October 8, 2011
The Louisiana Supreme Court has permanently disbarred a former Baton Rogue prosecutor convicted of fixing tickets:
In October 2009, respondent pleaded guilty to federal charges that he
accepted bribes in exchange for “fixing” criminal and traffic matters pending in the
Baton Rouge City Court. According to the factual basis for the guilty plea,
between 2006 and 2009, respondent, a senior prosecutor at the Baton Rouge City
Court, conspired with others to engage in bribery by soliciting and accepting
payments from individuals with matters pending before that court with the promise
that the charges would be dismissed or otherwise “fixed.” On one occasion in May
2009, respondent received cash to dismiss a criminal charge against an undercover
The Advocate reports that the prosecutor accepted over $30,000 in bribes and was caught in Operation Illegal Motion. (Mike Frisch)
October 7, 2011
A Question Of Balance
A justice of the Massachusetts Supreme Judicial Court has found that temporary suspension is appropriate for an attorney "convicted after jury trial of serious crimes bearing directly on his fitness to practice law." The attorney is pursuing an appeal of the conviction for filing a false motor vehicle insurance claim and two counts of attempt and larceny.
The judge found that the appeal has "some merit" but that "this is not enough to tip the balance away from temporary suspension [in light of the crimes]." The temporary suspension will not exceed a period of disbarment. (Mike Frisch)
The Indiana Supreme Court has ordered the suspension of an attorney for a criminal conviction. The suspension was imposed pending disciplinary proceedings on a battery and residential entry conviction.
An Indianapolis lawyer was charged with battery after an incident with her boyfriend, but got into even more trouble when officials found a weapon in her bra while booking her into jail.
Police said Olubunmi Okanlami was hiding a 1 inch pocket knife in her bra. She is charged with 3 felonies, and her status with the Indiana Law Review Board is pending.
She's accused of beating her boyfriend, carrying a concealed weapon and assaulting an officer while she was in the process of being detained.
Without explanation, the Maryland Court of Appeals has admitted an applicant for bar admission. The court order states that the applicant had a hearing before it and presented oral argument. The order states that a majority of the court concurred in allowing admission.
The Character Committee for the Third Appellate Circuit had recommended against admission; the state Board of Law examiners made a favorable recommendation. (Mike Frisch)
When an attorney is suspended from practice, courts generally require the filing of an affidavit of compliance with its order. The attorney must aver notice to all current clients, opposing counsel and the courts in pending cases of his or her unfortunate inability to continue representation.
In D.C., the attorney must file proof of such notification through submission of certified mail receipts. The effective date of the suspension does not start, for reinstatement purposes, until the affidavit is filed.
Sometimes a suspended/disbarred attorney seeks reinstatement only to be told that the service of the suspension has not started because the required affidavit was never filed. Reinstatement petition summarily dismissed.
New Jersey just imposed a two-year additional suspension of an attorney who had defaulted in a bar case and been suspended for one year. He got two more for not filing the affidavit of compliance with the earlier suspension order. The Disciplinary Review Board noted his "long and serious history of discipline and his utter disregard for the ethics system..." (Mike Frisch)
October 6, 2011
No Disqualification For Receipt Of Confidential Information
A decision issued today by the Nevada Supreme Court is summarized below:
In this original writ proceeding we review a district court’s decision to deny a motion to disqualify opposing counsel, when opposing counsel reviewed confidential documents he received, unsolicited, from an anonymous source. We initially conclude that although there is no Nevada Rule of Professional Conduct that specifically governs an attorney’s actions under these facts, the attorney in this case fulfilled any ethical duties by giving prompt notification to opposing counsel, soon after his receipt of the disk from an unidentified source, through an NRCP 16.1 disclosure.
We must also determine whether the district court abused its discretion when it refused to disqualify counsel, even though one of the documents sent to counsel was privileged. We adopt factors to aid a district court in determining whether disqualification is warranted under such circumstances, and conclude in this case that the factors weigh in favor of the district court’s decision. Therefore, although we consider the writ petition, we ultimately deny the relief requested.
The plaintiff in the underlying litigation manufactures and sells high-end salon products. Defendants contracted to distribute the products. Prior to the suit, one of the defendants fired an employee who allegedly stole confidential and proprietary information.
The information at issue here was received by plaintiff at its New York headquarters in an anonymous package from Lebanon.
Notably, the court concluded that the receiving attorney did not violate Nevada ethics rules by reading the material. (Mike Frisch)
A federal jury in Utica has convicted a former lawyer for Dick's Sporting Goods of money-laundering and fraud in connection with the establishment of 22 new stores across the country.
Benjamin Viloski, 62, of Oak Island, N.C., was convicted Friday of nine counts of fraud, money-laundering and making false statements for helping former Dick's vice president Joseph Queri Jr. collect $2 million in kickbacks from developers building new stores from 1999 to 2004.
Queri, formerly of Syracuse, pleaded guilty in February to taking the kickbacks while he was Dick's vice president of real estate. Viloski got little of the kickback money, but benefited from the scheme by getting Dick's business as a lawyer and broker on real estate deals, Assistant U.S. Attorney Steven Clymer said.
FBI and IRS agents discovered the kickbacks two years ago while they were investigating an insider-trading case involving Queri. Viloski was the last defendant in both cases.
A recent opinion from Florida's Judicial Ethics Advisory Committee:
May a judge seeking re-election in 2014 be a hole sponsor at a charity golf tournament hosted by the young lawyers section of the local bar association if the proceeds raised at the event will benefit various non-law related projects?
The Young Lawyers Section (YLS) of the Inquiring Judge’s local county bar association hosts a charity golf tournament each year. The YLS raises funds from the golf tournament through player entrance fees and hole sponsorships. Hole sponsors will have their company logo displayed on all promotional materials, the hole sign and the electronic screen on the golf cart; and will be given a table and chairs at the designated sponsored hole. According to the flyer and registration form provided by the Inquiring Judge, all proceeds of the YLS charity golf tournament and a raffle held at the event will be applied to fund various YLS charitable projects. Examples of the charitable projects include college scholarships; providing school supplies; providing homebound seniors with meals; providing opportunities for children who are the subject of abuse, abandonment and neglect to play games with members of YLS; and sponsoring a team in a cancer fundraising event.
The Inquiring Judge, who will be seeking re-election in 2014, inquires whether a judge is allowed to expend campaign contributions to be a hole sponsor at the golf tournament, appear at the golf hole and display campaign literature/logo. In the Inquiring Judge’s assessment, only paid attendees would know about the judge’s hole sponsorship, and if necessary, the judge would advise the chairperson not to use the judge’s name or title to raise funds.
A minority of five members of the Committee are of the opinion that the contemplated conduct is not permitted by either Canon 4 or Canon 5. The minority agrees with the majority that Canon 4 does not permit the judge to be a hole sponsor at the YLS tournament. As the majority observes, the Supreme Court’s amendments to Canons 4 and 5 created “significant exceptions to the prior prohibition on judges participating in fund-raising activities on behalf of a specific category of organizations.” It is important to note, however, that the exceptions the Court created are quite specific and limited. As the Supreme Court stated regarding Canon 4, “This change is intended to allow judges to participate in a law-related organization’s fund-raiser only where the particular event serves a law-related purpose and the funds raised will be used for a law-related purpose.” In re Amendments to the Code of Judicial Conduct - Limitations on Judges’ Participation in Fundraising Activities, 983 So. 2d 550, 552 (Fla. 2008) (emphasis supplied).
A Maryland attorney who has pleaded guilty to being part of a national "baby-selling" ring allegedly organized by a San Diego attorney is expressing regret.
But the San Diego attorney at the center of the case, who has also pleaded guilty, has asked not to be judged harshly by the public and insists she would never do anything that is not in the best interest of babies.
"Remember, any story can be spun and manipulated to make a story salacious," said a post by attorney Theresa Erickson on Facebook. "Yet know from the bottom of my heart that I have done the right things to protect some children from otherwise disastrous outcomes."
Meanwhile, Maryland attorney Hilary Neiman "horribly regrets getting involved in an ongoing conspiracy," said her attorney, Gregory Vega, a former U.S. attorney in San Diego. Neiman, 32, lives in Chevy Chase, Md.
According to court documents, Neiman joined the conspiracy in 2008. The same documents indicate that the plan to file phony court documents, and hoodwink couples desperate to have a baby, began in 2005.
October 5, 2011
Innocence Information Disclosure Obligation Proposed
The District of Columbia Rules of Professional Conduct Review Committee is proposing changes in the D.C. ethics rules.
The notice seeking comments highlights a couple of major changes.
One would allow screening to cure imputed disqualification. The other:
Adopt a new Rule 8.6 to require lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to a court, the convicted person’s counsel, and the convicted person, in the absence of other confidentiality obligations of the lawyer.
Indiana U (Bloomington) Announces 3 Post-doc Fellowships in Sociolegal Studies
Ethan Michelson at Indiana U (sociology, law--he has done some great work on the legal profession in China) passed along this announcement for law and society fellowships:
The Indiana University Center for Law, Society, and Culture will appoint up to three post-doctoral fellows per year beginning with the 2012-13 academic year. We invite applications from scholars of law, the humanities, or social sciences working in the field of sociolegal studies. Pre-tenure scholars, recently awarded PhDs, and those with equivalent professional degrees are encouraged to apply. Advanced graduate students may also apply, but evidence of completion of the doctoral degree or its equivalent is required before beginning the fellowship.
Fellows will devote a full academic year to research and writing in furtherance of a major scholarly project, and will receive a stipend plus a research allowance, health insurance, other benefits, and workspace at Indiana Law. They will conduct research at Indiana University and participate in the activities of the Center, which include an annual symposium, a colloquia series, and regular workshops and lectures. (The term of the appointment will be 10 to 12 months, beginning August 1, 2012. The amount of the stipend will be the same regardless of the duration of the appointment.)
For more information about how to apply, please visit: http://www.law.indiana.edu/centers/lawsociety/postdoctoral-fellowship.shtml.
These are the well-regarded "Jerome Hall Postdoctoral Fellowships" at Indiana University-Bloomington. That school is doing amazing work in law & society generally and studying the fundamental transitions in the legal profession. [Alan Childress]
With Malice Toward None
The Billings Gazette had this report on the criminal case and resulting discipline. The Gazette reports that he had served as president of the National District Attorneys Association. The Cheyenne Examiner reported last September that he was pardoned by Governor Freudenthal.
The Wyoming Board of Professional Responsibility had recommended reinstatement, noting that the peitioner "recognized fully that, by his actions and poor choices, he put his colleagues, the investigators, the Special Prosecutor and sentencing judge in difficult positions given the public position he held in 2003" and that he "holds no feelings of malice or ill will to those who were compelled by duty to bring about the investigation, charges, sentencing or disciplinary proceedings against [him]." (Mike Frisch)
Ten Years After
An Indiana attorney has been suspended for 30 days.
The attorney settled an accident case on behalf of a father and two daughters. He either lost or misplaced a $5,000 check for one of the daughters and failed to respond to requests for information about the settlement payment for over a decade. The amount was eventually paid by the attorney with interest.
Discipline was imposed by consent. (Mike Frisch)
The Wrong Mentor
An attorney convicted of evading taxes over an eight year period consented to a five year suspension by the Pennsylvania Supreme Court.
The conduct was part of a larger conspiracy concocted by another attorney. The Respondent here got involved with the attorney while a law student at Temple. At Temple, he interned in a prosecutor's office and later served as a judicial clerk. He was admitted to practice in 2005, when he was in his late 50s.
The income was from a business that did not involve the practice of law. (Mike Frisch)
October 4, 2011
Reissue with new introduction of Michael Meltsner's Cruel and Unusual on lawyering against the death penalty
Posted by Alan Childress
After the renewed attention lately on the death penalty from the execution of Troy Davis, including this moving faith-based Huffington Post column on that matter by Stephen Dear, I wanted to mention, as has the StandDown Texas blog, the reissue of Cruel and Unusual: The Supreme Court and Capital Punishment. It's Michael Meltsner's inside account of the NAACP Legal Defense Fund lawyers who set out to abolish the death penalty. Their decade-sought victory, if impermanent, was a methodical and fascinating tale of strategy, perseverence, and people--ending with the Supreme Court's 1972 ruling in Furman v. Georgia. (BTW, Justice Stevens says he regrets his later vote to reinstate capital punishment.)
The 2011 edition has a new Foreword by CUNY's Evan Mandery and a new, reflective preface by the author (a law prof at Northeastern and its former dean). As StandDown notes, I worked with Michael to bring this back to print. It's now out in a variety of formats: Amazon as a paperback or for Kindle; at Barnes & Noble for Nook and in paperback; PDF at Smashwords; also on Apple iBooks and at Sony. The ebooks should be convenient for people worldwide who have not had access to this classic book as a hardback edition.
This Bud's For You
The Pennsylvania Supreme Court adopted the recommendation of its Disciplinary Board and ordered a three-year suspension of an attorney convicted of drug offenses.
Justice McCafferty dissented on sanction:
Respondent was convicted of drug offenses after he delivered marijuana to a prisoner in the attorney-client meeting room in the Allegheny County Jail. Clearly, [he] misused his professional status to ensure that the illegal delivery took place in an area of the prison that offers a greater level of privacy than an ordinary meeting room... the level of individual hypocrisy and reprehensible behavior is outrageous...Respondent's history bespeaks dubious and reckless character traits that are not easily subject to reform, particularly given that Respondent is 63 years of age.
Justice McCafferty notes that the attorney had been arrested in 2004 for possession of crack cocaine and reckless driving. In 1976, while a law student, the attorney entered a guilty plea to attempted sodomy.
The West Virginia statute that the attorney violated was later repealed.
The board report notes that the attorney was using cocaine. His drug dealer was locked up. He took the marijuana in an envelope from the dealer's girlfriend and stuffed it in his sock. He intended to trade for cocaine money. He got caught.
The board also found that the attorney failed to establish a remediable disability to mitigate sanction under the Braun decision. (Mike Frisch)
Indirect Criminal Contempt
The Pennsylvania Supreme Court has ordered a one year suspension of an attorney found guilty of indirect criminal contempt.
The attorney was suspended for three months in 2002 after convictions for simple assault, defiant trespass and indirect criminal contempt. He has not sought reinstatement from the suspension.
He was again found guilty in December 2008 and sentenced to incarceration with conditions on release. He then breached his obligations to participate in anger management and domestic violence classes. He also failed to keep appointments with his probation officer and with a psychiatrist. As a result, his parole was revoked. (Mike Frisch)
Bar Bar Upheld
A woman who was convicted of participation in a theft scheme with her husband appealed her sentence in two respect. One, she objected to the amount of restitution. Two, she objected to a condition that prohibited her from going to bars.
The Wyoming Supreme Court agreed that the restitution order should be reversed but rejected her appeal on the bar condition and held that the sentencing court had acted within the bounds of the law:
[The defendant] has a long hisdtory of illegal drug use and continues to use on a daily basis. A restriction on entering bars is sufficiently connected to her circumstances and furthers her rehabilitation by preventing her from being places where alcohol is purveyed, which may lessen the chance that she will replace or supplement her use of illegal drugs with alcohol and thereby hinder her rehabilitation.
The husband was sentenced to prison time. (Mike Frisch)
Time For Mercy?
A Louisiana district court judge was removed from office as a result of information that came to light in the FBI's Operation Wrinkled Robe. In approving the removal, the Louisiana Supreme Court specifically reserved the possibility of bar discipline based on the judicial misconduct.
A hearing committee report recommends an eighteen-month for the misconduct nunc pro tunc to the date of an interim suspension, which involved pressure from another judge to consider evidence outside the record in a civil case.
The public member opinion agrees that the respondent should receive credit for time served to February 10, 2010, when an interim suspension was imposed:
I was deeply moved by her testimony. I felt her deep sorrow and contrition for the one misstep when then Judge Bodenheimer approached and tried to sway her in the Demma case...Respondent has lost her position as a judge and her good name; she voluntarily surrendered her law license.
How much more pain and suffering must the Respondent endure? What she has suffered is enough; it is time for mercy.
One committee member concurs and dissents, believing that the suspension should be longer and without credit for time served. (Mike Frisch)
Throwing In The Towel
A Maryland attorney consented to disbarment under somewhat unusual circumstances. According to the order entered by the Court of Appeals:
At the time of oral argument scheduled before this Court on September 7, 2011, Respondent expressed his intention to consent to disbarment, after which the parties submitted a Joint Petition for Disbarment by Consent...
Something like this happened to me once as disciplinary counsel.
The case involved Ruthann Aron, who was convicted of plotting to kill her husband and an attorney. The issue before the D.C. Court of Appeals was whether such behavior involved moral turpitude. She consented to disbarment after the issue was fully briefed and argued, depriving the world of an answer to the question.
Sure trying to kill your spouse is understandable, but plotting against an attorney is taking it a bit too far. (Mike Frisch)