Friday, April 22, 2011

Three new publications to digital: Holmes' "Path" and 2 by Woodrow Wilson, PhD

Posted by Alan Childress

Recently out in ebooks and some in print, as part of the Quid Pro project:

Oliver Wendell Holmes, Jr., "The Path of the Law," with my new Foreword and bio summary, at Kindle WWilson_ConstUSFinalsmforN store in Amazon (& Kindle UK; the new Kindle Germany), B&N for Nook, and on Apple iTunes. US versions are $.99. Also in paperback here as of Monday.

Wilson's Congressional Government, his 1885 dissertation in fact, in Kindle, Nook, and on iTunes. Also new paperback at QP page or at Amazon. Has my brief introduction but, better yet, the lengthy 1955 analysis by Walter Lippmann.

Wilson's 1908 about-face on ruling by legislature just before he ran for governor and then for President, Constitutional Government in the United States, with new Foreword by Michele Veade. Kindle or Nook. In print and Apple by summer.

Plus issue 3 (Mar. 2011) of Stanford Law Review, in Kindle, Nook, Sony, and on iTunes. Also in law journals is John Marshall's Review of Intellectual Property Law: its new symposium issue on IP law and biotech and health issues, in Kindle, Nook, or on iTunes.

All 38 Kindle books produced since April 17, 2010, are here, most linking new paperbacks in turn. Enjoy!

April 22, 2011 in Books, Childress | Permalink | Comments (0) | TrackBack (0)


The Kansas Supreme Court found that an attorney had violated his ethical responsibilities in facilitating the unauthorized practice of his law partner (admitted in Missouri but not Kansas) in representing a plaintiff in a medical malpractice matter. The attorney violated various duties to the client, failed  to properly supervise the partner and in assisted in unauthorized practice.

The partner had behaved badly by allowing the case to be dismissed, falsely advising the client it had settled, and providing her with her "share" of the proceeds. The truth was discovered when a second attorney was consulted by the client.

The court rejected the suggestion that the conduct was negligent and merited a public censure. The attorney was suspended for one year but may apply for reinstatement after six months. (Mike Frisch)

April 22, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Censure For Discovery Violation

The Wyoming Supreme Court has imposed a public censure of an attorney for misconduct in an answer provided in discovery.

The attorney was retained to defend a civil case. The client did not want to disclose that he had insurance for the claim. He advised the attorney that he would not put in a claim. A discovery response was filed that falsely denied the existence of insurance.

The attorney negotiated on the premise that the client had limited means to satisfy any judgment. The client decided to make an insurance claim. The discovery answer was not supplemented.

The attorney claimed that insurance need not be disclosed if a claim is not made. The rules provide, and court held, otherwise and imposed the censure with costs. (Mike Frisch)

April 22, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Mug Shot

The Nebraska Supreme Court has enjoined the unauthorized practice of law on the part of a state resident doing business in Omaha under the name Parental Rights.

The subject of the injunction was providing advice for a fee in a series of domestic relations matters. One of his "clients" went to the Creighton University Law School and met with the clinic director. The client identified the accused through police mug shots. An investigation by the Commission on Unauthorized Practice of Law led to charges before a hearing master.

This is an excellent case for teaching principles of unauthorized practice. (Mike Frisch)

April 22, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Absolute Privilege For Internet Republication

The Maryland Court of Appeals held today that lawyers who publish to the press copies of their state complaint, make oral statements of like kind to the press, and republish pleadings on the internet are protected by an absolute privilege where (1) the reasonably contemplated proceeding satisfies the two-part test of a 1981 Maryland case; (2) the lawyers statements were made, "at least in part, in increase awareness of a proposed class action suit..." and (3) the "statements are related reasonably and rationally to the subject matter of the contemplated proceeding."

The plaintiff in this defamation litigation was not a named defendant  but had been identified as involved in a mortgage scam. (Mike Frisch)

April 22, 2011 in Hot Topics, Law & Society | Permalink | Comments (0) | TrackBack (0)

Thursday, April 21, 2011

The Matrix

The Mississippi Supreme Court reversed the grant of summary judgment to two attorneys sued for legal malpractice. The attorneys had represented the 16 former clients who were plaintiffs in mass-tort litigation. The suit claims that the attorneys breached fiduciary obligations by "prematurely settling their cases in order to maximize attorney fees."

The plaintiffs had produced as a witness an attorney who had been associated with the defendants and then been fired. The witness would testify that he "had settled numerous similar cases for much more than the [plaintiffs] received. The lawyer also produced a settlement document he had prepared, in part, by using another lawyer's matrix as a go-by." The trial court excluded the evidence, held that the plaintiffs "were required to, but could not, prove they would have won their cases at trial" and granted summary judgment.

The court here ruled that the attorney's evidence was admissible (although the matrix itself is hearsay) and that the plaintiffs are not required to prove they could have won the case to establish the breach of fiduciary duty. Unlike a legal malpractice case based on negligence, plaintiffs pursuing a fiduciary breach theory need not prove they would have prevailed in the underlying case. (Mike Frisch)

April 21, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Let My People Go

The Hawaii Supreme Court imposed an interim suspension of an attorney. KPAU Hilo reports:

An attorney suspended by the Hawaii Supreme Court this week has had ethical and financial complaints dating more than five years.

KITV reported Wednesday investigative files show complaints against Honolulu attorney Frank M. Fernandez include misappropriation and misuse of client funds, coercion and mixing his law practice with Exodus Bail Bonds, which investigators say is owned by his wife.

He was suspended from practicing law on Monday.

The disciplinary counsel says a judge ordered Fernandez to keep his bail and legal businesses separate in 2006, but recent complaints say he kept bail money as payment for legal work.

He has not responded to requests for comment.

(Mike Frisch)

April 21, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Review Circumscribed, Attorney Disbarred

An attorney who was found to have violated six disciplinary rules in a matter involving an effort to obtain real property by means of fraud and deception was disbarred by the Oregon Supreme Court.

Although the attorney had noted an appeal from the trial panel's findings, he had failed to file a brief:

...although our review of disciplinary matters is de novo under ORS 9.536(2), in the absence of briefing or argument challenging the order on review, we are free to circumscribe the extent of our review. 349 Or at 110-11. Thus, when review has been granted, but neither party files a brief, "we ordinarily will affirm the order of the trial panel inasmuch as no party has raised an argument challenging the trial panel order." In re Oh, 350 Or 204, 207, ___ P3d ___ (2011).

In this case, although the accused sought review of the trial panel's order, he did not submit a brief challenging any aspect of that order. Consistently with Hartfield and Oh, we conclude that the trial panel's order should be affirmed.

The accused is disbarred, effective 60 days from the date of this decision.

(Mike Frisch)

April 21, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Class Action Attorney Gets Three Year Suspension

As the number of lawyers increases to an unprecedented level, the responsibility of ensuring that all lawyers conduct themselves within the ethical bounds required by the Rules Regulating the Florida Bar continues to be a top priority for this court.

So says the Florida Supreme Court in rejecting a referee's proposed public reprimand in a case that "involves one of the more experienced members of the Bar..." and suspending the attorney for three years. The attorney was admitted in 1973 and is a named partner in a Miami law firm.

The attorney "committed serious violations" in representing class action plaintiffs in a case against the City of Miami. Seven named plaintiffs settled for $7 million, with the clients getting $84,000 and the law firm $2 million of the proceeds. The referee found the settlement was detrimental to the undetermined/putative class and was "prejudicial , illogical, and unexplainable."

The facts are set forth in the court's 43 page opinion. The underlying case was set for a trial on damages to the entire class that the attorney represented. Although the class had not yet been certified by the trial court, the judge had repeatedly stated that certification was certain. The class was an "easily identified group because it was composed of people who had paid the City's property assessment, so it would not be difficult to determine the amounts of refunds that would be owed."

The night before the trial, the attorney met with defense counsel. The City's attorney offered $5 to settle; the attorney replied, "there is no frigging way that [the judge] is going to approve $5 million."

The next morning, the attorney met with defense counsel at a cafe. Also present was the mayor of Miami. Defense counsel asked, "[I]s there anything we can do to avoid going to court today?"

There was.

The case settled for $7 million to only the benefit of the seven named plaintiffs. The attorney and his firm got the gold mine; the named plaintiffs got paid; the class members got the shaft. 

The attorney claimed he had no attorney-client relationship with putative class members. The court found he had a clear fiduciary obligation to the class that was violated for his personal gain. The attorney claimed the conduct was negligent and on advice of counsel. The court found it was knowing misconduct and rejected the "advice of counsel" defense in bar proceedings.

The court found that the attorney had abused the class action process to collect a significant fee by dishonest means. Although the attorney claimed the $2 million was a reasonable fee, the court noted he had no contingent fee agreement that would entitle him to the cut he took. Further, he had actively sought a nondisclosure agreement with the City and his clients. The agreement would have concealed the settlement from the putative class members and could possibly have allowed the statute of limitations on their claims to expire.

His reputation and pro bono works could not save him from a lengthy suspension for this episode.

An assistant city attorney also was charged. He was not found in violation of any Rule. (Mike Frisch)

April 21, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Cost Of Costs

An attorney who had been publicly reprimanded and ordered to pay sanctions and costs from a frivolous defamation action was suspended by the Minnesota Supreme Court for not paying the sanctions and costs. the suspension is for at least 90 days with reinstatement by court order.

The attorney also now must pay $900 in costs for this matter. (Mike Frisch)

April 21, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Irreparable Harm

The Ohio Supreme Court declined to impose an indefinite suspension of an attorney who had neglected client matters and failed to participate in the ensuing bar proceedings. The court concluded that the sanction should be as follows:

Here, respondent has practiced law for more than 20 years without a disciplinary violation, and although serious, his misconduct has not caused irreparable harm to any clients. Therefore, we agree that the appropriate sanction for his misconduct is a two-year suspension, with the last six months stayed on the conditions that he commit no further misconduct and that he make restitution to the clients harmed by his conduct.

Accordingly, [the attorney] is suspended from the practice of law in Ohio for two years. The last six months of his suspension will be stayed on the conditions that he commit no further acts of misconduct and that he make restitution of $1,108 to the clients in count 1, representing the amount of their unpaid medical bills, and refund the $600 in legal fees he received from the client in count 2. If he fails to comply with these conditions, the stay will be lifted, and he will serve the full two-year suspension.

(Mike Frisch)

April 21, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 20, 2011

The Judge from Intercourse Hands Out Condoms

Lancaster Online reports that a judge from Intercourse, Pennsylvania faces charges relating to his handing out acorns stuffed with condoms near the State Capitol:

A district judge from Intercourse was cited for allegedly approaching women near the state Capitol and handing out acorns he had hollowed out and stuffed with condoms.

 Isaac H. Stoltzfus, a district judge for more than 18 years, told Pennsylvania Capitol Police the whole thing was meant as a prank, officials said.

"An individual was handing out acorns to some women who were offended when they discovered the contents in the acorn included a condom," said Edward Myslewicz, a spokesman for the Department of General Services.

The two women, who had been walking in a shady, tree-line area near the Capitol known as the Soldiers Grove, called police.

"Upon receiving this complaint, Capitol Police did go to the Soldiers Grove, where they found the suspect, who admitted doing it as a joke," Myslewicz said.

Myslewicz identified the suspect as Stoltzfus.

The incident happened on Sept. 21.

Police cited Stoltzfus with one count of disorderly conduct, a summary offense.

Stoltzfus was not available for comment.

The web page of the Pennsylvania Court of Judicial Discipline notes that a case has been instituted against the judge. (Mike Frisch)

April 20, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Resignation Not Accepted, License Revoked

The Michigan Attorney Discipline Board has affirmed an order revoking an attorney's license and requiring restitution to clients, rejecting the argument that the attorney's attempt to resign deprived the disciplinary system of jurisdiction

The rules governing disciplinary proceedings in Michigan make it clear that a lawyer facing disciplinary charges cannot avoid discipline - including proceedings to determine restitution - by offering to resign if an investigation or formal proceeding has commenced. With knowledge of the potential consequences, respondent elected not to answer the formal complaint in this case and chose not to appear before the panel to contest the evidence submitted by the Grievance Administrator in support of claims for restitution.

The respondent had appeared for oral argument before the Board. (Mike Frisch)

April 20, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Mutual Contempt

The web page of the Tennessee Board of Professional Responsibility reports a public censure of an attorney for comments about a judge. The judge had held the attorney in contempt based on his conclusion that the attorney had assisted the client in disobeying a court order.

The Tennessee Court of Appeals reversed the contempt, finding the evidence insufficient to support the contempt citation. Howver, in the brief to that court, the attorney referred to the trial court's findings as "lies" and its actions as "calculated" and "illegal." The court found that "[w]hile [the attorney] had the right, indeed the duty to represent her client in [a zealous] manner, and herself in this appeal, her use of the brief as a vehicle to convey her contempt of the trial court is inexcusable."

The censure is for the offending remarks cited by the court. (Mike Frisch)

April 20, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 19, 2011

Hot Argument, Cold Court

In a case involving a plaintiff struck by a truck while in a crosswalk, the Utah Supreme Court held that defense counsel's "McDonald's coffee case" reference in closing argument warranted reversal:

Before we analyze this statement, it may be useful to explain the cultural context of the McDonald’s coffee case, more formally known as Liebeck v. McDonald’s Restaurants, P.T.S., Inc. Few cases have ever achieved as much notoriety among the general public of this country as the McDonald’s coffee case, fueled by its wide-ranging and repeated publicity in national and local news media. It has been mocked in extremely popular entertainment television, including The Tonight Show, The Late Show, and Seinfeld. It has been debated on talk shows, parodied in television commercials, mentioned in congressional debates, and is firmly lodged in the public consciousness. Mark B. Greenlee, Kramer v. Java World: Images, Issues and Idols in the Debate over Tort Reform, 26 CAP. U. L. REV. 701, 702–03 (1997). “What made the headlines and what is most commonly recalled by the general populace about the . . . case is the size of the verdict and the source of the injury—$2.9 million for spilled coffee.” Id. at 718. In U.S. popular culture, the case has come to symbolize greedy plaintiffs and lawyers who file frivolous lawsuits and win hugely excessive sums in a broken legal system.

The defendant admitted liability and the case was tried solely on damages. Defense counsel argued

Ladies and gentlemen, they want a lot of money for this. A lot of money. What’s been written on the board is called a per diem analysis. . . . How many days has it been since the accident? How many days for the rest of his life. And how much per day is that worth? That’s what’s been done here. That’s how we get verdicts like in the McDonald’s case with a cup of coffee.

The court found the argument improper and prejudical

Given the uniquely iconic nature of this case, the passion it has produced in the media, and the general misunderstanding of the totality of its facts and reasoning among the public, we find it hard to imagine a scenario where it would be proper for a party’s counsel to refer to it before a jury. Generally, as here, such a reference would seem to have the sole purpose of recalling the public outrage over isolated elements of the case—thus improperly appealing to a jury’s passions. It is not the jury’s job to make legal determinations, so no legal arguments from the case are relevant. The facts in the McDonald’s coffee case were not in evidence before this jury and were also utterly irrelevant. Indeed, the one attempt counsel made to make her reference seem relevant was a misrepresentation because the high punitive damages award in the McDonald’s coffee case had nothing to do with a per diem analysis. It is certainly unfair to require the other party to clarify all the misconceptions about this irrelevant case in the limited time allotted for closing argument. The great latitude provided in closing arguments regards reasonable inferences about evidence properly before the jury and does not extend to misrepresentations or efforts to appeal to a jury’s passions. Thus the reference to the McDonald’s coffee case in closing argument was improper.

Reversed. We have this one listed under Hot Topics. (Mike Frisch)

April 19, 2011 in Hot Topics | Permalink | Comments (0) | TrackBack (0)

No Substantial Need

A trial court order granting discovery against a plaintiff was reversed by New York Appellate Division for the First Judicial Department:

In this action for, among other things, conversion and intentional infliction of emotional distress, plaintiff alleges that defendant, a former employee of plaintiff's husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff's husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff's husband and his brother.

Supreme Court improvidently exercised its discretion in ordering plaintiff to comply with the outstanding discovery demands. With respect to defendant's demand for access to plaintiff's social networking accounts, no showing has been made that "the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (citations omitted) Because plaintiff admits that she has copies of the photographs contained on the subject CD, defendant has also failed to show that she needs access to plaintiff's hard drive in order to defeat plaintiff's conversion claim. Nor has defendant shown that broad discovery concerning plaintiff's finances, education, immigration status, and educational background is "material and necessary" (CPLR 3101[a]).

With respect to defendant's demand for materials prepared in anticipation of litigation, defendant has failed to show "substantial need" for the materials or that she is "unable without undue hardship to obtain the substantial equivalent of the materials by other means" (citation omitted) Further, defendant is not entitled to privileged communications between plaintiff and her prior counsel (see CPLR 4503[a]).

Discovery of materials concerning plaintiff's family and her husband's business should be obtained through nonparty discovery pursuant to CPLR 3101(a)(4).

Defendant's remaining discovery demands are either overbroad or irrelevant.

(Mike Frisch)

April 19, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Revolving Door Allegations

The Charleston (West Virginia) Gazette reports on a possible bar complaint against a former county prosecutor:

Kanawha County commissioners may file a complaint with the West Virginia State Bar over a former county prosecutor who is now representing a private client in a claim against the county.

On Wednesday, Mike Clifford wrote a letter to Kanawha Sheriff Mike Rutherford saying he would file a claim against the county for damages to the property of Sandra Shaffer. Charleston Police dug up Shaffer's property on Hughart Drive near Sissonville earlier this month looking for evidence in the 2003 Kanawha County sniper shootings, and sheriff's deputies helped provide security for the search.

Clifford was Kanawha County's prosecuting attorney at the time of the shootings. Shaffer gave statements to police at the time, and may be a witness against Shawn Lester, who was a suspect at the time and was arrested last week in connection with the series of three shootings.

The rules of professional conduct for lawyers in West Virginia specify that a lawyer can't represent a private client in a matter he or she was involved in as a county prosecutor or other public officer. County Commissioners Kent Carper and Dave Hardy, both lawyers, believe it is a conflict of interest for Clifford to now represent Shaffer.

"I practiced law 26 years, and I know what the conflict rules are," Hardy said at a regular County Commission meeting Thursday. "I think there's a conflict."

"There's a clear conflict," said Gary Pullen, a lawyer hired by the county's insurance company to represent the county commission in insurance matters.

(Mike Frisch)

April 19, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Other Plans For Mother's Day

The New Jersey Appellate Division reversed a domestic violence restraining order filed by a mother against her son. The court concluded  that the son's thefts of his mother's property did not prove an intent to "seriously annoy" the mother:

The record does not provide evidence that defendant acted with any purpose in stealing from his mother other than to appropriate her property for his own use.

Another point

Under the facts here, the only communication that could arguably support a finding of harassment...occurred when the defendant called his mother a "senile old bitch." As the court found, this was understandably upsetting to the plaintiff. However, we do not measure the effect of the speech upon the victim; we look to the purpose of the actor in making the communication.

The son, aged 56, lived with his mother. (Mike Frisch)

April 19, 2011 in Current Affairs, Law & Society | Permalink | Comments (0) | TrackBack (0)

Removal Of Retained Counsel Subject To Immediate Appeal

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio held today that when a trial court issues a pretrial order removing a criminal defendant’s retained counsel of choice, that action is a final order subject to immediate review by a court of appeals.

The Court’s 7-0 decision, authored by Justice Evelyn Lundberg Stratton, reversed a ruling by the 8th District Court of Appeals.

Dantae Chambliss, James Bennett, and Travis Sanders were indicted on several drug-related offenses.  Each defendant retained his own attorney, pleaded not guilty, and filed a request for discovery. Each defendant filed a motion to compel production of a search warrant affidavit and a motion for discovery.  Each defendant filed at least one motion to continue trial based on denial of access to a requested affidavit, which remained sealed. In addition, each defendant filed a motion to suppress evidence and a motion for a trial separate from the other defendants. After the defendants’ motions for separate trials were denied, they filed motions to continue based on the fact that they had not yet received the search warrant affidavit despite repeated requests.

The defendants subsequently entered guilty pleas pursuant to a proposed plea agreement.  However the trial judge refused to accept the agreement between the state and defense, and the defendants moved to withdraw their pleas.  The trial court vacated the pleas of all three defendants, set trial, and granted a motion to unseal the search warrant affidavit. During a hearing on the day of trial, it became clear that the attorneys had not yet received the search warrant,  and as a result, if required to proceed to trial without the necessary information, claimed they would be ineffective as counsel within the meaning of the Sixth Amendment. The trial court removed all three retained counsel, remanded all three defendants to the custody of the sheriff, ordered all three defendants to retain new counsel in less than two weeks, and set trial for the following month.

On review, the 8th District Court of Appeals vacated the trial court’s order remanding Chambliss, Bennett, and Sanders to jail, affirmed that their bonds remained in effect, and released the defendants.  The court of appeals concluded, however, that the trial judge’s removal of the defendants’ counsel of choice was not a final and appealable order and dismissed their appeal as to that issue.

The defendants sought and were granted Supreme Court review of the 8th District’s holding that the removal of their counsel was not immediately appealable.

Writing for a unanimous Supreme Court in today’s decision, Justice Stratton noted that R.C. 2505.02(B)(4) sets forth a three-part test for determining whether a trial court order is “final” and appealable.  Because the state had conceded that the removal of the defendants’ counsel of choice met the first two prongs of the statutory test, she wrote, the only question remaining was whether a party forced to delay his appeal of an order until after the trial court issued a final judgment in the underlying case “would not be afforded a meaningful or effective remedy.”

Justice Stratton observed that in its opinion the 8th District acknowledged that erroneous removal of a defendant’s counsel of choice would have such a fundamental impact on a trial that any conviction obtained by the state after such an error would be subject to “automatic reversal.” However, despite that recognition, Justice Stratton wrote, “(T)he appellate court still held that this court’s decision in State ex rel. Keenan v. Calabrese (1994) ... warranted a conclusion that the order removing appellants’ retained counsel was not a final, appealable order. We now conclude that it is a final, appealable order.” 

In explaining the Court’s change in position, Justice Stratton wrote: “(S)everal years after this court’s per curiam decision in Keenan, the United States Supreme Court considered the issue [in United States v. Gonzalez-Lopez (2006)] and held that ‘the erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error.”’... This is because ‘[d]ifferent attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument.  And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds” ... or indeed on whether it proceeds at all.’”

“Turning to the case at bar, the trial court ordered that all three retained counsel be removed as counsel and remanded defendants to the custody of the sheriff.  The court of appeals concluded that the order removing counsel was not a final, appealable order, thus potentially forcing the defendants to run the gauntlet of trial twice.”

“A postconviction reversal of the trial court’s judgment would not be automatically effective. A criminal defendant might exhaust his or her resources during the first trial, thereby denying that defendant the counsel of his or her choice. Further, if counsel of choice were later deemed to have been erroneously removed, the subject matter of the first trial, including the strategy employed, witnesses cross-examined, etc., would be stale and likely weakened.  This, in addition to the waste of scarce judicial resources, satisfies the third prong of R.C. 29505.02(B)(4) − rendering apostconviction appeal ineffective or  meaningless − and compels a conclusion that a pretrial ruling disqualifying a criminal defendant’s retained counsel of choice is a final order, subject to immediate appeal.”

Justice Stratton emphasized that today’s ruling is limited to cases in which a criminal defendant’s retained counsel of choice is removed.  “The issue of whether the removal of appointed counsel is a final, appealable order may involve different considerations that have not been briefed in this case. We leave that issue for another day,” she wrote.

“Further, we are examining only the issue of whether the denial of retained counsel of choice is a final, appealable order. The merits of the trial court’s decision in removing retained counsel of choice in this case are not before us. Because we hold that the denial of retained counsel of choice in a criminal proceeding is a final, appealable order, we reverse the judgment of the court of appeals and remand the cause to the court of appeals for further proceedings on the merits of the appeal."

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

April 19, 2011 in Clients, Current Affairs | Permalink | Comments (0) | TrackBack (0)

An Officer And A Gentleman?

The Illinois Administrator has filed a complaint alleging criminal conduct involving attempts to intimidate a U.S. Army General and his spouse. The accused attorney was a civilian employee working under the General and a Major in the Army Reserves. He was later promoted to Lieutenant Colonel.

The complaint alleges he was motivated by anger that the General had not promoted him and questioned his work ethic. The conduct allegedly took place after the theft of artwork and other personal items from the General's home.


At all times alleged in this complaint, there was in effect a criminal statute, Uniform Code of Military Justice Article 133, which provided "conduct unbecoming of an officer and a gentleman. Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."

On June 6, 2009, Respondent mailed an envelope which was postmarked in Bedford Park, Illinois, and addressed to General Hendrix’s wife, Karen at the Hendrixes’ home in Missouri. The envelope contained a photocopy of a page from the 2003 yearbook of the AWC, which referenced General Hendrix as the recipient of an AWC Writing Award. Respondent handwrote on the page, "Ask your little bitch if he is missing something."

Respondent intended for Karen and General Hendrix to feel intimidated by his June 6, 2009 mailing. Respondent knew that his June 6, 2009 mailing would reasonably cause Karen and Mark Hendrix to feel intimidated.

 Both Karen and General Hendrix felt intimidated and threatened by the anonymous letter, which used an epithet to refer to General Hendrix and referenced an item the theft that had occurred two years earlier. The reference to the theft placed the Hendrixes in fear that the person who had sent the June 6, 2009 letter had also committed the theft, and that that person now knew where they lived and could break into their house.

On August 14, 2009, Respondent mailed an envelope which was postmarked in St. Louis, Missouri, and was addressed to General Hendrix. The envelope contained a photocopy of a group photo of the members of General Hendrix’s army strategic leader development basic course. Respondent circled and crossed out General Hendrix’s face in the photo and handwrote the words "your [sic] next" connected by a line to the photo. Respondent intended the words "your [sic] next" written next to the photo of General Hendrix, coupled with the June 6, 2009 letter referencing an item missing from General Hendrix’s office, to insinuate that General Hendrix, like the award, would disappear.

Respondent intended for Karen and General Hendrix to feel intimidated by Respondent’s act of crossing out Mark Hendrix face in the photo and writing "your [sic] next." Respondent knew that his August 14, 2009 mailing would reasonably cause Karen and General Hendrix to fell intimidated.

Both Karen and General Hendrix felt intimidated and threatened by the anonymous letter, photo and the words "your [sic] next" in the August 14, 2009, mailing. Furthermore, since the Hendrixes lived in Missouri, the Hendrixes were alarmed by the fact that the August 14, 2009, envelope had been postmarked in Missouri.

As a result of Respondent’s conduct as described...above, Respondent resigned from the Army Reserves in lieu of being criminally prosecuted by a general court martial, and he received an other than honorable discharge.

(Mike Frisch)

April 19, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)