Tuesday, July 26, 2016

Assistant Public Defender Convicted And Public Defender Loses Job

The Georgia Supreme Court has suspended an attorney who had not adequately responded to ethics charges.

13WMAZ reported on criminal charges in April 2016

A Macon attorney admitted in federal court that she tried to sell drugs to a GBI undercover agent last year.
 
Holly Hogue Edwards pleaded guilty Wednesday to one count of distributing oxycodone and methamphetamine, according to court documents.
 
She faces a sentence of up to 20 years and a fine of up to a $1 million dollars.
 
According to a plea agreement, Edwards met the GBI undercover agent on June 4 of last year at the parking lot of Church's Chicken on Hardeman Avenue in Macon.
 
She took $500 from the agent and promised to deliver an "eight ball" of methamphetamine and 10 oxycodone pills.
 
Edwards then drove to a nearby Citgo station to meet with her supplier, the court document says, but returned only with the pills.
 
She promised to deliver the meth later in the day.
 
The undercover agent tried to contact Edwards, but she never delivered the meth, the agreement says.
 
In exchange for her guilty plea, federal prosecutors agreed to drop three other charges against Edwards.
 
She is scheduled to be sentenced July 6.
 
Holly Hogue Edwards has appeared on Law Call on 13WMAZ, offering advice on legal matters.
 
The Georgia Bar Association web site on Wednesday still listed Edwards as a "member in good standing."
 
First Coast News had the story of how this situation led to another casualty
 
Kevin Gough, public defender of the Brunswick Judicial Circuit, was dismissed Thursday a day after one his former assistants pleaded guilty in Macon to a federal charge of selling methamphetamine and oxycodone, court records show.

After a meeting Thursday morning with Bryan Thompson, executive director of the Public Defender Council, it was agreed that Gough “would no longer serve as Brunswick [Circuit Public Defender],” a release from Thompson’s office said...

Area criminal defense lawyers have told the Times-Union privately that Holly Hogue Edwards’ representation of public defender clients while she was under a four-count federal indictment could leave some criminal cases subject to future appeals.

Edwards entered a plea Wednesday in federal court in Macon, court records show. In exchange for her guilty plea, the government will dismiss three counts of distributing the painkiller oxycodone when Edwards is sentenced July 6, the plea agreement says.

In February, Edwards was working for the Public Defenders office in Brunswick and was representing defendants in bail hearings in Glynn County Magistrate Court.

(Mike Frisch)

July 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Right To Appointed Counsel Upheld In Termination Of Parental Rights Case

The New Jersey Supreme Court has held that an indigent parent has the right to appointed counsel in a matter involving termination of parental rights.

From the headnotes

On August 1, 2013, with the agency’s consent, J.E.V. and D.G.V. filed a complaint for adoption. The court entered an order scheduling a hearing and directing that L.A. receive notice. The order stated, among other things, that L.A. had “the right to appear, object, file written objections, [and] have counsel or court-appointed counsel, if unable to afford counsel.” The notice advised L.A. as follows: “If you are unable to obtain an attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000. You may also contact the Lawyer Referral Services of the Essex County Bar Association at (973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid Society at (973) 622-0063 or the Essex County Surrogate’s Court at (973) 621- 4900. If you qualify, the Court will appoint counsel for you free of charge.” On October 31, 2013, at the case management conference, the trial court briefly raised the topic of representation with L.A., but did not tell her that a lawyer would be appointed to represent her if she could not afford one.

The court presided over a two-day trial in February and March 2014. J.E.V. and D.G.V. were ably represented by counsel; L.A. appeared pro se. L.A. was confused about several aspects of the trial process, the role of expert psychologists, and the legal standards that applied to the case. Petitioners called eight witnesses to testify, including an expert psychologist; L.A. declined to cross-examine most of them. L.A. testified but did not call an expert or any other witnesses. L.A. also declined to make a closing statement. At the close of the trial, the court concluded that the statutory requirements had been met and terminated L.A.’s parental rights.

L.A. appealed, and the Appellate Division appointed counsel to represent her. The panel reversed and remanded for a new trial, holding “that L.A. had a constitutional and statutory right to court-appointed counsel beginning before trial, when the private adoption agency first determined to proceed with an adoption over her objection.” 442 N.J. Super. 472, 474-75 (App. Div. 2015)...

HELD: Indigent parents who face termination of parental rights in contested proceedings under the Adoption Act, N.J.S.A. 9:3-37 to -56, are entitled to counsel under Article I, Paragraph 1 of the State Constitution...

The Court holds that an indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel. A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution. In so holding, the Court draws on certain common principles from B.R. and the Mathews test to analyze the due process issue. The termination of one’s parental rights plainly “implicates a fundamental liberty interest.” B.R., supra, 192 N.J. at 305. When parental rights are terminated, the tie between parent and child is severed completely and permanently. That is true whether the State files a petition to terminate or a prospective adoptive parent proceeds under the Adoption Act. Without the assistance of counsel to prepare for and participate in the hearing, the risk of an erroneous outcome is high. The parties are best served when both sides present arguments with the help of able attorneys; the outcome not only protects the parent’s rights and the child’s welfare, but also helps bring finality to an adoption proceeding. (pp. 24-27)

(Mike Frisch)

July 26, 2016 in Current Affairs | Permalink | Comments (0)

Ticket-Fixing Judge Reinstated In Ohio

The Columbus Dispatch has a story of a judge's reinstatement to the Ohio Bar.

Former Franklin County Judge Harland H. Hale's license to practice law was reinstated today by the Ohio Supreme Court.

Hale's license was suspended in 2014 for six months for fixing a speeding ticket for a fellow lawyer and for attempting to cover up his action. He did not seek reinstatement until June this year. The court approved the reinstatement today.

Justices voted 5-2 in Nov. 2014 to suspend the license of the former environmental court judge who occasionally was assigned to municipal court to handle traffic cases.

The court first rejected a recommendation by the disciplinary counsel that six months was too lenient a suspension, but later accepted the same sentence, with Chief Justice Maureen O'Connor and Justice Judith Ann Lanzinger dissenting that it was not harsh enough.

Hale admitted improperly dismissing a 2011 speeding ticket issued to Patrick M. Quinn, a lawyer whose firm was defending Hale in a sexual-harassment case, later settled out of court. Hale also falsified a court entry stating that the prosecutor had dismissed the ticket. Quinn pleaded guilty to speeding and paid $171 in fines and costs.

The Dispatch revealed that Hale fixed the speeding ticket. Hale resigned from the court, but still wants to practice law.

The court cited Hale for "serious violations of his ethical duties as both an attorney and judge" as well as "efforts to cover his tracks."

Earlier coverage from the Columbus Dispatch.

Former Franklin County Environmental Court Judge Harland Hale argues he already has paid a big price for fixing a speeding ticket.

The ex-judge shed tears yesterday as he talked about resigning on May 24 in response to a charge that he dismissed a ticket issued to a lawyer whose firm was defending Hale against sexual-harassment lawsuits.

He talked of losing his seat on the bench and his fear of what the epitaph on his grave marker might read, of disappointing dirt-poor parents who only ever asked that he do what was right.

The Ohio Supreme Court order is linked here. (Mike Frisch)

July 26, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Former Prosecutor Charged With Ethics Violations In Police Shooting Case

A former Assistant Corporation Counsel was charged with ethical violations in his prosecution of a criminal case.

The Chicago Tribune had a story about the conduct and his resignation

A veteran attorney in Mayor Rahm Emanuel's administration resigned hours after a federal judge ruled Monday that he intentionally concealed crucial evidence in a trial over a fatal Chicago police shooting and then lied about his reasons for doing so.

The abrupt departure of Senior Corporation Counsel Jordan Marsh, who has worked for the city since 1997, was the latest black eye for the mayor's office in the continuing fallout over the city's handling of police shootings.

In overturning the jury's verdict in a lawsuit brought by the family of Darius Pinex, U.S. District Judge Edmond Chang imposed sanctions against the city and Marsh, ordering that they pay attorney's fees to plaintiffs that likely will amount to hundreds of thousands of dollars even before a retrial can take place.

"Attorneys who might be tempted to bury late-surfacing information need to know that, if discovered, any verdict they win will be forfeit and their clients will pay the price," Chang wrote in his 72-page opinion. "They need to know it is not worth it."

Chang faulted lax training and oversight at the city's Law Department for hampering the production of records from the Chicago Police Department and other city agencies when officers are accused of misconduct.

Corporation Counsel Stephen Patton said Monday night that the city would "double down" on its efforts to properly train lawyers to produce records. He rejected the notion that recent sanctions pointed to systemic problems in his office.

He is charged with false statements to the tribunal, offering false evidence and concealing evidence.

One notable aspect of the disciplinary case is that the charges were filed within six months of the court ruling.

If this conduct had been found by a court in the District of Columbia, such prompt charges would be inconceivable. (Mike Frisch)

July 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Mother 's Forgiveness

A non-practicing attorney has been suspended for three months by the New Jersey Supreme Court as a result of an assault conviction.

The victim was his mother.

From the report of the Disciplinary Review Board

During his allocution before the court, on October 19, 2010, respondent offered a sparse factual basis in support of his guilty plea. Specifically, he admitted that, on May 12, 2010, while in Edison, he attempted to cause significant bodily injury to his mother, Keung Jae Park (Mrs. Park), by forcing her to take a quantity of prescription pills, knowing that he was harming her by doing so. As part of the plea negotiation, respondent agreed to immediately enter a long-term, inpatient drug treatment program pending his sentencing date.

Subsequently, on January 6, 2011, Judge DeVesa held a sentencing hearing. Prior to imposing sentence, Judge DeVesa noted that respondent had committed a very serious and violent assault against his mother, which included a threat to kill her. Thus, the judge denied respondent’s appeal from the State’s adverse PTI determination. In determining the appropriate sentence to be imposed, Judge DeVesa recited a specific need to deter respondent. Nevertheless, he found that respondent’s crime had been "triggered by a use of Controlled Dangerous Substances as well as a failure to really have proper treatment for some mental health issues." Moreover, the judge acknowledged, as a mitigating factor, the absence of any criminal history. Thus, in accordance with the terms of the plea agreement, Judge DeVesa sentenced respondent to five years of non-custodial probation and ordered him to submit to an updated mental health evaluation, to complete the inpatient drug treatment program, and to take any medication prescribed for him.

The Office of Attorney Ethics had sought a six-month suspension

Standing alone, the nature of respondent’s violent behavior in this matter and the terror inflicted on the victim would warrant a lengthy suspension. Although respondent’s criminal behavior was undoubtedly linked to his mental health and substance abuse issues, it was more egregious than the violent behavior in the censure cases cited by respondent and by the OAE in its summary...

Over five years have passed since respondent assaulted his mother, as they share a home. She has apparently forgiven him. Finally, respondent has no disciplinary history.

No interim suspension was imposed for the conviction. (MIke Frisch)

July 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Suspended Means Suspended; Disbarred Means Disbarred

A suspended attorney who had continued to practice in violation of the order has been disbarred by the Indiana Supreme Court.

On or about the date his active suspension began, Respondent entered his appearance as counsel for the mother in a paternity action. Two months later, after the paternity court had ordered Respondent’s appearance be withdrawn due to his suspension, Respondent filed with the court a minute entry purporting to represent the mother as her “translator” and requesting a final hearing be set. As a result of that conduct, we issued an order finding Respondent in contempt and ordering Respondent to pay a fine of $500 within sixty days. Matter of Lehman, ___ N.E.3d ___, 2015 WL 10844474 (Ind. Oct. 7, 2015). Respondent has not paid that fine.

The court found he represented clients in two other matters and concludes

The sanctions this Court may impose for contempt include ordering a fine, disgorgement of ill-gotten gains, imprisonment, and extension of an attorney’s suspension or removal from practice. See Matter of Hurtt, 43 N.E.3d 567 (Ind. 2015); Matter of Haigh, 7 N.E.3d 980 (Ind. 2014). Respondent’s repeated contemptuous acts over the years have resulted in fines, imprisonment, and the suspension of his law license. None of the sanctions previously imposed has deterred Respondent from continuing to engage in the practice of law in defiance of his suspension order, and Respondent’s repeated violations of that order have exposed the public to the danger of misconduct by an attorney who has yet to prove his remorse, rehabilitation, and fitness to practice law through the reinstatement process. Under these circumstances, the Court concludes that disbarment is warranted.

He has also been criminally convicted of unauthorized practice. (Mike Frisch)

July 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 25, 2016

"As A Result Of Respondent's Conduct, The Bankruptcy Court And Opposing Party Were Required To Endure A Proceeding Which Was Groundless"

A public reprimand has been imposed by the South Carolina Supreme Court for misconduct in a bankruptcy matter

By order dated October 27, 2015, respondent was sanctioned by the Honorable David R. Duncan, a judge of the United States Bankruptcy Court for the District of South Carolina, and assessed a fine of $5,000.00. The sanction arose out of respondent's conduct in a bankruptcy court hearing held on August 25, 2015. At the time of the hearing, the parties were in binding arbitration and respondent's arguments were still under consideration by the arbitrator. Nevertheless, during the bankruptcy hearing, respondent made arguments based on the United States Supreme Court decision in Jesinoski v. Countrywide Home Loans, 574 U.S. ___, 135 S.Ct. 790, 190 L.Ed.2d 650 (2015). Respondent admits the arbitration proceeding was the sole forum before which to raise his argument under Jesinoski and that he should not have presented the Jesinoski argument to the bankruptcy court. As a result of respondent's conduct, the bankruptcy court and opposing party were required to endure a proceeding which was groundless.

Further, respondent admits that, at the hearing, he told Judge Duncan he was proceeding at the direction of the Bankruptcy Trustee when, in actuality, he was responsible for the argument. Respondent later wrote a letter to Judge Duncan in which he called attention to his misstatement and apologized to all concerned.

Respondent acknowledges the Court deserves no less than complete, candid disclosures which are truthful at the time they are made. He agrees his misstatement regarding the Bankruptcy Trustee was not excused by his corrective disclosure in his letter to the bankruptcy court.

(Mike Frisch)

July 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

New Jersey A Forgiving Place To Unethical Lawyers

An attorney with a lengthy record of prior discipline has been suspended for three months for a retainer agreement violation.

The attorney was admitted in 1993, suspended three months for false statements to a tribunal in 1999, admonished in 2001 for record keeping violations, admonished in 2004 for possession of marijuana, censured in 2011 for failure to appear at a criminal trial, reprimanded by consent in 2013 for practicing while ineligible, and censured in 2014 for again practicing while ineligible.

From the Disciplinary Review Board report in the fresh misconduct case

The evidence not only clearly and convincingly establishes that respondent failed to provide Reyes with a writing setting forth the basis or rate of his fee, but also that he lied about it to the committee investigator and later testified about it falsely at the DEC hearing. As the DEC aptly pointed out, respondent’s June 24, 2014 letter to Byrnes implied that the document that Cruz actually had prepared was a retainer agreement that he had prepared. However, at the DEC hearing, he testified about a hand-written retainer agreement that he had prepared at the courthouse during his initial meeting with Reyes. Respondent claimed that he had either lost or failed to maintain a copy of this agreement. His testimony simply lacks credibility. Respondent is, therefore, guilty of violating RPC 1.5(5).

We do not agree, however, with the DEC’s conclusion that the evidence did not clearly and convincingly establish respondent’s failure to communicate with Reyes. The complaint alleged that (i) respondent either failed to appear in court or was late on twelve of Reyes’ fourteen appearances and that he failed to communicate to Reyes that he would not appear or would be late; (2) his failure to do so left Reyes "afraid, nervous  and extremely worried;" and (3) although Reyes frequently asked respondent to provide her with the discovery in her matter, he failed to communicate with her about it in any meaningful way.

A record of sanctions like these would get you disbarred in many jurisdictions.

And he lied here.

What is wrong with New Jersey? (Mike Frisch) 

July 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Law Of Sleeping Jurors

The right to an attentive jury is discussed in this opinion of the New Jersey Supreme Court.

From the headnote

 Defendants have a constitutional right to an impartial and mentally competent tribunal. Jury irregularity, including sleeping, may violate this right if it results in prejudice. There is little New Jersey case law addressing the ramifications of sleeping jurors, but the Appellate Division has held that a court must investigate allegations that a juror has been sleeping. However, the Appellate Division has suggested, and a federal court of appeals has held, that if the judge personally observes that the juror is awake, a voir dire is unnecessary. If, on the other hand, a court finds that the irregularity of a sleeping juror may exist, the next step is to determine whether the juror’s inattention was prejudicial to the defendant and, therefore, capable of producing an unjust result. To that end, the Appellate Division has found that the important question is when the juror was inattentive, asking not just whether inattentiveness occurred, but whether it occurred during a critical portion of the trial. Once a judge determines,  based on his observations and individual voir dire of the juror, that the juror was sleeping, the Appellate Division has instructed that remedial action is required.

...the Court holds going forward that the trial court and counsel have a duty to be certain that a defendant’s trial is heard by an alert and attentive jury. Where the trial judge notices that a juror is inattentive, the judge will have broad discretion to determine the appropriate level of investigation and corrective action required. Where a party alleges that a juror is inattentive, the judge should adequately explain on the record any personal observations regarding the juror’s attentiveness. A finding of attentiveness based on these personal observations generally ends the inquiry and will be reviewed to determine whether the finding is adequately supported in the record. If a judge does not personally observe a juror’s attentiveness, the judge should conduct an individual voir dire of the juror. If, following voir dire, a determination is made that the juror was inattentive during an inconsequential part of the trial, the judge will have broad discretion to determine the appropriate corrective action. A finding that the pertinent portion of the trial was inconsequential will be reviewed for harmful error. On the other hand, if a determination is made that the juror was inattentive during a consequential part of the trial, the judge must take appropriate corrective action, such as replaying a recording or videotape, rereading a portion of the jury charge, or excusing the juror, among other steps.

The court affirmed the conviction. (Mike Frisch)

July 25, 2016 | Permalink | Comments (0)

Ex-Husband Wanted To Help; Attorney Convicted And Suspended

Reciprocal discipline was imposed in Massachusetts as a result of a Connecticut sanction stemming from the attorney's criminal conviction.

On September 2, 2015, the respondent pleaded guilty (pursuant to North Carolina v. Alford, 400 U.S. 25 (1970)) in the Superior Court for the Judicial District of New London, Connecticut, to accessory to burglary in the third degree, a felony, in violation of C.G.S. §§ 53a- 8 and 53a-103. The respondent was sentenced to incarceration for four years, with execution suspended and probation for three years. As a result of her conviction, the respondent was suspended from the practice of law in Connecticut for one year by the Superior Court for the Judicial District of Waterbury, Connecticut, on October 5, 2015.

On February 2, 2016, bar counsel filed a notice of conviction and petition for reciprocal discipline with the Supreme Judicial Court for Suffolk County based upon the Connecticut order of suspension. On February 3, 2016, the parties submitted to the court a waiver in which they agreed to the entry of an order suspending the respondent for one year, retroactive to October 12, 2015, the effective date of the respondent’s Connecticut suspension. The parties further agreed that the respondent’s reinstatement to the Massachusetts bar be conditioned upon her reinstatement in Connecticut. On March 14, 2016, the Court (Hines, J.) so ordered.

The Norwich Bulletin reported on the incident in which she persuaded her ex-husband beat up her just ex-boyfriend, who got a three-year sentence.

Assistant State's Attorney David Smith, who was the prosecuting attorney, said that on June 11, 2014, the day after Doerr-Hicks broke up with her boyfriend, she and her ex-husband, James Hicks, went drinking and decided to drive to the boyfriend's home at about 1 a.m.
During the night, Doerr-Hicks sent the boyfriend numerous threatening texts, Smith said. "She told (Hicks) to commit the assault," he said.
Doerr-Hicks told police she had broken up with her boyfriend because she suspected him of cheating. A drunken Hicks, kicked in the front door of the ex-boyfriend's house and attacked him as he slept.
"I was still in my bed when he jumped me and started punching me in the head and face," the man told police.
Hicks inflicted bloody injuries to the man's face and head, causing him to be treated at Day Kimball Hospital in Putnam, according to police.
"It's sad she (Doerr-Hicks) won't be serving the citizens of the quiet corner," said Doerr-Hicks' defense attorney Mark A. Dubois. "She understands that her actions have consequences," he said.
Doerr-Hicks said she will continue as a paralegal during her suspension.
Doerr-Hicks is a former Bulletin reporter.
(Mike Frisch)

July 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, July 24, 2016

Judge May Not Fill Out Annulment Questionnaire

A judicial ethics opinion from South Carolina Advisory Committee on Judicial Conduct answers the following question

A family court judge has been requested to fill out a detailed questionnaire, on behalf of a family member, for use in an annulment proceeding within the Catholic Church. The questionnaire seeks information as to the judge’s opinion of the strengths, weaknesses, traits, and honesty of the judge’s relative and the relative’s former spouse. The questionnaire also seeks detailed facts as the courtship, wedding, marriage, and breakdown of the marriage. The response is required to be notarized. The information will be used by the Catholic Church in determining whether the judge’s relative is entitled to an annulment. The judge inquires as to whether it would be proper, under the Code of Judicial Conduct, to complete such a survey.

Answer: No.

The detailed questionnaire here seeks the judge’s opinion, in part, as a character witness regarding the judge’s relative and the relative’s former spouse. In addition, the judge’s completion of the questionnaire could be considered a use of the judge’s position to gain an advantage for his relative’s claim in the annulment proceedings. Thus, it would not be proper for the judge to serve a witness (by completing the questionnaire) to the tribunal.

(Mike Frisch)

July 24, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, July 23, 2016

Informal Admonition For Switching Sides In Divorce Case

The District of Columbia Office of Disciplinary Counsel has informally admonished an attorney who engaged in a conflict of interest by representing the husband in a divorce case after a consultation with the wife.

You met with W for about three hours at your home to discuss the divorce. W states that you advised her to file for divorce in the District of Columbia, rather than in Maryland. You also provided information to W regarding "safe house and women's shelter information." At the conclusion of the meeting, you informed W that you could not represent her because of your social and business relationship with H.

Approximately one year after her consultations with you, W filed her pro se divorce action in the Superior Court of the District of Columbia, Family Division. Shortly thereafter, you entered your appearance in the matter on behalf of H. About two weeks later, W filed a motion with the court that she entitled, "Notice of a Conflict of Interest." In her motion, she informed the court of her prior consultations with you, and she asked the court to disqualify you from representing H. The court granted W's motion and removed you from the matter.

Disciplinary Counsel rejected the suggestion that there had been no attorney-client relationship with the wife.

When W spoke with you on the telephone and subsequently met with you, she did so for the purpose of seeking legal advice regarding her divorce from H. W states that she disclosed confidential information during the course of the conversations with you, before you advised her that you could not represent her. While you claim you do not remember the confidential information, both you and W agree (i) that you consulted with W, and (ii) that you provided W with advice regarding how and where to file for divorce from H. Based on these facts, we find that there was an attorney-client relationship between you and W.

The case is In re Roquelle Jeri, Bar Docket No, 2015 - D234 and can be found at this link.

The conduct likely violated the rule governing duties to a prospective client even if a full attorney-client was not formed. (Mike Frisch)

July 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 22, 2016

Moonlighting By Disabled Police Officer Not Dishonest

The Illinois Review Board finds that no misconduct was proven and recommends that ethics charges be dismissed in a matter involving an attorney already suspended in an unrelated matter.

This matter arises out of the Administrator's one-count complaint charging Respondent with engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Respondent, a Cook County Sheriff's Office police officer, suffered an injury while on duty. He filed a workers' compensation claim and eventually collected temporary total disability benefits for a period of over two years. While on disability, Respondent continued to work and receive income from two other jobs, as a private-practice attorney and as a McHenry County commissioner. For most of the time at issue, he did not have approval to work these two other jobs, as required by workplace rules. He was eventually terminated from the sheriff's department for working secondary employment without approval and while receiving disability benefits.

Based on this conduct, the Administrator filed its complaint against Respondent. Following a hearing, the Hearing Board found that Respondent had engaged in dishonest conduct by intentionally failing to obtain approval for his secondary employment while on disability so that he could continue to collect full disability payments while also earning other income. It recommended that Respondent be suspended from law practice for one year.

Both parties appealed. On appeal, the Respondent challenged the Hearing Board's finding that he had engaged in dishonest conduct and asking that the proceedings against him be dismissed. The Administrator agreed with the one-year suspension but asked the Review Board to specify that it should begin at the conclusion of a suspension of three years and until further order that Respondent was currently serving based on a prior disciplinary proceeding.

The Review Board reversed the Hearing Board's finding of misconduct, finding that the Administrator failed to prove that Respondent had engaged in dishonest conduct because he did not show by clear and convincing evidence that Respondent knew his disability benefits would or could be reduced by his secondary employment, or that his benefits, in fact, could have been reduced by his secondary employment. It thus recommended that the case be dismissed.

(Mike Frisch)

July 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Silly" Contempt

An attorney's resignation was accepted by the New York Appellate Division for the First Judicial Department.

In September 2015, the Committee brought 20 charges against respondent alleging that he committed professional misconduct by, inter alia, neglecting clients' legal matters, repeatedly threatening criminal prosecution to gain an advantage in a civil case, using a client's resources without permission or authorization, and engaging in conduct that adversely reflects upon his fitness to practice law. In March 2016, the Committee served respondent with a notice of supplemental charges. Those eight additional charges arose out of respondent's purported improprieties in which he allegedly, inter alia, neglected a client matter, made false statements to a tribunal, and asserted frivolous claims in litigation.

During the course of the Committee's investigation, it became aware of two court orders sanctioning respondent. One order was based on his failure to appear in court for oral argument and untimely opposition to a contempt motion in which he stated that the court was "silly" to consider holding him in contempt. Respondent was also sanctioned in another action, after the court determined that respondent made false representations about and engaged in ad hominem attacks against opposing counsel in another client's civil matter. At an examination under oath conducted by the Committee, respondent admitted sending an email to his adversary in which he threatened to dispatch law enforcement agents to act on his behalf and against his adversary's client. Respondent additionally admitted that he defaulted while representing a client in a guardianship proceeding and told a third party that he would expose his extra-martial affair if he did not agree to pay a client's legal fees.

The attorney's affidavit complied with the requirements for resignation. (Mike Frisch)

July 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 21, 2016

Judge's Facebook And Web Pages Not Unethical

The Maine Supreme Judicial Court has sanctioned a judge charged with misconduct in

statements he made in a letter to counsel regarding a court proceeding in which he was a party, and based on his judge-related Internet and social media activity.

The letter violated canons of judicial conduct; the social media activity did not.

...because of the seriousness of this violation, we impose a public censure and reprimand, and a thirty-day suspension from the performance of his duties as judge of the York County Probate Court.

The social media issues

Two of the charges filed by the Committee are based on information that Judge Nadeau posted on the Internet—specifically, a website and a Facebook page—in association with his 2012 election campaign. We address those allegations in turn.

After Judge Nadeau was re-elected to judicial office in 2012, a marketing and media consultant retained by Judge Nadeau either created a new website or modified an existing one so that it was entitled, “York County Probate Judge Robert Nadeau.” That website, which showed Judge Nadeau wearing a judicial robe, was his personal website and not an official website of the York County Probate Court. It also provided a link to the website of his private law office. By using that link, a person who viewed Judge Nadeau’s personal judicial website could then move directly to the website for Judge Nadeau’s private law office. In Count 1 of its report, the Committee alleges that Judge Nadeau violated Canon 2(B), see supra n.8, by using the judicial office for personal gain...

As the Hearing Justice found, Judge Nadeau provided the link to the website of his private law office on the judicial website for the purposes of eliminating confusion within the general public and preventing instances where a person who wanted to contact him in his capacity as a lawyer mistakenly contacted the Probate Court. The link did not actually generate any business for Judge Nadeau’s law office. Further, Judge Nadeau promptly removed the link to his private law office as soon as a complaint was made, effectively resolving the Committee’s concerns about the issue. In this matter of first impression, these circumstances weigh against a formal finding of judicial misconduct.

Word to the wise

When a part-time judge, acting in a judicial capacity, establishes a pathway on a judicial website for a user to contact the judge with the prospect of a remunerative benefit to the judge, the judge may create the perception of using the judicial office held in public trust as a means to create a private, commercial advantage. Any such conduct by a judge must be preceded by a careful and sensitive consideration of the requirements of the Canons and the critically important goals they are designed to achieve.

The letter

In 2013, while a judge but in his personal capacity, Judge Nadeau commenced an action in the Maine District Court for protection from harassment against his former girlfriend, who lived in Massachusetts. Judge Nadeau was not represented by counsel in that proceeding, but an attorney represented his former girlfriend. In his complaint for protection from harassment, Judge Nadeau alleged that the former girlfriend improperly disclosed confidential or otherwise private medical and other information about him. While the case was pending, Judge Nadeau wrote a letter to the former girlfriend’s attorney of record, stating,

You know that, putting aside your training and evident desire to simply argue and advocate, you need to advise your client to pull her book and internet advertising immediately, at a minimum, under the circumstances. This is a matter of, at the minimum, clearly protected medical privacy. The consequences of not doing so can be devastating, not only for her and her best friend, but probably even for you, and their former or current [Massachusetts] lawyer. . . . You can posture all you want in the interest of advocacy. But absent immediate, legitimate responsibility and cooperation designed to achieve amicable, nonmonetary resolution of whatever issues your client and I apparently have, I respectfully submit this is going to become very bad for your client, you and your law firm.

A footnote in the letter

I am incidentally in possession of a hard copy of an email from [an attorney] of your firm to [York County Probate] Register Lovejoy in which [the attorney] snidely referred to me as “his eminence.” If that was not meant to be pejorative or disrespectful of me as a jurist and an ethical violation, I request [the attorney’s] full explanation within 10 days from the date of this letter.

His comments about the judge did not violate judicial ethics

we conclude that because Judge Nadeau’s disparaging comment about another Maine judge was not public and concerned a case in which he was a litigant, it was not prohibited by the Code. We acknowledge, however, the concerns underlying the Committee’s argument.

The judge had been sanctioned both as an attorney and a judge

this is now the third time that Judge Nadeau has been found to have violated professional ethical standards. In Judge Nadeau’s capacity as a lawyer, a Single Justice of this Court determined that he violated the Maine Bar Rules by making “discourteous and degrading” statements to a judge. Bd. of Overseers of the Bar v. Nadeau, BAR-05-03 (March 2, 2006) (Alexander, J.). The Justice publicly reprimanded Judge Nadeau and ordered him “to conduct himself in the future so as to avoid further occasions of professional misconduct.” Id. Then, in a judicial disciplinary proceeding, we found that Judge Nadeau violated the Code of Judicial Conduct by lying about an electoral opponent during a campaign for judicial office. See In re Nadeau, 2007 ME 21, ¶¶ 2, 18-19, 26, 914 A.2d 714.

The same court issued an opinion in the judge's divorce case that did not shower praise on him

In a detailed and strongly−worded decision, the [lower] court found that Robert had a “self-centered and insensitive world outlook” and had engaged in “self-destructive behavior that has caused the break-up of his marriage, the break-up of his law firm, and a significant amount of litigation.”

...Robert contends that the court’s criticism of him in its findings rises to a sufficient level to constitute bias. The court’s findings that were critical of Robert were based on competent evidence, are not clearly erroneous, and do not establish improper bias. In addition, the record reflects that the trial judge demonstrated evenhandedness and patience with both parties throughout a highly contentious trial process.

(Mike Frisch)

July 21, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Ignoring Court Order Leads To Disbarment

The Utah Supreme Court has affirmed the  disbarment of an attorney who had engaged in a conflict of interest, failed to adhere to the requirements of an injunction in accepting and misusing fees.

Gilbert represented clients when he had a direct personal interest that conflicted with his representation of those clients, he disregarded the Injunction, and he facilitated his client’s violation of the Injunction by accepting funds subject to that order. And Gilbert, to this day, has disregarded the district court’s order requiring that he disgorge the attorney fees he received from his clients. Regardless of the validity of the Injunction and disgorgement order, the Utah Rules of Professional Conduct require that Gilbert not knowingly disregard those orders without making his intentions known to the district court and opposing counsel. While we recognize that disbarment is a severe punishment, it is appropriate here. We affirm the district court’s order and conclude that disbarment is the proper sanction for Gilbert’s misconduct.

The fees involved the attorney's representation of the Utah Down Syndrome Association against the Utah Down Syndrome Foundation. 

At the time he accepted the checks, Gilbert knew, or should have known, that the funds he received were the subject of litigation and that the bank accounts from which the funds were taken were subject to the Injunction. Nevertheless, Gilbert did not deposit the monies into a trust account or otherwise hold the funds pending the resolution of the dispute between his clients and the Foundation. Nor, as the district court found, did Gilbert “notify the court . . . of his intention to accept the . . . checks based on his position that [the Injunction] was invalid, void, had expired, [and] did not apply to the [funds] he received.” Rather, Gilbert simply cashed the checks and kept the funds.

The Foundation eventually learned that Gilbert had received payments from the bank accounts subject to the Injunction. The Foundation filed a motion to disgorge and requested an order requiring Gilbert to return the funds he had received from the Chapters’ bank accounts. After a hearing on the Foundation’s motion, the district court ordered Gilbert to return the attorney fees to the Foundation.

Despite the district court’s order, Gilbert did not return the legal fees he had received. The Foundation eventually filed a second motion for disgorgement of funds. The court granted the Foundation’s second motion and entered judgment against Gilbert for $30,000, interest, and associated attorney fees. To date, Gilbert has not returned the funds to the Foundation.

The court makes clear the obligations of an attorney subject to a court order who believes the order to be flawed

rule 3.4(c) stands, at a minimum, for the proposition that an attorney must either obey a court order or alert the court that he or she intends to not comply with the order. An attorney may not, as Gilbert did here, ignore a court order while secretly hoping to have a trump card to play if non-compliance later becomes an issue...

Although Gilbert may have harbored reservations about the order’s validity, he, in the district court’s words, “had a duty to openly contest the order by filing a request to stay the order in court, notify the court of his receipt of the . . . checks and at least hold the monies in trust until the court ruled on the issue.” The district court interpreted and applied rule 3.4(c) correctly.

He failed to safeguard the fee

The district court concluded that Gilbert violated rule 1.15(e) in two ways. First, Gilbert failed to place any of the $30,000 in attorney fees in a trust account despite knowing that both the Foundation and his clients claimed ownership of the funds. And second, Gilbert violated rule 1.15(e) by failing to return the $30,000 to the Foundation when ordered to do so by the court.

His subjective good faith as to the validity of the court order was irrelevant 

That comment does not, however, provide an attorney carte blanche to ignore court orders. As explained above, the Utah Rules of Professional Conduct contemplate the situation in which Gilbert found himself: subject to an order he believed to be flawed. The rules instruct an attorney in that situation to either comply or openly refuse to comply. An open refusal permits the district court to assess the attorney’s argument and allows opposing counsel to take action to protect her client from the opposing attorney’s noncompliance. An attorney cannot, consistent with the rules of professional conduct, unilaterally and surreptitiously flout a court order. To the contrary, willful disregard of a district court’s order without an open objection constitutes conduct prejudicial to the administration of justice.

The attorney's procedural objections also failed to persuade the court that disbarment was not appropriate in these circumstances.

In a related matter also decided today, the court denied Gilbert's petition for extraordinary relief.

In 2012, the court denied his petition to bring a third-party complaint against the Foundation in his disciplinary case. (Mike Frisch)

July 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 20, 2016

Madoff of the Midwest: Hoosier Hugh Hefner Wannabe Gets Disbarred

The Indiana Supreme Court has disbarred an attorney who went from the 30,000 square foot high life to decidedly smaller accommodations

In March 2011, Respondent was indicted in federal court on twelve felony counts rooted in a complex scheme of securities and wire fraud. Respondent was convicted on all counts following a jury trial in June 2012 and later was sentenced to fifty years in prison. Respondent’s convictions on ten of the twelve counts were affirmed on appeal. U.S. v. Durham, 766 F.3d 672 (7th Cir. 2014), cert. denied. On remand, the district court again imposed a fifty-year sentence. With his criminal proceedings now having come to rest, Respondent stands convicted of eight counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire and securities fraud. All told, over a period of several years Respondent and two co-defendants defrauded thousands of investors of over $200 million...

The Court concludes that Respondent violated the Rules of Professional Conduct by defrauding thousands of investors of over $200 million. Respondent already is under an order of interim suspension in this case as well as a separate suspension order for nonpayment of dues. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state, effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

Details from WTHR.com

Tim Durham will spend the rest of his life in prison. Durham was convicted of cheating his clients out of $200 million in a Ponzi scheme, and on Friday, a judge sentenced him to 50 years behind bars.

U.S. District Judge Jane Magnus-Stinson sentenced Durham, a former chief executive of National Lampoon who was profiled in CNBC's "Rise of the Super-Rich" report in 2008, following his convictions in June on charges of securities fraud, conspiracy and 10 counts of wire fraud.

Durham, who ran the investment business Fair Finance, was sentenced to 50 years. Prosecutors had asked for life, while Durham wanted just three...

Prosecutors wanted life sentences for all three men. They say the three stripped Akron, Ohio-based Fair Finance of its assets and used the money to buy classic cars and other luxury items and to keep another Durham company afloat.

Attorneys for both Cochran and Snow asked the judge for less substantial sentences than Durham claiming they did not have control of operations at Fair Finance.

Bloomberg Business Week called him the Madoff of the Midwest and reported on his 45th birthday party

More than 1,000 people showed up at his 30,000-square-foot mansion in Fortville, an exurb of Indianapolis. Members of the Indianapolis Colts arrived, as did Kato Kaelin. Durham dressed like Hugh Hefner, in a plush robe. When he went to blow out the candles, his cake was frosted with his likeness in the center of a million-dollar bill.

 Later, as reported in the Indianapolis Star, Durham posted photographs of the party to his Myspace page, including one of him getting a lap dance and two of the models kissing, nude. He dubbed it his “Fantasy Pajama and Lingerie Party.”
 
And
Durham had long attracted attention in Indianapolis, and not just for his parties. He was also one of the state’s biggest backers of Republican politicians. “Tim Durham was somebody who came out of nowhere in the late ’90s and kind of declared himself a very rich guy,” says Greg Andrews, managing editor of the Indianapolis Business Journal, who has covered Durham extensively. “He established himself as a player by being a tremendously large donor to candidates.” Those included Governor Mitch Daniels. Durham gave $105,000 to his 2004 campaign, making Durham the governor’s second-biggest individual donor that cycle. Over the years, he made some $800,000 in political donations, according to public records. The perceived gap between Durham’s private behavior and his support for conservative candidates led Matthew Tully, a columnist for the Indianapolis Star, to chastise Durham for his conspicuously libertine lifestyle. The column went viral, likely because of its link to those Myspace photos.

Bloomberg further reports that he made his initial fortune the old fashioned way: he married it.  

More here on the hubris before the fall from the Indianapolis Monthly in April 2011 under the title Outrageous Fortune. 

Few people have been better at acquiring “stuff” than Durham. The 45-year-old founder of Obsidian Enterprises, a leveraged-buyout firm in Indianapolis, he claims to be worth $75 million. At last count, he owned or co-owned more than 70 classic and exotic cars, three private jets, the yacht, numerous Picassos and Renoirs, two restaurants (Touch and, in Indy, Bella Vita), a nightclub (GELO Ultra Lounge in Castleton), two limousines, a magazine (Car Collector), a plastic-surgery center, a cigar store, and—most strangely—the storied comedy brand National Lampoon. That’s to say nothing of the profitable but less glamorous manufacturing companies that fall under the umbrella of Obsidian...

Durham’s taste for the extravagant has widened his circle of friends lately. He pauses the tour at a photograph of him and Ludacris, rapper and star of the 2004 film Crash. “Luda” stopped by one of Durham’s lavish parties before the Indianapolis 500 last year, and the two instantly became pals. Durham sees nothing strange about a relationship between a rapper and a Hoosier investor, and the feeling is mutual. “Tim can kick it in my crew anytime and blend right in,” Ludacris said by phone from his Atlanta estate this fall. “He knows how to have fun, and we share a lot of the same interests as far as cars and expensive tastes.” Ludacris invited Durham to the 2007 MTV Music Video Awards, where they sat with Paris Hilton and Pamela Anderson. Durham’s regular trips to hang out at the Playboy Mansion with Hugh Hefner have led to a few Hollywood friendships as well. “Hef is a smart guy, a real trendsetter,” he says. “He blazes a lot of trails—a lot like I feel I’m blazing here in Indiana.” Durham should know. His current girlfriend, Jami Ferrell, was Miss January 1997 and dated Hefner (and Jack Nicholson) before making it back to her New Castle home.

(Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Lawmaker, Lawbreaker

Criminal conduct led to prison and disbarment for a former South Carolina lawmaker.

The Palmetto State reported

The S.C. Supreme Court on Wednesday disbarred former State Rep. Thad Viers, Republican of Horry, for lawbreaking actions committed in 2012 in connection with his ex-girlfriend, as well for a federal money laundering charge.

Viers is now serving time in a federal prison in Hopewell, Va., on money laundering charges that bore no relation to his personal problems. He is due to leave prison in June 2017.

Once Viers, 38, of Myrtle Beach, had punched all the right tickets to ascend the Republican ladder of success.

As a young teen, he was a page to the late Sen. Strom Thurmond, R-S.C., graduated from The Citadel in 1999, did research for the conservative Heritage Foundation think tank, was a member of the Sons of Confederate Veterans and was elected to the S.C. House of Representatives in 2003.

He took the anti-big government positions that resonate with his party’s base – for example, suing the city of Myrtle Beach over its law that required motorcyclists to wear helmets within city limits.

In 2012, as he was readying a bid for Congress, Viers was arrested on charges of harassing and stalking a 28-year-old woman. That came six years after he was charged with threatening to assault a man who was dating his estranged wife. He pleaded no contest in that case.

Before the 2012 harassment and stalking case was disposed of, Viers was also indicted for burglary and larceny – again, a charge connected with the 28-year-old woman Viers had once dated. In 2014, Viers pleaded guilty to harassment 2nd degree and was sentenced to 60 days in jail. The related charges were dismissed.

Later in 2014, a federal grand jury indicted Viers on multiple felony charges including money laundering and making false statements to the IRS.

In August of last year, Viers pleaded guilty to federal money laundering charges in a plea deal that dismissed other charges. He was sentenced to 37 months in prison and to pay a fine of $875,000. Upon release from federal prison, he will be on supervised release for three years.

At some point, Viers will be able to apply for a law license again. But that is at least five years in the future, after he completes his supervised release from prison.


(Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

E-Discovery Company Co-CEO Sanctioned For Gross E-Discovery Violations And Other Misconduct

The Delaware Court of Chancery imposed significant sanctions for destruction of evidence and lying under oath in a partnership dispute

 Elizabeth Elting and Philip Shawe are the co-founders and co-CEOs of TransPerfect Global, Inc. (“TPG” or the “Company”). As chronicled in a post-trial decision issued last year, their management of the corporation devolved into a state of dysfunction. Emblematic of the deep divisions and fundamental distrust between them, virtually every aspect of this litigation has been turbulent, with each side filing motions for sanctions against the other. This decision resolves the sanctions motion Elting filed against Shawe based on an evidentiary hearing that was held earlier this year. 

As explained below, clear evidence adduced at the sanctions hearing establishes that Shawe acted in bad faith and vexatiously during the course of the litigation in three respects: (1) by intentionally seeking to destroy information on his laptop computer after the Court had entered an order requiring him to provide the laptop for forensic discovery; (2) by, at a minimum, recklessly failing to take reasonable measures to safeguard evidence on his phone, which he regularly used to exchange text messages with employees and which was another important source of discovery; and (3) by repeatedly lying under oath—in interrogatory responses, at deposition, at trial, and in a post-trial affidavit—to cover up aspects of his secret deletion of information from his laptop computer and extraction of information from the hard drive of Elting’s computer.

Shawe’s actions obstructed discovery, concealed the truth, and impeded the administration of justice. He needlessly complicated and protracted these proceedings to Elting’s prejudice, all while wasting scarce resources of the Court. Accordingly, Elting’s motion for sanctions is granted. Shawe will be required to pay a significant portion of her attorneys’ fees and expenses...

Some background

In October 2013, Elting hired Kramer Levin Naftalis & Frankel LLP to try to negotiate a resolution of the increasingly acrimonious disputes that had been brewing between Shawe and Elting for some time over their management of the Company. This enraged Shawe. Rather than hire his own counsel and engage in a mature dialogue, Shawe undertook a campaign to spy on Elting in pursuit of what had become a personal battle in which Shawe was determined to get his way over Elting at all costs, even if (to use Shawe’s words) it meant “shutting down” or “dismantling” the Company.

Shawe initially directed employees to intercept Elting’s regular mail, including her correspondence with Kramer Levin, and to monitor her phone calls. By the end of December 2013, Shawe’s surreptitious monitoring of Elting had expanded to include her private emails, including those with her counsel.

What follows is a tale of corporate espionage that is almost cinema-worthy and which, among other things, led to improper access to over 12,000 privileged emails.

12,000!

The record also shows that Shawe has a demonstrated propensity to use subordinates firmly under his control to do dirty work for (and with) him in secret, off the grid, and usually late at night. He turned to Wudke late on New Year’s Eve (and other occasions) to extract files from Elting’s hard drive and told him not to document what he was doing even though he insists it was part of a legitimate “corporate” investigation. He hired Richards as his “personal paralegal” at the princely rate of $30,000 per month despite having a number of reputable law firms with vast resources at his disposal, and immediately tasked him with photographing Elting’s office and removing documents from it in the wee hours of the morning. When it came to his iPhone, he turned to another trusted subordinate, Campbell, who sits next to him in the same office in New York. Given Shawe’s modus operandi and Campbell’s farcical explanation of what happened to the phone when Elting was pressing for discovery of Shawe’s text messages, it is more likely that Shawe told or otherwise made it clear to Campbell to get rid of the phone. In any event, whether Shawe did so or not is of no moment because, at a bare minimum, he recklessly failed to take appropriate measures to preserve the phone so that genuine efforts to recover information from it could have been utilized.

One rather notable aspect of this mess

Shawe is the co-CEO of a company specializing in e-discovery, which employs personnel qualified to conduct forensic recovery of damaged devices, and which has relationships with other professionals who can assist if needed.  Shawe was represented by an able team of counsel, who engaged a forensic computer expert and who easily could have engaged an expert in data recovery if Shawe had been genuinely interested in trying to recover evidence on his phone. Faced with an embarrassment of riches in terms of professionals to whom he could turn to recover data from his phone, Shawe instead inexplicably chose to give the phone to a subordinate under his control who had no forensic training in retrieving data from a phone. Campbell’s sole experience is that his own phone once fell into a toilet and it worked after he let it dry. To top it off, Shawe gave the phone to Campbell without providing him even minimal instructions about why he wanted him to attempt to revive the phone, the need to preserve the evidence given the pending litigations, or even about ensuring an appropriate chain of custody.

Crain's New York Business provides details on the co- CEO relationship and its fallout, which they called The TransPerfect Storm

Shawe and Elting started the company in 1992 in their New York University dorm room. In 1996, the pair got engaged, but Elting called it off a year later and married someone else in 1999. (Shawe married in 2011.) The two split their business 50-50 and built one of the nation’s leading translation companies, with 92 offices in 86 countries housing 3,500 full-time employees, plus a network of 10,000 translators, editors and proofreaders working in about 170 languages.

All was sweetness and light in public between Shawe and Elting, but behind the scenes the former lovers came to loathe one another. They frequently cursed each other out in f-bomb-laden emails, and Elting once ended a meeting by dumping a pitcher of water onto Shawe. "Don't call me in ... and start f--king with me for no reason!" Shawe growled in one email to Elting, who fired back, "If sharing feedback on a potential acquisition is no reason, you’re a f--king idiot." People who know them say Elting and Shawe cursed each other out as their way of communicating.

(Mike Frisch)

July 20, 2016 in Current Affairs | Permalink | Comments (1)

DOJ Manual Exempt From FOIA Disclosure

The United States Court of Appeals for the District of Columbia Circuit has held that the Blue Book manual for federal prosecutors is exempt from disclosure under the Freedom of Information Act.

The Blue Book is a manual created by the Department to guide federal prosecutors in the practice of discovery in criminal prosecutions. It contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants.

Judge Sentelle concurred but only because precedent compelled the result

There is no area in which it is more important for the citizens to know what their government is up to than the activity of the Department of Justice in criminally investigating and prosecuting the people. The government certainly has the power to claim a FOIA exemption to hide its internal manuals describing how it goes about that awesome undertaking. But if it chooses to exercise that power, then the people might be forgiven for cynically asking “what is it you have to hide?”

...I cannot help but wonder if an insurance defense attorney had written a secret treatise passed around among his bar on how to defend—for example—defective product cases, would we, if that treatise became relevant in specific litigation, afford the protection of the attorney-client privilege to a document not prepared for a particular client or a particular case, but only to educate attorneys of a particular sort in the litigation of a particular kind of case? I think not. But even if we did, I do not think this would justify stretching the FOIA exemption to the point of protecting the departmental tactics and strategies in criminal prosecution from discovery by the citizenry. I cannot help but recall the words of Justice Sutherland for the Supreme Court in Berger v. United States:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is often said that justice must not only be done, it must be seen to be done. Likewise, the conduct with the U.S. Attorney must not only be above board, it must be seen to be above board. If the people cannot see it at all, then they cannot see it to be appropriate, or more is the pity, to be inappropriate. I hope that we shall, in spite of Schiller, someday see the day when the people can see the operations of their Department of Justice. In short, I join the judgment of the majority, not because I want to, but because I have to.

Senior Judge Edwards concurred with Judge Sentelle. (Mike Frisch)

July 20, 2016 | Permalink | Comments (0)