May 22, 2010
Blogging PD Suspended
The Illinois Supreme Court accepted the proposed sanction of its Review Board and imposed a 60 day suspension against an attorney who had blogged about her cases. Legal Blog Watch had reported the allegations:
A former Illinois assistant public defender faces disciplinary charges over postings to her blog that Illinois authorities say exposed client confidences and revealed her complicity in a client's fraud on a court. The attorney denies the charges and says she plans to hire legal counsel to help her fight them.
The focus of the disciplinary complaint is Kristine Ann Peshek and her former blog, "The Bardd Before the Bar -- Irreverant Adventures in Life, Law, and Indigent Defense." Among other things, the blog chronicled her work as an assistant public defender in Winnebago County. She discontinued the blog when her supervisor became aware of it in April 2008 and fired her.
The Review Board had approved a stipulated disposition:
Respondent's conduct in referring to a judge as "clueless" and referring to another judge as "a total asshole," is similar to the respondent's misconduct in In re Barringer, M.R. 17621, 00 SH 80 (September 21, 2001). In that case, the respondent filed a motion to substitute a judge in a client's dissolution of marriage matter. The motion contained false statements about the judge's financial obligations and credit limits. The motion also contained false allegations that the judge had conducted an ex parte interview with Barringer's client's son. Barringer was censured. While Respondent's conduct was similar to the respondents' conduct in Koziol and Barringer, Respondent also revealed client confidences in her blogs. Therefore, a 60-day suspension is more appropriate than the censures imposed in Koziol and Barringer.
Given Respondent's actions in revealing her client's confidences on the Internet, and her actions in advising her client not to correct her misstatement to the court, a 60-day suspension will serve the purposes of the disciplinary system and is within the range of this Court's precedent in cases involving comparable misconduct.
We reported the charges filed by the Administrator here. (Mike Frisch)
May 21, 2010
The Missouri Supreme Court discharged a finding of criminal contempt against an attorney for "strong words he used in petitioning the court of appeals for a writ to quash a subpoena issued for a grand jury..." The attorney accused the prosecuting attorney and judge overseeing the grand jury of a conspiracy to "threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so."
The attorney was found guilty of criminal contempt by a jury and was sentenced to 120 days in jail. The court here held that the essential elements of contempt initiated by a judge against an attorney include a false statement, made either knowing of the falsity or in reckless disregard of truth or falsity and an actual or imminent impediment or threat to the administration of justice. (Mike Frisch)
Between Chattel And Children
The Vermont Supreme Court held today that a bereaved dog owner can only recover the replacement cost of their murdered pet:
This case asks the Court to decide the proper measure of damages for the loss of a family dog. Plaintiffs Sarah and Denis Scheele appeal from a judgment denying them recovery for emotional damages for the intentional killing of their pet dog, Shadow. Though plaintiffs recovered $155 in economic damages for the destruction of their property, the issue is whether they are entitled to damages for emotional distress or loss of companionship as a result of Shadow’s death. They claim that the real worth of a pet is not merely financial and cannot be measured solely by the replacement value. Thus, they argue, their emotional suffering—the result of defendant’s malicious and intentional acts—warrants noneconomic damages. The Washington Superior Court barred such recovery, holding that Vermont does not recognize noneconomic damages for the malicious destruction of personal property, even when the property is a beloved pet. We affirm.
The court recited the stipulated facts:
In July 2003, plaintiffs were visiting from their home in Maryland when they stopped in the parking lot of a church in Northfield, Vermont. While in the lot, their unleashed dog, Shadow, wandered onto an adjacent property. The owner of that property, defendant Lewis Dustin, was sitting on his porch with a pellet gun planning to shoot at squirrels. When Shadow came into his yard, defendant aimed his pellet gun at Shadow and shot, killing Shadow. Shadow had not exhibited any aggressive behavior towards defendant, nor posed any threat to him, nor was defendant in any physical danger at the time he fired his gun at Shadow. Shadow died as a result of a pellet shot to the aorta valve resulting in a hemorrhage. The shooting of Shadow by defendant was intentional and malicious. Plaintiffs stood nearby and observed the impact of the shot on their dog and Shadow’s immediate pain and death shortly thereafter.
The court noted that pets fall "somewhere between chattel and children" in the eyes of the law. (Mike Frisch)
Dangers Of High Volume Practice
The Louisiana Attorney Disciplinary Board rejected as unduly lenient a hearing committee's proposed fully stayed suspension and has recommended a three-month suspension with all but 30 days stayed, followed by supervised probation for six months. The attorney had a high volume bankruptcy law practice. From 2003 to the present, he was counsel in 4,784 cases.
According to the board, the attorney was able to maintain this high volume practice in a competent manner for many years. Then, three events diminished the quality of his work: his wife got sick, his best employees left and the law changed. He was found to have failed to communicate and competently represent a client, leading to five counts of alleged misconduct.
Correction: Note that the recommendation is a three year suspension. (Mike Frisch)
Disbarment Recalled, Disbarment Imposed
The New York Appellate Division recalled a decision that had disbarred an attorney as a result of his resignation while a bar complaint was pending. The court determined that resignation should not have been accepted.
The attorney had been convicted of theft offenses that resulted in automatic disbarment based on the conviction:
On February 23, 2010, this Court accepted the respondent's resignation and disbarred him immediately, based on his admitted inability to defend himself against pending complaints alleging that he had breached his fiduciary duty by failing to account for funds entrusted to him. By that time, however, the respondent had already been automatically disbarred due to his conviction of a felony, and was no longer an attorney by operation of law.
Accordingly, the opinion and order of this Court dated February 23, 2010, must be recalled and vacated, inasmuch as the respondent was no longer able to proffer a resignation at that time. The motion of the Grievance Committee for the Ninth Judicial District to strike the respondent's name from the roll of attorneys is granted to reflect his automatic disbarment as of January 14, 2010, the date of his conviction of a felony.
May 20, 2010
A Tangled Morass
The Florida Supreme Court disapproved the proposed sanction of a referee and directed that the attorney receive a public reprimand with probation of one year. A concurring opinion notes that the attorney is being disciplined for using the trade name "Legal Experts" since 1996 and that the name is misleading. The attorney may only call himself an expert in areas of certified expertise.
A dissent would not find the designation to be misleading. The attorney is a board-certified specialist in civil trial law. According to the dissent, the attorney "has been caught in the tangled morass of problematic rules created by this Court and the Florida Bar in the march for certification of lawyers as 'experts'." The dissent does not approve of the attorney's conduct but rather the permitted use of the term "expert" at all. (Mike Frisch)
John Steele on Tulane and Louisiana Clinics Surviving (Round One)Point to news that John Steele at LEF and others (he links Bob Kuehn too) are posting today on the legislative efforts to gut the Tulane environmental clinic, apparently stopped in committee. It may have been oil in the Gulf that made it seem so ridiculous that the petrochemical industry was still pushing this notion, without regard to people like the current petroshrimp industry, but let's hope that it does not keep coming back like a Halloween movie. [Alan Childress]
Friedman Suspended By Illinois Supreme Court
The Illinois Supreme Court has ended the Loren Friedman saga by imposing a three-year suspension with reinstatement conditioned on a further court order. The highly-publicized case involved a pattern of dishonest conduct that had including obtained employment at Sidley Austin with a doctored resume.
The Review Board had recommended a shorter suspension:
While reprehensible, Respondent's misconduct did not harm any clients. Neither is there any indication in the record that Respondent acted dishonestly while practicing law in New York. Based on his sincere remorse and his acceptance of responsibility for his actions, it appears that Respondent has learned from his mistakes. In our view, a suspension of eighteen months UFO is sufficient to protect the public, deter others from engaging in similar misconduct, and require Respondent to satisfy his obligation of establishing his character and fitness before resuming practice.
This link takes you to the court orders entered May 18. (Mike Frisch)
Judge May Participate In Event With The President
The Florida Judicial Ethics Advisory Committee opines that a judge may appear at a school event relating to the foreclosure crisis along with the President of the United States:
No provision of the Code would prohibit the judge’s appearance at the school function, whether or not the President also spoke. The inquiring judge is justifiably concerned that appearing on the same podium with the President, or with any high-profile member of either of the political branches of government, might give the impression that the judge supported the politician with whom the judge appeared.
However, the value of the inquiring judge’s speaking (whether or not the President appears) is illustrated by the question, in which the judge indicates an intention to remind the students of the judiciary’s role in the fair administration of justice, which requires judges to administer the law fairly to all litigants, including both property owners and lenders. In other words, the students will be reminded that judges are required to apply the law, regardless of the economic conditions faced by a community and regardless of any personal sympathies which a judge may have toward the plight of a litigant.
The inquiring judge, just as at all speeches, must ensure that the judge’s comments do not violate any other provision of the Code. If the President attends, the inquiring judge may need to take additional steps to ensure that this speech makes clear that the judge is not there to advocate a position, either for or against anything the President or any other speaker may say, but instead to explain the role of the judiciary in foreclosure cases.
Judges are not simply permitted by the Code to give such speeches concerning the judicial process, but are encouraged to do so, in order to educate the public concerning the role of the independent judiciary in our state and nation. The fact that a judge may be on the same program with a politician does not negate the rationale of this provision of the Code, but indeed reinforces its importance. A judge speaking on the same program with a politician will remind the audience of the different roles which the speakers play in our system of government.
May 19, 2010
Sending A Message
The Pennsylvania Supreme Court imposed a two-year suspension of an attorney who took no action for 18 months in a praobate matter. As a result, a deadline for filing inheritance taxes was missed. After discharges, it took six months and a court order for new counsel to get the file. The attorney took no part in the bar proceedings and, accodrdng to the Disciplinary Board, had an "absolute disregard" for the process. He also had a record of prior discipline.
The court agreed with the Board that the hearing committee's year and a day suspension was insufficient. The Board stated:
When an attorney continues to violate the rules over an extended period of time, it is clear that a strong sanction must be directed against the attorney.
May 18, 2010
A majority of the Maryland Court of Appeals has concluded that a 60-day suspension is the appropriate sanction for an attorney's unlawfully exchanging prescription drugs for sex. The misconduct did not take place in connection with the representation of a client and was volunteered to protect the interests of his client. The court found that the attorney's lawful possession of the drug at issue and the fact that only one pill changed hands to be mitigating factors.
The exchange involved a person who had accused the attorney's client of forcible rape. The accuser was the client's employee. The attorney knew the accuser on an intimate basis and withdrew from the case as a result. The rape charge was not pursued but the pill-for-sex information that was provided to the police was reported to Bar Counsel.
The court majority rejected the call for disbarment from the Attorney Grievance Commission:
...we must look at [respondent's] crime in context. On a spectrum of controlled dangerous substance distribution offenses, [his] crime is relatively minor. This lawyer possessed a legitimate prescription for Vicodin...He gave one pill to [the putitive rape victim] in return for oral sex. At some time within the past five years, he also gave Vicodin to Denise, a woman he knew. These actions violated [the law]. But they are of a fundamentally different character than if he did it regularly or was peddling his prescription pills to the public.
Perhaps more importantly, [his] misconduct likely would never have come to light had he not volunteered the information that led to the complaint against him. He did so, by all accounts, in order to help an individual who was his client until a short time before [his] disclosure to the police. The evidence shows the [he] believed his client had been wrongfully charged with rape...[his] effort to help his client was out of the ordinary, in that he willingly placed his own self-interest in jeopardy in order to serve his client's interests...Many others in his place may have lacked the fortitude to make this disclosure, given the potential risks to themselves.
The court also rejected a number of claims made by the attorney.
A dissent, joined by two other justices, expresses the view that the "sanction, for all that appears from the absence of such an analysis, was plucked randomly from thin air...judging from the conduct at issue in the present disciplinary proceeding and his inappropriate conduct in [a] prior disciplinary proceeding, it cannot be stated with any degree of confidence that [he] will not repeat these types of libido-driven actions..." The dissenters would impose an indefinite suspension of not less than six months. (Mike Frisch)
The Costs Of Costs
An Arizona Hearing Officer has recommended a censure and probation of an attorney for issues relating to a wrongful death case. The attorney admitted to charging for estimated rather than actual costs, charging unreasonable costs and charging compound interest without notifying the client in writing.
The attorney also admitted to misconduct that appeared to be the opposite of the above, seemingly selfish, behavior by providing financial assistance to the client. The payments involved giving the client money to repair her car, payment of one month of a cell phone bill, money for clothing and a hair appointment to look appropriate for a mediation session, cash for a grave marker for the client's son and money to avoid eviction. The attorney did not charge the client interest on these payments.
The hearing officer found the attorney was negligent in the violations. She was "candid and generally remorseful regarding her professional conduct violations....Respondent came to realize that despite good intentions, her financial assistance was negligent and that such negligence can lead to self interest in a litigated case." In her words:
But mostly what I have recognized that no matter how much I like a client, you cannot give them any money....And I feel really bad that it's been a long process to bring me to that realization that these rules are there for a reason and if someone violates it for a suit [of clothing] they'll violate it for Cadillac.
While I rarely identify an attorney by name, a last-name identification seems appropriate given that the attorney's name is Virtue. (Mike Frisch)
May 17, 2010
A petition for the voluntary discipline of a Review Board reprimand was rejected by the Georgia Supreme Court. The attorney had represented herself in connection with personal injuries allegedly suffered in a 2003 three auto accident. The attorney submitted two documents to an insurer that were fabricated. The attorney admitted in the petition that the documents were fabricated but denied that she had done so herself. The court cited prior disciplinary cases where more severe discipline had been imposed for comparable ethics violations.
The State Bar and a special master had supported the petition. (Mike Frisch)