Suspended Lawyer of the Month for February 2011
What do you do when a lawyer who has previously been suspended from the practice of law ignores the suspension and continues working as a lawyer?
That's just one of the questions that is raised by the disciplinary history of California lawyer Walter James Roberts IV.
Here, in its entirety, is the State Bar of California's summary of the one-year suspension that was imposed in May 2010 on Mr. Roberts:
WALTER JAMES ROBERTS IV [#225339], 47, of Rancho Cucamonga was suspended for two years, stayed, placed on three years of probation with a one-year actual suspension and he was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. The order took effect May 2, 2010.
Roberts stipulated that while suspended in 2005 and 2007 he practiced law. He also disobeyed a court order and by failing to disclose his status to his clients, he committed acts of moral turpitude.
He did not comply with probation conditions attached to previous disciplinary orders, including a requirement that he develop a law office management plan, submit quarterly probation reports on time and keep his address current with the State Bar. He also submitted quarterly probation reports that contained misstatements.
In mitigation, Roberts cooperated with the bar’s investigation.
The State Bar's conduct in this case is more perplexing than Mr. Roberts. It's not hard to understand why a suspended lawyer might resist telling clients that they have been suspended. But why would you suspend someone who ignored two prior suspensions and submitted probation reports that contained misstatements? It's also a bit ironic that someone who has at best undermined the effectiveness of prior discipline seems in this instance to be credited for cooperating with the Bar's investigation.
Given that Mr. Roberts didn't submit quarterly reports on time, you would think that this would be fairly obvious within a few days of the deadline. I certainly hope that the State Bar will be especially vigilant in monitoring Mr. Robert's compliance with his current suspension.
Suspended Lawyer of the Month December 2010
Sometimes a suspended lawyer hasn't actually been suspended. This month's award-winner is one of the few attorneys who have successfully appealled a decision suspending them from the practice of law. It's still not clear what will happen to Mustafa Engin Derkunt of Austin, Texas. But his murky path through the disciplinary process in the Lone Star state shows how difficult it can be in some states to determine what a lawyer accused of misconduct did or did not do.
Let's start with what has been revealed online. Here is the disciplinary summary that appeared in a recent issue of the Texas Bar Journal:
On August 6, 2010, the Board of Disciplinary Appeals affirmed in part and reversed in part the judgment of active suspension of Austin attorney Mustafa Engin Derkunt, 58, State Bar of Texas Card No. 00785818, signed by the Evidentiary Panel for the State Bar of Texas District 09-2 grievance committee in Case No. A0050811711 on November 26, 2009. The Board reversed that part of the judgment that concluded that Derkunt violated TDRP 7.03(d) and reversed the three years active suspension sanction along with the award of attorney’s fees and direct expenses to the State Bar of Texas. The Board affirmed the conclusions of law that Derkunt violated TDRPC 1.01(b)(1), 3.01, 5.04(a), 7.03(e) and 8.04(a)(1). The matter is remanded to the District 09 grievance committee for a new hearing on the sanctions.
Clear as mud? This is yet another example of a report that is written for other lawyers, not clients and potential clients who have a clear interest in understanding the extent to which, if any, a particular lawyer has been disciplined. So what happened to Mr. Derkunt? First, a disciplinary grievance committee held an evidentiary hearing and found that he had had violated Texas Disciplinary Rule of Professional Conduct 7.03(d). Second, the grievance committee ordered that Mr. Derkunt be suspended for three years and ordered him to pay attorney's fees to the State Bar of Texas, the folks who are prosecuting him.
Texas Rule 7.03(d) provides that "A lawyer shall not enter into an agreement for, charge for, or collect a fee for professional employment obtained in violation of Rule 7.03(a), (b), or (c)." Rule 7.03(a) regulates how lawyers can solicit business. Rule 7.03(b) specifically prohibits lawyers from paying or giving anything of value to non-lawyers for soliciting clients. Rule 7.03(c) allows lawyers to pay certain costs on behalf of clients but otherwise limits what lawyers can pay prospective clients. The basis of the grievance committee's decision does not seem to be online, but it is clear that it concluded that Mr. Derkunt violated some aspect of the rules regarding solicitation of clients. Given the three-year suspension, we can also infer that the committee concluded that the violation or violations were serious.
But as indicated above, Mr. Derkunt successfully appealled his suspension to the Texas Board of Disciplinary Appeals, which is appointed by the Texas Supreme Court. The Board concluded that as a matter of law Mr. Derkunt did not violate Rule 7.03(d). Furthermore, it reversed his suspension as well as the order that he pay attorney's fees. Seems like a complete victory for Mr. Derkunt. Not exactly. The Board found that he had violated five other Disciplinary Rules: (1) Rule 1.01(b)(1), which requires a lawyer to be competent and not neglect a matter entrusted to the lawyer; (2) Rule 3.01, which generally prohibits a lawyer from making frivolous arguments on behalf of clients; (3) Rule 5.04(a), which restricts a lawyer's ability to share fees or promise to share fees with a non-lawyer; (4) Rule 7.03(e), which limits how lawyers may receive referral fees from other lawyers; and (5) Rule 8.04(a)(1), which prohibits lawyers from knowingly violating the Texas Disciplinary Rules of Professional Conduct. Sounds serious, doesn't it? It might be. The Board returned the case to the grievance committee so that they could decide what penalties, if any, to impose on Mr. Derkunt for the rules that he did violate. It appears that the grievance committee has yet to make that determination, and if Mr Derkunt is again punished, it wouldn't be surprising if he didn't appeal that decision to the Board.
So what can we make of all of this? As a client or prospective client what should you do? There are no easy answers. At a minimum consider confronting any lawyer accused of wrongdoing and see how they respond. It may also make sense to get a copy of the court file that shows what the lawyer is specifically accused of doing. Texas, like many states, charges money to get copies of these files. The cost in Texas appears to be $15 per file. It would be far better if states just posted these documents online. Is it possible that this entire process has been and will continue to be unfair to Mr. Derkunt? Absolutely. If he escapes serious punishment, he will have a legitimate complaint that he has been screwed and that the charges against him should never have been brought. But the genie is out of the bottle. A hearing has been conducted. It's better for the public to be able to see the details of the accusations brought against any lawyer than have to read the tea leaves and decipher what may or may not have happened. Worse yet, Mr. Derkunt's online profile shows that he has no history of discipline. Thus, unless a prospective client conducted an unusually diligent search, he or she would have no idea that Mr. Derkunt had any involvement with the disciplinary authorities in Texas.
That's just not right.
Suspended Lawyer of the Month For November 2010
What is a forgivable offense? That is the question that is raised by the discipline that was imposed on this month's recipient of the Suspended Lawyer of the Month Award-Angela Deniese Robinson of Beverly Hills, CA.
First things first; I also work in Beverly Hills, but I don't believe I've ever met Ms. Robinson.
With that out of the way, let's turn to what she did. Here is the official summary of the misconduct, which appears on her profile page on the State Bar of California website:
ANGELA DENIESE ROBINSON [#154052], 49, of Beverly Hills was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect Dec. 17, 2009.
Robinson stipulated that she sought to mislead a judge by signing her clients' signatures on documents she submitted to the court.
She was hired to substitute into a paternity case and in a motion for the court, she misspelled her client's name 10 times, including two places where Robinson should have placed her signature. Instead, she signed the client's name, misspelled in both the typed version and the handwritten signature. The client fired her and hired a new lawyer. Although the declaration was inaccurate, the client was not harmed.
In mitigation, Robinson has practiced since 1991 without any discipline, she presented numerous character witnesses, and she cooperated with the bar's investigation.
Ms. Robinson's profile page also links to the actual stipulation she signed, admitting to her misconduct.
Generally speaking, it's a serious matter when a lawyer signs a document under penalty of perjury when he or she knows it's not accurate. This is not some technical violation. It's one of those rules that every lawyer knows about. In California and in other states that tend to impose relatively harsh penalties against lawyers, misleading a court is often regarded as involving moral turpitude, and is often subject to severe punishments such as lengthy suspensions or even disbarments.
At first blush, it might seem that Ms. Robinson may have gotten off easy, but after reviewing the Stipulation she signed, I believe she was punished fairly, and perhaps even too severely. The Stipulations shows that, if Ms. Robinson was trying to mislead the court, she was spectacularly bad at it. She submitted a document to the court in which she misspelled the client's name ten times. Twice she misspelled the client's name where she should have signed her own name. It's not clear why Ms. Robinson did what she did. Her actions didn't harm her client or bring her any financial gain. In fact, she ended up having to pay almost $5,000 to reimburse the Court for the costs incurred in prosecuting her.
It seems that Ms. Robinson had a very bad day, and used terrible judgment when she tried to take a short cut; she should have had her client sign the document, as required by law. But it is hard to come to the conclusion that this conduct was anything other an aberration for Ms. Robinson. The prosecutors concluded that Ms. Robinson didn't do anything involving moral turpitude. She is a good example why as a client you shouldn't automatically refuse to hire lawyers who have been disciplined. Too often lawyers are given a slap on the wrist; they are put on probation when they deserve to be suspended if not disbarred.
I am of course not endorsing Ms. Robinson or what she did. I'm simply using her situation to illustrate a broader point-hiring a lawyer is a sufficiently important decision to warrant your extra attention. Don't make snap decisions. Sometimes the right lawyer for you may have overcome a prior, isolated disciplinary problem. Sometimes the right thing to do as a potential client is to recognize that some lawyer misconduct should be forgiven.
Suspended Lawyer of the Month For June 2010
A big part of life is doing the little things right. And when booksmart people such as lawyers ignore the fundamentals their clients often get hurt. And when lawyers repeatedly mess up the basics, they may get disciplined. That's what happened to the Moron Lawyer of the Month for June 2010—Jamal A. Khoury of Lexington, Kentucky.
Mr. Koury started practicing law in Kentucky on May 1, 2006. But in the span of about four years, he has been suspended twice. The latest suspension is described in May 20, 2010 decision of the Supreme Court of Kentucky. Mr. Koury moist recent suspension emanates from his failure to represent a client who received a speeding ticket.
This disciplinary proceeding stems from Koury's failure to adequately
represent and communicate with Trevor Kelso. Kelso, a resident of England,
hired Koury in September of 2006 to represent him concerning a speeding
ticket that Kelso received while visiting the United States. Kelso was traveling
through Colorado when he received the speeding ticket, but was set to return
to England prior to his court date. Kelso hired Koury, giving him a $1,500.00
retainer. Subsequently, Koury sent Kelso an email stating that Koury had
gotten the case continued until a certain date and that he would be back in
touch with Kelso .
When Kelso did not hear back from Koury, he sent him a couple of
emails inquiring about the case, but received no response . Since Kelso was
planning another trip to the United States and had not heard back from Koury,
Kelso proceeded to contact the Clerk of Delores County, Colorado, to inquire
about the status of the case . Kelso was informed that Koury had never been in
contact with the Court on his behalf and that an arrest warrant had been
issued for Kelso's failure to appear for his initial court date. In April of 2007,
Kelso, still unable to reach Koury, worked with the Delores County Court
Clerk, arranged a court appearance by telephone, during which Kelso pleaded
guilty to a lesser charge and agreed to pay a fine of $88.50. Consequently, the
warrant for his arrest was cancelled. However, the $1,500.00 retainer Kelso
paid to Koury was never returned.
This sitaution is instructive because it involves such commonplace issues. First, if you receive a speeding ticket in a different state (or are accused of any crime), your best bet is to contact a lawyer in the state where the crime alledgely was committed. Second, don't assume that you can't handle very minor matters, such a sspeeding tickets, without the assistance of a lawyer. Here, The client resolved the issue by phone and paid about 5% of the retainer charged by the lawyer.
As for Mr. Koury, his violations seem mundane, but they aren't. He was previoulsy suspended for continuing to practice law even though he failed to renew his bar dues. He also didnt stay in touch with the Inquiry Commission, which prosectutes disciplinary charges against Kentucy lawyers. That's a little bit like bouncing a check to the IRS after the IRS has audited you. When lawyers are being investigated for violating the disciplinary rules, the least they can do is provide the prosecuting agency a current valid address. Mr. Koury apparently didn't do that and the disciplinary hearing took place without him. Not good.
Some courts might be tempted to issue a short suspension to Mr. Koury. When a beginning lawyer shows repeated problems handling the basics of running a law office, courts and clients are right to be very cautious. I hope that Mr. Koury will learn from this, but his 18-month suspension seems justified. You have to take care of the basics if you want to help rather than harm clients.
Suspended Lawyer of the Month For May 2010
This month's award take us to the Land of Lincoln.
Illinois is not excatly known for imposing harsh discipline on its lawyers. More than 84,000 lawyers practice in Illinois. Approximately 4,000 or five percent are the subject of a disciplinary complaint in a given year. But in 2009 fewer than 150 lawyers were disciplined. So it isn't entirely surprisng that an Illinois lawyer is being recognized. Specifically, the Moron Lawyer of the Month for April 2010 is John O. Cutright of Cumberland County, Illinois. Here's how Mr. Curight's exploits were summarized in the 2009 Annual Report prepared by the Illinois Attorney Registration and Disciplinary Commission:
The Illinois Supreme Court issued a published opinion in one disciplinary case in 2009, In re John
O. Cutright, 233 Ill.2d 474, 910 N.E.2d 581, 331 Ill.Dec. 172 (Ill. June 4, 2009). Mr. Cutright, of
Cumberland County, engaged in three separate acts of misconduct. First, he agreed to represent a woman
who was serving as the executor of the estate of her late husband. The estate included an interest in a
company named Triple C Thorostock. Later, an 86-year-old client came to the lawyer’s office and told
him that she wanted to forgive a $312,900 debt owed to her by Triple C Thorostock. Mr. Cutright
prepared a will and another document that served to forgive the debt. The client signed the documents.
The lawyer never asked the client about her financial situation before drafting the documents. At the time
of the drafting, the client was in the early stages of Alzheimer’s disease. Although Mr. Cutright claimed
that she was of sound mind, a probate court later determined that she lacked testamentary capacity.
Second, the lawyer reviewed and signed, as paid preparer, certain income tax returns for companies in
which now-disbarred Cumberland County Judge Robert Cochonour had an interest. Mr. Cutright, or
persons in his office, also reviewed several tax returns for a probate estate in which the judge was acting
as executor, along with the judge’s individual tax returns for certain years. Mr. Cutright never billed the
judge for these tax services. During this time period, however, he routinely appeared before the judge, not
disclosing to opposing counsel that he was, without remuneration, reviewing tax returns in which the
judge had an interest. Finally, as alleged in the last count, Mr. Cutright represented an executor of a
decedent’s estate. Litigation of a partition issue was necessary. The litigation resulted in the estate
receiving $14,095.50. A dispute later arose between the heirs. After the dispute arose, Mr. Cutright took
no action on the estate for an 11-year period and failed to close the estate in a timely manner. The Hearing
Board recommended that he be suspended for 120 days. The Review Board later recommended a six month
suspension. The Court, however, increased the recommended period of discipline. Mr. Cutright,
who was licensed to practice in 1967, was suspended for two years.
This case reflects an all too common aspect of human nature; it's hard to punish your own. It is at least gratifying to see that, as this case wounds its way through the discipline process, the length of the discipline increased dramatically. There is a huge difference between a 120-day suspension, the initial recommendation, and a two-year suspension, which is what the Illinois Supreme Court imposed. The former punishment generally allows a lawyer to continue practicing. But a two-year suspension, especially for a lawyer who has been practcing since 1967, is much more likely to be career ending. I have no opinion on what Mr. Cutright will or ought to do when his suspension ends. Nor do I derive any pleasure from highlighting the shorcomings of someone who has been working as a lawyer roughly as long as I've been alive. It is somehwat encourgaing, however, that the Illinois Supreme Court meted out a severe penalty.
Suspended Lawyer of the Month For April 2010
Would you want to work with a lawyer who drafted a will for an elderly and sick client and made himself the beneficiary of will? If you were responsible for protecting the public, would you allow such a lawyer to keep his law license? This is the question that the disciplinary authorities in Arizona had to answer.
The conduct of this month receipeint of the Moron Lawyer of the Month award is far worse than the description above suggests. The shinagins involving the will are just one aspect of what this month's recipeint did to one client; he also overcharged another elderly and vulnerable client during the course of a lawsuit. The mindboggling details will be discussed below.
But without further adieu, the Moron Lawyer of the Month Award for March 2010 goes to . . . Brian E. Finander of Phoenix, Arizona.
In Septemeber 2009, Mr. Finandler was suspended in Arizona for a period of one year. The facts underlying this decison are set forth in a 38 page report prepared by a Stanley R. Lerner, A Hearing Officer of The Supreme Court of the State of Arzona. Mr. Finandler was facing misconduct charges relating to his representation of two clients--Sikora Trucking, a comapny owned by Jeremy and Carol Sikora--and Nicholas Derczo, a man in his 80s who, among other things, was hard of hearing, blind in one eye, heavily medicated, and bipolar.
The hearing officer found that, with respect to the Sikoras, Mr. Finander overcharged them by $117,000. There was also evidence at the hearing suggesting that Mr. Finander billed the Sikoras for work that he did not perform. With respect to Mr. Derczo, the Hearing Officer found that Mr. Finander drafted a will that made hime the sole beneficiary of Mr. Derzco's estate. The Hearing Officer found that Mr. Finnader knew of his client's limited mental capacity and that the will did not comply with Mr. Derzco's expressed instructions. The Hearing Officer noted that disbarrment could be a suitable punishment, but ended up suspending Mr. Finander for six months and a day. On appeal, Mr. Zinander argued that the whole case should be dismissed because of misconduct by the State Bar of Arizona. He did not accept responsibility for his actions or show remorse. A majority of the panel that reviewed the Hearing Officer's decision concluded that a one-year suspension was more appropriate. Only one memebr of the panel thought that Mr. Finander should be disbarred.
The post can't do justice to the nature and extent of Mr. Finander's wrong doing. Take it for me, you don't have to be a super lawyer to know that it's highly problematic to draft a will and then name yourself a benefeciary. This isn't a close call. The solution is obvious. In the rare event that a client wants to provide something of value in a will to his or her lawyer, a different lawyer should either draft the will or review it before it's signed. And overcharging elderly clients for work you didn't perform isn't a close call either.
In my humble opinion, Mr. Finander could have and should have been disbarred. He had been disciplined before. It amazes me that only person reviewing his case thought that disbarment was the appropriate penalty. It makes you wonder what an Arizona lawyer needs to do to be disbarred.
Suspended Lawyer of the Month for March 2010
Much of what lawyers do isn't remotely glamorous; it requires doing a lot of seemingly mundane tasks correctly. And if a lawyer consistently fails to perform the mundane, they can become truly awful. That's the lesson to be learned from this month's recipient of the Moron Lawyer Of The Month award--Edward Wade Garrison of San Antonio, Texas..
The February 2010 issue of the Texas Bar Journal spells out the repetitive almost bland facts.
On Sept. 30, 2009, Edward Wade
Garrison [#24010559], 44, of San Antonio,
received a five-year, fully probated
suspension effective Oct. 1, 2009. An
evidentiary panel of the District 10 Grievance
Committee found that in a custody
matter, Garrison neglected the legal matter
and failed to keep the client reasonably
informed and to timely withdraw from
representation when he was terminated.
In a divorce matter, Garrison neglected
the legal matter entrusted to him and
failed to respond to his client’s reasonable
requests for information, to account
to the client for the fee paid, and to
return unearned fees.
In another divorce matter, Garrison
neglected the legal matter and failed to
keep the client reasonably informed and
to respond to the client’s reasonable
requests for information.
In another custody case, Garrison
neglected the legal matter and failed to
keep the client reasonably informed and
to respond to the client’s reasonable
requests for information. Garrison also
failed to timely file a written response to
three of the four grievances.
Garrison violated Rules 1.01(b)(1),
1.03(a) and (b), 1.15(a)(3) and (d), and
8.04(a)(8). He was ordered to pay
$2,693 in attorney’s fees and expenses
and $12,000 in restitution.
There you have it. Two divorces and two custody matters and the repeated failure to keep clients in he loop. The summary of the Mr. Garrison's misconduct couldn't be more dry in its tone. It reads like a grocery list and a boring one at that. But the reality behind these cases must have been anything but boring. It's not hard to imagine the anxiety and frustration that Mr. Garrison's clients felt as they tried to find out what was going on with respect to some of the most important and emotionally charged events in life--divorce and custody over children. Throw in Mr. Garrison's failure to return unearned fees in one case and it's easy to imagine the client's frustration turning to anger. At least Mr. Garrison seems to have been consistent in one respect--he failed to provide a timely response to the Texas State Bar just as he ignored some of his clients' requests for information.
And what kind of punsihment was handed out to Mr. Garrison? A five-year probation with no actual suspension. For me, that's a slap on the wrist given the volume of specific cases in which Mr. Garrison was found to have fallen short. Too often, lawyers who screw up repeatedly are allowed to continue to represent new clients without having to shut down their office even for one day. Unfortunately, that too is a mind-numbing aspect of discipline cases in many states.
Suspended Lawyer of the Month for January 2010
This month's recipient is in many respects typical. The conduct for which he is being recognized includes many of features that were found in past winners of the Moron Lawyer of the Month award. Ignoring well established Rules of Professional Conduct? Check. Showing bad judgment? Check. Making lawyers look bad? Check.
This month's recipient was suspended for 30 days even though he didn't harm any clients. That fact is signifigant, but not enough to prevent us from giving the Moron Lawyer of the Month for December 2009 to Bruce A. Thabit of Encinatas, California.
Here is the official summary of Mr. Thabit's misconduct, as reflected on his profile on the State Bar of California website.
BRUCE A. THABIT [#138864], 47, of Encinitas was suspended for one year, stayed, placed on two years of probation with an actual 30-day suspension and was ordered to take the MPRE within one year. The order took effect July 16, 2009.
Although Thabit is licensed to practice only in California, he was the principal attorney for Las Vegas-based DogBite, which advertised on the Internet and offered to provide legal representation to people who were victims of dog bites. The Web site advertised outside California, in both Nevada and Kentucky.
A woman in Kentucky agreed to hire Thabit to represent her in a claim against a couple whose dog allegedly attacked and killed the woman’s dog and injured her child. Thabit wrote to the couple; the husband responded that they had a lawyer and asked Thabit to contact her.
A nonlawyer who worked for Thabit sent a letter to the dog owners saying DogBite would continue to communicate directly with them rather than their lawyer because they needed a letter of representation from the lawyer. He wrote, “Your failure to cooperate in reporting the claim is now causing you to be sued. We are now coming for the family home.”
The dog owners’ lawyer asked Thabit to provide documents showing he was authorized to practice law in Kentucky. He responded that neither he nor DogBite represented the original client.
The Nevada bar found that Thabit misled the public by holding himself out as a Nevada lawyer, engaged in the unlicensed practice of law and aided in the unlicensed practice by a nonlawyer.
Thabit corrected his letterhead to show he is licensed only in California and he fired the nonlawyer who had worked for him.
In the California case, he stipulated that he engaged in the unauthorized practice of law in both Nevada and Kentucky and that he helped a nonlawyer practice law in those states.
In mitigation, Thabit had no prior discipline record and no clients were harmed by his misconduct.
You may be wondering what's the big deal? What's moronic about Mr. Thabit's conduct? Don't many lawyers do this? Well, no.
One of the things that beginning law students learn is that lawyers work on a stste by state basis. We take a specific state's bar examination and if we pass, that entitles us to practice in that state. It should therefore be painfully indisputably obvious that a lawyer licensed in California needs to tread very carefully when seeking to represent someone in Kentucky. This fact wasn't lost on the lawyer in Kentucky who smelled a rat and wanted written proof that Mr. Thabit was authorized to practice law in the Bluegrass State.
Mr. Thabit appears to have violated another very well established rule--a lawyer can't generally contact an opposing party that is represented by a lawyer. You have to talk to that person's lawyer. This is a very basic rule. Every lawyer knows it or should. Presumably the nonlawyer working for Mr. Thabit didn't at first know that the couple in Kentucky was represented by a lawyer. That happens all the time. You contact someone not knowing whether or not they have a lawyer. But when the husband explictly said that he had a lawyer, the correct course of conduct was clear as day--contact the lawyer. This is very basic stuff. That is why the subsequent letter, whch insisted on continuing to contact the couple directly, is moronic.
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