Monday, October 31, 2011
The Washington State Supreme Court sustained a constitutional challenge to a county noise ordinance that prohibited honking for any reason other than public safety. A defendant was convicted for honking a car horn at 6 am in front of a neighbor's house.
The court majority:
A moment's reflection brings to mind numerous occasions in which a person honking a vehicle horn will be engaging in speech intended to communicate a message that will be understood in context. Examples might include: a driver of a carpool vehicle who toots a horn to let a coworker know it is time to go, a driver who enthusiastically responds to a sign that says "honk if you support our troops,"wedding guests who celebrate nuptials by sounding their horns, and a motorist who honks a horn in support of an individual picketing on a street corner. Thus, we reject the Court of Appeals' conclusion that horn honking is a type of conduct that does not involve speech. Immelt, 150 Wn. App. at 687. Horn honking does constitute protected speech in many instances, regardless of whether it would constitute protected speech in Immelt's particular case...
The horn ordinance here does not survive scrutiny. It is substantially overbroad, "not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Williams, 553 U.S. at 292. It prohibits a wide swath of expressive conduct in order to protect against a narrow category of public disturbances.
In its examples, the court fails to note the expressive value of honking at someone who cuts you off in traffic. (Mike Frisch)
The Oklahoma Supreme Court has entered an order providing that Bar Association members serving on active duty in the military in a combat zone may request waiver of annual bar dues:
Active OBA Members who are in an active duty and deployed status serving outside of the United States or one of its territories with the Armed Forces of the United States in a combat zone or receiving "Imminent Danger Pay" (Combat Pay) or "hardship duty pay" in any given year may request that dues be waived for that year. A request for a waiver of dues, along with sufficient supporting documentation of service, shall be submitted to the Executive Director of the Oklahoma Bar Association as soon as reasonably practical. Members requesting such dues waiver shall have the right to appeal any administrative decisions made by the Executive Director to the Board of Governors of the Oklahoma Bar Association and ultimately to the Oklahoma Supreme Court. In the event the member is not able to submit the request personally, such request can be made by a family member, law partner or other such person having authority to act on behalf of the member.
The yearly dues are $275.00 (Mike Frisch)
The Tennessee Supreme Court has disbarred attorney Bobby McGee as a consequence of a criminal conviction. He was convicted of two counts of using interstate commerce to induce a minor to engage in sexual activity and possession of 185 images of child pornography.
NewsChannel5.com reported on the charges:
As NewsChannel 5 reporter Jeff Tang discovered, some of the evidence against McGee is pretty disturbing.
Investigators allege that Bobby McGee was looking for someone to engage in a master-slave bondage relationship with him. An affidavit obtained by NewsChannel 5 describes conversations between McGee and someone he thought was a mother of two young children.
For more than 20 years McGee's Linden, Tennessee law office opened its doors to abuse victims.
An advocate for women and children's rights, McGee is now involved in cases involving the cases of abused children, custody of children.
Now McGee is accused of being the very kind of criminal he once fought to keep children away from.
According to the report, McGee had previously been suspended for sex with clients. (Mike Frisch)
An attorney who was indefinitely suspended in 2005 continued to engage in practice notwithstanding his status.
The Maryland Court of Appeals found that the continuing practice warranted the ultimate sanction:
When a member of the legal profession consistently violates the Rules of Professional Conduct and continues to disregard repeated admonitions in derogation of the trust and confidence of the public, disbarment is the only remedy.
The attorney's name is Peter Maignan. (Mike Frisch)
An attorney admitted to the Massachusetts Bar in 2006 failed to disclose a serious traffic incident in a series of applications for bar admission.
He did not report a 1999 incident where he was charged with leaving the scene of a property damage accident, driving while uninsured and on a suspended license. The charges were dismissed after he made restitution.
The attorney "mistakenly and unreasonably" believed that he was not obligated to report the incident because the charges were eventually dismissed.
He has now been suspended for 15 months retroactive to a previously-imposed interim suspension.
According to the Board of Bar Overseers summary of the matter, his problems with the law continued after his admission:
The respondent was admitted to the bar on June 21, 2006. On July 11, 2008, he admitted
to sufficient facts in Taunton District Court to possession of a Class B drug in violation of G.L.
c. 94C, § 34. The case was continued without a finding to July 10, 2009. On July 31, 2008, the
respondent admitted to sufficient facts in Taunton District Court to violating an abuse prevention
order in violation of G.L. c. 209A, § 7. The person who had the restraining order had initiated
the contact with the respondent. The case was continued without a finding for three months, but
the respondent was found in violation of probation on April 12, 2010, and the respondent’s
probation was extended for another four months. On September 17, 2008, the respondent
admitted to sufficient facts in Taunton District Court to concealing, selling, or pledging leased
personalty, a laptop, in violation of G.L. c. 266, § 87. That case was continued without a finding
for six months, and the respondent was ordered to pay restitution of $1,574.55 to Rent-A-Center.
The respondent was found in violation of probation in this matter, and his probation was
extended for four months. On March 2, 2010, the respondent was convicted of unlicensed
operation of a motor vehicle and was fined $100. Except for the March 2010 conviction, the
respondent violated S. J. C. Rule 4:01, § 12(8), by not reporting these convictions as defined by
S. J. C. Rule 4:01, § 12(1), to bar counsel.
Violation of an abuse prevention order and concealing, selling, or pledging leased
personalty are “serious crimes"...
Saturday, October 29, 2011
A judge may not speak to a conference on a case that he presided over and which is now on appeal, according to a recent opinion of the Florida Judicial Ethics Advisory Committee:
...nothing in the Code of Judicial Conduct prohibits the inquiring judge from commenting on a high profile case once the matter has reached a final disposition. Indeed, as one committee member noted in Fla. JEAC Op. 96-18, an inquiring judge could appear in a TV documentary after the case was closed. Hence, the only reason that this inquiring judge or any other judge is prohibited from giving a speech given the factual scenario before us is the stated prohibition in Canon 3B(9) that no judge can comment on any proceeding – in this case a trial over which the judge has presided – until final disposition of the appellate process. Once that occurs, no prohibition exists on a judge providing his or her views or thoughts on handling a high profile case. Accordingly, the only analysis that applies to the issue here is the fact that the matter on which the inquiring judge has been asked to speak has not fully concluded as an appeal remains pending. The focus on “ex parte” communications is extraneous, unwarranted, and legally incorrect.
There is a minority view:
The minority acknowledges that if the inquiring judge has handled other high profile cases, the inquiring judge could speak generically about the topic of handling an interesting or high profile case – such as dealing with the media, the courtroom set-up, cameras in the courtroom – without discussing the particular case at issue here. The minority is of the opinion, however, that the invitation here was to speak about the particular case that is currently on appeal, and the judge is prohibited by Canon 3(b)(9) from commenting on that case.
Accordingly, while the minority agrees with the conclusion reached by the majority, the minority disagrees to the extent the majority’s opinion concludes that the proposed speech would constitute an “ex parte” communication pursuant to Canon 3B(7).
Friday, October 28, 2011
Several disciplinary orders for private admonition have been issued in Colorado over the past two months.
As in this example, the orders give the name of the admonished attorney but provide absolutely no information aboput the nature and circumstances of the misconduct.
Not too helpful to consumers of legal services in Colorado. (Mike Frisch)
The Maryland Court of Appeals has held that disbarment was the appropriate sanction where an attorney "intentionally misrepresented his residency status in applications for pro hac vice admissions for to California state and federal courts, as well as third persons."
The attorney was admitted in 1981. He is self-employed and also works for a foundation that he created. He also "has a part-time 'national practice' and has been admitted pro hac vice in 25 different jurisdictions, mostly federal courts, across the United States." He was residing in California without ties to Maryland when he sought pro hac admission in a California matter based on purported Maryland residency.
Some courts take such misconduct seriously. Some don't. (Mike Frisch)
Thursday, October 27, 2011
The Indiana Supreme Court has imposed a six-month suspension of an attorney for misconduct in the course of representing a defendant charged with murder.
The stipulated facts:
In 2006, J.M. was indicted for a murder that occurred in 2000, and a public defender was appointed to represent him. Without invitation from J.M. or anyone else, Respondent visited J.M. in jail and agreed to represent him without charge.
During his opening statement, Respondent stated that search dogs were sent out shortly after the victim's disappearance and one dog "alerted" at the home of B.H., but the dog was called off. These statements were false and Respondent should have known that no evidence would be admitted at trial to support them. J.M. was found guilty of murder and sentenced to 65 years.
Respondent filed a notice that he would be providing pro bono representation for J.M. in his appeal. The court issued an order finding J.M. indigent for the purposes of paying the costs of a transcript for the appeal. Respondent, however, never requested funds for copying and binding the appellant's brief and appendix. Instead, he told J.M.'s mother that technically they could probably request the trial court to pay these costs, but the court would not pay because of extreme criticism of the judge and the prosecutor in the appellate brief.
When Respondent filed an appellant's brief for J.M., he sent J.M.'s mother a copy that was not file-stamped and expressed his hope that family or friends would pay the costs to the printer. He later informed J.M.'s mother that the brief would be refiled to correct grammatical errors, told her that the copying expenses needed to be paid, and asked her for payment of at least $1,500. J.M.'s mother was unaware that that original brief had already been filed and feared that failure to pay the costs of printing and binding would result in the brief not being filed. She therefore sold some personal items and sent Respondent a check for $1,500.
The court found that the attorney had exploited three vulnerable prople. (Mike Frisch)
Wednesday, October 26, 2011
An attorney who "never really practiced law" was suspended for 18 months by the Pennsylvania Supreme Court for two serious crimes, both assaults on his girlfriend. Her last name is Lachance.
The first assault took place as she was leaving her work at a tavern. He prevented her from leaving and they fell over a bar stool. He jacked her up against a wall and struck her in the face. The responding police officer's last name was Suprano.
The second asault took place after he had entered a plea of guilty.
The Disciplinary Board concluded that the attorney was unfit to practice law. He offered no explanation and expressed no remorse for his criminal behavior. (Mike Frisch)
An attorney who had continued to practice after being suspended for six months was disbarred by the New York Appellate Division for the First Judicial Department.
The court described the circumstances of the initial sanction, imposed for neglect of a matter for an extended period of time:
In setting the sanction, we took into consideration respondent's 52 years of practice, his representation of needy clients, his military service and his prior disciplinary record which consisted of one prior Admonition. However, we also found that "it is evident that [respondent] neglected the matter entrusted to him over a very lengthy period of time, and was less than candid and cooperative when the investigation was ongoing. A mere censure or admonition would serve to ignore the significance of respondent's acts - - which was the neglect of a matter entrusted to him by a client who had placed her faith in him" (citation omitted)
The Committee has submitted clear evidence that respondent, in just over three months after the effective date of his suspension, appeared on behalf of three clients on at least two separate occasions before a criminal court judge and a JHO. Moreover, it is uncontroverted that he failed to file an affidavit of compliance following his suspension and has held himself out as an attorney in good standing.
"Engaging in the practice of law while under an order of suspension is [a misdemeanor](Judiciary Law § 486) and warrants immediate disbarment' without further proceedings." In view of his default in filing an affidavit of compliance, and his failure to contest clear evidence of his violation of the order of suspension, respondent is subject to disbarment without further proceedings (citations omitted)
The Maryland Court of Appeals held that an attorney who was indefinitely suspended engaged in unauthorized practice by providing clients with "immigration consulting" services. While such unauthorized practice would ordinarily result in disbarment, the court continued the attorney on indefinte suspension "in light of [her] failing health and intent to return to her homeland..."
The court found that repetition of the misconduct was unliekly under the circumstances. (Mike Frisch)
The New York State Commission on Judicial Conduct has removed from office a justice of the Macomb Town Court. The justice had presided over a number of matters involving his girlfriend's relatives without disclosing the relationship, engaged in ex parte contacts and improper political activity by serving as a local party caucus chair.
The justice lived with the girlfriend and "grew up with members of her family, socialized with her relatives and attended some family gatherings."
In one matter, the complaining witness was his girlfriend's daughter. In another, the complainant was her mother.
The justice handled a criminal case in which the defendant was her nephew. He discussed that case with several relatives at a family picnic. The relatives complained that he had been too easy on the nephew. Later, two relatives contacted him "and asked [him] to send [the nephew] to jail." He did. The judge dismissed a case against a different nephew.
The commission found removal appropriate:
By presiding over numerous cases involving his girlfriend's relatives, respondent showed an insensitivity to his ethical obligations, even after the conduct was brought to his attention. The fact that the misconduct continued even after the respondent was on notice of the potential impropriety is a significant exacerbating factor. Compounding the misconduct, respondent took action in four cases after entertaining ex parte communications from his girlfriend and/or her relatives, ignoring statutorily mandated procedures and rendered dispositions in several instances that conveyed the appearence of favoritism. Such misconduct undermines public confidence in the integrity and impartiality of the judiciary.
A concurring opinion would find the political activity protected by the First Amendment. (Mike Frisch)
Monday, October 24, 2011
The South Carolina Supreme Court has imposed a public reprimand with conditions for the following misconduct:
In July 2007, respondent was arrested following an altercation with police officers at a bar. In July 2011, respondent pled guilty to resisting arrest and was sentenced to pay a fine and complete community service. Respondent paid the fine and is in the process of completing his community service.
Respondent acknowledges the incident in July 2007 was a result of his use and abuse of alcohol. With the assistance of Lawyers Helping Lawyers, respondent has been in treatment for substance abuse since the time of his arrest in July 2007. The treatment has included in-patient and out-patient rehabilitation, active participation in Alcoholics Anonymous, peer monitoring, and random testing for alcohol use.
Among the conditions is a requirement to continue to work with the Bar's recovery program. (Mike Frisch)
The Florida Supreme Court has reinstated an attorney who took a disability suspension in 2005 while on disciplinary probation.
Justice Canady, joined by two colleagues, dissented:
The Florida Bar has correctly sought to prevent the reinstatement of this lawyer, who has demonstrated contempt for the law. It does damage to the credibility of The Florida Bar to reinstate a lawyer who so recently has flouted the federal income tax law and has otherwise shown a disregard for the requirements of the law.
The petitioner had not filed his 2007 and 2008 taxes until 2010. (Mike Frisch)
The Connecticut Appellate Court has held that a trial court improperly declined to consider the merits of a sovereign immunity defense by the executive director of the New York Lawyers' Fund for Client Protection.
The pro se plaintiff sued in Connecticut Superior Court, claiming that the fund "mishandled its monetary award to [him] arising from the malfeasance of one or more of [defendant's] former attorney's and that the award was not sufficient given the amount of damages sustained by the plaintiff."
The court held that a factual inquiry into the jurisdictional question was necessary. (Mike Frisch)
Saturday, October 22, 2011
An attorney who had entered into an organic tomato growing business with a longtime client has been reprimanded by a Committee on Professional Conduct panel of the Arkansas Supreme Court.
When the organic crop failed, the attorney entered into a scheme to buy non-organic tomatos and falsely label and sell them to customers as organic. The committee found 103 willful violations.
The client has undergone a sex change and is now employed with the IRS as a revenue agent. The panel's opinion refers to the client as "Mr." of "Ms." depending on the time.
The Arkansas Times has this report. (Mike Frisch)
An attorney who agreed to undertake a wrongful termination case against the Commerce Bank was disbarred by the Kansas Supreme Court. The attorney had first met the client in Sharp's 63rd Street Grill in Kansas City , Missouri.
The attorney was not admitted in Missouri, where the case needed to be filed. He used the retainer for his own purposes and never performed the services for which he had been retained. He also had his license suspended three times for non-compliance with registration and CLE obligations. (Mike Frisch)
Friday, October 21, 2011
The Louisiana Supreme Court has suspended an attorney based on a recent guilty plea in federal court.
Nola.com reports on the situation:
Less than a week before he was scheduled to go to trial in federal court, Sean Alfortish pleaded guilty in federal court Wednesday to conspiring to rig the elections of the Louisiana Horsemen's Benevolent and Protective Association, then helping himself to funds controlled by the agency. Alfortish admitted to one count of conspiracy to commit mail fraud, wire fraud, health care fraud and identification document fraud. Alfortish admitted he created a scheme to get re-elected as the head of the nonprofit in 2008 after his first term as president was marred by charges of financial mismanagement.
Thanks to a raft of falsified ballots, Alfortish won re-election and a slate of his hand-picked candidates were elected to the board, replacing some of those who had questioned Alfortish's leadership. When the election results were challenged, Alfortish "presided over a hearing ... knowing that he had participated and directed others to mail falsified ballots," said a summary of the case signed by Alfortish.
Alfortish also admitted using the association's medical benefits trust fund for personal expenses, doubling the trust's expenditures during his first term as president, from 2005 to 2008. He also admitted settling an employee's sexual harassment grievance for $25,000, then reimbursing himself with the same amount and calling it "back pay" for work that other employees did.
The horsemen's association takes a 6 percent cut of the purses at Louisiana's four racetracks, a percentage that tops $5 million a year. With that money, the association acts as the bookkeeper at tracks, pays out purses after races and provides services to horse owners and trainers, including medical insurance and workers' compensation insurance.
Alfortish now faces up to five years in prison and a fine of up to $250,000 or twice any monetary gains for him or losses he caused for others. He is the last defendant remaining, after the recent plea of Mona Hebert Romero, 53, the group's former executive director. Romero admitted to conspiring to commit mail fraud, wire fraud and fraud in connection with identification documents, court records show.
The suspension is imposed pending consideration of final discipline. (Mike Frisch)
A prosecutor's closing argument on the mathematical possibility of an erroneous eyewitness identification resulted in the reversal of a robbery conviction by the Massachusetts Supreme Judicial Court.
The court evaluated the argument:
The gist of the prosecutor's argument to the jury was that there was a one in forty-nine chance that the victim would have identified as his assailants two persons who knew each other well and therefore a ninety-eight per cent probability that the victim had accurately identified the defendant as one of the assailants, which constituted proof beyond a reasonable doubt. The apparent simplicity of the mathematics belies the complexity of the conclusion regarding the probability of an accurate identification, and conceals the assumptions implicit in the conclusion.
It is true that, if the victim were shown two arrays of six photographs and given a seventh choice of "none of the above," and if the victim closed his eyes and randomly selected one of the seven options in each array, there was a one in forty-nine chance that he would select any combination of two. But if the identification were truly random, it would have no evidentiary consequence. The victim's eyewitness identification has potential evidentiary consequence only to the extent that it is not random, but reflects his recognition of two persons who had robbed him approximately ninety minutes before the identification procedure. For this reason alone, the prosecutor's probability analysis is false and misleading. And without the implicit assumption of random selection, the probability analysis, at a minimum, becomes far more complex.
There are two other fundamental problems with the probability analysis. First, the victim testified that he saw the assailant in the hooded sweatshirt "a lot more," and picked him from the array "[a]lmost right away." Having identified Pacheco from the first array, the probability that the victim would randomly select the photograph of a person Pacheco knew well from the second array depended on how many people in the second array Pacheco knew well. But there was no evidence whether Pacheco knew the other persons depicted in the array, even though the prosecutor obtained an order of immunity and called Pacheco to testify. Nor was there any evidence as to the source of the photographs that comprised the array, apart from Officer Kimball's testimony that he put the victim's physical descriptions of the assailants into "our computer database" and "look[ed] up" people who had been arrested. If the computer database only contained photographs in the possession of the Fall River police department, and if the photographs were selected to reflect persons similar in age to Pacheco, it would not be surprising if Pacheco knew others whose photographs were in the second array apart from the defendant. Therefore, implicit in the prosecutor's argument was the factual representation that the defendant was the only person in the second array whom Pacheco knew, a fact not in evidence.
The court had serious concerns about a wrongful conviction:
Our conclusion is strengthened by the evidence of the defendant's innocence: Pacheco's testimony that Dias, not the defendant, committed the robbery with him; Dias's testimony that he committed the robbery with Pacheco, and Bennett's testimony that the defendant was baby-sitting her children on the evening of the robbery. While the jury apparently did not credit this evidence, it cannot be ignored in evaluating whether there was a substantial risk of a miscarriage of justice.
The defense had not objected to the argument.
The link timed out. The case is Commonwealth v. Ferreira. (Mike Frisch)