North Carolina Disbars Attorney For Refusing To Produce Documents To Disciplinary Counsel

In North Carolina State Bar v. Phillips, No. COA19-1093, the Court of Appeals of North Carolina affirmed a decision of the trial court to disbar an attorney who failed to comply with court orders requiring him to produce documents concerning his out-of-state clients.

The facts:

Respondent was licensed to practice law in North Carolina, but he advertised himself as available to provide legal services in any state. In January 2017, the North Carolina State Bar (the “State Bar”) Grievance Committee issued Respondent a Letter of Warning for, among other things, engaging in conduct constituting the unauthorized practice of law in another jurisdiction in violation of Rule 5.5 of the Rules of Professional Conduct. Respondent accepted the Letter of Warning.

In May 2017, the State Bar received a new allegation that Respondent was continuing to offer to provide legal services in other jurisdictions. The State Bar sent Respondent a Letter of Notice requiring his response to the allegations. The Letter of Notice requested information about out-of-state clients Respondent represented from 2012 to present. Respondent submitted a response to the Letter of Notice; however, he did not include information about his out-of-state clients. The State Bar modified its request to limit any identifying information from the requested information about out-of-state clients. Respondent submitted another response but still did not provide the requested information.

The Chair of the Grievance Committee issued a subpoena for the requested information, and Respondent moved to quash the subpoena. The President of the State Bar granted Respondent’s motion in part and denied it in part. The Chair of the Grievance Committee then issued a new subpoena to produce the requested information from Respondent modified to be consistent with the President’s order. Respondent moved to quash the second subpoena. A successor President of the State Bar denied Respondent’s motion and ordered him to comply by 16 February 2019.

The State Bar filed a petition on 17 May 2018 in Superior Court, Wake County to enforce the subpoena. The State Bar served Respondent with discovery requests. Respondent objected to the discovery requests and moved for a protective order. Respondent argued that because he had filed grievances against various State Bar counselors and employees after the grievance file was opened, the State Bar had a conflict of interest requiring it to engage outside counsel to investigate him or ask the court to enforce the subpoena. Accordingly, Respondent filed a separate “Motion in the Cause” seeking to require the State Bar to engage outside counsel.

The State Bar moved to compel Respondent to respond to its discovery requests. At a hearing on 5 February 2019, Respondent reiterated his claim that the State Bar had a conflict of interest and was required to engage in outside counsel. The trial court dismissed Respondent’s argument and ordered him to comply with the discovery requests. Throughout this process, the trial court found Respondent in contempt four times for defying its orders compelling him to provide discovery responses. The trial court found that Respondent’s refusal to comply with its orders warranted discipline and disbarred him.

Respondent appeals the following orders: the 12 February 2019 order granting the State Bar’s motion to compel and denying Respondent’s motion for Rule 26(c) protective order, motion to waive Local Rule 5.4, and motion in the cause; the 30 April 2019 order allowing Respondent to amend his pleadings and denying Respondent’s motion to stay pending appeal, motion for judgment on the pleadings, and motion for declaratory judgment; the 30 April 2019 order granting the State Bar’s motion to hold Respondent in civil contempt and denying Respondent’s motion to continue; the 15 May 2019 order granting the State Bar’s motion to hold Respondent in civil contempt; the 31 May 2019 order granting the State Bar’s motion to hold Respondent in civil contempt; and the 31 July 2019 order granting the State Bar’s motion to hold Respondent in civil contempt and the order for disbarment.

The trial court may impose discipline in a matter pending before the court. In re Burton, 257 N.C. 534, 543-44, 126 S.E.2d 581, 588 (1962). Court-imposed discipline is not limited to violations of the Rules of Professional Conduct. Id. “A proceeding against an attorney for alleged dishonest or unethical conduct may result in disbarment.” Id. Respondent has failed to cite a specific finding of fact or conclusion of law that is alleged error. Moreover, Respondent also presented no evidence concerning the discipline that should have been imposed. Indeed, Respondent repeatedly failed to comply with the court’s orders and has failed to show that the disbarment was not the result of a reasoned decision. Accordingly, the trial court did not err.

North Carolina has different procedures than Illinois, but the principle is the same: you must comply with a lawful order to produce documents in a disciplinary case.

Ed Clinton, Jr.

Kentucky Disbars Attorney Who Practiced While Suspended

Kentucky Bar Association v. Thomas Steven Poteat, 2020 – SC – 00227 – KB (September 24, 2020). A lawyer was suspended for failing to complete continuing legal education requirements. The opinion summarizes the facts as follows:

Poteat was suspended from the practice of law on January 23, 2014, for failure to comply with Continuing Legal Education (CLE) requirements. He has not since been restored to practice. The Notice of Suspension required Poteat to “notify all Courts in which he … has matters pending, and all clients for whom he … is actively involved in litigation and similar matters, of his … inability to continue representation and of the necessity and urgency of promptly retaining new counsel.”

Nevertheless, Poteat continued to represent John Ford in Ohio Circuit Court, 10-CI-00530, in a property dispute. Poteat failed to inform Mr. Ford he was suspended and was unable to continue representation.

As part of that representation, Poteat and opposing counsel discussed entering into an agreed order to determine the property ownership. Poteat represented to his client, Mr. Ford, the agreement would determine the property ownership in his favor, and Mr. Ford consented to the agreement. Poteat signed the agreed order on behalf of Mr. Ford in December 2014, and the circuit court entered it on January 26, 2015. The agreed order referenced a survey dated September 2, 2004, which was previously entered into the record, and provided, “[t]he Counterclaim of Defendant, John B. Ford, including all claims contained therein that assert any ownership rights with respect to any of the property owned by Plaintiffs, as described in the above-referenced survey, is dismissed with prejudice.”

Poteat sent a letter dated April 23, 2015, to the KBA requesting to be restored to active status.

Approximately two years after the Ohio Circuit Court entered the agreed order, Poteat’s client, Mr. Ford, learned that the survey referenced in the agreed order was not what Poteat represented to him, and the property ownership was decided to Mr. Ford’s detriment. Mr. Ford contacted Poteat, who explained he believed the agreed order referenced a different survey that was to Mr. Ford’s benefit and said he would take care of it. Poteat took no further action.

Mr. Ford then consulted another attorney, Cheryl Spalding, who first informed Mr. Ford of Poteat’s suspension. On February 15, 2017, Spalding filed a motion to set aside the agreed order. On May 2, 2017, as part of that proceeding, Poteat testified he was not aware he was suspended when he signed the agreed order.

The Ohio Circuit Court entered an order on September 29, 2017, denying the motion to set aside the agreed order, and Spalding filed a notice of appeal on October 27, 2017. On April 12, 2019, the Court of Appeals affirmed the Ohio Circuit Court’s order denying the motion to set aside the agreed order.

The Inquiry Commission filed a five-count Charge against Poteat on November 14, 2019. The Charge asserted violations of:

SCR 3.130(1.4)(a)(5): “A lawyer shall: … (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.”

SCR 3.130(5.5)(a): “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”

SCR 3.130(8.4)(c): “It is professional misconduct for a lawyer to: … (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

SCR 3.130(3.4)(c): “A lawyer shall not: … (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”

SCR 3.130(8.1)(b): [A] lawyer in connection … with a disciplinary matter, shall not: … knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.”

Poteat was personally served with the Charge on December 10, 2019. He did not file an answer or respond otherwise. After due deliberation, the Board of Governors voted to find Poteat guilty of violating the five Supreme Court Rules as charged, the vote being 18-0 for each count.

After making the preceding findings and considering Poteat’s disciplinary record, seven known applicable aggravating factors, and no known applicable mitigating factors, fourteen (14) Board members voted in favor of permanent disbarment and payment of costs in this action and four (4) Board members voted in favor of a five-year suspension and payment of costs in this action.

The Kentucky Supreme Court accepted the recommendation.

ARDC Review Board Recommends 30 Day Suspension for MCLE Noncompliance

An Illinois attorney, who was employed as an assistant state’s attorney, failed to complete his MCLE certification (continuing legal education) and was stricken from the master roll of attorneys. This unfortunate lapse netted him an additional 30 day suspension. The ARDC Review Board recommended a 30 day suspension, which was one-half the suspension recommended by the Hearing Board.

The facts as recounted by the Panel are:

Once Respondent became licensed to practice law in November 2015, Illinois Supreme Court Rule 793 required him to complete 15 hours of MCLE credit, including six hours of a basic skills course or an approved mentoring program, by November 30, 2016, and to report his completion of those requirements to the MCLE Board by December 31, 2016.

In September 2016, the MCLE Board mailed an initial notice of the applicable MCLE requirements to Respondent at the residence address then on file with the ARDC. Respondent, who had moved in August 2016, did not recall if he received that notice.

On December 6, 2016, Respondent updated his contact information with the ARDC and gave the McLean County State’s Attorney’s Office address as his business address. Subsequent MCLE and ARDC communications were sent to that address.

On December 22, 2016, the MCLE Board sent Respondent an email reminding him of his December 31 reporting deadline. Respondent received that email. He did not report compliance by December 31. Thus, on January 6, 2017, the MCLE Board sent Respondent a notice of noncompliance, which informed him that he had until March 2, 2017 to complete the required MCLE credits, report completion, and pay a $250 late fee, or his name would be removed from the master roll.

Respondent received that notice sometime during the second week of January. Around the end of January, he called the MCLE Board and left a voicemail message. A Board employee, Susan Doran, called him back on the next business day, January 30, and left a message. He replied on February 6, and spoke with Doran and another Board employee, Kevin Leonard.

Doran and Leonard testified at Respondent’s hearing that, in their conversations with Respondent, he addressed only the late fee and did not raise any issues about the sufficiency of his credits. Leonard also testified that he told Respondent that Respondent had not reported compliance. MCLE Board Director Karen Litscher Johnson also testified that attorneys must report compliance online and cannot report by telephone. Respondent acknowledged that he did not report compliance using the online system, but he further testified that someone at the Board, whom he believed was Leonard, told him by phone that he was in compliance and only needed to work on getting the fee waived. The Hearing Board found his testimony not credible.

On February 27, the MCLE Board’s manager of attorney compliance and outreach, Christina Pusemp, telephoned Respondent and left a message. He did not return her call.

Respondent testified that he used the Board’s online portal to submit a fee waiver request prior to March 2. The Board did not receive a written fee waiver request or supporting documentation from Respondent. Respondent sent an email to the Board regarding a fee waiver on March 10, but the Board did not receive the email because Respondent used an incorrect email address.

As of March 2, 2017, Respondent had not reported compliance. Thus, on March 3, the MCLE Board notified the ARDC that Respondent had not complied with the MCLE requirements. On March 16, the ARDC Registrar’s Office sent Respondent a notice of impending removal, stating that he would be removed from the master roll if he did not bring himself into compliance by April 14.

Respondent testified that he called the Board in late March 2017, spoke with someone named “Dee, ” and was told that his email had been received, that he was “good,” and that “no news is good news.” (Hearing Bd. Report at 7.) He therefore assumed the matter had been resolved.

As of April 19, Respondent still had not reported compliance to the MCLE Board, and consequently was removed from the master roll on that date. The ARDC sent him a removal notice informing him of that fact. He testified that he did not receive the notices of impending removal or removal.

Between April 19 and November 21, 2017, Respondent routinely appeared in court on behalf of the State. He estimated that he appeared as an assistant state’s attorney in approximately 300 cases during that time. He therefore practiced law for a seven-month period when he was not authorized to do so.

On November 21, 2017, the McLean County State’s Attorney told Respondent that he had learned that Respondent was not authorized to practice law in Illinois. On November 22, Respondent called the MCLE Board and spoke with an employee who suggested that he speak with Pusemp, who was away for the Thanksgiving holiday. On November 27, Respondent spoke with Pusemp and sent her the March 10, 2017 email and his CLE certificates. She noted that the email had been sent to an incorrect email address and that Respondent had not satisfied his MCLE requirements because he had not taken the Basic Skills Course.

That night, he completed an online Basic Skills Course and submitted information to the MCLE Board to support his request for a fee waiver. The Board approved the request and Respondent was reinstated to the master roll on November 29, 2017. That same day, the McLean County State’s Attorney terminated his employment.

The Hearing Board found that the attorney violated Rule 5.5(a) and engaged in the unauthorized practice of law. The Review Board affirmed that finding. The panel explained in part:

Three factors support a short suspension rather than censure in this matter. First, the goals of discipline include maintaining the integrity of the profession and safeguarding the administration of justice from reproach. The Hearing Board noted that it was “particularly mindful of these concerns here, given the nature of Respondent’s employment” as an assistant state’s attorney. (Hearing Bd. Report at 10.) It stated that “[t]he fact that an Assistant State’s Attorney would practice law while not authorized to do so, especially over time, carries a particular risk of diminishing the public’s perception of the integrity of the legal system.” (Id.) We agree with its reasoning.

Second, the Hearing Board was clearly disturbed by Respondent’s failure to recognize his wrongdoing, noting that he still does not understand his professional obligations. The extent to which a respondent realizes the seriousness of his misconduct is a factual determination to which this Board gives great deference. In re May, 93 CH 320 (Review Bd., Sept. 6, 1995), approved and confirmed, M.R. 11764 and 11457 (Dec. 1, 1995).

Third, the Hearing Board found that Respondent did not testify credibly when he claimed not to have received the impending-removal notice. Moreover, Respondent’s testimony as to his March 2017 phone call with “Dee” could be viewed as a complete fabrication. An attorney’s false testimony at his or her disciplinary hearing may be considered in aggravation. See In re Vavrik, 117 Ill. 2d 408, 415-16, 512 N.E.2d 1226 (1987); In re Stillo, 68 Ill. 2d 49, 55, 368 N.E.2d 897 (1977).

Based on these factors, we believe a short suspension is warranted. However, we also believe that the 60-day suspension recommended by the Hearing Board is longer than necessary and is not supported by authority. Instead, we would recommend a 30-day suspension, which we believe is more commensurate with Respondent’s conduct and consistent with precedent.

Comment: this is obviously a mistake that any lawyer could have made. You get busy and you become distracted. You forget to comply with the continuing legal education requirements and then you fail to take prompt remedial measures to comply. If you make an error like this one, call a respected senior colleague and seek advice. Discipline could have been avoided here with a prompt apology and, I think, disclosure to the employer.