August 26, 2020 Adventures in the Law

Caught Blue-Handed

Tom Lykos needed to pass the Series 24 General Securities Principal Exam to keep his job as chief compliance officer and general counsel of a financial services firm. It was his second try.

By Norm Tabler

The good news is that he passed. The bad news is that as he was leaving the exam room, a proctor asked to photograph his hands. Why? Because she had seen him writing on his left hand during the exam, and the ink was still there.

Tom insisted he had not written on his hand, that there was no ink on his hand, and that even if there was, a leaky pen had caused it. When the proctor didn’t back down, Tom began licking and rubbing his hands and fingers, stopping only when reminded that he was being filmed. (Luckily for Tom, the ink was nontoxic.)

A photograph of Tom’s left forearm would have revealed yet more writing, as shown on the video recorded by cameras in the exam room.

The video also revealed that Tom had left the premises for 24 minutes, in violation of exam rules. As he was leaving, a proctor asked for his license. Tom said he’d left it as his desk, returned to his desk, took the license from his pocket, and licked and rubbed it clean.

When Tom returned to the exam, a proctor noticed a business card in his pocket and ordered him to discard it. Tom tore it up and threw it away.

Back at his desk, Tom changed answers to two questions (the only time he changed any answers) and answered one more question.

What did Tom have to say for himself after being caught blue-handed? Various things. The AWOL? He experienced side effects from medication and needed to go somewhere to rest.

The business card? He innocently picked it up from a leasing agent while AWOL. In his deposition, he said he might have written notes on the card, and the notes might have related to the exam. Later, at the hearing, he said he certainly had not written on the card.

The writing on his hands, arm, and license? The pens were dry and wouldn’t write until he wet them with spit or sweat and tried them out on those surfaces. But the video showed that Tom had been given two pens and never tried the second one.

In the panel’s view the film also revealed “consciousness of guilt”: When anyone approached his desk, Tom turned his license over, stopped writing on his fingers, and covered his left hand. He stopped writing on his forearm only when he belatedly noticed the camera above his desk.

The panel found that Tom had improperly written notes about exam questions; improperly left the exam; improperly accessed information to help with answers, perhaps making notes on the business card; and used the improperly accessed information to change some answers and answer at least one more. Caught blue-handed, he had repeatedly lied, stubbornly refusing to concede what the video clearly showed.

The panel gave Tom the equivalent of an industry death sentence, barring him from associating with any member of FINRA in any capacity. He was also ordered to pay $5,110 in costs.

The case is Dept. of Enforcement v. Lykos, FINRA Disc. Proc.

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Author

Norm Tabler is a retired lawyer in Indianapolis. He serves on the editorial advisory boards of the ABA Senior Lawyers Division’s Voice of Experience and the ABA Health Law Section’s The Health Lawyerwrites a monthly column for the Indiana Bar Association’s Res Gestae and is host of the American Health Lawyers Association’s podcast, The Lighter Side of Health LawEmail Norm.