the missing client funds, Mr. Hammer accessed funds from another account to which he was a signatory, paying himself director fees and other amounts.

¶4 On August 30, 2011, the Florida Supreme Court issued an order disbarring Mr. Hammer, nunc pro tunc to September 22, 2010, for misappropriating client funds.[2] Eventually, Mr. Hammer distanced himself from the Bilzerian client group, started a business, regained financial stability, and became chief information officer of Elevant, an entity that licenses a case management software program.

¶5 On January 1, 2018, Mr. Hammer applied for admission to the Wisconsin bar. In February 2018, he took and subsequently passed the Wisconsin bar exam. On January 15, 2019, the Board advised Mr. Hammer that his bar application was at risk of being denied on character and fitness grounds. Mr. Hammer, by counsel, requested a hearing and in May 2019, Mr. Hammer also voluntarily commenced an ethics tutorial with Wisconsin Attorney Dean R. Dietrich.

¶6 On August 2, 2019, the Board conducted a hearing at which Mr. Hammer appeared by counsel and testified. The Board also heard testimony from Mr. Hammer’s prospective employers, who advised the Board that they will employ Mr. Hammer as an attorney if he is admitted to the Wisconsin bar. Attorney Dietrich testified in support of Mr. Hammer’s character and fitness to practice law in Wisconsin.

¶7 On September 19, 2019, the Board issued an adverse decision concluding that Mr. Hammer had failed to demonstrate to the Board’s satisfaction that he has the necessary character and fitness to practice law in Wisconsin. The Board cited Mr. Hammer’s Florida disbarment; abuse of process; extensive traffic record; and its conclusion that Mr. Hammer failed to demonstrate significant rehabilitation. The Board added that Mr. Hammer has not reapplied to the Florida bar.

¶23 While we have, on occasion, overruled the Board and admitted certain applicants despite troubling past conduct, we conclude that Mr. Hammer cannot be admitted to their ranks. We acknowledge that a decade has passed since the misconduct culminating in Mr. Hammer’s Florida disbarment and that Mr. Hammer cannot undo his past misconduct. This conundrum does not mean, however, that we are somehow compelled to offer him a law license. While the passage of time may aid a bar applicant’s case, nothing in our prior bar admission cases should be construed to imply that an applicant enjoys a presumption of admission after some period of time has elapsed. Lathrop v. Donohue, 10 Wis. 2d 230, 237, 102 N.W.2d 404, 408 (1960) (observing that the practice of law is not a right but a privilege).

¶24 With the serious nature of his misconduct, coupled with the number of incidents revealing deficiencies (BA 6.03(d), (i)), Mr. Hammer has created a very heavy burden for himself. In such cases the passage of time may not be sufficient to persuade us that an applicant should be admitted to the practice of law.

¶25 Based on our own review of the non-erroneous facts of record before the Board at the time of its decision, we agree that Mr. Hammer has failed to meet his burden under SCR 40.07 to establish the requisite moral character and fitness to practice law “to assure to a reasonable degree of certainty the integrity and the competence of services performed for clients and the maintenance of high standards in the administration of justice.”[10] Accordingly, we affirm the Board’s decision declining to certify Mr. Hammer for admission to the Wisconsin bar.

¶26 IT IS ORDERED that the decision of the Board of Bar Examiners declining to certify that David E. Hammer has satisfied the requirements for admission to the practice of law in Wisconsin is affirmed.

The opinion also discussed several contempt findings against Mr. Hammer.

ARDC Charges Lawyer With Providing False Documents

The ARDC has filed a complaint against a lawyer arising out of his representation of a convicted murderer. The lawyer filed a motion for reduction of the sentence, but failed to take action to obtain a decision on the motion. Unfortunately, the lawyer is also accused of created false correspondence and submitting that correspondence to the ARDC. Count II sets forth the allegations:

“8. On July 12, 2019, the Administrator docketed an investigation of Respondent after receiving a request for investigation from McBride. McBride’s request for investigation stated that Respondent had not communicated with him after an initial contact immediately after Respondent’s appointment to represent McBride. McBride stated that he had made telephone calls and written letters to Respondent but had not gotten responses.

9. On July 23, 2019, Counsel for the Administrator sent a copy of the report to Respondent and requested that he respond to the report within 14 days. Respondent did not respond.

10. On August 14, 2019, Counsel for the Administrator sent Respondent a second letter stating that his response had not been received, he had a duty to comply, and that he should provide his response within seven days.

11. On August 25, 2019, Respondent provided a written response to the ARDC in which he stated he had had two telephone calls with McBride and that he had responded to correspondence from McBride.

12. Respondent’s statements in his August 25, 2019 response were false, because he had not had two telephone calls with McBride and he had not responded to McBride’s correspondence.

13. Respondent knew at the time he provided the August 25, 2019 response in paragraph 12 that the response was false.

14. On February 14, 2019, Respondent appeared for a sworn statement in the ARDC’s Springfield office. Prior to the commencement of the sworn statement, Respondent provided Counsel for the Administrator with 15 letters and represented that the letters were the correspondence he had mailed to McBride.

15. Respondent’s representation that he had mailed the 15 letters to McBride was false, because he did not mail the letters to McBride and created them at a later date.

16. Respondent knew at the time he provided the 15 letters to Counsel for the Administrator that they were false.

17. Respondent generated the letters described in order to mislead the Administrator.

18. During his February 14, 2019 sworn statement, Respondent stated that he provided 15 letters to Counsel for the Administrator which represented his correspondence he had sent to McBride.

19. Respondent’s representation during his sworn statement that he had corresponded with McBride in 15 letters was false, because he had not sent the letters to McBride.

20. Respondent knew at the time he made the statement in paragraph 18 that it was false.

21. During his sworn statement, Respondent also stated “I can’t speak to why he [McBride] wasn’t getting the letters. I mailed them to him.”

22. Respondent’s statement in paragraph 21 that he had mailed the letters to McBride was false, because he generated the letters at a later date to mislead the Administrator.

23. Respondent knew at the time he made the statement in paragraph 21 that it was false.

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

1, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010), by conduct including knowingly making the false statements described in paragraphs 11, 14, 18, and 21 and by creating and presenting 15 letters to Counsel for the Administrator which Respondent falsely represented that he had sent to McBride.”

Comment: I have not included the lawyer’s name because these charges have not been proven or admitted. The obvious point here is that if you make a mistake you should tell the truth and own up to it and accept the consequences. Creating false paperwork is only going to make the result worse than it otherwise would have been. Should you have a question concerning an ARDC inquiry, do not hesitate to contact me. I am always available to take calls from lawyers who have questions about the ARDC process.

Ed Clinton, Jr.

http://www.clintonlaw.net

ARDC Claims That Lawyer Created Websites To Make False Statements About A Judge

Note: this is a complaint filed by the ARDC. The allegations are not proven. There has been no trial and no opportunity to defend the case. The ARDC obtained the factual basis for its allegations from, presumably, a subpoena to Godaddy, an internet provider. The ARDC also placed the lawyer under oath so that the lawyer was required to answer the questions. (Because this is a complaint, I have not included the respondent’s name in this post.)

The Complaint’s main allegations are quoted below:

1. On or about September 11, 2018, Respondent purchased the domain name “firetheliarjudge.com” from GoDaddy, and used GoDaddy to create a website for “firetheliarjudge.com”.

2. Respondent created the firetheliarjudge.com website as part of an anti-retention campaign against Judge Andrew Gleeson, the Chief Judge of the 20th Judicial Circuit, who was running for retention in the November 6, 2018 general election.

3. Respondent linked the firetheliarjudge.com website to a Facebook page entitled “Madeline M. Dinmont”. Madeline M. Dinmont was a fictitious name created and used by Respondent.

4. In or around October 2018, Lori Friess (“Friess”) organized an anti-retention campaign against another judge in the 20th Judicial Circuit, Judge Zina Cruse. Friess called the campaign “Justice For Kane”, in recognition of her two year-old grandson, Kane Friess-Wiley, who had been killed in April 2017. Friess’ daughter’s former boyfriend, Gyasi Campbell (“Campbell”), had been charged with Kane’s murder. On April 2, 2018, Judge Cruse reduced Campbell’s bond from $1 million to $150,000 which allowed Campbell to post bond and be released from custody pending trial.

5. On or around October 4, 2018, Respondent posted the following entry on the firetheliarjudge.com website:

A FAILURE TO VOTE IS A YES VOTE ON RETENTION!

Kane’s founder has a vendetta against a judge who followed the law.

Why Judge Gleeson Must Go!

Judge Zina Cruse is a female African American Judge from East St. Louis. The Justice For Kane anti-retention campaign is the brain child of Gleeson & others to run a female minority judge off the bench in order to preserve their white male privilege.

6. Respondent’s statements described above, that the Justice For Kane anti-retention campaign was the “brain child” of Judge Gleeson and others and Judge Gleeson wanted to run a female minority judge off the bench to preserve his white male privilege was false because Judge Gleeson had no involvement in the Justice For Kane group or any group or effort seeking to remove Judge Cruse from the bench.

7. Respondent knew her statements described in paragraph 5, above, were false at the time she made them and posted them to the firetheliarjudge.com website or she made them with reckless disregard as to their truth or falsity.

8. On or about October 4, 2018, Respondent posted the following entry on the firetheliarjudge.com website:

JFK [Justice For Kane] is a WHITE SUPREMACIST GROUP!

JKF is a front for a WHITE SUPREMACIST GROUP called the National Association for Majority Equality which Judge Gleeson supports. That is why they are targeting judges of color and that is why their members ares [sic] exclusively white.

9. Respondent’s statement that Judge Gleeson supports a white supremacist group called the National Association for Majority Equality (“NAME”) was false because Judge Gleeson did not support or have any involvement with NAME or any white supremacist group or with the Justice For Kane campaign.

10. Respondent knew her statement described in paragraph 8, above, was false at the time she made it or she made it with reckless disregard as to its truth or falsity.

11. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. making statements the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer by making the statements set forth in paragraphs 5 and 8, above, in violation of Rule 8.2(a) of the Illinois Rules of Professional Conduct (2010).

COUNT II
(False and or reckless statements about the qualifications or integrity of a judge
on Facebook page entitled “Madeline M. Dinmont”)

The Administrator realleges and incorporates paragraphs 1 through 10, of Count I above.

12. On or before September 14, 2015, Respondent created a Facebook page entitled “Madeline M. Dinmont” (“Dinmont page”). Respondent used the fictious name Madeline Dinmont in her interactions with GoDaddy concerning the firetheliarjudge.com website.

13. On or about October 5, 2018, Respondent posted the following entry on the Dinmont page:

Gleeson is part of the St. Clair County Secret Order of the
 Hibernians. That’s why he uses the Irish clover. Wanna [sic]
 guess how many of its members are persons of color? None.
Wanna [sic] see Gleeson in his “chief” regalia?

Respondent then posted a photograph of a Klu Klux Klansman dressed in a white robe and hood with the name tag “Gleeson” pinned to his chest over an Irish clover. The picture also depicted a noose and a confederate flag and was captioned “Vote No Retention!” (see Exhibit 1 attached)

14. Respondent’s posts described in paragraph 13, above, were false because Judge Gleeson was not a member or part of a “secret order of the Hibernians”, he was not a member of the Klu Klux Klan, and the person depicted by Respondent on the Dinmont page was not Judge Gleeson.

15. Respondent knew her postings described in paragraph 13, above, were false at the time she made them or she made them with reckless disregard as to their truth or falsity.

16. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. making statements the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer by making the statements set forth in paragraph 13, above, in violation of Rule 8.2(a) of the Illinois Rules of Professional Conduct (2010).

COUNT III
(False statements to the Administrator)

The Administrator realleges and incorporates paragraphs 1 through 15, of Counts I and II above.

17. On July 2, 2019, Respondent appeared at the Springfield ARDC office to provide sworn testimony related to matters described in this complaint.

18. During the sworn statement, Respondent was asked the following questions and gave the following answers:

Q: Okay. What do you know about the website firetheliarjudge.com?

A: It was a website set up for the anti-retention campaign

Q: And who set it up?

A: I don’t know.

Q: What role did you have in creating either the website or the domain name?

A: I was asked how you go about setting up a domain name and I suggested that they go through GoDaddy.

Q: When you say you were asked, who asked you?

A: Judge Duebbert.

Q: Okay. So did Judge Duebbert set up this website firetheliarjudge.com?

A: I don’t know if he did it or if he had somebody else do it.

Q: You had no involvement in setting up the site?

A: No, and I didn’t manage it either.

Q: Have you ever posted anything to the site firetheliarjudge.com?

A: No.

19. Respondent’s statement above that she did not know who set up the firetheliarjudge.com website was false because Respondent set up and paid for the website through GoDaddy.

20. Respondent’s statement above that she did not manage the website was false because she managed the website, she linked it to the Dinmont page and she linked it to another website she created entitled “firejudgegleeson.com”.

21. Respondent’s statement above that she never posted anything on the firetheliarjudge.com website was false because she made posts on the website, including the conduct described in Counts I and II in this complaint.

22. Respondent knew that her statements described in paragraphs 19 through 21, above, were false at the time she made them.

23. During the sworn statement on July 2, 2019, Respondent was asked the following questions and gave the following answers:

Q: Okay. So my question is with regard to these entries on firetheliarjudge.com, did you have anything to do with creating, making, or responding to these entries?

A: No. I tried to help them set it up and then it was taken over by somebody who was a non-lawyer.

Q: Okay. And when you said you tried to help them set it up, who are you talking about?

A: Well, the people that were involved in the anti-retention campaign by telling them you can go to GoDaddy and they have templates, that kind of thing.

Q: Okay. And who was that? Who specifically are you talking about?

A: It was Judge Duebbert and his web person.

Q: Who was that?

A: I don’t know. I don’t even know when this was set up.

Q: Were you the domain – did you own the domain name firetheliarjudge.com?

A: No.

Q: Did you set it up?

A: No, but I tried to help them set it up.

Q: Well, specifically what does that mean?

A: To get into GoDaddy and set up an account.

Q: But you didn’t set up the account at GoDaddy?

A: No, nor did I have control over it.

Q: Do you know what e-mail address they used when they set up the firetheliarjudge.com?

A: I don’t.

Q: Do you know if they used Madeline Dinmont’s e-mail address?

A: I don’t know.

24. Respondent’s statement above that she had no role in creating, making or responding to entries on the website firetheliarjudge.com was false because she did create the website and she did make various postings to the website as described in Counts I and II above.

25. Respondent’s statements above that she did not know when the website firetheliarjudge.com was set up and that she did not own the domain name “firetheliarjudge.com” were false because she set up and paid for the domain name and website firetheliarjudge.com through GoDaddy on or about September 11, 2018.

26. Respondent’s statements above that she did not set up or “have control” over the firetheliarjudge.com website were false because Respondent set up and controlled the domain name and website using her GoDaddy account.

27. Respondent knew that her statements described in paragraphs 24 through 26, above, were false at the time she made them.

28. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. knowingly making a false statement of material fact in connection with a disciplinary matter by making the false statements described in paragraphs 19 through 21 and 24 through 26, above, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010); and
  2. conduct involving dishonesty, fraud, deceit, or misrepresentation by making the false statements described in paragraphs 19 through 21 and 24 through 26, above, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

COUNT IV
(False or reckless statements about the qualifications or integrity of a judge – GoDaddy)

The Administrator realleges and incorporates paragraphs 1 through 27, of Counts I, II and III above.

29. On September 17, 2018, Respondent contacted GoDaddy customer service concerning the website firetheliarjudge.com. Respondent identified herself to the operator as Madeline Dinmont. Respondent also identified herself as the administrator of the website firetheliarjudge.com.

30. During the telephone conversation, Respondent told the operator that she wanted to pay for the firetheliarjudge.com website through PayPal on a “month to month” basis because she would not need the site to be operational after the November 5, 2018 general election.

31. During the telephone conversation, the following exchange occurred:

Operator: That’s why you want to go month to month?

Respondent: Yeah.

Operator: Makes sense,

Respondent: Because the election will be over the 5th.

Operator: Yeah. And you hope these people read it and do the right thing, right?

Respondent: If only you knew.

Operator: I was glancing through the website, so I hear you.

Respondent: No. I mean, it’s not a very nice person [Judge Gleeson]. And he’s done a lot of things to hurt a lot of people. So that’s part of the reason that we’re getting all the crank calls.

Operator: That’s too bad.

Respondent: You know, this part of the United States, politics is a blood sport.

Operator: True.

Respondent: I mean, I will tell you how evil it is. They’ve attempted to set up another judge of a different political party for murder if that tells you anything.

Operator: Wow.

Respondent: And this is the guy who orchestrated it.

Operator: That’s crazy.

Respondent: So we had the Department of Justice in here. No, I’m not kidding you.

Operator: You wonder how people like that stay elected.

Respondent: Well, that’s what we’re working on. And frankly, I’ve never practiced law in a jurisdiction where it was like this.

32. Respondent’s statements in paragraph 31, above, that Judge Gleeson “orchestrated” an attempt to set up another judge for murder were false because Judge Gleeson never engaged in the conduct which Respondent described to the operator.

33. Respondent knew her statements in paragraph 31, above, were false or she made them in reckless disregard of their truth or falsity.

34. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

making statements the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer by making the statements set forth in paragraph 31, above, in violation of Rule 8.2(a) of the Illinois Rules of Professional Conduct (2010).

ARDC Hearing Board Recommends Disbarment for Former Governor

The case captioned In re Rod R. Blagojevich, 19 PR 00061, the ARDC Hearing Board recommended disbarment for the former governor. He was placed on interim suspension in 2011, but his disciplinary case was not completed until his prison sentence was commuted by President Trump. The Hearing Board, in a brief opinion, explained why disbarment was appropriate:

The hearing in this matter was held on February 25, 2020, at the Chicago offices of the Attorney Registration and Disciplinary Commission, before a Hearing Board Panel consisting of Carl (Carlo) E. Poli, Chair, Jennifer W. Russell, and Jim Hofner. Respondent was not present. Sheldon M. Sorosky appeared on Respondent’s behalf. Christopher R. Heredia and Jonathan M. Wier appeared on behalf of the Administrator and recommended that Respondent be disbarred.

We have considered the following: the Administrator’s one-count Complaint, a copy of which is attached as Exhibit 1; the Order entered on September 10, 2019, deeming the allegations of the Complaint admitted, a copy of which is attached as Exhibit 2; and the Administrator’s Exhibits 1-6, which were admitted into evidence.

Respondent, the former Governor of the State of Illinois, was convicted of committing numerous crimes while he was in office. Those crimes included wire fraud, attempt to commit extortion, corrupt solicitation, conspiracy to commit extortion, conspiracy to commit corrupt solicitation, and making false statements to the Federal Bureau of Investigation, in violation of Title 18, U.S.C. secs. 371, 666(a)(1)(B), 1001(a)(2), 1343, 1346, and 1951(a). Respondent’s convictions of these crimes were upheld by the United States Court of Appeals for the Seventh Circuit. The Supreme Court of the United States denied Respondent’s petitions for writ of certiorari. On October 26, 2011, the Illinois Supreme Court placed Respondent on interim suspension, which is still in effect.

Respondent was represented by counsel throughout this proceeding but elected not to file an answer, comply with discovery requests, appear for deposition, or appear at the hearing in this matter. While he was incarcerated, Respondent’s appearance at the hearing had been waived. The Panel takes judicial notice, however, that Respondent’s sentence was commuted and he was released from prison on February 18, 2020. Therefore, it was possible for Respondent to appear for his disciplinary hearing.

There are numerous factors that aggravate Respondent’s misconduct. As a former Assistant State’s Attorney and elected official, Respondent was well aware of his obligation to uphold the law, and, as governor, he took an oath to faithfully discharge the duties of the office of governor to the best of his ability. Instead of doing so, he sought to further his own interests by engaging in a pattern of dishonest and deceptive conduct. While Respondent, by his attorney, acknowledged the fact of his convictions, he has not acknowledged that his conduct was wrongful or expressed any remorse. His failure to appear for his disciplinary hearing demonstrates a lack of respect for the disciplinary process and the legal profession. We have considered that Respondent has no prior discipline, but this minimal mitigation does not impact our recommendation.

The following cases cited by the Administrator support the recommendation of disbarment: In re Pappas, 92 Ill. 2d 243 (1982); In re Rosenthal, 73 Ill. 2d 46 (1978).

Based on Respondent’s egregious misconduct, the substantial amount of aggravation, the case law presented by the Administrator, and the lack of case law or any mitigation evidence  presented by Respondent, we conclude that a recommendation of disbarment is warranted.

Accordingly,

  1. “Respondent’s counsel accepted electronic service of the Complaint and accompanying documents. A copy of the Entry of Appearance and Acceptance of Service Pursuant to Rule 214(d) filed on August 8, 2019 is attached as Exhibit 3.
  2. The allegations of the Complaint were deemed admitted in an Order filed on September 10, 2019. A copy of that Order is attached as Exhibit 2.
  3. In consideration of the Order deeming the allegations of the Complaint admitted, we find Respondent committed the misconduct charged in the Complaint.
  4. Given Respondent’s serious misconduct, the significant aggravation, and the case law cited by the Administrator, we recommend that Respondent, Rod R. Blagojevich, be disbarred.
  5. The Panel has concluded that this report format will adequately and appropriately communicate its recommendation to the Court.”

ARDC Accuses Lawyer of Double-Billing

Tbe ARDC has filed a complaint against a lawyer accusing him of double billing clients. Because these allegations are unproven, I won’t share his name in this post.

1. Respondent was employed at the Chicago law firm of Vedder Price, P.C., from 2005 (when he was hired to work as a summer associate) through October 2, 2019 (when his employment was terminated as a result of the events described in this complaint). During his time at the firm, Respondent was involved in the representation of a financial institution (“the client”) in various finance and leasing matters involving other companies. The client’s agreements with its lessees allowed for the firm’s fees for services it provided the client to be billed to the lessees (i.e., the client’s customers) under certain circumstances.

2. In 2009, the firm performed services for a separate client (a construction company) in connection with a contract dispute. The firm assigned that matter an internal number that it used for billing purposes, and Respondent was aware of that number because he was the billing attorney responsible for the matter. That billing number became dormant in 2011, about two years after the firm’s involvement in the contract dispute ended.

3. Prior to January 17, 2018, attorneys and others at the firm performed services having a value of $23,782.50 for the client in connection with the novation of a lease from one lessee to another lessee (an affiliate of the original lessee). Around that time, Respondent instructed the firm’s accounting department to reactivate the formerly dormant billing number associated with the matter referred to in paragraph two, above, and he fabricated a billing invoice addressed to the client’s customer that asked the customer to pay the firm $23,782.50. Respondent later caused that fabricated invoice to be sent to the client’s customer, which paid the full amount listed in the invoice to the firm.

4. When the firm received the $23,782.50 payment in response to the fabricated invoice, Respondent directed the firm’s accounting department apply that payment as a credit to the formerly dormant billing account, which he controlled.

5. Respondent also caused the client to be billed separately for the legal services the firm provided in connection with the novation of the lease, using the client’s actual billing number. When the firm received payment from the client, it applied that payment to the client’s account. 

6. Between January 31, 2018 and September 27, 2019, Respondent fabricated an additional eight invoices to the client’s customers, each of which used the formerly dormant billing account number rather than the client’s actual billing number. At least some of those invoices asked that payment be sent to Respondent’s home rather than to the firm. As payments totaling $108,674 were received in connection with those invoices, Respondent caused those amounts to be transferred to the dormant account that he controlled. At the same time, Respondent continued to bill the client for the same legal services, and to apply any payments resulting from those invoices to the client’s account.

7. Respondent did not tell anyone associated with the client or with the firm about the fact that he was billing both the client and its customers for certain legal services, or that he was using a formerly dormant billing number to receive payments resulting from the fabricated invoices.

8. In 2018 and 2019, Respondent caused business and personal expenses that he incurred (including golf fees, dining and travel expenses) to be charged against the formerly dormant account, and requested and received payment of at least $79,790.43 from that account. Respondent knew that neither the firm nor the client were aware that he was charging those expenses to the formerly dormant account, and that neither the firm nor the client had authorized him to use those funds or that account to pay for his business and personal expenses. Respondent’s receipt and use of those funds constitutes conversion.

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

  1. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including fabricating invoices using a dormant billing number, double-billing for the same services, and converting payments from the fabricated invoices, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of facts and law, and a recommendation for such discipline as is warranted.

Comment: If proven, this is an almost-certain disbarment.

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.

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

South Carolina Suspends Criminal Lawyer For Six Months For Instructing Client’s Friend To Move Evidence

A South Carolina criminal defense attorney was suspended for six months by the South Caroline Supreme Court for making an unlawful (immoral) communication to her client’s girlfriend. Essentially, the lawyer instructed the client’s girlfriend to move certain United States currency to another location. The opinion describes the facts in this way:

On February 27, 2019, Respondent entered a plea of no contest to the charge of unlawful communication in violation of S.C. Code Ann. § 16-17-430(A)(1) (2015). The facts of the plea indicated that, on December 13, 2017, Respondent willfully and unlawfully conveyed “an immoral message while in a telephonic communication with an individual.” Specifically, while meeting with one of her criminal clients who was in custody related to a narcotics trafficking case, Respondent instructed the client’s girlfriend to remove United States currency and paperwork from the bathroom of the client’s home and take the currency and paperwork to an associate of the client. Respondent was sentenced to one day in jail with credit for one day served.

In the matter of Melisa White Gay, No. 27899, South Carolina Supreme Court (July 3, 2019).

The unlawful communication encouraged a friend of a criminal defendant to move evidence. No doubt the police correctly believed that the lawyer was doing more than just legal work.

The general principle to remember is that the lawyer is an advocate – not a coach who tells a client to hide evidence. Lawyers should not be giving clients “advice” of this sort. Indeed, telling the client to move something may constitute obstruction of justice.

Edward X. Clinton, Jr.

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

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

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

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

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

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

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

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

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

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

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

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

lack of care”).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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