A former part-time Ohio judge and bankruptcy trustee whose bookkeeper
was convicted of stealing funds from his trust account was publicly
reprimanded last week for failing to reconcile his trust account monthly
and failing to adequately supervise his staff. The court’s opinion
spotlights the potential legal ethics problems that dishonest
non-lawyer staff can create. Below are some ways to steer clear of
possible pitfalls.
Employee embezzlement
The respondent was a part-time judge, which allowed him to have a
private practice, and he was a bankruptcy trustee for 30 years. In his
bankruptcy practice, the respondent received significant amounts of cash
from clients for legal fees and court costs. The respondent’s long-time
bookkeeper recorded the payments in a client ledger, but was found to
have regularly converted funds for her own use rather than depositing
them in the respondent’s trust account or operating account.
The bookkeeper eventually left the respondent’s office to work
elsewhere. Two years later, in preparing to close his solo practice and
merge with another lawyer, the respondent audited his books and
discovered money was missing from his accounts. The state attorney
general conducted a forensic audit and determined that over a nine-year
period, the bookkeeper had embezzled more than $185,000. (She was later
sentenced to 36 months incarceration.)
Failure to supervise and reconcile
Regularly reconciling the records of funds held on behalf of a client
is a best practice, of course. What is not well-known is that some
state versions of Model Rule of Professional Conduct 1.15(a) (“Safekeeping property”) really get down to the nitty-gritty. Ohio’s version, for instance, specifies that lawyers must perform and retain a monthly reconciliation. The ABA/BNA Lawyers’ Manual on Professional Conduct
notes that “Most of the jurisdictions … have gone well beyond the
[Model Rules’] paradigm and incorporated detailed recordkeeping and
accounting requirements.”
The respondent admitted that while the bookkeeper worked for him he
reviewed bank statements for his trust account, but never conducted a
monthly reconciliation by comparing the client ledgers with the
client-trust account registers and bank statements.
In addition, the respondent stipulated that he had failed to adequately supervised the bookkeeper, violating Ohio’s version of Model Rule 5.3
(“Responsibilities regarding non-lawyer assistance”). Rule 5.3(b), as
broadly adopted across the U.S., requires a lawyer with direct
supervisory authority over a non-lawyer to make reasonable efforts to
ensure that the non-lawyer’s conduct is compatible with the lawyer’s own
professional obligations. The rule requires us to monitor staff so
their actions are in line with our own ethics duties; it forecloses any
“free pass” for ethics violations just because an unfaithful employee
under your direct supervision commits them.
The sanction here — a public reprimand — is the lowest level of
discipline available in Ohio. The court noted that the respondent had
deposited $35,000 his own funds to make up the net shortfall in his
accounts after it was discovered. None of his clients lost money as a
result of the employee’s theft, and respondent had a clean disciplinary
record.
The court noted other disciplinary cases from Ohio and elsewhere,
however, where aggravating factors led to stiffer penalties, including
suspension from practice.
Tips for staying out of trouble
The court here properly noted that “delegation of work to non-lawyers
is essential to the efficient operation of any law office.” But on the
other hand, “delegation of duties cannot be tantamount to the
relinquishment of responsibility by the lawyer,” and “supervision is
critical in order” to safeguard client interests.
If your jurisdiction specifies periodic account reconciliations
or other kinds of detailed recordkeeping, it goes without saying that
you should comply. Don’t wait for a post-embezzlement forensic audit.
Trust but verify. Even long-time trusted employees can do bad things under some circumstances. Be alert for red flags.
Don’t
stop supervising. In some of the cases where lawyers received
suspensions after employee thefts, they had completely relinquished
control of their office functions to staff, and stayed “oblivious” to
potential problems.
Making “reasonable efforts to ensure” that your non-lawyer staff
adhere to your own ethics duties takes attention; don’t fall down on the
job.
Pictured is Barbi Agricola, owner of Agricola Law in Opelika, left, and
Shelbie Hunt, who recently was awarded fund from an insurance agency due
to mishandling of a conservatorship in Chambers County. Hunt is holding
her 4 month old daughter Amelia.
By Dustin Duncan
LANETT — Three years ago, Lanett native Shelbie Hunt
was mourning the loss of her grandmother, when she came across a
surprising discovery — several bank documents with her name on it.
After a long legal battle, Hunt was awarded an
undisclosed amount of money in March due to the mishandling of funds
left to her in a conservatorship by her father, who died in 2000. The
court case involved the Chambers County Probate Office, Farmers and
Merchants Bank and several attorneys.
A conservatorship is a legal concept through which
financial affairs for one person are managed by a guardian or protector
appointed by a judge.
The account that had been left to Hunt had been
closed by the time Hunt discovered its existence in 2016. Her
grandmother, who was in charge of the account, had depleted the funds
while Hunt was a minor.
Hunt’s father died when she was 4 years old, and the
conservatorship was set up in 2001. According to Hunt’s attorney, Barbi
Agricola, owner of Agricola Law in Opelika, when a conservatorship is
set up for a minor, Alabama law said there has to be a person in charge
of that account until the minor reaches 19 years of age.
Agricola said the account was set up properly at the
bank, along with a certificate of deposit, and the grandmother was
appointed as the conservator, but the account was in Hunt’s name.
In 2016, Hunt reached the age where the funds would
be awarded to her, but she told the Valley Times-News Thursday she had
no knowledge of the account until after her grandmother passed away that
same year.
Once she found the documents, which used her maiden
name Shelbie McDougall, she went to the bank to get answers. Hunt said
the bank refused to give her any information about the account that was
set up in her name because it was already closed and the funds were
depleted.
Hunt then went to the probate judge’s office to
request documents about the conservatorship and said former probate
judge Brandi Easlick told her she would have to request an accounting
hearing on the account. Eastlick could not be reached for comment on
Friday.
According to court documents, the probate office
ordered an accounting of the conservatorship to be produced in June 2017
at a hearing, but because the conservator was deceased at the time, no
accounting was done.
At that point, Hunt attempted to hire a lawyer. She
said she went to four attorneys in Chambers County, but all refused to
represent her. In 2018, she went Agricola Law, which took her case.
Once the law firm was involved, it was discovered
the account was not called upon for accounting or inventory from 2001 to
2016. Agricola said under Alabama law, the conservator is required to
do annual accounting of any expenditures of the funds to the probate
court.
“The burden is on the conservator, but if the
conservator does not do it, the burden shifts to the probate’s office to
order and ensure that this is done properly,” Agricola said.
The firm also contacted the bank, which at the time
said it would provide statements to Hunt for $5 a page. Hunt said
purchases made from the account were for everyday expenses from stores
such as Family Dollar, Belk’s and Fred’s.
“She treated it like her living account,” Hunt said.
The main office of Farmer’s and Merchant’s Bank in LaFayette declined to comment.
Hunt said she didn’t live with her grandmother, nor
was she cared for by her. She also said not a single dollar from the
account spent by the grandmother was used to benefit Hunt.
Hunt didn’t disclose the amount of the bond, but said it was enough to make her life easier and send her to college.
Also in 2018, Hunt said she came across a bond with
Auto-Owners Insurance Company, based in Montgomery, which was worth the
value of the conservatorship. The bond acts as an insurance policy in
the event of funds being mishandled by the conservator.Hunt
said she contacted the insurance company and was told it expired when
she turned 19 years old. Hunt filed a claim with the insurance company
in August 2018.
Just before a claim was filed with the insurance
company, Agricola filed a motion to move the matter from the probate
office to the Chambers County Circuit Court in Judge Isaac Whorton’s
courtroom in July 2018.
In December 2018, Hunt filed a motion to request the
insurance agency pay the full amount of the bond because of the misuse
of funds by Hunt’s grandmother while in charge of the conservatorship.
During a hearing in March 2019, the insurance agency
failed to appear in court, and the court ordered the insurance agency
to pay proceeds of the bond to Hunt.
Agricola said from Hunt’s standpoint, the case is
over, but the lack of accounting and inventory from the probate’s office
in this case could mean there are potentially other cases with similar
stories.
“If it wasn’t done in her case, it is likely it wasn’t done in many other cases,” she said.
Agricola said it is possible the insurance company
could have an action against the county regarding this matter, but she
has no knowledge if the company is doing so.
Auto-Owners Insurance declined comment to the Valley Times-News.
From 2001 to 2018, John Crowder, Cary Baldwin and
Easlick served as probate judge in Chambers County. Current Probate
Judge Paul Story was elected in November 2018 and assumed the office in
January 2019.
Hunt said Thursday that Chambers County is her home, and she was astounded by the negligence shown by the probate office.
“There needs to be a level of accountability and
trust with those elected positions of power,” she said. “It is our job
as citizens of this county to conduct oversight of these powers to even
that scale of justice.”
Hunt said it is the job of the law to protect the
people, and it was probate judge’s job to help her, even if the previous
administrations didn’t do their jobs correctly.
“Once you are elected into that position, you need
to make the difference,” she said. “Elected officials should show
diligence and presence, not negligence and self-indulgence.”
Story said he wouldn’t comment on the actions of
past judges or how they operated the office, but he did say when a
conservatorship is set up, there is supposed to be a measure of
accountability on that account.
He said when a conservator is first set up, there is
supposed to be legal counsel for the conservator and the ward, or
person the account is for. He also said there is supposed to be
inventory and accounting done of the account within the first 60 to 90
days. After that period, Story said another round of accounting is
required a year afterward. After the first year, he said accounting is
required no more than at least once every three years. He said the judge
has the discretion to order accounting every year or every three years,
depending on the history on the conservator.
“I can’t speak for any other probate judges in this
county or any other county, but that is the way it should be done and
that is the way it is being done now,” Story said.
He said the probate judge can order and request
accounting be done, but the office cannot force the conservator to
provide documents. Story said the probate office can hold a conservator
in contempt of court and attempt to get the accounting done, but the
action is solely on the conservator to make happen.
If accounting does occur and the probate judge does
see a problem, the office conveys those issues to the lawyer of the
conservator and the ward. If the ward has a lawyer, that person can
petition to have the conservator removed.
He said if there is no follow up after the
conservatorship is set up, the probate office would never know of any
improprieties occurring.
“We can’t force them,” Story said. “We only have certain legal ability that we can use to get the inventory and accounting.”
Hunt, who is now married and a mother to a
four-month-old daughter, Amelia, said she was very close to her
grandmother while she was alive, which made the knowledge of her actions
even harder. She said the money she was awarded in March doesn’t change
how she remembers her.
“At the end of the day, it is hard knowing my own
grandmother did that to me,” she said. “But no amount of money will ever
get her and my father back here.”
NORRISTOWN, Pa. (KYW Newsradio) — A lawyer from Collegeville
who pleaded guilty to stealing from trust funds set up for people with
special needs has been sentenced.
The 17- to 34-year prison
sentence for Patrick Bradley represents one year for each of his 17
victims, according to prosecutor Kelli McGinnis.
"Victims who are
wheelchair-bound or have mental and physical disabilities, they were all
victimized by the defendant without a second thought," she said. "They
were like an ATM for him to use."
He pleaded guilty to 80 counts,
ranging from theft to unauthorized practice of law, as he continued to
act as a lawyer after his law license was suspended.
"He also took
money from several of the victims' special needs trusts, and he, in
most cases, all but drained them," McGinnis added.
In all, McGinnis said Bradley stole in excess of $167,000, which he used on movies, dinners, sporting goods and his mortgage.
McGinnis said she asked for the 17- to 34-year sentence as a reminder that similar conduct from attorneys will not be tolerated.
"It’s
completely unacceptable for an attorney to abuse the trust of their
client when you’re talking about some of the most vulnerable people in
Pennsylvania," she added.
For years, Dr. Linda Fried offered older patients who complained of
being lonely what seemed to be sensible guidance. “Go out and find
something that matters to you,” she would say.
But her well-meant advice didn’t work most of the time. What patients
really wanted were close relationships with people they care about,
satisfying social roles and a sense that their lives have value. And
this wasn’t easy to find.
We need “new societal institutions that bring meaning and purpose” to older adults’ lives, Fried recently told a committee of the National Academies of Sciences
investigating loneliness and social isolation among older adults.
(Fried is a geriatrician and dean of the Mailman School of Public Health
at Columbia University.)
The committee’s deliberations come amid growing interest in the topic. Four surveys (by Cigna, AARP, the Kaiser Family Foundation and the University of Michigan)
have examined the extent of loneliness and social isolation in older
adults in the past year. And health insurers, health care systems,
senior housing operators and social service agencies are launching or
expanding initiatives. (Kaiser Health News is an editorially independent
program of the Kaiser Family Foundation.)
Notably, Anthem Inc. is planning a national rollout to Medicare Advantage plans of a program addressing loneliness
developed by its subsidiary CareMore Health, according to Robin Caruso,
CareMore’s chief togetherness officer. UnitedHealthcare is making health navigators available
to Medicare Advantage members at risk for social isolation. And Kaiser
Permanente is starting a pilot program that will refer lonely or
isolated older adults in its Northwest region to community services,
with plans to eventually bring it to other regions, according to Lucy
Savitz, vice president of health research at Kaiser Permanente
Northwest. (KHN is not affiliated with Kaiser Permanente.)
The effectiveness of these programs and others remains to be seen.
Few have been rigorously evaluated, and many assume increased social
interaction will go a long way toward alleviating older adults’ distress
at not having meaningful relationships. But that isn’t necessarily the
case.
“Assuaging loneliness is not just about having random human contact;
it’s about the quality of that contact and who you’re having contact
with,” said Dr. Vyjeyanthi Periyakoil, an associate professor of
medicine at Stanford University School of Medicine.
A one-size-fits-all approach won’t work for older adults, she and
other experts agreed. Instead, varied approaches that recognize the
different degrees, types and root causes of loneliness are needed.
Degrees of loneliness. The headlines are alarming:
Between 33 and 43 percent of older Americans are lonely, they proclaim.
But those figures combine two groups: people who are sometimes lonely
and those who are always lonely.
The distinction matters because people who are sometimes lonely don’t
necessarily stay that way; they can move in and out of this state. And
the potential health impact of loneliness — a higher risk of heart
disease, dementia, immune dysfunction, functional impairment and early
death — depends on its severity.
People who are severely lonely are at “high risk,” while those who
are moderately lonely are at lower risk, said Julianne Holt-Lunstad, a
professor of psychology and neuroscience at Brigham Young University.
The number of people in the highest risk category is relatively
small, as it turns out. When AARP asked adults who participated in its
survey last year “How often do you feel lonely or isolated from those
around you?” 4 percent said “always,” while 27 percent said “sometimes.”
In the University of Michigan’s just-published survey
on loneliness and social isolation, 8 percent of older adults (ages
50-80) said they often lacked companionship (a proxy for loneliness),
while 26 percent said this was sometimes the case.
“If you compare loneliness to a toxin and ask ‘How much exposure is
dangerous, at what dose and over what period of time?’ the truth is we
don’t really know yet,” Periyakoil said.
Why it matters: Loneliness isn’t always negative, and seniors
shouldn’t panic if they sometimes feel this way. Often, loneliness
motivates people to find a way to connect with others, strengthening
social bonds. More often than not, it’s inspired by circumstances that
people adjust to over time, such as the death of a spouse, close family
member or friend; a serious illness or injury; or a change in living
situation.
Types of loneliness. Loneliness comes in different
forms that call for different responses. According to a well-established
framework, “emotional loneliness” occurs when someone feels the lack of
intimate relationships. “Social loneliness” is the lack of satisfying
contact with family members, friends, neighbors or other community
members. “Collective loneliness” is the feeling of not being valued by
the broader community.
Some experts add another category: “existential loneliness,” or the sense that life lacks meaning or purpose.
Dr. Carla Perissinotto, associate chief for geriatrics clinical
programs at the University of California-San Francisco, has been
thinking about the different types of loneliness recently because of her
75-year-old mother, Gloria. Widowed in September, then forced to stay
home for three months after hip surgery, Gloria became profoundly
lonely.
“If I were a clinician and said to my mother, ‘Go to a senior
center,’ that wouldn’t get at the core underlying issues: my mother’s
grief and her feeling, since she’s not a native to this country, that
she’s not welcome here, given the political situation,” Perissinotto
said.
What’s helped Gloria is “talking about and giving voice to what she’s
experiencing,” Perissinotto continued. Also, friends, former
co-workers, family members and some of Perissinotto’s high school
buddies have rallied around Gloria. “She feels that she’s a valuable
part of her community, and that’s what’s missing for so many people,”
Perissinotto said.
“Look at the older people around you who’ve had a major life
transition: a death, the diagnosis of a serious illness, a financial
setback, a surgery putting them at risk,” she recommended. “Think about
what you can offer as a friend or a colleague to help them feel valued.”
Why it matters: Listening to older adults and learning about the type
of loneliness they’re experiencing is important before trying to
intervene. “We need to understand what’s driving someone’s loneliness
situation before suggesting options,” Perissinotto said.
Root causes of loneliness. One of the root causes of
loneliness can be the perception that other people have rejected you or
don’t care about you. Frequently, people who are lonely convey
negativity or push others away because of perceived rejection, which
only reinforces their isolation.
In a review of interventions to reduce loneliness,
researchers from the University of Chicago note that interventions that
address what they call “maladaptive social cognition” — distrust of
other people, negativity and the expectation of rejection — are
generally more effective than those that teach social skills or promote
social interactions. Cognitive behavior therapy, which teaches people to
recognize and question their assumptions, is often recommended.
Relationships that have become disappointing are another common cause
of loneliness. This could be a spouse who’s become inattentive over
time or adult children or friends who live at a distance and are rarely
in touch.
“Figuring out how to promote quality relationships for older adults
who are lonely is tricky,” Holt-Lunstad said. “While we have decades of
research in relationship science that helps characterize quality
relationships, there’s not a lot of evidence around effective ways to
create those relationships or intervene” when problems surface.
Other contributors to loneliness are easier to address. A few
examples: Someone who’s lost a sense of being meaningfully connected to
other people because of hearing loss — the most common type of
disability among older adults — can be encouraged to use a hearing aid.
Someone who can’t drive anymore and has stopped getting out of the house
can get assistance with transportation. Or someone who’s lost a sibling
or a spouse can be directed to a bereavement program.
“We have to be very strategic about efforts to help people, what it
is they need and what we’re trying to accomplish,” Holt-Lunstad said.
“We can’t just throw programs at people and hope that something is
better than nothing.”
She recommends that older adults take mental stock of the extent to
which they feel lonely or socially isolated. Am I feeling left out? To
what extent are my relationships supportive? Then, they should consider
what underlies any problems. Why don’t I get together with friends? Why
have I lost touch with people I once spoke with?
“When you identify these factors, then you can think about the most
appropriate strategies to relieve your discomfort and handle any
obstacles that are getting in the way,” Holt-Lunstad said.
MANSFIELD, Ohio — A 62-year-old
employee of an assisted living center in Mansfield is behind bars,
charged with raping an 84-year-old resident of the facility. Donald
Chinn was arrested Thursday night at his Shelby home and charged with
one count of rape.
The daughter of the alleged victim alerted the
Waterford assisted living facility in Mansfield about the alleged crime
and the executive director then called 911.
He is no stranger to the law, with drug offenses, including drug trafficking, stretching back to at least 1999.
No
one at the facility would answer questions about the incident or
Chinn's employment. But a spokesperson later sent a statement saying in
part that management is "disappointed and concerned."
"We
are taking swift action and conducting an internal investigation as
well as cooperating with authorities," the statement said. It also said
Chinn has been suspended indefinitely.
Chinn's next-door neighbor
in Shelby, Brad Sammons, said living near the man has been a nightmare.
He said he supports people being given second chances, but can't believe
Chinn was allowed to be with vulnerable seniors.
"People need to start over, but not in that situation," he said.
Chinn pleaded not guilty in municipal court and is in the Richland County jail. He's being held on $100,000 bond.
ST. JOHNS COUNTY, Fla. - The death of a nursing home patient has been ruled a homicide, the St. Johns County Sheriff's Office said Thursday.
Veteran Daniel Henson, 71, died
Sunday after he was attacked April 9 at the St. Augustine Health and
Rehabilitation Center off State Road 207, according to family.
The Sheriff's Office said Thursday that it responded April 9 to the
nursing home and rehabilitation center, where staff had discovered an
84-year-old resident on top of the 71-year-old, repeatedly striking him
in the head and face, before staff separated the two men.
Deputies said the 71-year-old was
transported to Orange Park Medical Center and then to another facility
in Jacksonville, where he died Sunday.
The medical examiner's office in St. Johns
County conducted an autopsy. On Thursday, the medical examiner's office
released its preliminary findings in the case, and ruled the cause of
death as blunt force trauma and the manner of death a homicide,
according to the Sheriff's Office.
Henson's family told News4Jax that the
84-year-old was his roommate. According to the Sheriff's Office, due to
the various medical needs of the 84-year-old, charges of battery of a
person over 65 years of age were forwarded to the State Attorney’s
Office for its review.
Mary Henson, Daniel Henson's older sister,
told News4Jax by phone Wednesday from Colorado that her brother had a
stroke 25 years ago and had been living in a nurse home since then.
"He had some use of his left arm, but the
rest of him was totally paralyzed and had been for years," she said. "My
brother was not able to get out of bed or move or anything except for
his left arm."
According to News4Jax I-TEAM sources with
knowledge of the investigation, Henson had a fractured skull, broken
bones and severe injuries to his eyes. The sources described the attack
as "horrific" and "sickening."
On Thursday, Henson's sister said she was relieved to learn the case had been classified as a homicide.
"I want justice for my brother," she said.
The Sheriff's Office said the homicide investigation continues.
Early Thursday evening, the St. Augustine Health and Rehabilitation Center released the following statement:
The professional staff and caregivers at St.
Augustine Health and Rehabilitation Center are deeply saddened by the
tragic outcome of an incident at the facility on April 9th. The staff
extends its deepest condolences and prayers to the impacted family.
"Facility caregivers immediately reacted to a situation and took the
appropriate steps to separate the individuals. The facility contacted
the St. John’s Sheriff’s Office as well as Fire Rescue to assist. As
required by state law, the incident was reported that morning to The
Agency for Health Care Administration (AHCA) in Tallahassee. We are
cooperating fully with both local law enforcement and AHCA as the
incident remains under investigation. Federal health privacy laws
restrict us from commenting on any resident, past or present, without
the written consent of the resident or his or her responsible party.
"The death of a resident is a very emotional time for facility staff.
Our caregivers develop true relationships with the residents and
families that enter our facility on a daily basis and take seriously
their care and wellbeing.
"Skilled Nursing Facilities are the most regulated of all health care
providers and undergo rigorous surveys throughout the year. Our
employees are real people who answered a calling to care for our most
frail and elderly population. We stand by the care of the professionals
at St. Augustine Health and Rehabilitation Center and extend our prayers
to the family and friends of the resident involved in a tragic
situation."
Imagine the horror of living in a deep fog day in and day out. Your
steps, if you’re able to walk, are wobbly. Your memories are confused.
Your grasp of reality is lost.
And to discover that you’ve been purposefully sedated for no legitimate reason.
Federal reports show that thousands of nursing home residents in Texas are being inappropriately prescribed antipsychotics.
They’re not given the drugs because of psychiatric conditions for which
they can legitimately be prescribed. Rather, they are being
administered for other causes. Sometimes, it’s merely for the
convenience of nursing home staff.
It’s called a chemical restraint and it’s akin to the way people were handled in the Dark Ages.
This is a misuse of one of the most powerful classes of psychiatric
drugs. For those with dementia, which is not uncommon among nursing home
residents, receiving antipsychotics is especially dangerous, even
deadly. That’s why the Food and Drug Administration gives these
medicines a black-box warning: an alert of an increased risk of death
among people with dementia.
No one disputes that providing daily care for nursing home residents
is a patience- and stamina-testing ordeal. Attending to these moms,
dads, grandparents and other loved ones is a truly honorable profession.
Working with those who have Alzheimer’s and other dementia adds greatly
to the frustrations.
Through music and memory programs, and other therapies, Texas and
some other states have made progress over recent years in reducing
inappropriate use of antipsychotics among nursing home residents. But
this crisis in care has by no means been eradicated.
So, it’s exasperating that lobbyists for the nursing home and medical
industries this legislative session are opposing reasonable proposals to
rectify the problem.
Today, the law says that nursing home residents must give consent for
antipsychotics to be administered. And yet, all too often, family
members of nursing home residents still report a lack of awareness of
these drugs being administered. They see sudden and solemn changes in
the mental well-being of their loved ones. Later they learn — or come to
suspect — a culprit: antipsychotics being administered without their
knowledge.
A stronger consent law that would require written consent of a nursing
home resident or a legal decision-maker. And that’s essentially what’s
offered in Senate Bill 1212 by Sen. Kelly Hancock, R-North Richland
Hills and House Bill 2050 by Rep. Chris Paddie, R-Marshall.
To improve nursing home safety, please ask your state representative and senator to support those bills.
Disclosure: AARP has been a financial supporter of The Texas
Tribune, a nonprofit, nonpartisan news organization that is funded in
part by donations from members, foundations and corporate sponsors.
Financial supporters play no role in the Tribune's journalism. Find a
complete list of them here.
In her role as a deputy field investigator with the state
Office of the Medical Investigator, Pamela Smith was sent on March 9,
2017, to look into the death of 82-year-old Dominic Domingo. Then, in
her role as Sierra County probate judge, she appointed her own husband
as special administrator to his estate.
Randy Smith went
on to move nearly $300,000 from Domingo’s accounts into their own,
ignoring “living heirs entitled to the estate.”
That’s
according to criminal complaints filed Tuesday by the state Attorney
General’s Office against the Truth or Consequences couple. The criminal
charges come more than a year after Pamela Smith resigned as probate
judge in lieu of further disciplinary proceedings by the Judicial
Standards Commission.
Asked Tuesday about Pamela Smith’s employment status at OMI,
a spokesman for the UNM Health Sciences Center said, “We are not able
to answer due to pending litigation.”
The complaints
allege that the probate court records granting authority to a special
administrator were “filed and altered unlawfully by Pamela Smith,” to
give Randy Smith access to Domingo’s bank accounts. The couple used the
money to pay their mortgage and other debts, and to improve Randy
Smith’s boat repair and consignment sale business, among other things,
according to the complaint.
“Pamela Smith, as a probate
judge in Sierra County, had a fiduciary responsibility of presiding over
an orderly administration of justice,” a special agent wrote. “…
Instead, Mrs. Smith committed criminal acts of willful misconduct while
serving in office.”
The Smiths could not be reached for comment Tuesday evening. It’s not clear who is representing them in the case.
Pamela
Smith wrote in her OMI report that the chief of TorC police indicated
Domingo had no next of kin. But in a recorded interview, the chief said
he knew Domingo and knew he had family in New York. She also claimed
that she received the same answer from a pension fund administrator, the
complaint alleges. In fact, that company had sent a condolence letter
to Domingo’s sister and nephew.
And Domingo’s nephew, Joseph Paone, told an investigator that he once met Randy Smith as he repaired his uncle’s car.
“Mr.
Smith was misrepresenting himself as the special administrator by
knowing there were living heirs that should have prevented him from
accessing the estate of Dominic Domingo,” his complaint says.
Paone
says the Smiths later hired an investigator who offered him a $192,000
“payoff settlement,” which he pointed out to investigators was less than
the amount taken from his uncle’s accounts. Domingo’s family learned of
his death through a letter from his pension administrator.
Pamela Smith is charged with crimes including engaging in an
official act for personal financial gain, tampering with public
records, forgery, fraud, money laundering and conspiracy. Her husband,
Randy, is accused of fraud, money laundering and conspiracy.
Paone has filed a civil suit against the Smiths, OMI, the Sierra County Board of Commissioners, and the state of New Mexico.
Frances
Crockett Carpenter, the Albuquerque attorney representing him, said
Tuesday that along with the missing money, the Smiths still have
Domingo’s remains.
She said her client’s hope is that no other families find themselves in this position.
“They
want to make sure this never happens to anyone again,” Crockett
Carpenter said. “That a person that has been given the permission and
the privilege to hold office will never see that as anything but that,
and that they won’t use their powers of office to commit fraud and steal
and do all the awful things that they did.”
Asked
whether the Attorney General’s Office believes other families were
targeted, a spokesman for the office said he could not comment.
COLUMBUS, Ohio - The Ohio Supreme Court has issued a public
reprimand to Mahoning County Probate Court Judge Robert Rusu for
violating the rules of conduct established for members of the legal
profession.
The justices on Wednesday accepted the recommendation
of the Ohio Board of Professional Conduct that found Judge Rusu was in
violation of a rule that mandates that he acts in a manner promoting
public confidence in the independence, integrity, and impartiality of
judges.
A Public Reprimand is a public statement issued by the
Supreme Court of Ohio informing the public that a lawyer committed
misconduct.
The recommendation came following a complaint filed
with the Ohio Supreme Court alleging that after taking over as county
Probate Judge, he presided over 185 cases in which he represented
clients while he was still an attorney with the law firm of Lane &
Rusu Company. After becoming a judge, Rusu sold his partnership interest
in the law firm.
Judge Rusu's decisions in those cases including
appointing fiduciaries, approving legal fees for his own work (or his
previous law firm), approving guardian fees, settlements, addressing
cases with delinquencies, approving magistrate decisions, and waiving
guardianship matters.
In a previous statement, Judge Rusu
explained that he handled more than 1,300 cases during his 23 years as a
probate attorney and that some of those cases are still pending.
Rusu
said that he believed that some of those cases he heard after being
appointed as a judge in July 2014 were not matters of controversy and
did not require him to disqualify himself from presiding over the case.
In
its findings, the Board of Professional Conduct said that Rusu has
accepted responsibility for his actions, has no prior disciplinary
record, and was not motivated by selfishness or dishonesty.
Rusu
was appointed to the Probate Court position in 2014 by Governor John
Kasich, after the conviction of former Judge Mark Belinky and was then
elected that same year.
Judge Rusu issued the below statement:
Below please find Judge Robert N. Rusu, Jr.’s public statement regarding the recent ruling from the Ohio Supreme Court:
“When
I became judge, I was attempting to transition from a large probate law
practice with hundreds of cases and files to becoming the probate
judge. I was also trying to make all the proper notifications and follow
all of the complicated ethical rules for this transition.
I
accept responsibility for misinterpreting those rules. It’s no one
else’s fault but my own. I appreciate that the Supreme Court found that I
was ‘frank and open’ about everything and that I took responsibility
for my actions. I also appreciate that the court found that none of my
actions ‘caused measurable harm or resulted in anything less than the
even handed administration of justice.’ I’m thankful for the strong
showing of public support I’ve received during this time and I will
continue to do my very best as the Mahoning County Probate Judge.”
Robert N. Rusu, Jr.
Judge, Mahoning County Probate Court
