Made in the USA

Topic:
Disbarment is an appropriate sanction when an attorney intentionally misrepresents his residency status in applications for pro hac vice admission to state and federal courts.

The average daily January temperature in Bethesda, Maryland is 34° Fahrenheit and the lowest temperature ever recorded there was -11° Fahrenheit. It’s gray there a lot, especially in the winter, and the typical precipitation is 3.02 inches during the first month of the calendar year. Compare and contrast sunny Santa Monica, California, where the average daily January temperature is 64° Fahrenheit and the lowest low ever recorded was 33° Fahrenheit.[1] Santa Monica is home to starlets, Hollywood moguls, and is close to the original Muscle Beach. Bethesda has a lot of sick people and hospitals.

 

Is it any wonder that a professional man might prefer to live in Santa Monica rather than Bethesda? Joel D. Joseph is one such a man.

 

Mr. Joseph is apparently used to the finer things in life. The biography on his website[2] lists him as attending Edinburgh University in Scotland and receiving a Bachelor of Arts degree in Economics from Northwestern University. Thereafter, he attended the Georgetown University Law Center where he obtained his Juris Doctor in 1973. He was admitted to practice law in Maryland on April Fools Day, 1981. His website seeks the business of cultured and creative individuals. At his homepage [3] , he writes:

 

Protecting Designs of Craftsman and Artists

 

Mr. Joseph strives to protect the rights of independent craftsmen and designers who have had their creations copied overseas.  He will help you copyright and trademark your work for a reasonable fee and bring actions against companies who are infringing your designs.

What better place to capture the Craftsman ethos than Southern California? Why, Santa Monica is a scant 25 miles from Pasadena, home to many Greene and Greene bungalows.

 

Mr. Joseph had a substantial practical problem in wanting to carry out his professional activities in California. He was never licensed to practice law there. It seems as though he had a part-time self-professed “national practice” and was able to be admitted pro hac vice in 25 different jurisdictions, mostly federal courts, across the United States.

 

In March 2007, he contacted the Law Offices of Robert M. Moss, the law firm of a solo practitioner based in Santa Monica. He spoke with Moss’s office administrator and paralegal assistant, Suzanne Brewer. Joseph told Brewer that he was a Maryland attorney looking for local counsel to sponsor his admission pro hac vice and act as co-counsel in cases to be filed in California courts. Joseph told Ms. Brewer that he lived in Maryland, had an office in Maryland and had been practicing there, “for years.” Soon thereafter, Joseph and Moss entered into an agreement to work together on two cases: Wartell v. United States  and Pribyl v. K-2 . Joseph already had retainer agreements with the plaintiffs in both cases. The Wartell  case was filed in the United States District Court for the Central District of California. A document entitled Application of Non-Resident Attorney to Appear in a Specific Case was prepared and signed by Joseph, under the penalty of perjury. The Application indicated that Joseph’s out-of-state business information was as follows: Law Offices of Joel D. Joseph, 7272 Wisconsin Avenue, Suite 300, Bethesda, Maryland 20814. The Application also contained the following:

 

I am not a resident of, nor am I regularly employed, engaged in business, professional or other activities in the State of California.

 

Joseph gave the application to Brewer; it was then signed by Moss and duly filed. The K-2  case was a class action suit filed in the Superior Court of California, County of Los Angeles. Brewer prepared the Application of Joel D. Joseph Pro Hac Vice, using the information provided by Joseph in the Wartell  application. The application was signed by both Joseph and Moss. The caption in the upper left hand corner of the Application indicated that the address for the Law Offices of Joel D. Joseph was 7272 Wisconsin Avenue, Suite 300, Bethesda, Maryland 20814. The application included a Declaration of Joel D. Joseph in Support of Pro Hac Vice Application, which was signed under the penalty of perjury by Joseph. It represented that Joseph’s out-of-state address was also 7272 Wisconsin Avenue, Suite 300, Bethesda, Maryland 20814. It also included the statement:

 

I am not a resident of, nor am I regularly employed, engaged in substantial business,

professional or other activity in the State of California”

 

Both the application and the declaration were duly filed.

 

Thereafter, Brewer received a telephone call from Ms. Brandie Burroughs of the Office of Special Admissions & Specialization of the State Bar of California, concerning Joseph’s Application in the K-2 case. Burroughs related that the California State Bar had received the pro hac vice application, but the Bar needed to know Joseph’s residence address and would not approve the application until it had an address where he lived. Brewer agreed to provide the information. Brewer left Joseph a telephone message informing him about the State Bar request. Brewer recalled that she left the following message: “We have to have your residence address, the address where you live.” Later, Brewer received an e-mail from Joseph containing the following information:

 

My residence address in Maryland is 4938 Hampden Lane, Apt. 118,

Bethesda, MD.

 

Brewer, relying on Joseph’s e-mail, entered the information provided by him on a form provided by the State Bar on a line indicating: “Residential address f/Joel D. Joseph.” Although the email used the designation “Apt. 118,” Brewer wrote “#118" on the memo. She did so because there was not a lot of room provided. Joseph then came into the Moss law office and signed the form. At that time, Brewer asked Joseph about the address and Joseph told her that it was an apartment where he lived with his girlfriend. Brewer then returned the form to the State Bar.

 

After the Wartell  and K-2  filings, Moss and Joseph agreed to act as co-counsel in a class action in which Moss already represented a plaintiff, John Doe v. Panera LLC. This case was also filed in the Superior Court of the State of California for the County of Los Angeles. In furtherance of the arrangement, Brewer prepared an Application for Admission Pro Hac Vice for Joseph’s admission in the Panera  case. She again used the Maryland residence address information previously provided by Joseph. A document titled Declaration of Joel D. Joseph in Support of Pro Hac Vice Application was also included with the Application. The Declaration was also signed by Joseph under the penalty of perjury. The Declaration contained the representations that: “My out-of-state address is as follows: Law Offices of Joel D. Joseph, 4938 Hampden Lane, Suite 118, Bethesda, Maryland 20814” and that:

 

I am not a resident of, nor am I regularly employed, engaged in substantial business, professional or other activity in the State of California…

 

Both the Application and Declaration were then duly filed by Brewer with the Superior Court.

 

In early June, 2007, Brewer learned that Joseph maintained an apartment located on Ocean Avenue in Santa Monica, California. The apartment came to Brewer’s attention when she arranged for her husband to pick Joseph up and drive him to a mediation hearing in a case Moss was handling for Brewer’s husband. Brewer was familiar with the building and believed it had small units and catered to people that stayed there temporarily. Joseph told Brewer that he rented the apartment because it was cheaper than staying in a hotel when he came to California several times a month.

 

The following December, Moss moved his law practice to another office. The new office was within a suite of offices that Moss owned in the same building. At that time, Joseph agreed to rent office space from Moss. Joseph occupied that space from December 1, 2007 until mid-October 2008. Joseph would go to that office sporadically, sometimes he would be gone for a week or ten days and other weeks he would be in the office every day.

 

In early May 2008, Brewer received a phone call from opposing counsel in the Panera  case. The caller told Brewer that Joseph’s name did not appear on the online list of members of the Maryland Bar. Brewer called Joseph and told him that he was not in good standing with the Maryland Bar. Joseph responded by telling Brewer that he had not paid his bar dues, but would remedy the situation. Moss became distressed about Joseph’s failure to remain in good standing with the Maryland Bar because Joseph’s admission in the California cases was conditioned on his good standing in Maryland. About a week later, Brewer contacted the Maryland officials and confirmed that Joseph had been reinstated. During her conversation with Maryland officials, however, Brewer was asked to verify that the Ocean Avenue address in beautiful Santa Monica was Joseph’s correct address. This request was puzzling and she asked herself why Maryland would send a dues notice to Joseph at a California address if Joseph actually lived and practiced in Maryland. She alerted Moss to her concerns.

 

Moss was rightly growing more and more worried about Joseph’s living situation and he eventually confronted his tenant. Joseph told Moss that he had become engaged to be married and was now living full time in California. After hearing this, Moss asked Joseph to withdraw Joseph’s appearance in the K-2  and Panera  cases because Joseph could no longer have pro hac vice status due to his California residency. Thereafter, Brewer prepared the necessary documents to withdraw Joseph’s appearances. In October 2008, after Joseph had vacated the office space that he rented from Moss, Brewer came across a letter Joseph had written to the plaintiff in the Wartell case which Brewer had never seen before. In the letter, written in the spring of 2007, Joseph informed Wartell that he, Joseph, had “moved to Santa Monica recently.”

 

Brewer also discovered that Joseph had filed a pro se complaint in mid-2007 in the Superior Court for the State of California County of Los Angeles against Whole Foods Market California. In that suit, Joseph alleged that Whole Foods’ “Hawaiian Island Blend” coffee was improperly marked as a “Product of the USA,” when, it fact, the beans hailed from a country outside the USA. In the complaint, Joseph represented that: “Venue is proper in this County as the acts upon which this action is based occurred in part in this County. Plaintiff resides here…” In the Whole Foods  action, he represented that his address was 1223 Wilshire Boulevard, Suite 1413. In actuality, 1223 Wilshire Boulevard is the address of a UPS Store, a mailbox rental business. There are no residences or other offices at that address. Brewer also found out that the Hampden Lane address that Joseph told her about was his apartment in Maryland was actually a UPS store.

 

Business records provided by UPS indicated that, on or about July 13, 2007, Joseph had applied for his mail to be received by the UPS Store located in Maryland. The form signed by Joseph proved that the applicant’s ‘home address’ was 1223 Wilshire Blvd., # 1413, Santa Monica, CA, 90403. The UPS Store was authorized to receive mail for both Joseph and the Made in the USA Foundation, a non-profit business operated by Joseph. [4] He apparently provided the UPS Store with a California Driver License that had an issue date of May 14, 2007. It was later learned that he had filed tax returns with a California address and paid taxes in California in 2008 and 2009. He paid no income taxes in Maryland in 2008 or 2009. In 2007, he had no interest of any kind in rental property in Maryland, other than a post office box. In 2007, 2008, and 2009, he owned no property in Maryland. As late as June 2010, he maintained a rental office at 9935 South Santa Monica Boulevard. He was operating the Made in the USA Foundation from that location and also practiced law from there.

 

Eventually, the Maryland disciplinary authority was alerted to Joseph’s misrepresentations to the California courts, the Bar, Moss, and Brewer. He defended his actions by essentially suggesting that home is where the heart is and, apparently, he still loved Maryland a lot even though he was not located in the state. He told disciplinary authorities that the definition of the term resident is a “moving target” and that he never intentionally lied or misled any court or any person about his residential status. He was prosecuted for violating Maryland ethics guidelines.

 

The Maryland Supreme Court eventually concluded that there was clear and convincing evidence that Joseph had violated Rule 3.3(a)(1) because he was not candid in his applications for admission pro hac vice filed in California state and federal courts. Further, there was clear and convincing evidence that he had engaged in conduct involving dishonesty, fraud, deceit and/or misrepresentation, in violation of Rule 8.4(c), in his communications with the State Bar of California, Brewer and Moss. The Court declined to accept his argument that, if he believed that he was a domiciliary of the State of Maryland, he was, at all relevant times, a domiciliary of Maryland.

 

The issue here…does not rest on the technical definition of resident/domiciliary for voting or other purposes. Rather, the issue at the heart of this matter is whether Respondent was candid and/or truthful when he represented to the California Courts that he was not a resident of California for purposes of the rules governing admission to the Courts in which he sought to practice. Was Respondent truthful when, knowing that 4938 Hampden Lane was the address of a mailbox rental business, he represented to Moss, Brewer and the State Bar of California that his “residence address in Maryland [was] 4938 Hampden Lane, Apt. 118, Bethesda, MD?” Was he truthful when he signed the form that he knew would be returned to the State Bar of California that indicated that his “residential address” was 4938 Hampden Lane, #118, Bethesda, MD? The answer to these questions is no.

 

In an effort to justify his misrepresentations in the applications filed with the Courts, Joseph pointed out that he did not have to obtain admission pro hac vice and could have just been out-of-state counsel and that it was Moss who wanted him to proceed in that manner and Joseph agreed to do so. The Court rejected this argument also, concluding that the Rules of Professional Conduct require that a lawyer’s representations to a Court must be truthful and candid, whether the representation was required or voluntary.

 

Bar Counsel argued that the appropriate sanction for the misconduct was disbarment. Joseph urged that the disciplinary case be dismissed. The Court, finding no mitigating circumstances, ordered Joseph disbarred.

 

The case is Maryland Attorney Grievance Comm'n v. Joel David Joseph , Docket AG No. 11 (Md. October 27, 2011). The opinion can be found at:  http://op.bna.com/mopc.nsf/id/kswn-8n3mz8/$File/11.pdf

 

 

 

JAMES J. GROGAN, DACC, Illinois ARDC

 

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