Tuesday, October 6, 2015

Litigious Applicant Denied Bar Admission

The Massachusetts Supreme Judicial Court has denied admission to an applicant who had passed the July 2008 bar examination.

At first, the Board of Bar Examiners (board) received no objections to his admission and reported him qualified. Before he could take the oath of attorney, however, three attorneys in good standing contacted the board, raising significant concerns about whether Pansé "is of good moral character and sufficient acquirements and qualifications" to warrant admission to the bar.

The three had represented his wife

Pansé's conduct and demeanor during the divorce and related proceedings led the three attorneys, each of whom represented Ms. Pansé, to object to his admission to the bar. We need not recite all of the details of their interactions with him here. According to the board, they described him as "a person of vengeance, control, and intimidation who misused the legal system at the expense of his family and others" and "not[ed] a belief that [he] would use his license to practice to harm others." Based on their testimony at the formal hearing, the board found that Pansé "consistently relied on personal attacks to justify his actions and to defend perceived criticisms against him, additionally filing complaints against members of the bar who challenge his positions." The record is replete with examples of his doing so. Indeed, it became necessary to reschedule the formal hearing when Pansé filed professional complaints against the objecting attorneys and others; the Board of Bar Overseers closed those complaints without further action...

Apart from the divorce and other proceedings, Pansé has been involved in several other civil actions, some of which were not fully disclosed in his application for admission to the bar. As the board found, Pansé repeatedly engaged in ad hominem attacks in those cases. In a lawsuit he brought against his former employer, the Massachusetts Bay Community College, Pansé described the president of the college as a "reject from Montana." He also accused several defendants of lying and filing "malicious and fraudulent" reports, described some defendants as "morally challenged," and stated that the office of the Attorney General was "unethical" and had engaged in "repeated misconduct." He also accused the college's counsel of producing a witness "to lie wildly under oath." The board found that his actions "demonstrate a repetitive pattern of abusive and litigious behavior against litigants, counsel, judges and others who assume a contrary position" and that "Pansé does not appear to be remorseful, or, for that matter, capable of reflecting on the consequences of his behavior."

The court accepted the board's findings and conclusions

It found that Pansé demonstrated a lack of candor by failing to disclose litigation to which he was a party or by failing to describe the circumstances fully; that he demonstrated a willingness to abuse the legal system for purposes of harassment and intimidation of individuals with whom he has a dispute; that his repeated reliance on personal attacks, as well as professional complaints against members of the bar who challenge his positions, further demonstrate a lack of civility and professionalism; and that despite his full awareness of the board's concerns about his fitness to practice law, he failed to express remorse or insight into his actions or to assure the board that he would have the ability to comport himself in a civil and professional manner. The record amply supports this assessment. Even in his brief to this court, Pansé continues to resort to personal attacks and invective, going so far as to accuse the board of aiding and abetting the alleged "felony endangerment and felony abuse" of [his son]. This does nothing to assure us that Pansé possesses the good character necessary to practice law.

The court rejected claims based on delay in the proceedings. (Mike Frisch)

October 6, 2015 in Bar Discipline & Process | Permalink | Comments (0)

For The Love Of A Brother

A convicted attorney's resignation was accepted by the New York Appellate Division for the Fourth Judicial Department.

The Democrat and Chronicle reported on the criminal case

A Rochester attorney was sentenced Wednesday for obtaining prescription pills from a doctor for his incarcerated brother.

Salvatore J. Marcera, 54, of Rochester was given three years probation and was ordered to pay nearly $2,000 in restitution to Excellus BlueCross BlueShield after being convicted for obtaining a controlled substance by misrepresentation, according to a statement released by the U.S. Attorney's Office.

On July 28, 2006, Marcera received prescriptions — including the Schedule II drugs OxyContin and Roxycodone — by falsely claiming they were medically necessary for his brother, according to Assistant U.S. Attorney Frank Sherman, who handled the case.

In the statement, Sherman said Marcera then gave the prescriptions to another family member with the understanding that they would be paid for by Excellus BlueCross BlueShield for his brother — who was serving time at Monroe County Jail.

Marcera was previously sentenced in March 2014 to five years of probation, including one year of home confinement, for filing false personal income tax returns from 2004 to 2007. Marcera also was ordered to pay more than $100,000 in restitution to the Internal Revenue Service.

Marcera's law license has been suspended and he is subject to further disciplinary proceedings in May.

(Mike Frisch)

October 6, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Losing Ineffective Assistance Claim Bars Malpractice Suit

A Delaware Superior Court held that a legal malpractice claim was barred by both the statute of limitations and on the merits.

The convicted plaintiff had raised the claims in collateral attack of the conviction.

Here, the Plaintiff filed this suit more than four years after he first raised the identical allegations against his attorney. Accordingly, there is no latent discovery of an alleged fraud that would somehow extend or toll the statute of limitations. Because all facts that plaintiff is alleging in this case were known to him more than three years prior to the filing of this action, the statute of limitations period has expired and this action must be dismissed with prejudice.

The matter is also not cognizable because Plaintiff sought review of these identical issues in his motion to withdraw his guilty plea in 2011, which was denied by the Court. Germane to this issue is the Delaware Supreme Court’s holding in Rose v. Modica which provided that

[t]he standards for proving ineffective assistance of counsel in a criminal proceeding are equivalent to proving legal malpractice in a civil proceeding. If there is no claim against counsel in a criminal case, there is also no civil claim against counsel for legal malpractice.

In Rose, the Supreme Court held that when a Defendant litigates an ineffective assistance of counsel claim in the criminal context and does not prevail, a Defendant is collaterally estopped from raising the same issues again in a civil suit.6 Dismissal of any such claims is warranted on that basis. Here, the Plaintiff fully litigated the identical issues four years ago. Plaintiff is barred from once again litigating the issue of whether his counsel’s representation was inadequate.

(Mike Frisch)

October 6, 2015 | Permalink | Comments (0)

A Non-Consentable Conflict

The North Carolina Court of Appeals has affirmed the imposition of discipline consisting of a two-year suspension stayed with conditions for an attorney's failure to safeguard funds and a concurrent conflict of interest in a business transaction.

The court rejected his claim that he was not on notice of the conflicts charge

We first note that in characterizing the allegations of the complaint, defendant relies exclusively on the allegations contained in the final conclusory paragraphs of the complaint, setting forth which Rules of Professional Conduct defendant violated, and completely ignores the factual allegations alleged in support of that conclusion. The factual allegations of the complaint state more specifically, in pertinent part, that on 24 January 2006, Merrell transferred the Gordons’ funds, without their knowledge or permission, to a CD account at Bank of America “in the name of ‘Dan L. Merrell, Special Trustee for Development Company of Columbia, LLC’, not in the name of the Gordons or as trustee for the Gordons.” The complaint further alleged that “[f]unds were withdrawn from this CD account without the Gordons’ knowledge, permission, or approval on January 27, 2006, February 14, 2006, and March 1, 2006” and that these withdrawals were for Lam’s benefit, including covering Lam’s costs to acquire the Tyrrell County property which was later resold to DCC.

These allegations not only gave defendant notice of the name of the CD account as found in the DHC’s order, but also of the underlying conduct that is the subject of the complaint: that defendant’s transfer of the Gordons’ funds, without their permission, resulted in the funds being accessed by and for the benefit of someone other than the owner of the funds. Although the complaint does not specifically allege that defendant used DCC’s tax identification number or that he failed to provide the Gordons with an accounting, these facts are incidental to the primary misconduct alleged: defendant’s failure to safeguard and hold in trust the Gordons’ funds. We hold that the allegations in the complaint were sufficient under the notice pleading standard to give defendant “sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it . . . and -- by using the rules provided for obtaining pretrial discovery -- to get any additional information he may need to prepare for trial.”

The court found that sufficient evidence supported the rule violations and that the representation of multiple parties in a commercial real estate closing creates a non-consentable conflict

the DHC’s conclusion that defendant’s dual representation created a conflict of interest is consistent with 2015 Formal Ethics Opinion 14 (“2015 FEO 14”), which held that in most instances, common representation in a commercial real estate closing is a “nonconsentable” conflict. “While not precedential authority for this Court, formal ethics opinions, as defined in the Procedures for Ruling on Questions of Legal Ethics of the North Carolina State Bar, ‘provide ethical guidance for attorneys and to establish a principle of ethical conduct.’ ”

The court

...the DHC’s findings, which we have held are supported by the evidence in the record, show that defendant had obtained information through his representation of Lam and Deepwater that would have been material to DCC in determining whether to go forward with the closing and that defendant failed to disclose to DCC before representing both DCC and Deepwater in the closing.  There can be no question that a conflict of interest arises when an attorney obtains information through his representation of one party that is material to the attorney’s representation of a second party, and the attorney cannot or does not disclose that information to the second party. See In re Shay, 756 A.2d 465, 476 (D.C. 2000) (holding attorney’s “duties to her respective clients . . . were irreconcilable and resulted in a conflict of interest” where attorney drafted will for one client and did not disclose material information, obtained from a second client, which was necessary for first client to make informed decision regarding disposition of property); Matter of LaVigne, 146 N.J. 590, 607, 684 A.2d 1362, 1371 (1996) (“Respondent engaged in an impermissible conflict of interest, in violation of RPC 1.7(b) and (c), by his representation of the seller and two separate sets of purchasers when his own pecuniary interest materially limited his ability to counsel his clients. He failed fully to disclose and explain the nature of the conflict to the respective purchasers and lenders and made no effort to obtain their express consent to his multiple representation, in violation of RPC 1.7(b).”). In short, we hold that there is sufficient evidence to support the DHC’s finding of fact that Lam engaged in a conflict of interest and failed to provide full disclosure of his actions to the other members of DCC. These findings, in turn, support the DHC’s conclusion that defendant engaged in a conflict of interest in violation of Rule 1.7(a) because defendant’s representation of DCC at the closing was materially limited by his responsibilities to Deepwater and he had not obtained written informed consent to the dual representation.

(Mike Frisch)

October 6, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Letters From Two Wives

The Georgia Supreme Court approved the consented-to disposition of a review panel reprimand for an attorney's ineffective representation of a woman charged with murder. 

He had relied on appointed counsel for the client's daughter to secure an expert witness.

Ford admits that, when it became clear that an expert had not been retained, he should have consulted with his client regarding the impact on her case and moved for a continuance so that a forensic pathologist could be retained. Ford states that he therefore was not prepared for trial, which resulted in the jury returning a guilty verdict against his client–although her motion for new trial, presented by new counsel, has been granted.

There was mitigation

Ford acknowledges that he received an Investigative Panel reprimand in September 2014. In mitigation, Ford states that, during the time of his representation of this client, he was in the midst of the dissolution of his prior marriage and the beginning of his relationship with the woman who is now his wife. In addition to the stress and distraction caused by this situation, Ford began to drink to excess, which led to an arrest for DUI. Ford pled guilty to the DUI and has complied with the conditions of his probation, changed his behavior, and met with a counselor, who has determined that Ford does not have an addiction to alcohol. Both Ford’s ex- and current wives submitted affidavits attesting to the positive changes that Ford has made. Finally, Ford notes that he did not take the case in question out of greed or from a failure to appreciate the seriousness of the case, but instead because he believed in his client’s innocence. Ford argues that a Review Panel reprimand is the appropriate punishment in this case and seeks to have this Court impose such as discipline. In response, the State Bar recommends that this Court accept Ford’s suggested discipline.

 (Mike Frisch)

October 6, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, October 5, 2015

The Value Of Blowing The Whistle On Yourself

The Georgia Supreme Court imposed a two-month suspension of an attorney who testified falsely but later saw the error of his ways

Nowell became a member of the Bar in 1979. The facts, as admitted by him and as found by the special master following a hearing, show that in May 2012 and January 2013, Nowell testified falsely in two depositions that were taken in a civil suit filed against a corporate entity and several testamentary trusts; Nowell was general counsel and/or an officer at the relevant times of the corporate entity and was trustee of the trusts. The false testimony was material to the merits of the litigation, and Nowell gave the testimony knowing it was false because he believed that truthful answers would help the plaintiff and would hurt the defendants with whom he was affiliated. Several months after the second deposition, Nowell came to experience great remorse and, in April 2013, submitted to the court an affidavit confessing to and correcting his false testimony. In May 2013, Nowell self-reported his misconduct to the State Bar. In June 2013, he was deposed again and testified truthfully. The trial court in that case ultimately granted summary judgment against the plaintiff, for reasons unrelated to Nowell's false testimony. Nowell's disclosure to the trial court of his misconduct was of his own volition, and but for his coming forward, his misconduct could have remained undiscovered.

This case raises the interesting enforcement consequences of the truly voluntary (i.e. detection not imminent) self-report.

I encountered the same mitigation issue in a case where the attorney had self-reported conduct that would clearly have merited disbarment otherwise

While Weiss took significant steps to mitigate his misconduct by self-reporting his theft; making efforts to ensure that the opportunity to misappropriate money from his firm and other firms will be more difficult in the future; and seeking counseling to help him address the psychological problems that led him to his ethical lapse, the fact remains that Weiss unlawfully diverted a substantial amount of money from his law firm over a significant number of years and a sanction of one year or less would be wholly inconsistent with the discipline imposed on others for comparable conduct...

Given those prior precedents and the facts of this case, the Board stated that it did not come easily to the conclusion that Weiss should not be disbarred. Ultimately, however, the fact that Weiss self-reported his violation led the Board to conclude that the sanction should be reduced from disbarment to three years suspension with one year suspended. Further, the Board, obviously influenced by the psychological evidence presented by Weiss, decided not to require a showing of fitness as a condition of Weiss resuming his law practice. Both of these accommodations by the Board are significant and were warranted under the circumstances.

Notably, the Weiss case was argued in March 2001 but not decided until December 2003. I left the Office of Bar Counsel for Georgetown Law in July 2001.

The Maryland Court of Appeals discounted the mitigation and (over a dissent) imposed disbarment as reciprocal discipline. (Mike Frisch)

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

Out Of Their League

The Connecticut Appellate Court has affirmed the judgment in a case where the plaintiff had appealed the trial judge's decision not to recuse himself.

The case started with the Darien Little League's decision to move the plaintiff's son from the advanced to the intermediate league.

The plaintiff claimed that this heartless move was made in retaliation for her work to bring affordable housing to Darien.

She sued for defamation when the league responded.

The recusal issue

The matter proceeded to a court trial on January 14, 2014, nearly three years after the commencement of this action. At its outset, the plaintiff offered her own testimony in narrative form. Early in that testimony, the plaintiff described a parcel of land owned by ‘‘a longtime Darien Little League board member [who] was not a board member’’ at the time that the allegedly defamatory statements were published. When the plaintiff then identified that property owner as ‘‘Mr. Mark Gregory,’’ the court, Hon. Taggart D. Adams, judge trial referee, stated, ‘‘All right. I need to take a break here.. . . Mark Gregory was a lawyer who worked with me and for me for a number of years at a law firm in Stamford. I left that law firm fourteen or fifteen years ago. He became a partner in that firm . . . after I left, much to my delight. He has subsequently left that firm as well. I consider him to be a good friend of mine as well as a longtime working associate. . . . [I]n fact, I had lunch with him and another attorney . . . a couple of weeks before Christmas, sometime in December. And I have recused myself from a case . . . in which [Gregory] was representing a  from this case if [Gregory’s] involvement is significant in any fashion whatsoever. I don’t want to recuse myself because we’ve done a lot of work here this morning. But I would be interested, what I’m going to do is take a recess now. . . . I’d like the parties and counsel to consider whether I should recuse myself. I’m considering it. And that may help me in my consideration or it may not. But I was not aware that [Gregory] was involved in this case whatsoever.’’

After hearing argument, the judge declined to recuse himself.

The court agreed that recusal was not required

We conclude that the plaintiff has not met that burden. Gregory was not a party to this action and did not serve as counsel to either party. Gregory further was not a witness at trial, nor was he the subject of the many subpoenas issued by the plaintiff. Perhaps most significantly, there was no allegation in the pleadings, and no evidence adduced at trial, that Gregory was involved in the publication of the allegedly defamatory statements by the defendant. The plaintiff herself informed the court that she had no knowledge as to whether Gregory was so involved; rather, she simply was ‘‘troubled’’ that some members of the community, including one associated with the defendant, allegedly ‘‘empathized with’’ Gregory’s opposition to her affordable housing proposal. We therefore are confronted with a claim of impartiality stemming from a judge’s relationship with a person tangential to the material issues to be decided by the court.

Strike out!

Apropos to nothing but the first time I ever heard of Darien Connecticut was as a child reading the wonderful book and seeing the wonderful movie Auntie Mame. (Mike Frisch)

October 5, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

"Paymaster" Surrenders License

A petition for voluntary license surrender was accepted by the Georgia Supreme Court.

Axam admits that he agreed in 2010 to act as a “paymaster” for a client, a role for which he was paid $5,000 for each transaction that he facilitated. On August 5, 2010, another individual — at the direction of Axam’s client — directed a wire transfer of $100,000 to what he believed was Axam’s trust account; in fact, the money was wired to Axam’s operating account. At that time, Axam did not maintain a trust account, and he generally used his operating account to handle the business of his law practice, as well as personal funds. A few days after Axam received the funds, he disbursed them according to the instructions of his client, retaining $5,000 for himself as his transaction fee. Although the individual who had directed the transfer to Axam specifically requested that he be notified of the disbursement of the funds, Axam failed to notify him. That individual later contacted Axam and repeatedly requested documentation of the disbursement, but Axam failed to provide an accounting or otherwise to document the disbursement of the funds until after the individual filed a grievance. Axam has admitted that he did not read the terms of the trading platform contract in connection with which he was serving as “paymaster,” that he did not know the nature of the business dealings between his client and the other individual, and that he asked no questions about the transaction that he facilitated. Although Axamnoted that the disbursement instructions from his client came by an e-mail that referred to his client by a different name than that by which he knew her, he says that he assumed that the other name was just a trade name for his client. By these acts, Axam admits that he violated Rules 1.15 (I) and (II) of the Georgia Rules of Professional Conduct, violations that subject a lawyer to disbarment.

SaporaReport had a story on a suit that the attorney handled against Tyler Perry.

 A star-studded group of lawyers is set to appear Friday in federal court in Atlanta to begin the debate over whether Tyler Perry got a sweetheart deal to buy most of Fort McPherson to build a film studio.

Tony Axam confers with Clayton County District Attorney Tracy Graham Lawson during a trial this month. Credit: henryherald.com

Tony Axam confers with Clayton County District Attorney Tracy Graham Lawson during a trial this month. Credit: henryherald.com

Positioned against Perry as the plaintiff’s lawyer is Tony Axam, a noted death penalty attorney who once was called to serve on the defense team of convicted serial killer Wayne Williams – until Williams fired him without explanation at the outset. Axam specializes in complex business litigation, as well as capital and criminal defense.

Leading Perry’s defense is Larry Dingle, a former Atlanta police officer who earned his law degree from Georgia State and rose through the ranks at Atlanta City Hall during the terms of former mayors Maynard Jackson and Andrew Young to the positions of department head and city clerk. Dingle specializes in local government law and land use.

(Mike Frisch)

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

Things Did Not Go Better With Coke

The Georgia Supreme Court has reinstated a disbarred attorney.

He was already served a three-year suspension when this happened

Before that suspension expired, however, Kendall was convicted in federal court on charge of conspiring to give a client, who was a member of a drug distribution organization, advance notice of upcoming federal law enforcement searches and seizures, and of conspiring to distribute cocaine (by virtue of tipping off his client about the upcoming searches). He was acquitted of actually tipping off his client. Nevertheless, Kendall was sentenced to serve 60 months in prison, followed by three years on probation.

After release

Kendall outlined his efforts at rehabilitation in the community through his documented involvement in numerous community, educational, civic, and non-profit organizations that assist minorities, children and the elderly, including, but not limited to, a nonprofit organization that his wife and he started to increase awareness of the issues associated with, and to assist in the prevention of, childhood obesity...

The record contains twenty-nine letters of personal reference, including multiple letters from the legal community, friends, family members, members of the non-profit community, former employees, and prior clients. Among those providing letters of recommendation were federal and state court judges, a former United States Attorney for the Northern District of Georgia, and the Chief of Police for the Clayton County Public Schools. The authors of the letters attest generally to Kendall’s high moral character, his generosity (with time and money), his compassion, his commitment to the community, and his professionalism and diligence in reestablishing the requisite character and fitness for a member of the State Bar of Georgia. They all support his readmission and many suggest that they would hire him or work with him if he is reinstated.

The court agreed. (Mike Frisch)

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

No More Monkey Business

The Georgia Supreme Court has disbarred an attorney for misconduct in civil litigation.

The attorney achieved a level of notoriety for conduct described in this post from the July 2008 ABA Journal.

An Atlanta divorce lawyer has been banned from the entire fifth floor of the DeKalb County courthouse following an incident in which he called an African-American court staffer a “little monkey.”

Two judges cited the remark in an order that bans lawyer Paul Koehler from the floor where the judges have chambers unless he is accompanied by a sheriff’s deputy, reports the Fulton County Daily Report. The judges’ order says the behavior was “racist and disrespectful.”

Koehler, who is white, admitted he made the remark in an interview with the Fulton County Daily Report and said it was not intended to be a racial comment. He has since written letters of apology.

Koehler told the publication he thought he was speaking to someone he knew, but apparently the woman was a court staffer. “It was a pretty black lady that I thought I knew and was joking with,” he said.

“I made a comment like, ‘How you doing, you little monkey?’ or something like that,” said Koehler. “I had no intent to make it a racial comment. … I think every day, when I’m playing with my granddaughter or I’m playing with someone else I use that word, monkey.

This did not help in the bar discipline case

Koehler continues to state that he has done nothing warranting the imposition of the suggested punishment. Koehler’s arguments against the specific accusations of the Formal Complaint are largely unresponsive to the claims presented there.

The attorney was admitted in 1963. (Mike Frisch)

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

Sunday, October 4, 2015

Nevada Supremes Instruct On Dealing With Allegations Of Attorney Misconduct In Civil Litigation

The Nevada Supreme Court has provided guidance to lower courts with respect to the proper trial and appellate court approach to attorney misconduct

After the jury rendered a verdict in favor of the [defendant] manufacturer, the plaintiff filed a post-trial motion seeking a new trial based upon alleged misconduct committed by the manufacturer's attorney. The district court denied the motion, but failed to make the detailed findings required by the Nevada Supreme Court.

The Nevada Supreme Court recently issued two opinions clarifying how claims of attorney misconduct must be handled both by the district court and subsequently on appeal. In this opinion, we take the opportunity to summarize those recent developments and to provide guidance to district courts tasked with resolving claims of misconduct. Because the district court in this case failed to make detailed findings regarding the alleged misconduct that might have enabled us to determine whether those cases would have affected its decision, we must remand the case to the district court to reconsider its decision in light of those cases and to make the necessary findings. To assist the district court, we identify some factors that must be considered on remand.


When a party claims misconduct by opposing counsel, the legal standard under which that misconduct is reviewed depends on whether a timely trial objection was made. See Lioce, 124 Nev. at 17-19, 174 P.3d at 980-82. When a timely objection was not made at trial, any review of that misconduct, either post-trial by the trial court or on appeal, is considerably more circumscribed than if an objection was made. When resolving a motion for a new trial based on unobjected-to attorney misconduct, "the district court shall first conclude that the failure to object is critical and the district court must treat the attorney misconduct issue as having been waived, unless plain error exists." Id. at 19, 174 P.3d at 982. To decide whether there is plain error, the district court must then determine "whether the complaining party met its burden of demonstrating that its case is a rare circumstance in which the attorney misconduct amounted to irreparable and fundamental error." Id. And "[lin the context of unobjected-to attorney misconduct, irreparable and fundamental error is error that results in a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different." Id. Thus, in this case, because no objection was lodged at trial, a new trial would only be warranted if Pentair committed misconduct and the misconduct amounted to "plain error."

Trial courts must

On remand, the district court must clarify, at a minimum, whether it found that no misconduct occurred or rather whether it concluded that misconduct did occur but was harmless under the standards of Lioce in view of: (1) the nature of the claims and defenses asserted by the parties; (2) the relative strength of the evidence presented by the parties; (3) the facts and evidence that were either disputed or not substantively disputed during the trial; (4) the type, severity, and scope of any attorney misconduct; (5) whether any misconduct was isolated and incidental on the one hand or repeated and persistent on the other; (6) the context in which any misconduct occurred; (7) the relationship of any misconduct to the parties' evidence and arguments; and (8) any other relevant considerations...when serious and repeated attorney misconduct has demonstrably occurred, the district court's deference to the jury is more limited than if such misconduct had not occurred, and the trial court must carefully consider whether the misconduct led the jury astray and caused it to base its verdict upon something other than the evidence and the applicable law.

The case involves a products liability action against a manufacturer of swimming pool filters. An explosion had cost the plaintiff an eye. (Mike Frisch)

October 4, 2015 in Judicial Ethics and the Courts, Professional Responsibility, The Practice | Permalink | Comments (0)

Friday, October 2, 2015

Medical Bill Write-Offs Not Compensable

A decision from the Louisiana Supreme Court

We are presented with a question of first impression as to whether a writeoff from a medical provider, negotiated by the plaintiff‟s attorney, may be considered a collateral source from which the tortfeasor receives no set-off. Applying Louisiana law and the principles set forth in our Civil Code, we find that such a write-off does not fall within the scope of the collateral source rule. For the reasons set forth below, we affirm the lower courts‟ rulings.

The analysis

We decline to extend the collateral source rule to attorney-negotiated medical discounts obtained through the litigation process. We hold that such a discount is not a payment or benefit that falls within the ambit of the collateral source rule. First, allowing the plaintiff to recover an amount for which he has not paid, and for which he has no obligation to pay, is at cross purposes with the basic principles of tort recovery in our Civil Code. The wrongdoer is responsible only for the damages he or she has caused. La. Civ. Code art. 2315. The plaintiff has suffered no diminution of his patrimony to obtain the write-off, and, therefore, the defendant in this case cannot be held responsible for any medical bills or services the plaintiff did not actually incur and which the plaintiff need not repay. Because the evidence before the trial court was that Mr. Hoffman paid $950.00 for the MRIs, he is not entitled to recover any additional amount. Any recovery above $950.00 for the MRIs would amount to a windfall and force the defendant to compensate the plaintiff for medical expenses the plaintiff has neither incurred nor is obligated to pay.

(Mike Frisch)

October 2, 2015 in The Practice | Permalink | Comments (0)

Judge Who Required Indigents To Perform Public Service To Get Appointed Counsel Reprimanded

A public reprimand was imposed by the Tennessee Board of Judicial Conduct for misconduct described in The Tennesean as practices he will no longer engage in.

As part of the order, Holley agreed to the following items:

• To stop requiring defendants to perform public service work in order to be granted the right to have appointed counsel;

• He shall not as a requirement of probation or to obtain appointed counsel, allow defendants to make donations of items to certain charities specified by him;

• He shall not sentence defendants to jail time for contempt for failing to complete public service work previously ordered for the appointment of counsel;

• He shall not deny appointed counsel to individuals who have made bond, if they request appointed counsel, without regard for their personal financial means; or revoke the bonds of individuals who had made a bond solely because they requested appointed counsel;

• He shall not order cash only bonds in violation of established law;

• He shall not require the waiver of the constitutional right to counsel and a jury trial in order to grant a defendant’s request for a continuance;

• And he shall not refuse the request of defendants for appointed counsel without conducting an indigency hearing.

The judge has agreed to cease and desist these practices.

More on the controversy from WKRN Nashville. (Mike Frisch)

October 2, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Where There's A Will, There's A Conflict

The Nebraska Supreme Court has publicly reprimanded an attorney for a conflict of interest in representing both a testator and a potential beneficiary 

in 2009, Johanna Morrell began showing early signs of dementia, and on September 13, 2010, Morrell executed a will drafted by an independent attorney leaving her entire estate to her surviving siblings. On October 28, Lee Lorenz filed a petition for appointment of guardian-conservator, requesting that he be appointed guardian-conservator for Morrell. The petition was prepared and submitted by respondent. The formal charges state that respondent stated that he represented Morrell in this proceeding...

Respondent indicated that he represented Morrell in the initial guardian-conservator proceeding. Respondent also stated that he represented Lorenz in a meeting with the Department regarding allegations Lorenz was taking advantage of Morrell as a vulnerable adult and that he also represented Lorenz in a meeting with the Douglas County Attorney involving the same allegations.

The Court of Appeals had invalidated the will drafted by the attorney

[T]he admission of [respondent’s] affidavit shows that [respondent] had represented both [Morrell] and Lorenz, indicating that [Morrell] did not have advice from an independent attorney when she executed the March 2011 will. As the trial court found, Lorenz, through his attorney [respondent], sought to influence [Morrell] into changing her will.

Lorenz’ evidence also establishes that despite [respondent’s] knowing about the Department’s investigation into Lorenz’ financial exploitation of [Morrell] and despite a temporary guardian-conservator’s having been appointed, [respondent] imprudently drafted and executed the March 2011 will for [Morrell], giving all of her estate to the very person whom the Department was trying to protect her from. We find this conduct by a Nebraska lawyer to be deeply troubling.

The attorney admitted the misconduct.

This case is similar to (and far less serious than) the matter that the D.C. disciplinary system totally botched. (Mike Frisch) 

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

The Healing Effect Of Time

The Ohio Supreme Court has determined that a judge need not recuse himself in a proceeding involving a former client

Herman A. Carson, counsel for defendant Roscoe Campbell, has filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Brett M. Spencer from the above-captioned case, now pending for resentencing.

Carson claims that in 2005, Judge Spencer recused himself from a case involving defendant Campbell due to a “professional conflict.” Carson states that his client, defendant Campbell, believes that if a conflict existed in 2005, then the same conflict should mandate Judge Spencer’s disqualification from the underlying matter. Accordingly, Carson avers that he filed the affidavit of disqualification at the direction of his incarcerated client.

Judge Spencer has responded in writing to the affidavit, denying any bias or prejudice in this case. Judge Spencer explains that years prior to taking the bench in February 2005, he represented Campbell in a traffic matter. In August 2005, the judge recused himself from a case involving Campbell to avoid any appearance of sympathy for a former client. However, by 2012, when the underlying case commenced, Judge Spencer determined that given the amount of time that had passed since he had represented Campbell, his recusal was no longer necessary in cases involving Campbell. The judge is confident that when he was assigned this case in 2012, he addressed this potential conflict with Campbell and his then defense counsel.

The court concluded that the issue had been waived and was meritless

[The former client] made no attempt to show that Judge Spencer harbors bias against Campbell stemming from the judge’s representation of Campbell in an unrelated traffic matter over a decade ago. Additionally, “a judge’s voluntary removal from an earlier case does not, by itself, support disqualification from an unrelated case involving that same party or attorney.” In re Disqualification of Celebrezze, 135 Ohio St.3d 1218, 2012-Ohio-6304, 985 N.E.2d 499,

Judge Spencer has sufficiently explained the circumstances that caused him to recuse himself from Campbell’s 2005 case, and he reasonably concluded that recusal is no longer necessary.

(Mike Frisch)

October 2, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Remand In Doctor Discipline Appeal

A rather unusual medical discipline matter has led to a decision by the Maryland Court of Special Appeals.

During a disciplinary proceeding against appellee Mark Geier, M.D., the Maryland Board of Physicians publicly disclosed confidential medical information concerning Dr. Geier, his wife Anne, and their son David. David Geier was the subject of a separate disciplinary proceeding at the time of the disclosures.

The Geiers responded to the disclosures by accusing the Board, its 22 members, its administrative prosecutor, and two staff members of abuse of power, invasion of privacy, and acting maliciously and vindictively. They filed suit in the Circuit Court for Montgomery County.

In discovery, the Geiers attempted to uncover why the Board publicly disclosed their confidential medical information.


Dr. Geier is a physician who advocates the theory that certain vaccines cause autism in genetically susceptible children. Dr. Geier’s son, David Geier, is not a physician, but has assisted his father in his research concerning that theory. In a case concerning the admissibility of expert testimony, the Court of Appeals has held that “Dr. Geier’s genetic susceptibility theory is no more than hypothesis and conjecture, devoid of a generally accepted methodology to support it.” Blackwell v. Wyeth, 408 Md. 575, 618 (2009).

In protracted and contentious disciplinary proceedings, the Board has established that Dr. Geier committed numerous violations of the Medical Practice Act, HO §§ 14-401 et seq., in his treatment of autistic children...The Geiers contend that the Board has acted against them out of a desire to punish them and to discredit their research.

There were two appeals at issue. The court dismissed one and remanded the other .

Judge Friedman concurred

we find that the circuit court erred by not evaluating the Board of Physicians’ claim of deliberative process privilege by weighing the Board’s, and through it the public’s, need for the confidentiality of its internal processes as expressed in documents against the Geiers’ need to obtain these documents for use in this lawsuit. Maj. Slip Op. at 34-39. In note 23, we give the circuit court some guidance about how to conduct this weighing on remand, directing it to “assess the Board’s immunity claims, because the Geiers can establish no ‘need for disclosure,’ and nondisclosure cannot affect the ‘fair administration of justice,’ if an immunity insulates the defendants from liability or from suit.” Maj. Slip Op. at 39 n.23 (internal citations omitted). I wholeheartedly agree but would go one step further.

I would also direct that the circuit court consider whether every document sought by the Geiers and whose production is sought to be prevented by the Board through a claim of deliberative process privilege, is germane to the appropriate scope of discovery. The Geiers can have no need (and thus they can offer no counterweight to the Board’s, and through it, the public’s right to confidentiality) for documents that are not relevant, or that are no longer relevant, to their lawsuit. While my brethren prefer to leave that discussion for another day, in the circumstances and given the parties’ conduct of discovery so far, I would reach it today.

It is my view that the only documents relevant to this lawsuit are those that are reasonably calculated to lead to the discovery of admissible evidence related to: (1) the Board’s decision to issue the cease and desist order on January 25, 2012; (2) the decision to reveal the Geiers’ confidential medical information in that cease and desist order; and (3) the duration of time that the cease and desist order was publicly available. The Geiers are entitled to any non-privileged documents related to those three topics and if they find evidence of malice in them they are entitled to present that evidence to a jury. But that’s it. 

(Mike Frisch)

October 2, 2015 in Comparative Professions | Permalink | Comments (0)

Thursday, October 1, 2015

Crusade End In Disbarment

A recent order of disbarment is summarized on the web page of the California Bar Journal October 2015 edition

A State Bar Court hearing court judge found Missud culpable of misconduct that included moral turpitude and failing to obey a court order and recommended he be disbarred. Missud appealed, claiming the judge “lied” and “ignored all facts and laws to railroad” him. The State Bar Court Review Department upheld the disbarment recommendation.

Missud’s misdeeds began in 2004 when he purchased a home in Nevada through a company called D. R. Horton Inc. Missud and his wife had the option of purchasing through the company’s preferred lender, but only if the house was going to be their primary residence. Because the company thought the couple was going to use the home as a rental, it required them to use a different lender.

“Missud believed himself wronged by this and other aspects of the purchase process and began a crusade first against Horton, and later, the judiciary,” a three-judge review panel wrote in its opinion. Missud repeatedly and unsuccessfully sued Horton, the lender and six of Horton’s officers and employees. Between 2005 and 2011, Missud filed eight lawsuits in various courts alleging a conspiracy between Horton and numerous state and federal judges, private neutral parties, public officials, government agencies and opposing counsel.

More than two years into the litigation in Nevada state court, a judge issued a protective order and Missud agreed to remove facts from his various websites and stop making attacks on Horton. But he soon violated the order and admitted to making threatening communications to witnesses and counsel. As a result, the court found Missud in contempt, ordered him to pay $48,691.97 in fees and costs and dismissed the case. As of the date of the Review Department’s decision, he had not paid any portion of the fees.

In addition, a federal court judge declared Missud a vexatious litigant finding, among other things, that his claims against Horton “lacked any credible factual basis,” and that he planned to continue harassing Horton and its employees regardless of judicial rulings against him.

Missud also behaved disrespectfully during the disciplinary proceedings against him, proclaiming during his opening statement at trial: “There is no doubt that criminality runs rampant throughout the judiciary and that this Bar Court trial is being railroaded to lift my license.” During the five-day trial he spent hours railing against Horton, accusing judges and other public officials of corruption and four witnesses of lying, demanding the State Bar investigate them. He also threatened to have one of the State Bar prosecutors and State Bar Court judges criminally prosecuted.

(Mike Frisch)


October 1, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Removed Attorney Lacks Standing To Seek Judge's Disqualification

Although it found the trial judge's conduct troubling, the Ohio Supreme Court held that an attorney removed from a case lacked standing to seek disqualification of the judge.

Here, Judge Gaul removed Wolpert as counsel in the underlying case and assigned the public defender’s office to represent defendant. Because Wolpert is no longer counsel in the case, he is not one of the persons who may file an affidavit of disqualification.

The circumstances

Wolpert filed the affidavit after Judge Gaul issued entries removing Wolpert as defendant’s attorney in the underlying case, appointing the public defender’s office to represent defendant, and barring Wolpert from appearing in his courtroom until Wolpert “clearly demonstrates to the Court that he is receiving effective Mental Health Services.”

Judge Gaul has responded in writing to the affidavit, explaining that due to a series of recent events, he has concluded that Wolpert is currently unfit to practice law and unable to provide effective assistance to his clients. Therefore, the judge barred Wolpert from appearing in his courtroom.

Bad move because

a trial court’s blanket ban on an attorney’s practicing before the court generally violates this court’s exclusive jurisdiction over attorney-disciplinary matters.

The judge had had a brush with discipline himself, according to the web page of the Ohio Supreme Court.

In a 4-2 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that Gaul improperly attempted to initiate an “Amber Alert” for two witnesses who had failed to appear for the defendant’s scheduled trial, and made improper public statements in court and during an in-chambers meeting with the news media in which he asserted his belief that the defendant had intimidated or interfered with the missing witnesses when there was no factual evidence in the record to support those assertions. The Court agreed with the disciplinary board’s conclusions that Gaul’s actions constituted conduct prejudicial to the administration of justice, manifested bias against the defendant, and called into question his own impartiality and the fairness and impartiality of the judicial process.

The court stayed a six-month suspension.

In a separate matter, the court found that disqualification of judge was not required despite the fact that the judge had testified against the criminal defendant in a fee dispute. 

[Defendant] Patterson asserts that Judge Huffman testified against him in a fee dispute arbitration hearing and therefore an appearance of impropriety exists if she decides his pending posttrial motion. Additionally, Patterson avers that Judge Huffman demonstrated bias and prejudice against him during the underlying case. Judge Huffman has responded in writing to the affidavit, denying any bias against Patterson and vowing to decide the pending motion based on the law. For the following reasons, no basis has been established to order the disqualification of Judge Huffman...

Judge Huffman acknowledges that she testified at the fee-dispute hearing, which was held at the office of the local bar association. Judge Huffman further explains that she was subpoenaed to testify, she did not appear on behalf of or against either party, she had no interest in the outcome, her entire testimony lasted about ten minutes, and her testimony was limited to issues surrounding the number of court hearings in the underlying case and the amount of time Patterson’s former counsel had spent in court. The judge expressly denies that she testified about the quality of representation provided by Patterson’s former counsel. On this record, no reasonable and objective observer would question Judge Huffman’s impartiality merely because she was subpoenaed to testify about limited issues in a fee-dispute hearing conducted by a local bar association.

(Mike Frisch)

October 1, 2015 in Judicial Ethics and the Courts | Permalink | Comments (1)

Wednesday, September 30, 2015

Gift Cards And Basketball Tix

Disbarment but not permament disbarment should be imposed on an attorney, according to a recent report and recommndation of a Louisiana Hearing Committee.

The problems began with her employer

In January of 2013, ODC received a complaint filed by your former employer, Steven Mr. Chouest. The matter was assigned investigative file number 0030221 and is summarized as follows: Mr. Chouest states your legal work was not up to par and he terminated your employment with his firm. When Mr. Chouest decided it was time to let you go, you informed him of a serious personal problem related to your husband you had been battling for years. Mr. Chouest believed these problems were the likely cause of the poor performance at work. Mr. Chouest noted that your husband had been to his office previously and would threaten other office members while coming to the office to retrieve your jewelry to pawn. Mr. Chouest delayed discharging you, but after learning you intentionally misled him concerning other matters, the decision was made to let you go.


Since this time, you have intentionally interfered with Mr. Chouest's attorney/client relationship by attempting to have the clients discharge Mr. Chouest by offering them gift cards and basketball tickets to persuade the clients to allow you to handle their case. Also, your husband has left several angry voice mail messages for the clients attempting to have them retain your services.

The hearing committee found misconduct in a host of matters but concluded that permanent disbarment was too harsh

permanent disbarment should be reserved only for the most extreme, outrageous and deplorable cases. Respondent’s misconduct, in our view, does not rise to that level. Instead, this committee finds that the baseline sanction of disbarment is appropriate and warranted.

One of the lawyer members felt that permanent disbarment was the appropriate sanction. (Mike Frisch)

September 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Timing Is Everything

An attorney who continued to practice in the wake of a disciplinary suspension was suspended for two years and a day by the Oklahoma Supreme Court.

The court rejected his alleged subjective belief about the effective date of the initial suspension

Knight testified he was ignorant of the proper ethical standards. Ignorance may be intentional or willful. For example, it has been a truism in different areas of the law that ignorance of facts provides no defense where ignorance is intentional and deliberate in circumstances that would, or should, require an ascertainment of the facts. While Knight's testimony shows that his conduct appears to be an intentional ignorance of his ethical obligations, the evidence fails to show a bad or evil motive for his failure to timely withdraw from the proceedings. We decline to accept part of the Rule 6.4 admission as it relates to a violation of ORPC 8.4 and Knight's failure to withdraw in a timely manner when representing criminal defendants...

A lawyer has a duty to know both the Oklahoma Rules Governing Disciplinary Proceedings and the Oklahoma Rules of Professional Conduct. Knight stated that in 2014 he was not sure of the effective date of his suspension order. Knight did not contact the Bar in an attempt to discover the effective date of the Court's order.

We have explained for the purpose of Rule 3.3, a lawyer's professed subjective belief when representing a fact to a tribunal will be rejected when we determine the lawyer could not have reasonably believed what he or she claimed. Knight represented to the trial court that he was a licensed lawyer. He believed this was correct because he had the subjective belief that he was licensed until "the very, very end of August or - - or the first week of September." We do not believe that Knight, or any licensed lawyer of this Court, could reasonably believe Knight's method for calculating an effective date for a suspension order and seek to apply it indeterminately across a week to two-week period of time. Knight's defense of subjective ignorance does not excuse him from a Rule 3.3 prohibition of knowingly making a false statement of fact or law to a tribunal. We find no issue to prevent Knight's admission to Rule 3.3 violations.

ORPC 3.4(c) states that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. Knight's subjective belief concerning his Bar status is unreasonable after he received notification of his suspension.

We have reviewed the entire record before us. There is no public interest present in the proceeding that would act to limit the scope of Knight's Rule 6.4 admission beyond that discussed herein concerning Rule 8.4. We agree with the trial panel and deem the allegations of the Complaint admitted with the single exception of an admission that Rule 8.4 was violated by Knight's untimely motion to withdraw and his misrepresentation of his Bar status.

Three justicees dissented and would disbar. (Mike Frisch)

September 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)