Wednesday, June 28, 2017

When The Victim Cannot Testify

The Indiana Supreme Court reversed the Court of Appeals and re instated a conviction

Defendant appealed his bestiality conviction arguing that the State failed to establish the corpus delicti of the offense, rendering evidence of his confessions inadmissible. Finding that the State presented independent evidence that provided an inference that Defendant committed bestiality, we hold that defendant’s confessions were admissible. Accordingly, we affirm the trial court.

The facts

In August 2015, Paul Moore and Andy Shinnock were roommates in Muncie, Indiana. Moore’s two dogs, a female pit bull named Baby Girl and a male Labrador Retriever mix named Cosmo, lived with them. One morning, Moore returned home from work, and neither of his dogs were waiting to greet him at the door like they usually did. Moore called for them. Cosmo eventually came to him, but Baby Girl did not. Moore noticed the apartment was messy. That is, there was dog feces all over the floor and dog food scattered about. This was also unusual. Moore opened the door to Shinnock’s room. Baby Girl came out and ran underneath the couch.

Moore observed Shinnock in his room, wearing his boxer shorts and with an erection. When Moore asked Shinnock why his dog was locked inside of Shinnock’s bedroom, Shinnock admitted to Moore that he tried to have sexual contact with the dog. Moore called police. When police arrived and asked for Shinnock’s version of events, Shinnock admitted he had sex with Moore’s dog.

Below

the Court of Appeals reversed Shinnock’s conviction holding that the State was required to prove penetration of the dog’s sex organ by a male sex organ before it could admit Shinnock’s statement into evidence.

The law

Due to the nature and circumstances of this matter, there is no direct evidence of what happened to Baby Girl. However, there is ample circumstantial evidence that provides an inference that Shinnock committed bestiality. That is, Baby Girl was not there to greet Moore when he arrived home like she usually did. Instead, she was found trapped in Shinnock’s bedroom with him. He was in his underwear and had an erection. The floor was covered in dog feces, which was unusual. When Moore opened the door to Shinnock’s room, Baby Girl ran to hide under the couch. All the facts taken together suffice to demonstrate both that the dog was a victim and that Shinnock committed the crime. Accordingly, the trial court properly found that the corpus delicti rule was satisfied and admitted the confessions into evidence.

(Mike Frisch)

June 28, 2017 | Permalink | Comments (0)

Resigned To A Deserved Fate

The Ohio Supreme Court has accepted an attorney's resignation in the wake of a conviction.

The United States Attorney's Office for the Northern District of Ohio  reported on the criminal conviction

Three Toledo residents were convicted for forging a will to fraudulently gain control of an estate worth approximately $2.2 million, said U.S. Attorney Carole S. Rendon and Kathy A. Enstrom, Special Agent in Charge, IRS Criminal Investigation, Cincinnati Field Office.

Susan M. Pioch, 60, Margaret L. McKnight, 42, and Kurt L. Mallory, 53 are convicted on all counts following a weeklong jury trial.

All three were convicted one count of conspiracy to commit bank fraud and mail fraud, 21 counts of bank fraud, seven counts of mail fraud and one count of aggravated identity theft. Pioch, McKnight and Mallory were convicted on additional counts of money laundering. McKnight was convicted on an additional count of structuring cash withdrawals, three tax counts and seven counts of causing a financial institution to fail to file a required report.

“This trio forged a will and stole a lifetime of savings and hard work,” Rendon said. “They will finally be held accountable for their actions. It’s particularly egregious that an attorney, who has sworn an oath to uphold our laws, was involved in these crimes.”

“The defendants engaged in a scheme to steal millions from a deceased man’s family, proving that money is the root of all evil,” Enstrom said. “It was imperative to make sure no corners were cut and no stone was left unturned. The IRS National Forensic Laboratory played a critical role in this investigation by examining the handwriting on numerous documents that ultimately proved that the will in question in this case was forged. Today’s convictions are a direct result of the excellent partnership of the IRS, U.S. Attorney’s Office and the Toledo Police Department.”

Martin E. Fewlas executed a will in 1993 devising his entire estate to his brother. If his brother did not survive Fewlas, the estate was to go to his nephew and then his great-nephew, identified in the indictment as JRM.

Fewlas owned the duplex located at 2557 Broadway Street in Toledo. He lived in the lower half and for approximately 10 years, McKnight and Mallory lived together in the upper half, according to court documents.

Fewlas died on Aug. 28, 2010, leaving an estate worth approximately $2.2 million. On Sept. 2, 2010, McKnight, Mallory and Pioch – an attorney who had previously done legal work for McKnight and Mallory forged a will in Fewlas’ name. The forged will was drafted by Pioch and named McKnight as the executor and sole devisee of Fewlas’ assets. Pioch filed the forged will with the Lucas County Probate Court on or around Sept. 2, 2010. McKnight identified herself as executor of the estate and Pioch identified herself as attorney for the executor in probate court documents, according to court documents.

By filing the forged will and concealing its fraudulent nature, Pioch, McKnight and Mallory succeeded in obtaining Probate Court authority to take possession of Fewlas’ assets. After obtaining those assets, they disbursed the assets to themselves for their own enrichment, according to court documents.

Pioch, McKnight and Mallory used those assets to purchase, among other things, a used car dealership, a 2000 Discovery motorhome for $55,036, a classic 1972 Chevrolet El Camino for $17,000, a 2010 Kia Soul SUV for $21,338, as well as property. They also withdrew more than $500,000 in cash for Fewlas’ estate proceeds, according to court documents.

JRM, Fewlas’ great nephew and the sole remaining devisee from the 1993 will, received nothing, according to court documents.

The case is being prosecuted by Assistant U.S. Attorneys Gene Crawford and Noah Hood following an investigation by the Internal Revenue Service – Criminal Investigations and the Toledo Police Department.

(Mike Frisch)

June 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Solicitation Leads To Resignation

An attorney's resignation from the Bar was accepted by the Oklahoma Supreme Court

The respondent acknowledges she is aware there are proceedings involving allegations that there exist grounds for discipline, specifically as follows. In Count I, the Bar Association alleges that the respondent improperly by live telephone, and in person solicited Tyler Williams for employment in his personal injury case, while he was hospitalized for his injuries. She represented to him that she had obtained his name and information from a "Christian" organization, which conveyed to her that he needed to have legal questions answered. She had him sign a contingency fee contract on June 17, 2014, and he remained hospitalized until his discharge on June 20, 2014. The organization called "Victim's Hope" was created, established, organized and controlled by the respondent as a means to solicit business for her. She paid the employee of Victim's Hope to recommend her services and to forward information regarding prospective clients. Count II alleges that from approximately 2008 through 2012 the respondent improperly obtained Department of Public Safety media emails by establishing and controlling fictitious media outlets solely for the purpose of obtaining and forwarding accident report information to employee(s) of her law firm in order to solicit professional employment. Count III alleges that she obtained confidential accident report information for the purpose of making a commercial solicitation in violation of 47 O.S.2011, § 40-102. The allegations would constitute violations of Rules 1.16(a), 7.2(b), 7.3(a), 8.4(b), and 8.4(c) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A and Rule 1.3, RGDP.

(Mike Frisch)

June 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Inexperience As Mitigation In Reciprocal Discipline For Bankruptcy Sanctions

The Oklahoma Supreme Court imposed reciprocal discipline based on sanctions imposed in bankruptcy court.

Respondent submits that there is no basis for reciprocal discipline here. According to Respondent the type of discipline that forms the basis for reciprocal discipline is that which is imposed by the Bankruptcy Court and subsequently confirmed by the District's Disciplinary Committee. She asserts: (1) because the judgment and order in question were the result of a settlement among the parties which was encouraged by the judge, it does not equate to discipline that is imposed upon her pursuant to Rule 7.7(a); and (2) because the judgment and order were settled, they were never adjudicated and referred to the disciplinary arm for the jurisdiction in accordance with the 7.7(b) terms. Respondent further claims the documents in this instance-the judgment and order-do not contain any charge because they represent settlements between the parties and thus cannot be prima facie evidence of any act pursuant to Rule 7.7(b)...

Notwithstanding Respondent's contentions, her conduct in representing her client before the Bankruptcy Court demonstrates she has violated multiple provisions of Oklahoma's Rules of Professional Conduct (ORPC), Okla. Stat. tit. 5, ch. 1, app. 3-A (2011). This includes her: failure to provide competent representation for her client, Rule 1.1; failure to file meritorious claims and contentions, Rule 3.1;  failure to conduct her representation of her client in fairness to the opposing party and counsel, Rule 3.4(d); engaging in conduct prejudicial to the administration of justice, Rule 8.4(d).

Sanction

An additional mitigating factor we perceive to be worthy of consideration in today's cause is that of Respondent's status as a new practitioner of the law. In noting this, we emphasize that we do not hold new legal practitioners to different standards from more seasoned lawyers. We remark on this difference solely as a distinguishing factor from those cases we examined for guidance where the legal practitioners had far greater experience and as a caution to new attorneys.

As a new lawyer, Respondent undoubtably [sic] exceeded the bounds of zealous advocacy. Her actions severely impacted others and their resources-clients, lawyers and the judiciary. She displayed a lack of competency and insolence in the practice of bankruptcy law. Respondent, however, was practicing on her own with little prior training or supervision and refused to ask for help. Suspension from bankruptcy court practice in two districts for a five-year period is severe. Its imposition is curative of further offenses in the affected jurisdictions and meets the multiple objectives of protecting the public, the courts, other attorneys, and restoring confidence in the legal system. It, standing alone, does not disqualify her from the practice of law in the Courts of Oklahoma nor from further discipline by this Court. But, Respondent's failure to maintain her license does.

Respondent's acts are akin to those in Tweedy and, as in Tweedy, we believe the foreign jurisdiction's discipline to be a significant mitigating factor in today's cause. Respondent was barred from bankruptcy practice for five years in the Northern and Eastern Districts of Oklahoma. She was new to the practice of law and without supervision or training. Discipline should be imposed, although we do not believe five years is the proper measure of discipline here. For these reasons, Respondent is suspended for six months and ordered to participate in Lawyers Helping Lawyers.

A dissent would impose a two-year suspension. (Mike Frisch)

June 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 26, 2017

Tennessee Tampering Conviction A Family Affair

A Tennessee attorney convicted of tampering with evidence has been disbarred by consent.

The crime was covered by the Jackson Sun

A jury found Edythe Christie guilty of tampering with evidence Thursday for deleting photos and videos from her son’s cell phone following her daughter-in-law’s death.

Christie will be held in the Madison County Jail without bond until her sentencing on Oct.1. Her family reacted to the verdict with shock and tears.

“She is not guilty,” her father, Lonnie Paschall, said.

Edythe Christie testified in her defense Thursday morning after her son, John Christie, testified as a prosecution witness on Wednesday.

In court, Edythe Christie’s attorney Hal Dorsey said Christie did not deny deleting photos and videos from her son’s phone. She checked the phone out from his personal items in the Madison County Criminal Justice Complex in December 2013 while he was in jail on a probation violation. The defense contended that the phone wasn’t considered evidence.

John Christie’s estranged wife Brittany Christie was found dead in an Old Hickory Inn hotel room on Dec. 6, 2013. Police said she died of an overdose of heroin and clonazepam. Authorities charged John Christie with her murder several months later, in April 2014.

“When I saw the photographs of Brittany on the phone, I just had a gut reaction,” Edythe Christie testified Thursday. “I believed the photographs could be recovered.”

Christie said she deleted the photos of her daughter-in-law to protect her son from seeing them after he was released from jail.

“It was to protect John and his children,” Edythe Christie said in court. “I had no intention of making it unavailable to police.”

Voice recordings of the mother and son discussing the cell phone on Dec. 19 and Dec. 20, 2013, when John Christie was in custody, were played in court on Wednesday.

In the recorded calls, John Christie asked his mother to pick up the phone from his personal items. Edythe Christie told him she would pick the phone up the next morning, on Dec. 20.

“I had no intention of destroying or deleting anything,” she testified. “I thought if I deleted texts and phone calls, then that’s a crime.”

Edythe Christie said she kept the phone with her in her Medina home until she gave it to her son’s attorney in May. A week after she turned it over to the attorney, police searched her home, as well as John Christie’s attorney’s office, to find the Samsung phone.

“I didn’t believe it to be relevant evidence,” she said in court. “I just wanted to shut him up.”

Christie said she never intended to hide the phone from investigators.

“If they would’ve asked me, I would’ve told them where it was and what was deleted,” she said. “I thought, ‘If the police want the phone, then they can come find the phone.’”

Members of Brittany Christie’s family were in court during both John and Edythe Christie’s testimony. To stepsister Kristin Mayo, the verdict is another step toward closure for the family.

“I’m happy with the verdict, happy with the outcome,” Mayo said. “I’m hoping to get the same verdict and get peace and closure in Brittany’s death.”

John Christie is scheduled for trial next month on charges of second-degree murder and tampering with evidence. Mayo said seeing Christie testify in his mother’s trial was difficult for Brittany’s family.

“It’s hard to see him period,” Mayo said. “They’re good people and I know they’re going through a lot.”

John Christie had asked his mother to destroy the SD card in his phone, according to testimony. Jackson police investigators testified she did not destroy the card, but did delete five photos and a video showing John and Brittany Christie together before Brittany Christie’s death. The photos and video were recovered and were shown in court on Wednesday.

Edythe Christie was an attorney of 19 years, most recently practicing in Gibson County.

After the jury read the guilty verdict, Christie’s attorney said he did not believe she would practice anymore.

“I’m sure that will cease starting today,” Dorsey said.

After the verdict was read, Judge Don Allen said Edythe Christie knew the deleted photos were evidence investigators would have needed to show John and Brittany Christie were together before Brittany was found dead.

“The 24 hours leading up to her death is critical to an investigator,” Allen said. “It was a critical piece of evidence she deleted.”

Edythe Christie is scheduled for sentencing on Oct. 1 at 8:30 a.m.

John Christie is scheduled for trial Sept. 29.

(Mike Frisch)

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

Res To The Bottom

An opinion of the Indiana Supreme Court in a case where the defendant has the rather dichotomous name of Summer Snow

Every crime has a story. But when that story is told at trial, each part must be admissible under Indiana’s Rules of Evidence—simply being part of the story is not enough. We thus reiterate today our holding from over twenty years ago: res gestae—the common-law doctrine that made evidence admissible when it was part of a crime’s story—is no more.

Here, Summer Snow carried a handgun as she battered Officer Terry Peck and resisted law enforcement. Though she was not charged with a firearm-related offense, the State introduced her gun into evidence at trial. Without res gestae as grounds for admission, our question becomes whether the gun is admissible under Indiana’s Rules of Evidence. We hold that it is. The trial court acted within its discretion in finding the gun relevant to Snow’s aggressive state of mind and in determining that the danger of unfair prejudice did not substantially outweigh that relevance. We affirm the trial court.

Holding

Because res gestae is no more, we consider evidentiary admissibility under our Rules of Evidence. Under those rules, the trial court was within its discretion in deciding that Snow’s handgun was relevant to her aggressiveness, and that the danger of unfair prejudice did not substantially outweigh its probative value. We affirm the trial court.

(Mike Frisch)

June 26, 2017 | Permalink | Comments (0)

Virtually Yours

A Staff Report from the web page of the Ohio Supreme Court

The Board of Professional Conduct today issued an advisory opinion permitting virtual law offices. The Board also took action to withdraw a superseded advisory opinion.

In Advisory Opinion 2017-5 the Board concludes that the operation of virtual law office is permissible under the Ohio Rules of Professional Conduct. A virtual law office allows a lawyer to work remotely, relying almost entirely on technology to communicate with clients, store client files, and conduct legal research, in place of a traditional “bricks and mortar” office.

The Board determines, in accord with opinions issued by other state conduct boards, that a lawyer may use a home or office address, the address of shared space, or a post office box as the required “office address” in communications with clients, courts, and other lawyers.

The opinion addresses the ethical issues inherent in a virtual law office and reinforces that the conduct rules require a lawyer to stay abreast of changes in technology and take steps to ensure that a client’s information, especially electronic data stored in the “cloud,” is protected from inadvertent disclosure. The opinion also reminds lawyers that the use of third parties to provide technological services, such as offsite data storage, require lawyers to ensure the vendor acts in a manner consistent with their ethical obligations.

Because of the nature of a virtual law office, the Board concludes that a lawyer must be mindful of the requirement to keep a client reasonably informed in order to enable the client to make decisions about the lawyer’s representation. The Board recommends that a lawyer operating a virtual law office notify the client about the use of technology in a written fee agreement.

The Board also concludes it is appropriate for a lawyer operating a virtual law office to share nonexclusive office space with other professionals to receive mail, meet clients in person, or conduct depositions. However, the lawyer must take precautions to ensure the confidentiality of client communications and information in an environment where all tenants share resources like Wi-Fi and a common receptionist or other staff.

The Board also withdrew Adv. Op. 1988-08. The opinion dealt with the question of when a part-time city prosecutor may represent criminal defendants. The Board concluded that Adv. Ops. 2007-4, 2008-5, 2008-6, and 2014-2 superseded all portions of Adv. Op. 1988-08.

Advisory Opinions of the Board of Professional Conduct are nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office

(Mike Frisch)

June 26, 2017 | Permalink | Comments (0)

Bankruptcy Misconduct Gets Attorney Disbarred

The Maryland Court of Appeals has disbarred an attorney for misconduct in his own bankruptcy

Respondent, Mark Kotlarsky, was admitted to the Bar of Maryland on December 15, 1992. On August 22, 2016, the Attorney Grievance Commission of Maryland (“the
Commission”), through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent as a result of having received a notice
from Citibank that Respondent had over-drafted his operating account ending in -3487. Upon investigation, the Commission discovered that Respondent had failed to disclose assets that were associated with his law firm’s pension plan in his bankruptcy petition, and that Respondent had outstanding federal and state tax liens totaling $35,092.72. In its Petition, the Commission alleged that Respondent violated Maryland Attorneys’ Rules of Professional Conduct...

The court

The Commission requests that this Court disbar Respondent from the practice of law. According to the Commission, Respondent’s repeated failure to respond to Bar Counsel’s inquiries regarding outstanding tax liens, his attorney trust account, and his failure to disclose assets associated with his law firm’s pension plan in his Petition for Chapter 7 Bankruptcy, warrant such a sanction. We agree.

(Mike Frisch)

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

Saturday, June 24, 2017

Vindictive Former Judge Suspended

The Maine Supreme Judicial Court has suspended a former judge for two years.

The charges

Count 1 alleged that then Judge-elect Nadeau’s directive to the Register of Probate of York County not to include seven attorneys on the court appointed  attorney list was motivated by his previous contentious relationship with those  attorneys, in violation of Judicial Canons 2(B) and 3(C)(4);

Count 2 alleged that Judge Nadeau’s removal of an attorney from cases to  which she had previously been appointed was motivated by her association  with an attorney with whom Nadeau had a contentious relationship, in  violation of Canon 2(A) and (B);

Count 3 alleged that—in a case in which he had recused himself— Judge Nadeau ordered an attorney to destroy a lawfully obtained public  document, in violation of Canon 2(A);

Count 4 alleged that Judge Nadeau’s abrupt overhaul of the Probate Court  schedule was motivated by his anger with the York County Commissioners  when his request for a pay increase was rejected, in violation of Canons 1, 2(A)  and (B), and 3(B)(8); and

Count 5 alleged that Judge Nadeau was, through oral and written orders, encouraging litigants before him to contact their county officials to lobby for  increased court funding, which would also increase his salary, in violation of  Canon 2(B).

Sanction

This is now the fourth time that Judge Nadeau has appeared before  us for ethical violations, and the third time for conduct that occurred while  serving in a judicial capacity. See In re Nadeau, 2016 ME 116, 144 A.3d 1161;  In re Nadeau, 2007 ME 21, 914 A.2d 71415; Bd. of Overseers of the Bar v. Nadeau,  Bar-05-03, 2006 Me. LEXIS 167 (Mar. 2, 2006). Here, his actions were often  carried out in an intemperate and vindictive fashion against former colleagues of his law practice and their associates. Attorneys’ reputations were harmed, and litigants before him were pressured to support his efforts to increase court  resources and his compensation. Judge Nadeau has not fully acknowledged the  intemperate nature of his decisions.

...This time, therefore, more severe sanctions are warranted. It  is hereby ordered that Robert M.A. Nadeau forfeit $5,000 and be suspended from the practice of law for two years...

(Mike Frisch)

June 24, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, June 23, 2017

A Misbegotten Prosecution Results In Dismissal And Reprimand

The Maryland Court of Appeals decided a disciplinary case against two attorneys that I have closely followed.

In sharp contrast to my usual position, I entirely side with the accused attorneys and believe that they (and their pro bono clients, who vigorously supported them) should never have been subjected to prosecution.

One thing that I learned in over 17 years as a bar prosecutor is that you have the power to make someones life a multi-year nightmare. Thus you are under an obligation to ensure that you prosecute your cases in a fair-minded and proportionate manner.

Here Bar Counsel did not gracefully accept the views of the hearing judge concerning the motives of the complainant and of the case itself

the Commission excepts to the hearing judge’s “non-material findings” in which the hearing judge allegedly “demonstrated animus toward the [Commission] and its counsel at trial.” The Commission asserts that it excepts to such statements because the hearing judge’s statements concerning Bar Counsel “leave[s] the impression that the disciplinary case itself was unfair to Respondents and that specific actions of counsel were ‘unfounded,’ ‘biased,’ ‘unreasonable,’ ‘frivolous,’ ‘unwarranted,’ and ‘lacking in objectivity.’” The Commission also excepts to the “attacks on Mr. Erskine,” who, as the complainant, “acted in the best traditions of the Bar” and “chose to honor his commitment as an attorney to report misconduct.”

We overrule the Commission’s exception. The “findings” to which the Commission directs this Court’s attention appear in the introductory discussion section to the hearing judge’s conclusions of law and in the hearing judge’s conclusions of law. These statements are a part of the hearing judge’s analysis in connection with the conclusions of law, and are not set forth as findings of fact and, as such, have not been summarized above by this Court. Nor have the alleged findings been relied upon by this Court in sustaining or overruling any of the Commission’s exceptions... 

The procedural history of the underlying cases was dense and complex, and the litigation itself was highly contentious. The hearing judge made detailed findings of fact based on the evidence presented to him over the course of sixteen days. The record in this attorney discipline case is voluminous, and the hearing judge more than adequately parsed through it in making the findings of fact. That the hearing judge may not have made certain findings of fact urged by the Commission does not render the findings of fact that were made clearly erroneous.

In both of the cases, Bar Counsel had sought disbarment. One attorney was reprimanded for his inadequate response to the complaint; all charges against the other attorney were dismissed.

The matters are a case study in how the disciplinary process can be abused. This time-consuming and misbegotten case should never have been brought.

The court explained

The road to Maryland’s political graveyard is paved with multitudes of failed referendum petitions and good intentions of petition circulators and referendum strategists. The controlling statutes in the Maryland Code, Election Law Article for conducting a referendum petition drive present a veritable minefield of technicalities that can quickly scuttle and send awry the best-laid plans of citizen-activists seeking a voter referendum.,,

It is in the context of this complex and contentious underlying litigation involving a local zoning referendum and petition drive that this attorney discipline proceeding originated. Under these circumstances, Respondents perceived that the system was rigged against their clients, and they must have felt like David versus Goliath. But instead of bringing a slingshot to the legal battle, they employed a strategy of ping-pong by bouncing the case to Maryland’s appellate courts in response to negative rulings (whether real or perceived) by the circuit court. And when Mr. Erskine filed his complaints against Respondents in the middle of this contentious litigation, Mr. Dyer failed to respond substantively to Bar Counsel’s lawful request for information concerning his position on the allegations in the complaint against him. Instead, he simply challenged Bar Counsel’s authority to conduct a “confidential” investigation and refused “to participate in secret attorney grievance proceedings” on First Amendment grounds.

On August 26, 2015, on behalf of the Attorney Grievance Commission, Assistant Bar Counsel Lydia Lawless filed in this Court a “Petition for Disciplinary or Remedial Action” against Respondents, charging them with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.3 (Diligence), 1.4(a)(1), 1.4(a)(2), n1.4(b) (Communication), 1.16(a)(1) (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.3(a)(1) (Candor Toward the Tribunal), 3.4(a), 3.4(c), 3.4(d) (Fairness to Opposing Party and Counsel), 3.7(a) (Lawyer as Witness), 4.1(a)(1) (Truthfulness in Statements to Others), 4.4(a), 4.4(b) (Respect for Rights of Third Person), 8.1(b) (Disciplinary Matters), 8.2(a) (Judicial and Legal Officials), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).

The hearing judge conducted hearings over sixteen days and issued a comprehensive 115-page opinion exonerating both attorneys, questioning the motives of the complainant in filing a bar complaint in the midst of litigation and noting the dearth of proof to sustain the "throw the book at em and hope something sticks" approach of assistant bar counsel.

The heart of the case was a frivolous litigation allegation

In contentious cases involving complex and time-sensitive matters, such as election laws, lawyers may be more likely to file appeals quickly. However, not every lawyer who files an appeal or a petition for a writ of certiorari that is dismissed is charged with violating the MLRPC. Indeed, a lawyer who files appellate papers that are dismissed simply because the lawyer is wrong about the law or the lawyer has, as the hearing judge found, a good faith basis to believe a certain fact that turns out to be incorrect, is generally not subject to discipline under the MLRPC. This is not a case where a lawyer filed an appeal or petition for a writ of certiorari that was blatantly unsupported by the law or facts of the particular case. Therefore, we conclude that the hearing judge was not clearly erroneous when he declined to adopt Bar Counsel’s suggested finding—that the first and second rounds of appellate findings were unsupported by fact or law...

Here, the hearing judge was correct in concluding that there was not clear and convincing evidence that Respondents violated MLRPC 3.1. With respect to the appellate filings, as discussed in detail above, we overrule the Commission’s exceptions to the hearing judge declining to find that various rounds of appellate filings were not supported by fact or law. And, as explained, that an appellate filing may ultimately be unsuccessful, and indeed even dismissed, does not mean that a lawyer violates MLRPC 3.1 for making such a filing. Additionally, we note that there is no indication in the record that this Court or the Court of Special Appeals ever awarded sanctions against Respondents in connection with any of the appellate filings, even though Normandy had asked the Court of Special Appeals to do so.

A significant holding on the nature of the obligation to respond to a bar complaint

Mr. Erskine’s complaint letters to Bar Counsel, to which Bar Counsel requested that Respondents respond, included very broad accusations of misconduct to which it may have been difficult to respond. In the face of these broad accusations, although Ms. Gray informed Bar Counsel that she adopted Mr. Dyer’s response, Ms. Gray also responded by providing her view of the underlying litigation, explaining to Bar Counsel the contentious nature of the case and that, in her opinion, Mr. Erskine’s complaint was an attempt to intimidate her that had begun during the litigation in the circuit court. Although Ms. Gray may not have responded to each of the allegations of misconduct set forth in Mr. Erskine’s complaint and although Bar Counsel apparently takes issue with the substance of Ms. Gray’s response, we are satisfied that the hearing judge’s determination that Ms. Gray did not violate MLRPC 8.1(b) is correct. Given the broad nature of the complaint and that Ms. Gray’s response addressed the substance of the complaint and provided her opinion as to events concerning the underlying litigation, there is not clear and convincing evidence that Ms. Gray knowingly failed to respond to a lawful demand for information from Bar Counsel. Rather, Ms. Gray promptly responded to the substance of the allegations by providing her view of the underlying litigation and why she believed Mr. Erskine had filed such a complaint against her in the first instance. As such, we determine that the hearing judge properly concluded that Ms. Gray did not violate MLRPC 8.1(b).

Another charge goes down in flames

The Commission excepts to the hearing judge’s conclusion that Respondents did not violate MLRPC 8.4(d). The Commission contends that Respondents violated MLRPC 8.4(d) by “burden[ing] the judicial process” and argues that “[v]irtually every step they took caused the courts, their clients and the other parties to expend needless time, resources and energy.” We overrule the exception.

... the hearing judge was correct in concluding that clear and convincing evidence did not establish that Respondents violated MLRPC 8.4(d). As the hearing judge stated, Respondents “provided adequate, but not necessarily perfect, pro bono legal representation that probably would not have otherwise been available to their clients,” and  they “sought to ensure that the First Amendment rights of their clients and nonparty circulators were protected from what they perceived to be unnecessary, improper and overbroad discovery requests.” Under the circumstances of this case, we fail to discern that Respondents’ conduct in the underlying litigation violated MLRPC 8.4(d).

Believe it or not, Bar Counsel had sought disbarment after the square rejection of every charge by the hearing judge.

The video of the oral argument is linked here.

Notably, the courtroom is filled with clients demonstrating support for their accused attorneys.

Have not ever seen that before.

The court politely evaluated the quality of the case by assessing full costs against the Grievance Commission

Although we reprimand Mr. Dyer, as indicated in the mandate, we do not assess the costs against him; rather, we assess the costs against the Commission. We note that Bar Counsel brought numerous charges against Mr. Dyer, and, upon our independent review, we conclude that Dyer has engaged in misconduct involving only one violation of the MLRPC, MLRPC 8.1(b), for which he is hereby reprimanded. Only a fraction of costs of the attorney discipline proceeding can be attributed to the charged violation of MLRPC 8.1(b). We conclude that, under these circumstances, ordering costs against Mr. Dyer is inequitable. Even having Mr. Dyer and the Commission split the costs would not be equitable given that a large portion of the costs are due to alleged violations of the MLRPC that were not sustained and that the Commission failed to prove are supported by clear and convincing evidence. And, as determined above, none of the charged violations against Ms. Gray were proven with clear and convincing evidence. Accordingly, we shall assess the costs against the Commission.

(Mike Frisch)

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

Thursday, June 22, 2017

Ohio Revokes Admission For Application Misconduct

The Ohio Supreme Court revoked admission based on conduct that the applicant failed to disclose.

Michael Alexander Callam, of Macedonia, Ohio, Attorney Registration No. 0092109, was admitted to the practice of law in Ohio on November 17, 2014, after passing the Ohio bar examination administered in July of that year.

On April 17, 2015, the Office of Bar Admissions received a letter from the Geauga County Prosecuting Attorney relating that beginning in September 2013, Callam had been investigated by the Ohio Department of Insurance, had been untruthful during that investigation in interviews conducted in January and September 2014, and had surrendered his Ohio insurance license for cause in October 2014. The Office of Bar Admissions received another letter about Callam after he was indicted on two counts of complicity relating to charges filed against his father for securing writings by deception and selling insurance without a license. Based on those communications, the Board of Commissioners on Character and Fitness exercised its sua sponte authority to commence an investigation pursuant to Gov.Bar R. I(10)(B)(6) (directing the board to investigate allegations about false statements in applications brought to its attention after an applicant has been admitted to the bar).

Holding

 We have disapproved bar-exam applications in which the applicants failed to disclose materially adverse information regarding past conduct in their registration and bar-exam applications...And in the rare instance in which applicants’ false statements and omissions came to light after they had passed the bar exam and been admitted to the Ohio bar, we revoked their licenses to practice law but permitted them to reapply for admission at a later time. 

A dissent would not permit reapplication. (Mike Frisch)

June 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"You're The Investigator, You Figure It Out"

The Maryland Court of Appeals has disbarred an attorney.

The case involved a number of complaints

Rule 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. We agree with the trial judge’s findings that Respondent repeatedly violated this rule. In the Curtis matter Respondent dishonestly and deceitfully took possession of, and retained, the money judgment owed to her client and misrepresented to the defendant in that action (Mr. White) that Respondent had filed a notice of satisfaction in the case. In the Dixon matter, Respondent represented to her client that she had drafted an affidavit when she had not done so. In the Bradley-Topping matter, Respondent told her client that she would file an amended divorce complaint to include grounds of desertion, but she did not do so. She also falsely told Ms. Bradley-Topping that she had prepared a draft settlement. In regards to the Alsobrooks complaint, during her hearing on charges of driving under the influence, Respondent misrepresented to the court that she had no prior convictions. 

The last listed violation involved a 2004 DUI conviction

On March 31, 2013, Maryland State Police found Respondent in her vehicle, crashed into a roadside ditch. Respondent failed a field sobriety test and was charged with
DUI, reckless driving, and driving on a suspended license. On March 20, 2014, Respondent appeared in the Circuit Court for Prince George’s County on those charges, and, when asked by the court whether she had any prior criminal convictions, she lied, replying “no” despite her previous DUI conviction. She pleaded guilty and was sentenced to unsupervised probation before judgment.

The State’s Attorney’s Office for Prince George’s County, upon discovering the falsehood, filed a motion to strike the judgment; the motion was granted. The State’s
Attorney also notified Bar Counsel of this matter, who docketed a complaint against Respondent and sent a letter to her home and office notifying her and seeking information. Respondent requested a ten-day extension of time to respond, which was granted. Respondent failed to respond before the extended deadline.

The court found a failure to cooperate with the disciplinary process

The hearing judge concluded, and we agree, that Respondent violated Rule 8.1(b) as to all seven complaints constituting this case. Respondent failed to provide any substantive response to Bar Counsel’s reasonable requests for information in all seven matters. In addition, Respondent directly refused to provide her banking institution’s name to Bar Counsel’s investigator when she stated “[y]ou’re the investigator, you figure it out.”

And concluded

Respondent violated numerous rules repeatedly and seemingly without remorse. She failed utterly to cooperate with Bar Counsel in the disciplinary process. And, she exhibited a disturbing pattern of dishonesty, individual instances of which could warrant disbarment on their own. See, e.g., Attorney Grievance Comm’n v. Peters-Hamlin, 447 Md. 520, 547-49 (2016) (restating the proposition that disbarment ordinarily is the sanction for an intentional violation of MLRPC 8.4(c) (dishonesty)). Accompanied, however, by so many violations of the MLRPC, the sanction here is abundantly clear—disbarment is the only appropriate outcome.

(Mike Frisch)

June 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Misconduct Found In Unusual New Jersey Case

The New Jersey Supreme Court agreed with a dissent from the censure recommendation of its Disciplinary Review Board and dismissed ethics charges against an attorney for conduct in the wake of a friend's suicide.

The court concluded that the record did not establish clear and convincing evidence of an ethics violation.

The DRB majority had found misconduct  in the attorney's entry into the friend's condominium and various explanations of her behavior.

In light of these contradictions and inconsistencies, the [District Ethics Committee] determined that respondent had made false statements to disciplinary authorities. It noted that respondent attempted to excuse her conduct by alleging that she had "permission" to enter the condominium, given by the gatekeeper at the condominium complex, and by the manager of the business office as well as by Alma Dobbs, who had told her to "take care of things." Respondent also made conflicting statements to explain her entry to Spence’s condominium with reference to her daughter’s key, when it appears that she entered the condominium using the key found in Spence’s unlocked car. The hearing panel found that these representations were intended to impede the investigation of Rabb’s grievance and, thus, constituted a violation of RPC 8.1(a).

...respondent’s actions must be branded as serious misconduct. In aggravation, respondent took contrary positions during the investigation, in her verified answer, and her statement attached to her verified answer. She persisted in her inconsistencies throughout the DEC hearing, which, in our view, demonstrated a lack of remorse on respondent’s part, as well as a refusal to accept responsibility for her conduct.

Additionally, respondent’s status as a public officer -- a municipal court judge for the City of Orange, New Jersey -- serves as further aggravation.

A dissent found no misconduct.

This disciplinary matter grows out of a tragedy and a personal dispute, unrelated in any way to respondent’s practice of law. On September 15, 2013, Bonita Spence hanged herself in her West Orange, New Jersey condominium, located within a gated community. Spence had been a close friend of respondent’s for over twenty five years and, for a substantial period, the two lived together in a romantic relationship. Although the romance had ended about five years before Spence’s death, they remained close and shared
a co-guardianship of respondent’s 14-year-old niece, L.S., whom respondent had adopted...

For the majority opinion to make sense, one must conclude that respondent set out to steal some relatively inexpensive belongings of her close friend and prior lover and that minor inconsistencies in her statements were part of a calculated, intentional scheme to defraud, a conclusion for which I see no clear and convincing evidence...

In short, this is no more than a family or personal dispute that in my opinion has been litigated inappropriately in an ethics forum because one of the disputants happens to be an attorney. I would dismiss this complaint in its entirety.

Another dissent disagreed with the censure proposed by the majority and would suspend for three months. 

I accept without question that Spence’s death by suicide was a traumatic experience for respondent and that her grief may have clouded her judgment. However, I cannot ignore the reality that respondent was a judge of the Superior Court and is a municipal court judge for the City of Orange. Regardless that she has no history of discipline, throughout the disciplinary process she has demonstrated a lack of remorse and a refusal to accept responsibility for her conduct. Of utmost significance is that, despite being told by the police, after the death of Spence, that to gain access to Spence’s residence she would need to first contact the Surrogate’s office to gain permission, and would required to be accompanied by a representative of the sheriff’s office, respondent took it upon herself to enter Spence’s condominium unit.

My esteemed dissenting colleague’s understanding of the record is markedly different from mine. She seems to have concluded that, on the morning after Spence’s death, respondent went to the Surrogate’s Court to discuss administering the estate. However, I can find no evidence of this in the record and, frankly, the record evidence is exactly to the contrary.

(Mike Frisch)

June 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 21, 2017

"Texts Can Be Deleted" Sex Texts To Client Draw Six-Month Oklahoma Suspension

The Oklahoma Supreme Court ordered a six-month suspension of an attorney admitted in 1992

This is Respondent's first disciplinary matter before this Court. Prior to the interim suspension, Respondent was in private practice primarily representing criminal defense clients. At the time of the incident, he had been in practice for 24 years. Respondent solicited prostitution on two different occasions from his criminal defense client, S.R., who was 25 years old, single, unemployed, and had a newborn infant. Respondent has known S.R. since 2011; he represented her when he worked as a public defender. Since then, he has represented S.R. relating to multiple criminal charges.

Respondent and S.R. never engaged in a physical sexual relationship. There is no evidence in the record that there was any physical touching between them. Respondent's crimes occurred through him soliciting his client, via text message, to engage in prostitution. Respondent initiated and continued a sexual dialogue with his client, S.R. via text message for almost seven weeks. The basis for this summary disciplinary proceeding arises from the criminal charges and his subsequent pleas of nolo contendere.

On the night of June 28, 2016 at 10:18 p.m., Respondent sent a text to S.R. advising her that the municipal cases were dismissed and it was likely the charges would not be reported to the Oklahoma State Bureau of Investigation. He next suggested S.R. take him to lunch instead of re-paying $20. A text conversation then followed with Respondent quickly shifting the "lunch" plan to dinner and a movie. Four hours after this initial text, Respondent crossed a line. He asked his client if S.R. wanted him to be a "gentleman" and asked her if she wanted him "to keep my hands off you?" S.R. replied by asking Respondent if it was "ok to be talking about over text."  Respondent assured her that  "[t]exts can be deleted."He then made it clear that he desired a physical relationship.

Respondent continued to escalate the text dialogue. By 1:00 the following afternoon, 14 hours after his initial suggestion for "lunch," he offered to take S.R. on a shopping spree to Victoria's Secret and he made crude suggestions. He admitted that he had "always had a thing for [S.R.]" and he had "liked [her] for years!" Respondent continued making inappropriate sexual advances via text message toward his client and requesting she text him photographs of her body and give him a "preview." S.R. sent some photos of her unclothed body via text. Respondent said he liked what he was seeing, but he "would like to get the real thing!" Within 5 days of his initial text suggesting "lunch," he solicited S.R., offering her $100 for the "real thing."  S.R. let him know that "[r]egardless of you think [sic.], I haven't ever done that before."  Respondent continued sending sexual text messages to S.R. About one month later, he solicited sex from his client, asking how much she would charge for "straight sex" and what else she would be willing to do and the cost. His client never initiated the sexual text dialogue and never solicited Respondent. His actions were solely driven by Respondent's private motivations.

 Respondent continued to text his client over a span of seven weeks making repeated requests for a sexual relationship with S.R. and sought pictures of her undressed body. There was a clear imbalance of power between S.R. and Respondent. She was indigent and struggling to obtain state supported benefits for food and healthcare for herself and her infant. S.R.had a history of drug abuse, and Respondent had just completed defending her on drug related municipal charges. The relationship between S.R. and the father of her infant was strained. In spite of these many known hardships afflicting his client, Respondent continued to send text messages pressing her for a sexual relationship. Even when S.R. would express how overwhelmed she was feeling with her life situation and at a breaking point, Respondent continued the sexual text dialogue asking to see her and to physically consummate this relationship.

The final solicitation for prostitution from Respondent occurred at a time that S.R. was likely at her most vulnerable point. Respondent sent another text message pressing to see her. S.R. responded letting him know that the Department of Human Services (DHS) had removed her baby from her home and that the police were going to be filing for a warrant and pressing charges against her. When she responded that there is no use in discussing the charges with Respondent because she has no money, he asked her if she would "want to do favors for a fee?"

It was shortly after this last solicitation that S.R. was arrested. After she was in the physical custody of the police, a text message was received from Respondent. The police recognized the Respondent's name and noted that the context of the text message seemed inappropriate and out of line for an attorney-client communication. The police conducted a search of S.R.'s cell phone. After searching her phone, the police next obtained a warrant so they could search Respondent's cell phone. The search revealed the voluminous text messages between Respondent and S.R. and the prostitution solicitations made by Respondent.

The attorney pled no contest to misdemeanor charges.

In the bar case

It is deeply disturbing to this Court that Respondent attempts to shift any responsibility to his client, the victim of his calculated and premeditated crimes and professional misconduct. Respondent expressed that he had a long-standing attraction and desire for S.R., that spanned "years." The eighty-three (83) pages of text messages between Respondent and S.R. paint an unmistakable picture. Respondent initiated this sexual dialogue and he alone pursued a sexual relationship, it was not consensual. Moreover, at the moment S.R. is at her most vulnerable, Respondent urges her again for a sexual relationship offering she could do "favors" for a fee. The pursuit of a sexual relationship was independently driven by Respondent.

Dissents

Combs, C.J., with whom Gurich, V.C.J. and Wyrick, J., join, dissenting

I dissent. Respondent's actions warrant a discipline much greater than a six-month suspension with credit for time served on interim suspension, effectively reinstating the Respondent as of the date of the mandate in this proceeding. I would suspend the Respondent for two years with credit for time served on interim suspension with payment of costs within 90 days of the effective date of this opinion.

Kauger, J., concurs in part; dissents in part.

(Mike Frisch)

June 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, June 20, 2017

The Negative Pregnant Argument Fails

One interesting aspect of the District of Columbia Hearing Committee report (noted here) in In re Larry Klayman is the handling of the expert testimony offered in his defense of the claim that he violated the former client rule

The expert is Professor Ronald Rotunda; the Hearing Committee opined

Respondent maintains that no Rule 1.9 violation occurs when a lawyer sues a former client to “enforce” a contract on behalf of a new client who was on the other side of the negotiating table when the lawyer negotiated the contract. See Resp. Br. 12-13, 20, 21, 23, 24. Respondent and his expert, Professor Rotunda, stake this interpretation on Comment 1 to Rule 1.9, which uses as an example “seek[ing] to rescind on behalf of a new client a contract drafted on behalf of the former client.”

According to Rotunda, this example contains a “negative pregnant”—it does not say “rescind or support”—and the failure to use that language means that a lawyer who drafts a contract for one client can later sue that same client on behalf of the other party, so long as he never sued on behalf of the first client, and the lawsuit seeks to “enforce” rather than rescind the contract. Tr. 513, 528. Rotunda takes this further, arguing that matters are the same for Rule 1.9 only if the lawyer changes sides in a specific lawsuit or otherwise attacks his work product. E.g., Tr. 504-506, 509, 512, 513. We reject this reasoning; such a rule would smother Rule 1.9 in contract cases because every litigant can claim to be the one “enforcing” the contract.

Rotunda does not offer any support for this theory. So far as we can tell it is not discussed or mentioned in any of his academic writing and has never been adopted in any case. The only authority that is superficially close, oddly enough, is in the commentary to Florida’s Rule 4-1.9, which since 2006 has stated that matters are substantially related “if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client.” Fla. R. 4- 1.9, cmt. (emphasis added). Although the comment mentions “attacking work” for a former client, it cannot plausibly be read to support Respondent’s and Rotunda’s theory because a contract case will always involve the “same transaction” as the contract itself. A lawyer simply cannot negotiate a contract for one side and then later sue his client on behalf of the other side.

The “attacking work” comment addresses situations where the prior representation did not involve the same transaction or legal dispute. For example, Florida courts have found that defending a product-liability suit concerning a particular model of lawn mower was substantially related to a later product-liability suit concerning the same model; whereas defending a hospital in a negligence case was not substantially related to a later negligence suit against the same hospital. Health Care & Ret. Corp. of Am. v. Bradley, 961 So. 2d 1071, 1073-1074 (Fla. App. 2007) (discussing Sears, Roebuck & Co. v. Stansbury, 374 So. 2d 1051 (Fla. App. 1979)). In the Stansbury case, the lawyer sought to represent a plaintiff bringing a product-liability claim on a lawnmower where the lawyer had defended a product-liability case for the same company, based on the same lawnmower. Id. at 1073. Because the plaintiff was new, the matter did not arise from the same transaction or legal dispute, but lawyer would nevertheless have been attacking his prior work for the company. Id. The negligence case, on the other hand, did not involve attacking the lawyer’s work for the hospital because each negligence claim “turns on its own facts.” Id. at 1073-1074. Thus, Florida’s commentary about attacking one’s work is no help to Respondent because the three matters here were the same as matters he handled for Judicial Watch.

In D.C. , the Board on Professional Responsibility considers the sanction de novo.

The Court of Appeals in turn defers to the Board on sanction per Rule XI, section 9(h)

the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.

 (Mike Frisch)

June 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Indefinite Suspension In Ohio

From the web page of the Ohio Supreme Court

A Kent attorney who pleaded guilty to 20 fourth-degree felony counts of pandering sexually oriented material involving a minor was suspended indefinitely by the Ohio Supreme Court today.

Andrew O. Martyniuk admitted in 2014 that he knowingly solicited, received, purchased, exchanged, possessed, and controlled child pornography. He was sentenced to five years in prison, which was suspended on the condition that he serve five years of community control, pay a $5,000 fine plus court costs, complete a sex-offender evaluation, and register as a Tier II sex offender for 25 years. In a per curiam opinion, the Court majority noted Martyniuk never actively engaged in the practice of law.

Martyniuk Was Library Staff Member Before Arrest

At his disciplinary hearing, Martyniuk testified that after he was honorably discharged from the U.S. Air Force in 1992, he served as a research associate at the University of Cincinnati during and after completing law school. He said he drafted several powers of attorney for people he knew through church, but never charged for his services, and then moved into his parent’s home in Kent in 2003. He worked as a fiscal officer for the Kent Free Library until he was fired in 2013 when his employer discovered pornography on his office computer.

Since his arrest he has been the primary caretaker of his elderly parents, and expressed to the Board of Professional Conduct a desire to practice law.

“He has presented no evidence regarding a mental-health diagnosis or his ability to engage in the competent, ethical, and professional practice of law, either now or in the future,” the Court’s opinion stated.

Others Suspended for Sexually Motivated Crimes Involving Children
Based on the conviction, the Office of Disciplinary Counsel brought several charges against Martyniuk for violating the rules governing Ohio attorneys. The board recommended an indefinite suspension with no credit for the time served under an interim suspension imposed by the Court following his felony convictions.

The opinion noted that the board considers several issues before recommending a sanction, including aggravating circumstances that can increase a penalty and mitigating factors that can lessen it. The sole aggravating factor the board found was that Martyniuk committed multiple offenses. The board also found that Martyniuk had no prior disciplinary record, self-reported his conviction to the disciplinary counsel, cooperated during disciplinary proceedings, and was penalized for his conduct.

The Court cited three other instances where attorneys convicted of sexually motivated crimes involving children were indefinitely suspended and found the sanction was appropriate for Martyniuk.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, William M. O’Neill, and R. Patrick DeWine joined the majority opinion.

Justice Terrence O’Donnell stated he would permanently disbar Martyniuk. Justice Patrick F. Fischer did not participate in the decision.

2016-1821. Disciplinary Counsel v. Martyniuk, Slip Opinion No. 2017-Ohio-4329.

The above summary was written by Dan Trevas. (Mike Frisch)

June 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 19, 2017

Peter Paul and Larry: Suspension With Fitness Proposed For Larry Klayman

A District of Columbia Hearing Committee has recommended a suspension with reinstatement on a showing of fitness for Larry Klayman in a ethics matter brought as a result of a complaint filed by Judicial Watch

Respondent Larry E. Klayman is charged with violating the Rules of Professional Conduct by representing three individuals in litigation against his former client Judicial Watch, Inc., a nonprofit organization. The three cases were brought by: a former employee of Judicial Watch (Sandra Cobas); a donor to the organization (Louise Benson); and a former client (Peter Paul). Disciplinary Counsel charges that the three matters were the same or substantially related to matters that Respondent handled as Judicial Watch’s general counsel and that his conduct violated Rule 1.9 (or its Florida equivalent) and in one of the matters seriously interfered with the administration of justice in violation of Rule 8.4(d). Disciplinary Counsel recommends that Respondent be suspended for 90 days, with 60 days stayed, pending his completion of a continuing legal education course on conflicts of interest.

The committee (chaired by Theodore (Jack) Metzler) rejected a host of contentions in its 43-page opinion and considered aggravating factors

Despite having accepted Florida’s reprimand [in an earlier matter], Respondent now denies responsibility for his misconduct there. Resp. Br. 36-37. He denies owing his client any refund in the first place and makes excuses for his repeated failure to abide by his promises to pay. Id. Remarkably, Respondent suggests that he agreed to the reprimand “to simply put the matter behind [him],” and claims that his conduct did not involve “any . . . ethical violation.” Resp. Br. 37 n.4. That simply is not true. Respondent appears to believe that denying responsibility for misconduct that he previously admitted somehow mitigates his present misconduct. We think the opposite.

We also find that Respondent’s conduct in this proceeding was dishonest and lacked candor in further aggravation of his misconduct. The most egregious examples of this are described above: Respondent testified falsely that he acted under the advice of counsel (Mr. Dugan) when he entered his appearance for Benson. He did not. Respondent’s post hearing brief repeatedly mischaracterizes Mr. Dugan’s testimony, particularly with regard to whether Dugan prepared the opposition to the motion to disqualify Respondent in the Benson case, agreed with the arguments it contains, and advised Respondent regarding his representation of Paul. We also find Respondent’s characterizations of the evidence lack the candor required of an attorney in a disciplinary proceeding. In one particularly inexplicable example, Respondent says the letter soliciting Benson’s donation, which he signed as General Counsel, had “nothing to do with his role as General Counsel of Judicial Watch.” Resp. Br. 9 (Respondent’s italics)

Sanction

Respondent’s misconduct was serious and escalating. He does not recognize the seriousness of the misconduct or even agree that it is misconduct at all. His conduct since the three representations includes both the misconduct in Florida and his misrepresentations and lack of candor to this tribunal. In the view of this hearing committee, Respondent’s conduct raises serious concerns about whether he will act ethically after his period of suspension has run, and supports imposing a condition that he  demonstrate his fitness before resuming the practice of law. See In re Cater, 887 A.2d 1, 24 (D.C. 2005)...

We find by clear and convincing evidence that Respondent violated Florida Rule 4-1.9(a) in Count I, and D.C. Rule 1.9 in Counts II and III of the Amended Specification of Charges. We likewise find that Respondent violated Rule 8.4(d) in Count III. In light of Respondent’s misconduct and the aggravating and mitigating circumstances, we recommend that Respondent be suspended from the practice of law for 90 days with readmission upon showing his fitness to practice law.

The opinion may be accessed at this link. (Mike Frisch)

June 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

All Rise For The Mourner's Kaddish

The New Jersey Supreme Court has disbarred an attorney who had neglected a host of client matters, failed to respond to the ensuing bar complaints and misappropriated entrusted funds on numerous occasions.

The attorney already is subject to an interim suspension. 

As noted in the report of the Disciplinary Review Board, some of the misappropriations involved unrelated real estate and personal injury matters.

One victim was Congregation Agudath Achim. 

Because respondent had previously misappropriated Romeo’s and the Congregation’s funds by way of unidentified and unauthorized disbursements, he did not have their respective funds available when he issued ATA2 check numbers 1696 and 1760. Thus, in both the Congregation and Romeo matters, respondent engaged in a pattern of lapping, by using monies received in connection with [an] Estate and other client matters to fund the $50,000 check to the Congregation and the $56,000+ check to Romeo. He also repeatedly failed to communicate with the Congregation and with Romeo, both of whom attempted to reach him via letter and phone.

Respondent unequivocally stated to the OAE, in a recorded interview, that he knew that he was required to safeguard the Congregation’s $50,000 and Romeo’s $59,045.66 in trust; that he did not lose track of or forget that he was holding funds for the Congregation and Romeo; and that he reviewed the ATA bank statements. Respondent also stated that, when he disbursed monies against the Congregation and Romeo funds, he knew that he did not have authorization from the clients to use their funds for his own purpose or for that of any of his other clients.

The DRB details several other instances of misuse of client funds and 

Further, respondent’s representation to the OAE that he was unable to produce those statements because they had been damaged during two storms was false. Indeed, when the OAE reviewed respondent’s files, it found the missing statements, "most of which were not damaged."

Knowing misappropriation was found and disbarment was recommended and imposed . (Mike Frisch)

June 19, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Vermont Reinstates Reciprocally Suspended Attorney

The Vermont Supreme Court has reinstated an attorney who had been suspended for two years by the New York Appellate Division for the Second Judicial Department and reciprocally sanctioned in Vermont.

The New York sanction was based on a misdemeanor guilty plea to identity theft.

The charge alleges that the respondent engaged in illegal conduct that adversely reflects on her honesty, trustworthiness, or fitness as a lawyer, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(b). On or about November 15, 2011, before the Honorable Stephen L. Braslow, in the County Court, Suffolk County, the respondent entered a plea of guilty to the crime of identity theft in the third degree (Penal Law § 190.78), a class A misdemeanor. On or about January 10, 2012, Judge Braslow sentenced the respondent to a period of three years of probation.

She had opposed reciprocal discipline in Vermont without success.

[the court] note[d] some irony in respondent's argument that she did not really engage in misrepresentation with intent to defraud; she merely misrepresented that fact to a court.

The court also rejected her claim of duress in the criminal matter.

Now

Based on the evidence presented, the panel finds that petitioner has the moral qualifications and competency and learning required for admission to practice in the state of Vermont, that she has been rehabilitated, and that her resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor will her resumption of the practice of law be subversive of the public interest.

(Mike Frisch)

June 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Never, Ever

The Ohio Board on Professional Conduct proposes a reprimand of a common pleas court magistrate who advised police of her judicial position when stopped for a suspected DUI

Respondent testified that she had had a few drinks, waited three hours before driving, thought he was fine, had committed to be the designated driver and promised her friend a ride home. She thought she was fine to drive. She will never, ever do that again.

She had advised the police that she was a judge, that her son was a Secret Service officer, that she had not flunked the field sobriety test and "would not be driving drunk."

The magistrate pled guilty to misdemeanor reckless driving. (Mike Frisch)

June 19, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)