July 9, 2011
A criminal conviction for two counts of rape and a count of misdemeanor theft was reversed by the Kansas Supreme Court as a result of misconduct on the part of the prosecutor. The court employed a two-step analysis of the misconduct and its consequences in determining that reversal was appropriate.
The prosecutor made reference during voir dire in at trial to the Stockholm Syndrome and other cases and later argued facts not in evidence:
More regrettably, the prosecutor's overall comments implied he was an authority on the Stockholm Syndrome and was capable of diagnosing an individual as suffering from this purported condition. He clearly was neither. Ironically, the [Patty]Hearst and Hornbeck cases the prosecutor discussed with the panel were two of those the journal authors studied before concluding: "No validated diagnostic criteria for 'Stockholm syndrome' have been described; existing literature is of limited research value and does little to support 'Stockholm syndrome' as a psychiatric diagnosis."
The prosecutor also made a comment in closing argument that the victim would remember the crime every time she took a shower. An objection was sustained and admonition given to the jury. The court found the remark improper and prejudicial.
The court reversed the Court of Appeals.
It is, I think, somewhat unusual for a claim of misconduct based principally on behavior during voir dire to result in a new trial. (Mike Frisch)
July 8, 2011
Family Dispute Leads To Suspension
A Nebraska attorney who was disciplined for the third time as a result of misconduct relating to her mother's guardianship and conservatorship has been suspended for two years by the Nebraska Supreme Court. The court did not adopt the referee's recommendation of disbarment.
The attorney has "disagreed with her siblings about virtually everything relating to [the mother's situation]." Her brother was appointed as conservator. Her disputes with the siblings led to conduct that resulted in an agreed private reprimand. As a result of further misconduct, she was suspended for three months followed by a year's probation.
Here, the misconduct related to an action filed in Minnesota, where the mother resides, as well as her conduct before a Nebraska judge that was prejudicial to the administration of justice. The court found some mitigation:
[The attorney's] confrontation with the court did not involve obscenity, and to her credit, [she] requested on multiple occasions that the court grant a recess, even suggesting that such recess would enable everyone to “cool down.” And [she] argues that she was under a great deal of stress at the time of the hearing, claiming emotional, health, and financial problems. We also observe that [her] misconduct has also occurred solely in the context of emotionally charged and highly personal matters, which does not excuse her conduct, but does suggest that such misconduct is less likely to occur in the representation of other clients.
Nonetheless, the persistent misconduct after disciplinary sanctions drew a significant suspension. (Mike Frisch)
Guardianship Allegations Result In Interim Suspension
An attorney who has failed to respond to disciplinary allegations has been suspended pending further proceedings by the New York Appellate Division for the First Judicial Department. There are charges involving failure to return a fee as ordered by arbitration and misconduct as a court-appointed guardian:
The [Deaprtmental Disciplinary] Committee's motion is based upon two complaints filed against respondent alleging, first, that she failed to return monies owed to a client, including an admitted owed debt which led to an arbitration award in the client's favor, and second, that she mishandled a guardianship by failing to render annual accountings, leaving unexplained the whereabouts of certain guardianship assets, and by failing to explain why her ward's apartment was in a dilapidated, rodent-infested condition when she had claimed an expenditure of more than $50,000 for the apartment's repair and renovation.
There aren't too many things an attorney can do that are worse than the second allegation. (Mike Frisch)
ABC Does Not Spell Escrow
From the web page of the Ohio Supreme Court :
The Supreme Court of Ohio today suspended the law license of [a] Cincinnati attorney...for one year, with six months of that term stayed on conditions.
In a 7-0 per curiam opinion, the Court affirmed findings by the Board of Commissioners on Grievances and Discipline that [the attorney] violated state attorney discipline rules when he failed to maintain client funds in a separate, interest-bearing account, failed to maintain adequate records of client funds in his possession, comingled [sic] client funds with his own, and failed to notify clients that he did not carry malpractice insurance. The Court, however, differed from the board’s recommended sanction of staying the entire 12-month suspension.
The Court acknowledged [his] “extensive work with the poor,” but referred to his “banking irregularities” as one example of his “deceptive course of conduct that spanned more than five years.”
“The National City Bank account that respondent used is registered to ‘ABC Company,’ a non-profit entity that he had formed. The checks that he issued from that account, however, were deceptive, because they did not identify ABC Company as the owner of the account. Instead, they bore respondent’s name followed by ‘Attorney at Law,’ and ‘IOLTA,’ giving the false impression that the checks were drawn on his client trust account.”
It was on this basis that the Court went beyond the board’s recommended sanction and imposed a one-year suspension with only six months stayed.
The attorney had admitted that he had used the ABC account to avoid IRS seizure for unpaid tax obligations. His good works did not negate the deceit:
We acknowledge respondent’s extensive work with the poor,
including his full-time volunteer work with the public defender’s office after he
graduated from law school, the investment of his inherited wealth in the
rehabilitation of buildings and social service agencies in the inner-city
neighborhood of Over-the-Rhine, and his dedication to the poor and
disadvantaged people of that area. These good works, however, do not excuse
respondent’s complete disregard of the Rules of Professional Conduct requiring
attorneys to maintain client funds separate from their own and to maintain
detailed records of all funds received on behalf of a client. Nor do they
compensate for his deceptive course of conduct that spanned more than five years.
The court's opinion is linked here. (Mike Frisch)
July 7, 2011
Former Prosecutor Suspended
A former assistant district attorney was suspended for one year and until further court order by the New York Appellate Division for the Second Judicial Department. The misconduct involved the presentation of evidence to a grand jury:
The respondent was employed as an Assistant District Attorney with the Office of the District Attorney for Kings County. On November 5, 2009, she was presenting evidence to a Kings County Grand Jury in relation to a defendant who had been arrested on October 18, 2009, for driving while intoxicated. As part of the presentation, she moved into evidence a New York City Police Department form known as the Chemical Test Analysis (hereinafter the Form). The Form is an official document that reports, inter alia, the defendant's blood alcohol content at the time the breathalyser test is performed. The police officer who administered the test is required to certify on the Form that its contents are true, accurate, and complete. After moving the Form into evidence, the respondent realized that it was incomplete, in that the space where the number reflecting the defendant's blood alcohol content should have been, was blank. Nonetheless, the respondent told the Grand Jury that the form reflected a blood alcohol content of .08%, a fact she knew from other evidence previously introduced before the Grand Jury...
...the respondent subpoenaed the police officer who had prepared the Form. On that date, knowing that her supervisor was out of the office, the respondent entered and searched that office for the Form. The respondent found the Form in her supervisor's briefcase and removed it. She then directed the police officer to fill in the blank to reflect the defendant's blood alcohol content, and returned the altered Form to her supervisor's briefcase without her supervisor's knowledge.
As to sanction:
In mitigation, the respondent asks the Court to take into consideration the fact that she was a young lawyer who had been practicing law for less than three years, that she panicked in a high-pressure situation and doubted herself, and that the conduct was isolated and aberrational. Further, she maintains that she has been punished enough as she was terminated from her position as an Assistant District Attorney, which she considered to be an ideal job. She is deeply remorseful and ashamed of her misconduct. Numerous character letters were submitted on the respondent's behalf, all of which attested to her reputation for honesty and integrity. The respondent's present employer, who hired her after full disclosure was made to him of the grand jury incident, indicated in a letter that the respondent "consistently has expressed remorse . . . and displayed a high standard of ethical and moral character during her employment with me at my firm."
Notwithstanding the respondent's candor, youth, remorse, and lack of a prior disciplinary history, we conclude that the circumstances of this case warrant the respondent's suspension from the practice of law for a period of one year.
it is difficult to understand the context of the misconduct from the court's opinion. It should come as no surprize that a significant sanction would result from false statements and altered evidence to a grand jury. Nonetheless, the question of why this happened in a DUI case is not addressed beyond what is quoted above. (Mike Frisch)
Mitigation Does Not Prevent Suspension
An attorney who had converted client funds was suspended for three years by the New York Appellate Division for the Second Judicial Department, notwithstanding proffered mitigation:
In mitigation, the respondent testified that, in or around 2000, he was arrested. Although ultimately exonerated, the stress and anxiety caused by the arrest drove him to seek psychiatric help. He was diagnosed with depression. In 2001, he also began experiencing marital difficulties. From November 2005 until April 2007, the respondent underwent a series of surgeries to address a host of different medical problems (rheumatoid arthritis, torn quadriceps tendon, cardiac problems, and aneurysm). The respondent claims that these repeated surgeries and the continued use of prescription opiates created a drug dependence and severe depression. He voluntarily sought treatment at both in-patient and out-patient programs, to address his addiction to pain medications and other mental health issues. One of several expert witnesses called by the respondent at the hearing before the Special Referee, Dr. Julie Low, a forensic psychiatrist, opined that during the period the respondent underwent multiple surgeries and was on opiates he was "greatly impaired" and in "crisis mode." She also testified that the respondent's depression, anxiety, and substance abuse are all presently in remission.
On the issue of the respondent's mental impairment, the Special Referee concluded that the "respondent has established that his physical and emotional distress may have contributed to some of the misconduct committed, but not that such misconduct [was] the direct result of his dual diagnosis of substance abuse and severe depression." Specifically with respect to charges one and two, the Special Referee noted that the subject funds were "taken long before the series of debilitating surgeries which resulted in a severe worsening of his condition."
Based on the credible evidence, we reject the respondent's contention that he was impaired throughout the period from 2000 through 2008, such that he did not possess the requisite intent to commit the subject misconduct.
Notwithstanding the respondent's remorse, his reputation as a competent bankruptcy attorney who cared about his clients, the lack of a prior disciplinary history, the lack of complaints from clients, and the efforts he made to overcome his serious health issues, we find that he committed serious professional misconduct. The respondent converted client funds for personal use and, to date, two clients have still not been made whole.
Assault Alford Plea Draws Suspension
The Oklahoma Supreme Court rejected a proposed public reprimand in favor of a 30 day suspension in at matter involving an attorney who took an Alford plea to misdemeanor assault charges. The coourt noted that the conduct showed extremely poor judgment, even though not related to the practice of law.
The court set out the facts:
[The attorney] was initially charged with one felony count of assault with a dangerous weapon for allegedly hitting a man with his car. His criminal charges were reduced to a misdemeanor and he entered an Alford plea of guilty to assault and battery on or about April 21, 2010. [He] received a suspended sentence of ninety days.
In December of 2004, [he] discovered that his wife, now ex-wife, had stolen more than two hundred thousand dollars from his clients' trust account. While he and his ex-wife were separated, [he] discovered that she was involved with another man, Jerry Adams (Adams). [The attorney] testified that he made contact with Adams via a social networking site regarding Adams' relationship with the former Mrs. Hayes. Adams confirmed that he and [the attorney's] ex-wife were in an ongoing relationship. [The attorney] claimed that initially correspondence between him and Adams was cordial; however, things began to deteriorate when he asked Adams to pay to have [his] car removed from impound. [He] made this request because he claims that Adams offered to pay back the money that Hayes' ex-wife had stolen. Over the course of several months, relations between [the attorney], Adams, and [his] ex-wife became extremely turbulent. From March 2008 through April 2008, several Petitions for Victim Protection Orders were filed against [the attorney] by his ex-wife, his ex-wife's mother, and Adams. The emails and text messages between [the attorney] and Adams grew more inappropriate, vile, and abusive. The general harassment by all parties involved continued over the course of several months. On or about April 24, 2008, [the attorney] and Adams had a heated discussion regarding the divorce proceedings between [him] and his ex-wife. As a result of this argument, [the attorney] went to Adams' job to antagonize him. Specifically, [he] placed on Adams' windshield a posterboard size copy of an explicit text message that Adams allegedly sent to [him] on a prior occasion. After placing the posterboard on Adams' car, [he] called Adams at work and reported his actions. Adams immediately went to the parking lot to check on his car. [The attorney], now back in his vehicle, was heading towards the exit. The record reveals that Adams was injured as he approached his vehicle. The parties concede that an argument ensued between [the attorney] and Adams, but the parties dispute the circumstances surrounding Adams' injury. Adams claimed that [the attorney] hit him with his car and called the police. [He] denied this allegation. [He] was arrested and charged with felony assault with a dangerous weapon. (Mike Frisch)
In December of 2004, [he] discovered that his wife, now ex-wife, had stolen more than two hundred thousand dollars from his clients' trust account. While he and his ex-wife were separated, [he] discovered that she was involved with another man, Jerry Adams (Adams). [The attorney] testified that he made contact with Adams via a social networking site regarding Adams' relationship with the former Mrs. Hayes. Adams confirmed that he and [the attorney's] ex-wife were in an ongoing relationship. [The attorney] claimed that initially correspondence between him and Adams was cordial; however, things began to deteriorate when he asked Adams to pay to have [his] car removed from impound. [He] made this request because he claims that Adams offered to pay back the money that Hayes' ex-wife had stolen.
Over the course of several months, relations between [the attorney], Adams, and [his] ex-wife became extremely turbulent. From March 2008 through April 2008, several Petitions for Victim Protection Orders were filed against [the attorney] by his ex-wife, his ex-wife's mother, and Adams. The emails and text messages between [the attorney] and Adams grew more inappropriate, vile, and abusive. The general harassment by all parties involved continued over the course of several months.
On or about April 24, 2008, [the attorney] and Adams had a heated discussion regarding the divorce proceedings between [him] and his ex-wife. As a result of this argument, [the attorney] went to Adams' job to antagonize him. Specifically, [he] placed on Adams' windshield a posterboard size copy of an explicit text message that Adams allegedly sent to [him] on a prior occasion. After placing the posterboard on Adams' car, [he] called Adams at work and reported his actions. Adams immediately went to the parking lot to check on his car. [The attorney], now back in his vehicle, was heading towards the exit. The record reveals that Adams was injured as he approached his vehicle. The parties concede that an argument ensued between [the attorney] and Adams, but the parties dispute the circumstances surrounding Adams' injury. Adams claimed that [the attorney] hit him with his car and called the police. [He] denied this allegation. [He] was arrested and charged with felony assault with a dangerous weapon.
Yes And No
The attorney who was denied reinstatement had been disbarred on consent in 1982. The misconduct involved his criminal conviction for mail fraud and conspiracy to commit mail fraud. He was convicted of involvement (which he continues to deny) in a series of arsons. He has been employed as a paralegal in his spouse's law firm. His testimony at the reinstatement hearing was deemed incredible.
The reinstated attorney was suspended for two years for practicing while on administrative suspension in Pennsylvania. He had maintained a New Jersey license and was reprimanded in New Jersey as reciprocal discipline. (Mike Frisch)
"[T]he Money Is There" But The Attorney Is Suspended
The New York Appellate Division for the First Judicial Department has imposed an interim suspension in a matter in which the attorney was obligated to hold funds escrowed for a real estate transaction:
In January 2010, the [Departmental Disciplinary] Committee opened an investigation into respondent's professional conduct after receiving a complaint from another attorney regarding a real estate deal between that attorney's present client, Herrato Real Estate LLC, and respondent's client, North Village Center, Inc. The parties entered into a contract of sale for the purchase of certain premises located in Rockville Centre, New York. Herrato, as purchaser, wrote a check for the contract downpayment in the amount of $156,000 dated January 18, 2008, which respondent deposited into his escrow account. When the premises was not delivered on time, nor construction completed, litigation ensued. Herrato retained present counsel who complained to the Committee that respondent, among other things, failed to operate in good faith when he demanded prompt payment of Herrato's downpayment and return of the escrowed funds. Respondent has neither returned the money, nor paid the money into court. In fact, respondent has not raised an objection concerning the return of the downpayment.
On July 9, 2010, respondent appeared before the Committee for a deposition wherein he addressed the fact that he had not maintained the $156,000 downpayment in his escrow account intact. During that deposition, respondent stated "I have the money. Not all of it is in my escrow account, but I have the money." When counsel for the Committee asked why the full amount was not in his escrow account, respondent stated: "Well, I move some things back and forth in covering some things, but the money is there. I will have it . . . when they tell me the thing's been resolved and who I have to pay."
Thereafter, the Committee served a subpoena on Citibank requesting copies of respondent's escrow account records...
The Committee tried to reconstruct the account with the records provided by the bank. Then:
On January 14, 2011, respondent appeared for a second deposition. At that time, he admitted, under oath, that he wrote checks to himself when he knew that the balance in his escrow account was below the amount required to be held on behalf of Herrato. He further admitted that at the time, he knew he was using funds belonging to Herrato and that he did not have permission from Herrato to make those withdrawals. Since some of these withdrawals were made years earlier, respondent stated he could not remember what the money was used for, although he presumed his withdrawals were used for personal or business expenses.
During this second deposition, the Committee questioned respondent about his system for maintaining his escrow account records, particularly since he was unable to identify the purpose of checks he had written to himself. Although respondent testified that he did retain bank statements and some deposit slips, he conceded that sometime after May 2008 he stopped keeping a ledger, as required under DR 9-102(D)/RPC 1.15(d). Finally, when asked what was going through his mind when the balance in his escrow account kept decreasing, respondent testified: "I think it was a spiral I couldn't get control over. In light of the fact that I had the expectation of this money, other money arriving imminently as the cavalry over the hills to save the day, and when it didn't come in, I was still faced with this dilemma."
The court found sufficient evidence of misconduct to warrant suspension pending resolution of the disciplinary charges. (Mike Frisch)
July 6, 2011
An attorney convicted of his fourth drunk driving offense (a felony) was suspended for at least six months by the Missouri Supreme Court. The court concluded that a stayed suspension was not appropriate. The court:
The damage wrought in our state every year by drunken drivers is well-documented and need not be repeated here, save to recognize that its tragic impact reaches into nearly every community. This Court must insist that attorneys be keenly aware of the parameters the law places on their conduct, and the attorney's] repeated disregard for those boundaries simply cannot be excused.
Invasion Of Privilege By Prosecutor Requires Reversal Of Conviction
A decision from the Connecticut Supreme Court:
The central issue in this case is whether a prosecutor’s intrusion into communications between a defendant and his attorney that are subject to the attorney-client privilege requires the dismissal of the criminal charges against the defendant. The defendant, Patrick J. Lenarz, was charged in three informations, each of which charged the defendant with risk of injury to a child in violation of General Statutes § 53- 21 (a) (1) and (2), and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1)(A). Before trial, the prosecutor came into possession of and read certain written materials belonging to the defendant that were subject to the attorney-client privilege. Upon learning this fact, the defendant filed a motion to dismiss the charges against him, which the trial court denied. After a trial, the jury returned a verdict of guilty on one count of risk of injury to a child in violation of § 53-21 (a) (1). The jury found the defendant not guilty of all of the remaining charges, and the trial court rendered judgments in accordance with the verdict. The defendant then appealed...
The court majority held that prejudice is presumed when the prosecutor intrudes on confidential communications "regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on [the question of prejudice]."
There is a lengthy dissent that would not reverse the conviction for the prosecutor's good-faith conduct in reading a single e-mail about defense trial strategy. The dissent takes the majority to task for its Sixth Amendment jurisprudence as well as "improper" fact-finding in reaching a question not raised by the defendant.
In sum, the dissent accuses the majority of breaking new ground as the first court ever to reverse a criminal conviction for an inadvertant invasion of privileged material by a prosecutor.
The dissent notes that the defendant's computer was lawfully seized in November 2004. It took until July 2005 for the lab to complete its work. There were five e-mails that were arguably privileged out of a mountain of material. One--to the defendant's spouse--dealt with trial strategy. All of the documents were provided to defense counsel. (Mike Frisch)
LLC Must Have A Lawyer
The Washington Court of Appeals, Division One, has held as follows:
A limited liability company (LLC) must be represented by a
lawyer in order to litigate. This is simply an application of the general rule
prohibiting laypersons from representing other persons or entities in court
proceedings. Because a layperson does not have a lawyer's professional skills
or ethical responsibilities, such representation imposes undue burdens on
opposing parties and the courts. These considerations are just as important
when the LLC has only one owner. We affirm an order requiring the appellant
LLC to obtain legal representation in order to pursue its claim of unpaid rent.
Civil Law Dictionary Translates Common Law to Civil Law and Back
Part of the Quid Pro publishing project, the Louisiana Civil Law Dictionary defines every word or phrase contained in the index to the Louisiana Civil Code, plus others--and provides current citations to statutes, code, and cases. Just out in paperback (from here; or Amazon now), plus hardback and ebook formats linked below. Though most obviously for Louisiana students and lawyers, common law practitioners in other states may find uses for a dictionary that translates civil law terminology into familiar concepts; and the civil law dominates the world's legal systems. The dictionary's dedicated website is here.
The ebook formats feature linked notes and hundreds of linked cross-references for association of related topics. They are at Amazon for Kindle; at B&N for Nook; and on Apple iBooks (previewed here). In addition to the paperbacks linked above, there is a new hardback edition that libararies and resellers can order through the usual catalogs, and also is now sold really cheap at Barnes & Noble at essentially the paperback price. Hope this is useful.
Minnesota Relaxes Admission For Non-Accredited Grads
The Minnesota StarTribune has this report on bar admission changes in Minnesota:
Last week the Minnesota Supreme Court made it easier for prospective Minnesota lawyers to attend the law school of their choice yet still get a shot at practicing here at home.
A June 27 ruling ended a long-standing state requirement that anyone seeking to become a licensed attorney in Minnesota by taking the state's bar exam had to graduate from one of 200 American Bar Association-accredited law schools. Under the new ruling, a graduate of a non-accredited school may now take the bar exam as long as the person has been admitted to practice in another state.
Minnesota has four ABA-accredited law schools: University of Minnesota, Hamline University, St. Thomas University and William Mitchell College of Law. But Oak Brook College of Law in California, a Christian correspondence law school attended by Valarie Wallin of Pequot Lakes and Micah Stanley of Trimont, is one of 42 nationwide that is not accredited. While living in Minnesota, both took online courses at Oak Brook, graduated and passed the California bar exam. But because of the rule, they couldn't sit for the Minnesota exam.
The amendments are linked here. (Mike Frisch)
Nail In the Coffin
The New York Appellate Division for the Second Judicial Department has disbarred an attorney convicted of practicing law while under disciplinary suspension:
By opinion and order of this Court dated March 22, 2004, the respondent was suspended from the practice of law for a period of two years, commencing April 26, 2004. On May 18, 2004, and June 22, 2004, in Nassau County, the respondent engaged in settlement conferences and/or negotiations on behalf of a client with a representative of an insurance carrier while holding himself out as an attorney.
On September 29, 2006, in the District Court, Nassau County, before the Honorable Christopher G. Quinn, the respondent pleaded guilty to the crime of practice of law by an attorney who has been disbarred, suspended, or convicted of a felony, in violation of Judiciary Law § 486. The respondent admitted that, between May 18, 2004, and June 22, 2004, knowing that he was suspended from the practice of law, he held himself out to be an attorney and engaged in settlement conferences and/or negotiations on behalf of a client with a representative of an insurance carrier. He was sentenced, upon his plea of guilty, to a conditional discharge and a fine of $1,000.
Courts tend to frown on this form of misbehavior. (Mike Frisch)
Ohio Proposes New Rules--CLE For Bar Counsel
From the Ohio Supreme Court web page:
The Supreme Court of Ohio has announced a series of proposed rule amendments designed to enhance Ohio’s disciplinary system for lawyers and judges. Written comments on the proposed amendments will be accepted until Aug. 2.
Earlier this year, the Court considered the proposed amendments that were contained in a December 2009 report from an 18-member Task Force to Review the Ohio Disciplinary System appointed by the late Chief Justice Thomas J. Moyer and published for comment in February 2010. The Court also considered written comments received during the public comment period.
After discussing the report and written comments, the Court made several revisions to the proposed amendments that were published for comment in 2010.
Revisions made to the proposed amendments since the first round of public comment include:
Deleting from the proposed amendments language that would have eliminated 24 certified grievance committees.
- The addition of a requirement that bar counsel for each certified grievance committee must take a minimum of three hours of continuing education each year, specifically related to their disciplinary responsibilities. This training would be offered or approved by the Office of Disciplinary Counsel. Bar counsel could be decertified for failing to obtain the required training.
- The new rules contain more definite procedures for decertifying grievance committees that fail to adhere to minimum requirements.
The Court’s review of the disciplinary system follows a five-year process to review, rewrite and adopt new ethical rules governing the conduct of Ohio lawyers (2007) and judges (2009). This is the first comprehensive review of the disciplinary process undertaken by the Court in at least the last 20 years. The last series of major amendments occurred in the late 1990s based on recommendations from a committee appointed by the Ohio State Bar Association.
Comments should be submitted in writing to:
Richard A. Dove, Secretary, Board of Commissioners on Grievances & Discipline
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
July 5, 2011
Not Ready For Prime Time
A relatively recent amendment to District of Columbia Court of Appeals Rule XI (governing bar discipline) allows for a streamlined reinstatement process where Bar Counsel does not object to the attorney's petition.
The change was adopted in response to the length of time that even uncontested petitions took to work their way through the system. The amended rule grants some discretion to Bar Counsel to at least advocate in favor of summary reinstatement after the Court of Appeals has ordered suspension with fitness or disbarment:
Rule XI, section16 (e) Uncontested petitions for reinstatement. A petition for reinstatement by a disbarred attorney or a suspended attorney who is required to prove fitness to practice as a condition of reinstatement, which is uncontested by Bar Counsel following a suitable investigation, may be considered by the Court on the available record and submissions of the parties. In every uncontested matter, Bar Counsel shall submit to the Court a report stating why Bar Counsel is satisfied that the attorney meets the criteria for reinstatement. The Court may grant the petition, deny it, or request a recommendation by the Board concerning reinstatement.
The court recently sent such a case back to the Board on Professional Responsibility for consideration rather than follow Bar Counsel's recommendation to reinstate an attorney without any hearing. The board has entered an order sending the matter to a hearing committee.
The attorney had consented to disbarment in 2003 in the wake of a criminal conviction for attempted malicious wounding. The facts are set forth in an opinion of the Virginia Court of Appeals affirming the conviction (over a dissent that would have granted a motion to suppress statements).
The attorney was in a romantic relationship with the victim. When she cut it off, he cut the brake lines to her car. When she drove off the next morning, the brakes failed. She was able to swerve and stop the car before it slid into an intersection, avoiding serious injury.
Further, according to the board's order, he was convicted of larceny in 2009.
I think the board is correct here. A hearing should precede any consideration of reinstatement.
The board has set an unusually speedy schedule. The hearing committee must issue a report in 60 days and the board will file its recommendation 60 days thereafter.
The board's order can be accessed by going to this link. The case is In re Kevin Sabo. (Mike Frisch)
The Indiana Supreme Court approved a 180 day suspension without automatic reinstatement under the following circumstances:
Respondent was appointed to represent a client as his public defender in a criminal matter. Not aware of this, the client's father asked Respondent to represent the client. Respondent accepted $1,000 from the client's father and continued to represent the client as a public defender. Respondent did not return the $1,000 to the client's father...
The parties cite the following additional facts in aggravation: (1) Respondent's misconduct demonstrates a dishonest and selfish motive; (2) the client was vulnerable and reliant on Respondent as a result of the client's incarceration; and (3) Respondent's admission to the bar in 1979, experience as a public defender since 1980, and prior discipline should have given him insight into the wrongfulness of his misconduct.
The parties cite the following facts in mitigation: The parties cite the following facts in mitigation: (1) Respondent was cooperative with the Commission; and (2) Respondent has made restitution by paying $1,000 to the client's father.
The attorney has a record of prior discipline. (Mike Frisch)
Upheaval In California
The July 2011 California Bar Journal reported that Chief Trial Counsel James Towery has resigned after less than a year in the position:
Under Towery’s leadership, the office also initiated a number of high profile investigations advancing public protection. “I am honored to have served as the leader of trial counsel’s employees and I thank them all for their dedication to the cause of public protection, Towery added.
The State Bar faces “daunting challenges” in its future, including a significantly increased workload created by lawyer misconduct related to the mortgage crisis, Towery said. He said he would return to the San Jose legal community, “where I have been actively involved for over 30 years.”
Since 1986, when the chief trial counsel job was defined by statute, six people, including Towery, have held the job. Plans to identify a successor are underway.
Kafkaesq has this commentary on the Towery resignation.
Mr. Towery's appointment last year had been hailed as a positive step in California bar regulation.
Towery had been selected after his predecessor Scott Drexel had been denied a second four-year term in 2009. Commentary on the Drexel situation may be found here and here. Kafkaesq in the above link refers to the "madness" of the Drexel administration.
Crime & Federalism thought that the problem was that Mr. Drexel did his job too well:
The State Bar of California has sent out a memo: If you want to be the chief lawyer responsible for policing lawyer misconduct, do not actually police misconduct. This is a wink-nod position. Scott Drexel got the memo.
The most essential element of every disciplinary regime is a competent and independent bar prosecutor. Whatever the reasons for the Drexel departure, the Towery resignation does not bode well for the future of the regulation of the legal profession in California.
We will be watching this situation. Those who are open to the idea that the status quo of self-regulation needs close scrutiny should monitor the California story as it unfolds.
If there are knowledgable observers of the situation who wish to post comments, we welcome your views. (Mike Frisch)
Tax Crime Suspension
The New York Appellate Division for the Second Judicial Department has imposed a three year suspension, effective on the date of a previously-imposed interim suspension, of an attorney convicted a serious crime.
The court described the considerations relevant to sanction:
Notwithstanding the respondent's remorse, his unblemished record with a reputation for honesty and trustworthiness in the community, his cooperation with the Grievance Committee's investigation, and the fact that his conduct did not prejudice any clients or invade any escrow funds, the respondent committed serious professional misconduct inasmuch as he claimed business expenses on his personal tax returns, which were improper, and thereafter created false documentation in an attempt to conceal his improprieties.