Friday, August 5, 2011

Former Priest Fit To Practice Law

A former priest who had been denied admission to practice by the Board of Governors of the Alaska Bar Association sought review by the Alaska Supreme Court.

The court disagreed with their conclusions and found that the applicant had satisfied the character and fitness requirements for admission. The court returned the application to the association for further proceedings consistent with their conclusions.

The issues related to the applicant's interactions with juveniles while in the priesthood:

[The applicant] had inappropriate contact with some of the boys on these trips. [He] asserts that the contact was horseplay and a form of discipline, but agrees that it was inappropriate in retrospect. Four affidavits from boys on the trips describe [his] conduct. It involved tickling the boys, having them do calisthenics in their underwear, spanking them, and receiving foot and neck massages from them. The affidavits are not strictly condemnatory though. The affidavit discussing tickling hedged its assessment: “Father...never touched my genital area, and did not engage in other sexual activity with me. He also never told me not to mention the tickling to others, and he might not have realized that there was something wrong about it.” And six other affidavits or letters from participants indicated that no improper activity was observed on the trips, nor was discomfort felt.

The court majority found that the association had mischaracterized the record:

Notably, although denying [the applicant's] application based on candor, the decision does not identify a single lie [he] told, nor any contradiction in his answers. It instead appears to rely on [his] demeanor in testimony that the Board did not hear. This is inexplicable, particularly because the Board declined to question [him] directly when it had the opportunity.

The applicant had attended law school after leaving the priesthood and was admitted in Iowa after a full exploration of the matters at issue here.

A dissent would remand rather than admit:

Given the posture of this matter, where there were procedural flaws in the Board’s hearing and where its findings of fact were not adequately supported by the record, the proper remedy is not simply to admit [him] — any more than it is to deny him admission. [He] must be allowed the opportunity to meet his burden of proving that he satisfies the requirements set forth in the Bar Rules through a meaningful hearing before the Board. Remand is appropriate in this case because of the seriousness of the hearing master’s adverse]credibility finding and because [the applicant] is entitled to have the Board consider his application in an impartial hearing.

(Mike Frisch)

August 5, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Violation Found In E-Mail to Opposing Counsel

A Louisiana Hearing Committee found no misconduct in a matter that involved an e-mail sent from one (the accused) attorney to another. The  substantive evidence consisted solely of the e-mail and the testimony of the accused. The e-mail is set forth below:

I am in receipt of your letter dated February 25, 2008. In
your letter you assert that (i) we have actively interfered with and
have attempted to induce a breach of contract between your firm
and Constellation Entertainment, and (ii) we have issued false and
defamatory statements against you.
As you are probably aware, there is no cause of action in
Louisiana for intentional (or negligent) interference with a contract
by a third party.
Further, we have not issued any false or defamatory
statements against you. If you have some evidence to the contrary,
please notify me of the pertinent details and I will immediately
issue a clarification to the appropriate party.
As advisor to Constellation Enteltaimnent, I have reviewed
the contract that you have referred to. I have also reviewed the
rules of professional conduct governing business transactions
entered into between and among Louisiana lawyers and their
clients. It appears to me that you have violated those rules both (i)
by the terms of the contract itself, and (ii) by your subsequent
dealings with your client. If necessary, I will present evidence of
such violations to the Louisiana Attorney Disciplinary Board and in such a case I would be compelled to seek additional evidence of
misconduct from your prior clients as well.
However, I do not want to have an acrimonious relationship
with you. So, perhaps it would be best if we put all of this behind
us. If Constellation Entertainment wants us to purchase the tax
credits, then we shall. If they don't want us to, then you may Either
way, though, I don't think that it would be appropriate for either
you or me to attempt to force the transaction to occur. Don't you

The committee found that the attorney's explanation was not rebutted and that the failure to call the recipient as a witness was fatal to the bar's charges. Further, the recipient had not reported the matter to disciplinary counsel.  (Mike Frisch)

August 5, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Let's (Carefully) Chat

The North Carolina State Bar has an opinion setting guidelines for an law firm's use of a live chat room:

Although the use of this type of technology is permissible, the practice is not without its risks, and a law firm utilizing this service must exercise certain precautions. The law firm must ensure that visitors who elect to participate in a live chat session are not misled to believe that they are conversing with a lawyer if such is not the case. While the use of the term “operator” seems appropriate for a nonlawyer, a designation such as “staff member,” or something similar, would require an affirmative disclaimer that a nonlawyer staff member is not an attorney. The law firm must ensure that the nonlawyer agent does not give any legal advice.

 The law firm should be wary of creating an “inadvertent” lawyer-client relationship. In addition, the law firm should exercise care in obtaining information from potential clients and be mindful of the potential consequences/duties resulting from the electronic communications. Rule 1.18 provides that a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client and that, even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client may generally not use or reveal information learned in the consultation. Furthermore, Rule 1.18(c) prohibits a lawyer from representing a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter. Therefore, acquiring information from a prospective client via the live chat service could create a conflict of interest with a current client that would require withdrawal.

The rules governing solicitation do not apply to communications not initiated by the attorney. (Mike Frisch)

August 5, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, August 4, 2011

No, Not That Ken Starr

Attorney Kenneth Starr has been disbarred by the New York Appellate Division for the First Judicial Department as a consequence of a federal fraud conviction:

At his plea allocution, respondent admitted that, from 2009 to 2010, while acting as a financial advisor, he knowingly used a portion of money entrusted to him by his clients for his
own purposes, diverting client funds by first wiring the funds to an attorney trust account, so as to conceal the true source of the funds. As an example, respondent admitted that, on or about
January 5, 2010, he transferred $1 million from a client's account to the attorney trust account and later used that money for his own purposes. As another example, respondent admitted
encouraging a client to make a $500,000 investment in a company without disclosing that the investment was a loan. Respondent further admitted that, when he transferred the money to another attorney's trust account, he knew that money was not his and that it belonged to his clients and that he did so for his own purposes.

Details here and here from

Starr, whose celebrity clients once included Uma Thurman and Sylvester Stallon, admitted using his clients' funds to prop up his posh lifestyle and to buy his ex-stripper wife diamond earrings and bracelets.

(Mike Frisch)

August 4, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


The Nevada Supreme Court has held that Steelers quarterback Ben Roethlisberger failed to establish a basis for a change of venue from one Nevada county to another:

The record contains no evidence demonstrating that the convenience of the witnesses compels a change in venue or that holding the trial in Douglas County rather than in Washoe County would promote the interests of justice.  The difference in travel times to the courts in either county are, for many witnesses, relatively minimal.  And while Roethlisberger may receive a speedier trial in Douglas County, it is not an abuse of discretion for the district court to conclude that the ends of justice are adequately served by keeping venue in Washoe County and would not be furthered by a change of venue to Douglas County.  We conclude that the district court did not abuse its discretion in denying Roethlisberger’s motion to transfer venue...

            Accordingly, because Roethlisberger lacked standing to demand that venue be changed under NRS 13.040 and has shown no abuse of discretion with regard to the district court’s NRS 13.050(2) determination, we affirm the district court’s order refusing to change venue.

The litigation involves tort claims against nine defendants. (Mike Frisch)

August 4, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

No Disqualification When Defendants Sue Prosecutors

The New York Appellate Division for the Third Judicial Department has held that a trial judge exceeded his authority by disqualifying a District Attorney and his entire office in a criminal matter. The defendants were charged with selling steroids over the Internet.

The disqualification was premised on a potential conflict of interest:

Soon after a fifth indictment was returned, the federal court determined that petitioner and his staff were not entitled to immunity or summary judgment on certain claims in the civil action. When, in the context of the criminal case, the defendants then challenged the fifth indictment, respondent [the trial judge] dismissed it with leave to re-present, but found petitioner and his staff to have a conflict of interest due to their exposure to liability in the civil action. Accordingly, respondent disqualified petitioner and his staff from further prosecution of the case and appointed a Special District Attorney to pursue representation.

The court concluded that the disqualification order was subject to review. Noting that the criminal defendants had sued the prosecutor for malicious prosecution, the court concludes:

...public policy further supports our finding that respondent erred and exceeded his authority in disqualifying petitioner. Acquiescence to a policy by which a criminal defendant, through the simple expedient of commencing a civil lawsuit, may effect the removal of a duly elected District Attorney and his or her staff would establish a dangerous precedent that is wholly unwarranted under the circumstances presented here.

A dissent disagrees on the public policy conclusion, noting unique factual circumstances and the denial of summary judgment on the civil claims. (Mike Frisch)

August 4, 2011 | Permalink | Comments (0) | TrackBack (0)

The One Percent Solution

The District of Columbia Court of Appeals amended a comment to its Rule of Professional Conduct  6.1 on pro bono activities:

[5] In determining their responsibilities under this rule, lawyers admitted to practice in the District of Columbia should be guided by the Resolutions on Pro Bono Services passed by the Judicial Conferences of the District of Columbia and the D.C. Circuit as amended from time to time. Those resolutions as adopted in 2009 and 2010, respectively, call on members of the D.C. Bar, at a minimum, each year to (1) accept one court appointment, (2) provide 50 hours of pro bono legal service, or (3) when personal representation is not feasible, contribute the lesser of $750 or 1 percent of earned income to a legal assistance organization that services the community’s economically disadvantaged, including pro bono referral and appointment offices sponsored by the Bar and the courts.

(Mike Frisch)

August 4, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Use of "Esquire" Does Not Preclude Reinstatement

The Pennsylvania Supreme Court has granted petitions for reinstatement in two matters.

One involved an attorney who had been suspended for five years in 2004. The misconduct was a mail fraud conviction. The Disciplinary Board had recommended reinstatement, finding that the post-suspension use of "esquire" and the inclusion of her juris doctor degree on her resume did not involve the practice of law.

The other matter involved an attorney who had consented to disbarment in 1999. He had misappropriated funds due to his law firm and been convicted of a series of criminal offenses. The Disciplinary Board noted that the misconduct was a result of substance abuse and that he had been in recovery since his disbarment.

Justice McCaffery dissented in both cases. (Mike Frisch)

August 4, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Lesser Discipline

An attorney who had been suspended for 18 months in Virginia has received identical reciprocal discipline in the District of Columbia.

The court noted that one of the violations found in Virginia involved providing financial assistance to a client and that the D.C. version of that rule is less restrictive. However, the sanction was within the range for similar misconduct even if that violation was not considered. Indeed, the court expressed the view that the sanction might be greater in an original case. (Mike Frisch)

August 4, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 3, 2011

Atticus But Not Finch

The North Carolina State Bar has instituted ethics charges against an attorney.

One of the two counts relates to his involvement as one of three partners of an entity called Atticus III, LLC.

The Bar alleges that the attorney concealed his use of a company credit card from his two partners and ran up charges for expenses unrelated to the business. The allegedly unauthorized charges were for a wide array of purchases, including gas, shoes, a variety of entertainments that included a spa, the monthly fees of an online dating service and National Tattoo Supply.

The charges amount to over $15,000. (Mike Frisch)

August 3, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Asking To Disbar Bar Prosecutor Is An Aggravating Factor

The Minnesota Supreme Court has imposed an indefinite suspension of no less than one year in a matter involving ethics violations in a number of matters over a three-year period.

Unlike many bar matters involving multiple violations in several matters, the problem was not neglect. To the contrary, the sins are those of commission not omission.

The attorney instituted frivolous claims and violated court rules in matters that included his own divorce. In one matter, he engaged in harassment of opposing counsel in a matter by repeatedly questioning her intelligence. In another, he improperly withdrew. He made numerous misrepresentations in the bar investigation and failed to cooperate.

The court rejected the attorney's various attacks on the findings of the referee.

The court lists a number of aggravating factors and finds scant mitigation. He "repeatedly requested that the assistant director assigned to the case be removed, fired, suspended or disbarred." The court did not look favorably on those suggestions.

Reinstatement is subject to a number of conditions. (Mike Frisch)

August 3, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Honors

WEWSnewsnet5 reports on the sentencing of an Ohio common pleas court judge convicted of lying to the FBI:

McCafferty was convicted last March after a jury found her guilty of 10 counts of lying to federal agents about whether she was ever approached by former Cuyahoga County Auditor Frank Russo or former Commissioner Jimmy Dimora about cases in her courtroom.

The federal judge sentenced McCafferty to 14 months in prison, which will be served at the federal prison in Alderson, West Virginia. Nicknamed "Camp Cupcake," It's the same female prison where Martha Stewart served time for lying to investigators about a stock sale.

She had the possibility of facing up to five years in prison on each count, but federal prosecutors are asking that McCafferty be given even a stiffer sentence that could result in additional years in prison.

In a motion filed in federal court, prosecutors argued that McCafferty's conduct created a significant disruption of the FBI's investigation as well as her status as a "well-educated attorney and judge heightens the need for an increased sentence."

Federal prosecutors will argue that McCafferty misrepresented her credentials claiming that she graduated "summa cum laude," when in fact she did not and that she lied to the media about whether her offices were searched by federal agents.

Prosecutors also claimed that McCafferty incorrectly reported the number of cases on her docket to the Ohio Supreme Court to make it appear that she had a lower number of active cases than she actually had.

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

August 3, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 2, 2011

Another Nail In The Coffin

Another day and more proof that consent discipline will never work in the District of Columbia.

The case is In re Lorenzo Fitzgerald. According to the Board on Professional Responsibility, the misconduct involves "prolonged failure to deliver the record of a criminal trial to successor counsel and dishonesty and non-compliance during Bar Counsel's disciplinary investigation."

A hearing committee recommended acceptance of an agreed sanction of a six-month suspension with all but 60 days stayed, and one year of probation. Unfortunately (and as has been the case too often), the Court of Appeals sought the views of the BPR. As always, the BPR wants the court to reject the disposition:

This case illustrates the importance to negotiated discipline of (1) a record that clearly and completely sets forth all of the relevant facts and circumstances, and (2) an analysis that explains the relative seriousness of the misconduct in context and how the particular recommended sanction maintains the integrity of the legal profession, protects the public and the courts and deters other attorneys from similar misconduct. Here, the Petition was deficient in both respects, and the errors carried through to the Hearing Committee’s report, prompting questions from the Court. The result has been an unnecessary burden on the disciplinary system and needless delay.

 The BPR report makes a couple of points. One is a concern that insufficient attention was given to a mitigating factor--the impact of the shooting of the attorney's wife in their home on the misconduct. The other is the "failure in this case to explain why the misconduct occured..."

As to the first point, note that the attorney was represented by counsel devoted solely to his interests. His counsel was fully capable to present any mitigation. As to the second, the hearing committee conducted a proceeding and issued a 21-page report. That's enough explanation of the why for me.

If the BPR wants to better understand the source of  "unnecessary burden and needless delay," I am willing to invest in a mirror for their use.

The BPR also expresses concern about the need for "transparency" in the D.C. disciplinary system.

After over 27 years of working in and observing the D.C. bar disciplinary process, let me assure the reader that the BPR couldn't care less about transparency. If it did, I've got about 20 ideas on how to bring  greater transparency to the process, starting with public access to dismissal letters. They could also (1) publish an annual report of their activities (as do most bar disciplinary systems, for example, New Jersey and  Maryland) and (2) explain how they spend over $7 million a year of bar dues.

The hearing committee and board reports can be found at this link. (Mike Frisch)

August 2, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Exposure An Educational Tool? reports that the Akron Bar Association is seeking an order of suspension of an attorney. The attorney was arrested on charges of public indecency and has been declared incompetent to stand trial:

After his January arrest by Norton police, [the attorney] admitted exposing himself to two teens who were seeking a counseling referral for their underage drinking arrests.

[The attorney], founder of the Cafe 41:11 coffee shop for troubled teens, told investigators his actions were meant to be an educational tool and he had done it before in mentoring sessions.

Municipal Judge David Fish ordered a psychological evaluation, along with a 30-day treatment program at a mental health facility.

Last week, the misdemeanor charges were dismissed when Fish revealed in a court hearing that [the attorney's] competence had not yet been restored through treatment.

[The attorney] was immediately placed on house arrest, with orders not to leave his home except for court-approved appointments with his attorney or mental health workers.

Fish also ordered [him] to refrain from practicing law and to refrain from contact or communications with anyone outside his home.

(Mike Frisch)

August 2, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Pervasive Carelessness"

From the most recent online edition of the California Bar Journal comes a story that ends with disbarment:

[The attorney] pleaded no contest to misdemeanor conspiracy to obstruct justice, a crime involving moral turpitude. Because he also has a record of three prior disciplines, the State Bar Court’s review panel upheld a lower court judge’s recommendation for disbarment.

The conviction stemmed from a capping case, in which the Los Angeles district attorney alleged that [the attorney] paid Faina Bash, the owner/operator of MGB Legal Service (MGB), $5,000 per month to market his practice to the Russian community in Los Angeles and to provide him with a secretary and a translator. He represented a client whose child was killed in a hit-and-run accident, and after the case settled, [he] issued a check for $10,000 to MGB from his trust account. He testified that he owed MGB that amount for two months of services and denied that MGB had referred the case to him. 

The district attorney charged [the attorney] and Bash with three felonies, including allegations that that the $10,000 payment from the hit-and-run settlement was the overt act needed for a conspiracy charge. [The attorney] pleaded no contest to obstruction of justice, claiming that he entered his plea only to save money, not because he believed his dealings with Bash were illegal. He also claimed that he did not have to report either the felony charges or the misdemeanor conviction to the bar; his attorney, he said, advised him he was required only to report a felony conviction.

In addition to the conviction, the review panel took note of [his] extensive discipline record, beginning with a 1997 suspension. For more than a decade, he operated a lax office management system that caused case dismissals, settlement disbursement delays, client communication failures and trust account violations. [He] harmed at least nine clients from 1988 to 2000, the panel said.

In recommending his disbarment, the review panel said [the attorney] failed to meet his professional obligations for more than two decades in four disciplinary cases. “In his first three cases, he performed incompetently and in the present case, although it occurred between his first and second discipline, he was convicted of a crime of moral turpitude that he never reported,” wrote Judge Catherine Purcell. “Overall, [he] has demonstrated ‘pervasive carelessness’ toward his practice and compliance with ethical rules since 1988.”

(Mike Frisch)

August 2, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


If there is a case captioned West Virginia Mandatory Continuing Legal Education v. [insert your name], it is likely not an award for outstanding performance.

West Virginia issued a show cause to 113 attorneys for non-compliance with the educational requirements. The 65 who responded by demonstrating compliance had the order discharged. The rest (a total of 68 attorneys) will be suspended on August 8 unless compliance is shown.

The order sets out the obligations:

Pursuant to Chapter VII of the Rules and Regulations of The West Virginia State Bar, all
active members of The West Virginia State Bar were required to complete twenty-four credit hours
of approved continuing legal education, with at least three of those credit hours in the topical areas of legal ethics, office management, substance abuse and/or elimination of bias in the legal
profession, between July 1, 2008 and June 30, 2010. Active members of The West Virginia State
Bar admitted between July 1, 2008 and June 30, 2009 were required to complete twelve approved
credit hours, with at least three of those credit hours in the topical areas of legal ethics, office
management, substance abuse and/or elimination of bias in the legal profession, prior to June 30,
2010. The Commission required all attorneys to report the completion of such requirements on
or before July 31, 2010, by completing a reporting form mailed to all active members of The West
Virginia State Bar by the Commission.

(Mike Frisch)

August 2, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 1, 2011

Bar Fight Led To Bar Discipline, Reinstatement

The South Carolina Supreme Court has ordered the reinstatement of an attorney who had been suspended for the following conduct:

On March 22, 2009, respondent self-reported his arrest for Aggravated Battery to ODC [Office of Disciplinary Counsel].  The arrest occurred as a result of a bar fight between respondent and three other individuals on March 15, 2009, in Savannah, Georgia, during which one of the other individuals  was struck in the head and/or face with a beer bottle.  Respondent represented that alcohol was involved in the incident and independently sought treatment for alcohol abuse and anger management.

(Mike Frisch)

August 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prison Sex Draws Disbarment

From the August 2011California Bar Journal:

The State Bar Court found that [an attorney] committed four acts of misconduct, including acts of moral turpitude and having inappropriate sexual relations with two incarcerated, indigent female clients while acting as their public defender. 

Over the opposition of the State Bar, [the attorney] was admitted to its Alternative Discipline Program in 2005 and completed the program about two years later. Although a hearing judge recommended a one-year stayed suspension and two years of probation, the bar appealed to the Supreme Court, which remanded the matter back to the bar court.

[The attorney] was the contract public defender for San Benito County from July 1, 1993, through February 7, 2001. While representing a convicted felon facing possible life imprisonment, he had sexual relations with his client three times while she was incarcerated in the county jail. Although he said the sexual relations were consensual and questioned the meaning of undue influence, the bar court characterized his arguments as “dismal . . . particularly in light of (his) many years of therapy with” organizations that include a Sexaholics Anonymous Twelve Step program.

During a visit with a second criminal client he represented, [the attorney] hugged her and patted her buttocks without her consent.

The bar court found that in both matters, [he] committed acts of moral turpitude and used undue influence in having sexual relations with incarcerated clients.

In mitigation, [the attorney] practiced law for 20 years without a discipline record and he participated in the Lawyer Assistance Program and the Alternative Discipline Program. However, in recommending [his] disbarment, Judge Lucy Armendariz wrote, “Having improper sexual relations with a client breaches the basic notions of trust and integrity and endangers public confidence in the legal profession, irrespective of its duration . . . . [his] moral deficiency is still profound.”

(Mike Frisch)

August 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

New Ethics Rules Proposed in California

The August 2011 online edition of the California Bar Journal reports on proposed revisions of the ethics rules:

 The State Bar has submitted to the Supreme Court 67 proposed new Rules of Professional Conduct that offer a behavioral roadmap for attorneys and provide guidance in particular areas that have been confusing or controversial.

Because California is the only state whose professional conduct rules are not adapted from the ABA Model Rules, the revisions reflect a reorganization and renumbering to align California rules with the Model Rules. Last comprehensively revised in 1987, the rules mark the culmination of nearly 10 years of work by a special commission and a year of work by the board of governors. 

Due to the volume of background material surrounding the proposed new rules, the bar submitted six particular rules to the court in a format suggested for consideration of the remaining 61 rules, which will be submitted later. The bar also asked that the current 45 rules be repealed.

The new rules will not take effect until they’re approved by the Supreme Court.

(Mike Frisch)

August 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Close Call

The New Jersey Supreme Court has censured a superior court judge for presiding over a matter in which a close friend's credibility was an issue:

The disciplinary proceedings against respondent began with the filing of grievances with the Advisory Committee in July 2008 by Alan P. Rosenfielde, a party to a civil action captioned Kaye v. Rosenfielde, over which respondent presided between February 2005 and October 2006. The litigation was a business dispute involving issues that arose from Rosenfielde's employment with and eventual termination from a business based in Atlantic City. Rosenfielde contended that his termination was due to his recommendation that his employer end its business relationship with an insurance broker named Frank Siracusa, whom Rosenfielde alleged had engaged in improper and questionable business practices. Siracusa was a central witness to Rosenfielde’s counterclaim. Respondent had a longstanding business, social, political, and personal relationship with Siracusa, but informed the parties to the Kaye litigation several times that notwithstanding his relationship with Siracusa, he was not uncomfortable presiding over the case and evaluating Siracusa's credibility if Siracusa were to appear as a witness.

In October 2006, respondent denied a motion by Rosenfielde that he recuse himself from the case because of his relationship with Siracusa, but respondent did recuse himself on his own motion for different reasons, citing his "inappropriate reaction" to Rosenfielde's counsel at a previous hearing and his "significant concerns" regarding how the case had been handled.

The court did not find that the judge testified falsely in a proceeding:

As difficult and exceedingly close a decision as it is to make, on the record before the Court, it cannot be said that it has been clearly and convincingly established that respondent deliberately misled the Senate Judiciary Committee as was charged in Count II of the formal complaint and found in the presentment. Much of the difficulty in the decision is attributable to respondent, who was extremely lax in his preparation for his reappointment hearing and who failed to alert the Senate Committee to the errors in his testimony once he realized them.

(Mike Frisch)


August 1, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)