Monday, June 29, 2015

Not Perfect But Not Unethical

Disciplinary charges against a criminal defense attorney were dismissed by the Maine Board of Overseers of the Bar.

The attorney was alleged to have provided incompetent representation and failed to communicate with his client

While the Panel heard testimony regarding office practices that could be strengthened (such as file organization, office coverage, phone issues and itemized bills for time spent on non-court appointed cases), the Panel is convinced from the testimony, including the testimony of Carrie Linthicum, the prosecutor in Mr. Adams' case, that Mr. Pickering provided competent representation to Mr. Adams and that he acted with reasonable diligence and promptness in that representation. Therefore, the Panel finds no violation of M. R. Prof. Conduct 1.1 and 1.3.

 The Board further contends that the fact that Mr. Pickering did not give Mr. Adams a paper copy of the discovery produced in the case is a violation of M. R. Prof. Conduct 1.4(a). Although it may be a good practice in most cases, the Board did not cite a rule or any authority at the hearing which requires or even recommends that attorneys provide criminal defendants with actual paper copies of the discovery turned over by the prosecution. Mr. Pickering cited a good example of when providing such copies could be harmful to the criminal defendant. There was no evidence that Mr. Adams requested copies of the discovery prior to his sentencing. Nevertheless, it is clear to the Panel that Mr. Pickering reviewed the discovery with his client to prepare his theories and strengthen his ability to negotiate for a plea bargain during their conferences in Mr. Pickering’s office and at the Caribou courthouse. Mr. Pickering would not have known of the absence of a knife when Mr. Adams was arrested without that review. He would not have known about Mr. Madore's wife's apology without that review. He would not have known the details set forth in the Alford plea had it not been for that review and those conversations. (Exhibit #10, p.7; Exhibit #11, pp. 8 - 15) Mr. Pickering's system of communicating with his client, while not perfect, resulted in Mr. Adams being present at the many court dates scheduled during the pendency of the case. It resulted in Mr. Pickering having the necessary information from his client to be able to negotiate a very favorable plea deal with the prosecutor. Although the sentence imposed was harsher than usual for the charges, the Panel is satisfied that Mr. Pickering's communication with his client was not in violation of M.R. Prof. Conduct. 1.4(a). Likewise, Mr. Pickering’s conduct did not violate M.R. Prof. Conduct. 8.4(a)(d).

(Mike Frisch)

June 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Breathtaking Contempt For Courts Precludes Reinstatement

A petition for reinstatement was denied by the Maine Supreme Judicial Court.

Jonas graduated from law school in 1974. That same year, he was admitted to the bar of Pennsylvania, and was then admitted to the bar of New Jersey in 1975. He engaged in private practice in Pennsylvania, and then in New Jersey.

In 1987, Jonas took and passed the Maine bar exam and was admitted to the Maine bar.  Shortly thereafter, he and his wife separated. A contentious and protracted series of divorce proceedings followed, spanning multiple decades and several jurisdictions. It is Jonas’s conduct during these proceedings that ultimately led to his professional disciplinary troubles. 

The Board of Bar Overseers noted that "[u]ntil 1995, his law practice was primarily in New Jersey, where he was an active and successful civil litigator, with a number of large commercial clients."

The misconduct was committed after the attorney's divorce in 1990.

In 1995, a series of decisions that Jonas had made was discovered, changing the course of his life. Apparently tired of being required to pay what he considered to be an unfair amount of spousal support, Jonas took action to undermine the divorce judgment, avoid his support obligations, misrepresent his financial status, and interfere with [ex-wife] Linda’s contact with the children.

The court

...Jonas attempted to explain his actions in 1995, 1996, and 1997 by asserting that he believed the [New Jersey] court was either biased against him or actually corrupt, and that he was suffering from depression and anxiety. If Jonas had not compounded the lack of judgment and integrity he demonstrated from 1995 until 1997 through his actions over the next twenty-plus years, I would have little trouble accepting Jonas’s explanation and his acknowledgement of responsibility and remorse. As the following recitation shows, however, Jonas continued with his single-minded and grossly erroneous belief that he did not have to comply with court orders. His admission that he is “persistent and bull-headed,” although not inaccurate, does not justify his subsequent behavior...

The historical facts reproduced here represent just a small and simplified sampling of the most significant moments in Jonas’s litigation history; that history displays a complexity that anyone would be loathe to describe in full. In total, dozens of jurists in the trial, intermediate appellate, and appellate courts of five states and eight federal jurisdictions for more than two decades have considered and rejected Jonas’s arguments regarding his divorce.

The story involved actions he had taken from Montana to Florida with stops in between and a persistent disregard for court rulings.

In sum

That Jonas has, from time to time, found lawyers to make his arguments for him does not insulate his actions. Whether with or without counsel, he has demonstrated a level of contempt for courts and their authority that is breathtaking. In sum, Jonas’s litigation history, though all relating to his personal affairs, reflects a pattern of conduct that could not possibly meet any definition of integrity. Indeed, a small sampling of the terms that have been used to describe Jonas and his filings and actions in court include the following: vexatious, defiant, subversive, disruptive, guerilla warfare, wasteful, single-minded, adamant, obstinate, dogged retaliatory, duplicative, abusive, especially egregious, unnecessary, unrelenting, specious, deliberate, frivolous, bad faith, improper, ill-advised, retributive, ongoing, expensive, impertinent, delaying, invalid, needless, unsupported, and contemptuous. Jonas has mischaracterized, misrepresented, refused to appear, failed to obey, feigned ignorance, manipulated, and harassed his way through the last twenty-five years, and in every such incident, he has ignored his own conduct, failed to acknowledge any wrongdoing, and expressed no remorse or contrition.

Notably, the Board of Bar Overseers had favored reinstatement, finding misconduct to be "very unlikely to be repeated in the future." 

He was suspended for six months and until further order in New Jersey.  Pennsylvania suspended him for six months and placed him on inactive status in 2014. (Mike Frisch)

June 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

The Law Of Incredible Dubiosity

The Indiana Supreme Court reversed its Court of Appeals and reinstated the conviction of a criminal defendant charged with burglary of a Dollar General.

The court found that the prosecution did not knowingly use perjured testimony. Rather, the key witness had changed her testimony at trial from assertions made at her plea proceeding.

The inconsistencies were disclosed and exploited by the defense.

Further, with respect to the defense's claim of "incredible dubiosity"

the defendant seeks application of Indiana's rule of incredible dubiosity. He alleges that his conviction should be vacated because [witness] Greenlee's testimony as a State witness was so dubious and contrary to the facts that it must be disregarded, leaving insufficient evidence to sustain the conviction...

In essence, the defendant asserts that because the store video images show that the burglar was Caucasian, Greenlee's testimony identifying the burglar as the defendant, an African American, is incredibly dubious, requiring that his conviction be vacated. From testimony at trial and statements of the defendant's counsel at trial, we understand that Greenlee is Caucasian and the defendant is African-American.

The court

We recently summarized that, to warrant application of the incredible dubiosity rule, there must be: "1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence."

we find as to the first factor that, while Greenlee was not the sole testifying witness, the testimony of the two other witnesses would have been an insufficient basis for the jury to find the defendant guilty. The second and third factors, however, are not satisfied. While at variance with prior statements or arguably with the video images, Greenlee's trial testimony was not internally contradictory. And there was not a complete absence of circumstantial evidence. "In a case where there is circumstantial evidence of an individual's guilt, 'reliance on the incredible dubiosity rule is misplaced.'" Id. at 759 (quoting Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001)). The incredible dubiosity doctrine does not warrant reversal of the defendant's conviction in this case.

(Mike Frisch)

June 29, 2015 | Permalink | Comments (0)

Noteworthy

The Georgia Supreme Court granted a new trial to a plaintiff who lost a medical malpractice case before a jury.

The trial judge had communicated with jurors in response to a note without advising the parties. The note was not preserved .

The plaintiff was contacted by two jurors who expressed concern about the deliberations several weeks later

the unique circumstances of this case, which include the untimely and serendipitous disclosure of the communication to Plaintiffs or their counsel; Plaintiffs’ inability to make the actual note or response a part of the record; the differing recollections about the nature and timing of the communication; the failure to resolve the perceived conflicts; and the inability to make a determination that a verdict for Defendants was demanded, regardless of any effect of the communication on the jury, support Plaintiffs’ entitlement to a new trial.

The court also reversed the Court of Appeals and concluded that the defendant had failed to preserve evidence. (Mike Frisch)

June 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

That's A Fact

The Fifth District Court of Appeal of Florida affirmed a criminal conviction and criticized defense counsel's advocacy

While no discussion of the merits of the case is required, we find it necessary to comment on the appellant's improper insertion of alleged facts in both the statement of the facts and the argument sections of her brief. As an appellate court, we are required to consider the facts in the light most favorable to the appellee, and the appellant must properly address the facts in that manner. Such was clearly not done by the appellant in this case. The facts in this case were highly disputed, and the trial court conducted an evidentiary hearing thereon. The court thereafter expressly found the testimony of the victim to be more credible than the testimony of the appellant. In spite of this explicit finding, the appellant's brief improperly presented as "fact" the testimony of the appellant, and counsel based her legal arguments on those facts. Such practices are inappropriate and unprofessional.

Hat tip to the excellent sunEthics blog. (Mike Frisch)

June 29, 2015 in Professional Responsibility | Permalink | Comments (0)

Recrossing The Delaware

The Pennsylvania Supreme Court has recently granted reinstatement to an attorney sanctioned in Delaware for engaging in the unauthorized practice of law

Nadel is not a member of the Bar of the Supreme Court of Delaware. He was admitted to the Bars of the State of New Jersey and the Commonwealth of Pennsylvania in 1982. Nadel currently practices in a private firm located in Cherry Hill and Pennsauken, New Jersey.

From April 2009 through September 21, 2012, Nadel engaged in the unauthorized practice of law in Delaware...

Nadel knew that he could not actively represent Delaware clients in court, but he failed to determine any limits on the pre-litigation assistance he thought he could provide. Further, he had every opportunity to learn this information. Nadel regularly worked with licensed Delaware attorneys when a client needed to file a claim in court. Moreover, the Delaware Lawyers’ Rules and the case law interpreting those rules are also publicly available—something an experienced attorney from any state would know.

Pennsylvania had imposed reciprocal discipline based on the Delaware action. 

Our earlier coverage is linked here.

 The attorney had represented Delaware residents in more than 100 matters over a seven year period. The cases involved motor vehicle accidents that occured in Delaware.

Some of the cases were referred to the attorney from a Wilimington doctor. The attorney met with some of the clients in the doctor's office. Other cases came from "television advertisements which targeted Delaware residents." The attorney met with some of these clients in the Delaware office of his law firm.

The Pennsylvania court accepted a joint petition for reciprocal discipline

(Mike Frisch)

June 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

A Lack Of Charity

An attorney resigned from practice in Massachusetts and admitted conversion of estate proceeds that the decedent had donated to charity

In May of 2009, the respondent filed a petition for probate of a will and appointment of an executor with the Probate Court. He contacted a Florida charity and informed it that the decedent had left her real estate to the charity. The CEO of the charity informed the respondent of the charity’s desire to sell the home and use the proceeds to further their charitable purposes. The property was sold in November of 2009, and the respondent deposited the proceeds to his IOLTA account. Net of various fees and commissions, the amount owed to the Florida charity was $179,106.65.

The respondent failed to promptly disburse the funds due the charity and failed to hold the funds in a separate interest-bearing account. Between November and December 2009, the respondent intentionally misused approximately $100,000 of the charity’s funds for purposes unrelated to the estate.

In February 2011, by letter to the charity, the respondent enclosed a check for a partial distribution in the amount of $75,000. In the letter, the respondent falsely stated that he had been engaged in an attempt to settle a claim against the estate, and as soon as that was resolved, the balance of the distribution would be paid.

The charity was still owed at least $104,106.65. By letters in April and July 2012, counsel for the charity requested that the respondent provide a status of the estate, an inventory and an accounting of the estate.

The Massachusetts Supreme Judicial Court accepted the resignation as a disciplinary sanction. (Mike Frisch)

June 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Default In Our Stars

The Georgia Supreme Court agreed with a special master that an attorney had failed to show a basis to vacate a default and ordered the attorney disbarred for her mishandling of a personal injury matter

Starling faxed a Motion for Extension of Time to File Answer to the special master, but she did not file it with the Clerk of the State Disciplinary Board or serve it on Bar counsel. The special master found that the motion, which was not supported by a brief, does not set forth a legally sufficient explanation for Starling’s failure to file a timely answer. Although she mentioned health problems, she did not provide any documentation in support...

Because Starling’s client suffered the loss of her claim due to Starling’s failure to take action to meet or preserve the statute of limitations, and lost any opportunity for reimbursement of her medical expenses due to Starling’s failure to convey the insurer’s offer, the special master deemed her a danger to the public and recommended in his September 8, 2014 report that she be disbarred.

As to sanction

The special master concluded that Starling displayed a consistent inability or unwillingness to comply with the disciplinary rules and the Georgia Civil Practice Act, and that her failure to do so when her own license to practice law is at issue reflects an inability to competently represent others and mirrors her complete lack of diligence to her client’s great detriment in this matter. For those reasons, the special master denied the motion for extension and request to open default, and affirmed the recommendation in his report that Starling be disbarred.

(Mike Frisch)

June 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

My Two Cents

There is an interesting post with comments by Professor Stephen Gillers over at Legal Ethics Forum on civility and the recent dissents of Justice Scalia. 

For an example of what I believe is the appropriate tone of a dissent when the author perceives an injustice perpetrated by a majority of the Supreme Court, let's quote the first Justice Harlan in Plessy v. Ferguson

 I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

Perhaps the most significant dissent in court history (and which, to its discredit, endorses the idea of the permanent supremacy of the white race) did not include any references to fortune cookies or hiding the author's head in a paper bag.

And I admit a bit of shock over the Chief Justice's references to the views of five lawyers.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

Surely he understands that every Supreme Court decision does no more than reflect the views of five or more such lawyers, whether it is Bush v. Gore, Citizens United, Shelby County, Heller or Town of Greece.

I thought he had more respect for his own institution.

I also think that these decisions show that the rule limiting criticism of judges by lawyers should be abolished. Something about sauces, gooses and ganders.

The rules that govern an attorney's ethical obligations in the conduct of litigation are quite adequate without Rule 8.2(a). (Mike Frisch)

June 29, 2015 in Current Affairs | Permalink | Comments (0)

Sunday, June 28, 2015

Attorney Reinstated After Suspension For Failure To End Partner's Scheme

An attorney who had disputed the extent of his culpability for his law partner's fraudulent scheme was reinstated from a three-year suspension imposed by the New York Appellate Division for the Second Judicial Department.

From the court's suspension order

Fonte became a partner in the law firm of Bellettieri & Fonte in March 2004. The firm became known as Bellettieri, Fonte and Laudonio (hereinafter BF&L) in or about April 2004, when Laudonio joined the partnership. Fonte was a partner in the firm until November 17, 2006.

BF&L engaged almost exclusively in a transactional real estate practice, representing buyers, sellers, and lenders at residential and commercial real estate closings. From sometime on or before the date of its inception, BF&L maintained one or more attorney special accounts at J.P. Morgan Chase Bank. All of the named partners as well as Peter Dengler, an associate, were fully authorized signatories on one or more of those attorney special accounts at all times between March 1, 2005, and November 17, 2006.

Beginning in or about March 2005 and continuing through November 2006, partner Anthony Bellettieri engaged in a pattern of dishonest and fraudulent manipulation of BF&L’s attorney special accounts which resulted in the misappropriation, larceny, and/or conversion of more than $17 million from those accounts. The respondent failed to make an adequate effort to review or supervise the operations of those accounts during this period and failed to discover Belletieri’s fraud and larceny at a time when it could have been either mitigated or prevented.

On culpability

it bears noting that he was no stranger to the real estate and mortgage business. Far from being a business novice, he had an accounting background and had worked for an accounting firm for about three years after graduating  from law school. He thereafter worked for a Manhattan law firm which handled real estate matters, where he was trained to represent buyers and sellers in residential and commercial transactions before starting his  own practice and eventually entering a partnership with Bellettieri. He was comfortably drawing approximately $7,000 per week from BF&L during the period in question and knowingly permitted Bellettieri's commingling in order to allow BF&L to continue operating. The respondent's disciplinary history consists of one letter of caution...

In determining an appropriate measure of discipline to impose, the Grievance
Committee has expressed strong disagreement with the Special Referee’s conclusion and the
respondent’s contention that he was a victim of Belletieri’s fraudulent scheme. The respondent’s
position is that Bellettieri acted alone, without his knowledge, and that he acted to hide his
misconduct from the respondent. He submits that had he been able to obtain Bellettieri’s testimony at the hearing, the extent of the obstruction he created to prevent the respondent from finding out what he was doing would be revealed. The division of labor at BF&L was such that the respondent and Laudonio attended closings, while Belletieri ran the office, particularly the escrow accounts. The respondent issued checks at closings only after confirming that the requisite funds were in BF&L’s escrow account. He maintains that he had no reason to suspect criminal behavior on the part of Bellettieri, who was the firm’s founder and “a pillar of the community.” Moreover, the high volume of transactions engaged in on a daily and weekly basis, together with the onerous schedule of closings the respondent was required to attend, would have made it a practical impossibility for him to reconcile the firm’s accounts while continuing to meet his duties to clients.

The Grievance Committee maintains that the respondent displayed a long-term, near
total ignorance of his fiduciary duties as attorney and escrowee. He ignored multiple warning signs and blatantly apparent indicators of criminality which could have forestalled such a massive escrow fraud by Belletieri. These included the $900,000 defalcation in BF&L’s former escrow account...

While the respondent was, to some extent, victimized by Bellettieri, he was also uniquely positioned to put an end to Bellettieri’s scheme and thereby minimize damage to clients who had entrusted funds to BF&L. In this regard, he failed to uphold his nonwaivable fiduciary duty.

Under the totality of circumstances, the respondent is suspended from the practice of law for a period of three years.

Because of the fitness requirement, the three-year suspension lasted for five years. (Mike Frisch)

June 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

"Attorney" Kriger Calling

An attorney who had been suspended for two years and never reinstated has been indefinitely suspended by the Massachusetts Supreme Judicial Court.

The story

the respondent began working at his prior firm, unpaid, as a “settlement consultant.” For the following ten weeks or so, the respondent reviewed files, valued cases, determined demand amounts, negotiated settlements with insurance adjusters, and communicated with clients about settlement offers, without any adequate supervision. In handling and settling personal injury cases without supervision, the respondent was engaging in the unauthorized practice of law. Further, to the extent that the respondent was engaging in paralegal work, he failed to obtain permission from the Supreme Judicial Court to work as a paralegal...

In his conversations with insurance adjusters, the respondent falsely identified himself as “Jeffrey Kriger” in order to conceal his identity as a suspended attorney. At times, the respondent also either identified himself as “Attorney Kriger” or failed to correct any misunderstanding that he was an attorney at the firm.

He had been reprimanded before suspension number one for his

intemperate remarks during mediation and his use of vulgar and insulting language was intended to disrupt a tribunal and was prejudicial to the administration of justice in violation of Mass. R. Prof. C. 3.5(c), 8.4(d), and 8.4(h), and his use of profanity and his verbal abuse of opposing counsel and insurance claims representatives...

(Mike Frisch)

June 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 27, 2015

Frustration Leads To...

A frustrated Massachusetts attorney was reprimanded for altering a form insurance letter that he had received for one client for the benefit of a second client.

The respondent had previously represented another client with both Med-Pay and BCBSMA coverage. In that case, BCBSMA provided the respondent with a standard-form letter stating that whenever a claimant has Med-Pay coverage, BCBSMA considers the Med-Pay coverage to be primary.

He tried to deal with insurance reps at BCBSMA to no avail and then

altered a Med-Pay letter he had received from BCBSMA for another client by redacting the other client’s information and inserting the current client’s name, her BCBSIL identification number and date of injury on the letter. The respondent forwarded the altered letter to the automobile insurer in an effort to have them cover the client’s medical expenses through its Med-Pay coverage.

The agreed sanction was approved by the Board of Bar Overseers. 

Dealing with insurance companies can certainly be a source of major frustration. This does not alter the fact that altering a document is not the solution. (Mike Frisch)

June 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 26, 2015

Ethics Rules And Civil Liability

The Nebraska Supreme Court has affirmed the dismissal of claims against an attorney pressed by his late friend and client's former husband

The present litigation involves [attorney] Larson, who was a friend of Judy’s. Judy and Larson met in the early 1990’s when both represented different defendants in a federal criminal case. Over the years, Larson assisted Judy in various legal matters, including continuing legal matters relating to her divorce from [plaintiff] Gallner. Larson, who resides in another state, would also periodically visit Omaha for personal and professional activities. On those visits, Larson would sometimes stay at Judy’s home. Judy attended Larson’s wedding and also attended Larson’s wife’s funeral. Judy introduced Larson to her parents. Jordan testified that Larson was a close friend of Judy’s and that he, Jordan, telephoned Larson upon Judy’s eventual death.

Judy named Larson as her successor trustee and beneficiary. His representation of her involved unrelated matters.

He received over $236,000 after her death.

The court rejected the plaintiff's contention that the business transaction rule created liability to his benefit

The record clearly shows that at the time Judy made Larson a beneficiary on the American Family policy, he was representing her in legal matters. It is axiomatic that the relationship between attorney and client is a fiduciary or confidential one, and there is nothing that suggests the informality between Judy and Larson makes the relationship less so. We conclude that because Larson was Judy’s attorney, he has the burden to show that the gift from Judy was fair.

We conclude that Larson has met his burden. As the district court noted, Judy was herself a lawyer. She did not suffer from any diminished mental capacity and was not elderly or incapacitated. She understood the consequences of her designation...

In addition, at the time Judy first contacted Larson regarding the American Family policy, she had already also engaged the services of another lawyer for estate planning purposes. She did not seek Larson’s advice with regard to the drafting of the unexecuted trust or with respect to the change in beneficiary on the American Family policy. Larson did not seek the designation as beneficiary and was unaware of it until after the designation was made. And because Larson had done much uncompensated legal work for Judy, the designation seemed reasonable to Larson.

The ethics rules do not create a cause of action

we note that Gallner essentially argues that Larson violated the disciplinary rules applicable to Larson as an attorney, and therefore breached a duty to Judy. But as we note above, the rules are designed to provide guidance and “not designed to be a basis for civil liability.”

Nor did an asserted malpractice case exist under the circumstances

there is simply no evidence of an employment relationship regarding estate matters upon which to base a malpractice claim. Larson plainly did not represent Judy on any estate planning matter. Nor can Gallner show a neglect of duty. We concluded above that Larson showed on these facts the designation of him as beneficiary was fair. Finally, Gallner cannot show any loss, because as noted above, Judy’s father, not Jordan or the estate, was the contingent beneficiary on the American Family policy. We find no merit to this argument.

(Mike Frisch)

June 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

AUSA Admonished For Misleading Statement To Tribunal

The District of Columbia Office of Bar Counsel has informally admonished an Assistant United States Attorney

We find that you violated Rules 8.4(c) which prohibits engaging in conduct involving "dishonesty, fraud, deceit, or misrepresentation." This violation occurred when you responded, as a representative of the United States, to a question from a Superior Court judge with a misleading answer. When the court asked if the family of a homicide victim had asked to be heard at the plea hearing, you responded by stating that they had not asked to be heard at the plea. When you made this response, you were aware that the family had not asked to be heard at the plea hearing because they were not aware of it and you were aware that it was your responsibility to notify them of the hearing, either directly or through the victim's advocate from your office.

An attorney may reject an informal admonition, in which case Bar Counsel files charges that proceed in the normal course.

My understanding is that these admonitions are not published until after the time to reject the sanction has expired.

The case is In re Charles Cobb. (Mike Frisch)

June 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Mouse Clicks And Fair Trials

The Iowa Supreme Court reversed the Court of Appeals and reinstated a second degree murder conviction, rejecting a claim of juror bias. 

The juror had disclosed that she knew and was Facebook friends with a relative of the victim but

there is no evidence the juror provided false testimony during voir dire...

Webster’s lawyer elected not to thoroughly explore the nature of the relationship, including the intriguing mention that she and Frisbie’s stepmother were friends on Facebook. Instead, Webster’s counsel asked a series of questions that seemed more designed to rehabilitate the juror than challenge her. At the conclusion of the hearing, Webster did not challenge the juror for cause. Based on the record before us, we cannot conclude the juror engaged in misconduct by lying during the in camera hearing.

This was of some concern

That brings us to the most troublesome point in the case. There is some suggestion the juror, after the in camera inspection but prior to the verdict, clicked “like” on a Facebook comment by the victim’s stepmother which stated, “Give me strength.” A juror who directly violates the admonitions of the court and communicates with the mother of a crime victim about a case certainly raises questions about her ability to be an impartial juror. This action occurred after voir dire and apparently after the in camera hearing. Thus, Webster has not waived his bias challenge based upon this event, which would not have been uncovered through diligent use of ordinary trial processes. However, the record here does not disclose the court’s initial admonition or when the juror clicked “like.” In any event, while the short form admonition to the jury in the record indicated that the juror should not communicate with parties and witnesses about the case, the juror apparently thought (erroneously) that merely clicking “like” on Facebook was not a “communication.” Moreover, the communication did not relate to the guilt or innocence of the accused, but only showed a degree of empathy for a grieving stepmother who lost her son. A juror who does not have empathy for a grieving mother whose son was a homicide victim would be awfully cold hearted. If we disqualified jurors because they empathized with the family of crime victims, we would have no jurors...

Notwithstanding our resolution of the issues in this appeal, we do not approve of the juror’s conduct in this case. While the click of the mouse does not require reversal of Webster’s criminal conviction, it is troublesome nevertheless. While it did not occur in this case, a single click of the mouse on Facebook can trigger cascading responses. Further, messages posted on Facebook may be viewed by many persons, generating a perception of a miscarriage of justice. In the future our district courts would do well to recognize that in this day and age, our jurors are part of the new electronic world. This can pose a problem in our jury trials. We have held that the click of the mouse in this case was not misconduct sufficient to require a new trial...

The court provides a useful summary of the emerging body of case law and scholarship on social media and juror misconduct. (Mike Frisch)

June 26, 2015 in Hot Topics, Law & Society | Permalink | Comments (0)

Sobriety Lapse VIolates Probation

The Pennsylvania Supreme Court found that an attorney had violated the terms of a previously-imposed probation and suspended him for a year and a day.

He was required to cooperate with a sobriety monitor

Mr. Lefevre's testimony was credible and persuasive. He noted that from the beginning of the probation period, Respondent never completely complied with all conditions of probation. Mr. Lefevre discussed his concerns with Respondent in May of 2014 and noted improvement on Respondent's part, but never full compliance. At a certain point, Mr. Lefevre stopped hearing from Respondent altogether. From December 4, 2014 to December 29, 2014, Respondent had no contact with Mr. Lefevre. There was contact on December 29, 2014, but Mr. Lefevre felt that Respondent's attitude regarding his significant lapse in communication was cavalier. After December 29, 2014 until April 18, 2015, Respondent had no contact with Mr. Lefevre. Mr. LeFevre attempted to contact Respondent on two occasions in February of 2015, with no success. The April 18, 2015 voice mail from Respondent to Mr. Lefevre indicated that Respondent, by his own admission, had relapsed from his sobriety. Mr. Lefevre attempted to contact Respondent but was unsuccessful and has not had any communication with Respondent since that voicemail.

The Disciplinary Board viewed the violation as a "serious matter." (Mike Frisch)

June 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

A Taste For Fine Wine At No Cost

Kathleen Maloney reports this discipline decision on the web page of the Ohio Supreme Court

In a unanimous ruling, the Ohio Supreme Court suspended Rodger W. Moore of Fort Mitchell, Kentucky, for two years with one year stayed because he had shoplifted on seven occasions and later lied about it to the Cincinnati Bar Association.

Admitted to practice in Ohio in 2001, Moore was arrested the same year in Atlanta, Georgia, for allegedly stealing 12 bottles of wine from a grocery store. The wine averaged a little more than $12 per bottle. He agreed to do 65 hours of community service.

In March 2012, Moore again was caught shoplifting three bottles of wine – more expensive vintages this time – along with olive oil at a Cincinnati grocery store. Instead of walking out with the items, he brought UPC codes for less pricey items with him and scanned those at the self-checkout. The false UPC codes reduced the price of the groceries by $359.10.

Moore pled guilty and was allowed to enter a diversion program. He also confessed he had taken expensive bottles of wine this way from the same store five other times.

His lawyer advised him to report the March 2012 charge to the bar association. In correspondence, as well as an interview, with the bar association during an investigation, Moore made false statements about the incident and did not disclose his other thefts.

In imposing the sanction, the court noted that Moore showed an unwillingness to take responsibility for his misconduct. The decision set out specific conditions the attorney must follow to have one year of the two-year suspension stayed and described other requirements for his reinstatement.

2014-1737Cincinnati Bar Assn. v. MooreSlip Opinion No. 2015-Ohio-2488.

(Mike Frisch)

June 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 25, 2015

Attempted Murder Is Crime Of Moral Turpitude

J. Michael Farren has been disbarred by the District of Columbia Court of Appeals.

...Mr. Farren was convicted of, among other things, attempted murder in violation of C.G.S. §§ 53a-49 (a)(2) and -54a (a), which is a crime that “requires a finding of the specific intent to cause death.” State v. Murray, 757 A.2d 578, 583 (Conn. 2000). In examining a crime requiring the same intent to kill, this court deemed it to be “self-evident” that murder is a crime of moral turpitude per se for purposes of attorney discipline. See In re Carpenter, 891 A.2d 223, 223-24 (D.C. 2006) (concluding that murder for pecuniary gain under C.G.S. § 53a-54 (b) is a crime of moral turpitude per se because it requires proof of the specific intent to cause death and noting that “[f]irst-degree murder . . . offends the generally accepted moral code of mankind” (citation omitted)). We hold that Mr. Farren’s crime of attempted murder is also one of moral turpitude per se and, as a result, one that requires disbarment under D.C. Code § 11-2503 (a).

The Stamford Advocate reported on the sentencing

Farren picked up his wife by the throat, threw her across the room and struck her head and face as many as 10 times with a heavy metal flashlight, according to testimony during his trial in early July. He strangled her more than once during the attack, causing her to lose consciousness.

She lost a significant amount of blood, suffered a broken jaw and cheek bone as well as deep cuts to her head that left her skull visible, and tufts of hair had been wrenched off her scalp, a doctor said on the stand. Her smile is now crooked from the nerve damage to her right cheek from the attack.

On July 1, Farren, 61, who was an attorney serving in both Bush White Houses and a general counsel for Xerox Corp., was convicted by a six-person jury of attempted murder, first-degree assault and risk of injury to a minor.

Does anyone find it remarkable that there is a D.C. precedent for this proposition?

The case involved, believe it or not,  another D.C. admitted attorney convicted of murder in Connecticut.

Thankfully, this court has not had to consider before, in regard to attorney discipline, whether first-degree murder is a crime of moral turpitude per se. But the answer is self-evident. First-degree murder —including murder for pecuniary gain—"offends the generally accepted moral code of mankind."

I had argued the issue in the high-profile Ruthann Aron case when I was at Bar Counsel.

Unfortunately, she consented to disbarment after full briefing and oral argument. (Mike Frisch)

June 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

No Liability For Blogging Attorney

The District of Columbia Court of Appeals affirmed the dismissal of claims brought against a law firm that had represented a co-worker of the plaintiff.

The plaintiff had given information to the co-worker (Ren) who in turn provided it his attorneys.

In July of 2013, Ren and other co-employees of appellant filed suit against Phoenix, alleging that they had suffered retaliation for their role in helping appellant. They retained the law firm Bernabei & Wachtel, PLLC (“B&W”), to represent them, and appellant alleges that Ren subsequently gave B&W a copy of the video. B&W issued a press release in Chinese and English that resulted in multiple news stories.

Appellee Lynne Bernabei, a lawyer in the B&W law firm, allegedly used appellant’s full name on her micro-blog, and also conducted an interview on a website that included appellant’s full name in the text of the interview, as well as a copy of the video depicting appellant’s workplace incident. Appellees also allegedly released the video to local television stations, and posted it for public consumption on YouTube. Appellant learned of the video’s publication when friends, colleagues and members of the public began to ask about the video and her association with it; appellant claims that as a result she suffered severe emotional distress.

Retaining counsel again in September of 2013, appellant filed suit against the instant defendants, alleging four counts of invasion of privacy, two counts of copyright infringement, and additional counts of intentional and negligent infliction of emotional distress. The copyright infringement counts were dismissed early in the litigation, and all of the remaining counts (for invasion of privacy and infliction of emotional distress) were dismissed following defendants’ motion to dismiss, and a subsequent motion for partial reconsideration. This appeal followed.

The court rejected a variety of causes of actions such as invasion of privacy, misappropriation, false light and infliction of emotional distress. 

The author of the opinion - Senior Judge William Pryor - is, in my opinion,  the greatest jurist I have ever known. (Mike Frisch)

June 25, 2015 | Permalink | Comments (0)

Out Of Kokomo

An attorney who had abandoned his law practice in Kokomo and left for Australia was disbarred by the Indiana Supreme Court.

The eleven counts of misconduct in this case arise from Respondent’s abrupt abandonment of his Kokomo law practice and move to Australia in September 2013, two days after enlisting Brent Dechert as his attorney surrogate. See Admis. Disc. R. 23(27). Counts 1 through 7 each involve particular clients who retained Respondent to file bankruptcy petitions. In each case, Respondent was paid a retainer fee up front, did little or no work on the case thereafter, and eventually absconded to Australia without refunding or making arrangements to refund unearned legal fees. In most of the cases, Respondent was largely unresponsive to client inquiries regarding case progress, and in two of the cases Respondent knowingly misrepresented to the client that a bankruptcy petition had been filed when in fact no petition had been filed. Counts 8 through 10 are similar in nature and involve particular clients who retained Respondent in various non-bankruptcy matters. Finally, Count 11 charts twenty-two additional clients of Respondent identified by Dechert as having been abandoned by Respondent with legal matters still pending, and to whom unearned fees are still owed. In sum, Respondent was paid a total of $58,366 by the clients identified in these eleven counts. None of these clients’ legal matters were completed by Respondent. The balance in Respondent’s attorney trust account at the time it was turned over to Dechert was $2,060, with no records left indicating to which client or clients that sum belonged.

An aggravating factor was his accepting new clients and retainers when his plan to leave the country was in place.

For a variety of reasons, an attorney may be faced with the need or desire to wind down his or her law practice. Whatever the reason, the attorney’s ethical obligation to protect clients’ interests is clear. Among many other things, key practice management records (such as client files and business and trust accounts) should be in order and reconciled, clients should be notified and kept fully and accurately informed of matters relating to their case, fee issues should be resolved, and appropriate contingency plans for transitioning clients’ cases to successor counsel should be implemented.

Respondent did virtually none of these before absconding to Australia. He did not reconcile his trust account; he looted all but a small portion of it and left behind no records indicating to which client(s) that remaining sum belonged. He did not notify clients of the status of their cases; when clients inquired, Respondent mostly avoided them and in some instances lied to them. Respondent did not refund unearned fees; he stole them. Most clients were not notified of his impending move out of the country, and Respondent continued to accept new clients (and their money) even as the abandonment of his law practice was imminent. Finally, while Respondent did enlist the aid of Dechert as an attorney surrogate, Respondent did so at the last minute and in a manner that precluded Dechert, despite his commendable efforts to triage the harm caused by Respondent, from being able to fully protect the interests of Respondent’s clients

(Mike Frisch)

June 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)