Thursday, March 5, 2015

Easier To Pay The Late Fee

A reprimand was imposed by the North Carolina State Bar for this misconduct

You failed to timely submit your CLE Annual Report form to the Board of Continuing Legal Education, resulting in a late fee assessed against you. You requested a waiver of the late fee, and you were instructed by the State Bar to submit your original signed report form along with your waiver request. You subsequently submitted a form purporting to be the original when it was not. Your submission of a false Annual Report form constituted conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c) of the Rules of Professional Conduct. Further, in response to inquiries from the State Bar, you knowingly mischaracterized the circumstances surrounding your submission of the false Annual Report form. Your known false statements of material fact made in connection with a disciplinary matter violated Rules 8.1 (a) and 8.4(c) of the Rules of Professional Conduct.

The Bar's Grievance Committee was "greatly concerned" about the behavior but noted the attorney inexperience. (Mike Frisch)

March 5, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2015

No Class

A decision issued today by the United States Court of Appeals for the Second Circuit

The law firm of Leeds, Morelli & Brown PC, representing 587 plaintiffs with discrimination claims against their employer, defendantappellant Nextel Communications, Inc., agreed with Nextel to set up a dispute resolution process whereby all of the plaintiffs’ claims against Nextel would be resolved without litigation. After most of the cases were settled through the dispute resolution process, a group of Nextel employees brought suit on behalf of the entire class of the firm’s Nextel clients against both the law firm and Nextel, alleging, inter alia, breach of fiduciary duty, legal malpractice, and breach of contract. A prior panel of this Court vacated a decision dismissing the case, and the district court (George B. Daniels, Judge) subsequently certified a class pursuant to Federal Rule of Civil Procedure 23(b)(3). In granting plaintiffs’ motion for class certification, the district court applied New York law to all of the class members’ claims, even though the class members hailed from twentyseven different states, and held that common issues predominated over any individual issues, even though prior litigation in state court indicated that for class members from Colorado, individual waivers of the law firm’s conflict of interest could have vitiated defendants’ liability. We conclude that the district court erred in its choiceoflaw analysis, and that a proper analysis makes clear that the individual issues in this case will overwhelm common issues. Plaintiffs therefore fail to meet the criteria for a class action under Rule 23(b)(3).

Thanks to a reader for sending this along. (Mike Frisch)

March 4, 2015 | Permalink | Comments (0) | TrackBack (0)

A Valuable Resource Is Restored To Practice

The Oklahoma Supreme Court has reinstated an attorney suspended for two years as a result of a bribery conviction.

Kerr was admitted to the Oklahoma Bar in September 2006, and became an associate attorney with the firm of Ogle & Welch. He handled all misdemeanor cases for the firm. In the spring of 2007, Ogle & Welch undertook representation of a client who was charged in Oklahoma County District Court with driving under the influence. Kerr served as defense counsel for this client. The criminal matter was resolved with the client receiving a deferred sentence, but then was later scheduled for a driver's license revocation hearing with the Department of Public Safety. Attorneys at the firm of Ogle & Welch initiated a series of steps to offer a bribe to an Edmond Police officer in exchange for his absence at the hearing. The officer in question reported the bribery attempt to his superiors and a police investigation commenced.

He pleaded guilty to a felony.

The court

Our primary duty is to protect the public, the judiciary and the legal profession. Therefore, we take our responsibility of passing on an application seeking reinstatement for one who has previously failed to meet the profession's standards with utmost seriousness. Before reinstating an attorney to the Bar, the Supreme Court must have a firm conviction that the lawyer will not engage in similar misconduct. Even considering the testimony of the three attorneys opposing reinstatement, the quality and quantity of evidence in favor of reinstatement convinces us that Kerr will provide, once again, valuable services to clients, the practicing bar, the judiciary, and his community.

(Mike Frisch)

March 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

When Morgan Stanley Talks

Allegations of conflict of interest were properly alleged in litigation against the Blank Rome law firm, according to this decision of the New York Appellate Division for the First Judicial Department.

the complaint alleges that defendants concealed a conflict of interest that stemmed from defendant law firm's attorney-client relationship with Morgan Stanley while simultaneously representing plaintiff in divorce proceedings against her ex-husband, a senior Morgan Stanley executive, who participated in Morgan Stanley's decisions to hire outside counsel..

plaintiff identifies the nature of the conflict as stemming from defendants' interest in maintaining and encouraging its lucrative relationship with Morgan Stanley and the impact of that interest on defendants' judgement in its representation of plaintiff in the divorce proceedings..

Further, the complaint alleges numerous acts of deceit by defendants, committed in the course of their representation of plaintiff in her matrimonial action. Additionally, the complaint sufficiently alleges that the individual defendants knew of but did not disclose defendant law firm's representation of Morgan Stanley to plaintiff, and it details the calculations of her damages.

The allegations were not subject to strike as scandalous or prejudicial. (Mike Frisch)

March 4, 2015 in Clients, Law Firms | Permalink | Comments (0) | TrackBack (0)

The Wrong Kind Of Mentoring

A five-year suspension has been imposed by the New York Appellate Division for the Second Judicial Department for an attorney's misconduct in litigation.

The findings came from a federal court suspension of seven years.

Specifically, respondent was suspended for instructing an associate in her law firm to alter deposition transcripts with work product for the purpose of preventing their discoverability and misleading the court as to the matter; copying the transcripts in intentional disregard of the court's orders; and using the transcripts in a federal action in Massachusetts in violation of the court's confidentiality order.

Respondent's misconduct arose out of a federal lawsuit commenced in 2007 by the law firm of Dorsey & Whitnesy on behalf of Wolstyers Kluwer Financial Services, Inc. (Wolsters). Respondent, then a partner at Dorsey & Whitney, was lead counsel in the matter. Wolsters alleged that three of its former employees had taken certain proprietary information and divulged it to their new employer. The district court granted a temporary restraining order and ordered expedited discovery. The parties exchanged discovery documents, and the individual defendants were deposed. While discovery was ongoing, the district court entered a Confidentiality Order providing in part that certain material — including all discovery material at issue here — "shall not be used in any other litigation proceeding," and that the district court's jurisdiction to enforce those restrictions would survive the lawsuit.

 The defendants moved to dismiss on the ground, inter alia, that the district court lacked personal jurisdiction over the defendants, all of them located in Massachusetts. The Dorsey attorneys then began to consider voluntary dismissal in New York and re-filing in the District of Massachusetts. Wolsters gave respondent permission to dismiss the suit. During a subsequent conference call with the court and opposing counsel, however, respondent did not mention the pending dismissal. Either during or shortly after the conference call, respondent (the partner in charge) instructed the junior partner on the case to file the dismissal; the junior partner sent notice of the dismissal by regular mail — though not electronically.

Despite the dismissal, respondent refused to return the discovery material produced by the defendants, including three CDs (containing 153,000 pages of documents) that were produced after the dismissal had been quietly effected. Despite repeated orders by the district court to return all discovery material, including copies of deposition transcripts, the return of discovery material was not completed until two weeks after the suit was dismissed. In the meantime, respondent filed a motion for temporary injunctive relief in the District of Massachusetts, appending 115 pages of material produced in New York that were subject to the Confidentiality Order.

The defendants moved for sanctions, and the district court scheduled an evidentiary hearing. The parties subsequently settled, and the defendants withdrew the sanctions motion; but the court, having its own concerns regarding the lawyers' conduct, proceeded with the hearing. After a five-day evidentiary hearing, during which respondent, represented by counsel, testified, on November 30, 2007, the district court imposed a total of 27 non-monetary sanctions..

The federal district court sanctions were affirmed by the Second Circuit

"[Respondent's] most serious failing involves the corruption of a young and inexperienced lawyer, over whom she had power and authority, and whom she ordered to commit conduct that could have ended with his own disciplinary hearing....[Respondent] exhibits no remorse for her inappropriate conduct; rather, she arrogantly persists in trying to salvage her reputation at the expense of the unfortunate [associate] - branding him and others at the Dorsey firm as liars when it is she who has consistently lied, both about what she did and about why she did it."

"Equally problematic is Respondent's habit of twisting the truth. At the hearing, [respondent] continually tried to shift blame to virtually every other person who came within arm's length of the Wolters Kluwer case....Respondent's flagrant mischaracterization of the record, and her meritless objections to [the Magistrate's] carefully crafted and amply supported findings, indicate that she has yet to accept any responsibility for what the Committee views as serious professional wrongdoing."

The incident took place in 2008. The attorney has not practiced law since 2010. (Mike Frisch) 

March 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


A decision from the Maryland Court of Appeals

An attorney, admitted in Maryland, Massachusetts, and the District of Columbia, was disciplined in Massachusetts (where the misconduct occurred) and then in the District of Columbia for seeking, over a 4 month period, reimbursement from her employing law firm for expenses that were personal in nature and for which she was not entitled to reimbursement, and for submitting falsified invoices in support of the same. In Massachusetts, the attorney was suspended for one year and one day. In the District of Columbia, the attorney was suspended, on a reciprocal basis, for a year and a day, nunc pro tunc as of 6 December 2013, with reinstatement contingent on a showing of fitness. Her misconduct warrants in Maryland a reciprocal sanction of an indefinite suspension, with the right to apply for reinstatement no sooner than when she is readmitted to practice in Massachusetts and the District of Columbia.

(Mike Frisch)

March 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

Idaho Attorney Suspended For Sex, Texts

From the Idaho State Bar web page

On  February 25, 2015, the Idaho Supreme Court entered a Disciplinary Order suspending  Nampa attorney R. Aaron Morriss from the practice of law for a period of five  years, with all but two years of such suspension withheld, effective January  30, 2015. 

The  Idaho Supreme Court found that Mr. Morriss violated I.R.P.C. 1.7(a)(2)  [Conflict of interest based on personal interests of the lawyer]; 1.8(j)  [Sexual relations with a client]; and 8.4(d) [Conduct prejudicial to the administration  of justice].  The Idaho Supreme Court’s  Disciplinary Order followed a stipulated resolution of an Idaho State Bar  disciplinary proceeding in which Mr. Morriss admitted that he violated those  Rules.

The  formal charge case related to Mr. Morriss’s relationships with two female  clients.  With respect to the first  client, Mr. Morris texted the client explicit pictures of himself and engaged  in sexual relations with the client during his representation of her in a  custody case.  With respect to the second  client, Mr. Morriss texted the client explicit pictures of himself, took  explicit pictures of the client, and engaged in sexual relations with the  client during his representation of her in a parental termination case.

The Disciplinary Order provided  that upon reinstatement, if any, after the two-year period of imposed  suspension, Mr. Morriss will serve a two-year period of probation with terms  and conditions that include counseling and the immediate imposition of the  withheld period of suspension if he violates the terms of his probation or admits  or is found to have violated any Idaho Rules of Professional Conduct for which  a public sanction is imposed for conduct that occurred during the probationary period.

(Mike Frisch)

March 3, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

The Mother Of All Explanations

The Illinois Review Board has recommended a three-year suspension of an attorney for misappropriation of entrusted funds.

The attorney's explanation was, to put it charitably, unchivalrous:

During the course of the Administrator's  investigation, Respondent tendered to the Administrator falsified bank records  purporting to show that he was properly holding the funds. When the fabrication  was discovered, Respondent blamed his mother for the fabrication of the records.  Respondent claimed his mother misappropriated the funds in question by  transferring funds from his IOLTA account to his business account and then  covered up the misuse of the funds in an elaborate scheme aided by  a woman the mother met at an unspecified Kinko's copy shop.

The Hearing Board did not believe Respondent or his  mother. In fact, the Hearing Board began its report by stating that they found  "the testimony of Respondent and his mother, Selma Frazin, lacking in  credibility and, in large part, untruthful," noting that "Respondent and Ms.  Frazin have changed their stories so many times it is impossible to determine  when, if ever, they are telling the truth." While Respondent claims that the  Hearing Board erred in disbelieving him, we disagree. The Hearing Board was not  required to accept Respondent's testimony.

The board

Respondent expressed no remorse for the harm he  caused. The Hearing Board considered Respondent's attempts to portray everyone  else as wrongdoers as aggravating. Indeed, instead of accepting responsibility  for his misappropriations, Respondent embarked on a path of lies and  misrepresentations in an effort to blame others, including his own mother, for  his own misdeeds.

Respondent's conduct was egregious and cannot be  countenanced. The Court has long held that the intentional conversion of client  funds warrants disbarment, absent mitigating circumstances.

The recommendation would require the attorney to petition for reinstatement. (Mike Frisch)

March 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Targeted Misconduct

From the web page of the California Bar Journal

[An attorney] was suspended from the practice of law for two years and ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. He was also placed on three years’ probation and faces a three-year suspension if he does not comply with rule 9.20 of the California Rules of Court. The order took effect Oct. 4, 2014.

Osborn was suspended following convictions in seven different matters. Six were convictions related to his driving on a suspended license. In the seventh, he pleaded guilty to one count of second-degree commercial burglary and one count of possession of burglary tools, both misdemeanors.

On July 1, 2013, Osborn covered the front license plate of his car with a plastic bag and walked into a Target store in Seal Beach intending to steal a laptop cord. Osborn had a folding box cutter with him. Target loss prevention officers noticed him acting suspicious in the electronics department and saw him put the laptop cord down the front of his pants. After he left the store without paying, loss prevention personnel recovered the item from him in the parking lot. Police later contacted him at a nearby hotel, where he was staying.

(Mike Frisch)

In mitigation, Osborn entered into a pretrial stipulation with the State Bar. He received limited mitigation for receiving treatment for a drug abuse problem he had at the time of his misconduct.

March 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A California First

Amy Yarbrough of the California Bar Journal reports

In a first-of-its-kind case, a Northern California lawyer has been reprimanded for making false statements about a judge during his campaign to unseat him.

On Feb. 5, the Review Department of the State Bar Court publicly reproved Clint Edward Parish, 43, [bar #211982] for falsely accusing his opponent in a June 2012 judicial campaign of being involved in a bribery and corporate fraud scheme.

In finding Parish culpable of violating rule 1-700 of the California Rules of Professional Conduct, the three-judge review panel concluded he made accusations against sitting Yolo County Superior Court Judge Daniel Maguire “with reckless disregard for the truth.” In doing so, the panel disagreed with a hearing judge’s recommendation that Parish receive a lesser order of admonition.

“Instead, we find Parish’s reckless statement implicating a judge with bribery requires public discipline to maintain the integrity of the legal profession and to preserve public confidence in the impartiality of the judiciary,” the panel wrote.

Parish, who now practices in Sonora, was a Yolo County prosecutor when he ran against Maguire with the assistance of adviser Kirby Wells and two political consultants. In March 2012, the campaign began preparing two mailers targeting Maguire, who had worked as a deputy legal affairs secretary for Gov. Arnold Schwarzenegger until the governor appointed him to the bench in 2010.

Among other dubious claims, one of the mailers accused Maguire of being involved in a “sordid case of corporate fraud that involved the payment of bribes in Russia.” The court said Parish could have easily determined the claim false before sending the mailer. As a result of his misstep, Parish’s key supporters withdrew support for his campaign, and Parish stopped actively campaigning and fundraising. He was solidly defeated, receiving only 23 percent of the vote.

In making its decision to publicly reprove Parish, the panel noted his remorse and recognition for his wrongdoing and the apology he made to Maguire during his discipline trial.

“We are cognizant that Parish has already paid a heavy professional price for the campaign mailer, and that his misconduct was neither malicious nor intentional,” the panel wrote, noting that his misconduct was unlikely to occur.

“Even so, Parish’s reckless decision to implicate Judge Maguire in bribery and corporate fraud warrants public discipline,” it wrote.

Although the Review Department issued its opinion early last month, either side has 60 days to appeal it to the California Supreme Court.

(Mike Frisch)

March 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, March 2, 2015

Ethics Journal Publishes Spring 2015 Edition

The Spring 2015 edition of the Georgetown Journal of Legal ethics is out.

The issue has an article on Brady obligations by Thea Johnson of Stanford, "The Unethical Ethical Rule: Nine Ways To Fix Model Rule of Professional Conduct 1.8(e)" by my colleague Phil Schrag, "Lawyers and Spoiled Identity" by Paul Campos, and an article by Tucker Carrington called Mississippi Innocence."

Thanks to my journal editors for another valuable contribution. (mike Frisch)

March 2, 2015 | Permalink | Comments (0) | TrackBack (0)

Horrific Child Abuse Leads To Consent Disbarment

The Pennsylvania Supreme Court accepted the consent disbarment of a convicted attorney.

Reuters reported

A former Pennsylvania prosecutor and his wife pleaded no contest on Monday to charges of endangering the welfare of two children they adopted from Ethiopia.

Douglas Barbour 34, and Kristen Barbour, 32, agreed to the plea in exchange for the dismissal of other criminal charges, including assault, during a court appearance in Pittsburgh.

They were arrested in 2012 on suspicion of starving their 5-year-old adopted son and mistreating their 13-month-old daughter, both of whom were adopted from Ethiopia.

The boy was 10 pounds (4.5 kg) underweight and found to have skin lesions from being left in urine-soaked clothing, according to the Pittsburgh Post-Gazette, citing doctors and the criminal complaint. The girl had head trauma and other physical ailments, the complaint said.

The Barbours also had two biological children at home.

Douglas Barbour, who was a deputy state attorney general at the time of his arrest, resigned from the post last year. He is likely to face probation at his sentencing on September 15 for two misdemeanor counts of child endangerment, prosecutors said.

Kristen Barbour could face prison time for two felony counts of child endangerment, the Allegheny County District Attorney's office said.

Her attorney told reporters outside the courtroom that he agreed with the judge's assessment that the Barbours' adoption of two children from a poverty-stricken African country had been an "act of charity gone awry."

"These two wanted to adopt children from a third world country to try to give them a better life," Robert E. Stewart said. "I think it was just a matter of being overwhelmed."

The attorney has been suspended since October 2013. (Mike Frisch)

March 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Rhode Island Rejects Challenge To Disciplinary System

A recent decision from the Rhode Island Supreme Court

This attorney disciplinary matter came before the Supreme Court pursuant to a recommendation of the Disciplinary Board of the Rhode Island Supreme Court (board) that the respondent, Keven A. McKenna, be suspended from the practice of law for a period of one year.  This recommendation stemmed from McKenna’s misconduct in: engaging in the unauthorized practice of law as a limited liability entity; failing to disclose his income and  misrepresenting his interest in a receivable to the United States Bankruptcy Court for the District of Rhode Island; engaging in conduct that amounted to a lack of candor, dishonesty, and misrepresentation to the bankruptcy trustee; failing to keep and provide records that were subpoenaed by Assistant Disciplinary Counsel; and engaging in conduct during proceedings in the Workers’ Compensation Court and Bankruptcy Court that demonstrated a lack of candor and an attempt to disrupt these tribunals.   
A three-member panel of the board conducted eight hearings on this matter and found that McKenna had violated Article V, Rules 1.19, 3.3, 3.5, 7.1, 7.5, and 8.4 of the Supreme Court Rules of Professional Conduct.  The board adopted the findings of the panel and submitted its recommendation to the Supreme Court.  McKenna then filed two motions to dismiss, a motion to stay the proceedings pursuant to G.L. 1956 § 9-33-2, and a motion to recuse the justices of the Supreme Court.  Throughout the proceedings, McKenna challenged the authority of the Supreme Court to regulate attorneys, as well as its and the board’s jurisdiction over matters of attorney discipline, and he alleged that the proceedings before the board and the Supreme Court violated his procedural due process rights.   
The Supreme Court denied McKenna’s motions and adopted the recommendation of the board.  The Court held that it had jurisdiction over attorney disciplinary matters and that McKenna’s due process rights had not been compromised by the disciplinary process.  The Supreme Court further held that McKenna had failed to establish any facts warranting recusal, and that § 9-33-2 was inapplicable to attorney disciplinary proceedings.  The Supreme Court agreed with the board’s findings of misconduct and ordered that McKenna be suspended from the practice of law for a period of one year.
(Mike Frisch)

March 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Doctor/Lawyer Disbarred For False Swearing as Expert Witness

The Georgia Supreme Court has accepted the voluntary resignation of an attorney convicted of criminal offenses.

The Record Herald reported on the criminal charges

A Georgia doctor accused of faking his credentials is expected to plead no contest to charges that he gave false testimony as an expert witness in multiple DUI cases across the state — including one in Franklin County, according to District Attorney Matthew Fogal.
Dr. Joseph Citron, 68, a board certified ophthalmologist from Atlanta, Ga., had been charged with 33 counts of perjury and false swearing for court cases in six Pennsylvania counties.
By pleading no contest Citron will face nine counts of felony perjury, one count for each trial, and one count of unsworn falsification to authorities.
Citron will receive a seven-year sentence of intermediate punishment, with the first 60 days of the sentence to be served on house arrest with electronic monitoring, according to Fogal.
“Obviously the most important piece is that he will never be able to testify again,” Fogal said in a written statement.

Information on the resulting no contest plea from Lancaster Online is linked here.

In Georgia, this sanction is "tantamount to disbarment. " (Mike Frisch)

March 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, February 28, 2015

Court Considers "Grave Injustice" Exception To Reciprocal Discipline

An unusual reciprocal discipline case will be argued in the District of Columbia Court of Appeals on April 9th.

The attorney was disbarred in Alabama.

The D.C. Board on Professional Responsibility has recommended a 90-day suspension with fitness based on its conclusion that disbarment would amount to a "grave injustice." 

Because the disbarment imposed by the Alabama Disciplinary Board is so disproportionate to the sanction that would otherwise be imposed in this jurisdiction, we conclude, by clear and convincing evidence, that an obvious miscarriage of justice would occur if Respondent were disbarred...

...the Board finds that Respondent’s misconduct is most analogous to those cases where the Court has imposed 60-day suspensions for contempt of court. Specifically, the Board finds Breiner and Powell to be the most comparable. In Breiner, the respondent was held in contempt multiple times for a pattern of disrespect to the court, as a result of his excessive zeal in representing a criminal defendant. Similarly, in Powell, the respondent was held in contempt and caused a mistrial, harming his criminal defendant client. The findings of the Alabama Disciplinary Board encompass all of the elements of Breiner and Powell and thus warrant a sanction at least as serious. However, the Alabama Disciplinary Board found that Respondent also failed her client, and engaged in equally troubling conduct towards witnesses and the Assistant District Attorney. Given the extreme nature of her contumacious conduct and her failure to recognize it, insofar as she continued to press her grievances outside the courtroom on television, Respondent’s misconduct is somewhat more egregious than the 60-day suspension cases. Given these additional factors, the Board recommends that the Court impose a 90-day suspension.

And this may be played a role in the Alabama sanction.

After the trial, the attorney made a comment to a television station "that there was an intolerance by white judges to show respect to black attorneys and that the judge was embarrassed by all the lies the State told during the trial."

Bar Counsel has appealed the board recommendation. 

As reflected in this earlier post, this is a rare instance where my sympathies lie with the board. (Mike Frisch)

February 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Protective Order Violation Gets Attorney Reprimanded

The Delaware Supreme Court imposed a public reprimand of a criminal defense attorney who violated the terms of a protective order that he had a hand in drafting.

The court

For the reasons meticulously outlined by the Board[on Professional Responsibility], the record supports a finding by clear and convincing evidence that Koyste knowingly violated the PO in Benn’s case. Koyste actively participated in drafting the PO, understood its terms, and specifically acquiesced to the clause prohibiting him or his agents from using the discovery material to identify or contact witnesses. The terms of the four-paragraph PO were clear and unambiguous. Koyste had a signed copy of the Superior Court’s and never forgot that Benn’s case was governed by a PO. Despite several reminders from the prosecutor about the terms of the PO, Koyste made no effort to review the Superior Court’s order or take any measures to determine his compliance with the PO before instructing his investigator to show the discovery materials to Benn and his wife.

The court concluded that "the Board properly found that [the attorney's] violation of the PO caused potential injury to the vulnerable, teenage victim in Benn’s case and caused actual injury to the legal system." (Mike Frisch)

February 28, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, February 27, 2015

Demeaning Comments Lead To Judge's Suspension Without Pay

A busy day in Kansas for gender-based misconduct.

A district court judge was suspended without pay for 90 days by the Kansas Supreme Court based on these findings

Respondent engaged in harassment as well as gender bias by making repeated inappropriate and offensive comments in the presence of female attorneys employed by the Sedgwick County District Attorney's Office.

The Respondent's conduct was directed toward multiple female attorneys, including Melissa Green, an attorney employed by the Office of the District Attorney, Juvenile Division, in the 18th Judicial District since January 2013. Respondent engaged in incidents of inappropriate, harassing behavior towards Melissa Green.

While Ms. Green was employed with the now-named Department for Children and Families prior to her employment with the Office of the District Attorney, Ms. Green was assigned to Respondent's court for approximately five years. Ms. Green testified that, in approximately October 2006, at a time when Respondent and Ms. Green were in the courtroom alone, Respondent told Ms. Green that after his wife gave birth the doctor asked Respondent if he wanted an extra stitch in Respondent's wife for Respondent's pleasure.


 While Ms. Green was employed with the Department for Children and Families prior to her employment with the Office of the District Attorney, Respondent regularly made sporadic and pervasive comments of a sexual or suggestive nature. Two examples were telling Ms. Green she was the girl who wouldn't date him in high school and remarking on another occasion, 'whatever, prom queen.' Ms. Green testified that, although each comment standing alone might not have been offensive, it was the cumulative effect of so many of these comments that became offensive.

While Ms. Green was employed with the Office of the District Attorney, Ms. Green made and delivered an over-the-hill birthday cake for Jennifer Redd's birthday party, at the request of Respondent. Respondent pointed to a representation of an old couple crossing the street and laughed, stating it looked like she was giving him the 'reach around.' Ms. Green testified at the hearing that this is a comment of a sexual nature from the gay community and could not have been used innocently.

With another attorney

Respondent made inappropriate comments in late 2011 insinuating that Ms. Marino liked to have a lot of sex. The comments were based on a vacation she was taking to Las Vegas and a statement that she liked to play a slot machine called Sex in the City. Her comment was apparently cut short, resulting in a statement that she liked sex. Respondent repeated the joke numerous times to Ms. Marino's embarrassment. "

Respondent joked about whether Ms. Marino was pregnant or would be pregnant after vacations. This subject continued for a few years. One incident in particular occurred in 2013 when Respondent inquired across the courthouse parking lot whether Ms. Marino had 'another one on the way' after she returned from vacation. Respondent testified these comments were not sexual but rather celebrated children. The Panel did not find this explanation credible

 There are a number of other instances of like misconduct identified in the court's opinion.

As to sanction

 Looking first at the nature of the misconduct, the evidence established that the Respondent exhibited extremely poor judgment or blatantly misused the power of his judicial position in multiple ways. He made offensive and demeaning comments of a sexual nature to female attorneys and staff members. Those victims endured the harassment over an extended period of time because they feared Respondent would use his professed political connections to jeopardize their careers. The Respondent interfered with an attorney's practice by sending an ex parte email communication to the attorney's client that expressed bias or prejudice toward the attorney, founded in part on the Respondent's apparent disagreement with the attorney's moral beliefs. Finally, the Respondent tried to use the influence of his judicial position for personal gain by brokering an employment opportunity for his wife. These offenses were not inadvertent "technical" missteps. The nature of Respondent's misconduct struck at the very heart of the honor and dignity that the public expects and the legal profession demands from a judge.

The extent of Respondent's misconduct was wide-ranging, especially with respect to the first count of the three-count complaint. What the Respondent's Chief Judge labeled "off color or blue humor" was pervasive and ongoing. The Respondent subjected multiple female attorneys and staff members to repeated inappropriate and offensive comments for literally years. Moreover, often the comments directed at a particular female were made in front of other persons, thereby further broadcasting the denigration of the judiciary's integrity...

...we do not view public censure as the appropriate sanction in this case and a majority of the court hereby imposes an initial sanction of an unpaid, 90-day suspension, commencing within 10 days of the filing of this opinion. A minority would impose a more severe sanction.

In addition, because Respondent does not seem to appreciate why his conduct was unacceptable, we also impose an educational requirement. Within 1 year of this opinion's filing date, Respondent shall have satisfactorily completed a course in sexual harassment, discrimination, and retaliation prevention training, as well as educational program(s) on the employment law applicable to such conduct. Respondent shall file a report with this court within that 1-year period, detailing the training and program(s) completed.

Further, Respondent shall be prohibited from accepting any position in the Eighteenth Judicial District that involves the supervision of any judicial branch employee, other than his chambers staff, for a period of 2 years following completion of the above-described educational requirement.

The Wichita Eagle had reported on the panel's censure recommendation.  

My take: this result is marginally better than a mere slap on the wrist (i.e. censure) but it's a close, warm cousin of a wrist slap.

This is a judge I'd never want entrusted with matters that require the exercise of judicial discretion. (Mike Frisch)

February 27, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

"Dirty Bitch" Comment To Prosecutor Draws Stayed Suspension

A stayed three-year suspension with probation has been imposed by the Kansas Supreme Court on an attorney appointed to defend a felony driving under the influence case.

The attorney was concerned that a witness that the prosecution had under subpoena had moved out of state and was not there for trial.

The court ruled against the Respondent's position on the Motion in Limine and precluded [S.R.]'s preliminary hearing testimony from being offered by the Respondent. The Respondent was frustrated and angry at the court's decision, and he believed the prosecution had deliberately engaged in an obstructive tactic by making it appear that [S.R.] had been subpoenaed to appear at the trial, and then releasing him from his subpoena, without notifying the Respondent.

After counsel had argued their positions on the Motion in Limine, as the Respondent was returning to his seat at counsel table, the Respondent called Ms. Britton a 'dirty bitch.' The comment was heard by Ms. Britton, as well as other individuals in the courtroom who were seated behind the prosecutor's counsel table. Neither Judge Malone nor his court reporter heard the Respondent's comment.

Ms. Britton was surprised and offended by the Respondent's comment and asked to approach the bench to raise the issue with Judge Malone. Ms. Britton told Judge Malone that the Respondent had called her a 'bitch,' to which the Respondent indicated that he in fact had called her a 'dirty bitch.' The Respondent then apologized to Ms. Britton, although Ms. Britton did not initially believe the Respondent had apologized to her. However, Judge Malone confirmed that the Respondent had apologized.

The attorney also submitted a falsely notarized document in the disciplinary case.

There was mitigation

The Respondent testified that on the day [R.C.'s] trial began, July 8, 2013, he was experiencing severe, almost debilitating pain in his right big toe. As a result of a delay in seeking medical attention for a blister on the toe, the Respondent had developed a very serious medical condition that ultimately resulted in rather significant treatment after July 8, 2013. The Respondent had received information from his doctor prior to the incident on July 8, 2013, that treatment for the toe condition might include amputation.

And the behavior was not isolated, From the panel findings

It is interesting to note, that during cross-examination, the Disciplinary Administrator questioned two of the Respondent's witnesses, Douglas County District Court Judge Paula B. Martin and Sherri E. Loveland, attorney, Lawrence, Kansas, about similar conduct by the Respondent towards them. Judge Martin testified that in approximately 1981, the Respondent called her a 'bitch' when she was in a trial as opposing counsel. Ms. Loveland testified that approximately 30 years prior, the Respondent had called her a 'fucking bitch' during a court proceeding. While both of the incidents testified to by Judge Martin and Ms. Loveland are very remote in time to the incident which occurred in July 2013, it does reveal that the Respondent has a history of this type of conduct.

Disciplinary counsel sought a one-year suspension which the court rejected

...instead of adopting the discipline suggested by respondent or the Disciplinary Administrator, a majority of the court elects to impose a 3-year suspension. However, we elect to stay imposition of that discipline and place respondent on probation for a 3-year period from the date a probation order is entered by this court. A minority of the court would impose a harsher discipline in light of the violation of KRPC 8.4(c) (engaging in conduct involving misrepresentation) and respondent's prior disciplinary history.

The court previously had reinstated the attorney after a one-year suspension. (Mike Frisch)

February 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fall From Prominence

The Iowa Supreme Court has suspended an attorney without possibility of reinstatement for at least six months.

Verla Jean Bartley was admitted to the Iowa bar in 1961. She rose to prominence in the profession over the years and was active in the state bar association. She has no prior disciplinary record. In 2002, she began practicing as "of counsel" with an Iowa City law firm and retired from the active practice of law in 2014.

The misconduct involved neglect and misrepresentations in two estate matters.

The court discounted her self-report

However, this mitigation is lessened somewhat when the self-reporting is at least in part motivated by knowledge that the law firm would otherwise be reporting the violation.

After considering mitigating and aggravating factors, the court concluded

We also observe that the misrepresentation was not only the most serious unethical conduct engaged in by Bartley, but measured against a career that spanned more than half a century, it appeared to be the most uncharacteristic. Bartley consciously engaged in the misrepresentation to cover up her neglect and, in the process, only elevated the seriousness of her conduct and the degree of sanctions we are responsible to impose. We have observed this result in other lawyer discipline cases, and it is one that all lawyers who face the prospect of discipline would be better off avoiding.

(Mike Frisch)

February 27, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Passing Of A Giant

The legal ethics community is learning of the death of Monroe H. Freedman.

Monroe is a shining light that inspired generations of lawyers to treat ethics as a central part of their professional lives and a subject of serious scholarly study.

He also was an iconoclast who was not cowed by the power of the judiciary and the entrenched Bar.

This tribute by Ralph J. Temple, Monroe Freedman and Legal Ethics: A Prophet in his Own Time, rings true today as when it was written

The rules of ethics applicable to a number of today's critical ethical issues evolved from Freedman's creative thinking and advocacy. This is a fact that is easily overlooked, because some of his once controversial positions are now widely accepted...

 No writer or thinker in the field of legal ethics has articulated with such clarity and 'power the vital constitutional, moral, and philosophical values inherent in lawyers' ethics. His innovative views-often initially dismissed by the established bar only to be later accepted- have justly had the greatest impact on legal ethics in our time.

If there is a Mount Rushmore for legal ethicists, Monroe is on it along with my own mentor Father Robert Drinan.

He will be missed, but lives on in the lawyers and teachers that he trained and inspired. (Mike Frisch)

February 27, 2015 | Permalink | Comments (0) | TrackBack (0)