February 16, 2009
Choice Of Counsel
The Oklahoma Court of Criminal Appeals affirmed the first degree murder conviction of a mother for the death of her six-year old child. The trial court had disqualified retained counsel based on a claimed conflict of interest based on his relationship with the client:
The record reflects that on May 11, 2006, the State moved to disqualify David Christian from representing Appellant on the basis of an inappropriate physical relationship between Mr. Christian and Appellant; the existence of a conflict of interest between Mr. Christian and Appellant resulting from the physical relationship as well as statements made by Appellant to an undercover officer; an improper fee arrangement and improper financial payment; possession of relevant evidence in the form of a book bag belonging to Logan Tucker; and the appearance of impropriety. These reasons were set forth in detail in the State’s Memorandum of Law (O.R. 147-154).
Mr. Christian filed an objection and attached two sworn affidavits, one from him and one from Appellant. In her affidavit, Appellant listed the statements attributed to her by the State and said that “none of the statements were true.” She further stated, “[a]t the time the statements were made, I was not aware that the person asking me questions was a law enforcement agent. At no time did he ever identify himself as a law enforcement agent.” (Defendant’s Exhibit A). Appellant also stated that Mr. Christian had fully explained to her that if she felt any of the things said in the State’s recording were true, that she could file a report against him with the Oklahoma Bar Association, and she could have another attorney represent her in the case. In his affidavit, Mr. Christian also refuted and denied the State’s allegations of any conflict or impropriety.
At the hearing, the parties stipulated that Mr. Christian paid the rent for Appellant’s motel from July 9 -15, 2002 (State’s Exhibit 1), and that he paid for and was listed as a co-applicant with Appellant for an apartment (State’s Exhibit 2). State’s Exhibit 2 also contained a lease agreement for Apartment No. 52, dated July 15, 2002, listing Mr. Christian and Appellant as co-tenants. Mr. Christian also stipulated that if called to testify, Jamie Hensal would testify that in the summer of 2004 she found a backpack in Mr. Christian’s garage and was told by Mr. Christian that he knew it was there, and she should put it somewhere so he could find it later if needed. The State alleged the backpack belonged to Logan Tucker [the victim] and that his name was written on it. Mr. Christian would not stipulate to having any knowledge the backpack belonged to Logan.
The State then called Investigator Rick Stephens to the stand. Stephens testified that in his capacity as an undercover officer, he moved into an apartment on July 20, 2002, directly across from Appellant’s apartment in the Briarwood Complex in Woodward. Stephens met Appellant the next weekend and over the next six weeks, the two had numerous conversations. Stephens tape-recorded these conversations. During these tape recorded conversations, Appellant told Stephens that a movie was going to be made on Logan’s story and that Mr. Christian would be paid from the proceeds of the movie. Appellant also told Stephens that prior to the time they met, she had “made out” with Christian in a motel room. She said Christian told her he “wanted to have sex with her but he wouldn’t because of her status.” She said that at the time the police were executing a search warrant on her home, she and Christian were drinking at the City Limits bar. Appellant told Stephens she felt that Mr. Christian did not trust her and that he was tape recording her statements. She explained that she didn’t know who to trust, that she couldn’t even trust her attorney. Stephens testified that he turned the tape recordings over to the District Attorney. Stephens also testified that Appellant did not know he was with law enforcement and he never took her drinking or gave her alcohol. The tape recordings were admitted as State’s Exhibits 4 and 5.
The court found that the trial judge had properly ordered disqualification based on the above evidence. (Mike Frisch)
Don't Ignore A Court Order
An Arizona hearing officer has recommended a 30 day suspension with one year probation of an attorney who has practice for over 30 years without prior discipline. He had been an assistant district attorney and had little federal criminal experience. After a guilty verdict had been returned in his first federal criminal trial, he agreed to note an appeal for his client. When he electronically filed the notice of appeal, he was advised that there was a $450 filing fee. He was not aware until then of the fee. The client owed him money and the lawyer was unwilling to advance the costs. The court pressed him for payment and he did not respond. An order to show cause also did not rouse a response; the court imposed a $1,000 sanction. Eventually, new counsel was appointed to pursue the appeal.
The officer found incompetence and failure to respond to the orders of the Ninth Circuit. The officer was concerned that, if the attorney did not wish to handle the appeal, he could not figure out the apparently simple process of transitioning the appeal to the federal public defender. The proposed sanction would also require that he pay the sanction imposed by the federal circuit court. (Mike Frisch)
Notice To D.C. Bar Members
From the web page of the District of Columbia under the header "Important Notice to the Membership about Avvo":
D.C. Bar members have inquired about the nature of the D.C. Bar’s relationship with Seattle-based Avvo, Inc., an Internet-based for-profit attorney marketing service. The Bar has not entered into any agreement with Avvo; instead, Avvo has obtained Bar member information directly from the Bar’s Web site, in violation of our restrictions on use, and used that information for its own commercial purposes (including e-mail solicitations to Bar members). The Bar has been advised that Avvo has refused requests from individual members who wished to be removed from Avvo’s Web site.
Information about Bar members is available to the general public for noncommercial purposes on the Bar’s “Find a Member”Web p age, www.dcbar.org/find_a_member/index.cfm.That information is limited to member names, business addresses, business telephone numbers, dates of admission to the Bar, membership status, and disciplinary history. In addition, member fax numbers and e-mail addresses may be listed if the individual member has provided that information to the Bar without restriction on its use, and members may opt-out of providing such information at any time. Members’ time-sensitive information on the Bar’s Web site is updated regularly.
The Bar has asked Avvo to remove all improperly acquired D.C. Bar member information from its Web site, cease all attempts to acquire such information from the Bar’s Web site, and cease using improperly acquired information for any commercial purpose.
The D.C. Bar takes no position on the voluntary participation of individual members with Avvo or similar services. The Bar does not endorse or warrant the accuracy of any information about Bar members on Avvo’s or any other third-party Web site.
The company is spelled with two "v"s rather than a "w." (Mike Frisch)
Third Time Is No Charm
An attorney admitted in 1987 in Louisiana was convicted of making knowing false official statements and using controlled substances. At the time, he was an attorney on active duty with the Navy Reserve. The Louisiana Supreme Court suspended him for two years as a result. the court then found that he had engaged in unauthorized practice after the suspension. He was suspended for two years, with all but a year and a day deferred.
The court found that he had continued to engage in unauthorized practice and had split fees with a non-lawyer after the second order of discipline. The court apparently has run out of patience--the lawyer is now permanently disbarred. (Mike Frisch)
Resignation Merits Reciprocal Discipline
An interesting issue of reciprocal was addressed recently by the full Massachusetts Supreme Judicial Court. The attorney had first been admitted in Connecticut. While serious bar charges were pending in Connecticut, the attorney returned to South Africa and did not contest the allegations. An order of disbarment was entered. He then sought (and was able) to vacate the disbarment and resign from the Connecticut Bar.
Massachusetts concluded that the "voluntary" resignation was no different from disbarment for reciprocal discipline purposes under the circumstances:
Because the respondent voluntarily elected to resign in Connecticut without pursuing his right to challenge the validity of the disciplinary charges against him, he is not entitled to an opportunity to litigate those Connecticut misconduct charges in the Commonwealth as a condition precedent to our imposing reciprocal discipline. See In re Richardson, 692 A.2d at 434 ("We agree with Bar Counsel ... that Richardson's loss of an evidentiary hearing in Florida was his own choice; by electing to resign, he waived his right to a hearing where he could have contested the charges. We also agree that, as a consequence of Richardson's Florida waiver, we are entitled to rely--for purposes of final, reciprocal discipline--on the disciplinary result in Florida, properly certified to this court, without affording Richardson the evidentiary hearing on the Florida charges he elected to forego earlier"). See also Anusavice v. Board of Registration in Dentistry, 451 Mass. at 795-796 ("Where, as here, charges of serious professional misconduct have been brought before the licensing board of a foreign jurisdiction, and the professional is afforded the full opportunity to challenge the truth of those allegations but has chosen to waive that opportunity, and to resolve the complaints by agreeing to discipline, we see no need for the Massachusetts board to take on the burden of conducting an out-of-State investigation, and attempting to prove those allegations in order to impose reciprocal discipline"). [FN4]
Important policy reasons support the conclusion that the respondent's voluntary resignation in Connecticut unaccompanied by an admission or finding of misconduct warrants the imposition of reciprocal discipline in Massachusetts without the need to litigate the validity of the Connecticut charges. If an attorney like the respondent may permanently resign in another State in the face of serious allegations of misconduct--here involving multiple clients--but do so without admission of misconduct, and then practice in Massachusetts without restriction unless bar counsel undertakes the burdensome and expensive task of investigating and proving the other State's charges, it would "tend [ ] to undermine public confidence in the effectiveness of attorney disciplinary procedures and threaten[ ] harm to the administration of justice and to innocent clients." Matter of Lebbos, 423 Mass. at 755. See Ramirez v. Board of Registration in Med., 441 Mass. 479, 482-483 (2004), quoting Marek v. Board of Podiatric Med., 16 Cal.App.4th 1089, 1098 (1993) (discussing same policy concerns in relation to physicians who enter voluntary consent agreements without admission to professional misconduct in one jurisdiction and seek to practice in another jurisdiction).
The case is Matter of Ngobani, decided on February 13. This link should take you the court's web page. Note that the court relies on a District of Columbia case (In re Day) that I handled to support its conclusion. (Mike Frisch)
February 15, 2009
Carpe Per Diem! (Seize The Expense Account!) and Come To New Orleans Mar. 7 For PILF Auction
Posted by Alan Childress
Tulane Law School's very ambitious good-deed-doers, the Public Interest Law Foundation, has the announcement below (and those over 30 will appreciate the flip-flop notice). I recommend a weekend trip to New Orleans for: (1) our best weather of the year, (2) the omnipresent music gearing up for Jazzfest (its April/May schedule discussed and linked at Minor Wisdom blog), (3) affordable fine restaurants (many of which donated full course meals as silent auction items), and (4) interesting art and museums (even some art on sale at the auction, plus view an authentic Katrina-themed Blue Dog on display in our lobby). The live auction component is entertaining, as emceed by our own profs Jancy Hoeffel and Gabe Feldman. What about it, Jeff, are you and Alene free that weekend for a return trip? And bring Arielle and Simon down too? Here is the notice:
The Tulane Public Interest Law Foundation is proud to announce its annual PILF Auction
Saturday, March 7, 2009, Weinmann Hall
Silent Auction: 6:45 pm – 8:00 pm; Live Auction: 8:00 pm – 10:00 pm
The theme for this year’s event is a classic Black and White Gala, so come out in your best black and white attire and get ready to do some bidding! Open to Tulane Law School students, faculty and staff... Cocktail attire recommended (no jeans or flip-flips, please). As always, all the proceeds from the 2009 PILF Auction will go towards PILF’s prestigious summer grant program, which provides law students with a chance to take public interest jobs during the summer.
Although their notice states that the event is open to those in the Tulane community, the co-chair Ashley Luick tells me they will be happy to include attorneys and guests who are visiting Nola or otherwise interested in attending, though she requests that for counting reasons they contact her at this email address if interested. She can also discuss directions, auction procedures, and available items.