Saturday, November 28, 2015
The Virgin Islands Supreme Court has held that the Superior Court system of appointing counsel violates the governing statute.
Two members of the Virgin Islands Bar—Justin K. Holcombe, Esq., and Robert L. King, Esq.—appeal from Superior Court orders which appointed them to serve involuntarily as counsel to indigent criminal defendants. In the alternative, the attorneys also seek writs of mandamus and prohibition against the judges who issued the orders, the Honorable Adam G. Christian and the Honorable Denise M. Francois (collectively the “Nominal Respondents”). For the reasons that follow, we accept jurisdiction, vacate the respective appointment orders, and direct the Superior Court to appoint counsel for indigent defendants in a manner that complies with Virgin Islands law by March 1, 2016, failing which this Court may exercise its statutory and inherent powers to establish procedures for appointment of counsel to ensure that members of the Virgin Islands Bar are not systematically conscripted to provide indigent defense in violation of Virgin Islands statutory law.
The court concluded that the orders of appointment in the two unrelated matters were appealable and not moot.
On the merits
Under these circumstances, we conclude that King and Holcombe’s requests for writs of mandamus and prohibition are justiciable if construed as a request for supervisory writs of mandamus and prohibition. Clearly, Holcombe and King raise an important issue of first impression that impacts all criminal cases in the Territory involving indigent defendants. Moreover, Holcombe and King allege that the appointment process utilized by the Superior Court violates the procedure codified by the Virgin Islands Legislature in 5 V.I.C. § 3503(a), and is thus tantamount to a usurpation of power.
The court discusses the appointment power in the Virgin Islands and finds that the procedures here failed to meet statutory requirements
We agree with Holcombe, King, and the Bar Association that the phrase “panel of private attorneys” cannot encompass every private-sector member of the Virgin Islands Bar, even with limited exceptions for members of the Commission of Bar Examiners and the Board on Professional Responsibility. The word “panel,” by its very nature, contemplates a smaller subset of a larger group.
A hopeful note
We are confident that, going forward, the Virgin Islands will join virtually every other United States jurisdiction in permitting the indigent defense function to be performed by qualified volunteers, whether they be attorneys employed by the Office of the Territorial Public Defender or private attorneys who have willingly joined a panel. We recognize, however, that given the high volume of criminal cases involving indigent criminal defendants, it may not be possible for the Superior Court to transition immediately from the current system of involuntary appointments to a voluntary system. In addition to actually creating a panel—which would necessarily include publicizing its existence and establishing a process for accepting applications—other ancillary issues would also need to be addressed. For example, in its amicus curiae brief, the Bar Association notes that the Virgin Islands Judiciary will need to consider (1) the minimum experience, if any, that should be a prerequisite to joining the panel; (2) whether to establish one panel or tiered panels based on the seriousness of the offense; (3) the rate of pay for the attorneys who have volunteered to accept appointed cases from the panel; and (4) how to proceed in the event the number of attorneys who join the panel is insufficient to provide services to all indigent defendants...
Because the Superior Court’s practice of appointing private attorneys from a list of all members of the Virgin Islands Bar to serve involuntarily as criminal defense counsel violates this statute, we vacate the Superior Court’s December 30, 2014 and July 9, 2015 appointment orders, but shall stay enforcement of our decision until March 1, 2016, with respect to all attorneys—other than Holcombe and King—who are otherwise not exempt from appointments under the Superior Court’s current practices, so that the Superior Court may establish and maintain a panel of attorney volunteers in compliance with section 3503(a). If the Superior Court fails to do so prior to this deadline, this Court shall consider the request of Holcombe, King, and the Bar Association to establish procedures in the first instance ensuring that the appointment process in the Superior Court complies with Virgin Islands law.
The court thus vacated the appointments in both cases (Mike Frisch)
Friday, November 27, 2015
Justice Botsford of the Massachusetts Supreme Judicial Court approved findings that an attorney had charged excessive fees in a probate matter and imposed a reprimand in an order that does not disclose the attorney's identity.
The respondent was admitted to the Massachusetts bar in 1988. From approximately 2002 to the present, she has worked as a solo practitioner, with about twenty-five to thirty per cent of her practice consisting of probate matters. In May of 2002, the respondent prepared a healthcare proxy, a durable power of attorney, and a will for her client, who executed the documents that month. The respondent was named in them as the healthcare agent, the attorney in fact, and the executrix of the client's estate, and was also to be the attorney for the estate. The will provided for two charitable bequests and, after directing the executrix to sell the client's personal property, left the remainder of the estate to a friend of the client and children of other friends.
The client died in 2006.
The attorney served as executrix of the estate worth $1.2 million and charged over $134,000 in fees.The probate court approved the fees.
Bar Counsel filed charges and
Although the Probate Court accepted the amended first and final account, the hearing committee found that the fees that the respondent charged as executrix and as attorney were clearly excessive. In reaching this determination, the hearing committee implicitly appeared to accept that the respondent's hourly rates were reasonable, but nevertheless concluded that the number of hours she spent on the estate was unreasonable. It concluded that a reasonable total for both executrix and attorney services for an estate of this size would have been approximately $60,000-$65,000 rather than the $134,437.50 that the respondent had charged and received. In particular, with respect to her executrix fees, the hearing committe~ noted that the respondent charged the estate more to sell the furniture and furnishings than their value of $15,410, including charges for multiple trips to consignment shops and a $4,644 consignment fee. The respondent also spent and charged for two internet car listings. After charging the estate for three hours to clean out a safety box and locate a cemetery deed, the respondent subsequently charged the estate approximately four additional hours to verify that the safety deposit box was empty and to close it. Additionally, the respondent made twenty-four trips from her home or law office to the testatrix's condominium.
With respect to legal fees, the respondent charged more than thirty hours to prepare and file the first and final account for the Probate Court; the hearing committee found that a reasonable amount of time for this task would have been approximately four to five hours. Despite being able to mail a petition to the Probate Court, the respondent instead charged three hours to file the petition for approval of the court in person, including her travel time. Additionally, the respondent spent approximately twenty-one hours preparing estate tax returns even though the respondent has an LL.M in tax law and the task could have been performed in under five hours using tax preparation software.
I appreciate that none of the individual fee amounts referred to in the preceding paragraph is outrageously or even remarkably high; the same is true of the fee total of $134, 437.50, ·particularly when viewed in light of the total value of the client's estate. But what is "clearly excessive" obviously must be considered in a particular factual context, and when evaluated in light of the specific facts presented here about the nature of this client's estate, I conclude that the fees were clearly excessive...
Turning to the nature and length of the respondent's professional relationship ·with her client, I accept that during the final years of the client's life, the respondent worked closely with her and, it appears, the client put great trust in her. But to some extent, the close relationship between attorney and client, and in particular the respondent's familiarity with her client's home, property, and assets overall, support the hearing committee's and board majority's conclusion that the many hours spent by the respondent in collecting and disposing of client's personal property, as well as in preparing the final account and estate ta.'\: return were grossly excessive. Finally, with respect to the respondent's experience and reputation, the factor does not appear particularly relevant or helpful to her position. As stated, the evidence shows this was a relatively simple estate that did not require special or particular skills to administer. The respondent's advanced degree in taxation and her apparent experience in administering estates argue in favor of requiring less rather than more time to administer this one.
in the present case, the evidence indicates that from when she first began to represent the client in 2000 until the client's death in 2006, the respondent committed herself to providing the client with attentive, competent legal services and to make sure the client's needs were met. This is not a case with any evidence of bad faith or overreaching on the respondent's part, nor one involving charges of disciplinary rule violations in addition to the fee issue. Nor is there any aggravating factor of prior discipline: the respondent has none. The amount of professional time the respondent spent on this estate was clearly excessive, but there is no suggestion that she charged the estate for more hours than she actually devoted to the tasks that were listed. Finally, as a result of the settlement with the beneficiaries regarding the first and final account and the fees charged, the respondent paid each of the contesting beneficiaries $10, 000 from her personal funds. In all the circumstances, I conclude that an admonition, with the additional requirement that the respondent attend a continuing legal education course on estate administration to be approved by bar counsel, is not markedly disparate and is the appropriate. sanction.
The court held that the probate court's approval of the fees did not preclude discipline and that testimony concerning the wishes of the client that her treasured possessions find a good home did not alter its conclusions. (Mike Frisch)
Thursday, November 26, 2015
The Minnesota Supreme Court imposed a 60-day suspension of an attorney
The petition alleged that Kurzman asked a question during a deposition that assumed the witness had been accused of sexual misconduct with minors without a good faith basis, failed to provide a copy of a client’s file for an unreasonable period of time, failed to submit records to the court as directed, and provided materials from multiple clients’ files to another client. We referred the matter to a referee.
The question was asked of a court-appointed parenting consultant.
During the evidentiary hearing before the referee, Kurzman testified that prior to the deposition he recalled that M.S. had been accused of sexual contact with minors. However, Kurzman had no evidence to support that recollection. The referee found that Kurzman’s testimony was not credible, that the deposition question “appeared to be intended to embarrass and humiliate” M.S., and that the question was asked without a good faith basis.
Misconduct was found in other matters.
Although comprised of relatively minor violations, Kurzman’s disciplinary history is extensive. Since Kurzman joined the Minnesota bar in 1972, he has been disciplined 10 times for violating 19 provisions of the professional rules, some multiple times. Between 1994 and 2013, the Director privately admonished him eight times. In 2007, Kurzman was placed on private probation. In 2010, we publicly reprimanded him for trust account recordkeeping violations and placed him on supervised probation for 2 years.
The deposition misconduct took place while the attorney was on probation
The law is clear: misconduct while on probation is an aggravating factor, whether the rule violations are the same or different...
Considered together, Kurzman’s rule violations were serious and weighty. Kurzman’s misconduct consists of two counts arising out of separate incidents that occurred over the course of several years. Asserting without a good faith basis that M.S. had been accused of sexual misconduct with minors was serious misconduct. In addition, Kurzman failed to submit records to the court as directed or to seek an extension of the deadline, failed to provide a client her complete file for six months after being discharged, and provided materials from other clients’ files to a client, for a total of six rule violations. This is a pattern of misconduct.
He is not required to petition for reinstatement. (Mike Frisch)
In a 4-3 decision, the Missouri Supreme Court overturned a first-degree murder conviction based on a Brady disclosure violation.
The court had appointed a special master to take evidence in the high-profile case, which involved the 1991 murder of two sisters thrown off the Chain of Rocks Bridge over the Mississippi River.
the master issued a report in which he found that the state had violated Brady by failing to produce evidence favorable to Mr. Clemons that a witness observed an injury to Mr. Clemons’ face shortly after a police interrogation and that the witness documented his observations of the injury in a written report that was later altered by the state. The master determined that the state’s failure to disclose this evidence was prejudicial to Mr. Clemons because it could have led to the suppression of Mr. Clemons’ confession, a critical part of the state’s case against Mr. Clemons. Substantial evidence supports the master’s findings that the state deliberately violated Brady and that, in the absence of the undisclosed material evidence, the jury’s verdicts are not worthy of confidence. Accordingly, this Court vacates Mr. Clemons’ convictions and sentences for first-degree murder.
The majority holding
Mr. Clemons was denied a fair trial not only because the state’s suppression of the Weeks evidence prejudiced Mr. Clemons at the hearing on the motion to suppress his confession but also because the jury was not able to hear Mr. Weeks’ testimony in determining whether his confession was voluntary. In this regard, even if the trial court did not suppress Mr. Clemons’ confession, it is reasonably probable that the Weeks evidence would have led the trial court to rule against the state’s motion in limine and allow defense counsel to argue during closing arguments that Mr. Clemons’ confession was coerced. The trial court’s rationale for prohibiting this argument was that there was no evidence at trial that Mr. Clemons’ had been beaten to confess. Mr. Weeks’ credible testimony would have provided evidence to support the reasonable inference that he was beaten.
The central question addressed in the principal opinion is whether, under Brady v. Maryland, 373 U.S. 83 (1963), Clemons’ claim that the state failed to disclose Probation Officer Weeks’ subjective impression of Clemons’ physical condition – an impression that Weeks formed several hours after Clemons claims two police detectives beat him into giving an audiotaped statement – is a sufficient ground to vacate Clemons’ convictions and death sentences now, more than 20 years after his trial. It is not. There was no failure to disclose in this case. The state produced to the defense Weeks’ name, his job, and the document on which Weeks supposedly noted this observation long before trial. More importantly, Clemons already knew about Weeks’ impression because Weeks remarked to Clemons about it at the time.
Even if the state had not disclosed all of this before trial, which it did, Clemons fails to show the type of nondisclosure that, under Brady, requires relief. Brady only applies to two types of evidence: exculpatory evidence concerning guilt or punishment, and impeachment evidence concerning the credibility of a witness who might be determinative of guilt or punishment. Weeks’ evidence is neither. Weeks’ subjective impression of Clemons’ appearance formed hours after Clemons’ interrogation ended has no bearing on whether his audiotaped statement was voluntary. Instead, as Special Master Michael Manners found (and the principal opinion agrees), Weeks’ evidence merely impeaches the credibility of other ancillary witnesses who corroborated the detectives’ denials at the suppression hearing by testifying that Clemons did not appear injured in the hours and days after he gave his statement. Accordingly, Weeks’ evidence is not the sort of evidence to which Brady applies.
Finally, even if Weeks’ evidence qualified as exculpatory or impeachment evidence under Brady, Clemons is not entitled to relief unless that evidence was material, i.e., unless there is a reasonable probability that the jury’s verdicts would have been different had the evidence been disclosed. To establish materiality, Clemons makes a two-step argument: (1) there is a reasonable probability that, if the trial court had heard Weeks’ evidence, it would have suppressed Clemons’ audiotaped statement; and (2) there is a reasonable probability that, if the jury had not heard Clemons’ statement, it would not have convicted him and recommended that he be sentenced to death. Any fair reading of the Master’s Amended Final Report (the “Report”) shows that the Master never reached this second step and, if he had, that Clemons’ claim would have failed.
The 1997 opinion affirming the conviction is linked here.
American Justice aired this episode about the case in 2005. (Mike Frisch)
The Iowa Supreme Court ordered a 30-day suspension of an attorney, upholding the conclusions of the Grievance Commission that sustained some charges of misconduct while rejecting others .
We agree with the commission that these alleged violations were not established by a convincing preponderance of the evidence. Nelissen’s reasons for seeking continuances were justified, and the continuances were brief and nonprejudicial. We also cannot conclude that Nelissen’s communication with Almburg was so deficient as to amount to an ethical violation. Rather, we concur in the following assessment by the commission:
The emails reflect a stressed client taking an active interest in her child support modification matter and asking pertinent questions about the proceedings. Nelissen was not always prompt in responding to [Almburg’s] emails. Nevertheless, the record shows that Nelissen normally responded to emails from [Almburg] the same day or within one or two days. Similarly, we agree with the commission that an improper $12.61 late charge on a “pre-bill” that was subsequently removed does not constitute a violation of rule 32:1.5(a).
However, we uphold the violations that the commission found. Rule 32:1.5(b) requires that “[a]ny changes in the basis or rate of the fee or expenses shall also be communicated to the client.” Id. r. 32:1.5(b). In February 2012, Nelissen increased her hourly rate by 33⅓% to $200 per hour. Yet she did not inform her client of this change, other than by using the new rate in her billing. This oversight violated rule 32:1.5(b). More serious are the trust account violations. The commission found, as do we, that Nelissen breached various ethical rules relating to trust accounts by mishandling funds she received from Almburg. Nelissen never communicated to Almburg that withdrawals were being made from the initial $2500 retainer.
The attorney represented the client in an attempt to have the client's child support payments reduced and prevailed in the case. Health issues mitigated the sanction; prior trust account discipline was an aggravating factor. (Mike Frisch)
Wednesday, November 25, 2015
Not a legal profession case but possibly of interest is a decision today of the Massachusetts Supreme Judicial Court finding no liability for a series of news articles about the suicide of a member of the band Boston.
The band Boston was founded in 1975, after [plaintiff] Scholz and Brad [Delp] obtained a recording contract with CBS/Epic Records, and Scholz hired band members Barry Goudreau, Sib Hashian, and Fran Sheehan to join the group. The band toured very successfully for a number of years, but, approximately thirty years before Brad's death, there was a falling out between Scholz and the latter three band members. All of the original members of the group, other than Scholz and Brad, left the band. Scholz continued to tour with different group members, including Brad, under the name "Boston." Fran Cosmo joined the band as a backup singer for Brad, and as he got older and had more difficulty reaching the high notes for which Boston was known, Brad was dependent on Cosmo's voice as backup to his. In addition to touring with the band, Brad maintained his friendship with the former members of the group, who had discontinued all contact with Scholz, and played with them when he was able to do so...
Brad committed suicide on March 9, 2007, having purchased the means to do so on March 8.
In the mid-1970s, Donald Thomas Scholz, a musician, composer, recording engineer, and record producer, founded the rock band "Boston." After many years playing in the band, Brad Delp, who was its lead singer, committed suicide on March 9, 2007. The Boston Herald, Inc., published three stories regarding Brad's suicide, written by columnists Gayle Fee and Laura Raposa, who relied on information from Brad's former wife, Micki Delp, and various unnamed "insiders" and "friends." Scholz filed an action for defamation in the Superior Court against Micki, arguing that the statements made by her and reported in the newspaper articles insinuated that Scholz was responsible for Brad's suicide. Scholz later brought an action in the Superior Court for defamation and intentional infliction of emotional distress against the Boston Herald, Inc., and its two columnists (collectively, the Herald), based on the same statements as reported in the three articles.
We conclude that the newspaper articles and statements contained therein constitute nonactionable opinions based on disclosed nondefamatory facts that do not imply undisclosed defamatory facts. Because the statements even arguably attributing responsibility for Brad's suicide to Scholz were statements of opinion and not verifiable fact, and therefore could not form the basis of a claim of defamation, we conclude that summary judgment properly was entered for the Herald by the second motion judge, and that the first motion judge correctly allowed Micki's motion for summary judgment.
The order of a hearing panel of the North Carolina Disciplinary Hearing Commission dismissing ethics charges against an attorney for alleged misconduct in a wrongful conviction case is now available.
During the relevant period referred to herein, Defendant was employed as the Director of Post-Conviction Litigation for the Center for Death Penalty Litigation (CDPL) and was actively engaged in the practice of law in Durham, Durham County, North Carolina.
The findings involved the work of several attorneys in connection with two affidavits.
As part of their strategy, these lawyers planned to call Bryan Stevenson, a lawyer and law professor, to testify about the harm caused to African-American jurors who are excluded from jury service. Because Mr. Stevenson's study of jury selection did not include results from North Carolina, the defense interviewed African Americans excluded from jury service in Mr. Robinson's case and, in some circumstances, asked excluded jurors to sign affidavits.
The criminal court found
In an order dated December 13, 2012, Judge Gregory A. Weeks found that "any immaterial inconsistencies between these affidavits and other record evidence, if they are inconsistencies, and the submission into evidence and representations of counsel regarding those affidavits, were not the product of intentional misconduct, willfulness, or bad faith on the part of any member of the defense team."
Notwithstanding that conclusion, the State Bar brought disciplinary charges against this attorney and a colleague.
The commision here concluded that there was a lack of proof on allegations of a lack of diligence and conduct prejudicial to the administration of justice.
In my view, that result is impossible to reconcile with this dismissal.
Links to our earlier coverage here. (Mike Frisch)
An attorney convicted on federal mail fraud charges that involved deception of clients has been disbarred by the South Carolina Supreme Court.
Respondent was charged with devising a scheme whereby he obtained money and property from his clients by false and fraudulent pretenses. The scheme with regard to some of respondent's clients was as follows: respondent would contact clients, former clients, or family members of former clients who had readily accessible money and inform them that the clients were in imminent danger of being arrested and/or of losing their money; he would instruct the clients or clients' family members to transfer large sums of money to him to be deposited in his trust account for safekeeping or to ensure that the investigation would be closed; he encouraged the clients or clients' family members to locate as much money as possible, including liquidating retirement accounts and asking family members for money; respondent would accept the funds from his clients or his clients' family members and convert those funds to pay for expenses and obligations relating to his law firm, to himself personally, and to other clients. There were never any civil actions or criminal investigations regarding the claims respondent made to his clients.
There are a number of specific instances of client-related misconduct set forth in the court's decision. Included also were findings that he frequently sought loans from clients.
Respondent self-reported that, from 1994 until 2002, he borrowed significant sums of monies from several clients. He admits that some of the loans were not transmitted in writing to the clients and/or the clients did not consent in writing to essential terms of the loan and respondent's role in the transaction.
The disbarment is effective as of the date of his interim suspension.
The North Carolina Disciplinary Hearing Commission approved a consent two-year suspension with a possible stay of the second year in a matter where the attorney admitted having sex with a client in a child custody matter.
The attorney tried to break off the relationship, causing emotional harm to the client.
Remarkably, they sought therapy to deal with their relationship but the therapist declined to counsel an attorney and his client.
Client A reported that she experienced significant emotional distress related to her personal relationship with Brock and his vacillation regarding whether their relationship was to be platonic or romantic.
In late January 2014, Brock and Client A went to a counselor together. The counselor declined to see them further because she was not comfortable with the fact that Brock was Client A's lawyer.
During the first several months of 2014, Client A expressed to Brock that because interacting with him was emotionally painful-she wanted to hire another lawyer to represent her. Client A asked Brock to refund the attorney's fees she had paid him so that she could afford to pay another lawyer's retainer, but he declined to do so.
Brock discouraged Client A from seeking alternate representation, at one point telling her that another lawyer wouldn't be able to familiarize himlherself with the case in time to meet upcoming deadlines, and at another point telling Client A that he didn't believe she had any further need for representation in her custody matter.
At the time he discouraged Client A from seeking alternate representation, Brock knew or should have known that if Client A hired another lawyer to take over the case, she was likely to divulge to that lawyer that she had been in a sexual relationship with Brock.
When the client hired new counsel and filed a bar complaint, the attorney did not withdraw or refund the fee. Rather, he falsely attacked the client.
(a) Brock stated that his personal relationship with Client A was "short-lived," lasting only until December 2013;
(b) Brock stated that he and Client A mutually agreed in December 2013 to terminate the romantic relationship. He stated that Client A later wavered on that decision, but Brock did not. Brock told the Grievance Committee that shortly thereafter, Client A began engaging in "bizarre, obsessive, and stalking-like behavior." He stated that the contact he had with Client A "after the relationship was terminated was primarily through her bizarre stalking-like behavior ... and not any continuation of their personal relationship. "
The attorney apparently has interests unrelated to the practice of law. (Mike Frisch)
Tuesday, November 24, 2015
The Oklahoma Supreme Court accepted the resignation of an attorney facing sex cr imes charges.
KFOR.com reported on the conditions of his release pending trial
An Oklahoma City attorney accused of federal sex crimes will not have his bond conditions changed.
Michael Billings is accused of traveling to Peru to have sex with underage girls.
Billings has been under house arrest, but was requesting for children other than his own to be allowed in his home.
A judge let him out of jail on bond last year, but because he’s an alleged sex offender, he’s not allowed to be around children.
However, he was asking for permission to have his children’s young friends visit him.
He also wanted a curfew instead of house arrest -- Billings wants more freedom before he heads to trial. Court documents show that he’s asking the judge to change home detention to a curfew, every day from 10 p.m. to 6 a.m.
He proposed that his “minor family members should be allowed to have their minor friends visit them at the family home, restaurants, movie theaters, and other venues.”
On Wednesday, Billings' attempt to get his house detention changed failed.
A federal judge said she would not take him off house arrest.
Billings also withdrew his request to have children in his home.
During Wednesday's hearing, prosecutors told the court that Billings had also been to Bangkok, Thailand. They read from recorded conversations in which Billings allegedly told someone about his trip to Bangkok where underage girls were lined up on bleachers.
He allegedly said, "You can get them tall, short, anything."
Billings will remain under house arrest until his trial.
He is allowed to work, so we caught up with him at his law office. He declined to talk with us about the motion filed in court.
You may remember, FBI agents and Peruvian officials took Billings and Ada bondsman Robert Pierce into custody after Pierce was reportedly seen taking two underage girls into a hotel room in South America.
Investigators say they found condoms, candy, and extra small women’s underwear in the hotel room.
Billings previously got permission from a judge to check in on his other business, the Fantasy Island strip club.
We checked, and we couldn’t find any financial records associating Billings with the strip club.
At this point, the bondsman, Robert Pierce, has not been charged.
Billings can’t have any contact with Pierce since the two are accused of conspiracy.
Billings’ trial has been moved to December.
The Oklahoma City FBI described the charges in the indictment
According to the three-count indictment, for over a decade beginning on February 2, 2003, and continuing through September 2013, Billings and others conspired to commit sex trafficking of children by recruiting and obtaining children in Peru to engage in commercial sex acts and further conspired to travel from Oklahoma City to Iquitos, Peru, to engage in illicit sexual conduct with children under 18 years of age. Specifically, the indictment includes three counts: Count 1 alleges conspiracy to commit sex trafficking of children, Count 2 alleges conspiracy to travel with intent to engage in illicit sexual conduct, and Count 3 alleges conspiracy to engage in illicit sexual conduct in foreign places. Reference is made to the indictment and court record for further information.
Respondent denies the allegation as set forth in Paragraph 5 of the Administrator's Complaint. Answering further, Respondent would state that he researched the issue and determined that the claim of Mr. Robison survived his death and remained viable. In fact, the matter could be taken to trial, as the discovery deposition of Mr. Robison had been taken before his death, and would be admissible at trial pursuant to the provisions of Supreme Court Rule 212(a)(5) and the Dead- Man's Act, 735 ILCS 5/8-201(b). As a result, the estate of Mr. Robison could and eventually was substituted in as an appropriate party plaintiff in Case No. 2008 L 601, pursuant to Section 2-1008(b) of the Illinois Code of Civil Procedure, 735 ILCS 5/2-1008(b). In this regard, Mr. Robison did not have a surviving spouse, so Respondent met with Matthew Robison, decedent's son. Matthew eventually agreed to serve as the petitioner in a probate proceeding to be filed by the Crowder & Scoggins law firm in St. Louis County, Missouri, where his father resided at the time of his death. On July 9, 2013, Attorney Kathie Blackman Dudley of Crowder & Scoggins filed a Petition for Letters of Administration on behalf of Matthew Robison in St. Louis County. The Clerk of the Court docketed the matter as In re the Estate of Randy L. Robison, Deceased, No. 13SL-PR01909. On August 27, 2013, the Probate Court issued Letters of Administration to Matthew. As requested, independent administration of the estate was granted by the Court, so Matthew could proceed with his duties as the personal representative of the estate, including the prosecution of Case No. 2008 L 601, without adjudication, order or direction of the Probate Court. On December 30, 2013, Respondent filed a Motion to Substitute Plaintiff in Case No. 2008 L 601, requesting that Matthew Robison be substituted as the party plaintiff in that case, as the lawful representative of his father's estate. On January 21, 2014, the Circuit Court entered an order granting Matthew's motion and substituted him into the on behalf of a party in Case No. 2008 L 601," as alleged in Paragraph 5 of the Administrator's Complaint.
The key to the answer
Respondent researched the issue and discussed the matter with his partners at Crowder & Scoggins, prior to July 1, 2013. Respondent concluded that the death of his client, Mr. Robison, was "information relating to the representation of a client" which he had a duty to preserve under the "new" version of Rule 1.6(a). While his interpretation of the "new" Rule was eventually rejected by the Appellate Court, Respondent believed in good faith on July 1, 2013, that he was precluded from disclosing the death of Mr. Robison to defense counsel and the Circuit Court.
The underlying litigation involved "matters related to injuries caused by a malfunction of Robison's prosthetic leg."
Should be interesting. (Mike Frisch)
It has been a quiet few months for the venerable Florida Judicial Ethics Advisory Committee.
Opinion Number: 2015-12
Date of Issue: November 3, 2015
May a judge assume the position of officer of an organization, with the view that the judge would move up the officer ranks to the presidency, where the organization’s stated purpose is to benefit the families of law enforcement officers and firefighters in circumstances where the officers and firefighters lost their lives in the line of duty?
The inquiring judge wants to know whether the inquiring judge can accept this leadership position. This discussion starts with the consideration of the Florida Code of Judicial Conduct, Canon 2A, which instructs that judges must avoid all appearances of impropriety. “The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Commentary to Canon 2A.
Previously this Committee found in Florida Judicial Ethics Advisory Committee Opinion 94-15 that it would be improper for an inquiring judge to be on the Board of Directors of the Police Officers Assistant Trust. “A majority of our members, however, feel that the title of the organization would identify it to be a prosecution oriented group and for a judge to be a member would be in conflict with the neutrality required of judges.”
This Committee found in Florida Judicial Ethics Advisory Committee Opinion 00-04 that a hearing officer would violate the Code of Judicial Conduct by raising an appearance of impropriety, if the hearing officer attended a local police department’s Citizens Police Academy. Although the facts differ in this matter with Opinion 00-04, the underlying rationale is instructive.
The Committee found that the “prolonged, familiar contact” that was part of the Citizens Police Academy “may create a reasonable perception that casts doubt on the hearing officer’s impartiality, interfere with his/her duties, and detract from the dignity” of the office. If the inquiring judge became an officer of the organization with the view of moving up the ranks, that could also create a reasonable perception that could cast doubt on the impartiality of the inquiring judge.
Therefore, the Committee believes the inquiring judge should not accept this officer position with this organization.
Additionally, although not asked by the inquiring judge, the Committee has insufficient information to say whether the inquiring judge’s membership in this organization is permissible or not. We cannot take a position on membership in this organization by the inquiring judge, without more information regarding the particulars of this organization.
The Maryland Court of Appeals has issued an opinion explaing the reasons for a per curiam order of disbarment.
The attorney had blown a statute of limiations in the client's case and lied to both the client and Bar Counsel.
Respondent engaged in a pattern of misconduct by failing repeatedly to act in Mr. Kolodner’s best interest over the course of years and making numerous misrepresentations to Mr. Kolodner and Bar Counsel, implicating factor (c). Factor (d) is implicated by Respondent’s numerous violations of the Rules. See Barton, 442 Md. at 146. In addition, Respondent submitted false evidence to Bar Counsel in the form of an amended complaint that lacked the court’s cross out of the time/date stamp, implicating factor (f). Factor (f) is further implicated by Respondent’s false statement to Bar Counsel in August 2013 that an amended complaint had been filed, when in fact the amended complaint had been rejected. Respondent’s failure to participate in the disciplinary proceedings reflects his indifference to making restitution, thereby implicating factor (j). See Thomas, 440 Md. at 557 (concluding that the respondent’s failure to participate in the disciplinary proceedings demonstrated an indifference to making restitution). There are no mitigating factors on this record for us to consider because Respondent declined to participate in the disciplinary proceedings in any way. See id.
Respondent’s professional misconduct, exacerbated by a number of aggravating factors and absent any facts in mitigation, is deserving of the ultimate sanction. We consequently issued a Per Curiam Order disbarring Respondent on September 29, 2015.
The City Paper had the earlier story, describing the attorney as the scion of a prominent Baltimore family. (Mike Frisch)
Monday, November 23, 2015
The Maryland Court of Appeals has declined to find misconduct by a candidate for judicial office.
The matter involved a campaign flyer that stated that the opposing candidate “[o]pposes registration of convicted sexual predators.”
On or about March 27, 2012, in response to Judge Densford’s campaign material, Mr. Stanalonis’ campaign mailed a flyer to voters that purported to contrast the experience and outlooks of the two candidates. The left side of the flyer displayed a photograph of Mr. Stanalonis in a jacket and tie, below which appeared a number of statements about him, such as “16 Years as a St. Mary’s County Prosecutor” and “Protecting Our Community, Not the Criminals.” The right side of the flyer a displayed a photograph of Judge Densford in a Hawaiian shirt, below which appeared a number of statements displayed of statements about him, such as “Donated $1,000 to O’Malley on July 14, 2010” and “Opposes your right to elect judges.” A panel at the bottom of the flyer displayed a photograph of Mr. Stanalonis with his family and reiterated his experience as a prosecutor. Judge Densford later responded with his own flyer comparing the qualifications of the two candidates. At issue before us is one of the statements in the Stanalonis campaign flyer that appears under Judge Densford’s photograph: “Opposes registration of convicted sexual predators.”
This case arose out of a hotly-contested primary election campaign for a position on the Circuit Court for St. Mary’s County. An experienced prosecutor in the County sought to unseat a newly-appointed judge who, during the course of his career, had represented defendants in criminal cases in the County. As in many election campaigns, each candidate touted, with some exaggeration, his own experience and credentials. And each candidate disparaged, in various ways and without absolute accuracy, those of his opponent. The question before us is whether there is clear and convincing evidence that a statement in the challenger’s campaign flyer was made with knowledge that it was false or with reckless disregard of its truth or falsity and therefore violated the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”).
The Attorney Grievance Commission (“Commission”) charged Respondent Joseph M. Stanalonis with violating MLRPC 8.2(a) (false statement as to qualification or integrity of a judge, public legal officer, or candidate for such office), MLRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), and MLRPC 8.4(d) (misconduct prejudicial to the administration of justice) by virtue of three statements about his opponent in a campaign flyer circulated on his behalf. Pursuant to Maryland Rule 16-752(a), this Court designated Judge Melanie M. Shaw Geter of the Circuit Court for Prince George’s County to conduct a hearing and Lawyers’ Rules of Professional Conduct(“MLRPC”). concerning the alleged violations and to provide findings of fact and recommended conclusions of law.
Following a hearing at which Mr. Stanalonis was present and represented by counsel, the hearing judge issued findings of fact and recommended conclusions of law. The hearing judge concluded that two of the statements did not violate the MLRPC, but that the third statement violated all of the cited rules, although Mr. Stanalonis had a “demonstrable basis” for making that statement. Mr. Stanalonis excepted to the conclusion that he had violated the MLRPC. We sustain that exception, and, as a result, shall dismiss the charges
Judge Watt concurred and dissented.
Judge Harrell dissented
My views regarding the appropriate disposition of this case are informed by the aphorism “Judicial Elections Are Different.” Contested circuit court judgeship elections are different than other types of contested elections for public office because special rules and processes distinguish them as a category apart. They should be treated and seen as different also because of the unique nature of the office being sought. In addition to complying with State election laws generally, judges’ political activities are regulated by Rule 4.1 through 4.6 of the Maryland Code of Judicial Conduct (Md. Rule 16-813). Attorneys who seek judicial office are regulated by Rule 8.2 of the Maryland Lawyers Rules of Professional Conduct (MLRPC) (Md. Rule 16-814). These regulations aim to protect the integrity of judicial office and the legal profession. The Maryland Judicial Campaign Conduct Committee (MJCCC) was formed to focus attention on and foster integrity and civility in this specific genre of the Maryland judicial election process...
The Majority opinion sets-up principally its ultimate toleration of Stanalonis’ mis-representation of the view attributed to Judge Densford, as a sitting judge, as protected speech and/or merely imprecise language chosen during the “heat” of nothing more than a generic political campaign. Maj. slip op. at 9-11. The Majority’s setting of this scenic backdrop does not convince me to buy-in to its analysis that followed. Wishful thinking and recklessness should not be protected. Contested judicial elections are not merely generic political campaigns...
Stanalonis, eschewing further inquiry or verification, tailored to his ends, at best, an impermissible and unsupported leap of logic to infer from attorney Densford’s advocacy of his clients’ best interest to a generic and false view of opposition to the statutory scheme held by Densford as a judge. He cared little apparently for whether his starting-point statement was true, accurate, or taken out-of-context, standing pat on the claim that apparently none of his State’s Attorney colleagues spoke up against his unsubstantiated extrapolation from a false starting-point. Stanalonis’ conduct was a gross departure from what a reasonably prudent lawyer challenging a sitting judge should have done and a gross deviation from the kind of conduct we should expect from any candidate for judicial office. Toleration of such shenanigans in general electoral campaigns is one thing, but is not acceptable here. The Majority opinion’s forgiving attitude toward Stanalonis’ misconduct will reap the whirlwind in future contested circuit court elections.
Judge Harrell would impose a reprimand. (Mike Frisch)
An attorney who has not been responsive to a client complaint has been suspended by the New York Appellate Division for the First Judicial Department
The Committee's suspension motion is based almost entirely on the complaint filed by respondent's client (Client #1) in November 2014. Client #1, who apparently spoke no English, filed her complaint through an interpreter, alleging that respondent had failed to remit settlement funds to which she was entitled.
By affidavit sworn to August 5, 2015, Client #1 supplemented her complaint alleging, among other things, that in January 2013, she retained respondent to represent her in a dispute with her business partner. The dispute resulted in a dissolution action and the parties ultimately settled the matter for $120,000; respondent was to receive $14,000 and Client #1 was to receive the remaining $106,000. Client #1 asserted that between December 2013 and January 2014, respondent issued her two checks, one for $35,000 and one for $36,000, stating that the checks represented partial disbursement of Client #1's share of the settlement. According to Client #1, respondent told her he had to pay her in installments due to "tax issues." In addition, Client #1 averred that respondent told her not to cash the third check, in the sum of $35,000, because of a "tax issue," and that he would pay the remaining balance in smaller increments; however, he never did so. Client #1 waited several months to cash the third check, and when she finally did so in October 2014, it was dishonored due to insufficient funds. Client #1 alleges that, to date, respondent has not remitted the remaining $35,000 of her settlement funds.
By letter dated February 4, 2015, the Committee requested that respondent answer Client #1's complaint. On February 25, 2015, the Committee received an unsigned fax from respondent in which he requested additional time to answer "[d]ue to the severe weather condition in February and mismanagement of the mail in [his] office building."
On or about March 12, 2015, the Committee received another fax from respondent in which he requested an additional two weeks to answer the complaint because he had been preoccupied with caring for his wife following her surgery. By letter dated March 23, 2015, the Committee requested that respondent answer Client #1's complaint within 10 days, and alerted him to the fact that his failure to cooperate with the Committee's investigation could result in his suspension. Respondent did not respond to that letter.
On June 25, 2015, the Committee served respondent with a judicial subpoena duces tecum requiring him to produce, among other things, specified business and escrow account records, and to appear for a deposition on July 9, 2015. Respondent agreed to accept service of the subpoena by email, and sent the Committee an email acknowledging receipt of the subpoena.
The second ground alleged by the Committee for respondent's interim suspension is that he commingled and intentionally misappropriated or converted Client #1's settlement funds for his own use without permission. Respondent's alleged misappropriation presents a more difficult question, because the $120,000 check at issue is a bank cashier's check made payable only to respondent as "escrowee." The amount notwithstanding, there is no indication on the face of the check, or on the accompanying deposit slip, that it pertains to Client #1's settlement. Further, the record does not contain documentation sufficiently tying the check to Client #1's settlement. Notably, respondent's client file pertaining to Client #1's case is among the materials under subpoena that respondent has failed to produce.
However, there is no need for this Court to resolve this issue because there is ample evidence to suspend respondent based solely on his failure to cooperate with the Committee's investigation.
The Louisiana Supreme Court has ordered an interim suspension of a recently-convicted attorney.
The New Orleans Division of the FBI described the case
A Louisiana man pleaded guilty today to attempted receipt of child pornography, announced Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division.
George William Jarman, 68, of Baton Rouge, Louisiana, pleaded guilty to one count of attempted receipt of child pornography before Senior U.S. District Judge James J. Brady of the Middle District of Louisiana. Jarman’s sentencing date will be determined at a later time.
According to documents filed in connection with his guilty plea, on multiple occasions between 2006 and 2008, Jarman purchased subscriptions to and knowingly accessed multiple websites that contained videos and images of minors engaged in sexually explicit conduct, which could be downloaded and saved. In connection with the investigation, FBI agents seized computers and digital media belonging to Jarman. Forensic examination of those devices found graphic depictions of prepubescent minors engaged in sexually explicit conduct, and evidence that the defendant used an Internet-based peer-to-peer file-sharing program to search for and download videos of minors engaged in sexually explicit conduct.
Sunday, November 22, 2015
The staff of the Office of Chief Trial Counsel last month voted "no confidence" in the Chief Trial Counsel and representatives of the office have publicly spoken out against reappointment of their leader to a second four-year term.
The Recorder had a story on the controversy
Employees in the California State Bar's Office of Chief Trial Counsel on Wednesday cast an overwhelming vote of "no confidence" in department leader Jayne Kim, signaling opposition to bar leaders' plans to appoint the top prosecutor to another four-year term.
Seventy-six percent of those who cast ballots in the two-hour election period indicated no support for Kim, according to an employee who was familiar with the vote tally. Approximately 200 attorneys, investigators, secretaries and other OCTC workers in the bar's Los Angeles and San Francisco offices were eligible to participate in the election, said Lita Abella, president of the workers' union, the State Bar of California Association.
Abella said that union leaders expected to meet Thursday to consider what to do next. She declined to comment further.
The vote is the latest blow for an organization that has been searching for stability since the ouster of its executive director and general counsel almost one year ago. Kim, who filed an internal complaint against then-top executive Joe Dunn that contributed to his firing by the bar board of trustees, survived the turnover and has generally received strong public support from bar leaders.
A critical state audit issued in June found that the bar has not been transparent in reporting its disciplinary caseload numbers and that at one point, the agency was so focused on clearing cases that it offered lenient settlements to lawyers under investigation to clear the books quickly. But bar leaders placed the blame squarely on Dunn and praised Kim for changes she made after she took office in late 2011.
Kim did not respond to a message seeking comment Wednesday. But chief operating officer Leah Wilson said in an email that the bar "values its employees, and respects employee rights to express their opinions in all legally permissible and appropriate formats."
But, Wilson added, "significant improvements have been made in the discipline system in particular in recent years," including a reduction in the bar's ongoing case backlog, additional training for staff and creation of a vertical prosecution system.
OCTC employees who spoke with The Recorder, often on the condition of anonymity, described a department with enormous discipline caseloads and pressure from managers to pursue charges against lawyers under investigation. A document provided to The Recorder outlining unnamed employees' complaints cites chronic understaffing and an overreliance on temporary workers. The seven-page "whistleblower complaint" describes Kim as "a bully, petty, thin skinned, and vindictive" and says employees have voiced their concerns to trustees and bar executives to no avail.
"There's a lot of acrimony in this office," said Adriana Burger, an attorney who has worked at the bar for more than 20 years. "People are very disappointed that this has been going on for so long and nothing has really happened to change it."
The state Senate Rules Committee must confirm Kim's nomination if bar trustees recommend her for another term as chief trial counsel, a fact that could prove troublesome if bar employees decide to actively oppose her. The bar union is affiliated with Service Employees International Union Local 1000, a powerful lobbying force in the state Capitol.
Saturday, November 21, 2015
The District of Columbia Court of Appeals has put out for comment proposed consumer-friendly amendments to the rules governing its Clients' Security Trust Fund.
The key proposed amendment is intended to address the problem of delay in reimbursing victims. The prior rule required a "jurisdictional trigger" such as the suspension, disbarment, death, or incapacity of the thieving lawyer. The trigger requirement will be deleted.
The second amendment (no guns and lawyers jokes please) extends juridiction to the offenses of attorneys who are already disbarred. A letter to the court from the Fund notes that the problem of unsophisticated clients being taken advantage of by the recently-disbarred justifies this jurisdictional extension.
Nice to see someone working at the D.C. Bar (the Fund members are appointed volunteers) thinking about public protection for a change. (Mike Frisch)
Notably as described in the Disciplinary Board report
The Hearing Committee concluded that such misconduct should forever bar Petitioner's reinstatement. Office of Disciplinary Counsel maintains the same position, insisting that Petitioner's fraudulent activities over a time span of three decades are so egregious as to prevent Petitioner's ability to practice law in the Commonwealth forever. We note that in only one case has the Supreme Court held that the magnitude of the breach of trust was so egregious that reinstatement was forever barred. See, In the Matter of Romaine Phillips, 801 A.2d 1208 (Pa. 2001 ). Phillips was involved in a conspiracy with a Common Pleas judge to commit bribery and to fix cases, and thus knowingly engaged in acts to subvert the truth-determining process.
There is no doubt that Petitioner's misconduct was serious and that his disbarment was the appropriate sanction. Nevertheless, we find that his misconduct was not so egregious that it should prohibit Petitioner's reinstatement. Petitioner's misconduct is similar to that of other attorneys who have been disbarred and who have sought and been granted reinstatement.
The record recited in the board report does make eventual reinstatement an unlikely prospect.
The petitioner's conviction involved 29 phony cases that had generated over a quarter of a million dollars in settlements.
He had engaged in a 30-year practice of using runners to drum up mostly faked accident cases, tax violations, transfers of property and made false statements in the reinstatement process.
At the time of the reinstatement hearing, Petitioner had been disbarred for a period of ten years and five months. The record is devoid of any compelling evidence to demonstrate that during his disbarment Petitioner has been rehabilitated. To the contrary, the record supports the conclusion that Petitioner is not fit to resume practicing law because he persisted in engaging in actions of a similar nature to that of the underlying misconduct. While some of Petitioner's actions described herein pre-date disbarment, they are relevant to illustrate the on-going pattern of dishonesty and lack of remorse that existed prior to the imposition of the disciplinary sanction and continued unabated during the period of disbarment...
The sum and substance of these acts demonstrates that Petitioner has not used his ten-year period of disbarment as a time to reflect on his past wrongdoing and make amends. In short, Petitioner has not changed. After all of these years and proceedings, he is still not amenable to acknowledging that he engaged in egregious misconduct that warranted disbarment, and in no fashion did he demonstrate genuine remorse for his actions. He continues to make excuses in an attempt to wriggle out of his culpability. It is clear that Petitioner has not accepted that his actions were wrong, unprofessional and unbecoming of a member of the bar.
A matter that started out as a minor infraction - an informal admonition - led to an attorney's suspension for a year and a day by the Pennsylvania Supreme Court.
The Disciplinary Board noted that the attorney had practiced since 1984 without a disciplinary blemish until he was administratively suspended in 2013. However, the "relatively minor" original infraction was "significantly aggravated" by his failure to appear for the administration of the Informal Admonition.
Thereafter, his "utter failure" to participate in the disciplinary process sufficiently troubled the board to justify the suspension. (Mike Frisch)