September 9, 2011
Emotional Judge Suspended in Mississippi
In an interesting judicial discipline matter, the Mississippi Supreme Court suspended a justice court judge for 60 days without pay and public reprimand for misconduct in a case before her.
The judge had refused to sign a warrant in the case and ordered that the defendant's handcuffs and shackles removed. She stated in open court that the defendant was "not a criminal." She also displayed emotion and was tearful in open court about the defendant's plight.
Notably, the judge also engaged in improper ex parte contacts with the defendant's husband and had a prior disciplinary sanction for such misconduct.
A concurring opinion noted that the conduct (other than the ex parte contacts) invovled acts of judicial discretion that do not amount to judicial code violations. (Mike Frisch)
September 8, 2011
Kilpatrick Ethics Cases Winding Down, Last Report Issued
A Michigan Tri-County Hearing Panel has issued its misconduct report in a matter involving a Chief Assistant Corporation Counsel for the City of Detroit. The charges relate to the settlement of litigation involving former Mayor Kwame Kilpatrick.
The panel finds that the attorney failed to fully advise the City Council of information, concealed text messages and engaged in a conflict of interests, and made misreresentations to a tribunal and to the Attorney Grievance Commission.
A hearing on sanctions was scheduled.
The AGC web page shows that related charges against four other attorneys are either long since resolved or in their final stages. No explanation why this one lagged so far behind. (Mike Frisch)
Claude Allen Suspended
The conviction for misdemeanor theft of property involved thefts of a Bose stereo, an RCA stereo and a Kodak printer from Target. He did this through "a scheme of purchase and fraudulent return." He would end up with both the item and his purchase money.
Expert testimony of the forensic psychiatrist was that he "qualifie[d] for a diagnosis of kleptomania..." One might wonder whether this condition qualifies as a mitigating factor. Indeed, one might think that a compulsion to steal is quite a bad trait for a licensed attorney.
Allen, who served as an Assistant to the President of the United States for Domestic Policy, attributed the conduct to the stress of dealing with Hurricane Katrina. The court seems to buy that explanation: "On this record, we agree with the Board [on Professional Responsibility's] determination that unrebutted evidence that respondent's actions were the reflection of extreme stress was an exceptional circumstance that precluded a finding that [he] engaged in intentional dishonesty for personal gain." The court agrees with the board that Bar Counsel failed to prove his dishonest intent.
With all due respect, whatever the stress reflects, I have more than a little difficulty accepting the proposition that one can engage in an elaborate scheme to steal stereo items and a printer and not "engage in intentional dishonesty for personal gain." Maybe the intent is to swing to the soothing sounds of Sinatra. The conduct nonetheless involves intentional dishonesty for personal gain.
Under D.C. disciplinary law, dishonesty for personal gain equals moral turpitude. Moral turpitude means disbarment. This interpretation of a governing federal statute dates back to a case involving another Presidential aide, Charles Colson.
Allen was suspended for 90 days in Pennsylvania and Virginia for the same misconduct.
Prior to these incidents, he had been nominated to the United States Court of Appeals for the Fourth Circuit.
Allen was represented in the case by Beth Stewart of Williams & Connolly. He did not file an exception to the recommended one-year suspension of the Board on Professional Responsibility, which the court followed here. Bar Counsel had sought disbarment.
If you are one who closely watches D.C. bar discipline cases (i.e., me), the sanction analysis is pretty interesting here. The court discusses and largely relies on the John Spiridon case. Spiridon was a law grad who never was able to secure employment as an attorney. He had alcohol problems. He engaged in petty theft as a bus driver going up and down the boardwalk strip at Ocean City, Maryland. He stole from the till and was caught in a sting operation.
Ironic that Spiridon would be the most comparable precedent for a theft case involving a White House aide.
Disclosure: I handled the Spiridon case.
One final thought here. My friend Jake Stein recently mentioned to me that he is thinking about writing a book titled The Law of Common Sense. An elaborate scheme to steal on multiple occasions does not involve dishonesty for personal gain when common sense is ignored and it's a lawyer doing the stealing. (Mike Frisch)
September 7, 2011
From Here To Eternity
The Illinois Review Board found no ethical violations, and has recommended dismissal, of charges of misconduct arising from these rather unusual facts:
Matthew Brennock ("Matthew") met Respondent at a health club in the summer of 2006. They became very good friends and ultimately became intimate. Matthew met Chablis Tipton ("Chablis") on Match.com in November 2006. They also had an intimate sexual relationship which, according to Chablis, continued from December 2006 until September 2007.
Matthew’s Match.com profile falsely stated that he was divorced. In November 2007, Chablis discovered that Matthew was married. Chablis told him that if he did not tell his wife about their relationship, she would. She and Matthew exchanged several phone messages and e-mails. Once she went to Matthew’s home and threatened to contact his wife and children.
On November 7, 2007, Matthew made a report with the Oak Park Police Department, complaining of Chablis’ telephone harassment. According to Matthew, the police officer he spoke to suggested that he get an order of protection against Chablis. After Chablis called his home and hung up numerous times that night, Matthew decided to do so.
Matthew testified that he had not told the Respondent of the nature of his relationship with Chablis, only that he was being harassed and intended to get an order of protection. At this time the relationship between the Respondent and Matthew was no longer intimate. As a friend she offered to represent him, and Matthew agreed.
Respondent accompanied Matthew to court on November 9, 2007 and filled out the necessary paperwork. An ex-parte order of protection was entered, and hearing on an extension of the order was set for November 30, 2007.
When the case was called on November 30th, Respondent approached the bench with Matthew. Chablis appeared pro se. Chablis objected to the extension of the order, explaining that she was not harassing Matthew as she was involved in an intimate relationship with him. Chablis had evidence of their relationship, namely 59 printed pages of e-mails and text messages. These included two marriage proposals from Matthew and his promise to love her for eternity.
Respondent asked the judge for an opportunity to review the documents and the court passed the case to allow her to do so. She and Chablis sat down on a bench outside the courtroom and she began to review the information. Matthew followed them into the hallway and became enraged as Respondent was examining the e-mails and text messages and dismissed Respondent as his lawyer and told her to give Chablis her documents.
Respondent returned to the courtroom and made a motion to withdraw as Matthew’s attorney which the court granted. Because Matthew was upset and Respondent was aware that he had anger issues, she asked the Sheriff for an escort to her car. While she was seated at a table in the courtroom waiting for her escort, Matthew came forward and unsuccessfully attempted to take Chablis’ documents from the table. According to Chablis’ testimony, in doing so, Matthew grabbed Respondent’s shoulder.
When Respondent left the courtroom, she was asked by the Sheriff if she wished to press charges. She decided to file a battery complaint and also to request an order of protection. Matthew was arrested in the courtroom. The judge hearing the motion to extend the order of protection dismissed the case noting that Matthew had been arrested for "assaulting and battering his attorney" and that Matthew was not present to pursue his order of protection.
Later that day, Respondent telephoned Matthew’s wife, Sally Brennock ("Sally"). According to Respondent, the purpose of her call was to inform Sally that Matthew was in jail and that he was going to be served with order of protection papers by a process server. She testified that she intended to arrange for service at a time when Matthew’s children would not be home. In the course of the telephone call, Respondent also told Sally that she and Chablis had had affairs with Matthew.
Sally testified that she already knew about Chablis. She explained how she learned the information. Matthew’s cell phone account was in his wife’s name, and for more than a year, his bills had been higher than normal by approximately $300-$400 per month. There were phone calls and hundreds of text messages that were all to the same number. When she asked her husband about the calls and texts, he told her that they were to a man that he worked with, but the calls all occurred in the middle of the night. After several months of increased bills, Sally did a reverse directory search and discovered that the phone number was listed to Chablis.
Chablis had appeared at Matthew’s house once while the family was eating dinner. She looked upset and asked to speak to Matthew. He went outside and as his children looked on, they engaged in an animated conversation that lasted about fifteen minutes.
Sally spoke to Chablis after she spoke to Respondent. Chablis seemed angry or hurt, and felt that she had been deceived. Chablis also delivered "a lot of very graphic e-mails" concerning her interaction with Matthew to Sally at her office.
According to Sally, she and her husband had had problems in their marriage for years. They had discussed divorce before. In December 2007, Sally began divorce proceedings. She testified that she left the marriage because of her concerns for the physical and emotional well-being of herself and her children. According to Sally, it had nothing to do with other people.
No misconduct because:
...the Respondent never took on the representation of another client and used information gained from her representation of Matthew, the former client, in the representation of the new client. At the time of the misconduct alleged in this case, Rule 1.9(a)(2) at issue here prohibited a lawyer who formerly represented a client from using "information relating to the representation to the disadvantage of a former client, unless (a) such use is permitted by Rule 1.6; or (b) the information has become generally known." The Hearing Board found that Respondent’s disclosure to Sally of Matthew’s affair with Chablis did not violate the rule because it was "generally known," noting that Sally knew about it and that those people in the public courtroom also knew about it.
With slight revisions, this scenerio was a question on my PR exam a couple of years ago. My memory isn't great, but I'm pretty sure "no violation" was not the correct answer.
Of course, my exam was based on the charges, not the findings reflected here. (Mike Frisch)
Lawyer Lies About Criminal History When Called As Juror, Suspension Imposed
The Minnesota Supreme Court has adopted a joint proposal of a 60 day suspension in a case involving a false statement to a tribunal.
The attorney was called as a juror in a felony criminal matter. He made "false statements regarding his [own] criminal history while under oath during voir dire as a potential juror..." (Mike Frisch)
The New Jersey Appellate Division has affirmed the dismissal of a defamation action brought by Donald Trump against Timothy O'Brien, auther of TrumpNation, The Art of Being The Donald, and his publisher Time Warner Books. The court found no triable issue of actual malice.
The litigation also involved the subject's efforts to obtain the identities of three of the author's confidential sources. The court found sufficient evidence that these sources provided reliable information on the subject's net worth. (Mike Frisch)
The Persistent Complainant
A Louisiana Hearing Committee has recommended that charges against an attorney be dismissed based on its finding of insufficient evidence of an ethical violation.
The dissatisfied former client had complained to the Office of Disciplinary Counsel ("ODC") on concerns of overcharging and negligent legal advice. The ODC recommended that the file be closed. The client appealed (a remedy not made available in many bar disciplinary regimes) and the matter was assigned to a hearing committee. The committee affirmed ODC's decision to close the file.
The former client appealed again. The Disciplinary Board remanded the matter for further investigation. After such investigation, ODC again sought to discmiss the matter.
The board again remanded, concluding that there was "manifest error" in the dismissal decision. The ODC then (reluctantly, I suspect) finally filed charges.
Here, the committee finds the charges were not proven. (Mike Frisch)
Untreated Mental Health Problems And Bar Discipline
An Illinois Hearing Board has recommended a one year suspension and until further order ("UFO") of an attorney convicted of child abuse. The conviction involved an incident that caused his daughter to suffer a broken wrist.
Notwithstanding his lack of any prior discipline, the proposed sanction issues was based on expert testimony relating to the attorney's mental health, recounted in part below:
On December 29, 2010, Dr. Henry met with Respondent for three and a half hours for the purpose of re-evaluating Respondent. Dr. Henry testified that Respondent’s mental and physical condition had deteriorated since Dr. Henry last saw Respondent. Dr. Henry stated that Respondent had lost weight, he was very agitated and his paranoia and delusions were marked and striking. For example, Respondent told Dr. Henry that "he was certain there was a feed, not in Dr. Henry’s examining room but in the next examining room, that was being fed to the FBI."
Further, Respondent told Dr. Henry that while he slept, people were tampering with his brain. Respondent also thought that he was a target of a coordinated conspiracy which was being orchestrated by his ex-wife, her attorneys, the FBI, the police, the Lake County justice system and the Lake County police. Finally, Respondent thought that the FBI was intercepting his messages and telephone calls on his mobile phone...
As a result of his 2010 reevaluation, Dr. Henry remained of the opinion that Respondent still suffered from depressive disorder, obsessive-compulsive disorder and Asperger’s syndrome. Given the exacerbation of his paranoia in combination with his overall deterioration, Dr. Henry opined that Respondent was manifesting symptoms of paranoid schizophrenia. Dr. Henry also testified that Respondent had an unwavering belief that he was being targeted and victimized by those identified in the preceding paragraph. Respondent further believed that Dr. Cohen and Dr. Henry were part of a conspiracy against him...
Dr. Henry was of the opinion that Respondent would not be able to consistently adhere to the Rules of Professional Conduct. As a result of his reevaluation, Dr. Henry made several treatment recommendations for Respondent. First, Dr. Henry recommended that Respondent apply for government financial assistance. Second, Dr. Henry recommended that Respondent be given psychotropic and anti-psychotic medication as well as undergo psychotherapy. Finally, Dr. Henry recommended that Respondent be placed under the care of a primary care physician...
Dr. Henry could not say for sure whether Respondent voiced an opposition to taking psychotropic medication during his evaluations. However, Dr. Henry stated that Respondent had "absolutely no insight as to how sick he was." Dr. Henry opined that Respondent would be quite resistant to taking psychotropic medication. Dr. Henry discussed two potential risks resulting from Respondent’s failure to take psychotropic medication. First, Respondent’s condition could worsen. Second, Respondent might be prone to act on what he perceived to be threats (although other than the incident discussed herein, Respondent does not have a noteworthy history of violence, so this risk is more hypothetical)...
Dr. Henry opined that there was a causal connection between Respondent’s psychiatric condition and the September 30, 2008 battery of his daughter. Dr. Henry stated that the cause of the incident primarily related to Respondent’s Asperger’s syndrome. Finally, Dr. Henry testified to a reasonable degree of medical and psychiatric certainty that Respondent represents a phenomenon known as the downward drift hypothesis, a phenomenon in which individuals with paranoid schizophrenia become ostracized and marginalized, and over time, the person worsens and he or she psychiatrically deteriorates...
A sad likely end to a professional career. (Mike Frisch)
September 6, 2011
Client Has Duty To Read Contract
A law firm that represented a party who built and leased stores to CVS was sued by the client for legal malpractice. The North Carolina Court of Appeals affirmed the trial court's grant of summary judgment to the law firm.
The court found the clients' failure to review the contracts was contributory negligence:
It is well established in North Carolina that “[o]ne who signs a written contract without reading it, when he can do so understandingly is bound thereby unless the failure to read is justified by some special circumstance.” Although plaintiffstry t o suggest that this rule may be altered when the party has retained an attorney to review the contract, this Court has held otherwise: “[Plaintiff’s] attorney owed her a duty to review and explain to her the legal import and consequences which would result from her executing the Separation Agreement. However, this duty does not relieve her from her own duty to ascertain for herself the contents of the contract she was signing.” (citations omitted)
The court rejected the plaintiffs' contention that "custom and practice" was a special circumstance that negated their durty to read the contracts. The court further found that the plaintiffs failed to identify any negligence. (Mike Frisch)
The Indiana Supreme Court revoked a previously-imposed probation and suspended the attorney for no less than 90 days.
The attorney had failed to comply with the terms of counseling ordered through the bar's lawyer assistance program and also failed to attend a required course on trust account management. (Mike Frisch)
September 5, 2011
Thoughts On Lawyer Discipline
If ever there is a case to be made for non-public discipline, the preceding post is it. That fact gave me some blogger's remorse about bringing any attention to the decision.
I do think that the "writing yourself into a will" aspect of this (and the prior) case has some possible educational value. It does also address the problem of the aging practitioner who has made a (likely good faith) mistake. He had checked case law that was later trumped by changes in the governing rule. He certainly acted in a manner that negates any hint of an improper intent. The "inheritance" was an end table and some tools.
As a bar prosecutor, I've been assigned such matters and had to make judgments about the needs of public protection versus the humane considerations that recognize a lifelong reputation as a decent lawyer. Trust me, the bar prosecutors know who the truly bad apples are, even if they can't prove it.
Back when informal admonitions were confidential, I can remember a couple for relatively benign neglect that I issued (with appropriate review, as D.C. bar counsel can't ever be trusted to exercise discretion) as the senior lawyer was winding down a solo practice. The disposition kept the attorney's name off the list of shame in the lawyer magazine. He or she was able to conclude 60+ years in practice without public professional blemish.
A program of confidential diversion (D.C. has this) is a possible way to deal with such cases. After reflecting on the issue for many years, I believe that there is a compelling public interest in full access to an attorney's disciplinary history--complaints and all. A case like this suggests that there may be cases where an otherwise public finding of an ethical violation might be treated in a non-public manner.
These thoughts bring me back to a post last week in which California's new interim chief trial counsel announced a "zero tolerance" policy for ethics violations. Given the many twists and turns that the rules create, I am comfortable in opining that such an approach will never work. There aren't enough assistant disciplinary counsel to enforce such a policy. There shouldn't be that many, either.
The disciplinary process is worthy of trust (or not) for how it responds to the most serious misconduct, i. e., handling other people's money, some forms of criminal conduct, practicing after suspension and general acts of dishonesty. How quickly (consistent with basic due process) do the allegations get resolved? Can the attorney practice while the charges progress? For how long?
Can the attorney continue to practice without responding to the charges or participating in the process? A question like this one is the real "inside baseball" of lawyer discipline, unseen by the casual observer.
In New York and Nebraska, the answer is "no." In D.C., it is pretty much "yes." Nebraska and New York's approach reflects better policy. If a lawyer can't be bothered is participate in disciplinary proceedings or respond to a complaint, an interim suspension might help the accused attorney focus on the situation. A recent example may be found in this order from Indiana.
Next is consistency.
Are the serious cases taken seriously? Do the sanctions fairly reflect the seriousness of the found misconduct? Do the meek get the same treatment as the powerful, well-connected, or even well-liked?
In D.C., where you have both big firms and big shots, the last question was always a pertinent one. If not for continuing obligations of confidentiality, I could tell you some stories.
I judge a disciplinary system by the answers to the above questions.
And by a real commitment to transparency. You judge that commitment by reviewing the bar's web site.
If you can readily find a lawyer's full disciplinary history in a few clicks, there is a desire to be transparent. Honor roll: Illinois, Indiana, Pennsylvania, Louisiana, North Carolina, and Massachusetts are models of transparency.
I'm a particular fan of North Carolina's page on pending cases; you get a wealth of information that you could not pry out of some bars with a crowbar-- hearing dates, places and the identity of the hearing officers, complaints, answers, motions practice, etc. Kudos also to New Jersey, which recently made significant improvements in online access to DRB decisions.
Many bars make the information virtually impossible to find online. You know who you are.(Mike Frisch)
Per the comment: This post was not intended to reflect all of my thoughts on lawyer discipline. I certainly do believe that disciplinary counsel should adhere to the highest standards of professional conduct in all phases of their work. Indeed, that's one of the reasons I left.