In re Carl M. WEIDEMAN III, Attorney, 327 F. App'x 215

ORDER OF GRIEVANCE PANEL By order filed July 16, 2007, this panel referred Carl M. Weideman III to this Court’s Committee on Admissions and Grievances (“the Committee”) for investigation of the matters described in that order and preparation of a report on whether he should be subject to disciplinary or other corrective measures. See Second Circuit Local Rule 46(h).

After the referral of the matter to the Committee, Weideman was suspended by the Michigan bar for a period of four years, commencing October 27, 2007, based on his improper lending of certain estate funds to himself and his firm, and his misrepresentations concerning those funds to a court, counsel, and a Michigan grievance administrator. See Order of Michigan Attorney Discipline Board, filed Sept. 28, 2007. The Committee became aware of the September 2007 suspension order and took the order, and the facts underlying the order, into consideration in its proceedings.

Weideman, on the other hand, did not address any of the evidence considered by the Committee. Although the Committee twice ordered Weideman to show cause why he should not be subject to disciplinary or other corrective measures, and thereafter left a telephone message for him, he failed to respond to any of the Committee’s communications and did not participate in the Committee’s proceedings. The Committee members assigned to this matter, Eileen M. Blackwood, Terrence M. Connors, and Paul C. Curnin, thereafter determined that they could proceed without a hearing pursuant to Rule 7(

d) of the Committee’s Rules. Upon concluding its investigation, the Committee filed in this Court the record of its proceedings and its report and recommendations. Although a copy of the report was served on Weideman in October 2008, he has not responded in any way. In its report, the Committee recommended as follows: (

a) this Court should give the Michigan four-year suspension reciprocal effect, notwithstanding the fact that Weideman is not admitted to this Court’s bar; and (

b) the Court should further discipline Weideman, in light of the Michigan misconduct and suspension, his repeated violations of this Court’s Local Rule 46(d), his failure to cooperate with the Committee’s investigation, and the presence of several aggravating factors identified by the Committee.

The Committee recommended the following disciplinary measure, which begins with a reciprocal sanction, but extends that sanction to account for all of Weideman’s offenses: Weideman should not be permitted to seek admission to the Court’s bar until the expiration of two years after the conclusion of his suspension from the practice of law in Michigan, assuming he has successfully completed all other conditions of his Michigan suspension, nor be permitted to practice before the Court under any circumstances until he successfully seeks admission to the Court’s bar. Report at 6.

After receipt of the Committee’s report, this Court became aware of further discipline imposed On Weideman by the Michigan bar authorities. In July 2008, Weideman’s license to practice law in Michigan was revoked as a result of his additional misconduct in three immigration cases. See Order of Michigan Attorney Discipline Board, filed June 16, 2008 (attached).

According to the complaint filed by the Michigan Grievance Administrator, the immigration cases at issue were, or were intended to be, before the United States Court of Appeals for the Sixth Circuit, the Board of Immigration Appeals, and an unspecified immigration office or officer (presumably an immigration judge or the BIA). See Oct. 2007 Complaint and Feb. 2008 Amended Complaint of Michigan Grievance Administrator (attached). We are informed that Weideman has not appealed the Michigan revocation order.

Although the nature of the discipline imposed by Michigan has changed somewhat, it does not alter our view of the Committee’s report or require any additional proceedings since the primary thrust of the Committee’s recommendation is that Weideman not be permitted to apply for admission to this Court’s bar until two years after he is in good standing in Michigan. In any event, in light of the additional information from Michigan, we construe the Committee’s report as making that recommendation.

Upon due consideration of the matters described above, it is hereby ORDERED that the Committee’s findings and recommendations are adopted by the Court, and Carl M. Weideman III is barred from (

a) seeking admission to this Court’s bar until the expiration of two years after his full readmission to the Michigan bar as an attorney in good standing, or (

b) practicing before this Court, or performing legal services of any kind in any case in this Court, under any circumstances until he successfully seeks admission to the Court’s bar. Additionally, Weideman is instructed that he must disclose this order in any future attorney disciplinary proceeding or bar application, or if required by any bar or court rule or order. The Clerk of Court is directed to release this order to the public by posting it on this Court’s web site and providing copies to members of the public in the same manner as all other unpublished decisions of this Court.

The text of this Panel’s July 2007 order referring this matter to the Committee, the Committee’s report, and the Michigan disciplinary materials referenced above are also to be released to the public, as Appendices to the present order. Finally, the Clerk of Court is directed to serve a copy of this order on Weideman, this Court’s Committee on Admissions and Grievances, the Michigan Attorney Discipline Board, the attorney disciplinary committee for the United States Court of Appeals for the Sixth Cii'cuit, and the attorney disciplinary officials for the Executive Office of Immigration Review.

APPENDIX 1 Text of July 2007 order referring Carl M. Weideman III to this Court’s Committee on Admissions and Grievances For the reasons that follow, Carl M. Weideman III is referred to this Court’s Committee on Admissions and Grievances for investigation of the matters described below and preparation of a report on whether he should be subject to disciplinary or other corrective measures. See Second Circuit Local Rule 46(h). We express no opinion here as to an appropriate disposition. The Committee may, of course, in the first instance, determine the appropriate scope of its investigation.

In April 2007, this Court received a letter from Weideman, informing the Court that he had been “suspended from the practice of law for 30 days, from April 21, 2007 to May 21, 2007,” and that he could not appear before the Court during that time period. Accordingly, he requested that the Court adjourn the one matter he currently had pending, Ndoci v. Gonzales, No. 06-3755-ag. The letter did not explain the basis for, or identify the jurisdiction that had imposed, the suspension.

This Court usually would initiate its reciprocal disciplinary procedures upon being notified of an attorney’s suspension by a state bar or the bar of another court. See Second Circuit Local Rule 46(f). However, after a preliminary investigation of the suspension noted in the April 2007 letter, and of Weideman’s practice in this Court, we instead request the guidance of the Committee regarding the appropriate approach to the circumstances described below.

After the receipt of Weideman’s April 2007 letter, this Court contacted the Attorney Discipline Board for the State of Michigan—where Weideman is licensed—and received copies of the relevant “Order of Suspension with Conditions,” No. 06-117-GA (Mar. 30, 2007) (“Order”) and the “Report of Tri-County Hearing Panel No. 8 on Discipline,” No. 06-117-GA (Mar. 30, 2007) (“Report”).

According to the Report, Weideman had been admonished in five prior matters between 2000 and 2005, because of his failure to: “take all necessary measures to ensure clients’ matters were not jeopardized,” “protect clients’ interests,” “adequately represent clients’ interests,” “act with reasonable dispatch and promptness in representing client and ... keep client reasonably informed,” and “communicate with client.” See Report at 1-2.

The Report further indicated that Weideman also had been issued a suspension in another matter, for reasons that were not disclosed, but that the other suspension order was currently under appeal. Id. at 2, 6.

Although the Report stated that Weideman had claimed to have “changed and improved his office procedures and practices as a result of the prior admonitions,” the disciplinary panel found that his testimony on that subject was “very vague and unpersuasive,” and that any changes he had made after receiving prior admonitions “were not enough to prevent the professional misconduct which the Panel found in this case.” Id. at 4.

In addition to being suspended from the practice of law for 30 days, Weideman was ordered to, inter alia, obtain as a mentor an attorney experienced in the practice of immigration law, who would observe his practice for a one-year period and provide advice on “establishing systems and procedures to ensure that all required court appearances and deadlines are met, to ensure that required filings are made in a timely manner, and to assure regular and full communication with clients.” Order at 1. A review of Weideman’s cases in this Court reveals the following information relevant to this referral order.

First, contrary to Weideman’s assertion in his letter, he has two cases pending in this Court. Weideman failed to mention Zefi v. Ashcroft, 05-0191-ag, which has been pending without significant activity since its filing in January 2005. According to the docket sheet, in April 2005, Weideman indicated that he was considering requesting transfer of the petition for review to the Eleventh Circuit; however, the docket sheet does not indicate that any transfer request was filed and a scheduling order was issued in April 2007. Second, Weideman’s briefing was criticized in Urita v. Gonzales, 02-4553-ag.

In this Court’s April 2005 order denying the petition, the panel held, inter alia, that the petitioner had waived two of his major arguments by failing to comply with Federal Rule of Appellate Procedure 28. In particular, the panel noted that his argument that the immigration judge’s adverse credibility finding was not supported by substantial evidence was deficient in that he merely recited the substantial evidence standard and made conelusory statements about the evidence, without citing to the record or connecting the law to the facts. See Urita, 02-4553-ag, Order filed Apr. 15, 2005 [128 Fed.Appx. 810].

Third, this Court recently dismissed Gashaj v. Gonzales, 07-0438-ag, in which Weideman is the petitioner’s counsel of record, based on the petitioner’s failure to file the required addendums to Form C/A. See Gashaj, 07-0438-ag, Order filed April 11, 2007. Although it is not clear whether that default constituted misconduct, Weideman did not request an extension of time to comply with the addendum requirement, move to withdraw the case, or respond to the Court’s notification that the omission need to be cured.

In other appeals where defaults occurred, Weideman’s motions for leave to file late briefs consisted primarily of boiler-plate verbiage and factual assertions lacking a clear connection to the relief requested. Compare Gorvokovic v. Ashcroft, 03-4023-ag, Motion filed Nov. 20, 2006, with Charcani v. Gonzales, 03-40274-ag, Motion filed May 23, 2005. Upon due consideration of the matters described above, it is ORDERED that Carl M.

Weideman III is referred to this Court’s Committee on Admissions and Grievances for investigation and preparation of a report, pursuant to Federal Rule of Appellate Procedure 46, this Court’s Local Rule 46(h), and the Rules of the Committee on Admissions and Grievances. The Court requests that the Committee, as part of its deliberations, consider whether some form of oversight of Weideman’s practice in this Court is warranted and, if so, whether that oversight should be coordinated in some fashion with the mentoring attorney required by the Michigan Order. See, e.g., Hua Liu v.

Bureau of Citizenship and Immigration Serv., No. 03-4640-ag, Order filed Oct. 17, 2005 (appointing special master to oversee attorney’s law practice for two years in order to, inter alia, certify attorney’s compliance with all deadlines and prevent attorney from taking on an unmanageable workload).

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk By: /§/ Michael Zachary Supervisory Staff Attorney APPENDIX 2 September 2008 Report of the Committee on Admissions and Grievances (without exhibits) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT COMMITTEE ON ADMISSIONS AND GRIEVANCES Mary Jo White Chair Debevoise & Plimpton LLP 919 Third Avenue New York, NY, 10022 Tel: (212)909-6260 Shanya Dingle and Felix Gilman Secretaries Debevoise & Plimpton LLP New York, NY, 10022 Tel: (212)909-6000 Email: sjdingle @debevoise.com, fjgilman @debevoise.com Committee Members: Eileen M. Blackwood Terrence M. Connors Paul C.

Curnin Deirdre M. Daly Evan A. Davis David B. Fein Hon. Howard A. Levine, Ret. Loretta E. Lynch REPORT & RECOMMENDATION Re: In re Carl M. Weideman, III, # 07-9035-am I. Introduction By order dated July 16, 2007, the United States Court of Appeals for the Second Circuit (the “Court”) referred Carl. M. Weideman, III, to this Committee for investigation of his conduct before the Court and for preparation of a report on whether he should be subject to disciplinary or other corrective measures.

Weideman has been suspended by the State of Michigan Attorney Review Board for four years for serious misconduct involving funds entrusted to him as an executor of an estate and misrepresentations regarding the availability of those funds. Additionally, Weideman has never been admitted to the Court’s bar despite repeated appearances before the Court and he failed to cooperate with the Committee’s investigation into his conduct.

In light of this serious misconduct, the Committee recommends that Weideman not be permitted to practice before the Court until two years after the conclusion of his suspension in Michigan. The following constitutes the Committee’s report and recommendation to impose discipline on Weideman. II. The Referral Order The Court referred Weideman to the Committee by order dated July 16, 2007 (the “Referral Order”). According to the Referral Order, Weideman informed the Court in April 2007 that he had been suspended from the practice of law in Michigan for thirty days (April 21, 2007 to May 21, 2007).

After receipt of Weideman’s letter, the Court obtained from the State of Michigan Attorney Discipline Board the March 30, 2007 Order of Suspension with Conditions and the March 30, 2007 Report of Tri-County Hearing Panel No. 8 on Discipline, No. 06-117-GA (the “Report”). According to the Report, Weideman had been admonished in five prior matters between 2000 and 2005 because of his failure to protect his clients’ interests and adequately represent his clients.

In addition to suspending Weideman for thirty days, the Attorney Discipline Board also ordered Weideman to obtain a mentor with immigration law experience to monitor Weideman’s practice for one year and provide advice on establishing procedures to better represent his clients. The Referral Order also noted concerns about Weideman’s conduct in cases pending in the Second Circuit. No activity had occurred in Zefi v. Ashcroft, 05-0191-ag, between January 2005, when the petition for review was filed, and over two years later when the Court entered the Referral Order in July 2007. In Urita v.

Gonzales, 02-4553-ag, the Court’s April 2005 order denying the petition for review criticized Weideman’s briefing. The Court held that Weideman’s client had waived two of his most significant arguments by failing to comply with Federal Rule of Appellate Procedure 28, which requires an appellant’s brief to contain, among other things, the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. RApp. P. 28(a)(9)(A). In Gashaj v.

Gonzales, 07-0438-ag, the Court dismissed Weideman’s client’s petition for review based on the petitioner’s failure to file the required addendums to Form C/A. Additionally, the Referral Order indicated that a “Carl M. Weideman” was admitted to the Court’s bar in 1988, but the listing does not include “III” after the surname. The Court requested that the Committee “determine Weideman’s status with [the] Court and whether he is in compliance with Second Circuit Local Rule 46(d),” which requires counsel of record for all parties to be admitted to practice before the Court.

As part of its referral, the Court requested the Committee to “consider whether some form of oversight of Weideman’s practice in this Court is warranted and, if so, whether that oversight should be coordinated in some fashion with the mentoring attorney required by the Michigan Order.” III. This Disciplinary Proceeding On March 21, 2008, this Committee issued an Order to Show Cause regarding Weideman’s conduct as alleged in the Referral Order. The Order to Show Cause was sent to the address Weideman listed on his notice of appearance in Gashaj v.

Gonzales, 07-0438-ag, which is the same address on the letterhead of Weideman’s April 2007 letter to the Court. After Weideman failed to respond to the Order to Show Cause, the Committee sent a second notice to Weideman on April 30, 2008. The April 30, 2008 letter informed Weideman that if he did not respond by May 13, 2008, the Committee would proceed without the benefit of his response. The Committee also attempted to reach Weideman at the telephone number he listed on his notice of appearance in Gashaj v. Gonzales, 07-0438-ag.

Weideman failed to respond to the Order to Show Cause and follow up letter, did not return the telephone message left for him, and has not otherwise contacted the Committee. Therefore, a sub-committee consisting of Eileen M. Blackwood, Terrence M. Connors, and Paul C. Curnin elected to proceed in this matter without a hearing in accordance with Rule 7(

d) of the Rules of the Committee on Admissions and Grievances. IY. Factual Background Shortly after the Committee commenced its investigation into this matter, we learned that Weideman has once again been suspended from the practice of law by the State of Michigan Attorney Review Board.

According to the Attorney Review Board’s September 28, 2007 Opinion, Weideman breached his fiduciary obligations, as executor of a California decedent’s estate, by loaning estate funds to himself and his law firm, and made misrepresentations regarding the availability of the funds to a California court, to counsel, and to the Grievance Administrator in Michigan. As a result, Weideman was suspended from the practice of law for four years commencing on October 27, 2007. Additionally, Weideman appears .never to have been admitted to the Court’s bar. According to the Referral Order, a “Carl M.

Weideman” was admitted to the Court’s bar in 1988, but the listing does not include “III” after the surname. The Committee contacted the Michigan State Bar, where Weideman’s office is located, and learned that Carl M. Weideman, III, was not admitted to the Michigan bar until November 1992. Therefore, Weideman appears not to be the “Carl M. Weideman” that is admitted to the Second Circuit’s bar. Nevertheless, he has appeared repeatedly before the Court, including in Gashaj v. Gonzales, 07-0438-ag; Ndoci v. Gonzales, 06-3755-ag; Zefi v. Ashcroft, 05-0191-ag; Urita v. Gonzales, 02-4553-ag; Gorvokovic v.

Ashcroft, 03-4023-ag; and Paluca v. Ashcroft, 03-4863-ag. V. Legal Standard Under the Rules of this Committee, An attorney may be subject to discipline or other corrective measures for any act or omission that violates the rules of professional conduct or responsibility of the state or other jurisdiction where the attorney maintains his or her principal office, or the rules of professional conduct of any other state or jurisdiction governing the attorney’s conduct.

An attorney may also be subject to discipline or other corrective measures for any failure to comply with a Federal Rule of Appellate Procedure, a Local Rule of the Court, an order or other instruction of the Court, or a rule of professional conduct or responsibility of the Court, or any other conduct unbecoming a member of the bar. Rules of the Committee on Admissions and Grievances, Rule 4. “A court of appeals may discipline an attorney who practices before it for conduct unbecoming a member of the bar or for failure to comply with any court rule.” Fed. R.App.

P. 46(c). “Conduct unbecoming a member of the bar” may include any conduct “contrary to professional standards that showfs] an unfitness to discharge continuing obligations to clients or courts, or conduct inimical to the administration of justice,” In re Snyder, 472 U.S. 634, 645, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985).

For “[m]ore specific guidance,” we may look to “case law, applicable court rules, and ‘the lore of the profession,’ as embodied in codes of professional conduct.” Id. at 646 n. 7, 105 S.Ct. 2874. “Any finding that an attorney has engaged in misconduct or is otherwise subject to corrective measures must be supported by clear and convincing evidence.” Rules of the Committee on Admissions and Grievances, Rule 7(h). Once misconduct has been established, in determining the sanction to be imposed, the Committee should consider: (

a) the duty violated; (

b) the lawyer’s mental state; (

c) the actual or potential injury caused by the lawyer’s misconduct; and (

d) the existence of aggravating or mitigating factors. American Bar Association’s Standards for Imposing Lawyer Sanctions (“ABA Standards”) § 3.0. The Committee may recommend to the Court’s Grievance Panel a range of sanctions, including disbarment, suspension, public or private reprimand, monetary sanction, removal from pro bono or Criminal Justice Act panels, referral to other disciplinary bodies, supervision by a special master, counseling or treatment, or “such other disciplinary or corrective measures as the circumstances may warrant.” Rules of the Committee on Admissions and Grievances, Rule 6. VI.

The Alleged Misconduct A. The Michigan Suspension Pursuant to Rule 46 of the Federal Rules of Appellate Procedure, a member of a circuit court’s bar is subject to suspension if the member has been suspended in any other court after the member is given an opportunity to show good cause why he should not be suspended. Fed. R.App. P. 46(b)(1)(A) & (2).

According to the Second Circuit’s Local Rule 46: In all cases in which an order disbarring an attorney or suspending the attorney from practice (whether or not on consent) has been entered in any other court of record, federal or state, and a certified copy thereof has been filed in this court, the clerk shall enter an order for the court, to become effective twenty-four days after the date of service upon the attorney unless sooner modified or stayed, disbarring the attorney or suspending the attorney from practice in this court upon terms and conditions comparable to those set forth by the other court of record.

Local Rule 46(f)(1). The attorney may move the Court for a modification or revocation of the order within twenty days of its service. Local Rule 46(f)(2). Federal courts conduct only a “limited review” before imposing reciprocal discipline. Selling v. Radford, 243 U.S. 46, 50-51, 37 S.Ct. 377, 61 L.Ed. 585 (1917).

Reciprocal discipline will not be imposed only if there is “(1) absence of due process in the state procedure, (2) substantial infirmity in the proof of lack of private and professional character, or (3) ‘some other grave reason’ sufficient to indicate that reciprocal disbarment was inconsistent with ‘principles of right and justice.’ ” In re Tidwell, 295 F.3d 331, 334 (2d Cir.2002) (quoting Selling, 243 U.S. at 51, 37 S.Ct. 377). Weideman has been suspended from the practice of law for four years in Michigan. If he were a member of the Court’s bar, this suspension would trigger a reciprocal suspension.

As set forth below, however, Weideman is not a member of the Court’s bar. B. Appearances Before the Court Without Being Admitted to the Court’s Bar Local Rule 46(

d) provides in relevant part: “Counsel of record for all parties must be admitted to practice before this court. Oral argument may be presented only by attorneys admitted to practice before this court.” Weideman has repeatedly violated this rule as set forth above. VII. Aggravating Factors In recommending discipline, the Committee has considered several aggravating factors. They include

(1) Weideman’s pri- or disciplinary offenses; (2) a pattern of misconduct; and (3) his multiple offenses. ABA Standards § 9.22(a), (c), & (d). The Committee also considers Weideman’s failure to cooperate with the Committee’s investigation to be an aggravating factor, as well as an independent basis for discipline. ABA Standards § 9.22(e); cf Committee on Grievances of the U.S. Dist. Court for Eastern Dist. of New York v. Feinman, 239 F.3d 498 (2d Cir.2001) (affirming discipline imposed in part for failure to cooperate with district court’s disciplinary proceeding).

The Committee is not aware of any mitigating factors. VIII. Recommendation Weideman’s conduct clearly warrants discipline. The fact that Weideman is not admitted to the Court’s bar should not stop the Court from giving reciprocal effect to Weideman’s Michigan suspension.

In light of that suspension and the reasons for which it was imposed, Weideman’s repeated violations of Local Rule 46(d), his failure to cooperate with the Committee’s investigation, and the presence of several aggravating factors, Weideman should not be permitted to seek admission to the Court’s bar until the expiration of two years after the conclusion of his suspension from the practice of law in Michigan, assuming he has successfully completed all other conditions of his Michigan suspension, nor be permitted to practice before the Court under any circumstances until he successfully seeks admission to the Court’s bar.

Respectfully Submitted, /s/ Member of the Committee September 19, 2008 APPENDIX 3 Relevant documents ñ-om Michigan attorney discipline authorities STATE OF MICHIGAN Attorney Discipline Board GRIEVANCE ADMINISTRATOR, Attorney Grievance Commission, Petitioner/Appellant/Cross-Appellee, v CARL M. WEIDEMAN, III, P 47032, Respondent/Appellee/Cross-Appellant. Case No. 05-79-GA ORDER INCREASING DISCIPLINE TO A SUSPENSION OF FOUR YEARS Issued by the Attorney Discipline Board 211 W.

Fort St., Ste. 1410, Detroit, MI On January 25, 2007, Tri-County Hearing Panel # 22 of the Attorney Discipline Board issued an order suspending respondent’s license to practice law in Michigan for a period of 90 days commencing February 16, 2007. The Grievance Administrator filed a petition for review on January 31, 2007 and respondent filed a cross-petition for review on February 12, 2007.

The Attorney Discipline Board conducted review proceedings in accordance with MCR 9.118 and is otherwise fully advised, NOW THEREFORE, IT IS ORDERED that, for the reasons set forth in the attached opinion, discipline in this case is increased from a suspension of 90 days to a SUSPENSION OF RESPONDENT’S LICENSE TO PRACTICE LAW FOR FOUR YEARS EFFECTIVE OCTOBER 27, 2007 and until respondents reinstatement in accordance with MCR 9.123(

B) and (

C) and MCR 9.124. IT IS FURTHER ORDERED that the effective date of this order is October 27, 2007. IT IS FURTHER ORDERED that the automatic stay of discipline under MCR 9.115(

E) shall remain in effect until October 27, 2007. IT IS FURTHER ORDERED that from the effective date of this order and until reinstatement in accordance with the applicable provisions of MCR 9.123, respondent is forbidden from practicing law in any form; appearing as an attorney before any court, judge, justice, board, commission or other public authority; or holding himself out as an attorney by any means.

IT IS FURTHER ORDERED that respondent shall, in accordance with MCR 9.119(A), within seven days after the effective date of this order, notify all of his active clients, in writing, by registered or certified mail, return receipt requested, of the following: 1. the nature and duration of the discipline imposed; 2. the effective date of such discipline; 3. respondent’s inability to act as an attorney after the effective date of such discipline; 4. the location and identity of the custodian of the clients’ files and records which will be made available to them or to substitute counsel; 5. that the clients may wish to seek legal advice and counsel elsewhere; provided that if respondent is a member of a law firm, the firm may continue to represent each client with the client’s express written consent; 6. the address to which all correspondence to respondent may be addressed.

IT IS FURTHER ORDERED that in accordance with MCR 9.119(B), respondent must, on or before the effective date of the order, in every matter in which respondent is representing a client in litigation, file with the tribunal and all parties a notice of respondent’s disqualification from the practice of law. IT IS FURTHER ORDERED that respondent shall, within 14 days after the effective date of the order, file with the Grievance Administrator and the Attorney Discipline Board an affidavit of compliance as required by MCR 9.119(C).

IT IS FURTHER ORDERED that respondent’s conduct after the entry of this order but prior to its effective date, shall be subject to the restrictions set forth in MCR 9.119(D); and respondent’s compensation for legal services shall be subject to the restrictions described in MCR 9.119(F).

IT IS FURTHER ORDERED that respondent shall, on or before October 27, 2007, pay court reporting costs incurred by the Board for the review hearing conducted on May 17, 2007 in the amount of $106.50. (These costs are in addition to the unpaid costs of $7,607.19 assessed in the order of the hearing panel.) Costs may be paid by check or money order made payable to the State Bar of Michigan but submitted to the Attorney Discipline Board, 211 West Fort St., Ste. 1410, Detroit, MI 48226, for proper crediting. ATTORNEY DISCIPLINE BOARD By: /s/ William P. Hampton William P.

Hampton, Chairperson DATED: September 28, 2007 Board members William P. Hampton, George H. Lennon, Hon. Richard F. Suhrheinrich, William J. Danhof and William L. Matthews, C.P.A. concur in this decision. Board members Lori McAllister, Rev. Ira Combs, Jr., and Billy Ben Baumann, M.D. did not participate. Board member Andrea L. Solak was voluntarily recused. STATE OF MICHIGAN Attorney Discipline Board Grievance Administrator, Petitioner/Appellant/Cross-Appellee, v Carl M. Weideman, III, P 47032, Respondent/Appellee/Cross-Appellant, Case No. 05-79-GA Decided: September 28, 2007 Appearances: Nancy R.

Alberts, for the Grievance Administrator, Petitioner/Appellant/Cross-appellee Robert H. Golden, for the Respondent/Appellee/Cross-Appellant BOARD OPINION The hearing panel found that respondent breached his fiduciary obligations, as executor of a California decedent’s estate, in loaning the estate funds to himself and/or his firm to finance litigation and pay personal debts, and made misrepresentations regarding the availability of the funds to the California court, to counsel, and to the Grievance Administrator. The panel imposed a suspension of 90 days.

The Grievance Administrator filed a petition for review arguing that the panel erred in failing to find that respondent violated the criminal law of California, and in failing to impose greater discipline in light of respondent’s mishandling of estate funds and his misrepresentations. Respondent filed a cross-petition arguing that the panel had no jurisdiction to consider respondent’s conduct as a California fiduciary, or to determine whether his conduct violated California law, and that the panel erred in concluding respondent lied to others about the amount of estate assets in respondent’s trust account.

We affirm the panel’s findings of misconduct and modify the order of discipline to require a suspension of four years. I. Factual Background. Robert H. Weideman lived and died in California. Respondent, a Michigan lawyer, practiced law with his father, who was the first cousin of the decedent. Respondent was appointed executor of the estate in February, 2001. The amended formal complaint charged respondent with various misconduct stemming from respondent’s “loan” of estate funds to himself as a shareholder of Weideman & Weideman, P.C.

We will set forth in some detail the chronology of respondent’s receipt of the estate funds, his use of the funds, the delay in distributing assets to beneficiaries, misrepresentations to the California court and counsel, a misleading response to the Request for Investigation, and, ultimately, payment of estate proceeds to the most assertive beneficiaries who had retained counsel. This payment was made only after respondent received funds from the settlement of an unrelated matter handled by his firm. On June 30, 2001, respondent’s IOLTA account had a balance of $10,927.88.

On or about July 2, 2001, respondent received $264,905.20 on behalf of the Weideman estate, which he deposited into his IOLTA account contrary to the requirements of the California Probate Code. During July, 2001, varying amounts were withdrawn and paid to Weideman and Weideman PC, and $25,000 was transferred to the Savings Bank of Albania to repay a personal loan made to respondent by his brother-in-law. As of July 31, 2001, the balance in respondent’s IOLTA account was $224,920.08. Respondent is not a California attorney. He retained California counsel to assist in probating the estate.

In August, 2001, respondent’s counsel wrote the first of several letters requesting accounting information from respondent. On March 18, 2002, counsel filed a motion for leave to withdraw as attorneys for the executor reciting respondent’s failure to answer these letters. The motion further stated that a final certified letter was sent January 25, 2002, that respondent’s father replied on February 7, 2002 “indicating that the Executor was ready to submit the accounting information,” and that as of March 18, 2002, the date the motion was filed, no such information had been received by counsel.

Finally, on September 12, 2002, respondent filed, through counsel, a First and Final Account and Report of Executor, Petition for Approval cf Accounts, etc. The Account, signed by respondent under the penalty of perjury, showed cash on hand in the amount of $258,888.28. On that day, September 12, 2002, the balance in respondent’s IOLTA account was $171,714.01. In February, 2003, respondent’s counsel renewed his motion to withdraw explaining that respondent now refused to sign a supplemental accounting.

Respondent filed, in pro per, objections to his counsel’s fee requests and a request that he be allowed to distribute only half of the estate’s cash to beneficiaries. On that day, May 5, 2003, respondent’s IOLTA account had a balance of $147,202.78. On May 7, 2003, the California court issued an Order Settling the First and Final Account, etc., which recited that the “total value of the property on hand is $266,609.48, of which $258,888.23 is cash.” Respondent was directed to distribute the decedent’s entire residuary estate. Respondent did not do so.

On December 4, 2003, the surety company filed petition requiring various relief including deposit into court of estate funds. On January 6, 2004, various beneficiaries represented by California attorney James Morris filed an application for order to show cause regarding respondent’s failure to obey the court’s order authorizing final distribution. Attorney Morris also filed a Request for Investigation reciting the history of respondent’s refusal to distribute the estate to beneficiaries and stating Morris’s suspicion that respondent may have commingled and misappropriated estate funds.

The Request for Investigation was received by the Attorney Grievance Commission on February 2, 2004. On March 29, 2004, respondent deposited a check for $269,292.03 into his IOLTA account which check was from the settlement of an unrelated lawsuit in which respondent represented one Harold Kowal. On or about April 30, 2004, respondent issued a check to James Morris, attorney for several beneficiaries, in the sum of $191,552.44 for distribution to his clients.

Respondent’s answer to the Request for Investigation does not respond to the allegations of misappropriation and attaches an account certification letter from Comerica dated April 5, 2004, and showing that as of April 2, 2004, there was $423,324.74 in the Weideman and Weideman PC IOLTA. II. Misconduct Found By The Hearing Panel.

During an investigatory statement under oath at the offices of the Attorney Grievance Commission on January 19, 2005, respondent produced a “Line of Credit Agreement” reciting that “[respondent] is desirous of financing” the Kowall litigation in Oakland Circuit Court, and that the estate “has money available for which it would be preferable to earn interest.” The document provides that “for the duration of [the] case” the estate shall make funds available to respondent “as he shall deem appropriate for the prosecution of [the case].” Interest at 7% per annum is provided and respondent signed as executor and again as the president of Weideman and Weideman, P.C.

The only beneficiary, indeed the only person, respondent told about the loan was his father. At the time, respondent’s father was engaged in the practice of law with him. As we have set forth above, respondent did not keep the estate funds in a separate account and preserve them, but instead placed them in the Weideman and Weideman P.C. IOLTA account and used the funds to pay business and personal expenses.

The hearing panel concluded that respondent violated MRPC 3.3(a)(1), (2), and (4) as charged in Count One of the complaint: [R]espondent represented to the probate court that he had cash on hand belonging to the estate in the amount of $258,888.23. Respondent knew at the time that he made the representation to the California probate court that he did not have cash on hand in this amount.

As a result, by making this representation and failing to inform the California probate court of the deposit of the funds in his law firm’s IOLTA and subsequent loan to himself, respondent misrepresented the amount of cash on hand belonging to the estate. [HP Report, p 7.].

The panel also found, with respect to Count Two, that “respondent did intentionally make false, misleading and deceptive statements to attorneys Allard and Gibson” when he “represented to these attorneys, in conjunction with the administration of the probate estate, that these funds were in cash and were available for distribution.” In reality, the panel found, and respondent admitted, that he had “loaned those funds to himself,” Count Three charged that respondent failed “to fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct in answer to [the] request for investigation” filed by California attorney James Morris by engaging in “false, misleading and deceptive behavior in attaching the April, 2004 account certification, and failure to disclose that $269,292.03 did not belong to [the] estate but were settlement proceeds from a separate lawsuit” (HP Report, p 8).

The panel found misconduct here as well, specifically that the certification was submitted by respondent for the purpose of misleading and deceiving the Grievance Administrator into believing that the law firm’s IOLTA account had sufficient funds to reimburse the probate estate for the funds deposited into the IOLTA.

In this regard, respondent failed to respond to the specific question as to the balance in the IOLTA at an earlier time because to do so would have revealed that the IOLTA had insufficient funds to reimburse the probate estate for the funds deposited into the IOLTA. [HP Report, p 9.] The funds from the settlement of the Kowal litigation (which had yet to be disbursed to clients and those to whom costs were owed) amounted to $269,292.03. Subtracting that from $423,324.74 (the amount shown on the certification), leaves $154,032.71.

The estate funds, had they not been invaded by respondent, would have totaled $258,888.23. Thus, respondent’s account was in deficit by at least $104,855.52 as of the date of his answer to the request for investigation in April, 2004. The panel found that the conduct established under Count Three was in violation of MCR 9.104(A)(1)—(4) and MRPC 8.1(a)(1) and (2) and 8.4(a)-(c). The hearing panel next found that respondent committed misconduct alleged in Count Four by: (

a) placing estate funds in his law firm’s IOLTA and not in a bank account payable in United States funds, (

b) commingling estate funds with professional funds in his law firm’s IOLTA, (

c) using estate funds for personal and professional purposes, and (

d) making a loan to himself with estate funds. [HP Report, p 9.] The panel determined that this conduct violated various provisions of the California Probate Code constituted “self dealing,” and that “respondent violated his fiduciary obligations to the estate,” all in violation of MCR 9.104(A)(1)—(4) and MRPC 8.4(a)-(

c) as alleged in the formal complaint. In sum, the panel expressly declined to find that respondent commingled estate funds with his own as alleged in Count One. Nor did the panel find a violation of former MRPC 1.15(a)-(c), as alleged in Count Five, which asserted that a deficiency in respondent’s trust account existed following the deposit of the estate funds and that commingling and misappropriation were the result. However, the panel did find that respondent violated his fiduciary duties with respect to the handling of the estate funds as described more fully above.

The Administrator does not seek review of the panel’s factual findings. Respondent’s arguments as to the panel’s factfinding simply ask us to weigh the evidence anew and amend the panel’s credibility determinations. These arguments are rejected and will not be discussed further. Grievance Administrator v. Carrie L.P. Gray, 93-250-GA (ADB 1996) (“it is not the Board’s function to substitute its own judgment for that of the panels’ or to offer a de novo analysis of the evidence”), Iv den 453 Mich. 1216 (1996). III. Panel Rulings Regarding Violation of California Probate and Criminal Law.

The hearing panel rejected respondent’s arguments that the Michigan Rules of Professional Conduct do not apply to his conduct while acting as a California executor and that the panel had no authority to determine whether respondent violated California law. The panel concluded that respondent’s acts violated the California Probate Code, but was “not persuaded that the Grievance Administrator has met its burden of proof that respondent violated either California or Michigan criminal law.” On review, respondent offers cursory attacks on the panel’s jurisdiction.

A eonclusory recitation of alleged error is insufficient to trigger this Board’s review. See Grievance Administrator v. Frederick A. Potman, 93-47-GA; 94-157-GA (ADB 1997), citing Mitcham v. City of Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959), and Taunt v. Moegle, 344 Mich. 683, 686-687, 75 N.W.2d 48 (1956). While we consider respondent’s arguments abandoned, and without exception baseless, we will briefly discuss them.

First, respondent argues: There is no authority anywhere in the Michigan Court Rules, statutes or case law which gives the Michigan Grievance Administrator jurisdiction to complain of, and the Attorney Discipline Board to hear, violations of other states [sic] criminal or probate code in court proceedings taking place in that other state.

In fact the only mention of violations which take place in other states in the jurisdiction granting sections of the Michigan Court Rules is to be found at MCR 9.104(B): “Proof of an adjudication of misconduct in a disciplinary proceeding by another state or a United States court is conclusive proof of misconduct in a disciplinary proceeding ■ in Michigan ...” [Respondents’ Brief on Appeal, pp 7-8.] This argument completely ignores MCR 9.104(A)(5) in which the Michigan Supreme Court plainly defined misconduct to include “conduct that violates a criminal law of a state or of the United States” (emphasis added).

The panel’s ruling from the bench and its written Report are firmly and correctly predicated on MCR 9.104(A)(5). Respondent’s argument also disregards the plain language of MRPC 8.4(

c) stating that it is misconduct to “engage in ... violation of the criminal law....” Notwithstanding respondent’s argument, this Board and its panels have in fact found misconduct based on violation of the criminal law of other states, as well as upon violation of the probate law of another state. This is hardly remarkable; other jurisdictions follow a similar approach.

See, e.g., In re Slattery, 767 A.2d 203 (D.CApp., 2001) (“In construing the phrase ‘criminal act’ for purposes of Rule 8.4(b), this court may properly look to the law of any jurisdiction that could have prosecuted the respondent for the misconduct,” and conviction is not necessary to pursue disciplinary charges.) Also, respondent argues that either our Rules of Professional Conduct or the authority of the Board and panels cannot have “extraterritorial application.” Given the utter lack of support advanced for such an argument, as well as the commentary of noted authorities in this area to the contrary, we find respondent’s argument to be groundless: A state disciplinary authority has, in general, the power to discipline a person admitted to the bar in that jurisdiction even though the acts complained of occurred outside the jurisdiction....

The rationale for the extraterritorial application of ethics rules is easy to understand.

The purpose of lawyer discipline is not to punish (although the lawyer may be deprived of her livelihood) but rather to “seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministrations of persons unfit to practice.” Given this rationale, if the lawyer engages in improper conduct—even if she engages in the conduct while not acting as a lawyer (e.g., lying to secure a real estate license), and even if the improper conduct occurs outside of the jurisdiction of Stat A, that conduct still reflects on the ability of that lawyer to practice in State A.

The lawyer’s admission to practice in State A (even thought State A is not the site of her improper act) gives State A the jurisdiction to discipline the lawyer. [Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility 2007-2008, § 8.5-1, pp 1213-1214. Footnotes omitted.] Moreover, to the extent it even makes sense to try to pin down the situs of respondent’s acts and omissions, the misconduct clearly took place in Michigan. Michigan is where the Weideman and Weideman, P.C. IOLTA account was located.

Some misrepresentations may have been repeated in California, but they originated here. Finally, the misleading conduct during the AGC investigation clearly took place in Michigan. Respondent’s arguments in this regard, and the argument that this Board and the panel cannot act where a California court has not acted, are specious. The Administrator argues that the hearing panel’s findings that respondent secretly loaned estate funds in violation of the California Probate Code should also have resulted in a finding that respondent violated

Section 506 of the California Penal Code. Citing the Code and caselaw, the Administrator contends that the intent to restore funds is not a defense to a charge under this section. This proposition appears to be correct. Indeed, additional cases not cited provide support for the argument that a California criminal law violation might be established if fraudulent intent within the meaning of that state’s jurisprudence could be established. For example, in People v.

Talbot, 220 Cal. 3, 28 P.2d 1057 (1934), the California Supreme Court stated: The element of felonious intent in every contested criminal case must necessarily be determined from the facts and circumstances of the case.... “An officer or agent of a corporation cannot take money of the corporation which is entrusted to him, or which comes into his possession by virttie of his office or agency, and use it even temporarily for his personal benefit and avoid criminal responsibility by calling it a loan.

The law calls such a transaction a wrongful conversion, from which a fraudulent intent can be inferred.” [220 Cal. at 15, 28 P.2d 1057; citations and internal quotation marks omitted; emphasis added.] And, in Seavey v. State Bar of California, 4 Cal.2d 73, 47 P.2d 281 (1935), an attorney was convicted under

Section 506 of the Penal Code for secretly loaning funds he managed under a power of attorney during liquidation of a partnership. Arguments that he was acting in the best interest of the principals and did not himself profit were unavailing. However, we decline to disturb the panel’s determination regarding the alleged violation of the California Penal Code given that the issue of “fraudulent intent” within the meaning of California law was not squarely addressed, and in light of the panel’s unchallenged findings as to respondent’s intent (discussed further in the following section). IV.

Appropriate Level of Discipline. Our Supreme Court has directed the Board and hearing panels to use the American Bar Association (ABA) Standards for Imposing Lawyer Sanctions when determining the appropriate level of discipline for misconduct Grievance Administrator v. Lopatin, 462 Mich. 235, 612 N.W.2d 120 (2000). The Court explained that The inquiry begins with three questions:

(1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system or the profession?)

(2) What was the lawyer’s mental state? (Did the lawyer act intentionally, knowingly, or negligently?)

(3) What was the extent of the actual or potential injury caused by the lawyer’s conduct? (Was there a serious or potentially serious injury?) [Lopatin, 462 Mich, at 239-240, 612 N.W.2d 120 (quoting ABA Standards, p 5).] We set forth the following steps of the analysis under the Standards in Grievance Administrator v. Ralph E. Musilli, No. 98-216-GA (ADB 2000): Next, the hearing panel examines recommended sanctions based the answers to these questions. Lopatin, 462 Mich, at 240, 612 N.W.2d 120; ABA Sanctions, pp 3, 4-5. Then, aggravating and mitigating factors are considered. Id.

And, in Michigan, the final step of the process involves a consideration of other factors, if any, which may make the results of the foregoing analytical process inappropriate for some articulated reason. As the Court explained in directing this Board and the panel’s to follow the Standards: We caution the ADB and hearing panels that our directive to follow the ABA standards is not an instruction to abdicate their responsibility to exercise independent judgment.

Where, for articulated reasons, the ADB or a hearing panel determines that the ABA standards do not adequately consider the effects of certain misconduct, do not accurately address the aggravating or mitigating circumstances of a particular case, or do not comport with the precedent of this Court or the ADB, it is incumbent on the ADB or the hearing panel to arrive at, and explain the basis for, a sanction or result that reflects this conclusion. [Lopatin, 462 Mich, at 248 n. 13, 612 N.W.2d 120.] A. Mishandling of Estate Funds. This case is somewhat similar to the matter of Grievance Administrator v. Frederick A.

Petz, 99-102-GA (ADB 2001) (disbarment is the presumptively appropriate discipline for intentional conversion of client funds and should be imposed absent compelling mitigation). Like respondent, Mr. Petz did not intend to permanently deprive the rightful owners of their funds which he “invested” in his partnership without authorization. However, distinctions between that case and this one include the fact that Petz involved deliberate conversion of client funds, and that a violation of MRPC 1.15 was found by the panel and not contested on review. Also relevant is Grievance Administrator v. Ronald P.

Derocher, 99-98-GA (ADB 2000), appropriately cited for the proposition that the absence of an intent to permanently deprive the rightful owner of his or her funds is no defense to misappropriation. Again, however, Derocher involved a violation of MRPC 1.15. Because client funds are not involved, ABA Standard 4.1 is inapplicable to the misconduct here. Grievance Administrator v. Rodney Watts, 05-151-GA (ADB 2007).

However, the Administrator urged the panel to apply ABA Standard 4.11 and disbar respondent, arguing that the conduct here is analogous to that described in Standard 4.11, which provides: “Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.” We do not disagree with the tenor of the Administrator’s argument that the intentional misappropriation of funds belonging to a non-client third party should, as a general proposition, be considered to be as serious as the theft of client funds.

See, e.g., Watts, supra (comparing ABA Standards with proposed Michigan Standards and concluding “it is untenable to give this respondent a ‘break’ simply because he stole money belonging to another lawyer rather than money belonging to a client”). However, as we have noted, the hearing panel did not find a violation of MKPC 1.15, misappropriation, embezzlement or theft, and these findings and conclusions are not challenged on review.

Rather, the Grievance Administrator’s brief on appeal characterizes this matter as follows, “Respondent loaned estate monies to himself without court approval and with no notice to interested parties in violation of the California Probate Code. Respondent told no one except his father (his law partner) about the loan.” The panel also did not find a violation of criminal law, as we have noted above, and so did not apply ABA Standard 5.11(

a) which provides that disbarment is generally appropriate when a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of Justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses[.] On review, the Administrator argues that disbarment would be appropriate under ABA Standard 5.11(a).

However, in light of the panel’s determination that the loan did not rise to the level of theft or misappropriation, it does not appear that this Standard is clearly applicable. We emphasize, however, that lawyers are bound to act as fiduciaries whenever they handle funds of a client or another. Not infrequently lawyers serve—pursuant to agreement, court order or otherwise— as executors, personal representatives, trustees, agents or in other such fiduciary capacities.

Prior to and after the Lopatin Court’s adoption of the ABA Standards for Imposing Lawyer Sanctions in 2000, discipline for conversion of funds held in such roles has ranged from a suspension requiring reinstatement proceedings to disbarment. See, e.g., Neaton, supra, n. 4 (revocation), Grievance Administrator v. Myles B. Hoffert, 99-79-GA (HP Consent 2003) (Panel imposed three years by consent for respondent’s use of trust funds for business entities and personal use while serving as trustee), Grievance Administrator v. William J.

Conlin, 93-215-GA (HP 1994) (One year suspension where respondent misappropriated $28,000 from an account held in his capacity as a trustee and repaid several months later), Grievance Administrator v. Peter B. Short (HP 1988) (Revocation for mishandling of two estates, which included false accountings, commingling, misappropriation, i.e., “investing” funds in his own name allegedly on behalf of the beneficiaries).

While we defer to the panel’s uncontested findings in this case, we wish to make it very plain that, in general, a secret loan arrangement by a lawyer in violation of fiduciary duties is serious misconduct. Indeed, because “the likelihood of actual embezzlement is so great, and the policy of professional responsibility in protecting the client from such risks is so strong,” such conduct should, in the future, generally be regarded as tantamount to knowing conversion. B. Misrepresentation.

Count One of the formal complaint alleged that respondent’s “knowing and material misrepresentations to the probate court that he had cash on hand belonging to the estate of $258,888.23, were untrue, and were made in violation of MCR 9.104(A)(l)-(4), MRPC 3.3(a)(1), (2) and (4), and MRPC 8.4(a)-(c).” The hearing panel found that these charges of misconduct were established.

Specifically, the panel found that respondent “knew at the time that he made the representation to the California probate court that he did not have cash on hand in this amount.” In light of these allegations and findings regarding respondent’s mental state, the panel correctly applied Standard 6.12 (suspension generally appropriate for submission of knowingly false documents or statements to a court). However, we agree with the Administrator that the discipline should be increased. The misrepresentations in this case were at least as serious as those in Grievance Administrator v. Russell G.

Slade, ADB 150-89 (ADB 1991) (three year suspension for respondent’s failure to inform the court and opposing parties of the death of his client, the plaintiff, in pending litigation). Our opinion in Slade, supra, is also apposite with respect to the misrepresentation to California counsel in the probate proceedings. We note the panel’s finding that respondent made intentionally false, misleading and deceptive statements to two California attorneys and that Standard 5.11(

b) provides that disbarment is the generally appropriate sanction for such conduct when it “seriously adversely reflects on the lawyer’s fitness to practice.” The panel did not make an express finding as to this point. However, the panel did find, in applying other standards, that suspension was appropriate, in part because potential injury was caused by respondent’s conduct. We must also square the allegations in Count Two with those in Count One pertaining to misrepresentation which are essentially similar and were alleged and found to involve a “knowing” rather than intentional state of mind.

Finally, as we are directed to do by Lopatin, we consider Michigan precedent, in particular Slade, and we conclude that a lengthy suspension is appropriate. We have also considered the aggravating and mitigating factors identified by the panel and the parties. We note respondent’s previous 30-day suspension for neglect and several admonitions for similar conduct.

We also acknowledge that respondent made restitution with interest, or, rather, repaid the “loan.” However, respondent’s argument that injury or potential injury was nonexistent because the loan was secured by the “standing offer of settlement” in the Kowal litigation merits little credence for reasons too obvious to discuss. IV. Conclusion.

Taking into account all of the factors set forth in the ABA Standards and in Lopa tin, including the nature of the misconduct found by the panel, the proofs and findings as to respondent’s mental state, the degree of harm resulting from respondent’s conduct, aggravating and mitigating factors, and applicable precedent, we conclude that the circumstances of this particular case warrant an increase in discipline to a suspension of four years. Board members William P. Hampton, George H. Lennon, Hon. Richard F. Suhrheinrich, William J. Danhof, and William L. Matthews, C.P.A. concur in this decision.

Board members Lori McAllister, Rev. Ira Combs, Jr., and Billy Ben Baumann, M.D. did not participate. Board member Andrea L. Solak was voluntarily recused. STATE OF MICHIGAN Attorney Discipline Board [SEAL] MEMBERS lori McAllister CHAIRPERSON WILLIAM J. DANHOF VICE-CHAIRPERSON WILLIAM L. MATTHEWS, CPA SECRETARY GEORGE H. LENNON BILLY BEN BAUMANN, M.D. HON. RICHARD F. SUHRHEINRICH ANDREA L. SOLAK THOMAS G. KIENBAUM EILEEN LAPPIN WEISER JOHN F. VAN BOLT EXECUTIVE DIRECTOR MARKA. ARMITAGE DEPUTY DIRECTOR JENNIFER M. PETTY LEGAL ASSISTANT 271 WEST FORT ST.

SUITE 1410 DETROIT, MICHIGAN 48226-3236 PHONE: 313-963-5553 FAX: 313-963-5571 WWW.ADBMICH.ORG FINAL NOTICE OF SUSPENSION Case No. 05-79-GA Notice Issued: January 16, 2008 Carl M. Weideman, III, P47032, Grosse Pointe Woods, Michigan, by the Attorney Discipline Board, increasing a suspension of 90 days ordered by Tri-County Hearing Panel #22 to a suspension of 4 years. 1. Suspension—4 Years 2.

Effective October 27, 2007 The hearing panel found that respondent breached his fiduciary obligations as executor of a California decedent’s estate by loaning estate funds to himself and/or his law firm to finance litigation and to pay personal debts and that he made misrepresentations regarding the availability of the funds to counsel, a court in California and to the Grievance Administrator, The panel ordered a suspension of 90 days. The Grievance Administrator petitioned for review and respondent filed a cross-petition for review.

In an opinion issued September 28, 2007, the Attorney Discipline Board affirmed the hearing panel’s findings of misconduct but modified the order of discipline to require a suspension of 4 years. The respondent filed an application for leave to appeal in the Supreme Court. The Court denied respondent’s motion for a stay of discipline and, on January 8, 2008, the Court denied respondent’s application for leave to appeal. Total costs were assessed in the amount of $7,713.69. /s/ John F. Van Bolt John F.

Van Bolt Dated: JAN 16, 2008 STATE OF MICHIGAN Attorney Discipline Board GRIEVANCE ADMINISTRATOR, Attorney Grievance Commission, Petitioner, v CARL M. WEIDEMAN, III, P 47032, Respondent. Case No. 07-162-GA ORDER OF REVOCATION & RESTITUTION Issued by the Attorney Discipline Board Tri-County Hearing Panel # 15 This matter is before the panel upon the filing of Formal Complaint 07-162-GA charging that respondent, Carl M. Weideman, III, has committed acts of professional misconduct warranting discipline.

The panel has filed its report which includes application of the American Bar Association’s Standards for Imposing Lawyer Sanctions, its findings and conclusions as to misconduct and discipline, and being otherwise fully advised; NOW THEREFORE, IT IS ORDERED that respondent’s license to practice law in Michigan is REVOKED COMMENCING JULY 8, 2008. and until further order of the Supreme Court, the Attorney Discipline Board or a hearing panel, and until respondent complies with the requirements of MCR 9.123(

B) and (

C) and MCR 9.124. IT IS FURTHER ORDERED that the effective date of this order is July 8, 2008. IT IS FURTHER ORDERED that respondent shall, within 90 days (on or before September 16, 2008) pay restitution as follows: 1. Gazmend Dervishaj - $3,000.00 2. Klodian Yzo - $1,200.00 3. Dionis Kasolli - $2,500.00 TOTAL: $6,700.00 Respondent shall file written proof of payment with the Attorney Grievance Commission and the Attorney Discipline Board within 10 days of the payment of restitution to each person. IT IS FURTHER ORDERED that respondent shall not be eligible for reinstatement in accordance with MCR 9.123(

A) or (

B) unless respondent has fully complied with the restitution provisions of this order. IT IS FURTHER ORDERED that from the effective date of this order and until reinstatement in accordance with the applicable provisions of MCR 9.123, respondent is forbidden from practicing law in any form; appearing as an attorney before any court, judge, justice, board, commission or other public authority; or holding himself out as an attorney by any means.

IT IS FURTHER ORDERED that respondent shall, in accordance with MCR 9.119(A), within seven days after the effective date of this order, notify all of his active clients, in writing, by registered or certified mail, return receipt requested, of the following: 1. the nature and duration of the discipline imposed; 2. the effective date of such discipline; 3. respondent’s inability to act as an attorney after the effective date of such discipline; 4. the location and identity of the custodian of the clients’ files and records which will be made available to them or to substitute counsel; 5. that the clients may wish to seek legal advice and counsel elsewhere; provided that if respondent is a member of a law firm, the firm may continue to represent each client with the client’s express written consent; 6. the address to which all correspondence to respondent may be addressed.

IT IS FURTHER ORDERED that in accordance with MCR 9.119(B), respondent must, on or before the effective date of the order, in every matter in which respondent is representing a client in litigation, file with the tribunal and all parties a notice of respondent’s disqualification from the practice of law. IT IS FURTHER ORDERED that respondent shall, within 14 days after the effective date of the order, file with the Grievance Administrator and the Attorney Discipline Board an affidavit of compliance as required by MCR 9.119(C).

IT IS FURTHER ORDERED that respondent’s conduct after the entry of this order but prior to its effective date, shall be subject to the restrictions set forth in MCR 9.119(D); and respondent’s compensation for legal services shall be subject to the restrictions described in MCR 9.119(F). IT IS FURTHER ORDERED that respondent shall, on or before July 8, 2008, pay costs in the amount of $2.7^6.01.

Check or money order shall be made payable to the State Bar of Michigan, but submitted to the Attorney Discipline Board [211 West Fort St., Ste. 1410, Detroit, MI 48226] for proper crediting. (See attached instruction sheet). ATTORNEY DISCIPLINE BOARD Tri-County Hearing Panel # 15 By: /s/ Miles A. Hurwitz Miles A. Hurwitz, Chairperson DATED: June 16, 2008 STATE OF MICHIGAN Attorney Discipline Board GRIEVANCE ADMINISTRATOR, Attorney Grievance Commission, Petitioner, v CARL M. WEIDEMAN III, P 47032, Respondent. Case No. 07-162-GA REPORT OF TRI-COUNTY HEARING PANEL # IS PRESENT: Miles A.

Hurwitz, Chairperson Robert S. Gazall, Member Robert L. Willis, Member APPEARANCES: Nancy R. Alberts, Associate Counsel for the Attorney Grievance Commission Carl M. Weideman, III, In pro per I. EXHIBITS Petitioner’s Exhibit 1: Sixth Circuit Docket Statement re: Dervishaj Petitioner’s Exhibit 2: Weideman & Weideman, P.C.

IOLTA Statement Petitioner’s Exhibit 3: Transcript of Respondent’s Sworn Statement, 6/13/07 Petitioner’s Exhibit 3A: Transcript of Respondent’s Sworn Statement, 9/14/07 Petitioner’s Exhibit 4: Correspondence from Respondent to Yzo, 4/7/04 Petitioner's Exhibit 5: Correspondence from Respondent to BIA Petitioner’s Exhibit 6: Correspondence from Atty Ayad to Respondent, 4/30/07 Petitioner’s Exhibit 7: Correspondence from Atty Lahti to Respondent, 9/25/06 Petitioner’s Exhibit 8: Excerpts from Kasolli Immigration File Petitioner’s Exhibit 9: List of Respondent’s Prior Misconduct Petitioner’s Exhibit 9A: Board Opinion, GA v.

Weideman, 05-79-GA Petitioner’s Exhibit 10: Docket Sheet from American Construction v. Weideman, 06-607687-CZ II. WITNESSES Namir Daman Gazmend Dervishaj Bette Jean Lahti Zeina Makki III.

PANEL PROCEEDINGS On October 31, 2007, the Grievance Administrator filed a three-count complaint alleging that respondent neglected three legal matters; failed to act with reasonable diligence and promptness, failed to keep the clients reasonably informed, failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions, failed to deposit client funds in an IOLTA account, failed to return unearned fees upon termination of representation, engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, and violated the Rules of Professional Conduct.

Respondent’s conduct is alleged to be in violation of MCR 9.104(A)(4) and Michigan Rules of Professional Conduct 1.1(c), 1.3, 1.4(a), 1.4(b)(a), 1.15(d), 1.16(d), and 8.4(

a) and (b). All three counts related to respondent’s representation of three clients in their individual immigration cases. The matter was assigned to Tri-County Hearing Panel # 15 and a hearing was scheduled for December 20, 2007 pursuant to MCR 9.115(G). On November 28, 2007, respondent’s default for failure to answer the formal complaint was filed. On December 6, 2007, respondent filed a motion to set aside the default, extend the time to file an answer and enter a stay of proceedings pending the resolution of an application for leave to appeal to the Michigan Supreme Court of a prior disciplinary order.

On .December 13, 2007, the panel granted, in part, and denied, in part, respondent’s motion. This panel set aside the default, however, respondent was ordered to file an answer within twenty-one days and an affidavit of facts establishing a meritorious defense. The panel adjourned the hearing but denied a stay of proceedings. On January 2, 2008, respondent filed an answer to the formal complaint. With respect to Count I, related to Gazmend Dervishaj’s immigration matter, respondent admitted that he was retained to file an appeal in the Sixth Circuit Court of Appeals.

Respondent admitted that he was required to file the client’s brief on appeal on November 7, 2005. He further admitted that on February 21, 2006, the Court dismissed Dervishaj’s appeal for failure to file a brief on appeal. Respondent denied that between February 21, 2006 and November 28, 2006, he represented to the client that his matter was still pending. Further, respondent admitted that he did not place the $3,000.00 previously paid fee in a client trust account. Respondent also admitted that he did not return unearned fees to Dervishaj.

As to the charges in Count II, all related to Klodian Yzo’s immigration matter, respondent admitted that in 2004, Yzo paid respondent $1,200.00 to file a motion to reopen his immigration matter. Respondent further admitted that he never filed such a motion. Respondent affirmatively stated that a motion was never filed because Yzo failed, after being requested on three occasions, to provide evidentiary support for his motion to reopen. Respondent admitted that he never placed the $1,200.00 fee in a client trust account. Respondent denied that he failed to return unearned fees to Yzo.

Respondent further denied that he made false representations to Yzo that he had filed the motion to reopen. The allegations in Count III were substantially similarly to those pled in Counts I and II, however, they related to Dionis Kasolli’s immigration matter. Respondent admitted that he was paid $2,500.00 in March of 2005, to file an appeal and brief with the Board of Immigration Appeals (BIA) on Kasolli’s behalf. Respondent denied that he failed to file a brief with the BIA and further, that the appeal was dismissed by the BIA for failing to file the brief.

He also denied that he failed to notify Kasolli of the dismissal. Respondent admitted that he did not file a motion to reopen the matter after being notified of the dismissal, but explained that he had been contacted by two other attorneys claiming to represent Kasolli during the time in which a motion to reopen could have been filed. Respondent admitted that he did not deposit the $2,500.00 in a client trust account, however, he denied that he failed to return unearned fees and failed to provide the client file to subsequent counsel.

Respondent also denied that he told subsequent counsel that the matter was still pending in the Sixth Circuit or that he failed to file the requisite brief. On February 7, 2008, petitioner filed a motion to amend the complaint to add a charge that respondent, in violation of the panel’s order, failed to file an affidavit of meritorious defense with his answer to the complaint. An order granting the motion to amend was entered on February 12, 2008. The hearing in this matter was held on April 3, 2008.

At that time, petitioner moved to reinstate the default against respondent for failure to file an affidavit of meritorious defense, a condition imposed at the time the panel set aside the original default. (Tr 04/03/08, pp 6-7.) The panel denied the motion to reinstate the default in light of respondent’s filing of an answer to the complaint. (Tr 04/03/08, p 12.) Respondent failed to attend the April 3, 2008, hearing. The hearing was briefly adjourned and phone contact was made with respondent three times. Respondent claimed that his notice of hearing indicated that the hearing was set for the following day.

Respondent indicated that he would not be attending the hearing which, thereafter, proceeded in his absence. (Tr 04/03/08, pp 9-11.) The panel received the testimony of the Grievance Administrator’s witness, Gazmend Dervishaj (Count I), who testified that in March of 2005, he hired and paid respondent $3,000.00 to file an appeal on his behalf. (Tr 04/03/08, p 19.) He had been in the country as a foreign exchange student and, after this status expired, he attempted to seek political asylum. (Tr 04/03/08, p 20.) Dervishaj frequently called respondent about his case.

Respondent repeatedly told him to “sit tight” and that he would get a call as soon as respondent heard something. (Tr 04/03/080000, p 21.) When Dervishaj became concerned about his appeal, he contacted, Namir Daman, another immigration attorney, in November of 2006. (Tr 04/03/08, pp21, 23, 32.) Daman testified that he retrieved the docket sheet from PACER, the online public access service that allows users to obtain docket information. (Tr 04/03/08, p 32. ) In Daman’s opinion, most immigration attorneys would know how to use this service. (Tr 04/03/08, p 40.) From the docket sheet, Daman discovered that Dervishaj’s appeal had been dismissed on February 21, 2006, for failure to file the brief on appeal. (Tr 04/03/08, p 33. ) With the documentation in hand, Dervishaj called respondent on a speaker phone to inquire into the status of his case. (Tr 04/03/08, p 21-22.) Dervishaj and Daman both heard respondent claim that the case was still pending in the Court of Appeals. (Tr 04/03/08, pp 21, 36.) Dervishaj testified that respondent had never returned any money to him but he admitted that he had not requested the return of money. (Tr 04/03/08, pp 23, 26.) When Dervishaj confronted respondent about the dismissal of his case, respondent shook his head and said, “I know, I know.” Then he said, ‘We’ll take care of it.” (Tr 04/03/08, pp 28-29.) Daman testified that by filing a Lozada motion, arguing ineffective assistance of counsel, he was able to get Dervishaj’s appeal reinstated. (Tr 04/03/08, pp 37-38, 48.) However, during respondent’s representation, when the appeal was dismissed in February of 2006, Dervishaj was deemed a fugitive.

He could have been picked up, detained and deported at any time. (Tr 04/03/08, pp 33-34.) After Dervishaj and Daman testified, attorney Bette Jean Lahti testified regarding respondent’s representation of Dionis Kasolli (Count III). Kasolli would not be testifying as he had been picked up by the Immigration Service and was currently being held in a detention facility. (Tr 04/03/08, p 53.) Lahti’s representation of Kasolli began on September 25, 2006 after he was referred to her by attorney James Elsman.

Lahti spoke with respondent on that day and he admitted that Kasolli’s appeal had been dismissed for failure to file a brief which he had been paid to prepare. (Tr 04/03/08, pp 58-59.) Later, Lahti learned that the BIA had issued its decision on June 26, 2006, dismissing Kasolli’s appeal for failing to file a brief on appeal. (Exhibit 8.) Respondent misled her and other attorneys to believe that the dismissal was older than that.

In Lahti’s opinion, had respondent been forthcoming to her and other attorneys, a motion to reopen could have been filed in a timely manner. (Tr 04/03/08, p 65.) According to Lahti, respondent knew that the appeal was in jeopardy because in August of 2006, he received a “bag and baggage” letter, which notified him that because of the dismissal, Kasolli was at risk of being deported. (Tr 04/03/08, pp 70-71.) Lahti also explained that respondent filed a timely appeal, however, the brief that was due on March 14, 2006, was never filed. (Tr 04/03/08, pp 75-77.) Lahti made several attempts to get all or part of Kasolli’s file from respondent.

Respondent failed to cooperate. (Tr 04/03/08, pp 55, 59.) After Lahti’s testimony, the Grievance Administrator offered the testimony of attorney Zeina Makki in support of the allegations made in Count II of the complaint relative to respondent’s representation of Klodian Yzo.

Yzo would not be available to testify on his own behalf as he had been deported to Albania. (Tr 04/03/08, p 91.) Makki assisted attorney Nabih Ayad in the subsequent representation of Yzo when the client came to them in April of 2007. (Tr 04/03/08, pp 90-91, 99.) At that time, Yzo was “out of status,” which meant that because he had no current visa and no appeal was pending, he was deportable. (Tr 04/03/08, p 102.) Makki picked up Yzo’s file from respondent. She was specifically looking for a videotape, original birth certificate and a news

article provided to respondent by Yzo in 2004, which would be the factual support for the motion to reopen on the grounds of changed country conditions. (Tr 04/03/08, pp 95-96, 107.) These items were not in the file and respondent claimed that he had misplaced them during a move. (Tr 04/03/08, p 96.) She eventually got the things from respondent.

When Makki reviewed the materials provided, she found a document dated August 15, 2004 (Exh. 5), which purported to be a cover letter to the BIA representing that a motion to reopen was accompanying the letter for filing. (Tr 04/03/08, p 103.) When Makki contacted the BIA to ascertain whether respondent had filed a motion to reopen the case as he was hired to do, she was informed that no motion had been filed. (Tr 04/03/08, p 98.) Although respondent claimed in his answer that he did not file a motion to reopen because Yzo had not provided requested evidentiary materials, Makki felt that there was enough information in the file eventually provided to her by respondent, to support the filing of such a motion. (Tr 04/03/08, p 104.) Although respondent chose not to attend the hearing, two of his sworn statements taken prior to the filing of the complaint were admitted into evidence. (Exhibits 3 and 3A.) On June 13, 2007, respondent testified that Dervishaj paid him $3000.00 in March of 2005. (Exh. 3, pp 4-5.) Respondent filed a petition for review and an extension of time because an administrative order was late in coming. (Exh. 3, p 4.) Respondent admitted that after being granted one extension, the brief in Dervishaj’s case was due on November 7, 2005.

Respondent admitted that he never filed a brief but explained that the client had decided to abandon the appeal and attempt to “adjust his status” through an alternative avenue. (Exh. 3, p 6.) When confronted with the inconsistency between this position and the position respondent took in response to the investigation (that Derv

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