Friday, July 23, 2010

Zealousness No Defense To Contempt Charge

A finding of criminal contempt based on a defense attorney's questions in violation of court rulings on the admissibility of evidence was affirmed by the Vermont Supreme Court. The attorney was defending a rape case. The conduct occurred during the cross-examination of a police witness and resulted in a mistrial.

The court concluded:

There can be no doubt that counsel here was on notice that evidence concerning the victim’s prior sexual conduct, with the exception of the victim’s reference to an eighteen-year old who allegedly impregnated her in 2008, was barred.  Not only was this evidence expressly prohibited by the plain language of the rape-shield law, but it was also wholly irrelevant, as the court stated before trial.  That the subject of the victim’s prior sexual encounters may have been discussed in the context of her Planned Parenthood records is of no moment.  It was made abundantly clear to counsel that evidence of the victim’s sexual history did not fit within any exceptions to the rape-shield statute and was inadmissible.  Counsel cannot evade the court’s ruling simply because this same information—with additional personal details—was contained within other documents.  The onus was on defense counsel to secure the admission of any specific instances of the victim’s sexual conduct before trial.  If he believed this same information from the detective’s affidavit was outside the court’s ruling, he should have made that argument to the court.  Indeed, the court “clarified” its ruling for [the attorney] numerous times.  If [he] remained confused, his remedy was to approach the bench, not to ask a question in direct defiance of the court’s ruling. 

Counsel’s conduct is particularly egregious given the purpose of the rape-shield law.  The rape-shield law is intended to “screen the rape victim from unnecessary indignities and needless probing into her past sexual history."...This law serves a critical purpose in the prosecution of sexual assault cases: “[b]y excluding worthless evidence, the legislature increased the reliability of the judicial system, increased the number of rapes actually reported and made it less likely that highly inflammatory information with no logical connection to the issues at trial would bring about unwarranted acquittals.”  

Indeed, it is the “peculiarly private” nature of such evidence that “presents great potential danger when placed in evidence in a rape trial.”  As [the attorney] must have been aware, such evidence “raises very real possibilities” that jurors “will find the conduct of a rape victim so alien to their own experience and morals, and so offensive, that they will be unable to comprehend how such a person could be raped.” ...The introduction of such evidence also “runs the risk of turning the trial from an impartial examination of the incident in question to an inflammatory and titillating inquiry into irrelevant pages of the victim’s life, confusing the issues and misleading the jury.”... [The attorney's]conduct wholly undermined the spirit and purpose of this law.  The inevitable result, as the trial court found, was a mistrial.  The court clearly has the discretion to punish such behavior so as to promote the proper and timely administration of justice.  (citations omitted)

The court rejected the claim that the duty of zealous advocacy justified the attorney's actions. The court did not refer the matter for consideration of professional discipline. (Mike Frisch)

July 23, 2010 | Permalink | Comments (1) | TrackBack (0)

Former County Attorney Stripped Of Law License

The former County Attorney of Cherokee County has been disbarred by the Kansas Supreme Court as a result of his federal criminal conviction. KAKE ABC 10 reported on the charges:

The Cherokee County Attorney has been indicted for extortion - alleging Michael Goodrich received money and favors from a strip club.

An federal indictment returned Wednesday alleges Goodrich received money and favors not due to him from the owner and employees of a Sensations Gentleman's Club in Galena.

Goodrich also allegedly tried to intimidate Assistant County Attorney Garth Adams into lying to investigators.

Goodrich faces a total of four charges.

Twenty-nine-year-old Timothy Schooley of Baxter Springs also is
charged with one count of extortion for allegedly serving as a go-between between the club and Goodrich.

News Release from AG's Office:

Michael L. Goodrich, 47, Baxter Springs, Kan., is charged with two counts of extortion, one count of wire fraud and one count of intimidating a witness. Co-defendant Timothy J. Schooley, 29, Baxter Springs, is charged with one count of extortion.

Goodrich is the County Attorney of Cherokee County.
"The indictment alleges that Mr. Goodrich received money and favors not due to him from the owner and employees of Sensations Gentleman's Club in Galena, Kan.," said U.S. Attorney Eric Melgren. "Mr. Goodrich also is charged with attempting to prevent Assistant County Attorney Garth Adams from giving a truthful statement to agents of the Federal Bureau of Investigation."

According to an indictment returned Wednesday by a grand jury meeting in Wichita:

- Goodrich unlawfully obtained money and favors from Hai Ching Ying, the owner of Sensations Gentlemen's Club, and from Tom Dekeyser, the manager of the club. The crimes are alleged to have occurred at various times from Jan. 1, 2005, through September 2007, in Cherokee County, Kan.

- Schooley approached Jason Carsley, an assistant manager of Sensations Gentlemen's Club, to ask for money to be used for the waitresses and dancers at the club. Carsley obtained permission from the owner and/or manager of the club and gave money belonging to the club to Michael Goodrich.

- Goodrich received money and property from Sensations Gentlemen's Club in exchange for favorable and preferential legal treatment for the owner, manager and employees of the club.

- On March 29, 2007, Thomas Dekeyser, manager of Sensations Gentleman's Club, called Michael Goodrich for the purpose of discussing future preferential legal treatment to be given to Dekeyser for a traffic ticket received March 29, 2007. Goodrich dismissed the ticket on June 4, 2007, without Dekeyser paying any fines or costs.

- On July 9, 2007, Goodrich attempted to intimidate Assistant Cherokee County Attorney Garth Adams in an effort to alter a truthful statement that Adams was planning to give to FBI agents.

This report from morningsun.net notes that he was sentenced to a year and a day in federal prison. (Mike Frisch)

July 23, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Reason To Disqualify

The New Jersey Appellate Division reversed an order disqualifying counsel in a divorce case, concluding that "disqualification of plaintiff's attorney was not an available remedy for violation of Rule 5:3-5(b), which prohibits an attorney from taking a mortgage to secure payment of attorney's fees while the matter is unresolved and the attorney represents the mortgagoe-client. We also conclude that the evidence was insufficient to support a finding that the attorney violated R.P.C. 1.8 [business transaction with client]."

(Mike Frisch)

July 23, 2010 in Clients | Permalink | Comments (0) | TrackBack (0)

Enough Is Enough

The Louisiana Attorney Disciplinary Board has ordered the dismissal of disciplinary charges against an attorney notwithstanding its conclusion that the attorney had violated three disciplinary rules in a matter litigated in the federal courts:

We have before us an attorney who has engaged in an isolated case of negligence and faces disciplinary proceedings for the first time in her twenty years of practice. Our review of the record indicates that Respondent's negligence has resulted in violations of [Disciplinary] Rules 3.1, 8.4(a), and 8.4(d), with some harm to the federal judicial system and an opposing party. ODC has suggested that a public reprimand is the appropriate sanction in this matter, Nevertheless...we conclude that Respondent's actions do not rise to the level necessary to require the imposition of any public discipline. Additional notice is taken of the fact that Respondent's actions have already been the subject of published decisions by the federal courts; therefore, one of the major reasons for issuing a public reprimand--educating other members of the bar by dissemination of the reprimand--has already been achieved.

Without commenting on the merits, I find the reason articulated for foregoing discipline troubling. A reprimand would be publicly available and might well be found by a potential client who is considering retaining the attorney. It would be far more difficult to locate the federal court opinions, which appear to be styled in the name of the client. (Mike Frisch)

July 23, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Florida Attorney Reprimanded For Kentucky Advertisement

Lex18.com reports that a Florida attorney was reprimanded for advertising for clients after an air crash in Lexington:

The Kentucky Supreme Court has reprimanded a Florida lawyer who placed an ad in a Lexington newspaper soliciting clients after the crash of Comair Flight 5191 in August 2006.
  
[The attorney]  of Plantation, Fla., pulled the advertisement shortly after it appeared because of adverse publicity that it and similar ads placed by other attorneys generated.
 
The reprimand wasn't for placing the ad. Instead, justices found that [the attorney] wasn't timely in submitting a copy of the advertisement and a small fee to the Kentucky Bar Association as required by a state rule.
 
Forty-nine people died when the Comair regional jet crashed after taking off from the wrong runway at Blue Grass Airport in Lexington.

A television advertisement for the attorney's services is linked here. (Mike Frisch)

July 23, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, July 22, 2010

Webley on the Different Styles and Attitudes of UK Lawyers vs. Mediators in Divorce Disputes

Posted by Alan Childress

Lisa Webley is a Reader at the law school of Westminster and a research fellow at the University of London Institute of Advanced Legal Studies (where she also got her PhD); she was just now at Stanford attending the international conference on the legal profession (and I will try to horse-and-hound her into blogging on it). She has published her law-and-society dissertation on the different approaches solicitors versus mediators take toward divorce and custody matters. Their practical and conceptual styles are indeed different, as revealed by the grounded theory study of their ideologies, training, backgrounds, ethics, and professional messages. So finds Lisa in Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role. Her abstract: Webley Cover resz

This study considers the messages that the Law Society of England and Wales and the UK College of Family Mediators transmit to their members about the professional approach they should adopt in divorce matters.  The study employs a grounded theory method to analyse the training, accreditation, best practice statements and codes of conduct generated by the two professional bodies.  It examines the extent to which the training, accreditation and codes of conduct of family solicitors and family mediators privilege adversarial or consensus based approaches to divorce for their clients, in the light of statements made around the time of the passage of the Family Law Bill, which suggested a dichotomy in professional approach by these two professional groups.   It considers further the nature of professional identity for each of the professional groupings, as constructed through the messages delivered by the professional bodies.

I finally tout a book on-topic to this blog! I helped Lisa publish this as part of the new Dissertation Series of ebooks which I wrote about in Publish Your Dissertation as a Digital Book. Comparative LP expert John Flood (Westminster; U of Miami Law) read that post and commented, and then told Lisa about the series (thanks John!), and she and I worked hard to get this out fast (the tables were a coding nightmare). It is available on Amazon for Kindle and its free apps (and so iPad and BlackBerrys too); on Smashwords in nine different formats (even just PDF, though a pretty one with links, and view online); is featured on the Quid Pro website; and will soon be on Apple iTunes, Barnes & Noble for Nook, and Sony ebookstore.

July 22, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, The Practice, Web/Tech | Permalink | Comments (0) | TrackBack (0)

After Work

A Colorado attorney was suspended for a year and a day for the following misconduct:

On April 1, 2009, in Orange County, California, Respondent left work, consumed alcohol, then fled from the police and ran eight red lights and stop signs while exceeding 100 MPH. He then intentionally rammed another vehicle occupied by others in an attempt to cause great bodily injury, and fled the scene of the collision without stopping. Respondent pled guilty to felony evading while driving recklessly, misdemeanor driving under the influence of alcohol/drugs, misdemeanor hit and run with property damage, and an amended felony charge of battery on September 29, 2009.

(Mike Frisch)

July 22, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The blue squiggly line, Part 2

Posted by Alan Childress

Recalling Jeff's recent run-in with the endless do-loop of the blue squiggly line of apparent grammar correction from Office 2007....  TEST:

What is wrong with this sentence?

The Court may one day face the question of why a homosexual couple, professing deep mutual affection and willing to assume the requisite legal obligations, should be denied the pleasure, the legitimacy, or even the tax benefits of being married.

According to the omniscient and highly political blue squiggly line from Microsoft, it is the lack of an S in the verb couple.

One little letter changes a lot of what I think the author intended, though maybe he was just crass and clueless enough to wonder indeed why homosexuals couple.  Reminds me a little of the one misplaced comma that changes meaning:  "Call me, Ishmael."  In any event, I hope the Court faces that question soon.

July 22, 2010 in Lipshaw | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 21, 2010

Judge Suspended For Tire Incident

Former AbovetheLaw Judge of the Day Robert Nalley had been suspended without pay for five working days by the Maryland Court of Appeals. The discipline was imposed pursuant to a consent.

The misconduct involved letting the air of the tires of a car of a custodial worker parked near the courthouse. Judge Murphy would impose a reprimand. (Mike Frisch)

July 21, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Arbitration Decision To Reinstate Fired Executive General Counsel Overturned

The Wisconsin Supreme Court (with its typical 4-3 split) has held that an arbitration panel exceeded its authority by ordering the reinstatement of the dismissed general counsel of a corporation:

We agree with Menard [the corporation] that the panel exceeded its authority.  An arbitration panel exceeds its authority when its award violates strong public policy.  An attorney owes a fiduciary duty of loyalty to her clients, a duty so replete in our cases and in the Rules of Professional Conduct as to be axiomatic.  Such a duty is deeply rooted in our laws and embodies the strong public policy of the State of Wisconsin.  In this case, we conclude that by accepting reinstatement, Sands [the attorney] would be forced to violate her ethical obligations as an attorney.  Thus, we vacate the panel's award of reinstatement on the grounds that it is void as a violation of strong public policy.  Under the applicable employment discrimination laws, front pay is a substitute for reinstatement.  Accordingly, we vacate the panel's award of reinstatement and remand to the circuit court to determine an appropriate award of front pay.

The court majority explains:

Sands also made clear her views of Menard's leadership——her clients if reinstatement were upheld.  In her briefing before the arbitration panel, Sands stated that John Menard's conduct was "so monstrous and reprehensible that it shocks the conscience"; that he is a "reckless, callous actor who care[s] nothing about anyone else's rights or reputation"; that he "is a man with no parameters, no limits, no respect for the law and obviously, no self-discipline to control or limit his own behavior——nor does he see any need to"; that his honesty and integrity are "completely illusory"; and that his "dishonesty is serious and overwhelming."

Let there be no mistake——the mutual animosity and distrust between Sands and the executive leadership of Menard, the very people to whom her absolute loyalty would be owed, continued throughout the arbitration hearing and shows no signs of abating today.  Sands was right.  No reasonable person would consider reinstatement a possibility in this situation.  No one could have assessed this situation and determined that reinstatement could lead to a productive setting where both Sands and Menard would benefit.  Trust has been completely broken; nothing good could possibly come from reinstatement.  In view of this especially bitter litigation marked by personal and professional animosity, we see no way Sands could now return to Menard and serve the company in conformity with her ethical obligations.

If the level of hostility alone was not enough, Sands performed an unusually high-level and sensitive role at Menard.  She was the Executive General Counsel, heading up the in-house legal operations and supervising the legal work for all of Menard.  She also served as Menard's spokesperson and was a public representative to the community.  More than most attorneys, her position required a high degree of confidence and trust and a close relationship with Menard's executive leadership.  In order to perform her role, Sands had to represent the company's best interests with outside partners, attorneys, and the media.  Sands' unique and significant role at Menard required the highest level of good faith, loyalty, and mutual trust.

The facts recounted in the majority opinion tell a real horror story of the clients abusing their in-house attorney. The attorney met John Menard when he dated her sister. She had about five years experience when she was asked to serve as a corporate attorney and other functions. She was hired at an hourly rate and required to punch a time clock.

She later assumed the duties of the departing general counsel and was paid a fraction of his salary. She put up with it for a couple of years. When she pressed for a raise, she was threatened, humiliated, and fired. The panel described the termination, which came in the wake of her suggestion that she just might have claims against the corporation:

...on the evening of Tuesday, March 14, 2006, Sands was preparing for a meeting in her office when John Menard stepped in.  "This isn't working, is it," he said.  "I'm sick to death of your not getting back to Charlie and you don't respond and your threats."  John Menard then instructed Sands to work out an agreement with Charlie Menard by the end of business the next day or she would be "all done."  Then he left her office.

Moments later, John Menard returned and declared, "[Y]ou know what, you're all done right now.  Pick your shit up; I want your ass out of here.  You've got five minutes."  Sands asked if he was firing her.  John Menard stated that he was placing her on administrative leave.  Sands asked for a clarification and stated that Menard did not have an administrative leave policy.  John Menard repeated that Sands was on administrative leave, that she had better get moving, and that she now had only four minutes.  "[D]o you understand what you're doing right now is unlawful?"  Sands asked.  "I don't care," John Menard replied.  "I want your ass out of here."

At some point during this encounter, Sands turned to her computer in an attempt to log off.  John Menard saw this, approached her from the other side of her desk with his hand in a fist, and ordered her to get away from the computer.  He then continued to tell Sands to get "[her] ass out of there" and that he wanted "[her] ass gone."  Sands collected a few personal items, and left with John Menard following her out of the building.

John Menard threatened the attorney's sister to discourage her from testifying in the arbitration, saying that he would "hate to see her obituary anytime soon."

 The arbitration panel awarded damages of nearly $1.8 million that were not affected by the decision here. The panel had ordered reinstatement notwithstanding the attorney's decision not to seek that remedy.

The dissent would give deference to the arbitration panel's conclusions and result:

Although the majority's conclusions about a public policy are indeterminate, there is no doubt that attorneys have fiduciary and ethical duties and obligations of professional conduct.  Other employees also have fiduciary and ethical obligations to their employers.

The problem is that the majority is unable to pin down a particular rule, duty, or obligation or offer more than its own repeated assertions that if the award stands, a violation of ethical obligations would be the necessary result.  The majority claims that because the panel did not affirmatively discuss Sands' ethical duties as an attorney, this necessarily implies that the panel "never examined whether Sands could ethically perform her role if it awarded reinstatement." ...

The majority parlays this supposition into the conclusion that the award of reinstatement "would have the practical effect of forcing Sands to violate her ethical obligations."  Majority op., ¶65.  Both the claim and the observation are at best speculative and moreover are belied by the record

There is no reason to believe, much less to affirmatively conclude as the majority has done, that the arbitration panel did not consider the applicability of Sands' ethical obligations as an attorney.  It is no secret that Sands is an attorney.  Through its 49-page factual review, legal analysis, and ultimate findings, the panel was amply aware of Sands' professional role and her responsibilities toward the Menard corporation, its officers, and the individuals representing the corporation.  The panel explicitly acknowledged the "difficult[y]" of the "hostile" relationship between the parties.  In doing so they necessarily assessed the dynamic between attorney and client and the issues inherent therein.  Even if there were uncertainty as to what law the panel did or did not consider, the majority oversteps its bounds in review of an arbitration award when it construes ambivalence or silence in the record to justify overturning a result it disfavors.   As the majority recognizes, the party seeking to overturn the panel award bears the burden of proof.

Significantly, Sands and Menard explicitly stipulated that each member of the panel would be an attorney.  Each of the arbitrators was an experienced and successful attorney, themselves bound by the Rules of Professional Conduct and bound to be versed in those rules, which the majority opinion invokes to justify its result in the present case.

The opinion of the Wisconsin Court of Appeals is linked here. The company owns a large chain of home improvement store located throughout the Midwest. Forbes reports that John Menard is worth $7.3 billion and is the richest person in Wisconsin. (Mike Frisch)

 

 

July 21, 2010 in Current Affairs, General Counsel | Permalink | Comments (0) | TrackBack (0)

Former Judge Suspended For Misconduct On Bench

The web page of the Ohio Supreme Court reports;

[A f]ormer Portage County Municipal Court Judge...has been suspended from the practice of law for one year, with the final six months of that term stayed, for violations of the Code of Judicial Conduct and Rules of Professional Conduct during his service on the bench. [His] latest term of office expired on Dec. 31, 2009. He did not seek reelection.

The Supreme Court adopted findings by the Board of Commissioners on Grievances and Discipline that on multiple occasions over a period of several years [he] failed to dispose of judicial matters promptly, efficiently and fairly; failed to diligently discharge his administrative duties without bias; engaged in ex parte communication with a prosecutor in a case before his court; engaged in conduct that was prejudicial to the administration of justice and engaged in intemperate behavior during court proceedings that undermined public confidence in the impartiality and integrity of the judiciary.

The Court agreed with the board’s conclusions that [he] committed 10 violations of the Code of Judicial Conduct and four violations of the Code of Professional Responsibility, and adopted the board-recommended sanction of a one-year suspension with six months of that term stayed.

The Court’s 5-1 per curiam opinion was  joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Justice Maureen O’Connor dissented, stating that she would impose a one-year license suspension.

Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.

The opinion is linked here. (Mike Frisch)

July 21, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 20, 2010

Sufficient Malice To Disbar

An attorney who was charged in California with the first degree murder of his girlfriend was convicted by a jury of a lesser charge of second degree murder. He also was convicted of a firearms assault offense. He was sentenced to a 40 year prison term on the murder consecutive to a three year term for the assault. 

As a result, the attorney was disbarred by operation of the conviction and struck from the rolls of the New York Appellate Division for the First Judicial Department. The court found that the California murder offense was the substantial equivalent of a New York felony:

The Committee argues that implied malice murder under the California statute is essentially similar to New York's depraved indifference murder (Penal Law § 125.25[2]). Although an argument can be made that implied malice murder under California law is different from New York's depraved indifference murder, we need not decide that issue because, at the very least, the California statute, supported by the jury verdict, is essentially similar to the New York felony of manslaughter in the second degree (Penal Law § 125.15). Under that provision, a person is guilty of manslaughter in the second degree when "[h]e recklessly causes the death of another person." Penal Law § 15.05(3) states that "[a] person acts recklessly with respect to a result . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur." Implied malice murder, as interpreted by the California Supreme Court, has, at least, essentially the same mental state as reckless manslaughter in New York. Thus, under any analysis of the California statute, respondent would have committed a New York felony.

An article on the criminal case is linked here. A connection between a musician (the frontman for Enuff Z'nuff) and the case is discussed here. (Mike Frisch)

July 20, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saved By Bar Complaint

An attorney was publicly censured by the New York Appellate Division for the First Judicial Department in light of findings that the misconduct found was the product of a serious substance abuse problem. The attorney has been sober and employed by a law firm for the past three years.

The charges:

In November 2008, the Departmental Disciplinary Committee (Committee) served respondent with an amended notice of seven charges, accusing him of several instances of misconduct, in that he: submitted to a law firm a resume containing false information regarding his academic history and prior employment; submitted to the same firm, as a writing sample, a memorandum of law he falsely represented as his own; misrepresented, when questioned by the firm, that he was the author of the writing sample; falsely represented to the Committee in a June 2006 letter that he had prepared the writing sample; and failed to disclose on his 1999 bar application a 1996 arrest for the misdemeanor of driving under the influence of alcohol and conviction of the traffic violation of driving while impaired. Respondent, in addition, was arrested in February and April 2001 for the misdemeanor of criminal possession of a controlled substance (cocaine) in the seventh degree, in connection with which he entered two guilty pleas to the violation of disorderly conduct.

The attorney tried and quickly became addicted to cocaine in 2000. He lost a law firm job as a result. The addiction problem worsened after the attorney lost his brother (a lieutenant with the Fire Department)  in the World Trade Center attacks. He "credits the disciplinary inquiry as a major factor in his recovery." The sanction here requires him to continue treatment and remain in the Bar's assistance program for one year. (Mike Frisch) 

July 20, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Charges Of Judicial Nepotism Result In Reprimand

An aggressively-litigated judicial discipline matter against a Nashville General Session Court judge has been resolved by an agreed order. The order was entered by a majority of judges of the Tennessee Court of the Judiciary.

Charges that the judge was habitually tardy will be dismissed in 90 days if Judge John Brown certifies that "during that period of time [the judge] convened court in a timely manner and has regularly conducted her own docket, except for emergencies or other normal absences." The judge was publicly reprimanded for hiring her daughter as a court officer in violation of judicial rules governing nepotism.

A dissent did not opine on whether the outcome was unduly harsh or lenient, but would conclude that a trial on the merits should be held.

The pleadings in the matter can be found at this link.  Earlier coverage from the NashvillePost.com is linked here. (Mike Frisch)

July 20, 2010 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

General Counsel Indefinitely Suspended For Criminal Conviction

From the web page of the Ohio Supreme Court:

[An attorney] has been indefinitely suspended from the practice of law for multiple violations of state attorney discipline rules arising from his convictions on federal criminal counts of money laundering, conspiracy to commit money laundering, conspiracy to obstruct proceedings before the U.S. Federal Trade Commission and conspiracy to obstruct proceedings before the U.S. Food and Drug Administration. [The attorney] has been under an interim suspension since December 2009 as a result of his felony convictions.

In a 4-2 per curiam decision announced today, the Supreme Court adopted findings by the Board of Commissioners on Grievances and Discipline that [his] actions as general counsel for a nutritional supplement firm assisted the company’s owner in concealing $14 million in assets that were in danger of seizure by the Federal Trade Commission and/or subject to future lawsuits by the company’s customers. The Court agreed with the board’s conclusions that [his] conduct violated, among others, the disciplinary rules that prohibit an attorney from engaging in illegal conduct involving moral turpitude; conduct involving fraud, deceit, dishonesty or misrepresentation; and conduct prejudicial to the administration of justice.

Although the disciplinary board recommended a two-year license suspension with six months stayed, a majority of the Court voted to impose an indefinite suspension without eligibility to apply for reinstatement until after [he] has completed the three-year term of supervised release imposed by the trial court in his criminal case.

The majority opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp. 

Justice Terrence O’Donnell entered a dissent, joined by Justice Maureen O’Connor, stating that [his] convictions for money laundering involving $14 million, conspiracy to commit money laundering, and conspiracy to obstruct official proceedings before the Federal Trade Commission and the Food and Drug Administration, as well as the court’s duty to protect the public from lawyers who fail to adhere to the highest ethical standards, require that [he] be disbarred.

Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.

The attorney was admitted in 2003. His practice "consisted mainly of estate-planning and small-business matters." He had a childhood friend who owned a "rapidly growing nutraceutical company." The friend brought him in as the company's general counsel. The criminal charges involved a scheme to transfer the friend's assets ($14 million) into two trusts in order to protect them from the FTC and future legal claims. The trust documents were prepared by outside counsel but were reviewed by the attorney, who also served as a trustee.

The court's opinion is linked here. (Mike Frisch)

July 20, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Deliberate Lies" Warrant Disbarment

The New Hampshire Supreme Court rejected the recommendation of its Professional Conduct Committee for a two year suspension with conditions on reinstatement, concluding that disbarment was the proper sanction for the attorney's ethical violations.

The attorney had neglected an estate matter and lied to his client and to a tribunal. The court noted as aggravating factors a prior similar offense, the submission of false evidence and statements in the bar proceeding, the failure to acknowledge the improper conduct, the vulnerability of the victims and the attorney's "indifference to making restitution." The mitigating factors of a lack of selfish motive , good reputation and "remorse and regret" were insufficient to avoid the ultimate sanction.

The court agreed with disciplinary counsel that the attorney's "deliberate lies require no less than disbarment." (Mike Frisch)

July 20, 2010 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, July 19, 2010

Attorney Stabbed By Opposing Party in Domestic Case

This article from the Minneapolis-St. Paul StarTribune.com reports a brutal stabbing attack of an attorney by the opposing party in a domestic case:

Sheikh Nyane, 32, who was charged with assault and attempted murder in the case, admitted to police that he was upset because [the attorney] represented his former spouse in the proceedings, according to a court document.

On the day [the attorney] was attacked, Nyane allegedly told his ex-spouse that "he was ready to die and I'm going to take somebody with me," [the attorney] said.

During the assault, her attacker was going full tilt, [the attorney] said, but she managed to scream for help as she felt the knife jabbing at her throat.

Desperate and bleeding badly, she uttered that she wasn't trying to hurt him. For some reason, she said, he stopped and said, "You're not going to die today," and walked away. Nyane turned himself in to police 40 minutes later, knife in hand.

Nyane, who called the Star Tribune from the Anoka County jail after an interview request, said his attorney advised him not to comment.

At a court hearing last week, he didn't enter a plea, and he was assigned a public defender. [the attorney], surrounded by a dozen relatives, attended. She said seeing Nyane was nerve-wracking. He made eye contact with her, she said.

Hat tip to the web page of the North Dakota Supreme Court. (Mike Frisch)

July 19, 2010 in Law & Society | Permalink | Comments (1) | TrackBack (0)

Sunday, July 18, 2010

Conviction Upheld

The United States Court of Appeals for the Armed Services has affirmed the conviction at a general court-martial of Lt. Commander Matthew Diaz for offenses related to his providing the names of Guantanamo detainees to an attorney for the Center for Constitutional Rights. The names were placed inside a Valentine's Day card. The Miami Herald reports:

In a unanimous, 26-page opinion, the appellate court rejected most of Diaz's appeal. The appellate judges did find the trial judge erred in denying Diaz the opportunity to present evidence about his motives in leaking the Guantánamo detention information, but the appellate court concluded this error was essentially harmless.

The fascinating case arose from Diaz's service between July 2004 and January 2005 as a deputy staff judge advocate with Joint Task Force Guantánamo Bay.

Diaz provided to the Center for Constitutional Rights the names of some 551 detainees, inside a Valentine's Day card.

Diaz argued that the Espionage Act, under which he was charged, has an ``intent to do harm'' requirement, whereas he ``sought to demonstrate that he intended no harm to the United States and acted only to uphold the Constitution.'' The appellate panel rejected this argument.

Mr. Diaz received the 2008 Ridenhour Truth-Telling Prize for the conduct at issue in the case. (Mike Frisch)



July 18, 2010 in Law & Society | Permalink | Comments (0) | TrackBack (0)