November 7, 2009
A Fun Read
Jayanth Krishnan at Indiana (Bloomington) is expanding his ouevre of comparative legal profession studies with his latest on SSRN, The Joint Law Venture: A Pilot Study (here). As with his other work, this one's an interesting (and, yes, fun) read. Congrats, Jay!
(Posted by Nancy Rapoport)
Judge Suspended For Practicing Law
The Arkansas Supreme Court declined to adopt a proposed removal of a circuit court judge by its Judicial Discipline and Disabilities Commission and suspended the judge through the end of his term of office in December 2010. The judge was found to have engaged in the practice of law after taking the bench in his dual role of counsel and administrator of an estate. He continued to receive rental payments from estate property and had not filed probate accounts. He also did not withdraw as counsel for the estate.
A dissent would find that the conduct was imprudent and would impose a 90 day suspension. (Mike Frisch)
Operation Wrinkled Robe
The Louisiana Supreme Court has ordered the removal of an elected judge of a district court for willful misconduct in office. The judge had inherited a accident case involving a reserve deputy sheriff as plaintiff. The disputed issue was whether the accident had caused a cracked tooth that led to a root canal. The judge was being mentored by a more senior judge who was a friend of the litigant.
The judicial violations involved the judge's awarding damages for reasons other than the merits. The misconduct came to light as part of taping conducted by the FBI in connection with Operation Wrinkled Robe. The plaintiff (who later admitted that his dental injury case was not all it was cracked up to be) and more senior judge pleaded guilty to criminal charges; no criminal case was brought against the removed judge.
The judge's testimony was found to be incredible on several key points. The court also reserved the possibility of further action against the judge's license to practice law.
A report from yesterday's on line edition of WWLTV.com is linked here. (Mike Frisch)
November 6, 2009
Bumpy Road To Recovery
A Louisiana hearing committee has recommended the readmission of a disbarred lawyer. The lawyer was conditionally admitted to practice in 2003 as a result of DUI charges. The conditions required compliance with a recovery contract supervised by the bar's Lawyer's Assistance Program for two years. He tested positive for cocaine us, which led to the revocation of his conditional admission. He then agreed to a five-year recovery contract.
The committee found that he has taken appropriate rehabilitative treatment and has attended AA meetings. A 2006 random drug test that revealed an "indication of alcohol ingestion" was deemed to be of questionable validity. The applicant had denied alcohol use and the committee found no clear and convincing evidence to refute that denial. (Mike Frisch)
Pardon Precludes Sex Offender Registration
The Delaware Supreme Court has held that the Governor's unconditional pardon of a convicted sex offender operates to prevent the State from requiring the pardoned individual from registering as an offender. The court held, in a case of first impression, that the pardon restores all civil rights and negates the conviction for registration purposes.
I have some experience with the collateral disciplinary consequences of a Presidential pardon. The D.C. Court of Appeals concluded (5-4 with cert. denied) that the pardon did not preclude the imposition of bar discipline based on the underlying facts. (Mike Frisch)
Disorganized Client, Admonished Attorney
Not sure whether or not we previously posted this admonition from Vermont, but it does serve as a cautionary tale for taking on a matter outside of the attorneys area of competence. The facts:
Respondent represented a large corporation, which was sued for an employee's alleged misdeeds that occurred decades prior to the litigation. The discovery plaintiff's counsel requested required examination and analysis of documentation that was stored in different locations and not well organized. Respondent's client did not have an effective file management system, and while much of the requested discovery material was provided to plaintiff, it was not always completely responsive to plaintiff's requests.
Respondent has substantial experience in the practice of law, but limited experience in complex litigation. He was not well enough organized to manage large and complex litigation. He essentially worked as a sole practitioner, with a part-time associate and a secretary. He often relied on his client to locate and produce the requested documentation, with no effective way to ensure that production was complete. In fact, the discovery produced was not always complete and plaintiff's counsel expended additional time and resources to determine what was missing from the production.
As the litigation progressed, plaintiff's counsel learned of documents that had not been produced in the pending case, but had been previously provided voluntarily to a state agency during a related investigation. These documents were clearly relevant to the litigation and should have been produced in discovery.
Respondent's failure to locate and produce in a timely manner all of the required documents was not for the purpose of delaying the litigation or obstructing access, but for a time did have that effect. Ultimately, discovery was completed with around 4000 pages of documents disclosed. Many of these documents were already available to plaintiff through discovery in other cases. The underlying case was settled in a manner favorable to the plaintiff. While the discovery dispute delayed plaintiff's positive outcome, it did not otherwise injure plaintiff.
Respondent has no prior disciplinary record, cooperated with disciplinary counsel, and had no selfish or dishonest motive in failing to promptly and fully comply with the discovery requests. The discovery difficulties were the result of disorganization on the part of both respondent and his client, as well as respondent's lack of experience in complex litigation and his failure to promptly secure from the client funding for more assistance.
Admonition (which in Vermont does not identify the attorney by name) was deemed appropriate:
Respondent's conduct did not result in actual substantial harm to his client, the public, the legal system, or the profession. Plaintiff in the underlying litigation ultimately received all the requested discovery documentation and achieved a favorable settlement of his claim. The parties have stipulated that respondent now recognizes that his responses to the discovery requests were inadequate, and "there is little likelihood of repetition by the lawyer." Respondent's violations were not intentional; his omissions resulted from disorganization, over-reliance on his client, and his lack of experience in complex litigation—but not from an intent to conceal these documents. Further mitigating respondent's actions, he has no prior disciplinary record and fully cooperated in the disciplinary proceedings. See id. § 9.32(a), (e). Under these circumstances, we conclude that the misconduct was minor and that admonition is the appropriate sanction.
New From South Carolina
The South Carolina Supreme Court has denied relief to Governor Mark Sanford and the Speaker of the South Carolina House of Representatives in an appeal over the confidentiality of an ethics probe. The court describes the procedural posture:
On September 30, 2009, Governor Sanford petitioned this Court for a writ of mandamus directing the [State Ethics] Commission to comply with the statute and regulations regarding confidentiality of Commission proceedings. More specifically, the Governor requested that the Commission not be permitted to publicly disseminate any investigatory reports or other information about this investigation. The Commission filed a return in opposition to the Governor’s petition for a writ of mandamus.
Robert W. Harrell, Jr., Speaker of the South Carolina House of Representatives, then filed a motion to intervene in the Governor’s action. We granted that motion, and the Speaker filed a return in opposition to the Governor’s petition. In addition, Speaker Harrell filed his own petition for a writ of mandamus in the Court’s original jurisdiction. The Speaker asked the Court to direct the Commission to issue “its investigation materials and information to the House of Representatives” because the House is “the sole prosecuting authority for purposes of impeachment.” The Commission filed a return in opposition to the Speaker’s petition. The Governor sought to intervene in the Speaker’s action; we granted that request.
Because of the exigencies related to the case, we agreed to entertain this matter in the Court’s original jurisdiction, on an expedited basis, and heard oral arguments of the parties on October 19, 2009. On October 21, 2009, we issued an order requesting additional materials and briefs from the parties on the issue of waiver. With that briefing now complete, the matter is ripe for our decision.
The court holds that the Governor has available legal avenues to assert his contentions and that injunctive relief is not appropriate. (Mike Frisch)
Louis Menand on the Marketplace of Ideas
Posted by Jeff Lipshaw
I've just pre-ordered a copy of Louis Menand's new book The Marketplace of Ideas, part of the "Issues of our Time" series edited by Henry Louis Gates, Jr., based on the taste I got from the excerpt in the November-December 2009 issue of Harvard Magazine (the alumni journal - I am not an alum, but I am married to one, and it keeps me humble - she left the article lying on my desk ). Menand is the Bass professor of English at Harvard, and the author of the thoroughly engaging intellectual history The Metaphysical Club, about the Boston "reading group" consisting of Charles Sanders Peirce, Oliver Wendell Holmes, Jr., William James, etc. The excerpt is about the "Ph.D." problem in the humanities, and does this sound familiar on the subject of legal academics, primarily motivated by their scholarship, teaching professionals-to-be who could care less about those arcanities?
Doctoral education is the horse that the university is riding to the mall. People are taught—more accurately, people are socialized, since the process selects for other attributes in addition to scholarly ability—to become expert in a field of specialized study; and then, at the end of a long, expensive, and highly single-minded process of credentialization, they are asked to perform tasks for which they have had no training whatsoever: to teach their fields to non-specialists, to connect what they teach to issues that students are likely to confront in the world outside the university, to be interdisciplinary, to write for a general audience, to justify their work to people outside their discipline and outside the academy. If we want professors to be better at these things, then we ought to train them differently.
And on the subject of intellectual regeneration and foment:
The academic profession in some areas is not reproducing itself so much as cloning itself. If it were easier and cheaper to get in and out of the doctoral motel, the disciplines would have a chance to get oxygenated by people who are much less invested in their paradigms. And the gap between inside and outside academia, which is partly created by the self-sorting, increases the hostility of the non-academic world toward what goes on in university departments, especially in the humanities.
The wonderful irony here is that one of the suggestions is that getting a Ph.D. be more akin to getting a J.D., with the requirement of passage not a pre-publication dissertation, but a peer-reviewed article! Which, of course, is exactly the opposite of the direction often advocated for legal academics!
In any case, food for thought!
No Automatic Disbarment For Immigration Fraud
The New York Appellate Division for the First Judicial Department rejected the contention that a lawyer's conviction in federal court for conspiracy to commit immigration fraud should result in automatic disbarment. The court suspended the lawyer on an interim basis as a result of the conviction for a "serious crime" while disciplinary proceedings are conducted. The court held that there was no New York analogue to the federal offense:
Respondent cannot be stricken immediately from the roll pursuant to Judiciary Law § 90(4)(b) because respondent's conviction of the federal felony of conspiracy to commit immigration fraud did not automatically disbar him. Conviction of a federal felony only triggers disbarment by operation of law if the offense would constitute a felony under the New York Penal Law (Judiciary Law § 90[e]; Matter of Rosenthal, 64 AD3d 16, 18 ). The federal felony need not be a "mirror image" of a New York felony, but it must be essentially similar (Matter of Margiotta, 60 NY2d 147, 150 ).
The Committee contends that respondent was automatically disbarred because respondent's offense, if committed in New York, would constitute the felony of offering a false instrument for filing in the first degree in violation of New York Penal Law § 175.35. However, as this Court has previously held, the crime of conspiracy to commit immigration fraud has no analogue in the New York Penal Law (Matter of Markovitch, 191 AD2d 116, 117 ). The Committee cites to inapposite precedent where the respondents were convicted of the separate offense of immigration fraud in violation of 18 USC § 1546, whose elements were found to be analogous to those of offering a false instrument for filing in the first degree (see Matter of Ramirez, 7 AD3d 52, 53 ; Matter of Salberg, 276 AD2d 19, 20 ; Matter of Monte, 94 AD2d 275, 276-277 ).
The Committee also contends that the factual allegations in the respondent's indictment establish that the offense was essentially similar to the New York crime in question. Although the essential similarity of a federal and New York felony can be established from a respondent's sworn admissions during the plea allocution, in conjunction with the federal indictment or information (see Matter of Sorin, 47 AD3d 1, 3 [citing cases]), in this case respondent was convicted after a trial by jury and there was no allocution. The Committee mistakenly cites Matter of Amsterdam (26 AD3d 94 ) for the proposition that the indictment alone can establish essential similarity, but the respondent in Amsterdam both pleaded guilty and made admissions during the allocution which persuaded this Court that the federal offense in question had an analogue in New York law (Id. at 96-97; see also Matter of Kim, 209 AD2d 127, 130  [distinguishing between allegations in indictment and admissions in the allocution during a guilty plea]).
30 Days Lasts Nine Years
The Indiana Supreme Court ordered the reinstatement of an attorney who had been suspended for 30 days with a requirement that he petition for reinstatement on June 9, 2000. The court found that the petitioner had satisfied the requirements for the return of his license by clear and convincing evidence.
Justice Dickson dissented, and would find that the petitioner failed to establish two of the reinstatement prerequisites: a proper understanding of ethical standards and that he "can safely be recommended to the legal profession, the courts, and the public as a person of trust and confidence, and in general aid in the administration of justice as a member of the bar and an officer of the Courts."
One prerequisite requires the petitioner to take the MPRE and pass with a scaled score of 80.
In the District of Columbia, there is a case involving an attorney who was suspended for a year and a day in 1983 (which at the time imposed a requirement of a petition for reinstatement) and had never been able to achieve reinstatement. The story is related in this opinion of the Court of Appeals denying reinstatement in 2004. Money quote from petitioner: "The typical BPR Hearing Committee consists of two toads and a troglodyte meaning no doubt, that only a cynical toady would knowingly participate in such an obviously lawless inquisitorial process." (Mike Frisch)
November 5, 2009
Failure To Supervise
The Louisiana Attorney Disciplinary Board has recommended a fully deferred suspension of one year and one day and two years probation in a case where trust accounts thefts were committed by the sanctioned lawyer's non-lawyer employee. The attorney had "failed to enact safety measures to guard against the misappropriation of client or third party money by his staff."
The board rejected charges that the attorney's method of closing real-estate transactions violated the ban on commingling. The procedure for paying recording fees was consistent with standard practices and did not involve any mishandling of entrusted funds. (Mike Frisch)
Good Deeds Sanctioned
Another judicial misconduct matter from Florida approves a stipulated public reprimand of a county judge. The allegations involved the judge's relationship with a convicted felon with substance abuse problems. The judge allegedly used her position to procure the felon an apartment lease, loaned him money and bought him a cell phone and a truck. He had caused distrubances at her home and in her chambers. At the home incident, the judge instructed the police not to respond after calling 911. She declined to give a statement to police after he was physically removed from chambers.
The Supreme Court agreed that reprimand was appropriate:
...even in private life, a judge must accept restrictions, even on well-intentionedconduct, that are not imposed on the ordinary citizen, in order to avoid impropriety or the appearance of impropriety...[the judge] conveyed the impression that [the felon] was in a special position to influence her; and by her conduct, she appeared to use her judicial office to advance [his]private interests...
Judge Reprimanded For Ordering Arrest Of Victim
The Florida Supreme Court has imposed a public reprimand of a county judge who found probable cause existed for a former husband's domestic battery charge. The judge had:
...ordered sua sponte for the former wife, who was present in court as a victim of domestic violence, to be taken into custody. In accord with [his] order, the former wife was arrested, incarcerated overnight, and ordered to appear the next day for first appearance.
The couple were well known to the judge. The former husband was a criminal lawyer, the couple attended his church and the judge's children had babysat for the former couple's children.
The judge explained that he ordered the former wife's arrest because she had struck the first blow. He also felt that the arresting officer exhibited gender bias against the former husband. He admitted that he would not have taken action if the former wife had not been in the courtroom and "acknowledged that his actions had the potential appearance of impropriety."
Anyone find this sanction unduly lenient? (MIke Frisch)
The Minnesota Supreme Court reversed and remanded a criminal conviction for sexual involvement with two fifteen-year-old victims. The court's syllabus:
The sentencing judge's ex parte communication with the prosecutor, during which he suggested to the prosecutor what arguments to make and how to make them, reasonably calls the judge's impartiality into question and constituted plain error that affected the defendant's substantial rights.
There were two improper communications, one on the phone and the other in chambers. The in-chambers communication was recorded and transcribed. The discussion related to the defendant's possible motion to withdraw his guilty plea.
The court quotes the transcript of the discussion and compares it with the prosecutor's later argument before the judge:
Here, it is undisputed that the judge initiated an ex parte communication with the prosecutor about a pending matter. But nothing in the record suggests that the communication was for scheduling or administrative purposes, or an emergency. Rather, the record indicates that during the ex parte communication the judge told the prosecutor to be prepared to respond to the anticipated plea-withdrawal motion and suggested substantive arguments to be made to the anticipated motion. Therefore, we conclude that the ex parte communication was error.
Good thing there was a record of the chambers conference. Wonder how often such things go unrecorded. (Mike Frisch)
To Represent, Advise And Serve
The Indiana Supreme Court approved a conditional agreement for discipline in a matter involving a felony conviction (on plea of guilty) to one count of sexual battery. The parties had agreed to a suspension of at least two years beginning from the date of his October 2008 interim suspension. He also will not be eligible for reinstatement until he successfully completes his term of probation in the criminal case.
Justice Dickson dissents and would reject the conditional agreement: "...by engaging in conduct resulting in his felony conviction, [he] has demonstrated his unfitness to responsibly represent, advise, and serve future clients."
This report is from the Indiana Law Blog posted at the time of the conviction:
A New Albany attorney must report to jail today to begin serving a one-year sentence for sexual battery against a 16-year-old girl. Meanwhile, authorities have taken the first step toward suspending [his] license to practice law. * * *
On Tuesday the Indiana Supreme Court Disciplinary Commission filed a request with the state high court to suspend [his] license to practice law, pending further proceedings to determine how long he should be prohibited from practicing.
[He] has 15 days from the filing to respond before the Supreme Court acts on the suspension request, which the commission said is typically granted. * * *
Donald Lundberg, executive secretary of the disciplinary commission, said the next step is for his organization to file a formal charge of misconduct against [the attorney]. A hearing officer would be appointed to weigh arguments from both sides and recommend a final punishment to the Supreme Court.
Lundberg said he can't predict what recommendation would be made in this case but added that "if you look at cases that are sort of in this ballpark, one tends to see multiyear suspensions from practice of law."
Any suspension of more than six months "requires that the lawyer can be reinstated to practice only after they successfully petition for the reinstatement of their law license" after completing the suspension, Lundberg said.
November 4, 2009
Bar Prosecutors Rebuked
The Oklahoma Supreme Court rejected a proposed stipulation between an attorney and the Oklahoma Bar Association (the "OBA)" and imposed public reprimand and probation for one year. The court was sharply critical of the stipulation:
The stipulations here do not contain a statement of stipulated facts, but instead incorporate the allegations, and they are nothing more than Respondent's agreement to the stated allegations in the amended complaint. Many of these allegations are inconsistent with the evidence. They contain significant factual errors as well as erroneous legal conclusions. The numerous unequivocal factual and legal errors in the stipulations here degrade the credibility, and in turn the value, of the remaining stipulations. For this reason, we reject the parties tendered stipulations as establishing the facts.
In addition to the stipulations, the record here contains Respondent's testimony and a box of exhibits. As to Respondent's testimony, the OBA failed to present evidence to substantiate the allegations by soliciting supporting testimony from the Respondent, but instead it abdicated its role as complainant by shifting the burden of supporting the stipulations onto Respondent's counsel. Were it not for questioning by the PRT [the Professional Responsibility Tribunal] many of the facts which direct our decision here would not have been revealed. As to the exhibits, they are unorganized, incomplete, and labeled in such a manner that, for the most part, they are not helpful in deciphering the facts. By submitting the factually and legally incorrect allegations, failing to support the stipulations with documentary and testimonial evidence, and submitting substandard exhibits, the OBA has "unnecessarily complicated our review of this case." (citation omitted). Further complicating our review is the OBA's failure to make legal arguments in its brief to this Court which support the alleged violations. Even through there are deficiencies in the record, it contains sufficient testimonial and documentary evidence for our de novo review.
The court then engages in an extended discussion of the various charges and record evidence in concluding that the attorney engaged in ethical violations warranting public discipline (as found by the PRT) but closes with a slap in denying the OBA's request for costs:
While there is no statutory authority for assessing attorney fees against the OBA in a disciplinary proceedings, we find that the manner in which the OBA has litigated this matter warrants a denial of costs. First, the OBA took four years to litigate this matter. Some of the delay is justified; some is not. Second, the OBA asserted violations of rules which were not in effect at the time of the alleged misconduct, asserted violations of rules which are not supported by the alleged facts, asserted violations of rules for which it submitted no evidence, misstated facts which are shown to be incorrect by a simple review of this Court's records, presented an deplorable record to this Court, sent requests for information to Respondent with only a Worker's Compensation form 3 attached to show a violation of the rules to which he was required to respond, provided a brief to this Court which is without substantive argument but relies on Respondent's stipulation that his conduct violated the ORPC and RGDP, and abandoned its responsibility to present clear and convincing evidence to Respondent's attorney. Third, we do not find the OBA has proven a majority of the charges by clear and convincing evidence. For these reasons, the OBA should not be rewarded with reimbursement of its costs.
Also of interest is the court's conclusion that an attorney cannot violate the duty to provide competent representation in a pro se matter:
The OBA contends that Respondent has violated Rule 1.1 the ORPC. Rule 1.1 of the 2001 ORPC deals with a lawyer's duty to the client. It provides: "A lawyer shall provide competent representation to a client." Throughout the ORPC, the term client is treated as a person separate from the lawyer. For example Rule 1.2 requires that a lawyer abide by the client's decisions and refrain from counseling a client to engage, or assist a client in criminal conduct, and Rule 1.4 requires a lawyer to keep a client reasonably informed. It is inane to construe the term "client" to include oneself. While as the adage goes "a lawyer representing himself has a fool for a client," we do not agree that Rule 1.1 imposes a duty to provide competent representation to oneself when acting as a pro se litigant.
It is rare to see such pointed criticism of bar prosecutors. (Mike Frisch)
No Radical Departure
A Grievance Commission Panel of the Maine Board of Overseers of the Bar imposed a public reprimand for representation adverse to a former client. The lawyer [for clarity "Lawyer") "has extended family in the community in which he practices" (which happens to be the home town of former D.C. Bar Counsel Len Becker). He had represented his cousin's wife in a rear-end collision case where her injuries were an element of damages. Her deposition was taken and the case settled on the eve of jury selection. She raised with Lawyer the possibility of him handling her divorce. Lawyer declined to accept representation adverse to his cousin.
As such things happen, the cousin asked Lawyer to represent him when the wife filed for divorce. Lawyer accepted and entered an appearence. The wife sought counsel from an attorney she had consulted jointly with the husband. She agreed to waive any conflicts claims as to Lawyer if the husband would waive conflicts as well. Lawyer refused to waive and continued to represent his cousin as "he perceived no conflict on his part..." He "vigorously opposed his own disqualification" but was nonetheless removed as counsel.
The panel here concluded that the two matters were substantially related. Lawyer received confidential information concerning the wife's health, work history and earnings potential. The panel also rejected Lawyer's contention that his disqualification was a "radical departure from the prior law..." (Mike Frisch
Over 200 Suspended For Failure To Register In Ohio
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio has suspended the Ohio law license of 233 attorneys who failed to register with the Supreme Court for the biennium that began Sept. 1, 2009, and ends Aug. 31, 2011. The suspended attorneys were notified in July and again in October of the registration deadline.
A suspended attorney is barred from practicing law until satisfying the registration requirements and paying all registration fees and a $300 reinstatement fee. Any attorney who continues to practice law while under suspension may be referred for investigation of the unauthorized practice of law.
The vast majority of practicing attorneys in Ohio, more than 99 percent, met their registration requirements for this biennium. The number of attorneys suspended for not meeting the requirements is less than last biennium when 345 attorneys failed to meet the registration deadline and had their law licenses suspended. Currently there are 57,311 registered attorneys in Ohio, of which 41,808 are active, 12,646 are inactive, 267 are corporate, and another 2,590 are retired. Only attorneys who have active or corporate status are required to register for the biennium.
Attorneys engaged in the practice of law in Ohio are required by Rule VI of the Rules for the Government of the Bar of Ohio to register with the Supreme Court biennially and pay a $350 registration fee. In July, the Supreme Court’s Office of Attorney Services sent all attorneys who were currently registered with the state for active or corporate status a certificate of registration for the upcoming biennium and directed them to register for the next biennium by Sept. 1, 2009.
The Supreme Court sent letters in October to those attorneys who failed to meet the Sept. 1 registration deadline alerting them of their non-compliance. The attorneys suspended by the Court today did not file evidence of compliance with Rule VI or come into compliance with this rule (by paying the original $350 fee plus a $50 late fee) on or before Nov. 2.
The revenue raised from attorney registration fees is the primary source of funding for the administration of the bar in Ohio. Nearly three-fourths of the revenue generated by the biennial registration fee is used to support the disciplinary system that investigates complaints against judges and attorneys. The disciplinary system includes the Board of Commissioners on Grievances & Discipline, the Board on the Unauthorized Practice of Law, the Office of Disciplinary Counsel and local grievance committees.
Revenue from the fee also supports the Clients’ Security Fund, the Ohio Lawyers Assistance Program and the Ohio Legal Assistance Foundation. The Clients’ Security Fund reimburses law clients who have sustained financial losses as a result of the dishonest conduct of licensed Ohio attorneys. The Ohio Lawyers Assistance Program provides assistance to Ohio attorneys with alcoholism, substance abuse, addictive behavior and psychological problems. The Ohio Legal Assistance Foundation administers various funds for Ohio’s legal aid societies, which in turn provide civil legal services to meet the needs of Ohio’s poor.
November 3, 2009
Complaint Against Prosecutor Revived
The Michigan Attorney Discipline Board recently vacated a hearing panel's dismissal of a formal complaint filed against the Oakland County Prosecutor for statements to the media in connection with charges of criminal sexual conduct against a defendant. The board opined that summary disposition of the bar complaint was not appropriate. The record did not establish that the comments at issue did not have a substantial likelihood of material prejudice to the trial of the matter. Rule 3.6 is designed to prevent harm and the subjective good faith of the commenting lawyer "affords no defense" to the bar complaint.
One statement at issue refered to inadmissible evidence. Another press release (issued the day a retrial had been ordered) referred to the defendant's refusal to take a polygraph examination. The fact that no date was set for retrial when the press release was issued does not render the Rule inapplicable.
Although a reasonable lawyer in respondent's shoes at the time he made his statements would have been faced with contingencies and uncertainty as to future events (such as whether a new trial might occur), we cannot conclude that it is impossible for the Administrator to develop a record establishing a violation of MRCP 3.6.
The complaint was remanded for a hearing. (Mike Frisch)
The Cost Of Regulation
From the web page of the Ohio Supreme Court:
In Fiscal Year 2009, more than $7 million was dedicated to the attorney discipline process, to reimburse clients of dishonest attorneys, to assist organizations who provide legal services for the poor and to aid lawyers that are suffering from alcoholism, substance abuse or mental illness, according to a report released today.
The annual report of the Supreme Court of Ohio’s Attorney Services Fund includes a review of the fund’s balance, audit information and investment policy and projected allocations for FY 2010.
The Supreme Court regulates all aspects of the practice of law in Ohio, including attorney discipline. In order to maintain an independent and self-funded regulatory system, the Supreme Court assesses and collects various fees and penalties, which support the fund.
In FY 2009, the fund expended $7,088,220. Of those expenditures, 68.73 percent or $4.9 million was dedicated for disciplinary-related expenses. Of this amount, $2.4 million accounted for the operations of the Office of Disciplinary Counsel. A total of $780,514 funded the operations of the Board of Commissioners on Grievances & Discipline and $1.6 million reimbursed local bar association certified grievance committees for disciplinary-related activities.
Additional expenditures from the fund supported:
- The administration of the Attorney Services Division, which oversees the delivery of services to Ohio attorneys and assists the Supreme Court in the exercise of its constitutional duty to regulate the practice of law.
- The Supreme Court Reporter of Decisions to publish attorney discipline legal notices in newspapers.
- The Clients’ Security Fund to compensate clients of unscrupulous attorneys. (The CSF annual report will be available later this month on the Court's main reports and publications Web page.)
The fund also supports grants to two nonprofit organizations that assist the Supreme Court in providing oversight of the Ohio bench and bar and in the administration of justice: the Ohio Legal Assistance Foundation and the Ohio Lawyers Assistance Program.