June 9, 2009
Multiple DUIs Violate Rules
The Wisconsin Supreme Court has held that multiple driving while intoxicated offenses violate the rules governing lawyer behavior. The court also affirmed findings of misconduct relating to the failure to supervise a non-lawyer employee.
The court noted that the offenses had taken place in the period of 2003 to 2005 and that the lawyer has since turned his life around in a positive way. Because of this factor, the court imposed the fourth public reprimand of the attorney:
Attorney Brandt was a victim and lost a large sum of money due to Larson's embezzlement. He has accepted responsibility for his failure to supervise his employee. He entered pleas to the drunk driving charges and served a significant jail sentence. He incurred substantial fines. He lost his driver's license and for a period of time was unable to obtain an occupational license. He undertook remedial action in early 2005 to address his drinking problem and sought treatment. He has informed the court that he has maintained complete sobriety since that time.
A significant amount of time has passed since the occurrence of the events that gave rise to this disciplinary proceeding. The misconduct at issue in this case occurred between 2003 and 2005. Since that time Attorney Brandt has taken positive steps to turn his life around and atone for his bad behavior. Attorney Brandt's multiple OWI convictions are a serious failing. In addition, he has been reprimanded on three prior occasions. The question of whether to impose a fourth reprimand or a suspension is a very close call. Based on the circumstances of this case, we conclude that a public reprimand, coupled with the conditions recommended by the referee, is an appropriate sanction for the two counts of misconduct alleged in the OLR's complaint.
June 8, 2009
A summary from the IARDC web page of a case decided by the Illinois Review Board:
The Administrator charged Norton with misconduct in connection with her representation of a defendant in a first degree murder case. The Administrator alleged that Norton communicated with another defendant in the case who was represented by a lawyer without obtaining the other lawyer’s consent; suppressed evidence that she had a legal obligation to reveal or produce; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; withdrew from employment without delivering all papers and property to which her client was entitled; engaged in conduct that is prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. Norton admitted some of the allegations, denied others, and denied all allegations of misconduct.
The Hearing Board found that the Administrator proved that Norton spoke with and took a sworn statement from another defendant in the murder case without obtaining his lawyer’s consent; failed to turn over the sworn statement to her client after Norton’s representation of him ended; acted dishonestly when she told her client that she had no evidence in the case that he could not get from the State’s Attorney; and engaged in conduct that tended to bring the legal profession into disrepute.
The Hearing Board found that the Administrator did not prove that Norton acted dishonestly by writing on the jail visitor’s record that she was visiting her client when she actually was visiting another defendant for the purpose of taking his statement; suppressed evidence from opposing counsel or the court; and engaged in conduct that prejudiced the administration of justice. The Hearing Board recommended that Norton’s license be suspended for forty-five days.
On review, the Administrator argued that he proved that Norton acted dishonestly by writing the wrong name on the jail visitor’s record and that her conduct prejudiced the administration of justice. The Administrator further asserted that Norton’s license should be suspended for six months.
The Review Board reversed the challenged findings of no misconduct. It determined that the Administrator proved that Norton acted dishonestly when she wrote the wrong name on the jail visitor’s record and that her conduct prejudiced the administration of justice. The Review Board affirmed the Hearing Board’s remaining findings of fact and misconduct. It concluded that a ninety-day suspension was warranted.
The Review Board found the Hearing Board's proposed sanction to be unduly harsh:
We conclude that a six-month suspension would be punitive and is not warranted under the circumstances of this case. This is especially true in light of the Respondent’s substantial mitigating evidence. Numerous character witnesses, including attorneys who were involved in the Mixon case as well as a circuit court judge, testified that the Respondent has an excellent reputation for honesty and integrity. In addition, she performs a significant amount of pro bono work each year and is active in her community.
The Respondent also recognized that it was wrong for her to talk to Bell without his attorney’s consent, and she testified that she was sorry if her conduct prejudiced the administration of justice or brought the legal profession into disrepute. The Respondent has no prior discipline in over fifteen years of practice. The evidence presented to the Hearing Board suggests that the Respondent’s misconduct resulted from an isolated error in judgment in an otherwise capable legal career. Accordingly, after considering all of the relevant circumstances and case law, we recommend that the Respondent’s license to practice law be suspended for ninety (90) days.
The Review Board's recommendation is linked here. (Mike Frisch)
Bar Alleges Lawyer Misled Client For 27 Years
In a case involving allegations that a lawyer had misled his client about the status of his appeal, the Illinois ARDC has filed charges alleging that the misrepresentations to the client took place over a 27 year period:
Between November 8, 1982 and May 20, 2009, the date the Inquiry Board voted that a complaint be filed in this matter, Respondent advised Konicki [the client] at least on a yearly basis that the lawsuit involving his dispute with OBRC was still pending in the circuit court. Respondent also told Konicki that they had prevailed in the circuit court, OBRC had appealed and the matter was pending in the Appellate Court and ultimately, the Illinois Supreme Court. Respondent's statements to Konicki were false and Respondent knew they were false because he knew that he had done nothing to reinstate Konicki's case and that Konicki's matter was not pending in any court.
In September 1998, Respondent prepared what purported to be an agreed court order dated March 2, 1998 in case number 76 L 1111, in which the court found in favor of Konicki and stated that the non-compete clause in the consultation agreement was void as against public policy. The order was false and Respondent knew it was false because he knew that he had not done anything to reinstate Konicki's case after the appellate court opinion. Respondent sent the purported agreed order to Konicki in order to lead Konicki to believe that the arbitrator's decision had been vacated.
At no time did Respondent advise Konicki that he had not done anything to reinstate Konicki's case after the appellate court opinion [in 1982].
The opposing party was a racquet club. The lawyer's client was a part owner who had entered into a consulting agreement with the club.
If these charges are proven, the client should be recognized as the most patient and trusting individual to ever hire an attorney. (Mike Frisch)
The United States Supreme Court has held (by a 5-4 vote) that disqualification was required in the case involving the West Virginia Supreme Court of Appeals. The case involves the election of a justice to the court who thereafter refused to recuse himself from a matter involving the main contributor to his campaign. We will post some thoughts after reviewing the court's decision in Caperton v. Massey. (Mike Frisch)
Conviction Overturned With Instructions To Acquit
Not a legal profession case, but of possible interest is a recent decision of the West Virginia Supreme Court Court of Appeals overturning a murder conviction in a case self-defense in the face of horrific domestic abuse. The court sent the case back to the trial court with instuctions to enter a judgment of acquittal. The court found such a disposition appropriate notwithstanding the jury's verdict:
Reviewing the record, there is just no evidence, only conjecture, that the defendant's “night of terror” had ended or that the defendant and the children in her care were safe from death or serious bodily injury. As we have found in Section III.2., of this Opinion, the defendant did not have a duty to retreat from her home before using deadly force against her attacker. Our law entitled the defendant under the circumstances of this case to her subjective belief that she was in imminent danger of death or serious bodily injury and to abate that threat, without retreating, with the use of deadly force. Under the circumstances shown by the evidence in this case, the defendant's use of deadly force to protect herself, without retreating, is subjectively reasonable.
Additionally, the overwhelming evidence demonstrates that any reasonable person similarly situated would have believed that death or serious bodily injury were imminent. Uncontested evidence from multiple witnesses and sources (e.g., the photographs depicting the defendant's numerous injuries and that the decedent was naked from the waist down), as discussed supra, established that the decedent's death precipitously followed the decedent's having physically and sexually assaulted the defendant, as well as having threatened _ on numerous occasions _ the life of the defendant and the lives of the children. Uncontested evidence also established that the decedent was drinking heavily and had a blood alcohol level of 0.22% _ nearly three times that where a person would be presumed intoxicated in West Virginia. In this intoxicated state of mind, the uncontested evidence is that the decedent's behavior immediately preceding his death was violent, unpredictable, criminal and placed the defendant at risk of death or serious bodily injury. Under such circumstances the defendant's use of deadly force to protect herself, without retreating, is objectively reasonable. The State's evidence failed to prove otherwise. Supposition and conjecture are not evidence.
In State v. Cook, Justice Davis, writing for the Court, properly noted that while we must be “[m]indful of the jury's province over the evidence presented on the issue of [self-defense], this Court will not permit an injustice to occur because a jury failed to adequately understand the evidence presented at trial.” We agree with that principle, and conclude that “[t]his is such a case.” State v. Cook, 204 W.Va. at 602, 515 S.E.2d at 138. Accordingly, we hold that the State failed to prove beyond a reasonable doubt that the defendant's actions were not made in self-defense and, therefore, the defendant's conviction and sentence must be vacated and this matter remanded for immediate entry of a judgment of acquittal.
Stalking Conviction Draws Reciprocal Indefinite Suspension
An attorney had been suspended for three months in New Jersey as a result of a conviction for fourth degree stalking. The Maryland Court of Appeals concluded that an indefinite suspension was the appropriate reciprocal discipline for the conduct, even if the attorney is able to obtain reinstatement in New Jersey. The court determined that more severe discipline would be imposed in an original matter involving the same conduct and that indefinite suspension would better protect the public. The court opined that reinstatement may be possible if the attorney responds to treatment for his mental health issues.
The victim had been a horse trainer who the attorney had stalked at a New Jersey racetrack and followed to her South Carolina home. He had a previous stalking incident involving his next door neighbor. (Mike Frisch)
The Georgia Supreme Court accepted a special master's recommendation and dismissed charges of conflict of interest. The accused attorney represented retirees in an administrative ERISA proceeding. An associate joined the lawyer's firm who had previosl;y represented the opposing party and had provided legal advice relating to the ERISA proceeding. Following lenghty discovery (which is not available in many state bar disciplinary proceedings), the special master ruled on cross-motions for summary judgment and dismissed the charges. There was insufficient evidence that the attorney had "knowingly represented clients with claims adverse to the former clients of a member of her firm." (Mike Frisch)