Friday, February 24, 2017

Utah Supreme Court Clarifies Law Of Entrusted Funds

The Utah Supreme Court has issued its second significant decision on the law of entrusted funds in the past few days.

We hold that, for a presumption of disbarment, the [Office of Professional Conduct] must prove knowledge at the time of the transfer or withdrawal in cases where an attorney’s bank account dips below the amount that is supposed to be held for the attorney’s clients. Accordingly, we hold that the OPC failed to meet its burden of proof regarding the operating and trust account shortfalls. We also hold, however, that Mr. Bates knowingly failed to safeguard client funds. Suspension is the presumptive sanction, and we affirm the district court’s order for a five-month suspension in light of the mitigating factors.

The attorney had opened his own practice within six months of his admission.

The firm flourished and expanded for a few years but hit a bump

Just six months after beginning to practice law, Abraham Bates started his own law firm, Wasatch Advocates. Mr. Bates solely owned and operated Wasatch Advocates. Although the firm started with only six employees, its clientele rapidly expanded, and, within a single year, it employed thirty-seven people to meet the growing workload. In order to deal with the increasing expenses, Mr. Bates established lines of credit to maintain enough money in the firm’s operating account. He regularly made draws against these lines of credit.

Although he managed the operating and trust accounts on his own with the assistance of his receptionist in the beginning, the accounting became more complicated as the firm’s income and expenses quickly grew. Mr. Bates retained a certified public accountant to perform monthly reconciliations, auditing, and tax work. Later, as the practice expanded, Mr. Bates hired an accounting firm to do more frequent reconciliations and to train Mr. Bates and his staff in accounting procedures. Despite this, he noticed that there were still accounting issues, such as his receptionist mistakenly depositing client money into the operating account and earned fees into the trust account. At the accounting firm’s suggestion, a chief operating officer was also hired to help with the firm’s accounting practices. However, even after taking these corrective measures, the operation of the firm’s accounts remained chaotic.

In January 2012, Wasatch Advocates imploded due to changing economic circumstances and the abrupt departure of a significant proportion of Mr. Bates’ staff. Around the time of the firm’s dissolution, John Liti, a former client, filed a bar complaint against Wasatch Advocates resulting in an OPC investigation. During the investigation, the OPC focused heavily on Mr. Bates’ accounting practices and identified possible violations in other client matters. The only matter at issue on this appeal is the F.A. Apartments matter. The OPC alleges that Mr. Bates’ actions amount to intentional misappropriation of F.A. Apartments’ funds and merit disbarment in two different instances: his management of F.A. Apartments’ funds held in the trust account and his management of a retainer paid by F.A. Apartments that was held in the operating account.

The duty

 Attorneys occupy a position of trust because their clients rely on their honesty, skill, and good judgment. When an attorney intentionally misappropriates a client’s funds, it undermines the public’s trust in the entire legal profession and discredits the legal system in general...

In order to protect the “foundation[s] of . . . trust and honesty that are indispensable to the functioning of the attorney client relationship,” disbarment is usually appropriate in cases of intentional misappropriation of client funds...

However, not all misappropriation cases are intentional. To receive a presumption of disbarment, an attorney must “knowingly” misappropriate a client’s funds “with the intent to benefit the lawyer or another or to deceive the court.” UTAH SUP. CT. R. PROF’L PRACTICE 14-605(a)(1). On the other hand, if an attorney negligently misappropriates a client’s funds, the presumptive sanction is a public reprimand. Id. 14-605(c)...

For a presumption of disbarment, the OPC must establish that the attorney knowingly engaged in misconduct at the time the misconduct occurred.

Here, the evidence established knowing commingling but not intentional misappropriation

The evidence at trial demonstrated that, despite hiring qualified accountants and a chief operating officer to help him, Mr. Bates was grappling with significant organizational difficulties associated with a quickly growing business and his own lack of experience. In short, as the district court stated, “Bates was in way over his head . . . on a scale which a more experienced lawyer would have avoided.”

The evidence in this case corroborates Mr. Bates’ testimony at trial, supporting the inference that he unwittingly used his client’s funds for the firm’s payroll. Because he was not aware he was using client funds when the transfer was made, his actions were not knowing. Rather, they were negligent, with a presumptive sanction of a public reprimand...

We hold that the OPC failed to meet its burden of proof that Mr. Bates knowingly misappropriated his client’s funds. We do, however, hold that he knowingly commingled client funds and that he created the risk of injury to his client by later using F.A. Apartments’ money. Suspension is the presumptive sanction for Mr. Bates’ actions in commingling client funds without the intent to benefit himself or another.

(Mike Frisch)

February 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wisconsin Denies Access To Sheriff Clarke's Immigration Detainer Records

A majority of the Wisconsin Supreme Court reversed the unanimous Court of Appeals and denied access to immigration detainer records sought from Fox News' favorite sheriff David Clarke.

We conclude that I-247 forms are statutorily exempt from disclosure according to the terms of Wisconsin public records law, and therefore, we need not reach common-law exemptions or the public interest balancing test. Stated more fully, under Wis. Stat. §§ 19.36(1)-(2),3 any record specifically exempted from disclosure pursuant to federal law also is exempt from disclosure under Wisconsin law. Federal regulation 8 C.F.R. § 236.6 (2013) precludes release of any information pertaining to individuals detained in a state or local facility and I-247 forms contain only such information.

There is a dissent from Justicxe Ann Walsh Bradley

Wisconsin's Public Records Law "serves one of the basic tenets of our democratic system by providing an opportunity for public oversight of the workings of government." Majority op., ¶17 (citations omitted). Relying on this basic tenet, Voces de la Frontera requests unredacted copies of federal immigration detainer forms issued to Milwaukee County Sheriff David Clarke by Immigration and Customs Enforcement ("ICE").

The circuit court determined that Wisconsin's Public Records Law requires the release of unredacted copies of the detainer forms. It explained that Voces de la Frontera made a compelling case and that Sheriff Clarke offered no good reason to justify any redaction.

The court of appeals affirmed. Noting uncontested facts, it rejected Sheriff Clarke's newly raised argument that an obscure federal regulation, 8 C.F.R. § 236.6, precluded release of the detainer forms

Sheriff Clarke now contends that no detainer forms should be released. He asserts that the forms are statutorily exempt from disclosure and that his office erred when it previously released redacted detainer forms to Voces.

Reneging on previously uncontested facts and relying on a belatedly cited obscure federal regulation——never before applied to state or local detainees——Sheriff Clarke tosses a "hail mary" pass to the Wisconsin Supreme Court.

The majority catches the pass and runs with it, but unfortunately makes no forward progress for the people of this state. Instead, a majority of this court loses ground, yet again chipping away at Wisconsin's long-standing commitment to open government. See, e.g., Democratic Party of Wisconsin v. Wisconsin Dep't of Justice, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584.

Once more a majority of this court reverses a unanimous court of appeals decision affirming a circuit court order requiring the release of records to the public, further undermining the principle that Wisconsin Public Records Law be construed "in every instance with a presumption of complete public access." Wis. Stat. § 19.31.

This time the majority rewrites a federal regulation by deleting the phrase "on behalf of the Service" from the regulatory language in order to reach its conclusion that yet another public records request must fail. Given the cumulative effect of the majority's approach, one wonders if a day will come when we awake to find that this continuous "chipping away" has substantially gutted Wisconsin's commitment to open government.

Contrary to the majority, I agree with the circuit court that Clark offers no good reason to counter the strong presumption of open access to these public records. I likewise agree with the unanimous court of appeals that the federal regulation does not statutorily exempt immigration detainer forms from release under Wisconsin's Public Records Law. Both the plain language of the federal regulation and its promulgation history establish that it applies only to detainees in the custody of the federal government.

Accordingly, I respectfully dissent

Justice Abrahamson joined the dissent. (Mike Frisch) 

February 24, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, February 23, 2017

No Suit For Plaintiff Allegedly Tortured For Converting To Christianity

The dismissal of a lawsuit against a church was affirmed by the Oklahoma Supreme Court

The story

This appeal originates from a lawsuit filed by Plaintiff/Appellant John Doe (a pseudonym for Plaintiff) (hereinafter, "Appellant") against Defendants/Appellees The First Presbyterian Church of U.S.A. of Tulsa, Oklahoma, and James D. Miller (hereinafter, "Appellees") alleging breach of contract, negligence, and outrage. Appellant alleges he was born in Syria into the Muslim Faith, but for most of his adult life has resided in the United States. As part of what he refers to as his westernization, Appellant made the decision to convert from Islam to Christianity.

The precise relationship between Appellant and Appellees is disputed, but it is undisputed that Appellant was baptized at his own request at The First Presbyterian Church U.S.A. of Tulsa, Oklahoma (FPC) by James D. Miller (Miller). Appellant alleges he made Appellees aware of the need for confidentiality throughout the conversion process, as he was planning to return to Syria shortly thereafter. Appellant's baptism took place on December 30, 2012, during a service that was open to members and guests of the church, but was not televised. It is undisputed that Appellant was not and never became a member of FPC, before or after his baptism.

Appellant alleges he travelled to Syria almost immediately after his baptism, arriving in Damascus on January 2, 2013. Appellant asserts he was confronted by radical Muslims in Damascus in mid-January, 2013, who had heard of his conversion on the internet. Appellant alleges he was kidnapped, and informed by his kidnappers they were going to carry out his death sentence as a result of his conversion from Islam.

Appellant alleges he was tortured for several days before he was able to escape captivity, killing his paternal uncle in the process. As a result, he asserts he is now wanted for murder in Syria. Appellant alleges he was able to clandestinely make it back to the United States, where he faces continuous death threats. Appellant asserts he suffered numerous physical injuries and psychological damage, all proximately caused by Appellees' publication of his baptism, in contravention of promises they supposedly made to him that it would be kept confidential.

The suit was filed after he returned to the United States.

The court

Recognizing the importance of the autonomy of religious institutions within the framework of the United States legal system, the courts must refrain from undue interference with religious beliefs and practices. Appellant exercised his right to convert to Christianity and accord his religious beliefs with the demands of his conscience. Similarly, Appellees exercised their right to perform the sacrament of baptism in accordance with the doctrine and a custom of the Church. It is not the role of the courts to adjudicate a dispute between Appellant and Appellees over the publication of Appellant's baptism in accord with Church practice, even if Appellant was harmed by his baptism and its subsequent publication. Per the church autonomy doctrine, the courts lack subject matter jurisdiction over the matter. Accordingly, the decision of the trial court is affirmed.

 (Mike Frisch)

February 23, 2017 in Current Affairs | Permalink | Comments (0)

Disbarment For Theft Conviction

The Maryland Court of Appeals issued an opinion explaining its earlier-imposed order of disbarment of an attorney convicted of felony theft from a client.

In early 2011, Dr. Tsai hired Respondent to assist him in his claim for disability benefits from his insurer, Penn Mutual (the "Penn Mutual Case"). Sweitzer, slip op. at 2. Respondent agreed to the representation for a flat fee of $4,000, which Dr. Tsai paid. Id. Dr. Tsai’s claim was premised on the medical opinion of Dr. Gerwin, who eventually reversed his medical opinion and concluded that Dr. Tsai was not totally disabled. Id. As a result, Respondent urged Dr. Tsai to settle the Penn Mutual case and pursue a possible claim against Dr. Gerwin. Id.

Meanwhile, Nu Image, a film company, filed a copyright claim against Dr. Tsai, alleging that he illegally downloaded movies from the internet (the "Nu Image Case"). Id. Respondent also represented Dr. Tsai in that matter for a flat fee of $1,000, which Dr. Tsai paid. Id. at 2-3. When Respondent informed Dr. Tsai that Nu Image indicated its willingness to settle the case for $2,000, Dr. Tsai sent Respondent $2,000 to settle the case. Id. at 3. Respondent did not settle the case, nor did he return the $2,000 to Dr. Tsai. Id. at 7. Dr. Tsai employed another attorney to settle the Nu Image Case but was unable to recover his $2,000 from Respondent. Id.

In early 2012, Respondent informed Dr. Tsai that Penn Mutual would settle its case for $40,000-$50,000. Id. at 3. Eventually, Dr. Tsai agreed to settle for $54,000, and the settlement agreement was executed on May 21, 2012. Id. Per the terms of the settlement agreement, Penn Mutual sent Respondent the settlement funds. Id. The disbursement sheet Respondent sent to Dr. Tsai indicated that Dr. Tsai was to receive $54,881.93. Id. Over the following months, Dr. Tsai made "repeated attempts to get his settlement proceeds" from the Penn Mutual Case. Id. During that time, Respondent exhibited a "collection of excuses and [a] litany of impediments that allegedly prevented him from delivering Dr. Tsai’s funds." Id. Respondent never paid Dr. Tsai the $54,881.93 in settlement proceeds from the Penn Mutual Case. Id. at 4-7.

Sanction

In the present case, Respondent exhibited intentionally dishonest behavior in committing theft against his client. Indeed, Respondent was convicted of felony theft of his client’s funds, an act that was perpetuated by Respondent’s falsehoods and misrepresentations made to his client. Despite having the opportunity to do so, Respondent did not present to the hearing judge any facts or circumstances that arguably would mitigate his conduct, let alone did he offer to the hearing judge or, for that matter, this Court, compelling circumstances that would lead us to impose a lesser sanction. Respondent’s misconduct is deserving of the ultimate sanction.

The court entered its order after the attorney failed to appear for oral argument. (Mike Frisch)

February 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Decision Of "Limited Precedential Value" Has Some Resonance

The District of Columbia Court of Appeals reciprocally disbarred an attorney convicted of tax offenses and disbarred in New York.

Mr. Lifshitz pleaded guilty to one count of filing a false personal tax return in violation of N.Y. Tax Law § 1804 (b) and accordingly notified the New York Clerk of the Court of his resignation on November 20, 2008. Mr. Lifshitz was disbarred on October 1, 2009, effective nunc pro tunc to November 20, 2008, the date of his conviction.

He has now been reinstated in New York but had not reported his disbarment to D.C. as required by court rule.

New York was aware that he had failed to report but credited his explanation in granting him reinstatement.

The court here found no grave injustice in disbarment

Mr. Lifshitz argues that reciprocal discipline in his case would be a “grave injustice” because if he were disbarred, then he would have to wait until 2021—thirteen years after his initial disbarment in New York—to apply for reinstatement in the District of Columbia. We have previously held that when, as here, an attorney has never practiced, has no clients, and no intent to practice in the future in the District of Columbia, assertions of “grave injustice” regarding the reciprocal discipline doctrine are “largely meritless.” In re Fuchs, 905 A.2d 160, 164 (D.C. 2006) (“This argument is largely meritless as respondent argues grave injustice and then stipulates that he has never practiced in the District of Columbia, has no relationship with any counsel in the District of Columbia, has no clients or office in the District of Columbia and has no plans to practice law in the District of Columbia.”). Accordingly, the grave injustice exception does not apply in Mr. Lifshitz’s case, and thus, we impose reciprocal discipline.

The court imposed the sanction effective in 2009 notwithstanding the attorney's failure to report the New York sanction

Similar to the respondent in In re Glasco, Mr. Lifshitz never practiced in the District of Columbia and thus his failure to report was not a calculated feat designed to illegally practice in the District. Indeed, as he indicates, in October 2009 he was administratively suspended from the practice of law due to his nonpayment of dues. Moreover, the New York Departmental Disciplinary Committee, which was aware of this disciplinary matter in the District of Columbia, concluded that Mr. Lifshitz “has demonstrated that he possesses the requisite character and general fitness to practice law.” That Committee stressed Mr. Lifshitz’s moral transformation and newfound goals to set up a pro bono practice.

He is thus immediately eligible to seek reinstatement in the District of Columbia.

In re Glasco  (decided in 1999) was my case.

There the court granted nunc pro tunc treatment to a California disbarment that , like here, came to light in D.C. only when the attorney sought reinstatement in the court that had imposed the sanction.

The court quoted the Board on Professional Responsibility

While Bar Counsel is correct that sound policy reasons support encouraging attorneys to notify this jurisdiction of foreign sanctions, according retroactive effect to Respondent's disbarment should not have a detrimental effect on this policy goal.   Respondent was solely responsible for bringing his conviction and disbarment to Bar Counsel's attention;  although the notice was filed late, Respondent stated that he believed the notice had been provided earlier by the California State Bar, and he did not exploit the lack of notice by using his District of Columbia license to practice.  

For these and the other unique circumstances presented by this case, it will have, as the Board noted, limited precedential value.

Limited but apparently the precedent still has some vitality.

I well remember the Glasco oral argument and, in particular, the close questioning from now-Senior Judge Inez Reid.

Judge Reid always came to oral argument superbly well-prepared and knowing exactly what questions needed answers.

A great judge. (Mike Frisch)

February 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, February 22, 2017

Utah Supreme Court: "Not All Misappropriation Is Created Equal"

The Utah Supreme Court affirmed a suspension for dishonesty in a case where an attorney had bartered legal services with two clients for home improvements and deprived his firm of its fees.

Attorney Joseph Barrett exchanged legal services for construction work on his home and yard, thereby depriving his law firm, Snow, Christensen & Martineau P.C. (SCM), of the legal fees accrued from those cases. The district court suspended Mr. Barrett from the practice of law after it concluded that Mr. Barrett’s conduct violated rule 8.4(c) of the Utah Rules of Professional Conduct. The Office of Professional Conduct (OPC) appealed, urging us to hold that the intentional or knowing misappropriation of firm funds, like the intentional or knowing misappropriation of client funds, creates a presumption of disbarment. Mr. Barrett cross-appealed, arguing that the district court’s factual findings were clearly erroneous and a result of bias and that suspension was too harsh a sanction. We affirm the district court in part, reverse in part, and uphold the sanction of suspension.

The story

The misconduct allegations in this case stem from three independent situations: two involving legal services Mr. Barrett provided to clients in exchange for construction work on his home and yard, and one involving Mr. Barrett’s reimbursement request for a phone call with a potential client.

With respect to the first situation, Mr. Barrett began providing legal services to Richard Williams in June 2007 when Mr. Williams retained SCM and Mr. Barrett to represent his son in a criminal matter. Over the next three years, Mr. Barrett worked on that case, a collection matter for Mr. Williams’s company, and new criminal matters for Mr. Williams’s son. In June 2010, Mr. Barrett requested that the firm write off over $7,000 from Mr. Williams’s account. Around that time, Mr. Williams’s brother-in-law began building a wrought-iron railing for Mr. Barrett’s home, but he was unable to finish it. In July 2010, Mr. Williams wrote a check to Mr. Barrett for $3,500, which Mr. Barrett deposited into his personal account. According to Mr. Barrett, Mr. Williams proposed that his brother-in-law work on the railing as a “kind gesture” and Mr. Williams insisted on paying Mr. Barrett $3,500 so he could hire someone else to finish the job. Mr. Barrett claims that he wrote off Mr. Williams’s bills as a professional courtesy so Mr. Williams would continue to refer clients to Mr. Barrett and because he believed it was the compassionate thing to do. But by 2012, of the $8,612.07 that SCM billed to Mr. Williams’s account, Mr. Barrett had written off $7,912.07. And Mr. Williams had paid SCM only $700 while paying Mr. Barrett personally $3,500...

The second situation involves legal services Mr. Barrett provided to David Petersen. Mr. Barrett began legal work for Mr. Petersen in November 2010, when Mr. Petersen hired Mr. Barrett’s firm to represent him in a custody case. Several months later, Mr. Petersen started building a shed at Mr. Barrett’s home. Shortly afterward, Mr. Barrett requested that the firm write off about half of Mr. Petersen’s bill. Over the next couple of months, Mr. Barrett requested that SCM write off the rest of Mr. Petersen’s bill, and the firm refunded his $2,500 retainer. Mr. Barrett paid Mr. Petersen approximately $5,000 for the shed, which had cost Mr. Petersen $15,170.63 to build. In all, Mr. Barrett wrote off $8,913.54 from Mr. Petersen’s account at SCM. Mr. Barrett stated that he wrote off Mr. Petersen’s bills and refunded his retainer because he believed Mr. Petersen would be unable to pay and needed the money to visit his son. Mr. Petersen, however, testified that he had an agreement with Mr. Barrett to build the shed in exchange for legal services.

The third and final situation arose in January 2012 when Mr. Barrett requested reimbursement for a business development lunch in California that he did not attend. Mr. Barrett’s wife attended the lunch, and Mr. Barrett stated that he discussed business matters with a potential client over a phone call that took place during the lunch.

The firm confronted him over billing issues and reported him to the Bar.

The district court found misconduct and ordered suspension.

The district court concluded that Mr. Barrett’s actions constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation,” but, given that Mr. Barrett did not misappropriate client funds, concluded that “disbarment . . . [was] not mandated in this case.” After considering the duty that Mr. Barrett violated and Mr. Barrett’s mental state, and weighing the aggravating and mitigating circumstances, the court imposed a 150-day suspension, which both parties appeal.

The court here rejected the attorney's vigorous attack on the district court's findings.

As to sanction

We have frequently stated that intentional or knowing misappropriation of client funds creates a presumption of disbarment under this section, noting that “it strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself.” In re Discipline of Babilis, 951 P.2d 207, 217 (Utah 1997); see also In re Discipline of Corey, 2012 UT 21, ¶ 21 & n.9, 274 P.3d 972. In its brief to this court, the OPC asked us to extend this presumption to all acts of intentional or knowing misappropriation of firm funds. At oral argument, the OPC pressed the stronger position that we have already recognized that misappropriation of firm funds is a presumptively disbarrable offense, citing our opinion in In re Discipline of Ince, 957 P.2d 1233 (Utah 1998).

In Ince, we imposed disbarment after finding that the attorney misappropriated money from both his firm and his clients, thereby engaging in criminal conduct and actions that “seriously adversely reflect on [the lawyer’s] fitness to practice law.” Id. at 1237. We noted that whether “the majority of the money [the attorney] stole came from his law firm rather than from a client neither changes the essential nature of his conduct nor makes it any less serious,” and we therefore adopted the position that intentional misappropriation of firm funds merits disbarment. Id. But that language was merely dicta, which we now reject, noting that Ince’s holding relied on facts that are not applicable to Mr. Barrett’s case.

...we clarify today that not all misappropriation is created equal. Misappropriation of firm funds does not “undermine the foundations of the profession and the public confidence” in the same way that misusing client funds does. Id. A presumption of disbarment for intentional or knowing misappropriation of client funds is necessary to protect the “foundations of the profession and the public confidence that is essential to the functioning of our legal system,” and we have placed it among the top of our sanctionable offenses as a way of putting attorneys on notice that such actions are “always indefensible.” Id. But the same policy concerns do not arise where no client money is at issue, and we want to leave no doubt in stating that intentional or knowing misappropriation of client funds is intolerable. Thus, we will not extend Ince to mean that where an attorney has misappropriated firm funds but not client funds, the presumption of disbarment must apply. In this case, Mr. Barrett did not misappropriate client funds. We therefore decline to extend Ince’s ruling to hold that disbarment is the appropriate sanction whenever an attorney misappropriates firm funds, and we find that Mr. Barrett’s knowing and intentional misappropriation of firm funds does not fall within rule 14-605(a)(3).

Thus no "death penalty"

Although Mr. Barrett’s misappropriation of firm funds is not deserving of the “professional death-sentence” of disbarment, Corey, 2012 UT 21, ¶ 40, we hold that suspension is appropriate. Intentional or knowing misappropriation of firm funds is a serious offense, and we conclude that Mr. Barrett’s intentional and knowing mental state, combined with the actual injury caused to his firm from losing the client funds that were due to it, along with the lack of compelling mitigating factors, merits a serious sanction. We therefore agree with the district court that the aggravating and mitigating factors do not justify deviating from suspension, and we uphold the court’s order of a 150-day suspension.

However, we part ways with the district court in two respects. First, we do not find that Mr. Barrett’s repayment of misappropriated funds constituted the mitigating circumstance that there has been a “timely good faith effort to make restitution.”...Mr. Barrett repaid SCM only after the firm accused him of misconduct, not as a result of self reporting. Therefore, we will not consider his restitution as a mitigating factor.

Second, the court found that there was no misconduct in billing the California lunch.

...there is no evidence that SCM’s policies prohibited Mr. Barrett from requesting reimbursement for a meal that he did not attend when he had spoken to the potential client on the phone. And in the absence of evidence that Mr. Barrett intentionally deceived the firm as to his presence at the lunch, we do not believe his conduct rises to the level that a sanction is necessary.

(Mike Frisch)

February 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Disbarred For Sex Abuse Of Boy Scouts

Automatic disbarment as a consequence of a felony conviction was imposed by the New York Appellate Division for the Second Judicial Department.

Pursuant to Judiciary Law § 90(4)(a), the respondent was automatically disbarred and ceased to be an attorney upon his conviction of a felony.

The Poughkeepsie Journal reported on the trial and verdict

Former Dutchess County Legislator Michael Kelsey will wait two months to learn his fate after being found guilty on all charges in his sexual abuse case.

A St. Lawrence County jury had deliberated for close to 10 hours over the course of two days before finding him guilty of the five charges related to his sexual abuse of two Boy Scouts...

Justice was served today,” the mother of one of Kelsey’s victims said after hearing the verdict. She thanked each and every juror as they left the courtroom.

Kelsey, a 38-year-old former assistant scoutmaster, was convicted of first-degree sexual abuse and first-degree attempted sexual abuse, both felonies, along with forcible touching, and two counts of endangering the welfare of a child, all misdemeanors. The crimes occurred during a Boy Scout camping trip Aug. 13-20, 2014.

“I feel proud of these boys,” one of the mothers told the Journal after the verdict was read. “It was a very difficult thing that they had to do. I am happy with the outcome to show the boys what they did was the right thing. These boys showed truthfulness, honesty and, above all, courage.”

St. Lawrence County District Attorney Mary Rain applauded the two teens’ decision to come forward with the allegations.

“It was very difficult for these two young men to come up against such a force in the community, who had such great respect. But they did come forward,” Rain said. “They had adults that believed in them. They had the (St. Lawrence County District Attorney’s Office) and police that also believed in them. I want other young victims to know if you come forward, we will assist you with counseling or prosecution or both.”

Rain said she will be pursuing the maximum sentence in the case.

“The defendant has persistently abused these boys physically as he did on the hiking trip but he continued to do so during motion practice and during the trial itself," Rain said. "He was put in a position of great responsibility for the lives of young men and he took advantage of that. And for that we want to send a message to other people that want to use this platform… as a way to abuse (children).”

The press had sought comments from defense attorney Richard Portale, but he was unavailable after the verdict.

Kelsey’s victims were two 15-year-old boys in 2014. The young men, now 16 and 17, testified they were on a camping trip with Kelsey and that he touched one of them and attempted to touch the other while they were sleeping.

Kelsey, an attorney, gave his own opening statement. He also testified Tuesday saying he believed one of the boys had made “advances” at him.

Rain, in her closing argument Wednesday, tore into Kelsey’s explanations and claims. Like defense attorney Portale, she asked jurors to look at the credibility of the witnesses on both sides of the case.

Rain dismissed Kelsey’s claims as “bizarre, ridiculous and nonsense.” She added Kelsey “cloaked himself” in his religion, his reputation as a public servant. She said he also used various excuses for his actions.

The boys and their parents were in the courtroom Thursday. The boys’ mothers teared up after the verdict was announced. After the verdict, one of the fathers of the two boys read a written statement on behalf of the family.

"We are so proud of our boys for bringing this forward and preventing this from happening to other boys," the father said. “We’re also extremely thankful to District Attorney Mary Rain for the masterful job she did prosecuting this case.”

The father also thanked the entire District Attorney’s Office, state police investigators and the families’ state police child advocacy officer.

To the Journal, the father said: “Troop 95 suffered greatly from this as well. We are still grateful for the organization and hoping that it can recover and continue to provide boys in the Hudson Valley with a wonderful experience.”

Evidence in the trial included a recording of a phone call where the former legislator can be heard saying “I reached for him in an area I shouldn't have,” referring to the teenager’s genitals, and, “He batted my hands away.”

One the teenagers later testified to fending off the advances, including batting Kelsey's hands away, zipping up his sleeping bag, and trying to wake up a fellow Scout sleeping nearby; the Scout misunderstood him and went back to sleep. The teen said Kelsey apologized the next day, saying he does "stupid things sometimes.”

The teenager also testified that Kelsey had tried to touch his genitals on an earlier date. He said, while playing a game in a hot tub in which Kelsey tried to touch his nipples, he covered up his chest, only to have Kelsey touch his groin instead. That was the first time Kelsey's behavior had "raised any alarms" with him, the teen said.

The other victim testified that, while the Scouts slept in Kelsey’s Volkswagen Jetta on the first night of the trip, the former legislator rubbed his genitals “for 10-20 minutes.”

On Tuesday, Kelsey testified he did not touch either Scout and said he believed one of the teens made "advances" at him. He detailed an incident in which he woke up to find one of the teens asleep on his chest. Kelsey said he apologized to the teen the next day because he didn’t feel about him “in that way.”

When the teen took the stand last week, he said his relationship with Kelsey was not “romantic.”

Kelsey admitted to texting both boys multiple times on separate occasions, but denied grabbing one of the victims' genitals in a hot tub.

Both victims admitted to reaching out to Kelsey several times after the August incident. They also admitted to withholding some information from investigators initially, including a game involving removing articles of clothing during the drive to the campsite.

When asked by Rain about why he did not immediately tell an adult, one victim said, “I just wanted everything to go back to normal.” He said he also didn’t think anyone would believe him because Kelsey is “such a great guy and so many people look up to him.

“Everybody liked (Kelsey),” one mother said after the trial. “It took a lot of courage for these boys to stand up and they did. They prevented this from happening to other boys.”

Another Scout who was on the August trip said Kelsey slept alongside the Scouts each night of the trip, which Rain said was a violation of Scout youth protection rules.

Kelsey and another assistant scoutmaster, Thomas Reilly, argued this point. Reilly said that the rules are not as clear for the elite Boy Scout group known as Venture Crew, and Kelsey said that his “interpretation” of the guidelines meant the rule only applied to tents.

Once a respected Dutchess County legislator and rising star in the local Republican Party, Kelsey lost his bid for reelection in September’s Republican primary election to Sandra Washburn. Kelsey was permanently suspended from the Boy Scouts of America in October.

Kelsey was sent without bail to a holding cell in St. Lawrence County Jail. He had been released on bail since his arrest in December 2014 by state police in Wappinger.

Rain asked for remand, saying that Kelsey should be kept under close supervision since he mentioned in his testimony that he attempted suicide after the allegations surfaced.

The Poughkeepsie Journal also reported on the sentencing with a link to the victim impact statements. 

Kelsey, a former Dutchess County legislator convicted of sexual abuse in a case involving two Boy Scouts, was sentenced to seven years in prison and 10 years post-release supervision Friday.

“Every Boy Scout … trusted Mike with our lives,” said one of the young men, according to an official court transcript of the sentencing obtained by the Poughkeepsie Journal. “Not only us, but our parents trusted him to take us on these amazing trips, have fun, make memories and bring us home safely.”

(Mike Frisch)

February 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"99%...Pure Bullshit"

In a matter involving allegations of misconduct against a sitting judge, the Maryland Court of Appeals directed that the Commission on Judicial Disabilities file the record of proceedings leading to a reprimand for the court's limited review

The Commission has the power to reprimand a judge, which it had exercised in the matter.

The court

In this case, we must decide – initially – whether there is any mechanism for this Court to review the fundamental fairness of a proceeding conducted by the Commission on Judicial Disabilities (“Commission”) when the Commission disciplines a judge in the sole manner in which the Constitution authorizes it to do without referring the matter to this Court. We hold that there is such a mechanism – the common law writ of mandamus. Our review in this particular case awaits the provision by the Commission of the record of its proceedings.

The judicial complaint involved a judge-lawyer interaction in a civil case that had led to the judge's recusal.

The judge stated

[B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I’m in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones Esquire – I’m reading off the letterhead – tells me. I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I’m forced to recuse myself and I can’t get past the idea that I cannot believe a darn thing that Mr. Jones tells me now. So I am compelled under … Rule 2.11 [of the Maryland Code of Judicial Conduct] to disqualify myself in any further proceedings in this case, because I now believe based on Mr. Jones’ conduct and representations in this case, in his discussion and exploration of who struck John in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him, I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I’m going to recuse myself.

The court

Notwithstanding her decision to recuse herself from the trial of the Joyner case, Judge White stated that she would preside over the October 31, 2014, hearing regarding the show cause order she had issued because, as she stated, it was her “responsibility to address it.”

Then

Mr. Jones filed multiple complaints concerning Judge White with the Commission beginning on October 20, 2014. Following an investigation, and with the authorization of the Commission, Investigative Counsel filed charges dated March 31, 2016 against Judge White. Investigative Counsel alleged that Judge White had violated various provisions of the Maryland Code of Judicial Conduct. All of the charges concerned Judge White’s conduct during the three hearings in the Joyner case during 2014.

A hearing was held by the Commission and a reprimand imposed.

The judge sought review

The immediate question before us is whether there is any mechanism for us to review Commission proceedings when the Commission determines that a reprimand is the appropriate discipline – a form of discipline that the Constitution authorizes the Commission to impose on its own without referring the matter to us. We hold that there is no constitutional or statutory basis for this Court to exercise appellate jurisdiction to review the Commission’s proceedings. We do have original jurisdiction, however, to conduct a limited review, pursuant to a common law writ of mandamus, of Judge White’s claims that the Commission abused its discretion and deprived her of the procedural due process guaranteed by the State Constitution and Maryland Rules. In order to conduct that review, we direct the Commission to file the record of its proceedings with us. To the extent that Judge White asks for review of matters that preceded the filing of charges, she must submit a written waiver of confidentiality to the Commission.

The court held that an accused judge is entitled to due process but

Our review under a writ of mandamus, however, is limited. The Constitution and our rules provide for the Commission to issue a reprimand without approval or review by this Court. The Commission’s decision to issue a public reprimand is properly classified as a non-ministerial discretionary act that is dependent upon the judgment of the Commission members. Once the Commission has provided an accused judge with the requisite due process, it is entrusted to the Commission’s discretion whether to dismiss the charges, reprimand the judge, or recommend other discipline to us. Thus, a writ of mandamus is not available to review a claim that the Commission erred in concluding that a judge committed sanctionable conduct or in its judgment to reprimand the judge as a result of that conclusion...

In order to carry out the review of Commission proceedings for which we have jurisdiction, we direct the Commission to file the record of the proceedings concerning its charges against Judge White, including that part of its record relating to the pre-charging period for which Judge White waives confidentiality. Once the record has been filed with the Court, the parties shall submit additional briefs and an appropriate record extract, according to a schedule set forth by future order of the Court. Such briefing shall be limited to the question of whether the Commission proceedings failed to comply with the Constitution and Maryland Rules and, if so, whether any such failure affected the fundamental fairness of the proceeding.

The charges filed against the judge are linked here.

The oral argument before the Court of Appeals is linked here.

The judge's alma mater Washington & Lee noted that she was named Maryland Judge of the Year in 2014. (Mike Frisch)

February 22, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Advice On Immigration Consequences Of Guilty Plea Deemed Sufficient

The Minnesota Supreme Court affirmed a decision to deny a motion to withdraw a guilty plea

This case requires us to determine the extent of a criminal-defense attorney’s obligation under the Sixth Amendment to the United States Constitution to inform a noncitizen defendant of the immigration consequences of a guilty plea. The appellant, Francisco Herrera Sanchez, pleaded guilty to third-degree criminal sexual conduct, Minn. Stat. § 609.344, subd. 1(b) (2016), which led to the initiation of removal proceedings against him. In an effort to avoid deportation, Sanchez filed an emergency motion to withdraw his guilty plea, in which he argued, in part, that his counsel provided ineffective assistance by failing to accurately inform him that the plea would lead to his removal from the United States. The postconviction court denied Sanchez’s motion to withdraw the plea, and the court of appeals affirmed. Because Sanchez’s counsel accurately advised him about the immigration consequences of his plea, we also affirm.

The court

...even if Padilla leaves open the possibility that a criminal-defense attorney has a constitutional obligation to review relevant case law and administrative interpretations before providing advice to a noncitizen defendant contemplating a guilty plea, Padilla did not require Sanchez’s counsel to do anything more than provide a general warning about the immigration consequences of entering the plea. If the obligation of Sanchez’s counsel was limited to reading and interpreting the relevant immigration statutes, then we reach the same conclusion: the statutes were not sufficiently clear to impose an obligation on counsel to do anything more than he did. Either way, Sanchez’s counsel satisfied his obligation under the Sixth Amendment.

(Mike Frisch)

February 22, 2017 | Permalink | Comments (0)

Client Security Payment Should Fall On Offending Attorney

The Wisconsin Supreme Court accepted an attorney's voluntary license revocation for misconduct in multiple matters

We revoke Attorney Gegner's Wisconsin law license effective the date of this order. The scope of his misconduct is vast and troubling. It is not necessary to set forth the particular factual allegations of every instance of misconduct in every client matter involved in this case. Doing so would be overly cumbersome, given that the amended complaint alone alleges almost four dozen misconduct counts, described in some 231 separately numbered paragraphs. A synopsis of the information contained in the attachments to Attorney Gegner's petition for revocation will provide a sufficient description of the nature and scope of his professional misconduct.

As stated above, the OLR's amended complaint in this disciplinary proceeding, attached as Appendix A to the revocation petition, sets forth 47 counts of misconduct involving 11 different clients and an allegation of practicing law after suspension.

The court quoted from the referee's findings

The facts established by OLR portray a repeated pattern of serious misconduct from 2011 into 2015. The facts establish a law practice that was spiraling out of control. Mr. Gegner would fail to communicate with his clients and would fail to perform the legal work and services that were necessary. He would at times misrepresent the status of his work to both the clients and court. He misused and converted client funds and failed to provide any accounting. The record establishes numerous aggravating factors in this case and based on the Petition for Revocation by Consent, no mitigating factors have been shown.

"[T]o make matters worse," the referee noted, "there are at least 13 counts relating to Mr. Gegner's obstinate failure to cooperate with OLR's investigations...

Thus

We agree with the referee that Attorney Gegner's petition for consensual revocation should be granted. Attorney Gegner has engaged in a widespread pattern of serious professional misconduct that has harmed his clients. He is either unwilling or unable to conform his conduct to the standards that are required to practice law in this state. Anything less than a revocation of his law license would unduly depreciate the seriousness of his misconduct, fail to protect the public and the court system from further misconduct, and inadequately deter similar misbehavior by other attorneys. Revocation is clearly deserved.

The court ordered restitution to several clients and noted

We make one further observation (and ruling) on the issue of restitution. In the OLR's December 29, 2016 supplemental restitution statement, the OLR stated that it would not seek restitution for a $1,000 payment to Attorney Gegner's former client, Michelle A., which the Fund [for Client Protection] approved on December 14, 2016. The OLR explained that, notwithstanding this payment by the Fund, the OLR's investigation did not identify a reasonably ascertainable amount of restitution to seek in the Michelle A. matter, and therefore it had not sought restitution in this matter, and would not do so now. Mindful that the Fund is financed by State Bar of Wisconsin members' annual fees, we fail to see why the $1,000 payment by the Fund to Michelle A. should be financed by members of the bar who have not engaged in misconduct, as opposed to Attorney Gegner, who has conceded his misconduct in the Michelle A. matter. We acknowledge that the Fund's $1,000 payment to Michelle A. was not addressed in the consensual revocation petition or in the referee's report, but we cannot envision any scenario in which Attorney Gegner could avoid reimbursing the Fund for this payment. We therefore order Attorney Gegner to reimburse the Fund in this amount. To the extent that Attorney Gegner disagrees with this court's ruling on this point, he is free to move the court to reconsider its ruling. 

(Mike Frisch)

February 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Dangers Of Crack Cocaine

A three-year suspension with credit for time served was imposed by the Pennsylvania Supreme Court for an attorney convicted of possession and use of crack cocaine and possession of a firearm.

The attorney had become addicted to crack cocaine over a  4 1/2 month period and purchased the substance from a former client who was subject to an ongoing  federal investigation. The supplier was not a current client and there was no exchange of drugs for legal services. 

The firearm was a family heirloom that he had received from a deceased relative which was in his possession at the time of his arrest.

He was placed on probation in the criminal case and has tested drug-free.

He was fully cooperative in the disciplinary case, expressed remorse and has been gainfully employed in a family business.

The case is In re Guy Amatangelo and can be accessed by following the link above. (Mike Frisch)

February 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, February 21, 2017

Failure To Adequately Respond To Ex-Wife's Complaint Leads To Interim Suspension

An interim suspension has been ordered by the New York Appellate Division for the First Judicial Department based on a complaint filed by the attorney's ex-wife.

In November 2015, the Departmental Disciplinary Committee, now known as the Attorney Grievance Committee (Committee), received a complaint from respondent's former wife, in which she alleged that respondent had failed to comply with a final judgment of divorce issued by a Florida court which directed him to, inter alia, pay her monthly alimony and child support totaling $3,750.

Between December 2015 and January 2016, the Committee sent respondent a series of letters and emails requesting that he submit a written answer to the complaint and include copies of his most recent state and federal income tax returns. In February 2016, respondent, who claimed not to have received the initial letters the Committee sent to his registered address, submitted his answer in which he asserted that the Florida judgment was not valid and enforceable against him because he had never resided in Florida, nor had he been properly served with process, and thus, the court lacked personal jurisdiction over him, and that his ex-wife's complaint involved legal issues, not disciplinary issues, more appropriately addressed by a New York court.

On March 3, 2016, respondent appeared before the Committee for an examination under oath at which he testified, as relevant herein, that he uses his OCA registered address only to receive mail and does not have an actual office; in 2011 he lost his job as an intellectual property attorney due, in part, to downsizing as well as professional difficulties which he attributed to marital discord; he has not been able to find employment since then despite continuous efforts on his part to do so; and he has not had a regular residence since November 2015 because he can no longer afford to pay rent and depends on friends to provide him with temporary, rent free housing.

Respondent stated that before moving to Florida, the wife filed for child support in New York (Westchester County) which the court awarded in December 2011 ($117 per month). Also in December 2011, respondent, with the assistance of pro bono counsel, commenced a divorce action in Westchester County seeking custody of his three children. However, the record is unclear as to whether respondent pursued this action. Respondent also testified that he had paid some child support but had not done so since 2015 due to lapses in his income and financial problems, namely, he had amassed significant debt and owed back taxes.

By an April 4, 2016 email, respondent provided a supplemental submission in which he asserted that, inter alia, he was not bound by the Florida judgment and had not waived personal jurisdiction, his Florida attorney had a conflict of interest, and he challenged whether there was proper service of process. Respondent's submission included a June 2014 motion for rehearing of his prior, unsuccessful motion to dismiss the divorce action based on the alleged absence of personal jurisdiction, which his counsel filed prior to issuance of the final judgment of divorce directing him to pay child support and alimony.

After several emails sent back and forth, on June 22, 2016, the Committee emailed a judicial subpoena to respondent which directed him to appear for a second deposition on August 2, 2016 and to produce copies of all tax returns in his possession. Although the Committee requested acknowledgment of its email and subpoena, respondent did not do so. After three unsuccessful attempts by the Committee's process server to serve the subpoena on June 29, July 7 and 8, the Committee served respondent on July 22, 2016, at the residential address he provided at his March 3, 2016 deposition, pursuant to CPLR 308(4).

By an August 1, 2016 email, the Committee requested respondent to bring his copies of the previously marked exhibits to his deposition scheduled for the next day. Respondent did not appear on August 2, 2016 as directed, nor did he contact the Committee to request an adjournment. By an August 2, 2016 email, the Committee requested respondent to explain his failure to appear or it would be forced to move for his interim suspension. Respondent did not reply to this email.

By letter dated August 5, 2016, the Committee again requested respondent to explain his failure to appear on August 2, 2016 and to immediately contact the Committee to reschedule his deposition, and informed him that his failure to do so could result in his interim suspension based on failure to cooperate with a disciplinary investigation. This letter was sent to the residential address respondent provided at his March 2016 deposition and to his registered mailing address. The Committee advises that the certified mailing sent to respondent's residential address was returned but that its other letters were delivered to both addresses. The Committee also emailed the letter to respondent. No response was forthcoming.

By a September 2, 2016 email, the Committee again requested respondent to contact it to reschedule his deposition and advised him that failure to do so could result in his interim suspension. Respondent did not reply to the email. By a September 16, 2016 email, the Committee again warned respondent that if he did not immediately contact the Committee, it would have no choice but to seek his interim suspension. Again, respondent did not reply to the Committee's email.

In addition to its letters and emails, the Committee advises that since August 2016 it has left approximately two dozen voice mail messages for respondent at the still connected telephone number he supplied in his initial answer to his ex-wife's complaint, none of which have been returned. To date, respondent has not complied with the judicial subpoena directing him to appear for a second deposition, nor has he contacted the Committee.

New York imposes interim suspensions where the attorney willfully fails to cooperate in the bar investigation. (Mike Frisch)

February 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"Regular Customer" Reprimanded

A reprimand was imposed by a panel of the Michigan Attorney Discipline Board

The respondent and the Grievance Administrator filed a stipulation for a consent order of discipline, in accordance with MCR 9.115(F)(5), which was approved by the Attorney Grievance Commission and accepted by the hearing panel. The stipulation contained respondent's admission that he was convicted in a matter titled People of the State of Michigan v Steven Dunnings, 54-A District Court Case No. 16-01137 -SM, of engaging the service of a prostitute, a misdemeanor. Based on respondent's conviction and his admission in the Stipulation for Consent Order of Reprimand, it was established that respondent engaged in conduct that violated the criminal laws of the State of Michigan, in violation of MCR 9.104(5).

The Lansing State Journal reported on the crime

Steven Dunnings, the younger brother of former Ingham County prosecutor Stuart Dunnings III, pleaded guilty Thursday afternoon to engaging in the services of a prostitute, prosecutors said.

Steven Dunnings was charged in March with two misdemeanor counts as part of the same investigation that led to Stuart Dunnings being charged with 15 prostitution-related charges, including a 20-year felony...

During a March news conference announcing the charges, Attorney General Bill Schuette said Stuart Dunnings paid for sex hundreds of times over several years. Court records that led to charges against the Dunnings brothers indicate Steven Dunnings paid two women for sex, one of which "considered him a regular customer."

Stuart Dunnings, who served nearly 20 years as Ingham County prosecutor, resigned from office in July. During his plea hearing earlier this month, he admitted to offering a woman who wasn't a prostitute payment for sex, which was the factual basis of the felony charge.

(Mike Frisch)

February 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Conduct Unbecoming For A Teacher

The New Jersey Supreme Court reversed an arbitrator's favorable rulings in a matter involving termination of a tenured high school teacher.

Count One

Evidence adduced at the arbitration hearing established that defendant used the devices, sometimes during work hours, on the District computer network to send explicit pictures of himself and to seek similar pictures in return from various women on the internet. On the District-issued devices, defendant saved nude pictures and sexually explicit emails, sent and received by defendant, including negotiations for paid sexual services.

Count Two alleged "inappropriate" behavior toward female staff'

In support of the charges, the Board produced physical evidence taken from defendant’s Board-issued computer and iPad, as well as testimonial evidence that defendant, in the presence of students, propositioned staff members to date him and commented on the physical appearance of female staff. Notably, defendant’s remark about the tight fit of a female teacher’s pants prompted a follow-up question by a student who was present when defendant uttered the remark. Defendant also used a student as his personal courier to deliver flowers and “inappropriate” messages to a colleague he was pursuing.

A  hearing was held

the Board determined by a majority vote that the evidence supported the charges and warranted dismissal. The Commissioner of Education (Commissioner) reviewed the charges and agreed they warranted termination. The charges were then submitted for review by an arbitrator, pursuant to N.J.S.A. 18A:6-16. The arbitrator found that the Board had proven the allegations underlying Count I but dismissed Count II with prejudice, reducing the penalty from dismissal to a 120-day suspension without pay.

Before the court

The Board urges this Court to reverse the judgment of the Appellate Division, contending that the arbitrator’s hostile work environment analysis was improper. The Board argues that there is a fundamental difference between charges of “unbecoming conduct” and “sexual harassment” and that the arbitrator improperly conflated the two to require the Board to prove a hostile work environment under Lehmann.

In support of the Board’s position, the amicus Association maintains that the arbitrator lacked the authority to alter or rewrite the charges. The Association contends that the arbitrator should have limited his analysis to a determination of unbecoming conduct. The Association underscores the practical impossibility of trying to prepare and present appropriate evidence if “arbitrators [have] the ability to unilaterally change the charges presented.” Further, the Association asserts that requiring the Board to prove hostile work environment “would be anathema in a school setting.” It argues that schools would have no recourse against isolated but abhorrent incidents that would not rise to the level of a hostile work environment, yet would satisfy the standard of unbecoming conduct.

Held

proving hostile work environment is not necessary to satisfy the burden of showing unbecoming conduct. A charge of unbecoming conduct requires only evidence of inappropriate conduct by teaching professionals. It focuses on the morale, efficiency, and public perception of an entity, and how those concerns are harmed by allowing teachers to behave inappropriately while holding public employment. The Court has made it clear that the failure of a school board to prove a different offense does not preclude a finding of unbecoming conduct...

Here, the arbitrator erroneously faulted the Board for failing to prove a charge that it did not bring. The arbitrator erred in his reliance on Lehmann because he imposed a different and inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim. The arbitrator “imperfectly executed” his power by misinterpreting the intentions of the Board so significantly as to impose a sexual harassment analysis, when such an analysis was different context -- under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. wholly ill-suited in this context...

The judgment of the Appellate Division reinstating the arbitrator’s award is reversed, and the matter is remanded for arbitration with a new arbitrator to determine whether defendant committed unbecoming conduct, and any appropriate penalty.

The Appellate Division opinion is linked here. (Mike Frisch)

February 21, 2017 in Comparative Professions | Permalink | Comments (0)

Senior Judge Reprimanded For OWI

The Indiana Supreme Court has reprimanded a senior judge

In lieu of Respondent tendering a written response to the charges, the parties jointly tendered a “Statement of Circumstances and Conditional Agreement for Discipline” in which the parties have stipulated to the following facts. On the night of Saturday, October 1, 2016, a Porter County Sheriff’s Department deputy responded to 911 calls from two different individuals about a southbound vehicle periodically veering into northbound traffic on Indiana State Road 149 in Porter County. The deputy observed a vehicle matching the description provided by one of the 911 callers driving slowly on State Road 149 in the area of C.R. 550 North. After stopping Respondent’s vehicle and approaching Respondent, the deputy noticed an odor of alcohol on Respondent’s breath and person. Respondent’s speech was slurred, his eyes were watery, his manual dexterity was poor, and his balance was unsteady. He failed at least three field sobriety tests, and when he consented to a preliminary breath test, the result was .20 BAC. He then voluntarily gave a blood sample at Valparaiso Medical Center in Lake County. 

He pled guilty to charges of operating while intoxicated

Respondent and the Commission agree that by being arrested and convicted for Operating a Motor Vehicle While Intoxicated, Respondent violated Code of Judicial Conduct Rule 1.1 requiring judges to comply with the law, and Rule 1.2 requiring judges to avoid impropriety and to act at all times in a manner that promotes public confidence in the integrity of the judiciary.

The parties cite no facts in aggravation. In mitigation, they agree that Respondent immediately self-reported his misconduct and voluntarily contacted the Judges and Lawyers Assistance Program (JLAP); that he is compliant with all JLAP requests; that he has been fully cooperative with the Commission throughout its investigation; and that he is remorseful for his conduct. They also agree that under the circumstances, the appropriate sanction is a public reprimand. The Court agrees with the parties.

(Mike Frisch)

February 21, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Convicted Attorney Gets Credit For Time Served

Dan Trevas summarizes a bar discipline case decided today by the Ohio Supreme Court

The Ohio Supreme Court today indefinitely suspended a Strongsville attorney convicted of felonies for his role in a bribery scheme involving prominent Cleveland attorney Anthony Calabrese III, who was disbarred and is serving a nine-year federal prison sentence for bribery.

The Court voted 4-3 to indefinitely suspend Marc G. Doumbas with the majority agreeing to credit him with time served under an interim suspension issued by the Court in January 2014. The per curiam opinion stated the suspension was issued based on Doumbas’s conviction for two felony bribery accounts, which he unsuccessfully appealed in state court and has informed the Court he intends to contest in federal court.

Conviction Based on Bribery Complicity
Ohio Disciplinary Counsel charged Doumbas with two violations of the rules governing Ohio attorneys that prohibit lawyers from committing illegal acts and engaging in conduct that is prejudicial to the administration of justice.

Doumbas and G. Timothy Marshall represented Thomas Castro in a criminal proceeding in which Castro was charged with rape. Calabrese was Castro’s business attorney. Castro agreed to plead guilty to two counts of sexual battery, and before his sentencing, Doumbas and Marshall discussed the need to assemble information to request a sentence that would include no prison time for Castro.

Marshall and Calabrese offered substantial payments to Castro’s two sexual-assault victims as “civil settlements” in an attempt to show the court Castro had made restitution for his criminal conduct. In exchange, the men asked the victims to make requests that the sentencing judge not impose jail time on Castro.

“Although there was no evidence that Doumbas had directly promised, offered, or given anything of value to the witnesses, the state alleged that he had been aware that Marshall and Calabrese had made or intended to make the settlement proposals and he had shared Castro, Marshall, and Calabrese’s criminal intents, and therefore, the state alleged, he was complicit in bribery,” the opinion stated.

Doumbas was convicted of two third-degree felony counts, sentenced to two concurrent one-year prison terms, and ordered to pay a $10,000 fine and court costs. He completed his prison sentence, but as of his June 2016 Board of Professional Conduct hearing, he had not paid any of the $12,500 total in fines and costs.

The Eighth District Court of Appeals affirmed his conviction in 2015 and refused his requests to reopen his appeal.

Attorney’s Post-Conviction Behavior Impacts Sanction
In developing a recommended sanction the board considers aggravating circumstances and mitigating factors. The board noted Doumbas’ desire to demonstrate to the judge that Castro compensated his victims for the harm they suffered. However, the board concluded that any reasonable lawyer would have recognized the risk that making such a settlement offer could be interpreted as an attempt to influence the victims’ statements at the perpetrator’s sentencing hearing.

While Doumbas might not have directly engaged the victims, the board found as Castro’s trial attorney, Doumbas must be held accountable for the negotiations he left to the discretion of Marshall and Calabrese and the harm they produced, the opinion stated. The board also noted that Doumbas denied any criminal wrongdoing at his trial and in the disciplinary hearings, and that he has offered no justification for the failure to pay his criminal fine or court costs other than stating his intent to further fight his conviction in federal court.

The board also recognized that Doumbas had no prior discipline, served his prison time, and demonstrated a cooperative attitude toward the disciplinary proceedings. He also produced six letters of good character, including two from judges, and one of his clients testified that Doumbas satisfactorily handled 25 cases for him and his family over the years, and that he would employ him again should Doumbas be reinstated. The board also found Doumbas to be “contrite and remorseful” and unlikely to engage in similar conduct in the future.

The Court agreed with the board’s recommendation to indefinitely suspend Doumbas and grant him credit for time served. If Doumbas files for reinstatement, the Court required that he must submit proof he has fully paid his criminal fine and court costs as well as the costs for his disciplinary proceedings.

Justices Judith L. French, William M. O’Neill, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy dissented, indicating they would not grant Doumbas time served under suspension.

2016-1149. Disciplinary Counsel v. Doumbas, Slip Opinion No. 2017-Ohio-550.

(Mike Frisch)

February 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Failure To Withdraw Was Ineffective Assistance

The North Carolina Court of Appeals granted ineffective assistance of counsel relief to a defendant convicted of murder in a 2001 shooting outside a nightclub.

Two witnesses (Speller and Wilson) testified that he did it; two others (L. Pugh and D. Pugh) testified that he did not.

One of his attorneys (now disbarred) had previously represented and spoken to one of the two adverse witnesses. Her notes of that conversation indicted that the witness told her that someone else was the likely shooter.

When the matter was raised at trial, the notes were not admitted and the attorney continued to represent the defendant.

It is undisputed that, at the time of defendant’s trial, [attorney] Smallwood possessed evidence tending to show that Speller made a prior inconsistent statement concerning the identity of the shooter. The exculpatory witness claim raised in defendant’s MAR was whether Smallwood’s failure to withdraw and testify as to that alleged prior inconsistent statement constitutes ineffective assistance of counsel. Evidence that Smallwood was privy to a conversation in which Speller identified the shooter as someone other than defendant would have been both relevant and material had it been offered at trial...

If otherwise competent...Smallwood’s testimony would have been admissible and within the purview of the jury to assign weight and credibility thereto.

Thus the "exculpatory witness" contention was not meritless.

As to ineffective assistance

Defendant maintains that he received ineffective assistance of counsel due to Smallwood’s failure to withdraw as counsel and testify as to Speller’s alleged prior inconsistent statement regarding the identity of the shooter. In her role as counsel, Smallwood’s questions on cross-examination could not be considered evidence by the jury. Therefore, defendant argues, when Speller denied the prior inconsistent statement during cross-examination, Smallwood had an actual conflict of interest between continuing as counsel or withdrawing to testify as a necessary witness. Defendant contends that because Smallwood’s actual conflict of interest adversely affected her performance as counsel, he is entitled to relief... 

Guided if not bound by Phillips, we believe Strickland provides an adequate framework to review defendant’s exculpatory witness claim. Despite Smallwood’s prior representation of Speller, the record shows that the purported conversation between Smallwood and Speller “took place from an investigatory standpoint” in preparation for defendant’s trial. Because that conversation was outside the scope of her representation, Smallwood would not have bound by a duty of confidentiality. By the same token, Smallwood was not “effectively silenced” from testifying about the conversation and the information she learned from Speller. As the facts of this case do not “make it impractical to determine whether defendant suffered prejudice,” Phillips, 365 N.C. at 122, 711 S.E.2d at 137, we apply Strickland’s framework to evaluate defendant’s exculpatory witness claim. 

The trial court erred

It cannot seriously be disputed that the identity of the shooter was a material issue in defendant’s murder trial. Smallwood, who possessed evidence of Speller’s prior inconsistent statement regarding the shooter’s identity, was not bound to accept Speller’s answers on cross-examination. Smallwood’s testimony, had it been offered, would have been admissible to impeach Speller by showing that he had previously identified Jordan as the shooter. And contrary to the trial court’s conclusion, we do not believe such exculpatory evidence would have been inconsequential so as to justify Smallwood’s failure to withdraw. 

Smallwood’s testimony would have also been admissible to show Speller’s bias or interest in the trial. Jordan was initially charged with Bennett’s murder and spent two years in jail before he was released. Speller testified that he and Jordan “work[ed] the same job.” After the charges against Jordan were dropped, he sent Speller to the district attorney to offer a statement implicating defendant in the murder...

While the admissibility of Smallwood’s testimony does not in and of itself establish deficient performance, the circumstances surrounding her decision to remain as counsel leads us to that conclusion. Smallwood was the only witness to Speller’s prior inconsistent statement. Her questions to Speller could not be considered as evidence and, after her ineffective cross-examination, she became a necessary witness at trial with a duty to withdraw. See N.C. St. B. Rev. R. Prof. Conduct 3.7(a) (“A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness . . . .”), 2017 Ann. R. N.C. 1242. Her testimony undoubtedly related to a contested issue in the case and tended to discredit one of the State’s two key witnesses. High could have remained as defendant’s counsel and the court could have appointed a second attorney even if it meant declaring a mistrial. By failing to withdraw and testify, Smallwood’s conduct fell below an objective standard of reasonableness and was deficient under Strickland.

Prejudice

The trial court concluded that defendant could not establish prejudice in light of Smallwood’s “effective cross-examination” of Speller, Wilson’s testimony, and the State’s cross-examination of D. Pugh based upon his prior inconsistent statement to law enforcement. We disagree.

If Smallwood had properly withdrawn, she could have testified that Speller, one of only two key witnesses for the State, had previously told her that it was Jordan—not defendant—who shot Bennett. She could have attacked Speller’s credibility through his prior inconsistent statement and evidence of his interest in the trial. Her testimony tended to discredit nearly half the State’s case and, in conjunction with the testimony of L. Pugh and D. Pugh, would have provided an evidentiary advantage to the defense.

Wilson, the only other witness to identity defendant as the shooter, had his own credibility issues. He had testified as a State’s witness in the past and, during defendant’s trial, revealed that he had been convicted of breaking and entering, two counts of second-degree burglary, larceny of a firearm, larceny of a motor vehicle, four counts of driving while license revoked, four counts of driving while impaired, two counts of injury to property, communicating threats, assault with a deadly weapon, and forgery and uttering—all within the last ten years. Judge Grant even remarked at the MAR hearing: “We all know Robert Wilson. . . . And a record like that, right, we know him.”

Thus

We conclude that defendant was denied his right to effective assistance of counsel based upon Smallwood’s failure to withdraw and testify as a necessary witness at trial. Because defendant is entitled to relief under Strickland on his exculpatory witness claim, we need not address his remaining arguments to this Court. The trial court’s order denying his MAR is reversed.

Judge Dillon dissented and would find the claims procedurally barred and deficient on the merits

To establish reasonable probability, it was Defendant’s burden at the MAR hearing to show exactly what the substance of Ms. Smallwood’s testimony would have been. Otherwise, it is impossible on review to determine whether Ms. Smallwood’s testimony would have been admissible and what impact it might have had. But as Judge Grant points out in his Order, Defendant did not present Ms. Smallwood as a witness at the MAR hearing. No one else testified at the MAR hearing with any detail as to what Ms. Smallwood would have stated had she been allowed to take the stand. There is no competent evidence in the record to demonstrate that Ms. Smallwood had any independent recollection that the State witness told her that he saw someone other than Defendant kill the victim or whether her “notes” from the alleged conversation would have refreshed her memory. It may be that Ms. Smallwood would have offered admissible, persuasive testimony to impeach the State witness. However, Defendant simply failed to meet his burden of proof to show as much at the MAR hearing.

At the MAR hearing, Defendant did offer a copy of the “notes” which Ms. Smallwood attempted to show the State witness at trial. However, these notes are not admissible to show how Ms. Smallwood might have testified. The notes do not suggest that the State witness told Ms. Smallwood that he saw Demetrius Jordan fire the fatal shot. Rather, the notes suggest, at best, that the State witness told Ms. Smallwood that he did not see who fired the fatal shot, after Demetrius Jordan had fled the scene.

The majority notes that disbarred attorney Smallwood left the area and could not be called as a witness. (MIke Frisch)

February 21, 2017 | Permalink | Comments (0)

Monday, February 20, 2017

Predator Prosecutor Disbarred Twice

The web page of the Colorado Presiding Disciplinary Judge has a summary of a consent disbarment

Morel served as the elected prosecutor of St. Charles Parish, Louisiana, from 1979 to 2012. He then became an Assistant District Attorney in the Office of the District Attorney for St. Charles Parish, a position in which he served until January 11, 2013. During his tenure in that office, Morel solicited sex from individuals who were defendants or who had family members who were defendants in the St. Charles Parish criminal justice system. While soliciting sex from these individuals, Morel used the Office of the District Attorney to provide benefits to the individuals, including by falsifying community service reports. He also harassed a particular individual who was facing criminal charges in his jurisdiction; he attempted to prevent and dissuade her from attending or testifying before a federal grand jury proceeding by telling her to destroy evidence and to lie; and he asked her to conceal information that might have led to her being a witness before a grand jury.

The attorney pleaded guilty to a federal obstruction of justice and permanently resigned from the Bar of the Louisiana Supreme Court.

The Times Picayune reported that he was sentenced to a three-year prison term.

It was an unusually stiff penalty, as maximum punishment is rare in federal court for first-time offenders. Engelhardt, whom President George W. Bush appointed to the bench, also fined Morel $20,000, well short of the maximum of $250,000, and ordered him to serve a year of probation after his release from prison.

Morel was St. Charles' top prosecutor for 33 years. He admitted his guilt in April after a three-year federal inquiry into whether he solicited sexual favors from women in exchange for help on cases pending in Louisiana's 29th Judicial District Court. Authorities labeled Morel a "sexual predator" and said his pattern of misconduct in office spanned 20 years and included at least 20 women.

Although not charged with trading sex for official help, Morel admitted as part of his plea bargain agreement that he solicited sex from defendants and others with pending court cases. He formally pleaded guilty to harassing a woman who was a witness before the grand jury that was investigating him. In May, the Louisiana Supreme Court stripped Morel of his law license, barring him from practice for life.

(Mike Frisch)

February 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Need For Further Suspension

The Wisconsin Supreme Court did not suspend an attorney who had been placed on a medical incapacity suspension in October 2008 while facing 43 counts of professional misconduct.

He was reinstated from the incapacity suspension in July 2016.

This is an unusual disciplinary proceeding. It commenced in 2007 but was held in abeyance because Attorney Muwonge was deemed to have a medical incapacity. That medical incapacity has been removed so the disciplinary proceeding can proceed.

...In the following years, Attorney Muwonge successfully sought and obtained treatment for his mental health and substance abuse issues.

The disciplinary proceedings recommenced when he was reinstated

The misconduct alleged in the 2007 disciplinary proceeding is serious. The amended complaint alleged 43 counts of professional misconduct involving 15 clients, primarily in immigration cases. It reflects a pattern of failure to pursue client matters, failure to respond to client inquiries, failure to communicate with clients, failure to keep clients informed, failure to refund retainers or costs that were not expended, and failure to return client files. For example, Attorney Muwonge was retained to help A&W Iron Metal, Inc. (A&W) obtain permanent resident status for certain employees. Attorney Muwonge failed to meet with the clients to address their questions, failed to return filed documents, and "[n]one of the workers received permanent status." Individual clients were also harmed when Attorney Muwonge failed to appear at hearings or to complete work he had undertaken for them.

The suspension was taken into account in reaching a fair result.

To suspend or revoke Attorney Muwonge's law license again, for misconduct that occurred prior to the lengthy suspension for medical incapacity, would not serve the interests of justice and is not necessary to protect the public. Under the specific facts of this case, we are satisfied that the imposition of additional conditions and restitution, as stipulated by the parties and recommended by the referee, is sufficient discipline for the misconduct described in the 2007 disciplinary proceeding.

The court ordered restitution to several clients. (Mike Frisch)

February 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sex, Texts And Disbarment

The North Carolina Superior Court accepted the consent disbarment of an attorney admitted in 1998

In and after 2011, Greene sent electronic messages to clients containing sexual and sexually-suggestive subject matter during the existence of the attorney-client relationship and had sexual relations as defined in Rule of Professional Conduct 1.19( d) with clients during the existence of the attorney-client relationship. Several of these clients with whom he had sexual relations are currently his clients, and all of these clients were immigration clients and were especially vulnerable.

The Charlotte Observer reported

A Charlotte attorney has been disbarred after admitting he slept with an undisclosed number of his immigration clients who were “especially vulnerable.”

Christopher Greene surrendered his law license after being confronted with the results of disciplinary investigation by the N.C. State Bar.

In documents filed this month in Wake County Superior Court, Greene admitted that over the past five years he has had sex with current and former clients, “and that all of these clients were immigration clients and were especially vulnerable.”

Greene also admitted sending “sexual and sexually suggestive” messages to his clients despite his professional relationship with them, court filings indicate. The complaint does not include further details.

Greene was disbarred on Jan. 12. He joined the state bar in 1998. As part of his punishment, he cannot ask to have his law license restored for at least five years. Greene operated a law firm, Greene & Associates, on Executive Center Drive in Charlotte.

(Mike Frisch) 

February 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)