Reprimand For Insufficient Remedial Action Of Client Fraud

The Arizona Presiding Disciplinary Judge approved a consent reprimand

Mr. Warner was retained by Client to remove allegedly defamatory statements about Client from the internet. According to Client, all the allegedly defamatory statements were written by a woman named Krista Ivanski, who would cooperate to have the statements removed. He agreed to file a complaint and attempt to obtain a stipulated injunction against defamation and present them to various search engine entities of the internet.

Client provided Mr. Warner a list of approximately 55 web pages which Client claimed contained defamatory statements written by Ivanski. Mr. Warner reviewed the web pages and determined that several them did not contain defamatory statements despite Client’s claims. Based on his experience, Mr. Warner believed that Client’s demeanor and general communication was consistent with the conduct of a victim of internet defamation. He knew that some web pages frequently change. Mr. Warner never asked Client why the non offending web pages were included.

Prior to filing a complaint, Mr. Warner and others in his firm communicated with an individual identifying herself as defendant Ivanski. Ivanski’s contact information was provided by Client, however all communication between the firm and Ivanski was done via email. Although Mr. Warner never spoke with Ivanski on the phone or in person, he believed that the person with whom his firm communicated was Ivanksi.

Before filing the complaint for Client, Mr. Warner asked both Client and Ivanski to sign certain documents in front of a notary. The signed and notarized documents were returned to Mr. Warner’s firm. Subsequently, Mr. Warner filed a  complaint on behalf of Client in Maricopa County Superior Court. When he filed the complaint, Mr. Warner believed that both Client and Ivanski had verified the factual basis for the lawsuit under penalty of perjury and in the presence of real notaries.

The complaint alleges defendant Ivanski defamed Client by posting false statements about Client on 38 websites. Before filing the complaint, Mr. Warner reviewed the original 55 websites submitted by Client and determined that only 38 contained allegedly false statements that could be pursued in the complaint.

In June 2016, Mr. Warner filed a stipulated order for permanent injunction ostensibly signed by Ivanski. The Court entered the stipulated order for permanent injunction, and Mr. Warner submitted the injunction to Google with a request that the websites listed be de-indexed. Warner later learned the notarizations were fake.

On July 8, 2016, Google sent Mr. Warner’s firm an email regarding the deindexing request. It stated, “it is unclear whether the material in question was published by the defendant in the case, or by a third party not bound by the court’s order.” Google asked Mr. Warner to provide additional specified information. Mr. Warner certifies he had never previously received such a response from Google.

Mr. Warner submitted a revised request asking Google to de-index only the traditional gripe sites listed in the injunction. While this request was pending, Mr. Warner filed an amended Order for permanent injunction, which, at Client’s request, added one website to the previous list. Like the original stipulated order, Mr. Warner did not file this document until he received Ivanski’s ostensibly notarized signature on it. 

The request for an amended order for permanent injunction was granted by the Court. Mr. Warner informed Client that he would take no further action until Google responded to the revised de-indexing request. On August 29, 2016, Google responded, denying the revised request. Mr. Warner informed Client of the denial and provided him with three options for proceeding. Mr. Warner says he informed Client he believed Google had likely “blacklisted for suspected abuse” and felt that no explanation would convince Google to honor the de-indexing request.

The first website is a page containing statements about an alleged scam run by Client. The page claims Client uses several aliases including “Sara Wood” to run scams. Client provided Mr. Warner with the email address Sarawood776@gmail.com as a contact for Ivanski. Mr. Warner had already reviewed the pages before receiving the contact information and did not notice the possible connection between the email address and the statements in the first webpage.

The complaint states Ivanski resides in Turkey and Client resides in Colorado. Many documents filed by Mr. Warner contained a notarized signature by Client and Ivanski. The “Plaintiff’s Verification” attached to the complaint is signed by Client and notarized by John William Kichko, a legitimate notary in Fulton County, Georgia.

The proposed order signed by Ivanski and notarized by Amanda Sparks, a notary from Fulton County, Georgia. However, there is no notary in Fulton County named Amanda Sparks. Although neither Client nor Ivanski resided in Georgia, Client informed Mr. Warner that he and Ivanski were in Atlanta and would have the documents notarized there. Ivanski (or someone posing as her) emailed him on May 26, 2016, notifying Mr. Warner’s firm that she could get the proposed order notarized while travelling to the United States during June. Based on these communications, Mr. Warner says he saw nothing unusual or suspicious about the place where the signatures were ostensibly notarized.

The signature of Ivanski in the proposed Amended Order for Permanent Injunction was notarized by Samantha Pierce, a notary from Colorado. As Mr. Warner later learned, there is no notary in Colorado named Samantha Pierce. Further, the notary ID used by Samantha Pierce- 20121234567- is the same notary ID that appears in the sample notary seal displayed on the Colorado Secretary of State’s general notary information web page.

Then to the point of all this

On September 12, 2016, Client sent Mr. Warner a letter threatening a Bar charge if Mr. Warner failed to have the websites de-indexed or failed to provide a full refund. This letter prompted Mr. Warner to investigate the information previously provided by Client. Because of that investigation, Mr. Warner determined that Client had likely used his services to perpetrate a fraud.

On September 19, 2016, Mr. Warner sent Client a letter stating Client “committed perjury, likely defrauded the Maricopa County Superior Court” and was “likely engaging in a continuing criminal enterprise to defraud courts across the United States.” Mr. Warner acknowledged that he suspected Client initially but gave him the benefit of the doubt until he could no longer do so.

Thereafter, Mr. Warner severed ties with Client and refunded his fee. Mr. Warner failed to alert the Court of Client’s fraud because the representation had ended. Mr. Warner recognizes that he had a duty to inform himself of the facts of Client’s case and determine if he could make good-faith and non-frivolous arguments on Client’s behalf. Mr. Warner believed he met those duties pursuing Client’s claims until his investigation revealed otherwise. Mr. Warner acknowledges that, while lawyers may generally rely on the personal knowledge  of their clients in making allegations on their behalf, they have a continuing duty to evaluate the factual and legal basis for those allegations and cannot ignore facts that should prompt further investigation.

Mr. Warner admits in hindsight, that after receipt of Google’s rejection of original de-indexing request, he should have done further investigation. If he had done so, Mr. Warner believes that investigation may have revealed his client’s misconduct sooner and prevented the filing of the stipulation for amended order of permanent injunction. 

Misconduct

Mr. Warner should have done additional investigation to determine whether the claims asserted on behalf of his client were meritorious and, if they were not, to mitigate the client’s fraud to the extent possible. However, after the fraud was discovered, Mr. Warner only terminated the attorney-client relationship and returned the client’s money. This caused no harm to his client, and apparently none to the party in the case, but potential harm to the legal system.

The allegations in the complaint are troubling and raise multiple concerns. Parties can agree to resolve matters for several reasons. Compromises are often reached when the risk of proceeding to hearing is uncertain either way. Here, the presumption of innocence when coupled with the apparent absence of proof for the claims support prosecutorial discretion as well as the agreement by Respondent. The facts stipulated to warrant a finding of misconduct.

A second Arizona attorney was reprimanded  with two years probation for involvement in a similar client fraud. (Mike Frisch)