June 5, 2009
The Iowa Supreme Court suspended an attorney's license without possibility of reinstatement for eighteen months in a case involving a host of ethical violations in several matters. One finding of misconduct related to the lawyer's deposition of a former client. The court affirmed findings that the lawyer's conduct, in the face of the former client's repeated assertion of the attorney-client privilege, violated the lawyer's obligation of confidentiality to the former client:
Even if it were not already apparent to [the lawyer] that [the client] considered his domestic abuse history as a distinct embarrassment, this became clear to him when [the client] declined to answer because he believed the questions inquired about a matter protected by the attorney-client privilege. Notwithstanding [the client's] initial refusal on the ground of privilege to answer the question posed, [the attorney] persisted and expressly inquired as to the substance of a conversation he claimed to have had with [the client] about the consequences of any plea bargain in the criminal case. We find [his] conduct during the deposition crossed the line of appropriate zealous representation in the commercial litigation, and constituted a revelation of a former client's secret...
The court increased the sanction that had been recommended by the Grievance Commission, noting that the evidence concerning the handling of entrusted funds raised the possibility of revocation and that the lawyer had a history of prior discipline. (Mike Frisch)
Billing Misconduct Charges In Florida
An April 2009 post from the Florida Issues blog:
A Jacksonville lawyer accused of overbilling taxpayers hundreds of thousands of dollars to represent poor defendants could face discipline by The Florida Bar, where a formal complaint has been filed against him.
The complaint accuses David Taylor of submitting grossly excessive bills, including 41 days when his invoices show him working more than 24 hours.
It was filed Friday by Florida’s Justice Administrative Commission and obtained Wednesday by the Times-Union. Bar complaints normally aren’t public until action is taken, but the commission, which oversees funding for court-appointed counsel, is subject to Florida’s public records law.
“Whether you’re a doctor or a lawyer or whatever your line of work, there are only 24 hours in a day, and to bill your client in excess of that is an insult to the intelligence,” said commission Chairman Dennis Roberts, the public defender in Lake City. “I can’t think of a worse case ... in which the taxpayers of the state have been ripped off by an individual attorney.”
Taylor said the allegations in the complaint are the same as those raised by the commission when it terminated his contract in February. He said he has hired a Tallahassee lawyer to represent him before the Bar. Beyond that, he wouldn’t comment.
The Bar, which regulates lawyers’ conduct, could do nothing or recommend that the Florida Supreme Court impose sanctions ranging from a private reprimand to suspension or disbarment. A Bar investigator confirmed that the organization already was looking into the issue after a Times-Union report last month.
Taylor was one of about 100 lawyers in Duval, Clay and Nassau counties who accept court appointments for indigent criminal defendants when both the Public Defender’s Office and the Regional Conflict Counsel office have conflicts of interest. That most frequently happens in cases with multiple defendants or when the victims or witnesses have their own criminal records.
The commission removed Taylor from the court appointment list after determining he had billed Florida taxpayers almost $700,000 since July, including about 100 days when his invoices show more than 16 hours. The amount was more than twice as much as the next highest paid court-appointed lawyer in Florida, who billed exclusively for death penalty cases in Miami.
Since then, Taylor has shaved about a third of the hours from his invoices, citing clerical errors and saying the initial bills were drafts, the complaint says. He also said he subcontracted legal work to other lawyers when he overcommitted himself, a violation of his contract with the commission.
Neither explanation is reasonable or logical, the complaint says. The overbilling was too excessive to all be attributed to clerical errors, and nothing in the invoices indicates the involvement of any other lawyers, the complaint says. Taylor hasn’t returned any money, it says.
The commission said Taylor has misrepresented to two judges that he has resolved the issue and that the initial allegations against him are less dramatic than initially presented.
“In fact, that was far from the truth,” Roberts said.
June 4, 2009
Costs Award Overturned For Threatening Letter To Adverse Witness
A majority of the New York Appellate Division for the First Judicial Department overturned an award of costs against a client and lawyer that was based on the lawyer's letter to an adverse witness in an anticipated arbitration hearing concerning the removal of a tenured professor.
A partial dissent lays out the key facts:
Petitioner, already represented by an attorney on his claim of wrongful termination of employment, retained a criminal lawyer whose sole contribution was to send a letter to respondent's witness stating that her testimony against petitioner could constitute perjury, followed by a letter to the respective director of security at each of respondent's New York campuses asserting that "an investigation by your office will lead you to the conclusion that [the witness] committed perjury in violation of New York Penal Law Sections 210.05; 210.10." Since I agree that no valid basis has been advanced for the equitable relief sought by petitioner and because I regard the unauthorized communication as an unvarnished attempt to intimidate a witness, I conclude that the imposition of costs and the award of attorneys' fees against petitioner and additional counsel was a provident exercise of Supreme Court's discretion.
After investigating complaints from 37 students regarding petitioner's inappropriate conduct during class, respondent sent a letter to petitioner notifying him that, pursuant to the collective bargaining agreement (CBA) governing professors employed by New York Institute of Technology, "you are hereby dismissed, effective as of May 21, 2007, for engaging in serious professional misconduct." The letter asserted that petitioner denigrated students' intelligence and ethnicity, made sexually explicit remarks, demeaned other faculty members at an affiliated college and made sexual advances toward female students. On June 4, petitioner invoked the grievance procedure under the CBA and, the following day, brought this proceeding (a) to compel arbitration and (b) for equitable relief...
As to respondent's motion for costs and attorneys' fees against petitioner and additional counsel (collectively, appellants)...This Court "will defer to a trial court regarding sanctions determinations unless there is a clear abuse of discretion" (citation omitted).No such abuse is discernable.
According to his affidavit, counsel was consulted by petitioner for the limited purpose of sending a letter to a witness against petitioner, followed by a second letter to respondent's campus security directors. The witness submitted an affidavit attesting to petitioner's unwelcome verbal and physical advances, conduct that resulted in the witness's filing a formal complaint with respondent's director of human resources. Specifically, she avers that petitioner spent a good portion of class time asking her personal questions, that he asked her to break up with her boyfriend, invited her to dinner in his apartment, and hugged her and kissed her. Counsel's letter to the witness is dated within two weeks of her affidavit, and his letter to respondent's security staff is dated approximately two weeks thereafter. Another student also submitted an affidavit in support of respondent's opposition to petitioner's proceeding for injunctive relief.
From the perspective of a sophisticated reader, well versed in the law, counsel's letter to the witness is something less than an unqualified accusation of perjury. It states, equivocally, "I determined that it was my client's position that statements made in your affidavit were untrue." The language employed is conditional: "If indeed your sworn allegations were knowing falsehoods, without a retraction, you could be guilty of perjury." But the threat of prosecution and the proffered solution are unlikely to have been lost on an unsophisticated, young layperson: "if you change your affidavit to rectify any untrue statements before the proceeding in New York State Supreme Court is over, you may have a defense to the perjury charges." Copies of the pertinent Penal Law provisions were enclosed. Finally, while the letter advises the witness to seek independent advice, it counsels the witness to consider retraction and invites further communication, stating, "Although you should certainly obtain your own legal advice, I wanted to inform you that if you lied in your statement, you might want to retract the statement sooner rather than later, so that this defense might be available to you." The letter concludes, "If you do not have an attorney, feel free to contact me at the above number to discuss this further."
In his affidavit in opposition to respondent's motion for costs, counsel states that he is unfamiliar with civil litigation. He professes to have been misled by petitioner's claim that the witness was in an abusive relationship and was pressured into filing a false statement. He explains that he was persuaded "to send the letter because I believed that if, in fact, she had committed perjury, notably because of pressure from her boyfriend, that she might welcome the knowledge about the defense to perjury and would obtain counsel in an effort to help herself." However, this sentiment is in sharp contrast to the tone of counsel's letter to respondent's campus security directors, which states that the witness's affidavit "makes outlandish statements against Mr. Kalyanaram. We believe that a modest investigation by you of these statements will uncover the statement's [sic] falsity and that after this investigation, you will determine that the matter should be referred to law enforcement." It should be noted that during the course of the proceeding, the parties and their attorneys appeared twice before the court and submitted extensive affidavits and information. At no time did counsel on behalf of petitioner seek discovery or request an evidentiary hearing which would have shed light on the veracity of the complaints.
It bears emphasis that the standard of review in this matter is not whether this Court, examining the circumstances de novo, might conclude that the propriety of this communication with an adverse witness should be consigned to the Departmental Disciplinary Committee, to which it has been referred, for investigation and determination. Nor is it a question of whether Supreme Court committed legal error in imposing costs and fees against petitioner and counsel. The only issue before us is whether the imposition of costs and fees constitutes "a clear abuse of discretion" by the court (id.).
Appellants have advanced no basis for departing from Supreme Court's conclusions that petitioner "decided to threaten [the witness] with the specter of having to endure a criminal perjury investigation and indictment which he would initiate," and that counsel "should have recognized that such extra-judicial efforts to put pressure on [the witness] to retract her charges against petitioner in this proceeding and in the arbitration proceeding were highly improper." As the court noted, costs may be awarded for frivolous conduct upon motion after affording a reasonable opportunity to be heard (22 NYCRR 130-1.1[d]) and, in this case, appellants received ample opportunity to oppose respondent's motion, submitting extensive opposing papers.
While, as noted, there is little merit to petitioner's application for injunctive relief, which seems to have been interposed merely to prolong the proceedings, whether it is so devoid of legal merit as to be considered frivolous is subject to interpretation (22 NYCRR 130-1.1[c], ). There can be no question, however, that the communications with the witness and with respondent's campus security directors, whether or not amounting to an outright accusation of perjury, were intended "to harass or maliciously injure" respondent's witness (22 NYCRR 130-1.1[c]). The communications transgressed the former Code of Professional Responsibility DR 7-105(A) (22 NYCRR 1200.36[a]), which provided, "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter." They also offended DR 7-104(A) (22 NYCRR 1200.35[a]), which provided:
"During the course of the representation of a client a lawyer shall not:
* * *
"(2) Give advice to a party who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such party are or have a reasonable possibility of being in conflict with the interests of the lawyer's client."
Because petitioner and counsel were both involved in the decision to send the offending letters, the court properly imposed costs against both.
Ex Parte Contacts Draw Reprimand
The Mississippi Supreme Court approved a sanction that had been proposed by the Commission on Judicial Performance and imposed a public reprimand along with a fine and costs of a justice court judge. The matter involved a defendant charged with distirbing the peace of one Candi Bernard. The defendant was hospitalized and unable to attend her initial court appearence. The judge was advised of this by the defendant's mother.
The judge presided over the subsequent trial and found the defendant guilty. After the victim and her family had left the courtroom, the judge set aside the finding and ordered that the defendant attend anger management training. The judge indicated that he had spoken with the victim and her family prior to the hearing. The judge then took up another matter involving the same defendant without giving her prior notice or the opportunity to secure counsel. He found the defendant guilty of simple assault in that matter.
A Natchez newspaper reported the disturbing the peace conviction without mentioning that the sentence had been set aside. The judge spoke ex parte with the defendant about the article and told her "she should be glad he did not give her jail time because she brought people into his courtroom that he did not care for" in a manner that the judge admitted was "impolite." He had another ex parte conversation with the defendant and, as a result, gave her a handwritten note for her employer about the verdict. He did so "in part because he was intimidated by [the defendant]."
The judge had a record of prior discipline for similar misconduct. (Mike Frisch)
Escrow Activity Leads To Immediate Suspension
The New York Appellate Division ordered the immediate suspension of an attorney in light of evidence concerning unexplained withdrawals from an escrow account:
The Departmental Disciplinary Committee is now seeking an order...immediately suspending respondent from the practice of law based on failure to cooperate with the Committee's investigation and allegedly uncontested evidence of misconduct that threatens the public interest.
The Committee's accountant prepared accounting schedules for respondent's escrow accounts held at HSBC and Citibank. A review of those schedules shows that between December 2007 and April 2008 there were five cash withdrawals totaling $17,000 and numerous checks written to Barry Siskin, Esq. from his HSBC escrow account. There were also transfers from his Citibank escrow account to his HSBC account. When asked to explain these transactions, respondent testified that his former accountant was the only one who could explain these transactions and that he was unable to engage an accountant at this time.
Moreover, bank statements from respondent's HSBC account showed that on October 25, 2007, he had at least $100,692.45 in his escrow account which represented funds he was required to maintain on behalf of five clients. However, five days later, the balance in his account had decreased to $97,430.51. On December 4, 2007, before respondent wrote a check to one of the five clients, the balance in his account had dropped to $75,104.98. In addition, respondent was required to maintain a total of $87,813.25 on behalf of two other clients. However before respondent disbursed those clients their funds, his escrow account decreased, dropping as low as $51,664.31 on February 5, 2008. On the same day, February 5, 2008, respondent wrote a check for $40,000 from his Citibank escrow account and deposited it into his HSBC account.
Based on respondent's failure to respond to questions with respect to transfers from his escrow account and the unexplained decrease of funds, an immediate suspension from the practice of law is warranted.
Florida Bar Section May File Amicus Brief
The Florida Supreme Court has held that the Family Law Section of the Florida Bar may file an amicus brief on a matter of interest to the section. The ruling came in a lawsuit initiated to enjoin the brief. The court noted that membership in the section is voluntary and that permitting the brief thus does not violate the First Amendment rights of bar members. The suit was filed by two bar members and a public interest law firm.
A dissent would not grant the injunctive relief sought but would hold that the Bar had failed to comply with its policies regarding amicus briefs:
The Florida Bar's Standing Board Policy...provides that sections of the Bar may not submit an amicus brief in pending litigation if the issue involved "carries the potential of deep philosophical or emotional division among a substantial segment of the membership of the bar." The issue of homosexual adoption is undeniably divisive. The Florida Bar does not argue otherwise. The majority opinion does not hold otherwise.
The Wrong Way To Get Clients
A summary of a recent bar discipline case from the California Bar Journal:
[An attorney] was suspended for two years, stayed, placed on two years of probation with a 60-day actual suspension and he was ordered to prove his rehabilitation and take the MPRE within one year. Credit towards the actual suspension is given for a period of involuntary inactive enrollment that began Nov. 1, 2007. The order took effect Dec. 25, 2008.
[The attorney] successfully completed the Alternative Discipline Program for lawyers with substance abuse or mental health problems. He was admitted to the program following misdemeanor convictions in 2004 for conspiracy, soliciting a crime and capping.
A former deputy district attorney for San Bernardino County, [he] left the DA’s office in 2000 and began a private criminal defense law practice. He had agreements with several bail bond agents to pay them kickbacks in exchange for client referrals. He also provided other legal services without charge or for a discounted fee to the agents. In several incidents, [he] paid a 20 percent kickback to the agents.
He also solicited inmates to refer clients to him in exchange for cash kickbacks or discounted legal services on their criminal matters. He paid inmates a 10 percent kickback in five to 10 incidents.
According to the stipulation, there were numerous kickback incidents over a two-year time period and [he] made a significant amount of money as a result. He discontinued the scheme due to his fear that complaints by a client in a dispute with one of the referring bail bond agents would expose him.
[The attorney] was charged in 2004 with two felonies: conspiracy to commit unlawful solicitation of bail in violation of the insurance code, and solicitation of another to join in a running and capping scheme. The charges were reduced to misdemeanors to which Newman pleaded guilty. He also pleaded guilty to misdemeanor capping and served 120 days in jail and paid a $75,000 fine.
He was admitted to the bar’s alternative discipline program after demonstrating that his substance abuse caused the misconduct.
"Egregious Abdication Of... Ethical Obligations"
An interesting "case of the month" from the National Organization of Bar Counsel:
A federal prosecutor’s personal animosity leading to a collateral investigation of an opposing defense team warrants sanction.
On April 9, 2009, Judge Alan Gold of the United States District Court for the Southern District of Florida ruled on a defendant’s motion for sanctions against the United States pursuant to the Hyde Amendment. The defendant, Ali Shaygan, claimed that he had been prosecuted by the Justice Department in bad faith. Earlier, the United States acknowledged that it initiated a collateral investigation into witness tampering and authorized two witnesses to tape their conversations with members of the defense team in violation of U.S. Attorney’s Office (USAO) policy. The month before, Shaygan was found not guilty by a jury on all 141 counts of a superseding indictment.
Judge Gold imposed a public reprimand against the U.S. Attorney for the Southern District of Florida for failing to properly supervise AUSA Karen Gilbert, the head of the Narcotics Section of the USAO. Judge Gold also reprimanded Gilbert and her deputies for gross negligence, as well as the two prosecutors in the case, AUSAs Cronin and Hoffman. He did however acknowledge that the U.S. Attorney, Alexander Acosta, had no actual knowledge of the events in question. The judge agreed with the government that its original indictment in the case was filed in good faith, especially given the circumstances surrounding the death of one of Dr. Shaygan’s patients, but prosecutorial misconduct issues developed after these formal charges were filed. Quoting from a recent editorial in the Miami Herald about the Justice Department case against former Alaska Senator Ted Stevens, the judge noted that, “The job of prosecutors is to obtain justice, not merely secure convictions.” He granted Shaygan full relief under the Hyde Amendment and the government was ordered to reimburse the defendant all of his fees and costs from the date of the filing of the superseding indictment, an amount more than $1,074,300. When adjusted as required by the Hyde Amendment, the U.S. paid a total award of $601,795.88 for attorneys’ fees and other litigation expenses. The judge also enjoined the U.S. Attorney’s Office for the Southern District of Florida from engaging in future witness tampering investigations of defense lawyers and defense team members in any ongoing prosecution before Judge Gold without first bringing such matters to his attention in an ex parte proceeding. The U.S. Attorney also had to report his efforts towards enhanced supervision of his attorneys and all changes to the “taint wall” policies within the USAO and the DEA.
In early 2008, the government filed a 23-count indictment against Dr. Shaygan alleging that he distributed and dispensed controlled substances outside of the scope of professional practice and not for a legitimate medical purpose. About this same time, the doctor’s defense team participated in an acrimonious criminal trial involving another defendant where AUSAs Cronin and Hoffman served as prosecutors. The defendant in that first trial was acquitted of all charges. Shortly thereafter, the AUSAs filed a complaint alleging that the first defendant engaged in witness tampering. Following a meeting attended by the defense team, the AUSAs, and senior members of the USAO, that complaint was dropped without an indictment. Thereafter, relations between the AUSAs and the Shaygan defense team were increasingly strained.
During the summer of 2008, AUSA Cronin warned Shaygan’s lead attorney that pursuing a suppression of evidence motion in the doctor’s criminal case would lead to a “seismic shift” in the matter. Cronin did not elaborate on what he meant by the phrase “seismic shift.” Judge Gold later concluded that it was a threat of action beyond the boundaries of a good faith prosecution of the case. The threat was a harbinger of worse conduct to come. The prosecutors, it seems, were worried about the defense team learning information from key government witnesses that could derail the prosecution’s case. That information was eventually revealed during the course of Shaygan’s trial.
At the trial, one witness, Ms. T, was called by the government in its case in chief. During the government’s examination, she denied making certain statements that were attributed to her in a DEA report. Importantly, that report had never been turned over to defense counsel pursuant to a Brady request. AUSA Hoffman attempted to impeach the witness with statements contained in the report. Judge Gold later concluded that T’s testimony was more credible than the statements attributed to her in the DEA report. T testified that a DEA Agent named Wells “tried to put a negative spin on my statements,” during the course of an interview he had earlier conducted with her and “kept trying to put words in my mouth.” Wells implied that T was addicted to pain killers and did favors for Shaygan in return for prescription drugs. T, however, needed medication for legitimate health needs. She had nothing but positive things to say about Shaygan as a person and as a doctor. Judge Gold rejected the prosecution assertion that T made a “very serious charge” to Wells that a defense investigator attempted to intimidate her by telling her that the prosecution was planning to portray her as a drug abuser at the trial.
The DEA report of T’s interview was not turned over by Wells even though a specific order was entered saying that all such reports be provided for in camera review prior to the commencement of the trial. Judge Gold rejected the notion that Wells misunderstood the order and that he and Cronin never discussed it. The failure to turn over the report, as well as other DEA reports, was made in bad faith because the report revealed that another government witness, V, had recorded a conversation that he had with the defense investigator. This information would have led to the disclosure that V acted as a confidential DEA informant. Cronin and Hoffman knowingly failed to bring to the Court’s attention that V had made the recordings of the defense team before V testified as a witness at trial. Tellingly, Cronin purposefully steered clear of mentioning the tape in his questioning of V on direct examination. Cronin also did not disclose that he knew another government witness, C, had agreed to make recordings and was cooperating with Wells. Even after C gratuitously stated on cross-examination that he had recorded a conversation with a member of the defense team, Cronin did not disclose any Brady information to the Court or the defense. Cronin said at the sanctions hearing that he determined that recording the defense team was an appropriate way to investigate the possibility of witness tampering. AUSA Deputy Chief Juan Antonio Gonzalez had permitted Cronin to commence the collateral investigation notwithstanding the fact that. Gonzalez was obligated to instruct Cronin, as lead trial attorney, to cease and desist with this collateral matter based on office policy. This policy provided guidance for prosecutors regarding potential investigations of attorneys in order to avoid “a public perception of animus toward the attorney.” Judge Gold eventually concluded that there were insufficient facts for the U.S. to proceed in good faith on a collateral prosecution for witness tampering.
At the sanctions hearing, AUSA Karen Gilbert could not explain why, as head of the narcotics section, she could not legally instruct DEA to “wall off” Wells from the witness tampering investigation. It was Cronin, not Gilbert, who authorized Wells to have V and C record their calls with the defense team, in spite of the fact that Wells was walled off from speaking to Cronin about the collateral matter. Judge Gold felt that Cronin intentionally desired Wells to participate in the collateral proceedings. The judge was not persuaded by Cronin’s claims that he did not think Wells’ participation violated the “taint wall.” Judge Gold saw Cronin is a “bright and sophisticated” prosecutor who well understood the implications and benefits of continuing his regular contact with Wells as lead agent while the collateral investigation was proceeding.
Wells advised Gilbert that V had made a recording in early December. Gilbert told Wells not to discuss the substance of the tape with other agents or members of the trial team, but Wells had already informed Cronin. Cronin and Hoffman also called Gilbert and told her a recording was made. The call did not raise a red flag with Gilbert, even though she had instructed Cronin and Hoffman not to have further involvement in the collateral investigation. Gilbert told Wells that even though there was no intimidation or any effort to tamper with the witness by the defense investigator evidenced on the tape, she wanted to continue investigating the allegations. Gilbert never considered whether V’s tape had to be turned over to the defense in light of Brady . When Gilbert became involved in a murder trial, she assigned AUSA Dustin Davis to be the point of contact on the collateral investigation.
In February, 2009 Cronin and Hoffman called James P. Brown, the DEA Special Agent who had replaced Wells the month before, to make him aware of the commencement of the Shaygan trial on February 17, 2009. The call violated of the “taint wall” protocol. When Brown knew the trial date, he was effectively advised that he had eight days to conclude his collateral witness tampering investigation. Interestingly, Cronin never mentioned this call to Brown in no affidavit that he filed in anticipation of the sanctions hearing. Judge Gold later ruled that Cronin and Hoffman contacted Brown for the bad faith purpose of seeking to disqualify the defense lawyers for a conflict of interest immediately prior to the trial. Delaying the trial would have been “catastrophic” in the judge’s view. Shaygan was already having psychological problems, aggravated by his strict home detention and electronic monitoring, and appointing new lawyers and investigators would have been very costly.
At some point in the Shaygan case, Gilbert disclosed to the Court that a defense team investigator and attorney were recorded by V and C. She made the disclosure after C testified to the existence of a second recording in open court. Judge Gold found that the U.S. did not come forward in good faith until its hand was forced by C’s testimony. The judge was aggravated that Cronin and Hoffman casually discussed C’s revelations in a restaurant with Gilbert, but did not immediately disclose the situation to the Court once it occurred. The judge opined that Cronin and Hoffman may have been bragging to their colleagues as to what they got away with. Ultimately, Judge Gold ordered that affidavits be filed under oath by anyone who had knowledge of the situation. He ultimately reserved ruling on a defense motion to dismiss the indictment and permitted the defense to re-cross V and C. He also gave the jury an instruction that the re-cross was occasioned by government misconduct.
Judge Gold held that Cronin’s conduct constituted unethical behavior not befitting the role of a prosecutor. Cronin’s ill-will and animus toward the defense counsel led to the filing of the superseding indictment, which prolonged Shaygan’s house arrest and created additional litigation expense, and an unfounded and unnecessary collateral investigation. The judge noted that the Eleventh Circuit has held that a defendant is deprived of her Sixth Amendment right to competent counsel where her counsel is under investigation by the USAO at the time of the trial. United States v. McClain , 271 F. 2d 1457, 1463-64 (11th Cir. 1987) (overruled on other grounds). Judge Gold said that Cronin and Hoffman’s failure to bring the existence of the collateral investigation to the Court’s attention was an, “egregious abdication of their ethical obligations.”
He ruled: “In sum…Cronin as aided by Hoffman, exhibited a pattern of ‘win- at- all- cost’ behavior in the conduct of this investigation that was contrary to their ethical obligations as prosecutors and a breach of their ‘heavy obligation to the accused.’”
United States v. Ali Shaygan , No.: 08-20112-CR-Gold/McAliley (U.S. District Court, Southern District of Florida April 9, 2009).
Law Firm Not Liable To Hedge Fund Investors
The New York Court of Appeals affirmed the dismissal of an action brought by hedge fund investors against the fund's law firm. the court concluded that "neither the allegations in the complaint nor the surrounding circumstances give rise to the reasonable inference that [the law firm] participated in a scheme to defraud or knew about the falsity of the two contested statements in the offering memorandum." The allegations against the law firm were pleaded in a conclusory fashion that could not withsrtand judgment on the pleadings. (Mike Frisch)
June 3, 2009
The Never-Ending Wrong
An interesting decision of the Maryland Court of Special Appeals deals with the literary estate of noted writer Katherine Anne Porter. Ms. Porter died testate in 1980, leaving a literary trust for the benefit of the University of Maryland College Park. The power to appoint trustees was left to her executor, noted Washington lawyer E. Barrett Prettyman, Jr. Mr. Prettyman appointed a close friend of Ms. Porter named Barbara Davis and, later, named two other trustees.
Davis transferred the trust assets to an entity that she had created and secured a court order terminating the trust. The order of termination was challenged, leading to a court determination to reestablish the trust. Davis appealed.
The court here ruled that there were irregularities in securing the termination of the trust that warranted the court's resumption of trust supervision. Notice had not been given of the proceedings to the University, the State, or to the others trustees. The trial court order that prevents Davis from disposing of the trust assets was not an improperly imposed injunction; rather, the court had the authority to enter the order as part of its supervisory role with respect to trust assets. (Mike Frisch)
A former New Jersey part-time judge was permanently barred from future judicial office by order of the New Jersey Supreme Court. The Advisory Committee on Judicial Conduct had concluded that the judge had engaged in misconduct by presiding in court twice while under the influence of alcohol or drugs, abusing lawyers and identifying himself as a judge during the course of disruptive behavior at a place called Torpedo's Go-Go Bar. He had made statements at the bar that suggested he had the power to retaliate against persons who had angered him ("Do you know who I am? I can make problems for you").
The committee found insufficient evidence that the judge had favored high school students who appeared before him by giving a so-called "Warrior discount" at sentencing. The reference was to the school's nickname.
The incidents that led to the court's order had earlier resulted in a "Judge of the Day" award from Abovethelaw. (Mike Frisch)
Judge's DWI Leads To Censure
The New Jersey Supreme Court censured a municipal court judge as a result of a drunk driving incident. Details of the underlying incident from a report last December in the Cape May County Herald:
On Dec. 2, the Advisory Committee on Judicial Conduct announced it will hold a formal hearing in In the matter of Municipal Court Judge Peter M. Tourison at 10:30 a.m. on Wednesday, Dec. 10, in Room 230, at the New Jersey Law Center, 1 Constitution Square, New Brunswick.
A formal complaint was filed in this matter by the Advisory Committee on Judicial Conduct on Oct. 27.
The complaint details the following:
On June 25 Judge Peter Tourison, who presided over the municipal courts in Cape May, Stone Harbor and Middle Township, pled guilty to a charge of DWI before Judge David Krell in the Penns Grove Municipal Court.
Tourison lost his driver’s license for 90 days and was charged over $700 in fines and surcharges.
The incident occurred on March 27 when Tourison was observed driving his BMW in an erratic fashion before striking another vehicle in the North Cape May Wawa parking lot.
Tourison failed a field sobriety test and was taken to Lower Township Police Department.
While being processed, Tourison repeatedly applied lip balm and held a penny in his mouth in an effort to fool a blood alcohol content (BAC) test, according to the complaint. His test revealed a BAC of .08, the legal limit in New Jersey.
In its complaint, the Ethics Committee alleges Tourison violated three canons of the state judicial code of conduct:
• Canon 1, which requires judges to observe high standards of conduct
• Canon 2A, which requires judges to respect and comply with the law
• Canon 5A(2), which requires judges to conduct all of their extra-judicial activities so that they do not demean the judicial office
Tourison’s actions also broke court rules that constituted misconduct in office and conduct prejudicial to the administration of justice, the complaint stated.
Tourison's filed an answer to the complaint on Dec. 2.
The court's order does not specify the extent to which the conduct involving the lip balm and penny impacted on the decision.The presentment filed by the Advisory Committe on Judicial Conduct contended that the conduct was an aggravating factor. (Mike Frisch)
Jury May Decide If Hazing Was Pretext For Coach's Dismissal
From the web page of the Bangor (Maine) Daily News:
The court ruled unanimously Tuesday that it was up to a jury to decide whether Kelly Jo Cookson’s contract was not renewed in 2006 because of her sexual orientation or because she condoned hazing, as the Brewer school district has claimed. In the same decision, the court upheld a Superior Court justice’s dismissal of Cookson’s slander allegations.
The former coach’s lawsuit was the first filed in the state after sexual orientation was included in the Maine Human Rights Act in 2005.
The school district has said that Cookson’s contract was not renewed after she allegedly forced the girls on her team to walk barefoot through sheep feces at a team picnic in 2005. A teacher on Indian Island, Cookson, 47, of Clifton had coached in Brewer since 1993.
Cookson claimed in her lawsuit, filed in October 2006, that the district’s claim that her contract was not renewed for so-called hazing incidents was a pretext for the real reason she was fired — her sexual orientation.
In 2007, Superior Court Justice Kevin Cuddy granted a motion by the school district and Brewer School Superintendent Daniel Lee, finding that the decision not to rehire Cookson was not discriminatory. The former coach’s attorney, A.J. Greif of Bangor, then appealed to the state supreme court.
The high court heard arguments in May 2008. Chief Justice Leigh I. Saufley wrote the 17-page opinion. Justices Andrew Mead and Warren Silver, both of Bangor, did not participate in the court’s deliberations.
“We recognize that a fact-finder could ultimately determine that Cookson failed to establish that Lee’s offered rationale was a pretext for illegal discrimination and that the serious nature of the hazing and other alleged incidents, the parental concerns and complaints, and the need for a more balanced program were the actual motivating factors behind the decision not to nominate her as head coach,” Saufley said.
Lee decided not to recommend the rehiring of Cookson at the end of the 2006 season after the parents of former team member Stacey Gomm filed a notice of claim — the first step in filing a lawsuit — with the school department that referred to the sheep feces incident and after he learned of Cookson’s sexual orientation.
The status of Gomm’s claim could not be determined Tuesday.
The fact that the superintendent did not make his decision on whether to rehire Cookson until after he learned she was a lesbian was a major factor in the court’s decision, Saufley wrote.
“Considered in conjunction with evidence of Lee’s initial impulse not to request Cookson’s resignation,” she said, “his alleged failure to fully investigate Cookson’s reports of hazing on other teams, and his reliance on hazing incidents for which Cookson had already been punished, a fact-finder could reasonably conclude that Lee’s decision was not based on Cookson’s conduct but instead was motivated by her sexual orientation.”
Greif reacted Tuesday to the court’s decision with a sports metaphor.
“While the Brewer School Committee has been high-fiving around home plate, Kelly has scored the tying run on a sacrifice squeeze and we’re going to extra innings,” he said Tuesday. “The game is never over until the last woman is out.”
Greif alleged that Lee’s predecessor had reprimanded Cookson for the picnic incident and that school officials had ignored other reports of hazing and singled out Cookson for punishment because of her sexual orientation.
Melissa Hewey, the attorney for the school district, said in an e-mail Tuesday that her client is “gratified that the Supreme Judicial Court affirmed the Superior Court’s decision to dispose of the slander claim. … The court’s decision clearly vindicates the superintendent on this point.”
She also said that the district is confident it will win the case at trial on its merits.
“Ms. Cookson has herself admitted that she oversaw the members of her softball team walk barefoot in and touch sheep feces as a hazing activity, for at least three years in a row,” Hewey said. “Such repulsive behavior is more than enough reason for the board’s decision not to renew her coaching contract. Her sexual orientation had absolutely nothing to do with that decision, and we believe that will be the ultimate ruling in this case.”
When the case might go before a jury could not be determined Tuesday.
The court's decision is linked here. (Mike Frisch)
June 2, 2009
Sanction Proposed For Contract Attorney Overbilling
An Illinois hearing board has recommended a three-month suspension of an attorney based on findings that he had overbilled while working as a contract attorney for Mayer Brown. The detailed findings:
We find the Administrator proved by clear and convincing evidence Respondent violated Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct by engaging in misconduct involving a misrepresentation. We conclude the evidence provided by the Administrator is clear and convincing that Respondent, a contract attorney working at Mayer Brown, engaged in overbilling.
Ms. Thompson and Ms. Owen supervised the contract attorneys at Mayer Brown. Ms. Thompson was able to generate a computer record from Case Data which was a report showing the time of day Respondent made his first edit to a document, the time that elapsed between each document edit, and the time of day Respondent made his last edit to a document. Ms. Thompson testified that making an edit to a document was the same as coding a document.
Respondent billed his employer Ajilon Legal Services for ten hours he claimed to have spent "on the job" at Mayer Brown on December 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, and 30, 2005, and for five hours he claimed to have worked on December 26, 2005. The report generated by Ms. Thompson using Case Data shows that on at least three of the days in which Respondent billed time, December 23, 26, and 30, 2005, no edits were performed by Respondent, and on December 29, 2005, Respondent only made one edit at approximately 6:00 p.m. Respondent billed 35 hours in total for those days.
The report also shows that Respondent edited documents for periods of far fewer than ten hours on the other days in the relevant period. The report shows that Respondent spent approximately 35 hours editing documents on the seven days of December 14, 15, 16, 19, 20, 21 and 22, 2005 and approximately seven hours editing documents on December 27 and 28, 2005. Respondent billed 90 hours of work for those days.
Respondent’s overbilling is confirmed by the fact that very few edits were made to documents on the days Respondent did some editing. For example, the report reflects that Respondent worked a full day on December 13, 2005, his first day of editing after the orientation, and made 44 edits to documents. While this does not appear to be a substantial amount of editing over a period of almost ten hours, Respondent made far fewer edits to documents on December 14, 15 and 16, 2005. He made 9 edits on December 14, 2005, 13 edits on December 15, 2005, and 25 edits on December 16, 2005. The elapsed time between his first and last edits was 3, 4, and 5 hours respectively on those days, which was consistent with the small number of edits he made.
Other evidence supports this conclusion. First, Respondent’s supervisors at Mayer Brown testified that there was a large chunk of over 1000 documents that were assigned to Respondent and were supposed to be coded, but were not. This evidence is consistent with the fact that the report Ms. Thompson generated from Case Data shows that Respondent edited very few documents on several days and none on others. Additionally, the emails Respondent sent Mr. Naumann and Ms. Thompson stating that he was not going to be in the office on December 26, 2005, corroborate the evidence contained in the report prepared by Ms. Thompson that Respondent did not do any editing that day.
Respondent testified that he was assigned approximately five batches of documents with 300 to 500 documents in each batch during the time he worked at Mayer Brown. Ms. Thompson and Ms. Owen testified that the contract attorneys were supposed to make an edit to each document they were assigned, yet the report from Case Data shows Respondent only made 235 edits during the period in question. We find the report and the testimony of Ms. Thompson and Ms. Owen that there were over 1000 documents assigned to Respondent which were not coded very consistent.
Moreover, the evidence was clear that Respondent worked different hours than the other contract attorneys. While the other contract attorneys arrived in the morning and put in normal working days, Respondent often came in late morning or early afternoon. The time Respondent did his first edit each day as reflected in the report prepared by Ms. Thompson is consistent with this testimony. For example, Respondent began his first edit at 2:18 p.m. on December 14, 2005; 12:49 p.m. on December 15, 2005; 11:55 a.m. on December 16, 2005; 12:02 p.m. on December 19, 2005 and 12:31 p.m. on December 20, 2005.
Accordingly, Respondent’s ten hour day would not end until the other contract attorneys had left for the day. However, there was no evidence that Respondent stayed at Mayer Brown until 10:00 p.m. or 11:00 p.m. on the days he began his first edit after 12:00 p.m. In fact, the report prepared by Ms. Thompson reflects that Respondent completed his last edit each day between 5:00 p.m. and 7:00 p.m. Respondent did not introduce the building security records which might have shown his entry and exit time each day.
While we are not inclined to put a great deal of weight on Respondent’s silence when confronted by Ms. Lambros over the phone about the discrepancy between the number of hours Respondent billed and the amount of work the report generated by Ms. Thompson shows that he did, the fact that he did not deny the accusations is consistent with the other evidence discussed herein.
Respondent challenged the admissibility of the report Ms. Thompson generated from Case Data and argued that the report did not show the time he spent conferring with colleagues, the time he spent meeting with his supervisors or the time he spent reviewing two binders of documents the contract attorneys were given for the project. Respondent also testified that the report did not reflect the time he spent reviewing the documents before coding them or the time he spent re-reviewing documents after the protocol for what the contract attorneys were looking for changed.
Respondent’s assertions that he spent a significant amount of time engaged in these other activities was not corroborated by the testimony of the other contract attorneys or the testimony of the supervisors at Mayer Brown. No one else testified that the contract attorneys were required to review two binders of materials for the project. One of the other contract attorneys, Ms. Brasser, corroborated Ms. Thompson and Ms. Owen’s testimony that the only written materials the contract attorneys reviewed was a memo prepared by Ms. Thompson that was approximately 10 to 20 pages long. Additionally, Ms. Thompson, Ms. Owen, Ms. Brasser and Mr. Naumann all testified that the meetings between the contract attorneys and the supervisors were short and infrequent after the initial orientation.
There was also no evidence to support Respondent’s claim that he experienced frequent and lengthy computer problems. The other contract attorneys and the supervisors consistently testified that there were computer problems; but that they did not occur daily and they did not cause a prolonged delay in the contract attorney’s work. Ms. Thompson and Ms. Owen both testified that there was one time the system went down and caused them to send the contract attorneys home, but that they did not recall that occurring while Respondent was working on the project. Ms. Thompson testified that she did not recall Respondent reporting any computer problems to her and Ms. Yu also testified that Respondent never reported experiencing any computer difficulties to her during the time he worked on the Mayer Brown project.
Does anyone have any thoughts about the impact on billing practices if everyone's bills got scrutinized to this degree? (Mike Frisch)
Imputed Conflict Does Not Result In Reversal Of Murder Conviction
The Idaho Supreme Court affirmed the first degree murder conviction of a defendant on charges that he had poisoned his wife. The defendant had claimed that his counsel labored under a prohibited imputed conflict of interest because a fellow public defender had represented the deceased wife's mother in a related matter. The court here agreed that there was a conflict that would have required the personal disqualification of the other lawyer. However, the trial court had adequately inquired into the conflict and approved a screen between the two lawyers. The court concluded that there are unique considerations that apply to public defender offices that militate against a per se disqualification rule. Rather, the focus is on confidentiality and loyalty. Further, it did not matter that Idaho Rule of Professional Conduct 1.10 does not provide for screening as a cure for imputed concurrent conflicts.
A dissent would find error and grant a new trial based on a finding of pervasive prosecutorial misconduct in closing argument. According to the dissent, the prosecutor had improperly appealed to the passions, emotions and prejudices of the jury and used the wife's family as a means to convict the defendant. Further,
I find that the repeated references to the [defendant's] affair constitute fundamental error. There is a subtle difference in producing evidence of [the defendant's] affair at trial and referring to that affair as [his] "screwing some 21-year-old...tramp." I agree with the majority that these statements are inflammatory and improper. The prosecutor attempted to paint a picture for the jury of [the defendant] running around womanizing while his wife laid dying at home wallowing in self-pity over her recent weight gain. These tactics do not serve any purpose other than to gain a conviction through improper means.
The dissent views the court's application of harmless error to pervasive prosecutorial misconduct to be a virtual license for prosecutors to blatantly violate the rights of the accused to a fair trial. (Mike Frisch)
Judicial Compensation In New York
The New York Appellate Division for the First Judicial Department today held that a commission created for the purpose, rather than the courts, should address issues relating to judicial compensation:
The judicial system is at its best when it stands above and apart from the political interactions that more typically characterize the other two branches of government. Yet, the third branch of government is effectively dependent on the other two branches in matters of compensation. The political branches of government must discharge the responsibility of considering, and acting upon, an enhancement in judicial salaries on its objective merit.
The intersection of the separation of powers and judicial compensation has a lengthy history. Salary disputes that pitted a Legislature against the Judiciary have occurred since the early days of the Republic. Certain general themes have emerged which underscore the delicate intragovernmental relations that are threatened when legislative bodies, on the basis of various motives and agendas, act in ways that financially burden judges as they perform their duties, even if their compensation is not, nominally, "diminished," and even if the burden does not directly distort the performance of those duties.
Shortly after the ratification of the United States Constitution, the judges of the Virginia Court of Appeals, in a "respectful remonstrance" directed to the Virginia Assembly, cautioned that the unique role undertaken by the Judiciary, to protect the people from the powers of government if need be, required that relations between the branches of government be managed "to exclude a dependence on the legislature." Those judges warned that a dependency contrary to the newly crafted scheme of government could easily arise as a consequence of the subordination of the Judiciary to the Legislature in matters of compensation (Cases of the Judges of the Court of Appeals, 8 Va 135, 141, 143-145 ).
During the early part of the twentieth century, the United States Supreme Court noted the importance of ensuring a judge's "sure and continuing right to the compensation, whereon he confidently may rely for his support during his continuance in office." Adequate judicial compensation was analyzed not as a benefit to the judge, but "as a limitation imposed in the public interest" so as "to attract good and competent men to the bench and to promote that independence of action" necessary to the administration of the system of justice (Evans v Gore, 253 US at 249, 253). Elsewhere, also in the context of a compensation dispute, the Supreme Court characterized the peculiarly American scheme of government as a "separation [which] is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital ... to preclude a commingling of these essentially different powers of government in the same hands" (O'Donoghue v United States, 289 US 516, 530 ). There, the Supreme Court cautioned that each branch of government "should be kept completely independent of the others" in the sense that none should be subjected to duress by either of the other branches. The Supreme Court therein noted the "anxiety of the framers of the Constitution to preserve the independence especially of the judicial department" (id. at 530-531). Hence, American jurisprudence recognized early that matters of judicial compensation are inextricably intertwined with judicial independence vis-a-vis the legislative branch of government, requiring "a continuing guaranty of an independent judicial administration for the benefit of the whole people" (id. at 533). More recently, in a pay dispute, the Supreme Court described the separation of powers doctrine, albeit under different circumstances, as
"a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features ... it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict" (Plaut v Spendthrift Farm, Inc., 514 US 211, 239 ).
An erosion of the functional independence of the Judiciary may be incremental, and subtle, yet, unlike the political branches of government, the judicial branch is not empowered to assert its interests by means of politics. If the acts of another branch of government threaten the functional independence of the Judiciary as an institution, then the "separateness" of those branches may become illusory.
Here, there has been a violation of the doctrine of separation of powers. We assume, as did the Supreme Court in Hatter, that there is no legislative ill will toward the Judiciary in the events giving rise to this litigation, and we need not find that the Legislature intentionally intruded upon the independence of the judicial branch of government. Our conclusion also does not require evidence relating to the integrity of judging in individual cases, and, indeed, there is no record evidence of undue influence. Rather, we are concerned with the integrity, in a structural sense, of the judicial system as an independent institution, in that New York's constitutional architecture prohibits the subordination of the judicial branch to the other branches of government either in practice or in principle. More significantly, the political maneuvering by the other branches of government, by reducing the issue of judicial compensation to a tactical weapon, consequentially subordinated the status of the Judiciary to that of an inferior governmental entity. Linkage, as employed in these circumstances, manifested an abandonment of any pretense to an objective consideration of judicial compensation unimpeded by extraneous political considerations. These acts and their ramifications necessarily undermine the carefully constructed architecture of New York government.
The litigation had been brought by a number of judges against a number of public officials. The court concludes:
We conclude with the observation already made above that, consistent with our concern that judicial compensation should be as far removed as is practicable from political considerations, it makes sound sense to delegate the issue of judicial compensation to a commission created for that purpose, to analyze and make recommendations to the Legislature on the timing and scope of future increases in judicial salaries, a device that had utility in Campaign for Fiscal Equity v State of New York (100 NY2d 893 ; 8 NY3d 14 ).
Insufficient Evidence Of Conflict
The Connecticut Appellate Court affirmed a trial court determination to grant custody of a minor child to foster parents. The biological mother had appealed, claiming that an attorney had labored under a conflict of interest in his dual roles as counsel and guardian ad litem to the child. The court here found that there was insufficient evidence that the trial court was aware of a conflict between the child's wishes and the lawyer's advocacy to warrant sua sponte inquiry into the issue. (Mike Frisch)
Written Agreement Does Not Negate Violation
A subcommittee of the Virginia State Bar Disciplinary Board accepted an agreed disposition for a 60 day suspension. The attorney had handled a matter while suspended for failure to comply withb mandatory CLE requirements.
Further, the attorney was found to have violated Rule 1.15 by depositing a $500 retainer in an operating account. The violation was found notwithstanding the following language in the retainer agreement: "The client...acknowledges that the funds/flat fee will not be held in a trust account; and the client may not recive a refund of the fees if the client later chooses not to hire the lawyer or chooses to terminate the lawyer's services." In the case, the lawyer had failed to appear in court due to a "bad sinus infection." (Mike Frisch)
Thy Brother's Former Wife
The Louisiana Attorney Disciplinary Board has recommended the disbarment of an attorney whose brother had died while overseas working as a contractor for Halliburton Company. The lawyer induced his brother's former wife to execute an assigment of rights paying life insurance proceeds to himself. The lawyer felt that the former wife should not receive the proceeds because she had divorced the brother and was living with another man. The lawyer presented her with the assignment that he had drafted on the day before the funeral.
The lawyer had induced the former wife (who he thought was a named beneficiary) to accept $25,000 for a policy later determined to be worth $818,000. He failed to advise her what he believed the policy to be worth. He then received the proceeds (which he split with two siblings) and, later, represented the former wife in unrelated proceedings. She sued him when she became aware of the full amount of the policy. The suit is pending.
In the disciplinary case, the lawyer had denied any wrongdoing ("...I've run it over a million times in my mind I promise you, and I don't think I would have done anything different.") He also claimed to be judgment proof, having gambled the proceeds away. (Mike Frisch)
Self Dealing Draws Disbarment Recommendation
An attorney who had violated Rule 1.8(a) in his self-dealing with an estate is the subject of a disbarment recommendation by the Louisiana Attorney Disciplinary Board. The board concluded that the misconduct was more severe than in prior cases where a lesser sanction had been imposed:
The amount of money at stake in this matter and severity of Respondent's misconduct is much greater than that seen in [the] Grevemberg [case], making [his] actions to secure the assets of the consolidated...estates far bolder than those of Mr. Grevemberg. A harsher sanction than that imposed in Grevenberg is warranted here. Further...the Respondent took advantage of his elderly, ninety year old client when borrowing $600,000 from her, without following the requirements of Rule 1.8(a). To make matters worse, his corporation...used these funds to purchase what would ultimately be determined (albiet via settlement) [the client's] own interest in the consolidated Fuller estate.
The hearing committee had proposed a lesser sanction. (Mike Frisch)