Friday, June 24, 2016
The United States Court of Appeals for the District of Columbia Circuit denied review to a Spirit Airline pilot who had failed a urine test taken after he had landed a plane in Fort Lauderdale.
Swaters’s specimen was sent to Quest Diagnostics, Inc., an HHS-approved testing laboratory. Id. Two weeks later, Quest reported to Spirit Airlines that Swaters’s sample contained morphine at more than eight times the legal limit, a metabolite of heroin at more than 49 times the legal limit, and a metabolite of cocaine at more than 63 times the legal limit.
Jeffrey Swaters, a former pilot with Spirit Airlines, challenges the Department of Transportation’s refusal to consent to the release of the urine sample it says Swaters produced for a mandatory drug test. The sample, which tested positive for controlled substances, cost Swaters his job and his airman medical certificate. See Swaters v. Osmus, 568 F.3d 1315 (11th Cir. 2009); Sturgell v. Swaters, NTSB Order No. EA-5400, 2008 WL 3272390 (2008). Swaters now wants the urine sample in order to conduct a DNA test in the hope of proving, in a state court negligence action, the urine is not his. We hold that neither the DoT’s general rule against releasing urine samples for DNA testing, nor its refusal to release the sample in this case, is arbitrary, capricious, or contrary to the Omnibus Transportation Employee Testing Act of 1991. We also hold that Swaters’s constitutional challenges to the rule fail.1 We therefore deny Swaters’s petition for review.
Thursday, June 23, 2016
The District of Columbia Board on Professional Responsibility has recommended disbarment of a personal injury plaintiff's attorney for intentional misappropriation of funds due to third-party providers of chiropractic services.
The attorney had persistently (and unsuccessfully) argued that the matter should be deferred pending the outcome of litigation with two of the payees.
One unusual aspect of the report is praise for the "conservative" charging approach taken by Assistant Disciplinary Counsel Fox.
The board rejected the hearing committee's conclusion that the conduct was not intentional.
A respondent’s level of intent can be established by circumstantial evidence. See In re Mabry, 11 A.3d 1292 (D.C. 2011) (per curiam) (holding that the respondent’s misappropriation was intentional where the respondent did not participate at any stage of the disciplinary proceeding and where “much of the evidence [wa]s circumstantial”). In this case, however, there is disturbing direct evidence powerfully indicating that Respondent’s misappropriation was intentional.
When Dr. Yousefi asked Respondent to explain why she was not paying his bills, she told him she that she had not paid him because she had used the funds to pay legal expenses she had incurred in nasty litigation with her boyfriend. She said she “had a fight with her boyfriend and caused [sic: cost] her about $80,000 to go through the court fighting and . . . that’s the reason she doesn't have the money. . . . [S]he said just bear with me a few months and we'll take care of it.” 10/1/14 Tr. 78. Respondent said she “was having a dispute with her boyfriend which made her unable to pay [Dr. Yousefi] the money that she owed” him. 10/1/14 Tr. 143-44.The Hearing Committee found this direct evidence of Respondent’s intent to be credible. HC Rpt. 98.
Moreover, Respondent indirectly confirmed her motivation. She acknowledged that she filed for bankruptcy in August 2009, and conceded that the “vast majority” of the settlements in this case took place after the litigation “virtually stripped her of everything she had worked for.” Tr. 756-57.
The Hearing Committee did not believe that the evidence was sufficient to support a finding of intentional misappropriation. HC 97-98. We disagree.
Respondent’s trust account fell materially below the amount she was obligated to hold for the medical providers. The account was out of trust on multiple days, and Respondent failed to provide any credible explanation refuting the clear import of her statements to Dr. Yousefi. She provided no records tracking settlement proceeds, and provided no alternative explanation why funds were missing. Even sampling only 19 of the cases at issue in this matter, the deficiency in the account was substantial – exceeding $5,000 at a minimum – and was directly linked to a persistent pattern of withholding funds from third parties to whom those funds belonged. Rather than explain how the misappropriation took place, Respondent insisted at the hearing that her escrow account was never out of trust. Tr. 538-40...
Taking into account all these circumstances, we conclude that Respondent’s misappropriation was intentional.
The D.C. Court of Appeals issued a decision in the "nasty" litigation with the former boyfriend last week.
The board report may be found at this link as In re Brandi Nave. (Mike Frisch)
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a legal malpractice claim against Boies Schiller.
Plaintiff failed to establish that defendants breached their duty by representing her despite a conflict of interest, in violation of Code of Professional Responsibility DR 5-105 [22 NYCRR 1200.24), the conflicts rule in effect at the time. Unlike current Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.7, DR 5-105 did not require that client consent to a conflict be confirmed in writing. An issue of fact exists whether defendants' clients consented orally.
In any event, the violation of a disciplinary rule, without more, is insufficient to support a legal malpractice cause of action (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]). Since plaintiff cannot prove that she suffered damages that were proximately caused by defendants' alleged misconduct, her cause of action must be dismissed (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 ).
Nor can plaintiff prove that defendants proximately caused her any injury with respect to her underlying claim for unauthorized use of her image, since that claim was time-barred and had already been released by the time she engaged defendants (see CPLR 215; Nussenzweig v diCorcia, 9 NY3d 184 ).
As for her other, potentially meritorious, claims, plaintiff settled those, and offers no evidence that, but for defendants' negligence, the settlement awards would have been higher (see [*2]Fusco v Fauci, 299 AD2d 263 [1st Dept 2002]).
Indeed, plaintiff failed to demonstrate that she suffered any harm at all as a result of defendants' alleged failings. Although defendants admittedly filed plaintiff's bankruptcy proof of claim one day late, the claim was accepted, and plaintiff received a substantial mediated settlement. Although she complains of defendants' alleged failure to join Elite S.A. as a party in one of the underlying actions, plaintiff nonetheless obtained a substantial settlement from that entity. Although plaintiff objects that she was not named as a class representative in one of the underlying actions, the deadline for adding class representatives had already passed by the time she engaged defendants, and nonetheless she received an incentive award for her active participation in the litigation.
The Washington State Supreme Court today held that a convicted juvenile defendant who continued to maintain his innocence can be compelled to write a letter of apology to the victim.
A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior.
Additionally, an apology letter recognizes the victim's interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts. This further advances the rehabilitative goals of the statute.
The outward manifestation of accepting and apologizing for the consequences of one's actions is a rehabilitative step that attempts to improve K.H.-H.'s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. 's rehabilitation and the crime here.
One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights. There is a whole range of constitutional rights that can be affected by a conviction, not the least of which is a loss of liberty. There may be a limitation on the degree to which First Amendment rights may be restricted for those convicted of crimes, but an apology letter condition does not approach that limit. We affirm.
There is a dissent from Justice McCloud
The juvenile court's forced apology condition fails under any First Amendment test other than the majority's highly deferential, rational-relationship test borrowed from language in Clark. Under the Supreme Court's test in Martinez, the government cannot restrict the content of a prison inmate's speech in this context unless the restriction "further[ s] an important or substantial governmental interest" and is narrowly tailored so that it infringes on "no greater [speech] than is necessary or essential to the protection of the particular governmental interest involved." 416 U.S. at 413. The compelled confession and apology in this case fails that narrow tailoring requirement. Under the test we articulated in Bahl, the condition must be '"reasonably necessary to accomplish the essential needs of the state and public order."' Bahl, 164 Wn.2d at 757 (internal quotations marks omitted) (quoting Riley, 121 Wn.2d at 37-38). The compelled confession and apology in this case fails that requirement also. In fact, under controlling Supreme Court precedent, compelled speeches and pledges are probably the worst ways to teach remorse or anything else: "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." Barnette, 319 U.S. at 632-33. I respectfully dissent.
The Arizona Presiding Disciplinary Judge has approved a consent disposition of a reprimand and probation for six months, subject to early termination.
Mr. Armenta was hired to represent a client in divorce proceedings. The client paid a significant retainer. Mr. Armenta acknowledges his fee agreement did not contain language advising the client of the right to discharge Mr. Armenta and be entitled to a refund of all or a part of the fee. Mr. Armenta and the client developed romantic feelings towards each other, he engaged in a one-time sexual relationship with the client, and he continued to act as counsel despite the significant risk that the representation could be materially limited by his personal interest in his client.
The parties have stipulated Mr. Armenta has expressed sincere and deep remorse which has also been demonstrated by him significantly discounting the bill of his client. The parties agree Standard 4.33 and 4.64 apply as they stipulate Mr. Armenta engaged in an isolated instance of negligence in failing to provide his client with accurate information regarding the potential conflict. He acted knowingly in his sexual relationship but acted negligently failing to consider the romantic relationship might have affected his representation. The parties agree suspension is the presumptive sanction but stipulate the mitigating factors warrant reprimand due to his remorse coupled with his full and free disclosure and cooperative attitude towards these proceedings. Mr. Armenta has no prior disciplinary history. The probation is to be a one-time LOMAP fee agreement consultation, effective in thirty (30) days plus costs of $1,200 to be paid within thirty (30) days.
Part of the consent disposition process involves notice to the complainant and an opportunity to object.
The objection of complainant is appreciated and exposes the injury caused to her by Mr. Armenta and his damage to the legal profession. This judge appreciates and respects the candid assessment in the objection. That objection raises important issues and concerns. The concluding observations of complainant are that the actions of Mr. Armenta “should be publicized in the glossy magazine Arizona Attorney for all other attorneys to see…”
The ethical chain between the lawyer and client are built with links of expectation. Mr. Armenta admittedly broke that chain when he failed in his ethical obligations and his reputation is bound to the disregard of his client. However, our Supreme Court has stated attorney discipline is not intended to punish the offending attorney, although the sanctions imposed may have that incidental effect. In re Swartz, 141 Ariz. 26 6, 686 P.2d 1236 (1984). Contrary to the assertion of complainant, the proposed reprimand is a formal sanction. That sanction is public, not private. The actions of Mr. Armenta are not excused. While his conduct may be published in the Arizona Attorney magazine, that publication is not a sanctioning body and the information is not designed to harm the attorney but to protect the public.
From the web page of the Ohio Supreme Court
The Board of Professional Conduct has received two requests from attorneys seeking ethical guidance regarding H.B. 523, signed by Gov. John R. Kasich on June 8. The law permits Ohio doctors to prescribe marijuana for qualified patients and permits the cultivation, processing, and dispensing of medical marijuana through the issuance of various state-regulated licenses.
The questions submitted to the Board concern: (1) the scope of services Ohio attorneys may provide to businesses that directly or indirectly engage in businesses related to the cultivation and sale of medical marijuana; (2) attorney ownership in related businesses; and (3) personal use of marijuana by an Ohio attorney. The Board’s Advisory Opinion committee is currently working with Board staff to research the relevant issues and expects to make a recommendation to the Board in August.
The Board is authorized by the Supreme Court Rules for Government of the Bar of Ohio Rule V, Section 2(D) to issue nonbinding advisory opinions in response to prospective or hypothetical questions regarding the application of the Ohio Rules of Professional Conduct. Attorneys with questions about medical marijuana not presently before the Board may submit written questions for consideration on or before July 11 to the attention of Director Richard Dove at firstname.lastname@example.org.
This is clearly a hot topic as Nevada is also studying it.
The Nevada Supreme Court will review a proposed comment to be added to the state rules of professional conduct for lawyers relating to the state’s medical marijuana laws at 1 p.m. on July 7, 2016 in Las Vegas. The hearing will be videoconferenced to the Nevada Supreme Court Courtroom in Carson City.
The Supreme Court invites comment from attorneys and the public regarding the proposed comment and whether additional changes to the state rules are warranted. Send original written comments, and 8 copies, by 5 p.m. on July 1, 2016 to Tracie K. Lindeman, Clerk of the Supreme Court, 201 South Carson Street, Carson City, Nevada 89701. Comments submitted electronically will not be filed.
In 2014, the Supreme Court added a comment to the rules allowing Nevada attorneys to counsel clients regarding medical marijuana decisions. The new comment seeks to inform attorneys that federal law prohibits the sale, use, or possession of marijuana, and engaging in such behavior, even where allowed by state law, could result in prosecution and the threat of attorney misconduct.
The public hearing is a result of the State Bar of Nevada seeking guidance from the court regarding attorney participation in the medical marijuana industry.
Wednesday, June 22, 2016
An attorney who was twice found to be driving while intoxicated drew a public censure from the New York Appellate Division for the Second Judicial Department.
On April 12, 2014, the respondent was arrested and charged with reckless endangerment in the first degree in violation of Penal Law § 120.25, a class D felony, and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), an unclassified misdemeanor.
On July 16, 2014, the respondent pleaded guilty to reckless endangerment in the second degree in violation of Penal Law § 120.20, a class A misdemeanor, and driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), an unclassified misdemeanor, in full satisfaction of all charges.
In his plea allocution, the respondent admitted that he operated a motor vehicle while intoxicated, and that he drove in the wrong direction on the Saw Mill River Parkway.
On November 5, 2014, the respondent was sentenced to a period of three years of probation, and was fined $500, along with a $605 surcharge.
On the plus side
In determining an appropriate measure of discipline to impose, this Court has considered the following factors in mitigation: the respondent's voluntary efforts at rehabilitation, his sincere statements of remorse, numerous letters and affirmations attesting to the respondent's good character, and his unblemished disciplinary record.
But hold the congratulations because there is this
ORDERED, that Petitioner, upon taking in open court and subscribing to the oath of attorneys required by MD Code (2004), Business Occupations and Professions Article Sec. 10-212, be reinstated as a member of the Bar of Maryland on the condition that Petitioner agree he will apply immediately following reinstatement for placement on inactive/retired status with the Client Protection Fund and thereafter remain inactive permanently...
Welcome back (sort of). (Mike Frisch)
By now my view that the District of Columbia Bar's "attorney discipline" system is pathetically slow and pro-lawyer is well known.
Examples abound but here's one that falls squarely on the Board on Professional Responsibility.
The case involves an attorney named Kelly Cross and his conviction arising from an encounter in a D.C. sports club.
A hearing committee issued a report proposing a three-year suspension on May 28, 2015 (see my prior coverage here).
On August 19, 2009, Respondent used a video camera that he had hidden in his toiletry bag to surreptitiously record a patron at a local gym while that individual undressed in the gym’s locker room. Respondent was discovered, subsequently arrested and eventually pleaded guilty to misdemeanor voyeurism in violation of D.C. Code § 22-3531(c). Bar Counsel charged that: (1) Respondent violated Rules 3.4(a) (obstructing another party’s access to evidence), 8.4(b) (criminal acts reflecting adversely on honesty, fitness, or trustworthiness), 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) and 8.4(d) (serious interference with the administration of justice); and (2) Respondent was convicted of a crime involving moral turpitude within the meaning of D.C. Code § 11-2503(a). Bar Counsel contends that Respondent’s crime requires disbarment under the statute. Respondent contended at the hearing that his actions, although criminal, were in essence based on a misunderstanding.
The Hearing Committee finds by clear and convincing evidence that Respondent violated Rules 8.4(b) and 8.4(c), but that the evidence is insufficient to find that he violated Rules 3.4(a) and 8.4(d) or that he committed a crime of moral turpitude within the meaning of D.C. Code § 11-2503(a). The Hearing Committee further finds that Respondent engaged in this misconduct before, and that Respondent’s explanation for his misconduct to the Hearing Committee was false based on his demeanor, key contradictions in his testimony and the basic implausibility of his story. The Hearing Committee recommends, therefore, that Respondent be suspended from the practice of law for a period of three years with a fitness requirement as a condition of reinstatement.
Neither side saw fit to note any exception.
And the BPR has done nothing in the more than a year since the hearing committee report was filed.
Note that the conviction occurred in 2009 and Disciplinary Counsel filed charges in 2012.
It should not take over half a decade to decide if voyeurism involves moral turpitude on its facts, especially when Disciplinary Counsel concedes the point that here it did not.
There must be a better way. (Mike Frisch)
A complaint alleging that an attorney's domestic battery conviction violated ethics rules was recently filed by the Illinois Administrator.
In August, 2012, Respondent was residing in a house in Valparaiso, Indiana, with his then wife, Angela Coleman, and their four minor children.
On August 12, 2012, between 11:00 p.m. and 12:00 a.m., Respondent argued with Ms. Coleman. Respondent’s behavior escalated, he became loud, and Ms. Coleman moved to her bedroom to avoid waking their sleeping children.
Respondent followed Ms. Coleman into the bedroom where he punched her in the face and head. Ms. Coleman sustained injuries including an injured lip, black eye and knots on her head.
Ms. Coleman escaped to the bathroom where she locked the door and refused Respondent access to the bathroom. Shortly thereafter, Respondent convinced Ms. Coleman to leave the bathroom.
Respondent handed Ms. Coleman an ice pack and convinced her not to notify the police due to possible legal implications to Respondent and their family. Ms. Coleman did not notify the police at that time.
On August 13, 2012, Ms. Coleman did not attend work because her facial injuries were obvious, nor did she notify police of Respondent’s actions the previous evening.
On August 14, 2012, Ms. Coleman arrived at work at Valparaiso University wearing sunglasses to conceal her black eye. Shortly after her arrival, Ms. Coleman left work and returned home to retrieve her children’s original identification documents.
On August 31, 2012, Ms. Coleman reported Respondent’s actions...to the Valparaiso Police Department.
As a result
On July 30, 2013, a Porter Superior Court jury found Respondent guilty of domestic battery in the matter of State of Indiana v. Narles W. Coleman, cause number 64D04-1210-FD-10158.
On July 30, 2013, Judge David L. Chidester sentenced Respondent, in State of Indiana v. Narles W. Coleman, cause number 64D04-1210-FD-10158, to 365 days in Porter County jail with time served but for 60 days suspended, 60 days of community service, $500 fine, costs of $218 and twelve months of probation.
Here, although respondent was guilty of misconduct in ten client matters, the Board considered, in mitigation, that: (I) prior to leaving the Seigel Capozzi law firm, respondent updated the firm on the status of his files; (2) respondent cooperated with the OAE; (3) at the time of his violations, respondent suffered from an undiagnosed severe depression until 2013, when he was diagnosed, and then received intensive inpatient and outpatient treatment; (4) respondent’s treating physician provided a report in which he opined that respondent’s improved condition rendered him capable of practicing law; (5) there was no proof that any of the clients suffered monetary damages; (6) respondent was contrite; and (7) respondent has no history of discipline. The Board, thus, determined that a censure was warranted and required respondent to provide proof to the OAE of his continued treatment for depression through 2016.
Censure for misconduct in 10 client matters is a very lawyer-friendly disciplinary response notwithstanding the mitigation. (Mike Frisch)
Tuesday, June 21, 2016
The Ohio Supreme Court weighs in on the seemingly endless saga of Stanley Chesley
The Boone County, Kentucky, Circuit Court has entered a multimillion dollar judgment against former attorney Stanley M. Chesley. Denied relief from the judgment by the Kentucky courts, Chesley has turned to the courts of Ohio to thwart collection of the judgment and relitigate the case. And Chesley has found a receptive audience in the respondent, Hamilton County Common Pleas Court Judge Robert Ruehlman. In Chesley v. Ford, Hamilton C.P. No. A1500067, Judge Ruehlman has repeatedly acted to shield Chesley and his assets from creditors, despite a patent lack of jurisdiction.
Relator, Angela M. Ford, seeks a writ of prohibition to preclude Judge Ruehlman from continuing to exercise jurisdiction over the Hamilton County case. Chesley and his former law firm, as intervenors, oppose this request on the merits and also based on a claim of mootness. We grant a peremptory writ of prohibition and order Judge Ruehlman to vacate his orders. We deny Ford’s request for a writ of mandamus.
The court was highly critical of the Ohio judge's pro-Chesley rulings
Chesley’s complaint asked the court to impose conditions on Ford, as attorney for the judgment creditors, for domesticating the Kentucky judgment that far exceed the statutory requirements. The Ohio Enforcement of Foreign Judgments Act does not require judgment creditors to calculate and disclose their respective shares of the judgment, detail the amounts and dates on which they recovered money from other sources, or disclose the amount of money retained by their attorney. But Chesley requested all these disclosures and more as a precondition to allowing Ford and her clients to even file their judgment in Ohio. And whereas the act provides a 30-day grace period after the foreign judgment is filed, Chesley demanded a 90-day halt to collection efforts after all these reports were provided. There is no statutory authority for any of this relief.
Despite his patent lack of authority, Judge Ruehlman granted this relief and more. Whereas Chesley sought to impose preconditions on the filing of the foreign judgment, Judge Ruehlman’s preliminary injunction order barred Ford and the creditors from filing the judgment in Ohio altogether, with no mention at all of any conditions that, if satisfied, would lift the prohibition.
We see no basis whatsoever for Judge Ruehlman’s assertion of jurisdiction to inject himself into the collection process. A common pleas court has jurisdiction over a foreign judgment “once that judgment is filed in accordance with R.C. 2329.022.” Doser v. Savage Mfg. & Sales, Inc., 54 Ohio App.3d 22, 560 N.E.2d 782 (8th Dist.1988), syllabus. But the Abbott creditors had not yet filed the judgment in Ohio; in fact, they were forbidden to do so by Judge Ruehlman. And now that this court has stayed Judge Ruelhman’s order, the claimants have domesticated their judgment and the case has been assigned to Judge Martin.
Justice Pfeifer dissented
I dissent because there were two more appropriate remedies available to relator, Angela M. Ford.
First, she could have filed an affidavit of disqualification against Judge Ruehlman with Chief Justice O’Connor. Second, having failed to do that, she should have been required to seek a remedy by way of appeal after a final, appealable order had been rendered.
The court's order is linked here.
A decision of the United States Court of Appeals for the District of Columbia Circuit
This appeal arises out of the bad acts of Morris Days (a/k/a Jamil Days), who held himself out to the public as a civil rights attorney working for a regional chapter of the Council on American-Islamic Relations Action Network (“CAIR” or “CAIR National”), when he was not, in fact, a lawyer. The Maryland/Virginia regional CAIR chapter had hired Days to serve as its civil rights manager, and eventually Days also took up the role of resident attorney. Days took money from CAIR clients in exchange for the promise of legal services, but performed none. Plaintiff-Appellants in this consolidated action are individual CAIR clients who were negatively impacted by Days’s conduct. Their lawsuits allege, inter alia, that CAIR is responsible for the bad acts of Days because Days was CAIR’s agent.
The District Court disagreed and granted summary judgment to CAIR National. This Court has jurisdiction to review the final decision of the District Court under 28 U.S.C. § 1291. For the reasons set forth below, we reverse the District Court’s grant of summary judgment, and remand for further proceedings.
Days was initially hired to perform non-legal advocacy for clients who alleged that they faced religious discrimination; this work included making phone calls, writing letters, and referring clients to attorneys when appropriate. It did not require Days to hold a law degree or a license to practice law. Yet, as time passed, Days started to misrepresent to CAIR, to the public, and to his CAIR-VA clients, that he was an attorney and was licensed to practice law. Days then began requesting and accepting fees for the legal services he claimed to be performing – despite CAIR-VA’s policy not to take money from its civil rights clients.
He was terminated for violating this policy
It was only after Days was fired that CAIR started to inquire regarding his status as an attorney. After discovering that Days was not a lawyer, CAIR took possession of CAIR-VA’s civil rights case files, as CAIR-VA no longer had anyone that could handle the matters. CAIR had its own personnel review the files. Once CAIR National’s staff had reviewed all of the files, Iqbal then informed the individuals with open cases that Days was no longer with CAIR-VA, and recommended attorneys with whom those individuals could consult regarding their cases.
The court found sufficient evidence to establish potential liability for the bad actor's acts
CAIR National’s handling of Days’s client files after the exposure of his fraud is evidence that a reasonable jury could rely on in concluding that CAIR had control over Days. CAIR took possession of the CAIR-VA client files, and had its own personnel review those files without first contacting the clients for permission to do so – conduct that would have constituted a breach of ethical duties unless CAIR National previously had the power to control Days’s conduct with respect to those cases. Viewing the evidence in the light most favorable to the Plaintiffs, and drawing all inferences in their favor, it would be reasonable to infer based on these facts, taken together, that CAIR National had the ability to control Days, and in fact exerted that control...
...we find that genuine issues of material fact exist as to whether or not Morris Days was the agent of CAIR National. We reverse the judgment of the District Court and remand for further proceedings.
The former California state bar director who alleged that he was fired for exposing the organization's ethical violations can pursue his claims that the bar and some of its leadership retaliated against him and wrongfully fired him, an arbitrator ruled on Friday.
JAMS arbitrator Edward A. Infante found on Friday that Joe Dunn, the State Bar of California's former executive director, can move forward with three claims related to his employment contract, including one allegation that he was retaliated against after digging up evidence that the chief trial counsel Jayne Kim was editing records to clear a backlog of disciplinary cases.
Infante, a former chief magistrate judge of the U.S. District Court in the Northern District of California, also allowed claims related to Dunn's firing to continue against the bar's president, Craig Holden. Dunn had sufficiently bolstered his accusation that Holden acted outside his role at the bar to attack the former state senator-turned-executive director, according to the decision.
Because those claims were sufficiently alleged at this stage, the arbitrator can't decide them on their merits at this point, Infante found. "Based on the facts alleged in the [amended notice of claims], the arbitrator cannot determine, as a matter of law, that Mr. Holden was acting within the scope of his authority when he engaged in the alleged conduct," he wrote.
Dunn's amended notice of claims included violations of the state labor code, breach of fiduciary duty, intentional interference with contractual relations and breach of implied covenant of good faith and fair dealing.
Infante shot down for the fourth and last time Dunn's claim that the bar had breached its fiduciary duty in firing him, without granting him permission to amend it, according to filings in the case.
Along with seven unnamed whistleblowers, Dunn had sued the bar in November 2014 alleging that its chief trial counsel, Jayne Kim, purged the public disciplinary case backlog to inflate her productivity and failed to actively prosecute unlicensed lawyers preying on immigrants after the state Legislature passed a bill creating new criminal punishments for the practice. Kim said in late April that she would resign, though the bar trustees had voted to approve her for a second term.
Dunn also claimed that bar President Craig Holden, a partner at Lewis Brisbois Bisgaard & Smith LLP, targeted Dunn and others for speaking out.
An amended complaint included new allegations that Beth Jay, a retired principal counsel to the chief justice of the California Supreme Court, had "intentionally interfered with Senator Dunn's employment at the state bar."
A California judge determined a year ago that the dispute fell "squarely" within the scope of Dunn's employment agreement and granted a defense motion to compel arbitration. During the arbitration proceedings, the bar and Holden filed a demurrer seeking a dismissal of the suit, which they called retaliation for justified termination.
In April, Infante rejected Dunn's case but permitted the former state senator to rewrite some of the claims to meet pleading standards, according to that decision.
Moez Kaba of Hueston Hennigan LLP, who represents the bar, noted that Dunn's allegations must be accepted as true at this stage, even if there's no evidence to support them.
"Even under this standard, the arbitrator narrowed the case by granting the demurrer with respect to Mr. Dunn's breach of fiduciary duty claim," Kaba said. "With respect to Mr. Dunn's remaining claims, when the facts are presented to the arbitrator, either at summary judgment or trial, we are confident that the bar and Mr. Holden will succeed."
The current president of the state bar, David J. Pasternak, said in a statement that his organization appreciated the arbitrator's decision to narrow the case.
"As for the remaining claims, we remain confident, as we have been all along, that we will prevail when all of the facts are made known through the discovery process,"
Pasternak said. "In the meantime, we will continue focusing our efforts and energies on public protection."
Attorneys for Dunn did not immediately respond to requests for comment on Monday.
Dunn and the unnamed whistleblowers are represented by Mark J. Geragos and Ben J. Meiselas of Geragos & Geragos PLC.
The bar and Holden are represented by John Hueston, Moez Kaba, Joe Reiter and Stanley Chen of Hueston Hennigan LLP.
The arbitration is Dunn v. State Bar of California et al., case number 1100083130, before JAMS Arbitration.
The Illinois Administrator has charged an attorney with creating a false will
Between approximately 2000 and 2011, Respondent represented John J. Waters ("Waters") in various legal matters, including matters related to real estate owned by Waters. Waters held title to, or claimed possession of, more than a dozen parcels of real property situated throughout Illinois. During at least that same time period, Respondent also represented Paul Iverson ("Iverson"), a friend and business associate of Waters, in his own legal matters, including litigation and real estate matters.
On October 15, 2011, Waters died in Cook County, Illinois.
At the time Waters died, he was survived by three brothers, Daniel Waters, Gerald Waters, and Edmund Waters, and a sister, Marguerita Waters ("heirs to the Waters Estate").
Prior to November 14, 2011, Respondent drafted the purported last will and testament of Waters, which was dated March 8, 2010 ("2010 will"). The 2010 will named Paul Iverson the executor of the Waters Estate and bequeathed all assets of the Waters Estate to Iverson.
Waters did not sign his 2011 will. Prior to November 14, 2011, Respondent, or someone acting at his direction, signed the purported signature of Waters to the 2010 will.
At all times alleged in this count, the purported 2010 will of Waters was false, and Respondent knew it was false, as Respondent either signed, or caused someone else to sign, the purported signature of Waters to that will.
Prior to November 14, 2011, at the request of Respondent, Alexander Gloeckler and Mohinder Rakalla signed a document attesting that they had witnessed Waters sign the purported 2010 will.
At all times alleged in this count, the attestation of Gloeckler and Rakalla...was false, and Respondent knew it was false, as Respondent knew that Waters did not sign the 2010 will, but he instructed Gloeckler and Rakalla to attest that they had witnessed Waters sign the will.
He also is charged with submitting false evidence, assisting criminal conduct, conflict of interest and failure to cooperate with the investigation. (Mike Frisch)
A rescue squad employee made out a discrimination claim according to a decision of the New Jersey Supreme Court affirming the Appellate Division.
From the court's headnotes
In this appeal, the Court considers whether the prohibition in the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, against discrimination based on marital status extends to a person who has separated from their spouse and is in the process of divorce. The Court then determines whether, on defendant’s motion for an involuntary dismissal of the complaint, plaintiff presented a prima facie case of discrimination under the LAD where he alleged that defendant terminated his employment based on his separation and impending divorce from his co-employee wife, after he began an extra-marital affair with a colleague.
In February 2006, plaintiff Robert Smith, who was then employed as director of operations of defendant Millville Rescue Squad, was terminated from employment. This occurred shortly after he informed his supervisor that he was engaged in an affair with a volunteer worker, and that he and his wife, who also worked for the rescue squad, were separated and about to commence divorce proceedings.
Plaintiff testified that, when he informed his supervisor about the affair, the supervisor stated that he could not promise that it would not affect plaintiff’s job. At a subsequent meeting in February 2006, plaintiff’s supervisor stated that he believed that plaintiff and his wife would have an "ugly divorce." The supervisor further stated that he had to take the matter to the rescue squad’s board. At the meeting, the board decided to terminate plaintiff’s employment. The minutes of the meeting referred to a corporate restructuring, plaintiff’s poor performance for some time, and the failure of efforts to remediate plaintiff’s performance, as grounds for the termination. Defendant terminated plaintiff’s employment on the following day.
... plaintiff presented a prima facie case of marital-status discrimination by direct evidence. The facts that plaintiff asserted demonstrate that he was discharged based, in significant part, on his employer’s stereotypical view of divorcing parties, and the presumed impact that plaintiff’s divorce would have on the work performance of plaintiff and others. The evidence further demonstrated that defendants were not enforcing an anti-nepotism policy because they had permitted plaintiff and his wife to work together for a number of years. The trial court improperly utilized the McDonnell-Douglas test to assess plaintiff’s proofs, because it is applicable only where the claim is based on circumstantial evidence.
Monday, June 20, 2016
The Connecticut Appellate Court reversed a finding of misconduct and 20-day suspension imposed against a criminal defense attorney who was alleged to have violated a court ruling by mentioning his client's acquittal on related federal charges.
The defendant attorney, John R. Williams, claims in relevant part that his right to due process was denied when the court failed to provide him with proper notice of a disciplinary hearing and a meaningful opportunity to be heard before rendering a judgment suspending him from the practice of law for twenty days. We agree and, accordingly, reverse the judgment of the trial court and remand the case for a new hearing.
The problem arose during the cross-examination of a cooperating witness
‘‘Q: Do you remember that Judge Shea said, ‘I also want to add, I echo what Mr. McConnell said. While your assistance did not result in a conviction, the fact is—’ ‘‘[The Prosecutor]: Objection. ‘‘The Court: Sustained. The jury will step out.’’ (Emphasis added.) After the jury was excused, the colloquy continued:
The Court: Mr. Williams, I respect you a great deal, but you have expressed your outrage several times already at various things that happened. I think that this is actually pretty outrageous, because we specifically addressed the question of whether the jury should be informed of what [was] the outcome of the federal trial before, and it was agreed that you were not to mention that without the specific consent of the court, and you— you should know that if you wanted to get into this, you needed to obtain my consent prior to mentioning this in front of the jury.
The attorney also mentioned that his client had not been convicted on federal charges in closing argument.
On October 9, 2014, the jury returned a guilty verdict on all counts against [client] Reyes, and the court then scheduled a bail hearing for 2 p.m. that same day. Immediately following the bail hearing and the release of Reyes on bail with certain conditions, the court excused the prosecutor, and it requested that Williams remain in the courtroom. Immediately thereafter, the court proceeded to hold a hearing on Williams’ actions and the possibility of sanctions.
Williams told the court that he was not prepared to go forward at that time because he ‘‘had not anticipated that this hearing would be held this afternoon because [the court] had previously indicated that [he] would be given an opportunity [to] obtain such transcripts as [he] needed and review them in preparation [for the hearing].’’ Williams then informed the court that he had ordered the transcripts as the court had instructed him to do, but that they had not yet been delivered. As a result, he explained, he, therefore, had not had time to prepare for a hearing. Notwithstanding Williams’ protestations, the court proceeded with the hearing, found that Williams had violated the order of the court on more than one occasion, and sanctioned him by suspending him from the practice of law for twenty days. This appeal followed.
On appeal, Williams argues that the court caught him off guard at the end of his client’s bail hearing by immediately holding a hearing regarding his actions during his client’s trial. He argues that he tried to explain to the court that he was not prepared and that the court specifically had told him that he would be given time to obtain a transcript and to prepare for a hearing that would be scheduled after Reyes’ trial. He contends that trial does not end until after sentencing and that it certainly does not end with a contested bail hearing. He further argues that he ‘‘was given no opportunity at all to prepare to meet the accusations against him, and, in fact, was not even given notice that his summation would be considered a separate ground for discipline.’’ Under the particular circumstances of this case, we agree that Williams was not given adequate notice of and time to prepare for the hearing in which the court found him in wilful violation of its orders and ordered him suspended from the practice of law for twenty days.
The court agreed
In sum, although the court clearly wanted to address this extremely serious matter as soon as possible, it, nevertheless, did not rule summarily at the time of the conduct that it found offensive.6 See Practice Book § 2- 45. Rather, the court told Williams that he should order the relevant transcripts and be prepared for a hearing that would be scheduled after Reyes’ trial and at which Williams would be given the opportunity to try to explain why his conduct was not a violation of the court’s order. Williams, thus, was entitled to a properly noticed hearing regarding his conduct and whatever sanction might be appropriate, and he was entitled to time to prepare for that hearing. Accordingly, the judgment must be reversed and the case remanded to the trial court for a new hearing.
A panel of the Maine Board of Bar Overseers has publicly reprimanded an attorney
Respondent Beth A. Maloney, Esq., of Kennebunkport, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, she is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Maloney was admitted to the Maine Bar in 2002 and is a solo practitioner. In addition to being a lawyer, she is also a published author.
By way of background, for several years prior to her admission to the Maine bar, Attorney Maloney practiced transactional law in California. Such a practice resulted in her having virtually no courtroom experience as a trial lawyer. For most of Attorney Maloney's time in Maine, the bulk of her practice has been as a Guardian ad litem in M. R. S. Title 22 protective custody matters, representing the best interests of children in cases of alleged abuse and neglect.
The complaint matters at issue in this proceeding arose out of Attorney Maloney's trial conduct in two highly contested family law matters involving child custody concerns.
The attorney had been sanctioned for pursuing meritless claims
Of note, Attorney Maloney has never had any client file a complaint against her. Since the time of these cases at issue, she has referred all inquiries for representation in family matters to other attorneys. At the disciplinary hearing, Attorney Maloney candidly agreed that her conduct was regrettable and that her zeal for her clients' causes had interfered with her professional judgment. She apologized for her behavior and had already determined to no longer accept contested family matters. In the unlikely event that determination changes, Attorney Maloney will engage co-counsel for such contested matters.
An attorney convicted of federal health care fraud has been disbarred by the Georgia Supreme Court.
Parent Advocates reported on the criminal case.
A federal judge this week convicted George D. Houser, a Harvard-educated lawyer and member of the State Bar of Georgia, of failing to provide services in three nursing homes for which he collected $32.9 million in Medicare and Medicaid payments. Houser, 63, was also convicted of failing to pay $800,000 in employee payroll taxes and failing to file personal income tax returns. After a monthlong bench trial, Judge Harold L. Murphy of the Northern District of Georgia issued his order with findings of fact and conclusions of law on Monday, according to a statement released Tuesday by the U.S. attorney's office.
The statement said it was the first time a defendant has been convicted in a federal court trial for submitting payment claims for "worthless services." The court concluded that the evidence showed "a long-term pattern and practice of conditions at defendant's nursing homes that were so poor, including food shortages bordering on starvation, leaking roofs, virtually no nursing or housekeeping supplies, poor sanitary conditions, major staff shortages and safety concerns that, in essence, any services that defendant actually provided were of no value to the residents." Sentencing has been tentatively set for June. Houser faces a maximum sentence of 20 years in prison and a $250,000 fine on the health care fraud charges, the government statement said. Houser declined to comment Wednesday. He previously has denied wrongdoing in the criminal case and in a related civil case in which he and his company were ordered to pay $43.5 million to the family of a man found to have died of malnourishment and dehydration in one of the nursing homes. Houser had court-appointed counsel in the criminal case, Michael Trost and William Morrison. Trost said Wednesday that Houser's case will be appealed, although he was not sure who would handle it. He added that the government's "novel civil theory of fraud" is likely to be a key issue.
The two assistant U.S. attorneys who prosecuted the criminal case—Glenn Baker and William Traynor—presented evidence indicating that Houser diverted $8 million of federal health care reimbursements to his own personal use, according to the U.S. attorney's statement. The items he is accused of purchasing with the money include: $4.2 million for real estate on which he planned to develop hotels in Atlanta, Brunswick and Rome; a $1.4 million house in Atlanta for his ex-wife in lieu of alimony; two Mercedes-Benz automobiles, furniture and vacations for himself and his current wife. The government also accused Houser of writing bad checks to employees, leading to staffing shortages; failing to pay vendors for such essentials as utilities and garbage pickup; and failing to repair leaking roofs and broken air-conditioning units. The nursing homes—two in Rome (Mount Berry and Moran Lake, with 100 patients each) and one in Brunswick (Wildwood, with 200 patients)—were part of a company Houser inherited from his parents, who started the business in 1963. The nursing homes have since been closed by the Georgia Department of Human Resources Office of Regulatory Services.
The U.S. attorney's statement said a state surveyor who inspected the Moran Lake nursing home in Rome testified that the heat, flies, filth and stench created an environment that was "appalling and horrendous." "It almost defies the imagination to believe that someone would use millions of dollars in Medicare and Medicaid money to buy real estate for hotels and a house while his elderly and defenseless nursing home residents went hungry and lived in filth and mold," U.S. Attorney Sally Quillian Yates said in the statement. "We will continue to aggressively protect our most vulnerable citizens and hold accountable those who prey on the elderly and steal precious health-care dollars." Houser didn't fare any better before a jury in a 2010 civil trial in Floyd County.
A Rome Judicial Circuit Superior Court jury returned a $43.5 million verdict against Houser and his company, Forum Group, in favor of plaintiff Loretta Turhune. Her father, Morris Ellison, died eight months after entering Moran Lake nursing home for post-operative rehabilitation. The medical examiner testified at the trial that the autopsy revealed Ellison died of malnourishment, dehydration and an undiagnosed, untreated broken hip. Turhune's lawyers, Michael A. Prieto of Perrotta, Cahn & Prieto in Cartersville and Stephen G. Lowry of Harris Penn Lowry DelCampo, said their post-trial conversations revealed that jurors were "absolutely disgusted."
The plaintiffs lawyers have had difficulty collecting that verdict, however. Houser filed for bankruptcy protection in the middle of the trial, claiming between $20 million and $100 million in assets. And although Prieto and Lowry staked their claim with the bankruptcy court, it was superseded by the government's indictment, which includes a forfeiture provision. Houser represented himself in the civil trial, and also in an unsuccessful motion for a new trial last October. He filed briefs blaming the patient, who he claimed was difficult to care for because of "violent dementia," and accusing Rome Judicial Circuit Judge J. Bryant Durham Jr. of mishandling his trial.
A 20-year sentence was imposed in the criminal case as reported in the Examiner.com.
The conviction was affirmed by the United States Court of Appeals for the Eleventh Circuit.
The federal appeals court characterized the conditions in the facilities as "barbaric" and "uncivilized ." Further, the court rejected the argument that the "worthless services" charge was void for vagueness
As the defendants in Chesbrough did, Mr. Houser sought reimbursement from Medicare and Georgia Medicaid for required services--pharmaceutical, diagnostic, medical and dietary--that simply were not provided.
Saturday, June 18, 2016
The United States Court of Appeals for the Fourth Circuit affirmed and reversed in part an inmate's claim that his rights were violated when he allegedly was forced to have marble-removing surgery on his penis.
King filed suit under 42 U.S.C. § 1983 against several correctional officers, medical personnel, and prison administrators for alleged violations of his constitutional rights after he underwent surgery to remove penile implants while incarcerated. We conclude that King’s complaint properly stated his Fourth, Eighth, and Fourteenth Amendment Equal Protection and Due Process claims. We also hold that King stated a claim against Marvin Plumley. We reverse the district court’s decision on those bases, vacate the dismissal, and remand the case for further proceedings. We affirm the dismissal as to Stacy Scott, Cliff Goodin, and Jim Rubenstein, but modify the dismissal of the latter two to be without prejudice.
The member at issue
King is an inmate at Huttonsville Correctional Center (“HCC”) and has been incarcerated since March 23, 2012. In fall 2008, prior to his incarceration, King had marbles implanted in and tattoos drawn on his penis. He and his then fiancée, who is now deceased, decided to have the implants done during the “body modification” craze, as they had heard about the “intensification of sensitivity and euphoric climaxes” resulting from the procedure.
On January 8, 2013, King was called to the control booth in his unit, where a corrections officer told him to report to “medical” to be examined. Id. at 25. King was to be examined because an inmate reported seeing King and another inmate implanting marbles into their penises. The nurse who examined King verified that the marbles were not recently implanted and that there was no sign of infection.
King was escorted to the segregation unit, where an officer told him that the implants were not noted in his file. King responded that when he was being processed at Mt. Olive, he informed the processing officer of the marbles and tattoo. The officer told him, “This isn’t a pornographic camera, put [your] clothes back on.”
The inmate was found in violation of prison regulations "which prohibit[ed] exposing body fluids, tattoos, and piercings."
Due to this violation, King was sentenced to sixty days of punitive segregation, sixty days loss of privileges, and ninety days of loss of good time.
After a medical exam, a deputy warden
told him, “Get comfortable you stupid Son of a Bitch, you’ll be placed in Administrative Segregation until you do as I say and have those marbles removed.” J.A. 26. King responded that Rosencrance could not punish him twice for the same violation. Rosencrance said, “I can do what the Fuck I want.” Id. King was then returned to administrative segregation. King alleges that HCC officials threatened him with segregation for the remainder of his sentence and loss of parole eligibility if he did not consent to surgery.
So consent he did
As a result of the surgery, King now experiences physical symptoms. He has tingling and numbness in his penis; pain in the area where the marbles were removed; an “uncomfortable, stretching feeling where the cut was made”; pain in his penis when it rains, snows, or gets cold; and “stabbing pain [that] shoots into [his] stomach” if he bumps into something or the scar on his penis is touched. Id. at 15, 27. King never experienced these symptoms until after his implants were removed.
He also alleges mental anguish
King also experiences mental and emotional anguish as a result of the surgery. He gets “very depressed every time [he] shower[s] or urinate[s]” because he sees the scarring and is reminded of his deceased fiancée...
He is ridiculed by the staff: they refer to him as “Marble Man” and when they search him, they ask where his marbles are.
Throughout his complaint, King stated that the defendants had no penological justification in the surgery, J.A. 16, 18, and provided facts that support this contention. First, he alleged that the marbles were implanted prior to incarceration (an allegation supported by the findings of the two medical professionals who inspected the marbles). This, he argues, is inconsistent with the policy directive that he was found in violation of...
King also alleged that other prisoners “implanted foreign objects into their penises,” but unlike King, they have been permitted to keep them.
No penological justification!
Nor did the "consent" provide a defense.
While prison officials must be afforded wide deference in deterring security threats, the pleadings raise sufficient concerns about the legitimacy of the reasons for surgery. This is doubly so where defendants sought “to intrude upon an area in which our society recognizes a significantly heightened privacy interest,” requiring “a more substantial justification” to make the search “reasonable.” Lee, 470 U.S. at 767. Thus, at this early stage of the proceedings, we find that the justification for the search weighs in favor of unreasonableness...
We hold that King’s complaint plausibly satisfies both prongs of an Eighth Amendment claim and reverse the district court...
In dismissing the claim, the district court read too narrowly the extent of King’s harm...
Based on the foregoing, we conclude that King properly stated his Fourth, Eighth, and Fourteenth Amendment Equal Protection and Due Process claims.