Friday, August 18, 2017

Opioid Use No Mitigation In Theft Of Client Funds

The Washington State Supreme Court has imposed disbarment for an attorney's misappropriation of entrusted funds.

The attorney had received over $117,000 for the client but did not so advise him

Fossedal never disbursed any of [client] Schoofs funds to him. Instead, she used Schoof s funds "for her own benefit, directly or indirectly, without authorization to do so." Id. She used his funds for daily business and personal expenses such as payroll, office supplies, rent, symphony and Mariners tickets, groceries, pet food, restaurants, and manicures. Fossedal never sent Schoof any billing statements or accountings before removing his funds from trust.

Her associate raised concerns about general operations

In March 2011, Fossedal' s firm was fifteen months delinquent on billing. Hayes, her associate, sent Fossedal a letter expressing her concerns about the firm's financial management and her ethical obligations to its clients...

The attorney's unsatisfactory response led the associate to leave and notify Schoof

In April 2010, Schoof learned from Hayes that his settlement proceeds had been transferred to Fossedal. He made several attempts to contact Fossedal and recover the funds.

Schoof called Fossedal's office on a monthly basis, seeking disbursement. He was never able to speak with Fossedal, and she never returned his calls. Fossedal either failed to respond to his e-mails or, when she did, failed to provide substantive information or stated that she was sick and "needed time to get back to him with regard to the funds."

A bar grievance followed as well as a theft conviction and a civil suit. The attorney was relatively judgment proof 

In August 2015, the WSBA' s Lawyers' Fund for Client Protection (LFCP) made a $117,225.17 gift to Schoof.


The bar hearing

During a three-day disciplinary hearing, Fossedal, her doctors, her family, and her friends described Fossedal's personal and health problems during the time period when she stole Schoof s funds.

 Fossedal explained that she was in car accidents in 2003, 2004, and 2006. She suffered neck injuries and experienced chronic pain from 2006 onward. She tried a variety of pain management techniques including massage, ablation, physical therapy, and medications.

In 2006, under the care of her primary care physician, Dr. Dane Travis, Fossedal was prescribed a variety of opioid pain medications, including Opana, Fentanyl, Vicodin, Gabapentin, and benzodiazepine. She started taking these medications in increased amounts. While Dr. Travis was not concerned that Fossedal was abusing drugs, he did testify that "[t]here's, you know, clearly an inappropriate lack of control and misuse potential, but I didn't see it as drug-seeking behavior as in I'd like to get --enjoy this more, ever, with Dana." 3 VRP (Mar. 9, 2016) at 467.

Fossedal' s family and friends recounted that by 2009, Fossedal' s personality changed significantly. She was lethargic, slept a lot, and was inactive even when awake. She would pass out midsentence and was unable to complete simple tasks. On the few occasions when Fossedal would leave home for a court appearance, she would need to start sleeping a couple days in advance in order to complete the hearing.

The hearing officer proposed a three-year suspension. The WSBA Disciplinary Board asked for disbarment.

The court on the attorney's opioid use

Here, the hearing officer found that two factors, standing either alone or in combination with one another, constituted extraordinary mitigation: (1) physical disability due to Fossedal's "significant pain" and (2) Fossedal's opioid dependence. FF/CL at 12-13. As we explain below, the Board properly rejected both of these conclusions. Neither of these factors-either standing alone or in combination justifies a departure from the presumptive sanction of disbarment.


We do not wish to minimize the debilitating and disabling impact that chronic pain has on many individuals' lives. Nevertheless, such pain does not excuse extreme lapses of an attorney's moral judgment. We agree with the Board's decision that here, significant pain is insufficient to serve as an "extraordinary" mitigator-even when combined with other mitigating factors.

A policy judgment not universally followed throughout the country

But even if  Fossedal did prove that her drug dependence caused her to steal client funds, it would not be enough to justify a departure from the presumptive sanction of disbarment. We have repeatedly declined to find that drug or alcohol dependence is an extraordinary mitigating factor in cases involving theft of client funds, even if an attorney did not clearly recall actually taking the funds...

While at times Fossedal may indeed have been in an "opioid haze," the record indicates that to some degree, she was culpable and responsible for her actions. At some point, she "chose the path" that led to her misconduct. Id. at 772. We voiced similar reasoning in Johnson, where we disbarred an attorney suffering from alcoholism who stole client funds.


The purpose of attorney discipline is to protect the public and preserve confidence in the legal system. Rentel, 107 Wn.2d at 282. Here, the Board unanimously voted to recommend disbarment, which is a proportionate sanction that serves both of these goals. Fossedal took all of Schoof s settlement funds. She possessed these funds only because of the position of trust she occupied as Schoof s lawyer. Meanwhile, Schoof was financially destitute, sleeping on a friend's couch. And although F ossedal has expressed remorse, she has done nothing to repay any of the money she misappropriated. In light of this court's "strong policy against client fund violations," disbarment is the only acceptable sanction here. Rentel, 107 Wn.2d at 289. Any other sanction would send an untenable message to the public that opioid use may excuse stealing client funds. 

(Mike Frisch)

August 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Ad Hominem Attacks With Racial Aspect Draw Bar Charges

The Michigan Attorney Grievance Commission has filed a complaint charging misconduct by an attorney who allegedly said the following during a probation review to the probation officer

Respondent and Ms. Polom walked into the courtroom. As Ms. Polom walked past Respondent in the courtroom, he told her that she had "angry black women's syndrome" and/or "black women's disease."

After she responded "don't do this"

Respondent continued to talk to Ms. Polom in a derogatory manner, including stating that she was an "angry black woman" and "that's why you don't have a husband."

Roshawn Gardner, the court clerk, who heard and observed this conversation, moved between Ms. Polom and Respondent and then escorted Respondent out of her office.

Alleged violations

a) failed to treat with courtesy and respect a person involved in the legal process and failed to avoid treating that person discourteously or disrespectfully because of that person's race and gender, in violation of MRPC 6.5(a); and,

b) engaged in conduct that exposes the legal profession to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2).

Click On Detroit's Mara MacDonald  reports that the attorney has a radio program and has made previous controversial remarks.

Cliff Woodards is a prominent attorney, as well as a radio host in AM 910. He was attending a mandatory training session for attorneys who are public defenders.

Also attending was attorney Erica Moise, who happens to be a lesbian.

While the training was ongoing, Woodards posted this status to Facebook:


After watching yet another woman dressed up like a man, wearing sagging jeans, boxer briefs and sporting a mohawk, it finally dawned on me to ask this question: Why you wearing men’s drawers, though? It’s not like your gonna need or use the flap. Do they make you feel more manly? I don’t understand."

Colleagues alerted Moise to what Woodards was posting and things quickly took on a life of it's own on social media.

Woodards then devoted his show on Friday to the whole issue.

“It was the whole two hours discussing gender, sexuality, my underwear, “ Moise tells us. She also says she was totally humiliated.

She isn’t the only one who is upset. Gay advocacy groups who are now asking that Woodards not be given an public court appointments because of his online and on air behavior.

Wooodards opted to decline an on camera interview, but he did speak to me at length. He insists that he is no homophobe and points out that his daughter is a lesbian.

He says his comments were about fashion, not sexuality. Moise doesn’t buy it and has pulled up more than a dozen similar  Facebook posts to give to the court to try and get Woodards barred from court appointments.

Transgender advocate Julisa Abad says having an opinion is fine, but when you represent the public rants like this are not. “If he was just a radio personality, like a Howard Stern, ok, you’re not representing anybody.

You have people’s lives in your hands who are counting on you to give them justice.”

The attorney has a prior reprimand for dissimilar conduct. (Mike Frisch)

August 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 17, 2017

Interference Penalty Is New Trial

The United States Court of Appeals for the Fourth Circuit reversed a conviction due to the conduct of the trial judge

A jury convicted Hemza Menade Lefsih, an Algerian native who entered the United States through the Diversity Immigrant Visa Program, of immigration fraud. During Lefsih’s trial, the district court interjected numerous times, expressing skepticism of the Diversity Immigrant Visa Program and a negative impression of individuals who participate in the program. We find that this judicial intervention was improper and denied Lefsih the opportunity for a fair and impartial trial, and therefore vacate the judgment of conviction.

The court quotes the problematic questions and comments of the judge and notes that defense counsel did not object

The crux of Lefsih’s claim is that the district court improperly interfered with his trial through “ill-advised” questions and comments, see Martinovich, 810 F.3d at 239 (finding error in district court’s “ill-advised comments and interference”), posed to the government’s second witness, Gary Freitas. Specifically, Lefsih argues that the district court impermissibly conveyed to the jury, through questions and comments that otherwise were wholly extraneous, the court’s skepticism of the Diversity Program through which Lefsih entered the country, as well as its negative view of the immigrants– like Lefsih – who avail themselves of the Program. We must agree.

While a judge is not a potted plant nonetheless here

In the context of an immigration-fraud case – that is, with immigration front and center before the jury – the court began with a series of questions and comments suggesting a negative view of thevery immigration program through which Lefsih had entered the country: “[U]nbelievable, unbelievable.” J.A. 149. And contrary to the government’s argument, what reasonably could have appeared to the jury as the court’s disapproval did not stop with the Diversity Program itself, or the Congress that established it. Instead, the court went on to provide a negative assessment of the people – like Lefsih himself – who make use of the Diversity Program to come to the United States. According to the court, such immigrants, unlike those admitted through other programs, need not exhibit the “skill or personal characteristics” to “contribute to the well-being of the United States.” J.A. 148. And the court further questioned whether these individuals – again, including Lefsih, on trial for immigration fraud – act in good faith when participating in the Program, suggesting that lottery winners could abuse the system by “drag[ging] along [their] ten kids and four wives or what[.]” J.A. 152. As we have explained in reviewing the sufficiency of the evidence, this is a case in which the credibility of the defendant was of “crucial importance,” and as a result, aspersions cast by the court on the trustworthiness of Diversity Program entrants would have carried special weight...

Again, we do not doubt that the district court in this case acted without any intent to influence the jury improperly. And we appreciate that the defendant’s failure to object at trial – which might have allowed the district court to correct its error in real time – creates an especially “high bar for appellate review.” See id. at 239. But in the particular circumstances of this case, we conclude that the court’s interventions were not only plainly erroneous but also “so prejudicial as to deny the defendant[] an opportunity for a fair and impartial trial,” thus affecting Lefsih’s “substantial rights.” See id. at 238 (internal quotation marks omitted). And because the error here is of the kind that may seriously affect the “fairness, integrity or public reputation of judicial proceedings,” we will correct it by vacating Lefsih’s conviction.

Circuit Judge Harris authored the opinion. (Mike Frisch)

August 17, 2017 | Permalink | Comments (0)

Illegal Incarceration Gets Judge Suspended

The Mississippi Supreme Court suspended a judge who locked up a defendant who had already served his sentence.

Lee County Justice Court Judge John H. Sheffield ordered James Harper to serve six months in a work center for a conviction Harper already had appealed to a higher court, and for which Harper already had satisfied his sentence. Because under the facts of this case, Judge Sheffield’s conduct was not due to an innocent mistake, it amounts to judicial misconduct. So we impose a public reprimand, a 120-day suspension without pay, and a $3,000 fine, and assess all costs of the proceedings to Judge Sheffield.

The case involved a DUI conviction that had been appealed and the sentence completed when 

On April 9, 2013, Harper again was arrested for DUI in Lee County. At that point he was told he could not post bond until he resolved a matter with Judge Sheffield. The next day, Harper appeared before Judge Sheffield, who accused Harper of failing to pay the fines imposed for the 1996 justice-court convictions.

Despite Harper’s protestation that he had appealed to county court, lost, and paid his fines—and despite the fact that Judge Sheffield had with him the justice-court case files for Harper’s earlier convictions, both of which contained Harper’s notice of appeal and the county-court notification—Judge Sheffield sentenced Harper to serve six months at the Lee County Work Center for the DUI conviction. Harper served four months in the work center before being released due to an infection requiring hospitalization.

The court affirmed the Commission on Judicial Conduct's misconduct findings and noted that the judge had shown "anything but competence." 

On sanction, the court noted the judge's positive reputation but also prior discipline.


Judge Sheffield’s misconduct caused Harper to serve four months in the Lee County Work Center. He was released when a serious infection required his hospitalization. We have recognized that illegal incarceration is “one of the most severe forms of harm.”

...Judge Sheffield’s failure to take personal responsibility for his error constitutes an aggravating factor, and we find no mitigating factors for his misconduct. In sum, this Court finds that the Commission’s recommended sanction is an appropriate one. We find this case similar to Littlejohn. The severity of the harm to Harper requires suspension from office.

(Mike Frisch)

August 17, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Resignation Accepted

The Indiana Supreme Court has accepted an attorney's resignation in the face of bar proceedings.

IndyStar reported in June 2015

A former small claims court judge was caught on camera attempting to solicit sex acts from an inmate he was representing, court documents say.

Clark G. Rehme, an attorney in Indianapolis, has been charged with three counts of sexual misconduct and one count of official misconduct on allegations he had two female inmates expose themselves and perform sexual acts on him in an interview room at the Shelby County Jail, a probable cause affidavit states.

Shelby County Sheriff's Department officials began investigating Rehme after an inmate told a jail officer that she did not want to be in a room with her court-appointed attorney. The inmate said the attorney, identified as Rehme, had her show him her breasts and perform sex acts on him while he exposed himself to her, court documents state

Investigators interviewed the inmate, who said Rehme had made her do these things on two occasions. Court documents state the inmate went along with the behavior because she believed she would get help on her case.

After one of the meetings with Rehme, the inmate provided an unwashed shirt to detectives. Shelby County officials examined the shirt, which showed a positive indication of bodily fluid, court documents state. The shirt was sent for further DNA testing.

The inmate also told detectives that she wasn't the only female prisoner with whom Rehme had inappropriate sexual discussions, according to the documents.

Detectives interviewed the second inmate with whom Rehme allegedly had sexual conversations. The second inmate said Rehme had asked for her bra size and discussed sex acts he had done with other women, including his wife. Documents also state that Rehme told the inmate that he craved sex much the same way the inmate craved drugs.

 In an attempt to observe Rehme on camera acting inappropriately, both women agreed to meet with him again, according to the probable cause affidavit.

When Rehme met with the second inmate, investigators watched as he asked the woman to pull up her shirt. Rehme told her he wanted to see it all, then exposed himself and asked the woman to move closer, court documents say. Detectives asked jail officers to intervene when they saw Rehme start to touch the woman, documents state.

Rehme is listed as an attorney with the association of lawyers Brown Tompkins Lory and Mastrian, but one of the group's attorney's, Patrick Mastrian, tells The Indianapolis Star that Rehme has not been a part of the association since the end of last year.

"We haven't had any contact with Mr. Rehme since he left here," Mastrian said in an email.

According to the Indiana Roll of Attorneys, Mr. Rehme is with the firm of Mark Sullivan and Associates. The Star contacted the firm and a spokeswoman said Mr. Rehme is no longer an associate, but could not confirm when he had been let go. Further inquiry has been sent to the firm for confirmation on Rehme's termination.

Rehme was appointed a small claims court judge in Lawrence Township in November 2011 but was not elected in 2014 and vacated his seat in December.

No contact orders have been issued for both of Rehme's clients.

Attorney John Tompkins, who represents Mr. Rehme, said he hopes people "put it in context and wait to hear the whole story once the whole story has had a chance to develop."

Tompkins said an automatic plea of "not guilty" has been entered on behalf of Rehme, and "that is the absolute state of the defense at this point and we will be proceeding with our own investigation."

(Mike Frisch)

August 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Practice Pointer: Retainer Agreement Cannot Limit Client's Right To File Bar Complaint

An Illinois Hearing Board recommends a 30-day stayed suspension for an unethical retainer provision

In May 2015, Respondent and John Quincy Adams IV agreed that Respondent would represent him in certain criminal and traffic matters in Monroe County. The cases were docketed as People v. Adams, Nos. 2015 CF 52, 2015 DT 50, and 2015 TR 1255. Adams was charged with unlawful possession of less than five grams of methamphetamine, driving under the influence, and illegal transportation of alcohol.

On May 24, 2015, Respondent and Adams entered into and signed a retainer agreement. The retainer agreement was prepared and presented to Adams by Respondent. The retainer agreement included the following provision:

Client agrees to make all matters of said representation confidential between client(s), his/her agents, assigns and principals and to refrain from reporting any phase of said representation to any external agency, including but not limited to the Missouri Bar, ARDC etc. (Adm. Ex. 1)

On March 2, 2016, Adams wrote to the Monroe County Circuit Court and indicated he wished to terminate Respondent as his attorney in the three cases set out above. The court treated Adam's letter as a motion to dismiss counsel. On March 9, 2016, Respondent filed a response to which she attached a letter that included the statement that Adams was in "constant breach of the Non-Disclosure' provision of your contract with me."

Respondent also admitted in her Answer to the Complaint that she violated Rule 8.4(h) of the Illinois Rules of Professional Conduct (2010) by entering into an agreement with a client limiting or purporting to limit the right of the client to file or pursue any complaint before the Illinois Attorney Registration and Disciplinary Commission. (Ans. at par. 8a).

The board noted the absence of a prior similar case. (Mike Frisch)

August 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Appealing A Grade To A Court

The New York Appellate Division for the Second Judicial Department ruled against a former law student in a grade appeal

The petitioner, a former student at the respondent,Brooklyn LawSchool (hereinafter BLS), commenced this CPLR article 78 proceeding, inter alia, in effect, to review BLS’s determination denying his request to change grades he received in two courses from “F” to “W” and to issue a letter stating that his dismissal from the law school was the result of missing two final exams due to illness rather than a lack of capacity to complete a course of legal study. In the judgment appealed from, the Supreme Court denied the petition and, in effect, dismissed the proceeding.

Unlike disciplinary measures taken against a student, institutional assessments of a student’s academic performance,whether in the form of particular grades received ormeasures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators (seeMatter of SusanM. v New York Law School, 76 NY2d 241, 245; Matter of Rizvi v New York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d 1049, 1052). Thus, to preserve the integrity of the credentials conferred by educational institutions, courts have long been reluctant to intervene in controversies involving purely academic determinations (see Matter of Susan M. v New York Law School, 76 NY2d at 245-246; Matter of Zanelli v Rich, 127 AD3d 774, 775). Although determinations made by educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to constitution or statute (see Matter of Susan M. v New York Law School, 76 NY2d at 246; Matter of Gilbert v State Univ. of N.Y. at Stony Brook, 73 AD3d 774, 774; Matter of Sage v CUNY Law School, 208 AD2d 751, 751-752)

Here, the petitioner did not submit any evidence establishing that he complied with BLS’s policy for missing an exam due to illness. Pursuant to BLS’s policy, since the petitionerfailed to take two final exams, failed to promptly notify theRegistrar that hewas unable to take  those exams due to illness, and failed to submitmedical documentation of his illness necessary to schedule make-up exams, he received a failing grade in each course. BLS’s determination to let the petitioner’s failing grades stand and to refuse to allow him to withdraw from those courses so as to avoid the failing grades was not arbitrary and capricious, irrational, made in bad faith, or contrary to constitution or statute...

(Mike Frisch)

August 17, 2017 | Permalink | Comments (0)

D.C. Court Promptly Disbars Attorney Who Did Not Fight Recommendation

Bravo to the District of Columbia Court of Appeals for efficiently disbarring an attorney who had not excepted to a disbarment recommendation of the Board on Professional Responsibility.

The court entered an order today

The Board on Professional Responsibility concluded that respondent engaged in intentional misappropriation and recommends that the respondent be disbarred. Neither respondent nor Bar Counsel has excepted to that conclusion and recommendation. We therefore accept the Board’s recommendation. D.C. Bar R. XI, § 9 (h)(2).

Accordingly, it is ORDERED that respondent Sherlock V. Grigsby is hereby disbarred from the practice of law in the District of Columbia. For purposes of reinstatement, the period of disbarment will begin to run when Mr. Grigsby has filed an affidavit demonstrating full compliance with D.C. Bar R. XI, § 14 (g). 

That's it. 

The court division consisted of Associate Judges Beckwith and McLeese and Senior Judge Farrell. (Mike Frisch)

August 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Lengthy Process Ends In Disbarment

The Utah Supreme Court has affirmed the disbarment of an attorney

The district court disbarred Susan Rose for violations of Utah’s Rules of Professional Conduct in cases Rose handled in both federal and state courts. Her disbarment came after the district court struck her answer and entered default judgment against her. The disbarment did not come suddenly, or by surprise. Over the course of several years, Rose had received multiple warnings from multiple tribunals. These tribunals called her motion practice “bizarre,” “inscrutable,” “dilatory,” “frivolous,” “legally meritless,” “wholly superfluous,” “utter[ly] incomprehensibl[e],” “unresponsive, immaterial, and redundant,” and “not based in reality.”

After receiving and investigating referrals concerning Rose’s conduct, the Office of Professional Conduct brought an action in the Third District Court. Nearly eight years later, the district court struck Rose’s answer and entered default judgment, concluding that Rose had abused the discovery and litigation process. By entering default judgment, the court accepted as true the allegations that Rose had violated a number of the Rules of Professional Conduct.

At her subsequent sanctions hearing, Rose refused to defend herself. She told the district court, “I think it’s fair to say I know how this will go, I know how the end result will be, and I’m done.” And in the end, Rose was disbarred.

Rose does not explicitly argue on appeal that the district court should not have entered default judgment, that her conduct did not violate the rules, or that disbarment was too harsh a sanction. Instead, she claims that Utah’s process is unconstitutional in a number of ways. She contests this court’s jurisdiction and argues that the Supremacy Clause and principles of res judicata prevent Utah from disciplining her. She also brings a number of constitutional claims, arguing that Utah’s attorney discipline proceedings violated her due process and equal protection rights under the United States Constitution. She ultimately petitions this court to dismiss this case entirely because “Utah’s system is an inquisition” that violates her due process and equal protection rights. and is therefore “void.”

The court rejected the various claims and affirmed default findings of frivolous litigation in state and federal court matters.

In the bar case

To illustrate how the case proceeded, OPC’s Complaint against Rose comprises pages 1–25 in a 28,000+ page appellate record; Rose’s answer does not appear until page 2,507. Her answer was filed more than a year after OPC filed the Complaint. In the interim, Rose moved for various extensions of time, for a more definite statement, for dismissal, for change of venue, to file an overlength brief, to stay proceedings, to strike various portions of the Complaint before responding, to strike the Complaint itself, and to disqualify Judge Faust—among other things.

 Rose failed to competently contest the order of the district court disbarring her as a sanction for violating various rules of professional conduct. While we recognize that disbarment is the most serious sanction a court may impose on an attorney for professional conduct violations, we acknowledge that Rose did not challenge the substance of the district court’s sanction, opting instead to level constitutional challenges to the entire attorney discipline system. Rose’s arguments are inadequately briefed, and to the extent we can decipher them, they are without merit.

(Mike Frisch)

August 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 16, 2017

It Happened In Paw Paw

Three lawyers have received identical sanction by Michigan for "discourtesy" as agreed by identical language

The stipulation contains respondent's admissions to the allegations that he committed professional misconduct by engaging in discourteous and disrespectful conduct toward plaintiffs' counsel in a civil matter.

The discourtesy involved a chambers conference in which the judge and two lawyers (linked here and here) disparaged opposing counsel

Michigan Live had covered the controversy

Engel hired Page and Stewart to represent him, then in March 2013, [Judge] Hamre reviewed a motion and affidavit filed by the two Paw Paw attorneys and signed a temporary restraining order that prevented Baker from seizing the trailers.

In May, Page and Stewart, as well as Baker’s attorneys, Donald and Donovan Visser, took part in a conference with Hamre to discuss a resolution and how the court planned to have Engel pay back the money owed to Baker. Page and Stewart were in Hamre’s office with the judge, while the Vissers joined in by phone.

As the conference was wrapping up, the attorneys and judge agreed to meet for a motion hearing the following Monday and Hamre concluded the call, according to a recording. Within seconds, with the phone line with the Vissers still open, a voice could be heard calling Donald Visser a derogatory name. Another voice chimed in calling Donovan Visser a nearly identical derogatory name.

As the recording continued, Hamre could be heard discussing the lawsuit with Page and StewartIt Happened In Paw Paw. After they left his office, the judge could be heard speaking to Grote, who informed him that he had received a fax from the Vissers’ office during the phone conference.

“Throw it in the garbage,” Hamre told her. “I don’t want it. I don’t need it.”

Baker filed a grievance against Hamre with the Michigan Judicial Tenure Commission, accusing the judge of having inappropriate conversations with Engel's attorneys outside of the presence of his attorneys. The commission later dismissed the complaint following Hamre’s retirement last summer.

Baker also filed grievances against Page and Stewart with the Attorney Grievance Commission. Any action taken by the body is made public through the state’s Attorney Disciplinary Board, which as of this month had not taken against the two Paw Paw attorneys, according to the board’s website.

(Mike Frisch)

August 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"Graphic Language And Descriptions Of Sexual Activity"

The Tennessee Supreme Court has ordered reciprocal discipline based on this Colorado mater. 

Saxon, a married attorney, hired an escort and then began a romantic relationship with her. Later, he physically assaulted and repeatedly emotionally harassed her in a course of conduct designed to control and humiliate her. After she ceased communication, he repaid her for her “coldness” by encouraging her to kill herself, despite knowing her history of mental illness; by threatening to expose her as a prostitute; and by threatening to have her criminally prosecuted. Then, unannounced, he appeared at her father’s home in rural Tennessee, where he knew she would be caring for her father after he had surgery. When she spurned this advance, he sent letters to her family members and classmates, disclosing her status as a prostitute, describing various sexual acts she performed with clients, and providing highly graphic nude photos of her. Through this conduct, Saxon violated Colo. RPC 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) and Colo. RPC 8.4(h) (a lawyer shall not engage in any conduct that directly, intentionally, and wrongfully harms others and that adversely reflects on the lawyer’s fitness to practice law).

Saxon later violated a protective order that the same woman had obtained, leading  to his conviction of a class-two misdemeanor. This conduct transgressed Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal).

The Colorado findings have a warning

The Hearing Board notes at the outset that these factual findings may be disturbing to many readers because, among other things, they involve graphic language and descriptions of sexual activity. We include these facts below because we believe they are critical to understanding the nature of the misconduct here and the harm caused by that misconduct.

Forewarned is forearmed. 

One notably nasty act was the attorney's visit to the victim's cancer-stricken father in rural Tennessee and then

John Dildine testified that he did not know his daughter had been working as a prostitute until he received Respondent’s letter. Although John Dildine did not open the attachments to the letter, Jason Dildine apparently did, since John Dildine recalls his son reporting that the attachments were “convincing.” Dildine had advised Ward that she might receive such a letter, so Ward took the envelope to Overton, who it appears Dildine had retained in early April. Ward did glance at the contents of the envelope at Overton’s suggestion. Before Ward learned about this letter, she had not known that Dildine was working as an escort.

Dildine’s own reaction on learning that Respondent had sent the letters to her family was, “that was it, I’m done, I’ll probably never talk to my mother again.” Contemplating her father’s reaction was “terrible, embarrassing, the worst thing ever.”

There was a dissent on sanction in Colorado

I believe, however, that the appropriate sanction here is suspension for two years, not three years. In my view, a three-year suspension is overly punitive. In arriving at that conclusion, I note that Respondent has no prior discipline, he has voluntarily ceased practicing law since he was terminated from his law firm, he is currently subject to a civil lawsuit for his misconduct, and his burden in seeking reinstatement will be heavy. Because disciplinary sanctions should be designed to provide an opportunity for rehabilitation rather than to punish an erring attorney, I believe a two-year suspension is the fitting sanction here.

The Tennessee supension also is for three years . (Mike Frisch)

August 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Disqualified Ghostwriter Suspended

A Tennessee attorney has been suspended for two years in a matter where he had been earlier supended for ghostwriting pleadings in a matter where he was disqualified.

The Tennessee Supreme Court had suspended him in 2015 for a multiple-client conflict of interest between an entity client and an individual

Mr. Cody’s conduct was egregious. On November 15, 2004, Mr. Cody began representing two clients with conflicting interests. When Mr. Cody entered his appearance in the Chancery Court action, Ms. Braxton had already pled guilty to theft of property from the Center. Thereafter, the Center’s Receiver was awarded a judgment against Ms. Braxton in an amount in excess of $296,000. Although the Chancellor, with no explanation, denied a motion to disqualify Mr. Cody from representing the Center and Ms. Braxton in June 2007, the Court of Appeals subsequently ruled that there was a conflict of interest between Mr. Cody’s two clients and disqualified Mr. Cody from representing either the Center or Ms. Braxton. Later, the Chancellor held that Mr. Cody could not represent Ms. Braxton or the Center in any matters relating to the litigation pending in Chancery Court. Mr. Cody ignored both of these orders.

On March 16, 2012, Mr. Cody was publicly censured for his representation of the Center and Ms. Braxton. At this point, Mr. Cody should have understood that he was ethically prohibited from representing Ms. Braxton and the Center because of their adverse interests. The public censure should have been the end of it. But it was not. Mr. Cody had not learned his lesson. Instead, he forged ahead by filing a motion in the Chancery Court for the two parties, ignoring the orders of the Chancery Court and the Court of Appeals, and the public censure. This precipitated a second petition for discipline. Undaunted, Mr. Cody persevered. He filed a federal court action for the Center and Ms. Braxton against the lawyers and judges involved in the original Chancery Court action, labeling them “judicial mobsters.” Not surprisingly, the Board filed a supplemental petition for discipline against Mr. Cody, which resulted in the Hearing Panel’s decision that Mr. Cody should be suspended for 180 days.

The court imposed the 180-day suspension in that case. (Mike Frisch)

August 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Sanction Less Than Disbarment Draws A Dissent

The Minnesota Supreme Court imposed a suspension rather than disbarment

We conclude that the referee’s findings that Tigue negligently and intentionally misappropriated client funds are not clearly erroneous. We further conclude that, based on the specific facts of this case, the appropriate discipline for Tigue’s misconduct is an indefinite suspension with the right to petition for reinstatement after 2 years and a permanent prohibition on being an authorized signatory on a client trust account.

The attorney had a record of prior discipline and was reinstated on probation

After his reinstatement, Tigue sent his trust-account books and records to the Director on a monthly basis. In September 2015, the Director instructed Tigue to begin quarterly reporting, and asked him to send his records for October, November, and December 2015 in January 2016. When Tigue provided these trust-account books and records, the Director noted that several shortages had occurred in client trust accounts during that time. The Director issued a notice of investigation and audited Tigue’s trust account, which led to this petition for disciplinary action.

The investigation revealed that he had shortfalls in the account.


Although we have often disbarred attorneys for misappropriating funds because of the critical need for public trust in the legal profession, we do not believe that disbarment is the appropriate discipline here. Balancing the nature and extent of Tigue’s misconduct— which involved a single incident of intentional misappropriation involving a relatively small amount of money, eventual repayment to that client and lack of harm to any other client—and the aggravating factors and the mitigating factors present, we hold that an indefinite suspension with the right to petition for reinstatement after 2 years is the appropriate discipline. We are confident that this lengthy indefinite suspension will adequately protect the public, particularly when combined with the permanent prohibition on Tigue serving as an authorized signer on a client trust account should he be reinstated in the future.

Justice Stras dissented on sanction

We have the final say over the discipline imposed, and it is our responsibility to exercise our authority to enforce what is explicit in our case law: we disbar attorneys who steal money from a client absent the presence of substantial mitigating factors. Accordingly, I respectfully dissent from the court’s decision to impose a sanction other than disbarment...

All of this brings us back to the critical question here: will a 2-year suspension adequately protect the public? In Brooks, it was possible to answer that question “yes.” But here it is not, in light of Tigue’s uninterrupted practice of law and his disturbing lack of insight into the nature and seriousness of his misconduct. I also cannot help but wonder whether this case may signal a retreat from our longstanding presumption that intentional misappropriation warrants disbarment. After all, not only are there no substantial mitigating factors, but there were also numerous aggravating factors found by the referee. Under these circumstances, I respectfully dissent from the court’s decision to suspend Tigue rather than disbar him.

Justice McKeig agreed. (Mike Frisch)

August 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 15, 2017

Misplaced Trust

The New York Appellate Division for the First Judicial Department suspended two law firm partners for six months and until further court order

In this case, both respondents conditionally admit that, at all times relevant herein, they practiced law as partners in a two-partner law firm, Zucker & Kwestel, LLC, which maintained two attorney special accounts, as well as other bank accounts incident to the practice of law. In or about June 2003, respondents hired MT, a non attorney, as the firm's full-time bookkeeper/controller, prior to which respondent Kwestel had primary responsibility for such duties.

After an initial period of training, during which respondents consistently reviewed MT's work, respondents gradually began delegating certain responsibilities to MT which included expediting and/or coordinating the deposit of client and/or third-party funds into the firm's bank accounts and maintaining bank and bookkeeping records for the transactions in the firm's bank accounts. Respondents authorized MT to be a signatory on the firm's escrow accounts out of ignorance of the pertinent disciplinary rules and to execute online transfers of funds from the firm's escrow accounts provided that respondents approved it. MT frequently worked out of the firm's New Jersey office where respondents infrequently conducted business.

Respondents did not, as required, regularly review, audit, and reconcile the firm's escrow accounts, nor did they properly supervise MT's work as bookkeeper/controller which included the work he performed in connection with the firm's escrow accounts. As a result, between 2009 and 2013, MT misappropriated more than $2 million from the firm's bank accounts, including escrow accounts. His defalcations involved approximately 200 client matters, were done without the permission or authority of the rightful owners of the funds at issue, and his actions were carried out without respondents' knowledge or consent.

A bounced escrow check caused the house of cards to fold

In August 2013, MT's criminal attorney contacted respondents and advised them that MT had misappropriated approximately $3 million from the firm's bank accounts, including its escrow accounts, but that MT had arranged for full restitution to be made provided that certain conditions were satisfied. Upon learning of the defalcations, respondents retained their current ethics counsel to assist them in addressing MT's thefts. They also began the process of attempting to reconstruct the ledgers for the firm's escrow accounts based upon the ledgers maintained by MT on the firm's computers via the computer program QuickBooks, account statements and records ordered from the banks, and their client files. MT's employment with the firm reportedly ended in or about August 2013.

MT made full restitution

The parties stipulated as to the following mitigation: since the events at issue respondents instituted proper account management and oversight practices; there was every reason to believe that MT would be an honest and capable employee based on professional recommendations, including one from respondent Zucker's sister, a retired attorney; there were no early warning signs of MT's defalcations; respondents came to implicitly trust MT over the years based on, inter alia, his diligence and personal friendship with respondent Zucker; designating MT as a signatory on the firm's escrow accounts was done out of ignorance as to the pertinent disciplinary rules, and respondents mistakenly believed that his disbursement of escrow funds in certain circumstances was administrative in nature; there was some degree of supervision over MT's work and oversight of the firm's escrow accounts, albeit both were admittedly inadequate; in 2009, respondent Zucker's wife became ill which required him to reduce his daily involvement with the firm in order to focus on caring for his wife and their four children, as a result of which respondent Kwestel took on increased responsibilities and supervisory duties; upon learning of MT's thefts respondents took immediate action which included spending hundreds of hours reconstructing and reconciling escrow account records and obtaining reimbursement as a result of which no clients or third-parties were harmed; respondents were also victims of MT's thefts; following discovery of MT's thefts respondents began to wind down the firm's practice which remains in operation only for purposes of completing a small number of pending transactions; and respondents fully cooperated with the Committee, took full responsibility and expressed remorse for their misconduct, had no prior disciplinary history, have an excellent reputation for honesty and integrity, and have been active in their communities by, among other things, doing pro bono legal work.

The parties have also stipulated that respondents' failure to report MT's thefts to law enforcement is an aggravating factor but note that restitution was conditioned upon respondents entering into a non reporting agreement, which did not prohibit them from answering questions from law enforcement if contacted about the thefts. Further, this aggravation is tempered by the mitigating factor that no client or third-party suffered monetary loss.


we find that a six-month suspension stipulated by the parties is an appropriate sanction in view of respondents' admitted misconduct as well as the mitigating factors presented herein. Respondents' misconduct was non-venal and the result of ignorance regarding the pertinent disciplinary rules. While the parties acknowledge respondents' failure to report MT to law enforcement as an aggravating factor, the restitution agreement by which they agreed not to do so, which was negotiated by their civil counsel, did not prohibit them from answering questions from law enforcement regarding the thefts if contacted. Moreover, full restitution was obtained through the agreement and no client suffered monetary loss. Finally, respondents have no prior disciplinary history, have freely admitted their misconduct, and expressed remorse.

(Mike Frisch)

August 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Charged With Creating False Profile For Opposing Counsel And Other Online Dishonesty

A complaint just filed by the Illinois Administrator alleges misconduct that will definitely draw some public attention

At all times alleged in this Complaint, Respondent practiced law as a partner at Thomson & Weintraub law firm located in Bloomington, Illinois until February 10, 2017 when he was terminated.

Jane Doe ("Doe") is a licensed Illinois attorney and partner in a law firm located in Bloomington, Illinois.

Respondent and Doe appeared as opposing counsel in 17 proceedings in McLean County. Respondent and Doe appeared as opposing counsel in seven proceedings between June 2016 and February 2017.

In September 2016, Respondent accessed the online dating website from his office computer ("desktop") at Thomson & Weintraub and created a false online dating profile (" profile") in Doe’s name.

In establishing the profile, Respondent created an online account in Doe’s name. Respondent associated a user name, password and email address with the profile.

The profile included the following false representations:


Doe was separated from her husband;


Doe’s children sometimes live with her;


Doe smokes but is trying to quit;


Doe regularly drinks alcohol;


Doe is agnostic;


Doe is 56 years old;


Doe does not exercise and enjoys auto racing and motor cross;


Doe has cats; and


Doe’s favorite hot spots are the grocery store, all restaurants, the Pizza Ranch, all buffets and NASCAR.

Respondent knew the representations...were false at the time he made them.

In September 2016, Respondent used his desktop to download several photos of Doe from her firm website and then uploaded those photos to the profile he created in Doe’s name.

In September 2016, Respondent uploaded the profile to the website so that it could be viewed by the general public.

At the time Respondent created and posted/uploaded the profile in Doe’s name, Respondent knew that the profile was false.

At no time did Doe authorize Respondent to create and post/upload a account in Doe’s name.

At no time did Doe authorize Respondent to create a user name, password and email address that Respondent associated with the profile.

At no time did Doe authorize Respondent to create and post/upload a profile in Doe’s name.

At no time did Doe authorize Respondent to upload the profile to the website.

On or around October 5, 2016, Doe became aware of the profile Respondent had created.

Doe filed an action in the Circuit Court of McLean County under case number 16-MR-1081 asking the court to direct to provide Doe with the Internet Protocol ("IP") address associated with the profile.

On December 9, 2016, provided Doe with the IP address associated with the profile.

On January 20, 2017, Comcast, the internet provider for Respondent’s firm, provided written notice to the firm that the firm’s IP address was used to create the profile.

On or about January 20, 2017, Terrence Kelly (hereinafter "Kelly"), a partner at Thomson & Weintraub informed the firm employees that the firm’s IP address was used to create a false profile for Doe.

On or about January 20, 2017, Kelly asked Respondent whether he had created the false profile. Respondent denied creating the false profile for Doe.

Respondent’s statement to Kelly was false because, in fact, Respondent had created the false profile.

At the time Respondent made this statement to Kelly, he knew that his statement was false.

On or about January 20, 2017, Kelly announced that the firm would be hiring a computer expert to examine all of the firm computers. Kelly also asked firm employees to provide their personal devices to the computer experts.

On February 10, 2017, a search of the firm’s desktop computer assigned to Respondent revealed that a user of the computer had accessed the set-up pages of the website and had downloaded Doe’s photo from her firm’s website and uploaded that photo to the profile.

 On February 10, 2017, when Kelly confronted Respondent with the findings of the computer expert, Respondent admitted that he created the false profile for Doe. Respondent was immediately terminated.

Alleged violation is set forth 

engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, by accessing the online dating website and creating an account and a false online profile in Doe’s name that included false representations about Doe’s marital status, children, religion, personal habits and interests, uploading the false profile to the website to be viewed by the general public, and denying that he created the false profile in Doe’s name when initially asked by a partner in his firm, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

He is also charged with creating false accounts in Doe's name with the Obesity Action Coalition, Pig International, Auto Trader, Diabetic Living, creating a false Facebook account and posting false unfavorable lawyer reviews for Doe.

As to Obesity Action

As a result of Respondent’s actions, Doe began receiving daily emails from the OAC, and emails from Apollo Endo-surgery. Doe also received a lap-band kit in the mail at her business address.

As to Pig International

Pig International is a global nutrition and health publication for pork production. Members of Pig International receive daily emails about pork production.

Auto Trader

As a result of Respondent’s actions, Doe began receiving emails from Auto Trader and other new and used car dealerships, including numerous telephone calls on Christmas Eve.

As to the Facebook account it is alleged 

After Respondent created the false Facebook account, Respondent created a negative review of Doe’s professional ability and uploaded/posted the negative review to the Facebook page of Doe’s law firm so that the negative review could be viewed by individuals who accessed the Facebook page of Doe’s law firm.

At the time Respondent created the Facebook account for "John Kollengrade" and created the negative review of Doe’s professional ability, Respondent knew the account and review was false.

The Pantagraph reported on the underlying allegations. (Mike Frisch)

August 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Regents Consort Gets Disbarred

The Omaha World-Herald reports

The Nebraska Supreme Court has disbarred Nebraska City attorney Richard Hoch for misusing client trust funds.

Hoch, 79, the husband of former University of Nebraska Regent Nancy Hoch, had already retired from active practice when Friday’s disbarment order came down, according to a receptionist at his former office. A message left for him was not returned Friday.

A year ago the court’s Counsel for Discipline notified Hoch of an overdraft on a bank account used to hold funds that belong to his clients. In response, he acknowledged that he had misapplied the funds to pay for office expenses. He agreed to voluntarily surrender his law license.

 The documents filed with the disbarment action did not list the amount of funds involved. But Hoch indicated to court officials that he had repaid the misappropriated funds.

Hoch obtained his license to practice law in 1964. During his career he unsuccessfully represented landowners along the Missouri River who challenged laws allowing their land to be taxed in multiple states.

He also represented his wife in a 12-year legal battle with her political rival, Robert Prokop, whom she defeated in the 1983 race for regent. The dispute involved claims of libel, slander and malice leveled by both sides stemming from their campaigns for regent.

 Nancy Hoch, who served as regent until 1994, is considered an institution in Nebraska City, where she spearheaded various economic development and tourism efforts. In 1984 she came within 4 percentage points of defeating U.S. Sen. J.J. Exon, the Democratic incumbent.

Richard Hoch could seek to have his license reinstated after five years.

Hat tip to reddit bad lawyer. (Mike Frisch)

August 15, 2017 | Permalink | Comments (0)

Bankruptcy Does Not Bar Legal Malpractice Claim

The Massachusetts Supreme Judicial Court reversed the dismissal of a legal malpractice claim

In September 2009, the plaintiff retained the defendants as personal injury counsel to represent her with respect to serious injuries she sustained when she slipped and fell on ice the year before. Approximately one month later, acting pro se, she filed for bankruptcy protection, and received a bankruptcy discharge in early 2010. Thereafter, in 2011, the defendants allowed the statute of limitations on the personal injury claim to expire without filing suit. This legal malpractice suit followed. The question on appeal is whether
the plaintiff's malpractice claims were properly dismissed on summary judgment on the ground that the bankruptcy action (or the position the plaintiff took in it) foreclosed them. We reverse.

Plaintiff did not disclose the claim on her pro se bankruptcy petition but referred to it in response to trustee questions at a meeting of creditors

The defendants argue that the plaintiff's malpractice claim is barred by the earlier bankruptcy and her failure to disclose the underlying personal injury suit.

The malpractice claim was never part of the bankruptcy estate but

There remains, however, the question whether the malpractice claim had any value or, put another way, whether the plaintiff would be able to show causation or harm, given her
failure to disclose the personal injury claim in the bankruptcy. We turn to that question now...

As soon as the plaintiff filed her bankruptcy petition, her personal injury claim became an asset of the bankruptcy estate, and the trustee was responsible for pursuing it for the benefit of the estate and its creditors...That interest did not terminate on the bankruptcy discharge; indeed, had the defendants filed suit on the plaintiff's behalf after the bankruptcy discharge, but before the statute of limitations had elapsed, the "usual remedy [would be] to substitute as the real party in interest the trustee of the bankruptcy estate in the place and stead of the former debtor."

...because the value of the malpractice claim (which was never an asset of the bankruptcy) is tied to the value of the underlying personal injury suit (which was), the trustee may have an interest in any recovery on the malpractice claim -- at least to the extent of the value of the claims discharged in bankruptcy. On remand, the judge and the parties should accordingly ensure that the trustee is notified of the existence of a potential interest in any recovery.

Nor did judicial estoppel prevent the malpractice suit. (Mike Frisch)

August 15, 2017 in Clients | Permalink | Comments (0)

Professor Loses Appeal On Denial Of Attorney's Fees

The North Carolina Court of Appeals affirmed the denial of attorney's fees to a tenured but incarcerated professor in a case described by the court

the case addressed the termination of Paul Frampton (“plaintiff”), a tenured professor at the University of North Carolina at Chapel Hill (“UNC”), who was arrested in an airport in Buenos Aires, Argentina and ultimately convicted of smuggling cocaine found in his suitcase. Id. Following plaintiff’s arrest, UNC’s chancellor placed plaintiff on unpaid leave and terminated his salary and benefits without pursuing the disciplinary procedures outlined in the university’s tenure policies. After appealing to the UNC Board of Trustees, which upheld the decision to place plaintiff on leave without pay, plaintiff filed a petition for judicial review of a State agency decision in Orange County Superior Court. The superior court affirmed UNC’s actions, and plaintiff appealed to this Court. On appeal, this Court held that by placing plaintiff on personal, unpaid leave instead of pursuing formal disciplinary proceedings pursuant to the tenure policy, UNC violated its own policies. On this basis, this Court reversed the trial court’s ruling and remanded the matter for the trial court to determine the appropriate amount of the salary and benefits withheld that should have been paid to plaintiff.

The plaintiff was awarded damages but not fees

Upon remand, plaintiff filed a motion requesting compensation for unpaid salary and benefits as well as attorney’s fees. The trial court awarded plaintiff $231,475.92 in back salary and $31,824.53 for loss of benefits, but denied the motion for attorney’s fees.

On appeal

Plaintiff first argues that the trial court erred in concluding UNC did not act without substantial justification. We disagree...

Plaintiff next argues the trial court erred in finding that there were special circumstances that would make an award of attorney’s fees unjust. We disagree. North Carolina case law is limited with regard to interpreting what qualifies as special circumstances that would make an award of attorney’s fees unjust. However, our courts have looked to federal decisions applying similar laws for guidance on interpreting statutory language...

In the order denying plaintiff attorney’s fees, the trial court based its conclusion that “it would be unjust to require the State to pay attorney’s fees” to plaintiff on “the record in this case, the decision of the North Carolina Court of Appeals [in Frampton I], the submissions of the parties, the arguments of counsel, and the relevant-statutory and case law.” Given the trial court’s reasoned response and plaintiff’s failure to establish that the trial court abused its discretion in reaching its decision to deny the requested award, we overrule plaintiff’s argument.

The News & Observer covered the litigation. (Mike Frisch)

August 15, 2017 | Permalink | Comments (0)

Monday, August 14, 2017

Kids At Play; Meth At Work

The Indiana Supreme Court upheld the sentence enhancer for a meth lab operator because of the proximity of the lab and a public park.

Nestled against the Ohio River, tucked away in rolling hills and limestone bluffs, lies picturesque Madison, Indiana. For that historic river town, Thursday, August 21, 2014, began as “just your normal” peaceful summer morning. Schools were in session. The sun was low. The temperature was warm, not yet blistering.

But something had been cooking on West Second Street—and it wasn’t apple pie. Around 10:00 a.m., a team of police entered Corey McAlpin’s apartment and noticed a “horrible” odor, like that of “50 cats . . . with no litter box.” They soon learned why: the apartment was an active methamphetamine lab. Police found an abundance of meth-making supplies, including two active hydrochloric acid gas generators, a reaction vessel, a mangled plastic bottle, plastic tubing, drain cleaner, an empty box of pseudoephedrine, petroleum fuel, a cold pack, a razor blade, scales, syringes, a glass pipe, meth residue, and a mutilated lithium battery. McAlpin was arrested on the spot.

Two blocks from this meth operation sits Bicentennial Park. Pictured below, this city park features a wide-open green space surrounded by a residential neighborhood. It also has an outdoor amphitheater, restrooms, convenient parking, and sidewalks wrapping around and cutting within. The park does not, however, have benches, playgrounds, or trees

[aerial photo]

The State used Bicentennial Park’s proximity to McAlpin’s apartment to enhance his charges to Level 4 felony dealing in methamphetamine, Level 5 felony possession of precursors, and Level 5 felony possession of methamphetamine. To prove these drug-free-zone enhancements, the State needed to show that McAlpin committed the crimes “within five hundred (500) feet of a public park . . . while a person under eighteen (18) years of age was reasonably expected to be present.”

The enhancer evidence sufficed

Through aerial photos and testimony, the jury heard circumstantial evidence on the ordinary reasonable person’s expectations. The jury knew that Bicentennial Park is not buried in an exclusively industrial or commercial district, where homes and families are sparse. Instead, the park is surrounded by residences. And appropriate for a neighborhood park, it offers an outdoor amphitheater, restrooms, parking, and sidewalks. It also boasts the area’s largest wide-open green field. The jury could reasonably conclude that this field, especially on a pleasant summer morning, is an attractive place for minors to unwind—to run, walk, crawl, throw a frisbee, fly a kite, play catch, play tag, play Red-Rover, and indulge in countless other youthful pastimes.

Again, this may have been a close call for the jury. Schools were in session. The park had no playground. It had no benches for resting, no shade trees to block the August sun. But the jury was free—indeed, instructed—to weigh these facts using its “common sense.” See Halsema v. State, 823 N.E.2d 668, 673 (Ind. 2005). The jury could reason, for example, that not every child attends school or is school age, not every child needs a playground to have fun, and not every child needs shade at 10:00 a.m...

To protect Hoosier youth from methamphetamine, our General Assembly has enhanced the penalty for dealing the drug within 500 feet of a public park where a person under 18 was “reasonably expected” to be present. Here, after seeing and hearing the evidence, the jury found the “reasonably expected” element satisfied. Unable to second-guess that fact-sensitive decision, we affirm McAlpin’s enhanced conviction. 

The court reversed a divided Court of Appeals. (Mike Frisch)

August 14, 2017 | Permalink | Comments (0)

Bencher May Not Represent Attorney In Bar Investigation

Counsel for an accused attorney in a bar matter has been removed by the Tribunal Hearing Division of the Law Society of Upper Canada.

The investigation involves real estate transactions.

The Lawyer was called to the bar in 1988, and is a partner in a Toronto law firm where he has practised for over 20 years. The Lawyer first learned of the investigation that resulted in this proceeding in January 2014. On February 22, 2017, the Law Society served a Notice of Application on the Lawyer, alleging, among other things, that the Lawyer knowingly assisted in dishonesty or fraud in connection with three real estate transactions.

On February 28, 2017, the Lawyer retained Mr. MacKenzie to act as his counsel in this proceeding. Mr. MacKenzie is undoubtedly a recognized expert in professional responsibility and discipline, having authored a leading text on the subject and having acted for numerous lawyers involved in discipline proceedings, and for the Law Society, prior to his election as a bencher in 1995.

As a consequence

This is a motion brought by the Law Society for an order removing Gavin MacKenzie as counsel for Barry Mitchell Polisuk (the “Lawyer”). The basis for the motion is that Mr. MacKenzie is a former Treasurer of the Law Society and an ex officio bencher, and Convocation policy prohibits a bencher from representing a licensee in a discipline proceeding. In the alternative, the Law Society submits that Mr. MacKenzie’s representation of a licensee in this proceeding may be perceived as a conflict and as having an undue influence on the outcome of the proceeding. Counsel for the Lawyer submits that Mr. MacKenzie has now resigned from his position as ex officio bencher, and accordingly nothing precludes him from acting on behalf of the Lawyer. 

 We have decided to grant an order removing Mr. MacKenzie as counsel for the Lawyer. We agree with the Lawyer that Mr. MacKenzie is entitled to resign as an ex officio bencher. However, at the time he accepted the retainer in this matter he was in breach of the Law Society’s policy which prohibits a bencher from representing a licensee in a discipline proceeding. Although Mr. MacKenzie has now resigned, a reasonable cooling-off period following his resignation as bencher is required before he can resume acting on behalf of licensees in proceedings before the Law Society Tribunal. It is open to Convocation to consider what a reasonable cooling-off period should be. However, the short period of time that has passed since Mr. MacKenzie’s resignation on April 19, 2017 is not sufficient. In these circumstances, Mr. MacKenzie’s representation of the Lawyer is not compatible with the principles of self-regulation which require that the Law Society act in a fair and transparent manner, and be perceived by the public to be so doing.

Benchers are disqualified

Counsel for the Lawyer, submits that the 1995 Report was adopted at a time when discipline hearings were presided over exclusively by benchers, who sat on discipline committees and in Convocation. It is for this reason that Convocation prohibited benchers from appearing as counsel before “committees of benchers or Convocation.” Although the policy was never repealed, conduct hearings today do not take place before a committee of Convocation, but rather before the independent Law Society Tribunal. Accordingly, the Lawyer submits that the 1995 Report does not preclude benchers who are not adjudicators with the Law Society Tribunal from representing licensees before the Tribunal.

We do not agree. The language of the 1995 Report specifically refers to “discipline” proceedings. The 1995 Report was clear that “even the slightest perception of a conflict of interest in these proceedings much be scrupulously avoided at every stage of the proceeding.” The clear intent of the 1995 Report was to preclude benchers, including ex officio benchers, from representing licensees in discipline proceedings.

This position was made abundantly clear in April 2011 when Convocation considered and approved a proposed policy respecting the prohibition on representation of licensees. This policy was made on the recommendation of the Professional Regulation Committee. 


These concerns do not end on the day after a bencher leaves office whether by resignation or otherwise. The public’s perception of a bencher appearing as counsel for a licensee in a discipline proceeding the day after leaving office is no different than the day before they left office. This raises the same concerns about undue influence, and could serve to erode public confidence in self-regulation. It is generally recognized that a reasonable cooling‑off period is required before a former member of a board or tribunal can appear in proceedings before that board or tribunal. This is provided for in the Tribunal’s Adjudicator Code of Conduct, which specifically provides for a one-year cooling-off period. We conclude that, the Law Society Tribunal does have the discretion to preclude former benchers from acting for a licensee in a hearing, where there has not been a reasonable cooling-off period.

In the circumstances of this case, we are of the view that it is appropriate to exercise our discretion and preclude Mr. MacKenzie from representing the Lawyer in these proceedings. We do so for two reasons.

First, at the time Mr. MacKenzie entered into a retainer to represent the Lawyer in these proceedings, he was in breach of the Law Society’s policy with respect to conflict of interest. Although he was acting in good faith throughout, it was incumbent on Mr. MacKenzie to satisfy himself that he was not in a conflict of interest prior to entering into a retainer with the Lawyer.

Second, the fact that Mr. MacKenzie ultimately addressed the conflict by resigning from his position as an ex officio bencher, does not, in our view, cure the problem. As discussed above, a reasonable cooling-off period is required before a former bencher can resume representing licensees before the Tribunal.

(Mike Frisch)

August 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)