December 17, 2010
Making An Adjustment
The New Jersey Appellate Division has affirmed the dismissal of criminal charges of criminal sexual contact arising out of the defendant's masturbation in view of another adult. according to the court
...a person's touching of his own intimate parts within view of a non-consenting adult is not sufficient to prove criminal sexual contact...if a defendant was merely "adjusting himself" without the requisite purpose, he would not be guilty of fourth-degree criminal sexual contact. Such conduct might fit within the language of the lewdness statute.
The conduct took place in a community college elevator. The victim reported he was masturbating; the defendant said he was adjusting himself. (Mike Frisch)
Dancing To Disbarment
The New York Appellate Division for the First Judicial Department has disbarred an attorney for conduct that led to a criminal conviction as described below:
On March 23, 2010, respondent pleaded guilty to promoting prostitution in the third degree (Penal Law § 230.25), a class D felony. At the plea hearing, respondent admitted that he had "knowingly advanced and profited from prostitution" by dancers at a night club he owned and managed. Respondent also admitted to "engaging in sexual conduct with dancers in the private rooms in exchange for allowing them to work at the club."
On that same day, March 23, 2010, respondent pleaded guilty to a total of three class A misdemeanors: two counts of falsely reporting an incident in the third degree (Penal Law § 240.50[a]) and one count of offering a false instrument for filing in the second degree (Penal Law § 175.30). During his plea allocution, respondent admitted that, among other things, he falsely reported to the New York City Police Department that police officers attempted to extort money from him by threatening to close his night club. Respondent also admitted that he offered the Police Department a document for filing that repeated the false extortion claim.
Details from this post in NYDailyNews.com identify the establishment as the Hot Lap Dance Club. (Mike Frisch)
New Ohio Pro Hac Rules
The web page of the Ohio Supreme Court reports:
The New Year will result in some significant changes for out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice).
The Supreme Court of Ohio adopted pro hac vice amendments last year, which become effective Jan. 1, 2011. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
- Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services.
- Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
- Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year.
- Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
Susan Christoff, Attorney Services Division director, said the changes implemented in Ohio bring the state in line with how other states have handled temporary appearances by out-of-state attorneys.
“Attorneys who regularly practice in other states in the Midwest should be familiar with some of the requirements instituted by Ohio because they are similar to what those other states require,” she said. “That being said, it’s important to note that pro hac vice has changed in Ohio, and we want to make sure Ohio’s courts and administrative agencies as well as Ohio judges and attorneys are aware of these coming changes.”
She noted that attorneys seeking pro hac vice registration will be able to submit registration applications electronically. The Office of Attorney Services will maintain an online public directory that includes the names of attorneys who have registered under the new rule and the cases in which they have received permission to appear pro hac vice.
To access more detailed information on the changes, complete the pro hac vice registration process online or access the pro hac vice attorney directory, click on the pro hac vice button on the front of the Supreme Court’s Web site at www.sc.ohio.gov or visit this Web address: http://www.supremecourt.ohio.gov/AttySvcs/PHV/default.asp.
Let My Justice Go
The New York State Commission on Judicial Conduct has terminated proceedings in light of the resignation of a non-attorney town court justice. According to the commission's press release, the justice had (among other things) commended a litigant for making a derogatory and insulting remark about Jewish people.
The justice entered into a stipulation regarding the allegations. He has also agreed not to seek future judicial office.
The remark is recounted in the charges, which are appended to the stipulation. The case involved an action for damages for the death of a dog. The justice asked the value of the dog, to which the plaintiff responded: "Three, three and a half. They wanted three and a half and I jewed 'em down to three." The justice responded: "Good boy." (Mike Frisch)
December 16, 2010
Not Enough To Object
In an accident case involving an injured motorcyclist, the defendant City of Tampa made a number of objections at trial concerning the behavior of the plaintiff's attorney. The objections were sustained. After a verdict for the plaintiff, the City sought a new trial based on the improper conduct of counsel.
The Florida Supreme Court held that the City was required to move for a mistrial in order to preserve the appeal for a new trial. The City's failure to timely move for a mistrial precludes consideration of the issue.
The court resolved a district court split over the issue. (Mike Frisch)
The Colorado Presiding Disciplinary Judge recently approved a 90 day stayed suspension and probation in a matter in which the attorney had his non-attorney assistant file a co-petition for marriage dissolution from his own spouse. The assistant was directed to notarize the spouse's signature "even though she had not signed the petition." (Mike Frisch)
Payment Optional For Florida Lawyers Seeking Reinstatement
The Florida Supreme Court has approved a number of changes to rules for admission to the Bar. Justice Lewis concurred and dissented in part. The dissent involves what the justice characterized as a "standardless window for readmission...of wayward lawyers who have been found to have stolen from thier clients, convicted of crimes, and ordered to pay restitution."
Contrary to the proposal of the Bar, the new rule would allow readmission of attorneys who had failed to pay ordered restitution for "exceptional circumstances." Justice Lewis favors the approach that makes restitution a mandatory requirement for readmission:
In the past, disciplined lawyers have proferred all types of excuses in attempting to delay or avoid repayment...Members of The Florida Bar would be surprised, and the typical Florida citizen would be outraged, if the requests and proposals we have seen were approved.
December 15, 2010
Godsoe on Ethically Representing Children and Parents
Cynthia Godsoe (Brooklyn Law School) posted to SSRN an article that will appear in the Georgetown Journal of Legal Ethics this spring. It is All in the Family: Towards a New Representational Model for Parents and Children. Its abstract:
The presumption that parents act in their children’s interests governs both daily life and legal doctrine. This Article demonstrates that this presumption, while usually correct, is problematic when unquestioned because it masks any conflict between parents and children, and is at odds with the individualistic framework of the ethical rules governing attorneys. This harms families and puts attorneys at risk. This Article explores this representation problem in the previously largely ignored context of special education for children with disabilities. The Supreme Court, in Winkelman v. Parma City School District, recently established that parents and children each have substantive yet “intertwined” rights to a child’s appropriate education. Nonetheless, courts and attorneys continue to assume that parents speak for children, even in cases with a high risk of conflict.
To best serve families and protect attorneys, this Article proposes a novel reconception of representation in education cases. Family representation posits the family as the client, with the attorney owing duties to each member individually and as part of the group. A family representation framework brings four real-world benefits: (1) it recognizes the interconnected nature of the relationships and rights of parents and children; (2) it engages both parties in the process, particularly important for children who have previously been overlooked; (3) it is economical, increasing the number of represented parties but not the number of attorneys; and (4) it brings attorney practice into accord with ethical standards. This model has ramifications beyond the educational sphere as it could also be fruitfully applied in torts and benefits actions by a parent and child against the state or other third party. Ultimately, reconceiving the attorney’s role as representing the family while respecting the voices of each member harmonizes the competing principles of individual autonomy and family unity to the benefit of parents, children and attorneys.
Cynthia starts teaching Professional Responsibility next term! Thanks for reading us (well, Mike), Cynthia. [Alan Childress]
December 15, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
While Away On A Cruise...
A Louisiana hearing committee has recommended dismissal of charges that an attorney failed to safeguard entrusted property. The attorney was retained to defend criminal charges and was given property of the alleged victim. The property consisted of ten consecutively numbered $100 bills. The client insisted that the money be returned to the alleged victim "in exactly the same condition."
The money was placed in an envelope in a locked filing cabinet. The attorney made some efforts to return the money. His attorney's son had a key to the cabinet and took the money when the attorney was on a cruise, mistakenly thinking that the money was left for him. The attorney replaced the funds when he returned to the office.
The committee concluded that the attorney had acted reasonably in keeping the money in a locked filing cabinet: "Given the small office, and the lack of a safe deposit box, a solo practicioner might reasonably store such property in a locked filing cabinet." (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended the permanent disbarment of an already disbarred attorney for engaging in unauthorized practice after entry of the order of disbarment. The board rejected the assertion that the disciplinary system lacked jurisdiction to impose a sanction after he had been disbarred. (Mike Frisch)
Writ Of Mandamus
The Ohio Supreme Court has decided a case involving a discovery dispute in a medical discipline matter. According to the court's web page:
The Supreme Court of Ohio today partially granted and partially denied a writ of mandamus directing the State Medical Board to provide unredacted copies of some of the public records requested by Dr. Mahendra K. Mahajan, a Dayton psychiatrist, relating to a board investigation of Dr. Mahajan.
In a 7-0 per curiam opinion, the Court noted that the medical board provided more than 8,000 pages and several CDs of documents in response to Dr. Mahajan’s records request, and found that all but a handful of the redactions the board had made in documents it provided to Dr. Mahajan were required by law or authorized by exceptions to disclosure in the state’s Public Records Act.
The mandamus action arose from a May 2007 deposition of Dr. Mahajan conducted by one of the medical board’s enforcement attorneys, David Katko. Following that deposition, Dr. Mahajan’s attorney sent a letter to the board’s director complaining that Katko’s conduct during the deposition had been “rude, unprofessional, threatening, and intimidating.”
Following a January 2009 hearing on the disciplinary charges filed against Dr. Mahajan, he requested copies of certain records, including the board’s personnel file for Katko. After the board had provided thousands of pages of documents in response to his initial request, Dr. Mahajan submitted a supplemental request specifically seeking any records received or created by board members or management-level personnel related to Katko’s May 2007 deposition of Dr. Mahajan, and any similar incidents involving Katko.
The board forwarded copies of additional records responsive to the new request. Portions of seven of the documents had been redacted (blacked out or otherwise rendered unreadable). With regard to each of these documents, the board provided a written explanation of its reasons for the redactions. Dr. Mahajan objected to some of the redactions and asked the board to reconsider and provide him with unredacted copies of all of the documents. The board declined to do so, reiterating its prior reasons. Dr. Mahajan then filed an original action in mandamus, asking the Supreme Court to issue a writ requiring the board to provide unredacted copies of the specified documents.
In today’s decision, the Court found that, with very limited exceptions, the board’s redactions from the seven documents sought by Mahajan were proper under various exceptions to the Public Records Act, including exclusions for law enforcement investigatory records, board investigatory records, confidential employee medical records, and confidential board work product including assessments of evidence and discussions of investigative strategy.
The Court identified as error the medical board’s redaction of a an explanatory email sent by Katko to his supervisor on May 17, 2007 discussing Katko’s actions during the May 2007 deposition of Dr. Mahajan. The Court held that the email was not exempt from disclosure as an investigative record because it addressed Katko’s conduct rather than any substantive content of the Mahajan investigation. The Court also found that the board erred by redacting Mahajan’s own name from several documents, on the basis that Mahajan had waived the confidentiality of that information when he initiated the public records request.
The Court concluded: “‘The Public Records Act serves a laudable purpose by ensuring that governmental functions are not conducted behind a shroud of secrecy. However, even in a society where an open government is considered essential to maintaining a properly functioning democracy, not every iota of information is subject to public scrutiny. Certain safeguards are necessary.’ ... The General Assembly has provided these safeguards by balancing competing concerns and providing for certain exemptions from the release of public records pursuant to R.C. 149.43. ... The state medical board has met its burden for establishing the applicability of several of these exemptions. The board acted diligently and appropriately in the vast majority of its redactions to the requested records.”
“Other redactions were not covered by an exemption. Therefore, we grant a writ of mandamus to compel respondent to provide access to an unredacted copy of the May 17, 2007 e-mail, the portions of the May 22, 2007 notes that refer to Mahajan’s name and Katko’s prior deposition of him, and the parts of the May 31, 2007 memorandum and June 2007 e-mails that note Mahajan’s name. In all other respects, we deny the writ. We also deny relator’s request for statutory damages, attorney fees, and oral argument.”
The opinion is linked here. (Mike Frisch)
December 14, 2010
Tales Out Of School
The Colorado Presiding Disciplinary Judge approved a conditional admission of misconduct and imposed an 18 month suspension with all but nine months stayed on completion of two yearts probation. The attorney and co-counsel represented a client charged with stealing $1.2 million from her employer.
The attorneys violated their duties of confidentiality in two in camera conferences with the judge and prosecutor: "[The attorneys] made statements...related to their disagreement with the client's decision to reject a plea offer and other statements to preserve their own interests and in-turn, failed to maintain the confidences of the client. " (Mike Frisch)
More than 50 Violations Draws Permanent Disbarment
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today permanently revoked the law license of [an] attorney...for multiple violations of the Code of Professional Responsibility and Rules of Professional Conduct.
In a 7-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney], whose license has been under suspension since April 2008 for prior acts of misconduct, committed more than 50 violations of state attorney discipline rules in his dealings with several different clients.
The Court affirmed the board’s findings that in one case in which he was retained by three siblings to probate their father’s will, [the attorney] falsely advised the probate court that the father had died intestate and proceeded to collect more than $60,000 in fees from the heirs and deductions from the estate over a four-year period while refusing to provide his clients with a full accounting of the estate assets or to distribute the proceeds to them. In a second case, the Court adopted the board’s finding that [the attorney] advised a client to give [him] $600 from his $2,000 monthly pension checks to place “in escrow” every month for more than five years while [the attorney] allegedly pursued a lawsuit on the client’s behalf to increase his pension. When the client later learned that [his] law license had been suspended and the lawsuit he was supposed to be pursuing on behalf of the client had been dismissed, the client demanded but never received any of the estimated $36,000 he had given Mishler to hold in escrow.
The Court adopted the board’s conclusions that these and other acts of misconduct by [the attorney] violated, among others, the state disciplinary rules that prohibit an attorney from charging an illegal or clearly excessive fee, intentionally damaging a client in the course of a professional relationship, knowingly making false statements of law or fact, engaging in conduct involving fraud, deceit, dishonesty or misrepresentation, engaging in conduct prejudicial to the administration of justice, and engaging in conduct that reflects adversely on the attorney’s fitness to practice law.
The opinion is linked here. (Mike Frisch)
December 13, 2010
A Different Approach
We just reported the Georgia Supreme Court's rejection of a proposed three-month suspension. A similar case in North Carolina drew a more lenient sanction. According to the State Bar web page:
[An attorney]of Murphy was censured by the Grievance Committee. [He] affixed his notary seal to an unsigned will and then directed his staff to falsely attest that they had witnessed the signing of the will and that they had notarized the "witness" signatures. In his response to the State Bar's inquiry about the matter, [he] falsely stated that he "never directed any employees who were not present to sign the will."
The Georgia Supreme Court rejected a petition for voluntary discipline of a three-month suspension in a matter where the attorney paid a non-lawyer a percentage of fees. When the non-lawyer was under investigation for unauthorized practice, the attorney made false statements to the Office of General Counsel before "finally admitting" the fee split arrangement.
The attorney was "very forthright and very apologetic" and had no prior discipline. She suffered from a physical ailment and stress over the failure of her solo practice. Nonetheless, the court found the proposed sanction "an insufficient level of discipline despite the mitigating factors." (Mike Frisch)