Lawyer Suspended One Year for Violation of Rule 4.2

A lawyer licensed in New York has been suspended for one year for sending emails to a party he knew to be represented by counsel. See In re Matter of Henry Lung, 2018-09536 (Supreme Court of New York, Appellate Division, Second Department, dated April 18, 2020). The email communications surfaced in a domestic relations matter.

Charge one alleges that the respondent, in representing a client, communicated about the subject of the representation with a party he knew to be represented by another lawyer in the matter, without consent, in violation of rule 4.2(a) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), as follows:

The respondent represented the father in a matrimonial action in Supreme Court, Queens County. The mother was represented by Morghan Richardson. On or about September 22, 2016, the parties entered into a so-ordered settlement of the matrimonial action, which included a parental access schedule regarding the parties’ minor child. Thereafter, on or about February 8, 2017, the mother filed a pro se family offense petition [*2] against the father in Family Court, Queens County, seeking, inter alia, an order of protection prohibiting him from having contact with her and with their minor child. The petition was granted and an order of protection was issued. Some of the email correspondence is quoted below:

“On May 12, 2017, Richardson emailed the respondent an offer to negotiate outstanding issues between the parties. In response, the respondent sent an email rejecting the offer. His email reply was copied to the mother, and included the following:

“Ever since the beginning of my representation of the father, I have recognized him to be the better parent, meaning the best interests of this child would be met with the child living with him, not your client, as the primary residential parent. Your client has taken enough rope, as the saying goes, and this nonsense needs to come to an end. You are continually advising her to commit acts of contempt of Court & forget about ever asking me to consider anger management.’ What really needs to happen here is your client needs to take classes on how to be a much better parent.

* * *

“But I know the truth Morghan, and the truth is that you are a liar. You lie and lie and continually pump your client’s head with total garbage just so that her parents (the real money train in all of this) continue to pay you. That is the real and only truth that matters in this entire case.”

The same day, Richardson replied and asked the respondent to refrain from contacting her further if he intended on “name-calling” and refusing to work collaboratively. The respondent replied on May 12, 2017, and copied the mother, stating:

“Your client is going to lose custody & if you doubt me, keep sending useless emails like this. The gravy train’ will end for you soon enough. Yes I absolutely do think of you as a liar insofar as you are actively advising your client to continue her current position.'”

Charge two alleges that the respondent, in representing a client, [*4] used means that had no substantial purpose other than to embarrass or harm a third person, in violation of rule 4.4(a) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), by sending emails to opposing counsel, copied to opposing counsel’s client, which criticized opposing counsel, and accused opposing counsel of engaging in professional misconduct, based upon the conduct described in charge one.

Charge three alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ), based upon the conduct described in the two charges above.

The referee (somewhat akin to a hearing officer) recommended a one year suspension.

After consideration the Appellate Division sustained the recommendation of the Referee.

The Grievance Committee moves to confirm the report of the Special Referee, and for the imposition of such discipline upon the respondent as this Court deems just and proper. The respondent, by his counsel, moves to confirm in part and to disaffirm in part the report of the Special Referee. The respondent submits that the Special Referee properly sustained the three charges of professional misconduct, and requests that this Court consider the evidence in mitigation in determining the appropriate measure of discipline to impose.

“Based on the respondent’s admissions and the evidence adduced, we find the Special Referee properly sustained the charges. The Grievance Committee’s motion to confirm the report of the Special Referee is granted, and the respondent’s motion to confirm in part and disaffirm in part the report of the Special Referee is granted to the extent that the charges are sustained and is otherwise denied.

In determining the appropriate measure of discipline, the respondent seeks leniency, and asks this Court to consider: (1) the findings of the Special Referee, who concluded that his actions, while improper, were motivated by his desire to zealously represent his client; (2) that his misconduct was isolated to this one client matter and will not be repeated; and (3) the character evidence provided on his behalf. Notwithstanding the mitigation advanced, we find that the respondent’s claims that he acted out of frustration do not justify his violations of the Rules of Professional Conduct. He repeatedly sent emails to a party he knew to be represented, sometimes sending multiple emails on the same day and at inappropriate nonbusiness hours, which emails contained disparaging information in an aggressive tone. We find the [*6] respondent did so in an effort to criticize opposing counsel, to accuse her of engaging in professional misconduct, and to try to undermine the relationship between opposing counsel and her client. Even though the respondent knew his actions were improper, and despite being put on notice by opposing counsel that his actions were improper, he continued undeterred and without regard to the Rules of Professional Conduct. We have also considered as an aggravating factor the respondent’s extensive disciplinary history, which includes a public censure from this Court (Matter of Lung112 AD3d 148 ), four Admonitions, and two Letters of Caution.

Under the totality of the circumstances, we find that the respondent’s conduct warrants his suspension from the practice of law for a period of one year.”

Comment: Rule 4.2 prohibits this type of conduct. In this case, the sanction was more severe than typical because the lawyer used the emails to criticize his opposing counsel. The fact that he copied opposing counsel on the emails was not a mitigating factor.

Ed Clinton, Jr.

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

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

California Bar Seeks to Place Michael Avenatti on Inactive Status

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

Oklahoma Imposes 90-day suspension for forging client’s name on settlement agreement.

A lawyer in Oklahoma forged his client’s signature on a settlement agreement and had that signature notarized. The Oklahoma Supreme Court described the misconduct as follows:

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

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

The Court also found that the respondent had mishandled settlement funds by depositing them in his operating account. (The client was made whole by the lawyer). The court also noted that the lawyer did a good job handling the case and obtained a substantial settlement for the client. Forging a client’s name on a document is usually cause for discipline. For further information please consult our website. https://www.clintonlaw.net/legal-ethics.html

The case is Oklahoma Bar Association v. Shad Withers, 2019 OK 47

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

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