Friday, April 17, 2015

Briefly Censured

The Wyoming Supreme Court has ordered a public censure of an attorney for misrepresentations in an appellate brief

The Formal Charge arising from Mr. Custis’s representation of Gilbert Ortiz, Jr. stemmed from a brief filed by Mr. Custis in the Wyoming Supreme Court appealing Mr. Ortiz’s convictions on three counts of second-degree sexual abuse of a minor. Ortiz v. State, 2014 WY 60, 326 P.3d 883 (Wyo. 2014). In his brief, Mr. Custis argued that the forensic interviewer, Lynn Huylar, had improperly vouched for the victim’s credibility. The brief included an extensive discussion, with quotes, of Ms. Huylar’s testimony. However, the testimony referred to was not Ms. Huylar’s testimony in the Ortiz case; rather, it was her testimony in a similar case, Seward v. State, 2003 WY 116, 76 P.3d 805 (Wyo. 2003), in which this Court held that she improperly vouched for the victim’s credibility. No citation informed the reader that the testimony discussed had been given in Seward and not Ortiz.

The court rejected due process claims based on the entry of default (citing a couple of D.C. cases I handled) and alleged prosecutorial vindictiveness.

There is no "magic formula" to attorney sanctions.

Although attorney discipline can serve to improve the performance of attorneys who have strayed in performing their ethical obligations, when an attorney continues to engage in professional and ethical misconduct in spite of previous sanctions, our concern weighs more heavily toward deterrence, maintaining the integrity of the legal system, and protecting the public. This Court’s decision in Custis I was published on November 7, 2012. Even assuming he made no changes in his office procedures until that date, some of Mr. Custis’s misconduct occurred after, he contends, he made improvements to his procedures to avoid any further discipline.

(Mike Frisch)


April 17, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Client Conduct Negates Malpractice Claim

The Nebraska Supreme Court overturned the grant of a new trial to the plaintiff in a legal malpractice case and reinstated the verdict in favor of the defendant law firm.

Thomas Balames, filed this legal malpractice action against Robert Ginn and Brashear LLP, formerly known as Brashear and Ginn (collectively Ginn), the firm where Ginn practiced when the alleged malpractice occurred. Balames brings this action for himself and three other individuals for whom he serves as attorney in fact (collectively Balames). Balames claimed that Ginn negligently failed to obtain signatures on a guaranty for a loan that Balames made to a third party and failed to inform Balames of the missing signatures. When the third party defaulted, Balames could not obtain a judgment against the individuals who were the intended guarantors for the full amount of the third party’s obligation. The jury returned a general verdict for Ginn, but the court granted Balames a new trial.

The client sought to complete the transaction while the attorney was on vacation. The client had not previously advised the attorney that the situation was urgent and terminated his services shortly thereafter.

The court

[Client] Balames admitted to being pressured by his bank to complete the transaction, and he insisted upon getting the documents to the bank as soon as humanly possible. [Attorney] Ginn’s evidence supported a reasonable inference that because Balames and his business associates had personally guaranteed the loan, they had an immediate need to show the bank that they had renegotiated the debt with Banopu. The crucial point here is that a client has the ultimate authority to determine the objective of a legal representation. Of course, an attorney should make reasonable efforts to explain the legal consequences of a course of conduct that a client insists upon taking. Yet, evidence regarding Ginn’s advisement raised a question of fact whether Ginn had breached a duty of care. That is, if the jury determined that Balames insisted upon closing without Ginn’s review, whether Ginn’s advisements were sufficient to inform Balames of the potential consequences was a question of fact.

The jury verdict sufficiently dealt with the issues

When the jury returns a general verdict for one party, a court presumes that the jury found for the successful party on all issues raised by that party and presented to the jury, particularly when the opposing party did not ask the court to give the jury a special verdict form or require the jury to make special findings. This is true both for Ginn’s failure-of-proof defense and his statute of limitations defense which barred Balames’ recovery even if he proved his malpractice claim. Because the court erred in concluding that plain error permeated the trial, this presumption controlled...

 If the jury believed Ginn’s version of the facts, then Ginn did not breach a duty to ensure that the documents were signed before or after the closing. Instead, Balames’ injury was caused by his failure to follow Ginn’s advice, his failure to review the documents for the required signatures, and his misrepresentation to Ginn that the documents were signed.

 (Mike Frisch) 


April 17, 2015 in Clients, Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Imagine A Reversal

The Vermont Supreme Court reversed a criminal conviction in a lewd behavior against a minor case in light of the improper closing argument of the prosecutor

Viewed in their entirety, the prosecutor’s statements—exhorting the jury to imagine “what it would be like to be A.R. . . . poor . . . maybe hungry”—exceeded the bounds of fair and temperate discussion, circumscribed by the evidence and inferences properly drawn therefrom. By the prosecutor’s own admission, there was no testimony presented at trial that A.R. was “hungry,” and the bald invitation for the jury to consider this speculation was improper.  The effect of such statements was not only to interject facts of little or no relevance to defendant’s guilt or innocence, but also to prejudicially play upon the jurors’ natural sympathy for the victim, a risk made more potent by the prosecutor’s exhortation to the jury to “think, again, what it would be like” to be A.R.  “This Court has often condemned arguments made to the jury in which the prosecutor makes inflammatory statements or appeals to the sympathies of the jury.”  State v. Bubar, 146 Vt. 398, 403, 505 A.2d 1197, 1200 (1985); Duchaine v. Ray, 110 Vt. 313, 321, 6 A.2d 28, 32 (1939) (noting that counsel’s urging of jurors to place themselves in victim’s shoes was a “highly improper,” “lamentable departure” from rule against appeals to jurors’ prejudice).

The court could not conclude that the statements were harmless beyond a reasonable doubt. (Mike Frisch)

April 17, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

Ecstacy, Alcohol And Suspension

The Wisconsin Supreme Court has ordered a 30-month suspension of an attorney who had previously been reprimanded for a battery conviction.

This time

In the early morning hours of September 5, 2013, Attorney Evenson approached an obviously intoxicated 22-year-old woman, E.V., and her friend as they were getting into a cab outside a bar on State Street in Madison, Wisconsin.  E.V. agreed to leave with Attorney Evenson despite the cab driver's effort to dissuade her.  Attorney Evenson took E.V. to his downtown Madison law firm, where he provided her "Molly" (commonly known as "ecstasy") and alcohol.  They had sexual intercourse at the law office.  Attorney Evenson then drove the woman to his home where they had more alcohol and again engaged in sexual intercourse.  The next day, E.V. awoke bruised, unsure where she was, and had difficulty recalling what had happened.  She notified the police.

As a result, the attorney was convicted of drug and sexual assault offenses.

He stipulated to the period of suspension

The OLR noted in its memorandum that several aggravating factors were present in this case, including that Attorney Evenson's conduct involved the illicit use and delivery of a controlled substance; that he has been previously disciplined for assaultive conduct; and that his victim was much younger and intoxicated, rendering her vulnerable to his predatory advances.  In mitigation of his misconduct, the OLR noted that Attorney Evenson cooperated in the disciplinary matter and admits that he has a substance abuse issue.

The Wisconsin State Journal had this earlier report. (Mike Frisch)

April 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

Lifestyles Of the Rich and Infamous

The Illinois Administrator has filed a complaint alleging misconduct that resulted in a theft conviction.

At issue was the disposition of funds held in escrow from a real estate sale with a company(RAI)  owned by the attorney's close friend Michael Doran

On June 5, 2009, sale of the real estate was  completed and escrow closed. On or about that same date, Respondent presented a  $260,000 demand payment to be paid from the Seabreeze escrowed sales funds to  RAI. The $260,000 was wire-transferred that same day from the Union Bank account  of Stewart Title and Escrow into RAI’s Chase bank account ending in 9414.

RAI performed no environmental impact reports,  nor any other actual work or services to warrant the $260,000 paid to RAI by  Storm Properties.

After receiving the $260,000, Doran funneled  approximately one-half of the funds, or $130,000, back to Respondent for  Respondent’s own personal use, including the purchase of a Ferrari automobile  for the sum of $84,275, and payment for a private party thrown by Respondent  aboard a chartered yacht.

Both the attorney and Doran were found guilty in California.

The Las Vegas Sun reported on the criminal case.

Detectives from the Sheriff’s Fraud & Cyber Crimes Bureau determined that there was no legitimate purpose for the $260,000 disbursement, and that Simard and Doran went to great lengths to commit the theft by creating a fictitious contract for services that had never been rendered. Simard also made several false statements during the course of the investigation, and provided the owner of Storm Properties and sheriff’s detectives with counterfeit documents in an attempt to justify the disbursement. In addition, sheriff’s detectives learned that Simard and Doran split the $260,000, and Simard used a portion of it to purchase a Ferrari 550 Maranello from a dealer in Newport Beach. In July, 2010, sheriff’s detectives served a search warrant at Simard’s home in La Habra Heights and seized the Ferrari.

During the course of the investigation, Simard moved to Henderson, Nevada, and Doran lived in Springfield, Illinois. In March, 2012, the Los Angeles County District Attorney filed multiple felony counts against Simard and Doran, including Grand Theft and Conspiracy. Warrants were issued for their arrests. In April, 2012, Doran was arrested in Illinois and extradited to California. Simard was arrested at McCarran International Airport in Las Vegas, Nevada, after entering the country on a flight from Cabo San Lucas, Mexico. Simard and Doran were released from custody, and remained free on bond while the case was adjudicated

(Mike Frisch)

April 15, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

There Goes The Judge

The Ohio Supreme Court has suspended a judge as a result of a felony conviction.

The Bellfontaine Examiner reported his resignation

An Ohio judge has resigned after a jury found him guilty of tampering with records and other charges for not disclosing his ownership interest in a Lorain office building where several lawyers have legal practices.

Lorain County Common Pleas Judge James Burge submitted his letter of resignation Tuesday to Ohio Gov. John Kasich. Burge was convicted last week.

He'd been disqualified from serving as a judge since his September indictment.

A spokesman for Kasich says the governor's office will ask the county's Republican Party for recommendations to replace Burge, a Democrat.

Burge took the bench in 2007 after years as a defense attorney. He tells The Chronicle-Telegram ( ) in Elyria that his resignation was a tough way to end a career in law.

(Mike Frisch)

April 15, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 14, 2015

Father Of The Clerk

A recent opinion from the South Carolina Advisory Committee on Standards of Judicial Conduct

  OPINION NO. 1-2015

RE: Propriety  of a circuit court judge presiding over matters in which the judge’s law  clerk’s father and his partner frequently appear before the circuit court.


A circuit court  judge has expressed interest in hiring a law clerk for the 2016-2017 year.  The potential law clerk’s father is an  attorney who frequently appears in the judge’s court in both civil and criminal  cases, as does the father’s law partner. The judge inquires as to whether the  judge can preside over matters in which a law clerk’s father or his law partner  appears. 


A circuit court judge need  not automatically disqualify himself or herself from a proceeding in which the attorney  appearing before the judge is the father of the judge’s law clerk or the  father’s law partner.  


Canon 3.E.(1)(d)  states that a judge should disqualify himself or herself where the judge’s  impartiality might reasonably be questioned,  including where “the judge’s spouse or person within the third degree of  relationship to either of them, or the spouse of that person” is an attorney in  the proceeding or is a material witness in the proceeding.  In addition, Canons 1 and 2 of the Code of  Judicial Conduct require a judge to avoid the appearance of impropriety and act  in a manner to promote the public’s confidence in the integrity and  impartiality of the judiciary.

In  Opinion 10-2011, this Committee considered Canon 3E in determining the propriety of a Circuit  Court Judge presiding where the law clerk’s uncle was the senior prosecuting  solicitor.  We determined that while such  a relationship could create the appearance of impropriety, this appearance of  impropriety does not exist for uncontested and default matters, and thus the  possibility of disqualification only arose in contested cases.  However, we also found that disqualification  was not automatically required in all contested cases and found that the judge could  utilize the remittal  procedure to avoid the appearance of impropriety. 

The Committee finds that the logic of that opinion should  apply here.  The judge should prevent the  law clerk from participating in or working on any proceedings in which the  clerk’s father or his law partner appear, which would eliminate any potential  conflict.1   Because it is only the father of the judge’s  law clerk who will appear as an attorney in a proceeding before the judge and  not “the judge’s spouse or person within the third degree of  relationship to either of them, or the spouse of that person,” Canon 3.E.(1)(d)  does not require disqualification of the judge.2   However, the judge must still avoid the  appearance of impropriety and act in a manner to promote the public’s  confidence in the integrity and impartiality of the judiciary as required by  Canons 1 and 2.  Thus, in matters such as  contested motions or trials in which the father or his law partner appear, the  judge must fully disclose the relationship of the judge’s clerk and the father  or his law partner. 

In conclusion, the possibility of disqualification  only arises in contested cases.  The  judge should require his law clerk to abstain from involvement, though the  judge is not automatically disqualified.   However, the judge should follow the remittal procedure and disclose  the relationship of the judge’s clerk and the father or his law partner.

1 Canon 3E  of Rule 506, SCACR governs staff attorneys and law clerks and provides that a  law clerk should disqualify himself or herself in a matter where he is related  by blood or marriage to an attorney in a proceeding.

2  In Opinion  10-2011, this Committee found that Canon 3.E. (1)(d) allows a judge to prohibit  a law clerk from working on a case and, thus, the judge himself would not be  disqualified. However, in light of the more specific Rule 506, governing  disqualification of a law clerk, the judge has no discretion in whether or not  to allow a law clerk who is related by blood or marriage to a party or attorney  to work on a matter.  Thus, to that  extent, Opinion No. 10-2011 is overruled, and a judge may not refuse to allow  disqualification of a law clerk under those circumstances.

(Mike Frisch)

April 14, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Last Dime

An attorney who accepted a court appointment to handle an acrimonious probate matter was suspended for 18 months for misconduct in the matter by the Oklahoma Supreme Court.

Personal issues intervened and led to serious ethics violations

Respondent's personal life then became tumultuous. In February of 2011, Respondent's wife informed him she had quit her job. She then began spending large amounts of money, including monthly credit card charges of between $6,000 and $12,000 dollars. In May of 2011, Respondent came home "to very abruptly discover [his wife] was having an affair." Respondent testified his wife threatened to take him for every dime he had and to take his daughter if he left her, so during this time he was just "trying to make ends meet and keep [his wife] happy" and provide for his three-month old daughter. Respondent began transferring money from the Cox Estate bank account to his personal bank account without prior approval from the court and without telling the heirs to the Cox Estate. Between May of 2011 and December of 2011, Respondent made six transfers of varying amounts totaling approximately $45,749.98. The record indicates the amount transferred was the amount allegedly earned for legal and statutory fees for administering the Cox Estate. Divorce proceedings were filed in December of 2011, and Respondent's divorce was final in February of 2012.

On sanction

In the case before us, although we are persuaded from the record that Respondent's conduct was an isolated incident and is not likely to happen again, we simply cannot ignore Respondent's attempt to cover up his mishandling of fees and the seriousness of those actions. Almost two years passed before Respondent fully disclosed his conduct to the parties and the probate court, and apparently, he only did so at that point because Mr. Gotwals and his client began asking questions and seeking information regarding the amount of funds available in the estate. Respondent's actions not only created more litigation for the heirs to the Cox Estate, but compounded an already embittered situation. Considering the discipline administered in similar cases and evidence offered in mitigation, we agree with the PRT that eighteen months is an appropriate suspension.

The attorney had no record of prior discipline. (Mike Frisch)

April 14, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Derogatory And Vulgar

The Illinois Review Board has proposed a six-month suspension and until further order of an attorney for misconduct that included derogatory and vulgar comments about opposing counsel and others.

The allegations of this Count and Counts VII and  VIII arise out of contentious litigation ("the Zvunca litigation") that has  consumed countless hours of the court system in Cook County and in federal  court. As noted by Respondent, some attorneys have apparently characterized the  case as the case of the century. Respondent's conduct has arguably greatly  contributed to that characterization.

We will not attempt to provide the complete history  of the Zvunca litigation. In summary, the controversy arose from the death of  Claudia Zvunca, a Romanian immigrant who was struck by a Greyhound bus in  Colorado in 2002. Zvunca's then seven year old daughter, Cristina, witnessed the  accident. Lawyer Cushing was appointed as administrator of the Zvunca estate.  Cushing retained Jeanine Stevens, and later Tom Clancy, to bring a wrongful  death claim against Greyhound and others. The probate court also considered  various issues relating to Claudia's estate...

...before during and after hearings in the  Probate Division and in the Law Division, Respondent routinely called Stevens  names. He generally did so outside the presence of a judge but in the presence  of others in the courtroom and with an apparent intent to disrupt Steven's  presentation. A number other witnesses testified about these statements. For  example, without reiterating all of the instances that are more fully set out in  the Hearing Board's Report, Respondent called Stevens a "bitch", "asshole",  "slut", "cunt", "pervert", "whore", and "child molester". On two occasions in  August 2008 and September 2009, Respondent stated to Stevens in the presence of  others, "Nice dress, slut." On another occasion during a hearing, Respondent  asked Stevens, "[S]till hanging around the bars and picking up the DePaul  students?" On another occasion, Respondent referred to Stevens during a hearing  as a "pervert" and a "fucking bitch."

Respondent denied making some of the statements and  could not remember if he had made other statements. However, he admitted making  several of the statements. He often claimed he was provoked by undocumented  personal attacks against him or claimed that the parties were "ribbing" each  other, although witnesses confirmed Stevens' testimony that she did not provoke,  react, or respond to these statements.

The attorney also made derogatory comments about successor counsel (an"idiot" and "cokehead") and a deputy sheriff.

The board

Respondent's conduct is aggravated by the fact that  he has not recognized that his repeated impulses to strike out verbally in anger  were inappropriate or unprofessional. We share the Hearing Board's concerns  regarding Respondent's repeated refusal to acknowledge that he did anything  wrong. He expressed absolutely no remorse and the Hearing Board found that his  testimony at hearing was "incredible". The Hearing Board was particularly  troubled by the fact that Respondent "had an excuse for nearly everything he did  or did not do, regardless of whether the actions related to a charge of  misconduct." The Hearing Board noted that this tendency was concerning given the  "overwhelming evidence of misconduct, especially regarding Respondent's failure  to properly communicate with his clients and his failure to put contingency fee  agreements in writing." (Hearing Bd. Report, pp. 104-106).

Given the nature of the misconduct when coupled  with Respondent's complete lack of understanding of his obligations and his  propensity to resort to dishonesty during his testimony at his disciplinary  hearing, we believe that the six month suspension recommended by the Hearing  Board should continue until further order of the Court. The Court has imposed a  suspension until further order of the Court where there has been a lack of  evidence that the respondent is willing or able to meet professional standards  of conduct in the future. See, e.g., In re Houdek, 113  Ill.2d 323, 327, 497 N.E.2d 1169 (1986); In re Bless, 2010PR00133 (Review  Bd., Oct. 30, 2014), approved and confirmed, No. M.R. 27134 (March 12,  2015). We believe that a suspension that continues until further order of the  Court better serves the purposes of discipline and better protects the public.

(Mike Frisch)

April 14, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Toilet Cameras Involve Moral Turpitude

A two-year suspension should be imposed for an attorney's moral turpitude conviction, according to a recent recommendation of the California State Bar Court Review Department.

 On four separate occasions during a two-month period, respondent Mark Daniel Wenzel hid a small video camera in a unisex public restroom at Coffee Bean restaurants in Los Angeles. Each time, the camera was found by a patron or employee and turned over to the police, but not before it recorded individuals using the toilet. Wenzel was convicted of a misdemeanor violation of Penal Code section 647, subdivision (j)(1) (viewing into restroom by means of instrumentality), and the criminal court imposed a suspended sentence and probation with conditions...

 After independently reviewing the record (Cal. Rules of Court, rule 9.12), we agree with the hearing judge that Wenzel’s conviction involves moral turpitude and that several aggravating circumstances are present. But we do not agree that the mitigation evidence establishes Wenzel is unlikely to commit further misconduct, particularly in light of his longstanding substance abuse problem. We note that he had a relapse involving methamphetamines in 2013, just two months before his disciplinary trial. Although the criminal court has punished Wenzel for his criminal acts, significant professional discipline is also warranted to protect the public and preserve the integrity of the legal profession. We recommend increasing Wenzel’s discipline to include a two-year suspension that is to continue until he proves his rehabilitation and fitness to practice law — a heavy burden that is necessary to address his egregious misconduct and ongoing substance abuse problem.

The opinion notes that the attorney is an "accomplished trial attorney" honored by the American Board of Trial Advocates for civility.  

The facts are strange (and display a notable lack of civility) to say the least.

The attorney sat on the patio of the Coffee Bean while recording customers urinating and defecating. He also "taped himself having sex with his wife, and further taped his wife's best friend entering [his] guest bedroom before she undressed outside the view of the camera."

He "admitted he hid a pen video recorder on New Year's eve 2011 in a guest bedroom in an effort to film his wife's friend undressing."

Video pen recorders were planted to capture the images. The devices were found by patrons and turned over to the police. The attorney was arrested on site after the third incident. A forensic search of his cell phone was conducted.

The attorney presented testimony that he suffers from type II bipolar disorder but the hearing judge rejected his expert's opinion that the condition had caused the misconduct.

Notably, the Review Department refused to permit the medical mitigation to negate an element of the offense for which the attorney was convicted. (Mike Frisch)

April 14, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 13, 2015

Disbarment Or Permanent Disbarment?

The Louisiana Supreme Court has disbarred an attorney who converted client and law firm funds and failed to respond to the resulting investigation.

Judge Crichton thought that disbarment was unduly lenient in a concurring and dissenting opinion

 While I agree that respondent’s conduct warrants discipline, I believe that disbarment is an unduly lenient sanction. The facts of this case are egregious, and as such, respondent should be permanently disbarred.

The record reveals that among other misconduct, respondent converted client funds and failed to cooperate with the ODC in its investigations. Although the majority relies upon our decision in In re: Denhollem, 03-0935 (La. 6/6/03), 849 So. 2d 488, to support the imposition of disbarment, I note that in Denhollem, the respondent made full restitution to the clients whose funds he had converted. Here, respondent has not paid a penny of restitution to her victims, making Denhollem inapposite.

Given the pattern of misconduct in this case, and the resulting harm to clients, I would permanently disbar respondent and would not allow her the opportunity to apply for readmission to the practice of law in the future. Accordingly, I respectfully dissent.

The court ordered restitution as well as disbarment. (Mike Frisch)

April 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No One Shows Up At Room 209

An attorney charged with conversion of estate funds by the Illinois Administrator also is alleged to have failed to cooperate with the bar investigation

On January 6, 2015, Respondent telephoned  counsel for the Administrator and stated that Respondent had no means to travel  to Springfield the following day for his sworn statement. Counsel for the  Administrator told Respondent that counsel would arrange for a future date to  travel to Carbondale to take Respondent's statement, that Respondent would be  notified of the date, time and place, once established, and that the subpoena  issued for his sworn statement would remain in force for that time.

Counsel for the Administrator arranged for  Respondent's sworn statement to be taken in room number 209 of the Southern  Illinois University School of Law at 1:00 p.m. on February 9, 2015. On January  27, 2015, counsel for the Administrator sent a letter to Respondent at  Respondent's last registered home address, advising him of the date, place and  time for the taking of his statement, and asking him to call counsel to confirm  receipt of the letter. Having received no communication from Respondent by  February 4, 2015, a copy of the letter was sent via FedEx overnight to the  Heritage Motel address, and the letter was delivered to the Heritage Motel on  February 5, 2015. Respondent did not reply to the letter, nor did he at any time  call counsel for the Administrator as requested in the letter.

On January 9, 2015, counsel for the  Administrator traveled to Carbondale to take Respondent's sworn statement.  Respondent did not appear for the statement and he has at no time communicated  with counsel for the Administrator regarding any reason for his not appearing.

At no time did the Administrator waive or  excuse Respondent's appearance on February 9, 2015.

(Mike Frisch)

April 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, April 10, 2015

One Standard

The Iowa Supreme Court ordered a three-month suspension of an attorney for lack of diligence and related violations in several cases.


Hedgecoth was admitted to the Iowa bar in 1998. He estimates that since being admitted, he has been actively practicing for seven-and a-half years. He initially practiced law from 1998 to 2005, taking one year off in 2002 to run for political office. From 2005 to 2011, he closed his law practice and worked as a policy advisor and political campaign staffer. After those endeavors were completed, Hedgecoth returned to the practice of law.

In June 2012, while engaged in the practice of law, Hedgecoth signed an employment contract with a gubernatorial candidate. The contract provided for a sliding scale of employment, initially requiring twenty percent of Hedgecoth’s time, and gradually increasing over time to a full-time commitment. Accordingly, from January through November 2014, Hedgecoth worked full time for the political campaign and did not actively practice law.

As to sanction

We conclude a three-month suspension is appropriate here. This case is more like Humphrey than Schumacher or Walker. Although Hedgecoth neglected multiple matters, his neglect did not cause any demonstrable financial or other harm to clients, nor was it accompanied by auxiliary misrepresentation or misconduct. Further, despite his initial unresponsiveness, Hedgecoth eventually testified before the commission and admitted the violations.

The court rejected the suggestion that his part-time status mitigated the misconduct

Although we impose a lesser sanction than the commission recommended, we reject Hedgecoth’s assertion that his part-time practice and extralegal employment should afford him leniency. We have said “[l]awyers do not shed their professional responsibility in their personal lives.” Comm. on Prof’l Ethics & Conduct v. Millen, 357 N.W.2d 313, 315 (Iowa 1984). Along the same lines, lawyers who practice part-time are not held to a lower standard of professionalism.

(Mike Frisch)

April 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2015

Faster Than A Speeding Judge

A judge who was stopped for speeding on her way to an interview with the Judicial Nominating Commission was reprimanded by the Florida Supreme Court.

Her driving record had been an issue in an earlier interview with the commission.

From a stipulation

During an interview on March 28, 2013, the JNC questioned Judge Recksiedler regarding her driving record. Then, on March 17, 2014, while driving to another interview with the 5th DCA JNC, the Florida Highway Patrol stopped Judge Recksiedler and issued her a citation for speeding. The traffic stop caused Judge Recksiedler to be late for her interview with the JNC.

In her opening statement to the JNC on March 17, 2014, Judge Recksiedler addressed the Commission’s previously expressed concerns about her driving record by stating that she “takes its concerns about her driving seriously.” At no point during or after her interview, however, did Judge Recksiedler inform the members of the JNC that she had received a speeding ticket that morning...

Later, on September 18, 2014, Judge Recksiedler had a third interview before the 5th DCA JNC. That interview was videotaped by a local news organization. The link to the interview is: During this interview, a Commissioner asked Judge Recksiedler about her driving record. “Judge, you came before us in March earlier this year and you addressed some of the commission’s concerns regarding your driving record and I was wondering how that was going. Have you had any stops this year?”

When testifying before the JQC investigative panel, Judge Recksiedler explained that she knew that each member of the JNC had background information that included her traffic record, including her March 17 stop. She misunderstood the question to be about stops since her March 17 JNC appearance when she had received the citation in route to the interview and as referenced by the questioner. Thus, Judge Recksiedler testified, she answered “no.” While her answer may not have been intentionally false, it was confusing and misleading. Judge Recksiedler acknowledges that she should have mentioned the March 17 traffic stop to avoid the confusion and to ensure that the commission was aware that she was not trying to avoid the issue.

The court

Candor as a judge is clearly critical. The JQC determined that Judge Recksiedler’s lack of candor may not have been “intentionally false” but it was “confusing and misleading.” The JQC further determined that omitting important information requested from the Fifth District Court of Appeal Judicial Nominating Commission and then later providing inaccurate information regarding the traffic stop “was inappropriate.” We agree with the JQC that the incompleteness and inaccuracy of the responses constitutes a lack of candor amounting to an ethical violation where, as here, the statements are misleading.

Reprimand was appropriate because the judge accepted responsibility and showed remorse.

Details from the Orlando Sentinel. (Mike Frisch)

April 9, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Pictures At An Exhibition

A well known photographer is not liable for taking photos of people inside their own apartments without their knowledge or consent, according to a decision of the New York Appellate Division for the First Judicial Department.

New technologies can track thought, movement, and intimacies, and expose them to the general public, often in an instant. This public apprehension over new technologies invading one's privacy became a reality for plaintiffs and their neighbors when a photographer, using a high powered camera lens inside his own apartment, took photographs through the window into the interior of apartments in a neighboring building. The people who were being photographed had no idea this was happening. This case highlights the limitations of New York's statutory privacy tort as a means of redressing harm that may be caused by this type of technological home invasion and exposure of private life. We are constrained to find that the invasion of privacy of one's home that took place here is not actionable as a statutory tort of invasion of privacy pursuant to sections 50 and 51 of the Civil Rights Law, because defendant's use of the images in question constituted art work and, thus is not deemed "use for advertising or trade purposes," within the meaning of the statute.

The facts

Defendant Arne Svenson is a critically acclaimed fine art photographer whose work has appeared in galleries and museums throughout the United States and Europe. Beginning in or about February 2012, after "inheriting" a telephoto camera lens from a "birder" friend, defendant embarked on a project photographing the people living in the building across from him. The neighboring building had a mostly glass facade, with large windows in each unit. Defendant photographed the building's residents surreptitiously, hiding himself in the shadows of his darkened apartment. Defendant asserts that he did so for reasons of artistic expression; he obscured his subjects' faces, seeking to comment on the "anonymity" of urban life, where individuals only reveal what can be seen through their windows. After approximately one year of photography, defendant assembled a series of photographs called "The Neighbors," which he exhibited in galleries in Los Angeles and New York.

The exhibit's promotional materials on defendant's website stated that for his "subjects there is no question of privacy; they are performing behind a transparent scrim on a stage of their own creation with the curtain raised high." Defendant further stated that "The Neighbors" did not know they were being photographed, and he "carefully" shot "from the shadows" of his apartment "into theirs." Defendant apparently spent hours, in his apartment, waiting for his subjects to pass the window, sometimes yelling to himself, "Come to the window!" A reporter for The New Yorker magazine spent time with defendant while he was surreptitiously photographing his subjects. During this time, defendant took a photo of a "little girl, dancing in her tiara; half naked, she looked like a cherub. As she turned away, [defendant] took a photograph. I don't like it when little girls are running around without their tops,' he said,  but this is a beautiful image."

The subjects learned of the intrusions as a result of media coverage of the exhibition.

The court found the result disturbing

In short, by publishing plaintiffs' photos as a work of art without further action toward plaintiffs, defendant's conduct, however disturbing it may be, cannot properly, under the current state of the law, be deemed so "outrageous" that it went beyond decency and the protections of Civil Rights Law sections 50 and 51. To be sure, by our holding here — finding no viable cause of action for violation of the statutory right to privacy under these facts — we do not, in any way, mean to give short shrift to plaintiffs' concerns. Undoubtedly, like plaintiffs, many people would be rightfully offended by the intrusive manner in which the photographs were taken in this case. However, such complaints are best addressed to the Legislature —- the body empowered to remedy such inequities...Needless to say, as illustrated by the troubling facts here, in these times of heightened threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.

(Mike Frisch)

April 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Former Firm Gets Quantum Meruit

From the Indiana Supreme Court

The law firm Cohen & Malad, LLP ("C & M"), filed a quantum meruit claim for part of the contingent fees earned in cases that were handled first by C & M attorneys (including John P. Daly, Jr., when employed there as an associate) and later by Daly and his law firm after he left C & M. The trial court found that C & M attorneys – including Daly while employed there – worked a substantial number of hours on those cases and that most of those cases generated attorney fees. The court nevertheless denied C & M quantum meruit relief because it found Daly was not unjustly enriched where: (1) the client in each case at issue chose to continue with Daly when he left C & M, (2) C & M and Daly had no agreement about what would happen if they parted ways, (3) their employment agreement had no provision for file ownership and lacked a non-competition covenant, and (4) C & M made a "very shrewd deal" for Daly’s services when it employed him on a salary basis, and C & M was "very well compensated" for Daly’s time at C & M, as shown by the amount of fees Daly helped C & M generate on other cases while he worked there. (App. at 32-33.) C & M appealed. Citing the four enumerated findings above, the Court of Appeals affirmed, over Judge Crone’s dissent. Cohen & Malad, LLP v. Daly, 17 N.E.3d 940 (Ind. Ct. App. 2014). We grant transfer.

Absent agreement otherwise, "a lawyer retained under a contingent fee contract but discharged prior to the contingency is entitled to recover the value of services rendered if there is a subsequent settlement or award[,]" and in that case, "the fee is to be measured by the proportion of the total fee equal to the contribution of the discharged lawyer’s efforts to the ultimate result[.]" Galanis v. Lyons & Truitt, 715 N.E.2d 858, 860 (Ind. 1999). The trial court’s findings of fact and conclusions of law do not acknowledge Galanis or apply its standards. Accordingly, we reverse and remand with instructions to determine, in accordance with Galanis, what proportional contributions toward the results in the cases at issue were made by attorneys working for C & M, and to enter a corresponding judgment in C & M’s favor. We summarily affirm the part of the Court of Appeals opinion addressing whether C & M should have sued its former clients to recover attorney fees from them. see Ind. Appellate Rule 58(A)(2).

Opinion linked here. (Mike Frisch)

April 9, 2015 in Billable Hours, Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Trial Court Cannot Order CLE As Litigation Sanction

The New York Appellate Division for the Third Judicial Department has held that a trial court lacks the authority to impose continuing education requirements as a sanction for litigation misconduct

current court rules do not permit a trial court to impose a sanction against an attorney in the form of mandated additional CLE requirements. The regulation permits courts to make appropriate awards of costs or impose "financial sanctions," but does not mention any nonmonetary types of sanctions (22 NYCRR 130-1.1 [b]). While Supreme Court has power and control over attorneys,  Judiciary Law § 90 [2]; Taub v Committee on Professional Stds. for Third Jud. Dept., 200 AD2d 74, 77 [1994]; see also Matter of Crockett, 120 AD3d 878, 880 [2014] [requiring attorney to complete additional CLE credits as part of disciplinary sanction]; Matter of Galvin, 87 AD3d 1223, 1223-1224 [2011] [same]). As Supreme Court did not have the authority to require Steele to complete additional CLE credits, we strike that portion of the order.

The litigation began as a suit for unpaid legal fees. (Mike Frisch)

April 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Walks Despite Ethics Violation

The District of Columbia Court of Appeals has held that a criminal prosecutor violated ethical obligations of disclosure under Rule 3.8 but nonetheless concluded that no discipline should be imposed.

The non-disclosure involved notes taken at the hospital in a drive-by shooting case. The report noted that the victim stated that he could not identify the shooter.

The prosecutor was aware of the document but did not disclose it.

This matter comes before us upon the Report and Recommendation of the Board on Professional Responsibility ("the Board"). The Board recommended that a 30-day suspension be given to Andrew J. Kline ("Kline") after finding that Kline violated Rule 3.8 (e) of the District of Columbia Rules of Professional Conduct ("Rule 3.8 (e)"). Rule 3.8 (e) prohibits a prosecutor in a criminal case from intentionally failing to disclose to the defense any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused. Bar Counsel takes no exception to the Report and Recommendation of the Board. Kline argued, inter alia, that he did not violate Rule 3.8 (e) because his ethical duties are coextensive with the duties imposed under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Kline relies on the "material-to-outcome" standard recognized by the United States Supreme Court in Brady’s progeny to argue that a prosecutor cannot violate Rule 3.8 (e) unless there is a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial. We hold that Kline’s interpretation of Rule 3.8 (e), which incorporates a retrospective materiality analysis, is not the appropriate test for determining whether a prosecutor has violated Rule 3.8 (e). We also hold that Bar Counsel proved by clear and convincing evidence that Kline intentionally failed to disclose information in violation of the rule. However, we conclude that given the confusion regarding the correct interpretation of a prosecutor’s obligations under the rule, sanctioning Kline would be unwarranted.

The report was not turned over by the prosecutor at the first trial, which resulted in a mistrial. He left the office and the case was reassigned.

The new prosecutor turned the statement over to the defense. The defendant was convicted at the second trial.

 The conclusion

while clear and convincing evidence has been presented that Kline violated Rule 3.8 when he failed to turn over the Boyd Hospital Statement to the defense prior to trial, we are mindful of the fact that our comment to Rule 3.8 (e) has created a great deal of confusion when it comes to a prosecutor’s disclosure obligations under Rule 3.8. Indeed, the ABA issued a formal opinion on this topic and interpreted our comment to mean that Brady materiality, in the "material-to-outcome" sense, was required to find an ethical violation of Rule 3.8 (e)...

When we add in the testimony of an AUSA responsible for training that the U.S. Attorney’s Office did not provide any separate training on a prosecutor’s Rule 3.8 (e) disclosure obligations, and the argument by Kline that he understood a prosecutor’s ethical obligations to be coextensive with his obligations under Brady and that no violation of Rule 3.8 (e) can be found independent of a Brady violation, we must conclude that his understanding was wrong but it was not unreasonable, and that no sanction is warranted.

In so concluding, we are also taking into consideration no companion violations were charged, no allegations of dishonesty were made, the respondent has a clean disciplinary record, and similar conduct will incur sanctions comparable to that recommended by the BPR in this case now that this court has provided clear guidance on the scope of a prosecutor’s disclosure obligations under Rule 3.8.

The Board on Professional Responsibility had proposed a 30-day suspension.

Update: interesting commentary here from White Collar Crime Professors blog. (Mike Frisch) 

April 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2015

Sex And Blogging Gets Attorney Suspended

An attorney who had served as Cook County prosecutor was suspended without possibility of reinstatement for three years by the Minnesota Supreme Court.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Timothy Christopher Scannell has committed professional misconduct warranting public discipline, namely, committing two counts of fourth-degree criminal sexual conduct and making derogatory statements on his blog about criminal defendants that he was currently prosecuting, in violation of Minn. R. Prof. Conduct 3.6(a), 8.4(b), and 8.4(d).

Respondent waived his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), unconditionally admitted the allegations in the petition, and with the Director recommended that the appropriate discipline is an indefinite suspension with no right to petition for reinstatement for 3 years.

Following receipt of the parties' stipulation for discipline, we issued an order directing the parties to file memoranda of law showing cause why respondent should not be subject to more severe discipline. Only the Director filed a memorandum in response to the order to show cause.

 The court has independently reviewed the file and approves the recommended disposition.

Details from the Duluth News Tribune

Scannell, 49, was convicted by a jury last July of two counts of fourth-degree criminal sexual conduct, stemming from his relationship with a 17-year-old girl.

He was subsequently removed from office by the Cook County Board of Commissioners, and served a 30-day jail sentence...

Scannell served nearly two full terms as Cook County's elected attorney. He was propelled into the spotlight in December 2011, when he was shot and seriously wounded by a man he had successfully prosecuted on sex crime charges.

However, it was just a year later that Scannell was accused of having a relationship with a 17-year-old girl, whom he coached and mentored. According to trial testimony, Scannell kissed the girl on numerous occasions and touched her sexually.

(Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Off Kill Devil Hills

The former attorney for the Town of Kill Devil Hills ("KDH") has been charged with violating his duty of confidentiality to KDH by executing a series of affidavits that disclosed protected information without the authority of his former client. 

The affidavits relate to an ongoing dispute between the  police officers and a judge, who also has been charged with ethics violations.

The judge has filed an answer to the charges.

The charges against the former town attorney are linked here and here.

The Outer Banks Voice reported on the attorney's dismissal from the town attorney position. (Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)