Sunday, May 28, 2017


From the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge granted a motion for entry of default and imposed reciprocal discipline, suspending Brendan James Magee (attorney registration number 37875) from the practice of law for one year and one day, effective May 16, 2017. To be reinstated, Magee will bear the burden of proving by clear and convincing evidence that he has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law.

This reciprocal discipline case arose out of discipline imposed upon Magee in Pennsylvania. Magee was admitted to practice law in Colorado in 2006, but he was never licensed in Pennsylvania. Nevertheless, he represented to the public on his LinkedIn profile that he was licensed to practice law in Pennsylvania. Further, in 2014 and 2015, Magee represented his stepson and his wife in a high school expulsion matter, including at an expulsion hearing. He stated that he was the child’s “Attorney” but disclosed neither that he was the child’s stepfather nor that he lacked a Pennsylvania law license. Later, Magee failed to respond to a request for information from Pennsylvania disciplinary authorities.

For this misconduct, the Supreme Court of Pennsylvania suspended Magee from the practice of law for one year and one day. Magee’s misconduct constitutes grounds for reciprocal discipline under C.R.C.P. 251.5 and 251.21.

(Mike Frisch)

May 28, 2017 | Permalink | Comments (0)

Saturday, May 27, 2017

Government Lawyer Reprimanded For Rule 4.2 Violation

A reprimand from the Michigan Attorney Grievance Commission

The respondent and the Grievance Administrator filed a stipulation for a consent order of discipline, in accordance with MCR 9.115(F)(5), which was approved by the Attorney Grievance Commission and accepted by the hearing panel. The stipulation contains respondent's admission that he committed acts of professional misconduct in his position as Staff Attorney for the [Michigan] Department of Civil Rights, where he was to provide counsel to Department investigators.

Based upon respondent's admissions and the stipulation of the parties, the panel found that respondent directly contacted a discrimination complainant who was represented, in violation of MRPC 4.2. Respondent was also found to have violated MCR 9.104(1 )-(3) and MRPC 8.4(a) and (c). In accordance with the stipulation of the parties, the panel ordered that respondent be reprimanded. Costs were assessed in the amount of $757.71.

The charging document is linked here. (Mike Frisch)

May 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 26, 2017

From McLouth To Tonganoxie

A letter to two principals led to a published censure from the Kansas Supreme Court.

The parties in a post-divorce proceeding wanted their children to attend different schools.

The father had an order to send the children to school in McLouth; the mother wanted them in Tonganoxie.

On August 24, 2015, the respondent sent a letter to [McLouth principal] Mr. Johnson. In the letter, the respondent stated:

'This letter will serve to advise you that I represent [A.C.] concerning the enrollment of her children [] in the Tonganoxie School District. As you should know, the children, along with their mother, recently took up residence [in] Tonganoxie, Kansas 66086, which is located within the boundaries of USD 464. As a consequence of this new residence, my client has filed an application with the District court [sic] that has jurisdiction over this matter seeking to have a determination made about the district where the children will attend school moving forwards [sic]. Because my client's motion is pending, it is scheduled for a hearing on September 9, 2015, there is no order to resolve where they will be attending school. As I am sure you are aware, Kansas law provides that a student attend the school district of residency, which is why, pending a decision being made by the Court, that the children are enrolled in USD 464.'

Additionally, the respondent sent a nearly identical letter to the principal at the Tonganoxie Elementary School. The respondent acknowledged that the letters are not accurate and that a valid court order was in effect. The respondent explained that he did not carefully read the letters prior to sending them out. The respondent stated that he intended to inform the principals that a motion was pending and explain why his client was bringing the children to the Tonganoxie Elementary School.

On August 24, 2015, the father dropped the children off at the McLouth Elementary school. Prior to the start of school that day, the mother picked the children up from McLouth Elementary School and, presumably, took them to the Tonganoxie Elementary School. On August 27, 2015, the father again dropped the children off at the McLouth Elementary School. Again, the mother picked up the children from the McLouth Elementary School prior to the beginning of the school day and, presumably, took them to the Tonganoxie Elementary School.

The genesis of the bar case is described in the hearing panel report

On September 25, 2015, Judge Gary L. Nafziger filed a complaint with the disciplinary administrator's office regarding the respondent's conduct.

On November 4, 2015, the court resumed the hearing. The mother appeared with new counsel. The mother was called to testify and she testified that the respondent gave her legal advice that led her to disregard the court's order. The court concluded that the mother's violation of the court's order was induced by the respondent's legal advice.

The respondent disputes the statements made by his client which led to the court's conclusion. The respondent testified that prior to the time his client enrolled the children in school, he did not have a discussion with his client about the children's school enrollment in the Tonganoxie Elementary School. The respondent asserted that he advised his client that the court order required the children to attend school in McClouth. The respondent admitted, however, that the language of his letter confused his client.

Based on the respondent's response to the initial complaint as well as the respondent's testimony, it is clear that the respondent's client was a difficult client.

The court

In making its disciplinary determination, the court observes that the panel found respondent provided "inaccurate" information in his letters to the two principals, resulting in violations of KRPC 1.4(b) and 8.4(d). Merely providing inaccurate information can be consistent with its finding of his mental state that he "negligently" violated his duty. But the panel also found respondent violated KRPC 8.4(c) by engaging in conduct "that involved dishonesty when he falsely stated to the two principals that no court order regarding school attendance was in effect when, in fact, an order was in effect." (Emphasis added.)

Dishonest statements usually are inaccurate. But inaccuracy is not necessarily indicative of dishonesty, hence the questionable result of "negligent dishonesty." "Dishonest" has been defined as "disposed to lie, cheat, defraud or deceive." (Emphasis added.) The American Heritage Dictionary of the English Language 378 (1981). By contrast, misrepresentation—a form of misconduct that is also covered by KRPC 8.4(c)—can be merely negligent. See Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 604-06, 876 P.2d 609 (1994). As the American Bar Association Standards recommend a reprimand for conduct that involves dishonesty (Standard 5.13) as well as for conduct that is negligent (Standard 6.23), this court holds that respondent should be disciplined by published censure.

The video of the oral argument is linked here. (Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Troubling Allegations Will Be Heard

The United States Court of Appeals for the Fourth Circuit has held that an ineffective assistance claim arising from a 1988 guilty plea will be heard on the merits

In March 1988, Corey Lorenzo Woodfolk pleaded guilty in the Circuit Court for Baltimore City to attempted murder and a related firearm offense. Several months after his plea, Woodfolk sought relief from his criminal judgment on the ground that his trial counsel, who represented both Woodfolk and his codefendant, had brokered a deal with the prosecution, whereby Woodfolk would plead guilty to allow his codefendant to go free. Woodfolk alleged that his guilty plea resulted from his trial counsel’s disabling conflict of interest and therefore was constitutionally infirm.

Woodfolk’s troubling claim has evaded merits review throughout a tortuous history of proceedings in the nearly 30 years since his original plea, culminating in the 28 U.S.C. § 2254 proceedings giving rise to this appeal. In the proceedings below, the district court concluded that Woodfolk’s petition was both filed outside the one-year statute of limitations applicable to § 2254 petitions and procedurally defaulted by operation of an independent and adequate state procedural bar. We disagree.

The story

On June 14, 1987, Woodfolk and another young man, Cornelius Langley, were involved in an altercation in a parking lot in Baltimore, Maryland. During the altercation, an off-duty police officer observed Woodfolk draw a handgun. According to this officer, Woodfolk pulled the trigger, but the gun did not fire. Woodfolk and Langley were arrested, and Woodfolk was charged with attempted murder. Both Woodfolk and Langley retained attorney Michael Vogelstein to represent them.

Woodfolk later would testify that Vogelstein initially expressed optimism about Woodfolk’s chances of success at trial. But on March 4, 1988, while Woodfolk waited in a holding cell in the courthouse on the first day of his scheduled trial, Vogelstein advised Woodfolk that he had arranged an agreement with the State. According to that agreement, Woodfolk would plead guilty; Langley would provide a statement to the court inculpating Woodfolk, and Langley’s case would be placed on the stet docket,  allowing him to go free. Woodfolk, then 18 years old, was resistant to accepting the agreement, but he eventually acceded to Vogelstein’s advice.

That day, Woodfolk pleaded guilty to attempted murder and use of a handgun in the commission of a crime of violence. After accepting his guilty plea, the circuit court sentenced Woodfolk to ten years’ imprisonment, with five years suspended, on the attempted murder count and a concurrent term of five years’ imprisonment, suspended, on the handgun count, to be followed by five years’ probation. Woodfolk did not appeal his conviction based on his guilty plea.

On June 3, 1988, represented by new counsel, Woodfolk filed a motion for reduction or modification of sentence pursuant to Maryland Rule 4-345. In the motion, Woodfolk argued that his criminal judgment was tainted by Vogelstein’s disabling conflict of interest. At an October 1988 hearing, upon the court’s advice, Woodfolk withdrew the Rule 4-345 motion and orally moved for a new trial. The court granted Woodfolk’s motion for a new trial based on his conflict-of-interest allegations. Pursuant to an agreement between the parties, Woodfolk pleaded guilty that same day to attempted murder and wearing and carrying a handgun. The court sentenced Woodfolk to 15 years’ imprisonment, with all but 18 months suspended, on the attempted murder count and a concurrent 18 months’ imprisonment on the handgun count, to be followed by five years’ probation. Based on the time Woodfolk had already served in prison on these charges, the new judgment ended his active term of incarceration.

He violated probation with a federal conviction.


The parties seemingly agree that [attorney] Vogelstein represented both Woodfolk and Langley on related charges, and that Langley received a stet while Woodfolk was sentenced to a term of incarceration. The parties dispute, however, both the extent to which this apparent conflict impacted counsel’s representation of Woodfolk and the reasonableness of the remaining alternative strategies Woodfolk proffers. While we express no opinion as to the ultimate merits of Woodfolk’s claim, we reserve the appropriate resolution of these factual questions for the district court on remand.

For nearly 30 years, Woodfolk has contended that his guilty plea was procured by an attorney who served two masters, thereby betraying his duty of loyalty to Woodfolk in exchange for a favorable outcome for Woodfolk’s codefendant. No court, state or federal, has ever addressed the substance of these troubling allegations. Having found no time bar or adequate state procedural bar to preclude a review of the claim on its merits, we believe the time has come for a fair adjudication of Woodfolk’s claim.

Woodfolk is serving a 50 year sentence on unrelated federal charges. (Mike Frisch)

May 26, 2017 | Permalink | Comments (0)

Ignorance Excuses Tax Lapses

The Illinois Review Board recommends that charges of dishonesty be dismissed

The Administrator charged Respondent with engaging in dishonesty based upon his treatment of a portion of his employees' wages as non-taxable expenses, which resulted in his tax returns and wage statements underreporting employee compensation.

Following a hearing, the Hearing Board found that Respondent had committed some of the charged misconduct, and recommended that he be suspended from the practice of law for 60 days, with the suspension stayed in its entirety by a one-year period of probation.

The story on failure to pay taxes on wages

Respondent testified that he did not intend to evade his obligation to pay taxes on his employees' wages, and that he had little understanding of the specific types of withholding required from employees' wages. He testified that he knew that, as an employer, he had to pay some amount to the state and federal governments for a portion of the withholding from an employee's paycheck, and understood that he had some responsibility for payments that were not coming out of his employees' pay, but did not have a plan for how he was going to pay his taxes on the non-payroll amounts that were paid to Ms. Smith, Ms. Buhle, and Ms. Styx. He testified that he assumed that, at the end of the year, Ms. Heap and Mr. Zabel "would gather it up and figure it out," but that he did not "actually think about it."

The Administrator sought a two-year suspension but got bupkis

Other than the statements in Respondent's answer, the Hearing Board identified no other evidence to show that Respondent knew that the tax and wage documents contained false information, or that he understood the accounting and tax implications of his decisions. To the contrary, the evidence established that Respondent did not know how his decision to accede to Ms. Smith's request affected his pay records, and did not know that the records prepared by Ms. Heap over-stated expense reimbursement and understated his employees' wages. The evidence showed that Respondent had no involvement in his firm's record-keeping or in the handling of his firm's finances, which is how he has conducted his practice since 1985. The evidence showed that he did not know the logistics of how Ms. Heap paid employees, did not have access to her records, and never saw an employer return or wage statement filed on behalf of his office. While that may have been an irresponsible and foolhardy way to run his practice, it does not, in and of itself, establish the scienter necessary to support a dishonesty finding.

Consequently, the Hearing Board's findings to the contrary, which were based upon the statements in Respondent's answers that it incorrectly deemed to be judicial admissions, are against the manifest weight of the evidence, because they are not supported by the evidence of record in this matter.

In reaching this conclusion, however, we in no way condone Respondent's actions, particularly his poor communication with his bookkeeper, carelessness regarding how he paid his employees, and failure to personally review and ensure the accuracy of his tax documents. His choices exhibit exceedingly poor judgment. But as our Court has noted, a lack of good judgment does not necessarily constitute ethical misconduct. See In re Winthrop, 219 Ill. 2d 526, 546, 552, 554, 848 N.E.2d 961 (2006).

(Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Affairs Of The Heart And The Duty To Disclose

The Louisiana Attorney Disciplinary Board reviewed a hearing committee report and recommends  a stayed six-month suspension with one year of unsupervised probation and 20 hours of CLE for an attorney's failure to disclose an "intimate, romantic relationship" with an FBI agent/witness while serving as an Assistant United States Attorney for the Western District of Louisiana. 

The hearing committee had proposed an actual six-month suspension.

The board noted that the parties had agreed that the actual suspension should be imposed but exercised its independent authority to determine an appropriate proposed sanction.

Of particular interest here is the concurring opinion of Board Member Linda Bizzarro, who notes her view as a career prosecutor and retired AUSA that "discovery issues are better handled by the criminal court system and not by the disciplinary system."

Member Bizzarro notes that the trial judge found the relationship was irrelevant in the criminal case and that the Office of Professional Responsibility of the Department of Justice found no Rule 3.8 violation.

She also notes that the attorney stipulated to violations to bring the matter to a prompter conclusion.

She concludes

The exact parameters potential impeachment information under Giglio are not easily [prosecutors] proceed in unchartered waters, they must add to their consideration affairs of the heart.

Our prior coverage is linked here.

An "intimate,  romantic" relationship between an Assistant United States Attorney and her lead FBI agent in two cases has led to a proposed six-month suspension and probation by a Louisiana Hearing Committee.

The hearing committee found that the AUSA had failed to disclose the conflict in the investigations and prosecutions of Monroe Councilmen "Red" Stevens and Arthur Gilmore and a separate prosecution of Ouachita Parish Sheriff Royce Toney.

In the Toney case, the AUSA responded to the defendant's supposed "spreading rumors" about the affair (true rumors, it turns out) by making the defendant submit to a "perp walk."

The hearing committee also found that she lied to the United States Attorney when confronted.

The relationship was found to create a Rule 1.7 conflict of interest.

The Times Picayune had a 2008 story about Member Bizzarro. (Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Utah, California, Missouri, Kansas

The Kansas Supreme Court has disbarred an attorney in a matter where the hearing panel found

The respondent has played fast and loose with the truth in the disciplinary proceedings in Utah, in his voluntary resignation in California, and during the disciplinary proceedings here in Kansas. Despite the 1998 order suspending his license to practice law in California, during the Utah sanctions hearing, the respondent testified that he had not previously been disciplined. In the voluntary resignation of his license to practice law in California, despite the pending complaint in Utah, the respondent asserted that he had no disciplinary complaints pending in any jurisdiction. Finally, in correspondence with the disciplinary administrator's office, the respondent falsely claimed that J.B. was fully reimbursed before the bar complaint was filed. Regarding his misconduct in California, the respondent stated that the 'issue was resolved with the California bar,' when in fact, in 1998, his license to practice law in California had been suspended. Further, the respondent failed to report his 2000 reciprocal suspension in Missouri and his 2015 disbarment in Utah.

The Utah disbarment involved intentional misappropriation.

Though the rules allow for flexibility in most cases, there are presumptive sanctions for the most egregious types of misconduct. Disbarment is the presumptive sanction when a lawyer either "knowingly engages in professional misconduct . . . with the intent to benefit the lawyer . . . and causes serious or potentially serious injury to a party" or "engages in serious criminal conduct, a necessary element of which includes . . . misappropriation, or theft." Id. 14-605(a)(1), (2). And though disbarment is the harshest sanction available in the realm of attorney misconduct—"the proverbial professional death-sentence," In re Discipline of Corey, 2012 UT 21, ¶ 40, 274 P.3d 972—we have long said that intentional misappropriation of client funds is one of, if not the most "severe" kind of misconduct in the legal profession. In re Discipline of Grimes, 2012 UT 87, ¶ 15, 297 P.3d 564. Misappropriation of client funds undermines the relationship between attorney and client and damages the legal profession as a whole. Indeed, this court and others have not minced words when addressing it, describing it as "always indefensible," In re Discipline of Babilis, 951 P.2d 207, 217 (Utah 1997); something "we cannot tolerate," In re Discipline of Johnson, 2001 UT 110, ¶ 14, 48 P.3d 881; a form of "ethical dereliction," In re Blumenstyk, 152 N.J. 158, 704 A.2d 1, 4 (1997); "the gravest form of professional misconduct," Att'y Grievance Comm'n v. Pattison, 292 Md. 599, 441 A.2d 328, 333 (1982); and an act that "reflects poorly on the entire legal profession and erodes the public's confidence in lawyers." In re Disciplinary Action Against Rooney, 709 N.W.2d 263, 270 (Minn. 2006). As we explained in Babilis, a seminal Utah case in this area, intentional misappropriation of client funds "strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself." 951 P.2d at 217.

The court

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, the office of the Disciplinary Administrator recommended that the respondent be disbarred. The hearing panel also unanimously recommended that the respondent be disbarred. The respondent requested probation, that he be given an opportunity to retain or reinstate his license, and that he be allowed to prove to the community that he is a responsible person.

The day prior to the hearing before this court, the respondent notified the office of the Clerk of the Appellate Courts that he would not appear in person or by counsel. The clerk informed him that pursuant to Supreme Court Rule 212(e)(5) he was required to appear and that any response from him must be submitted in writing; the clerk gave respondent the clerk's office fax number.

At the hearing before this court, the respondent did not appear. The Disciplinary Administrator recommended that the respondent be disbarred. We agree with the recommendation of both the Disciplinary Administrator and the panel, and we hold that respondent is disbarred from the practice of law in the state of Kansas.

(Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Runnymede And Fat Bullies

A legal dispute involving the sale of a horse farm called Runnymede has been affirmed in part and remanded in part by the New Hampshire Supreme Court.

The farm was purchased with the understanding that it remain a horse farm in perpetuity.

The Devenports bought Runnymede Farm in 1998. The property housed a barn, an apartment, and stables, and included a grazing easement over adjoining lots. When the Devenports purchased the property, they promised to operate it as a horse farm in perpetuity, and to allow the former owner — not a party to this case — to maintain an office on site.

On July 15, 2010, the Devenports ran into Simmons — a real estate investor — at a local restaurant. Because they had been contemplating selling Runnymede, the Devenports asked Simmons if he knew someone who might be interested in purchasing the property. Simmons later told them that he was interested, and inquired into its purchase price. Bret Devenport responded that they were asking $800,000, and that they would only sell Runnymede if the buyer agreed to continue operating the property as a horse farm and to allow the former owner to maintain an office on site.

Simmons thereafter spoke with Gould — a retired Massachusetts attorney — about purchasing the property jointly with the intent to develop and/or resell it. Gould agreed, and the two created Fat Bullies “for the purpose of acquiring real estate for development or resale.” Simmons and Gould then contacted an attorney, who drafted an “option agreement” to be executed by the Devenports and Fat Bullies. The draft option agreement stated a purchase price of $700,000.

The Devenports sold Runnymede to another purchaser (the Perkinses) after learning that Fat Bullies did not intend to keep the horse farm going. 

This litigation consists of four separately filed actions, which the trial court consolidated. Fat Bullies first filed suit against the Devenports, alleging, among other things, breach of the option agreement. It thereafter filed two actions against the Perkinses alleging tortious interference with contractual relations — one seeking monetary relief, and the other seeking equitable relief. Finally, the defendants brought an action against Fat Bullies, Simmons, and Gould in which the Devenports asserted a fraudulent inducement claim, and the Devenports and Perkinses collectively asserted a claim under the Consumer Protection Act (CPA), see RSA ch. 358-A (2009 & Supp. 2016), among other things.

The court rejected some of the claims against Fat Bullies

We agree with the trial court and the Devenports that a course of conduct can violate the CPA. See, e.g., Milford Lumber Co. v. RCB Realty, 147 N.H. 15, 20 (2001). However, a series of acts only becomes a course of conduct violative of the CPA when the acts collectively constitute an “unfair or deceptive act or practice.” RSA 358-A:2; see Milford Lumber Co., 147 N.H. at 20 (concluding misrepresentations to procure materials and use of same misrepresentations to avoid payment collectively constituted “course of deceptive acts and practices”); E. Microwave, Inc. v. Am. Private Line Servs., Inc., No. 912850, 1993 WL 818931, at *2 (Mass. Super. Ct. Oct. 6, 1993) (concluding defendants engaged in a “course of conduct” violating Massachusetts Consumer Protection Act when they “deliberately siphoned” funds owed to plaintiff out of “sham corporation” in “an intentional scheme to defraud” plaintiff). Based upon our review of the record, we hold that the trial court erred in finding that Fat Bullies and Simmons engaged in a course of conduct that was “unfair or deceptive” as contemplated by the CPA. RSA 358- A:2.

Viewing Fat Bullies and Simmons’s misrepresentation in conjunction with the remainder of their course of conduct does not alter our determination. Even taken together, the acts of showing up unannounced with an attorney and an option agreement, not recommending that the Devenports obtain legal counsel, attempting to negotiate price, not explaining the meaning of the language contained in the draft agreement, threatening and attempting to enforce an option agreement, and pursuing a contentious litigation strategy would not “raise an eyebrow of someone inured to the rough and tumble of the world of commerce.” George, 162 N.H. at 129; see Barrows v. Boles, 141 N.H. 382, 390 (1996) (“‘[S]elfish bargaining and business dealings will not be enough to justify a claim for damages’ under the Consumer Protection Act.” (quoting Eastern Motor Inns, Inc. v. Ricci, 565 A.2d 1265, 1274 (R.I. 1989))); cf. Monotype Imaging Inc. v. Deluxe Corp., 883 F. Supp. 2d 317, 323 (D. Mass. 2012) (concluding that bringing of lawsuit regarding “a reasonable disagreement over the meaning of contract terms” was not consumer protection violation); Trenwick America Reinsurance Corp. v. IRC, Inc., 764 F. Supp. 2d 274, 308 (D. Mass. 2011) (considering litigation tactics part of course of conduct in violation of consumer protection law when offending party utilized “moving target [litigation] strategy” and engaged in “discovery abuses”). We cannot conclude that the subject conduct offends established public policy, is immoral, unethical, oppressive, or unscrupulous, or causes substantial injury. See Moran, 151 N.H. at 453.

The above conclusion also resulted in a finding that Fat Bullies had a basis to bring the tortious interference claim.

The web page for Historic Runnymede Farm.

Historic Runnymede Farm has long been a jewel of the East Coast equine community. The home of 45 stake-winning thoroughbred race horses—including Kentucky Derby winner “Dancer’s Image”—Runnymede has infused the seacoast with an air of sporting excitement and pastoral beauty since 1923.

The farm’s colorful owner, Peter Fuller—son of Massachusetts Governor Alvan T. Fuller—became a horse-racing legend during his lifetime, famous for his remarkable winning racing record. A champion boxer, Peter Fuller once sparred with Mohammad Ali and several other well known fighters. The story of his horse winning the 1968 Derby is an intriguing tale…one of great personal struggle, back room politics, and national controversy.

 In the years following Peter Fuller’s passing, an effort to preserve the farm’s important history took shape, and two local families have now partnered to refurbish and restore the property. With their commitment to the project, a renaissance has begun at Historic Runnymede Farm. A full-scale restoration is underway at the old barn with great care being taken to retain the original wood, fixtures, and ambience. Peter Fuller’s trophy room remains unchanged, looking exactly as it did the day that Peter Fuller won the Derby.

Today, Historic Runnymede Farm is proud to continue the farm’s long tradition of equestrian excellence, honoring the farm’s legacy as well as helping to energize the seacoast community’s long held passion for horses.

Wikipedia has the 1968 Derby story

Dancer's Image won the 1968 Kentucky Derby but was disqualified to last after traces of phenylbutazone were discovered in the mandatory post-race urinalysis. Second-place finisher Forward Pass was declared the winner. The controversy filled the sporting news of every media outlet in North America and was the cover story for Sports Illustrated magazine, which referred to it as the sports story of the year...

Owner Peter Fuller and the horse's handlers believed someone else may have been motivated to give the colt another dose of the drug and filed an appeal of the disqualification.

The Kentucky State Racing Commission examined the matter and ordered distribution of the purse with first money to Forward Pass. Fuller took legal action, and in December 1970 a Kentucky Court awarded first-place money to Dancer's Image.  That decision was overturned on appeal in April 1972 by Kentucky's highest court in Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298 (Ky. 1972).

Controversy and speculation still surround the incident, and the New York Times calls the ruling the "most controversial Kentucky Derby ever". Forty years after the disqualification, owner Peter Fuller still believed he was a victim of a set-up, due to his being a wealthy civil rights sympathizer from Boston who offended the Kentucky racing aristocracy by donating Dancer's Image's $62,000 prize for a previous victory to Coretta Scott King two days after her husband's murder. Fuller said he had anticipated that someone might interfere with his colt and asked Churchill Downs officials to provide extra security before the race, but they denied the request. As of 2008, the Churchill Downs media guide for the Derby still included the official chart showing Dancer's Image as the winner.

By 1986, phenylbutazone was so commonly used that in that year's Kentucky Derby, thirteen of the sixteen entrants were running on the medication.

(Mike Frisch)

May 26, 2017 | Permalink | Comments (0)

Not Utterly Refuted

The New York Appellate Division for the Second Judicial Department held that a legal malpractice action should not have been dismissed in a case where the defendant attorney's alleged legal malpractice involved prosecution of a legal malpractice claim

In this action to recover damages for legal malpractice, the complaint alleges that the defendants, Anthony P. Gallo, P.C., and Anthony P. Gallo (hereinafter together Gallo), who represented the plaintiff in a prior legal malpractice action against the plaintiff’s former attorneys, Demartin & Rizzo, P.C., and Joseph N. Rizzo, Jr. (hereinafter together Rizzo), negligently failed to respond to certain discovery demands by Rizzo, which resulted in the Supreme Court (Gazzillo, J.) precluding the introduction of evidence in the plaintiff’s legal malpractice action against Rizzo (4777 Food Serv. Corp. v DeMartin & Rizzo, P.C., 2013 NY Slip Op 33007 [U] [Sup Ct, Nassau County]; hereinafter the Rizzo order). The complaint further alleges that, as a result of this evidence being precluded, the court which issued the Rizzo order found that the plaintiff had failed to meet its burden of proof as to the element of damages sustained as a result of Rizzo’s malpractice.

The trial court found damages were speculative but 

Here, the Rizzo order does not utterly refute the allegations in the complaint, nor does it establish a defense as a matter of law. The order concludes, in part, that there was no proof of actual damages presented by the plaintiff, due to the plaintiff’s failure to respond to at least two of Rizzo’s discovery demands, which resulted in the preclusion of the damages evidence. The Rizzo order then states, referring to the precluded evidence, “[m]oreover, even if, arguendo the [c]ourt were to overlook that deficiency, its probative value is highly suspect” (4777 Food Serv. Corp. v DeMartin & Rizzo, P.C., 2013 NY Slip Op 33007 [U], *9). Contrary to the Supreme Court’s conclusion, this alternate holding, which constitutes dicta, was not a finding on the merits and did not utterly refute the allegations in the complaint against Gallo (see O’Connor v G & R Packing Co., 53 NY2d 278; Malloy v Trombley, 50 NY2d 46, 50; Pollicino v Roemer & Featherstonhaugh, 277 AD2d 666, 667-668). Accordingly, the Supreme Court should have denied Gallo’s motion pursuant to CPLR 3211(a) to dismiss the complaint.

(Mike Frisch)

May 26, 2017 in Clients | Permalink | Comments (0)

Suspension And Reprimand In Vermont

The Vermont Supreme Court has publicly reprimanded a former judge

This matter was initiated based on media reports of allegations that former assistant judge Paul Kane may have engaged in improper conduct regarding the assets of his uncle’s wife, Katherine “Kay” Tolaro. On February 22, 2016, the Board initiated an investigation into these allegations. On February 25, 2016, Mr. Kane agreed to step down from his position during the pendency of the investigation. After the Board’s initial inquiry pursuant to the Rules of Supreme Court for Disciplinary Control of Judges (hereinafter R.S.C.D.C.J.) 7(1), Attorney Ian P. Carleton was appointed to serve as Special Counsel to investigate the matter further. Attorney Carleton filed a formal complaint on June 27, 2016, alleging that Mr. Kane violated several Canons of the Vermont Code of Judicial Conduct. Mr. Kane retained Attorney Melvin Fink as his counsel and filed his answer on July 26, 2016. The Board held an evidentiary hearing on March 20-22, 2017.


Mr. Kane’s treatment of the loan repayments as his own, his lack of forthrightness with the estate administrators, his intentional misleading of attorneys Moore and French, and his hiding and withholding of the $10,000 all demonstrate that Mr. Kane failed to observe high standards of conduct such that his actions diminished the integrity of the Judiciary. Further, his intentionally misleading testimony at the November 5, 2015 hearing demonstrated a failure to act in such a way to promote public confidence in the integrity of the Judiciary. In fact, his continued failure to inform the court that he had given intentionally misleading testimony demonstrates a continuing failure to observe the high standards of personal conduct and a continuing failure to act in a way that promotes public confidence in the integrity of the Judiciary. Taken as a whole, Mr. Kane’s treatment of these loans during the time in which he was a candidate for, and holder of, the office of assistant judge demeaned the judicial office.

It was established by clear and convincing evidence that Mr. Kane intentionally filed a facially implausible claim. The circumstances demonstrate Mr. Kane’s conduct was intentional for several reasons. First, he claimed that he was providing services to Ms. Tolaro 159 hours out of 169 hours in a week, for 135 weeks, despite the fact that he had a full-time job and had previously indicated in emails that only Mrs. Kane was providing care for Ms. Tolaro. Second, even if the 159 hours was an accurate weekly estimate, the claim still attempted to double-charge the estate for his alleged services rendered by also claiming he was owed for management services provided five hours per week for 104 weeks. Third, the claim included a request to be reimbursed $31,827.51, which he had already received from the Jackson annuity. Fourth, the claim included the 159 hours of care for both himself and his wife, even though his wife was deceased and her estate was closed. Mr. Kane reviewed these figures and still signed the statement of claim.

Even if the Board where to find that these errors were mistakes, which the Board does not so find, it is undisputed that most of these errors have not been brought to the attention of the Probate and Civil Court, even though he filed an amended claim, and despite the fact that it has been months since Mr. Kane became aware of these errors...

It was established by clear and convincing evidence that Mr. Kane failed to protect Ms. Tolaro’s assets in the Jackson and Great American annuities during the time he was subject to the Code. It is not the Board’s responsibility to determine the propriety of Mr. Kane using his POA to take out the annuities and list himself as the beneficiary; that conduct occurred before he became subject to the Code. However, to the extent that Mr. Kane believed the proceeds of the annuities belonged to Ms. Tolaro’s estate, as he testified to the Board, he was obligated to provide the proceeds to the estate. Instead, he kept the Jackson annuity proceeds in his personal checking account between July and October 2014, when he was subject to the Code.


Special Counsel seeks sanctions to the fullest extent of the Board’s authority. He asserts that this can include an immediate suspension, a public reprimand, and the barring of Mr. Kane from serving as a judge for life. Mr. Kane contends that his resignation and a public reprimand briefly stating the violations of the Canons is sufficient...

In the Board’s unanimous judgment, the appropriate sanction for Paul Kane’s violation of Canons 1, 2A, 4A(2), and 5B(2) is the immediate and indefinite suspension from judicial office, a public reprimand, and a prohibition on his ever holding judicial office in Vermont. Although Mr. Kane and Attorney Fink represented that he has submitted his resignation to several officials, they did not provide the Board with proof that Mr. Kane had actually resigned. Therefore, an immediate suspension is appropriate. Moreover, because a formal complaint was filed, a public reprimand is required.

Brattleboro Reformer reported that he resigned his judicial office.

In his resignation letter emailed to the media, Kane noted that following Tolaro's death he was "attacked in the news with words such as stole/siphoned and bilked. These were all in reference to my handling of the affairs. ... Too much misinformation has been printed with seemingly no remorse. I am not going to argue my probate case nor my alleged ethical misconduct in the newspaper, but I will state that money from the Estate is intact and though I do not believe I breached any Ethical Canon, I will be stepping down from my elected position with great sadness. Though I was naive to some fiduciary responsibilities and did not fully understand and carry out all (Power of Attorney) statutes, I find it hard to believe that the press can print anything they want without repercussion."

Kane also wrote that his integrity, honesty and reputation have been challenged due to the perception that he had done something wrong in the handling of the Tolaro estate.

"I am beat emotionally/physically and financially. I do not think I have fight left in me. Therefore I am stepping down from my position of Assistant Judge to stem any further judicial dishonor that may be perceived," he wrote. "I do this with great sadness but without shame or guilt."

Seven Days (Vermont's Independent Voice) covered the probate case. (Mike Frisch)

May 26, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

California Unveils New Web Page

The web page of the California State Bar has been redesigned.

The State Bar of California announces the launch of its new website: The website redesign and overhaul comes at a time of ongoing reforms for the State Bar, and aims to provide greater accessibility for the public, attorneys and applicants.

With the agency’s primary mission focused on public protection, the new website provides easier access to attorney discipline information and legal resources. The site is mobile-optimized to reflect the reality that many Californians access the web primarily through mobile devices. The site aims to help the public better find information on how to file an attorney misconduct complaint and other attorney discipline system resources.

Features and highlights of the new website include:

Resources for the Public

- Information about how to file an attorney misconduct complaint

- Information about how to avoid fraud from people posing as attorneys, and how to file a complaint against non-attorneys for the unauthorized practice of law

- Multilingual information: complaint forms and instructions on how to file a complaint are now available in Spanish, Chinese, Korean, Vietnamese and Russian. Additional legal resource translations will also be available online soon. Google translate is also available on many legal resources pages for the public

- Information about disbarments, suspensions and other attorney discipline

- Multilingual intake hotline for complaints against attorneys (and for complaints about unauthorized practice of law): 800-843-9053

Information for attorneys licensed in California

- Revamped attorney records (known as the My State Bar Profile feature)

- Pro bono opportunities and other information about supporting legal aid

- Information about attorney ethics and other rules of professional conduct

- MCLE requirements and reporting

- Information about fees and licensing

- California Bar Journal and attorney discipline listings are now part of the main State Bar website

Easier access to information for greater transparency

- Public meetings of the Board of Trustees, as well as State Bar committees and commissions

  of Board of Trustees meetings

- Listings of disbarments, suspensions and other attorney discipline now housed directly on the State Bar website

- Public comment

- Public records

- News releases

Information for prospective attorneys

- Better access to registration tools and Bar Exam information

Information about access to justice

- Details about the State Bar’s work to promote access to justice and diversity in the legal system, including the approximately $30 million distributed annual directly to legal aid

- Resources for those who wish to donate their time or money to helping Californians access the legal system

- Contact information for the public for legal aid organizations that receive grants from the State bars

The State Bar welcomes feedback and suggestions for further website improvements that help achieve the agency’s public protection mission. Please provide feedback via this online survey.


The State Bar of California is an administrative arm of the California Supreme Court, protecting the public and seeking to improve the justice system since 1927. All lawyers practicing law in California must be admitted to the State Bar.

Here is the link to the new page for the State Bar Court.

While I always approach any change with trepidation - especially when I already know how to find what I am looking for to prime this pump (a phrase I invented, by the way) - the new California web page appears to improve access and transparency. (Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 25, 2017


The New Jersey Supreme Court has accepted the consent to.disbarment of former Chris Christie ally David Samson.

NJ,com  reported on his recent sentencing

Facing two years in prison for the shakedown of United Airlines in a bizarre scheme to get a more convenient direct flight to his South Carolina getaway home, former Port Authority chairman David Samson found a soft landing Monday.

U.S. District Judge Jose Linares stunned federal prosecutors by sentencing Samson to a year of home confinement, four years of probation and 3,600 hours of community service in his admitted strong-arming of the airline.

The 77-year-old former New Jersey attorney general will also be required to pay a $100,000 fine and wear a location-monitoring device.

"I did something wrong. I violated the law. I deeply regret it. I am trying to live my life to the highest moral standards," Samson said in court, apologizing to his family his friends and the public. "I violated the law. I deeply regret it."

Linares did not minimize Samson's guilt.

"This crime was ridiculous. It was a complete abuse of power. It was corruption that is not to be tolerated," said the judge.

His licence was suspended in July 2016 on an interim basis. (Mike Frisch)

May 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 24, 2017

Like Murder In The First Degree

The Tennessee Supreme Court ordered a five-year suspension  with one active year and probation of an attorney who had misappropriated funds and lied under oath in a deposition about prior bar discipline and bankruptcy.

As this Court stated in Bonnington, “the objective of achieving uniformity of punishment in disciplinary proceedings does not require that every named offense be accorded identical punishment. Like murder in the first degree, lawyer misappropriation of funds is subject to more than one punishment.” Id. at 570–71. We hold that neither Attorney nor the Board is entitled to relief from the Panel’s imposition of a five-year suspension.

The court's summary

This matter initially originated from a fee dispute between attorney Peter M. Napolitano (“Attorney”) and his client Gayle Connelly (“Client”). Client filed a complaint with the Tennessee Board of Professional Responsibility (“the Board”) regarding the fee dispute in 2008. The Board dismissed this complaint in 2010 without imposing any sanctions. Client sued Attorney over the fee dispute and, after Attorney was deposed in conjunction with the lawsuit, Client filed a second complaint with the Board in 2012. This second complaint alleged that Attorney had mishandled funds in his trust account and lied under oath. The Board prosecuted this second complaint, resulting in a hearing before a hearing panel (“the Panel”). The Panel determined that Attorney had committed ethical violations related to his trust account and by lying under oath. Accordingly, the Panel imposed sanctions against Attorney, including a five-year suspension of Attorney’s law license, with one year of active suspension. Attorney and the Board both sought review in circuit court. The circuit court modified the Panel’s sanctions in part but affirmed the five-year suspension.  Both Attorney and the Board sought review by this Court, with Attorney seeking a lesser punishment and the Board seeking disbarment. Additionally, both parties disagree with the Panel’s order of $7,500 in restitution to Client. We hold that the five-year suspension is appropriate and that the Panel did not err in ordering $7,500 in restitution. Accordingly, we affirm the circuit court’s judgment but modify it by adding the requirement of a practice monitor during Attorney’s probationary period.

The attorney represented the client in an employment dispute. They ended up in litigation against each other.

While under oath, [Attorney] was asked in the deposition if he had received any bar complaints related to his New York law license and [Attorney] falsely stated that he had received no complaints. A bar complaint had been filed against [Attorney] resulting in his suspension from the practice of law for five (5) years on January 27, 1994 by the New York Supreme Court Appellate Division for misappropriating $5,000.00 and providing false testimony under oath.

In the same deposition, [Attorney] was asked if he had ever filed a personal bankruptcy and he stated falsely under oath that he had not filed bankruptcy. In fact, [Attorney] had filed two (2) separate Chapter 7 Petitions for bankruptcy. The first Petition was filed on December 6, 1993 in the United States Bankruptcy Court for the Middle District of Tennessee. The second Chapter 7 Petition was filed on July 1, 2003 in the United States Bankruptcy Court for the Middle District of Tennessee. [Attorney] received a personal discharge in each bankruptcy.


We hold that, in the event Attorney is successful in having his law license reinstated after serving his first year of suspension, he must have a practice monitor for the remaining years that his suspension is probated. The practice monitor shall supervise Attorney’s compliance with trust account rules and accounting procedures.

(Mike Frisch)

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

Road Rage Suspension

A road rage incident by an attorney with prior discipline led to a three-month suspension from the New Jersey Supreme Court. 

The letter decision of the Disciplinary Review Board describes the basis for discipline

Although the events leading up to the incident are disputed, respondent admitted that, as a result of aggressive interactions on the roadway, he initiated a confrontation with twenty-one-year old Julia Bouclier. Although he claimed that Bouclier drove recklessly, he admitted that, after Bouclier stopped her vehicle, he exited his vehicle "probably wanting to hurt someone. I would say even worse than that."

Specifically, respondent retrieved a golf club from his trunk and swung the club at Bouclier’s vehicle "as if he were going to hit it," and then threw the club at her car as she attempted to drive away. The club struck Bouclier’s vehicle multiple times as it caromed about. He then retrieved the club and closely approached Bouclier’s vehicle. Respondent stipulated that, from close range, he could see and hear Bouclier crying and attempting to explain herself, but that he was unmoved. He stated that "this could have been my daughter and this is a lesson. You don’t go running people off the side of the road." Nevertheless, respondent then left fine scene without contacting the police, rationalizing that "nobody [was] bleeding." He admitted that "he lost control over his emotions and is remorseful." Ultimately, the police identified and contacted respondent, and he cooperated with the police investigation. Respondent also reported his charges to the OAE.

According to Bouclier, the incident with respondent began when she suddenly braked to avoid a deer. She claimed that respondent began to aggressively "tailgate" her vehicle, and attempted to improperly pass her. At some point, she stopped her vehicle at an intersection. Respondent then exited his vehicle, and began striking the trunk of her vehicle with his golf club. When she attempted to leave the scene, respondent threw the club at her vehicle, striking it again. Bouclier called the police, who interviewed her at the scene and photographed two large dents in her trunk and marks on her rear windshield. Bouclier was distraught, and reported being unable to sleep for fear that respondent might know where she lived and could hurt her and her family.

The sanction discussion noted other violations and discussed "violent lawyer" precedents in the Garden State.

Respondent has demonstrated a penchant for lack of respect for the administration of justice. He has criminally attempted to evade traffic points by improperly using another’s identification; has attempted to use a civil suit to leverage a former client into withdrawing a pending ethics grievance; and has now fled the scene of his violent criminal conduct before the police arrived. There is no mitigation to consider. Accordingly, the Board determined that respondent’s misconduct warrants a three-month suspension to protect the public and to preserve confidence in the bar.

My take: A longer suspension might better protect and preserve. (Mike Frisch)

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

New Jersey Suspends, Disbars For Sex Crimes

Three disciplinary matters before the New Jersey Supreme Court were resolved today in a single opinion

In these matters, the Court considers the discipline to be imposed on attorneys, with no previous disciplinary history, who pled guilty to sex offenses in which their intended victims were children ranging in ages  from nine to twelve. Under Rule 1:20-13(c)(1), the respondents’ convictions constitute conclusive evidence of their criminal conduct, as well as a violation of Rule of Professional Conduct 8.4(b), which proscribes commission of “a criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness as a lawyer.” The only task before the Court is to determine the appropriate discipline for each respondent’s ethical violations. The Office of Attorney Ethics (OAE) and the Disciplinary Review Board (DRB) recommended that the Court disbar each respondent.

Respondents Mark G. Legato and Regan C. Kenyon, Jr., each pled guilty to third-degree attempted endangering the welfare of a child. Legato admitted that he engaged in explicit online conversations with a person he believed to be a twelve-year-old girl. He also admitted to scheduling two in-person meetings with the girl, but did not appear at either. Unbeknownst to Legato, the girl was actually an undercover law enforcement officer. Following Legato’s guilty plea, the OAE filed a motion for final discipline before the DRB. In a unanimous decision, the DRB voted for his disbarment.

Respondent Kenyon admitted that over the course of approximately four months, he engaged in online conversations with a person he believed to be a fourteen-year-old girl. He sent her images of, and links to, hardcore adult pornography and arranged to meet the girl, but did not appear for the meeting. Kenyon was unaware that he was in fact communicating with an undercover law enforcement officer. Kenyon maintains that his conduct was the result of his addiction to pornography, for which he began treatment six days after his arrest. In a majority decision, the DRB voted to disbar Kenyon. Three members dissented, recommending instead an indeterminate suspension. In a separate dissent, one member recommended a one-year suspension.

Respondent Alexander D. Walter pled guilty to third-degree endangering the welfare of a child. He admitted during his plea colloquy that on multiple occasions, between December 1, 2010 and April 1, 2011, he masturbated in the presence of a nine-year-old girl, who moved into his home with her mother. He admitted that he masturbated in front of the girl for his own sexual pleasure while the two were alone in the family swimming pool.

Following review of the matter submitted on motion for final discipline filed by the OAE, seven members of the DRB recommended Walter’s disbarment. Two members dissented—one recommended an indeterminate suspension and one recommended a two-year suspension.

HELD: For respondents Legato and Kenyon, the Court imposes indeterminate suspensions from the practice of law, pursuant to Rule 1:20-15A(a)(2). The Court disbars respondent Walter, pursuant to Rule 1:20-15A(a)(1)...

JUSTICE ALBIN, DISSENTING as to respondents Legato (D-99-15) and Kenyon (D-100-15), expresses the view that the sexual exploitation or abuse of children—whether completed or, as in the Legato and Kenyon matters, attempted—is such an egregious violation of societal norms that no discipline short of disbarment will ensure public confidence in the bar or the judiciary’s governance of the bar.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion, except that he did not participate in the matter of respondent Walter (D-101-15; Sections I.C. and III.D).

The majority on sanction

Regarding Legato and Kenyon, there was no actual harm or contact to an actual minor, which would require disbarment. To be clear, we do not minimize the reprehensibility of Legato’s and Kenyon’s conduct simply because the children in the online chat rooms were actually undercover agents. We do, however, find a significant distinction between online and personal physical contact.

As to Walter

Finally, we address the disbarment of respondent Walter. On multiple occasions throughout a five-month period, Walter masturbated in the family pool in front of a nine-year-old girl who was under his care. Strikingly, in describing the course of events to his evaluating psychologist, Walter implied that while in the pool the “physical barriers broke down, and the two became too comfortable with each other physically.” We agree with the DRB’s assessment that this characterization demonstrates that Walter does not appear to take full responsibility for his actions, attempting to apportion blame to a nine-year-old child.

(Mike Frisch) 

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

Ohio Rules Ethnic Intimidation Charges Barred By Double Jeopardy

Dan Trevas on the web age of the Ohio Supreme Court

When two Portsmouth men accused of felony ethnic intimidation agreed to plead no contest to misdemeanor aggravated menacing crimes, the constitutional protection against double jeopardy barred the state from subsequently pursuing ethnic intimidation convictions, the Ohio Supreme Court ruled today.

Writing for the Supreme Court majority, Justice Sharon L. Kennedy concluded that the Scioto County Common Pleas Court was correct to dismiss charges against Melvin and Buddy Mutter after they were prosecuted in Portsmouth Municipal Court for misdemeanors, which were lesser included offenses of ethnic intimidation that stemmed from the same October 2014 incident.

The Court relied on a test developed by the U.S. Supreme Court in 1932 to determine if two separate crimes are essentially the same for the purpose of determining if the double jeopardy protection of U.S. and Ohio constitutions apply. Justice Kennedy noted the U.S. Supreme Court used “the Blockburger test” in a 1977 Ohio case, and the charges against the Mutters followed a similar pattern.

City Reduces Charges
The Mutters  originally were charged in Portsmouth Municipal Court with ethnic intimidation, a fifth-degree felony, and aggravating menacing, a first-degree misdemeanor. The city of Portsmouth dismissed Melvin Mutter’s ethnic intimidation charge and brought a new charge of “menacing by stalking” against him. Two weeks after the October 14 incident, Melvin Mutter pleaded no contest to both misdemeanor charges of aggravated menacing and menacing by stalking. He was sentenced to 180 days in jail with 150 days suspended, fined, and placed on probation.

In exchange for a guilty plea, Buddy Melvin’s charge of ethnic intimidation was reduced in municipal court to menacing by stalking. He pleaded no contest to both menacing by stalking and aggravated menacing, and  was sentenced to an entirely suspended 180-day jail sentence and placed on probation.

Less than a week after the Mutters concluded their municipal court cases, a Scioto County grand jury indicted the two for ethnic intimidation alleging they violated the aggravated menacing statute, R.C. 2903.21 “by reason of race, color, religion, or national origin of another person.”

The Mutters claimed the indictment violated their constitutional rights against double jeopardy. The common pleas court determined the misdemeanors the Mutters pleaded no contest to and felony charges brought by the state stem from the same incident and dismissed the case.

The Scioto County Prosecuting Attorney’s Office appealed the decision to the Fourth District Court of Appeals, which reversed the trial court’s ruling. The Fourth District ruled there was no evidence in the municipal court’s publicly available record to conclude the convictions for aggravated menacing and the indictments for ethnic intimidation arose from the same incident.

The Mutters appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

No Second Prosecutions Allows After Convictions
The Mutters argue that the Fifth Amendment, applicable to the state’s charges through the Fourteenth Amendment, and the nearly identically worded double jeopardy clause in Article I, Section 10 of the Ohio Constitution, barred the felony indictment. The Mutters argue the state is attempting a second prosecution for the same offense after conviction.

They maintained they negotiated pleas of no contest because they believed their pleas in municipal court would eliminate the prosecution of a greater offense for the same incident in common pleas court.

The state argued that the Portsmouth Municipal Court did not have the right to reduce Buddy Mutter’s felony ethnic intimidation charge to a misdemeanor, and that under the Blockburger test, ethnic intimidation and aggravating menacing are distinct crimes that can be prosecuted separately even if they stem from the same incident.

The Court ruled the U.S. Supreme Court has stated the double jeopardy clause protects against three abuses: 1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

The opinion stated the Blockburger test determines if two crimes contain the same “elements” and that a person’s conviction for the lesser included offense bars prosecution for the greater offense.

Ethnic intimidation, R.C. 2927.12, contains two elements, the Court explained. A person must be found to have violated one of five state laws: aggravated menacing, menacing, criminal damaging, criminal mischief, or telecommunications harassment. The second element is that one of those crimes was committed “by reason of race, color, religion, or national origin of another person.”

The opinion found that regardless of a lack of information in the municipal court records, the state conceded at oral argument before the court that the ethnic intimidation and aggravated menacing charges arose from the same incident.

Under the Blockburger test, a lesser included offense is considered to be the same as the greater offense if the lesser offense had no additional element that required additional proof for a conviction. The proof required to charge and convict a person with ethnic intimidation is enough to charge and convict someone of aggravated menacing. As a result, in this case, ethnic intimidation and aggravated menacing are the same crime when considering double jeopardy, the Court concluded.

The opinion explains the U.S. Supreme Court applied Blockburger in the 1977 Brown v. Ohio case in which Ohio attempted to prosecute a defendant for the greater offense of auto theft after he had already pleaded guilty to the lesser offense of joyriding. All the proof gathered to charge the defendant for auto theft could be used to convict for joyriding and no additional proof was needed to convict for joyriding, making them the same crime for the purposes of double jeopardy.

The Ohio Supreme Court found the facts in the Mutters claim closely mirror those in Brown. It concluded the same way joyriding was the lesser included offense of auto theft, aggravated menacing and ethnic intimidation are the same crime.

“Relying on the analysis in Blockburger and Brown, we conclude that in this case, aggravated menacing is a lesser included offense of ethnic intimidation as charged in the indictments. Therefore, we find that the Mutters’ aggravated-menacing convictions are the same offenses as those charged in the indictments brought against them in the Scioto County Court of Common Pleas.”

The Court reinstated the trial court’s ruling to dismiss the charges.

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

Chief Justice Maureen O’Connor concurred in judgment only.

2016-0440 and 2016-0441. Sate v. Mutter, Slip Opinion No. 2017-Ohio-2928.

Video camera icon View oral argument video of this case.

(Mike Frisch)

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

One Less Friend

The web page of the Colorado Presiding Disciplinary Judge reports a recent consent sanction of a 90-day stayed suspension and probation

Crone represented a close friend in a civil suit in 2015 concerning a contract dispute. The contract contained a binding arbitration clause. Crone and opposing counsel agreed to participate in mediation instead of arbitration to save time and expenses. Thereafter, Crone completed no further work on the case. He reported that his anxiety about how to manage the case rendered him unable to communicate with his client.

In January 2016, Crone told his client that the case had been set for mediation in late May, when it was not, and then met with the client for several hours to prepare for the mediation. After telling his client that the mediation was unexpectedly cancelled, his client hired another lawyer. Crone then told his client that he had misrepresented the status of the mediation, refunded all of his client’s attorney’s fees, and paid him additional compensation.

(Mike Frisch)

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

Tuesday, May 23, 2017

"Easy To Work With"

An Arkansas attorney has been suspended on an interim basis.

The suspension order does not disclose the reasons other than to state that his continued practice poses a substantial threat of serious harm to clients and the courts.

KFSM 5 reported on criminal charges against the attorney in December 2015.

A Benton County lawyer is behind bars, after he was arrested on suspicion of multiple misdemeanor charges.

Bryan Powell, 41, was booked into the Benton County Jail on Tuesday afternoon after the sheriff's office arrested him on suspicion of patronizing a prostitute and two misdemeanor charges of unlawful possession of a firearm.

According to the sheriff's office, a confidential source approached deputies stating that the source knew of an attorney that would trade services and represent them in their case.

The source had been arrested for prostitution in a previous investigation.

The source, working with law enforcement, began texting Powell. The lawyer then stated that he was "easy to work with," and liked "female domination," the incident report stated.

When the source asked Powell if he could represent the source in a case, the lawyer replied, "I think we have established I'm taking care of you," according to the report.

The two set up a location to meet in Springdale.

He was arrested shortly after driving to the meet location parking lot and driving off.

Powell was also found with a loaded .380 semi-automatic Smith and Wesson in his pocket and a loaded 9mm semi-automatic Beretta in his vehicle glove box. He did not have a concealed carry license, the report stated.

Upon running a background check on Beretta's serial numbers, it was determined to being a stolen gun out of Benton County in a 2013 case. Powell received an additional theft by receiving charge, according to the report.

He was released this morning on a felony citation, and his court date has been set for Feb. 1, 2016.

(Mike Frisch)

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

Censure For Driving Through Nebraska With A Reported .392 BAC

The web page of the Colorado Presiding Disciplinary Judge reports

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Kristin Lee Knotts (attorney registration number 35918), effective May 18, 2017. Her public censure is subject to twelve months of monitored sobriety and relapse prevention group therapy. any failure to comply with these conditions constitutes grounds for additional discipline.

In December 2014, Knotts, who was on her way to Colorado, was pulled over in Nebraska for driving erratically. Knotts took a portable breath test, which recorded a blood alcohol count was .392. Subsequent tests were inconclusive. Knotts underwent a substance abuse evaluation in Colorado in summer 2015, where it was determined that she exhibited signs of substance use disorder. Thereafter, Knotts failed to appear for two court dates in her Nebraska case, but she was unemployed at the time and had difficulty returning to Nebraska. Knotts eventually pleaded guilty to a DUI, serving ninety days in jail.

The Office of Attorney Regulation Counsel asked Knotts to undergo an independent medical evaluation and tried on several occasions to schedule the examination, but Knotts failed to comply. She also did not reply to disciplinary counsel’s report of investigation.

This story in the Daily Sentinel (Grand Junction Colorado) involves unrelated (and dismissed) criminal charges against an attorney from Colorado with the same name.

I cannot confirm that it is the same person. (Mike Frisch)

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

Confidentially Yours

An attorney was reprimanded by the District of Columbia Board on Professional Responsibility for violating his duty of confidentiality to one client in the course of representing another

The Board agrees with the Hearing Committee that a Board reprimand is appropriate because the record reflects that Respondent disclosed obvious client secrets, and still fails to appreciate the wrongfulness of his conduct. Instead, he attempts to minimize his misconduct by arguing that Disciplinary Counsel already knew the information Respondent disclosed, there was no disclosure outside the parties and the Hearing Committee in the Vohra matter, and Respondent obtained a good result for the client at issue. None of these arguments excuse Respondent’s conduct. Thus, the Board issues this reprimand to Respondent to encourage him, and other Bar members, to focus on the importance of safeguarding client secrets, and to exercise due care when making statements that might result in the disclosure of client secrets.

Footnote 4

Disciplinary Counsel argues that the sanction should be more severe than a reprimand because Respondent made additional disclosures of client secrets in its brief to the Board. However, the Board cannot engage in the fact-finding necessary to determine whether Respondent disclosed additional client secrets. We note that Respondent made client-related disclosures during oral argument before the Board that caused the Board Chair to remind Respondent that the argument was a public proceeding. However, as with the disclosures in his brief, there has been no adjudication that these disclosures were unauthorized disclosures of client secrets, and thus, we cannot find that Respondent made unauthorized disclosures in his brief or at oral argument.

The case is In re Timothy J. Battle and can be accessed at this link. (Mike Frisch)

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