Saturday, October 29, 2011
A judge may not speak to a conference on a case that he presided over and which is now on appeal, according to a recent opinion of the Florida Judicial Ethics Advisory Committee:
...nothing in the Code of Judicial Conduct prohibits the inquiring judge from commenting on a high profile case once the matter has reached a final disposition. Indeed, as one committee member noted in Fla. JEAC Op. 96-18, an inquiring judge could appear in a TV documentary after the case was closed. Hence, the only reason that this inquiring judge or any other judge is prohibited from giving a speech given the factual scenario before us is the stated prohibition in Canon 3B(9) that no judge can comment on any proceeding – in this case a trial over which the judge has presided – until final disposition of the appellate process. Once that occurs, no prohibition exists on a judge providing his or her views or thoughts on handling a high profile case. Accordingly, the only analysis that applies to the issue here is the fact that the matter on which the inquiring judge has been asked to speak has not fully concluded as an appeal remains pending. The focus on “ex parte” communications is extraneous, unwarranted, and legally incorrect.
There is a minority view:
The minority acknowledges that if the inquiring judge has handled other high profile cases, the inquiring judge could speak generically about the topic of handling an interesting or high profile case – such as dealing with the media, the courtroom set-up, cameras in the courtroom – without discussing the particular case at issue here. The minority is of the opinion, however, that the invitation here was to speak about the particular case that is currently on appeal, and the judge is prohibited by Canon 3(b)(9) from commenting on that case.
Accordingly, while the minority agrees with the conclusion reached by the majority, the minority disagrees to the extent the majority’s opinion concludes that the proposed speech would constitute an “ex parte” communication pursuant to Canon 3B(7).
Friday, October 28, 2011
Several disciplinary orders for private admonition have been issued in Colorado over the past two months.
As in this example, the orders give the name of the admonished attorney but provide absolutely no information aboput the nature and circumstances of the misconduct.
Not too helpful to consumers of legal services in Colorado. (Mike Frisch)
The Maryland Court of Appeals has held that disbarment was the appropriate sanction where an attorney "intentionally misrepresented his residency status in applications for pro hac vice admissions for to California state and federal courts, as well as third persons."
The attorney was admitted in 1981. He is self-employed and also works for a foundation that he created. He also "has a part-time 'national practice' and has been admitted pro hac vice in 25 different jurisdictions, mostly federal courts, across the United States." He was residing in California without ties to Maryland when he sought pro hac admission in a California matter based on purported Maryland residency.
Some courts take such misconduct seriously. Some don't. (Mike Frisch)
Thursday, October 27, 2011
The Indiana Supreme Court has imposed a six-month suspension of an attorney for misconduct in the course of representing a defendant charged with murder.
The stipulated facts:
In 2006, J.M. was indicted for a murder that occurred in 2000, and a public defender was appointed to represent him. Without invitation from J.M. or anyone else, Respondent visited J.M. in jail and agreed to represent him without charge.
During his opening statement, Respondent stated that search dogs were sent out shortly after the victim's disappearance and one dog "alerted" at the home of B.H., but the dog was called off. These statements were false and Respondent should have known that no evidence would be admitted at trial to support them. J.M. was found guilty of murder and sentenced to 65 years.
Respondent filed a notice that he would be providing pro bono representation for J.M. in his appeal. The court issued an order finding J.M. indigent for the purposes of paying the costs of a transcript for the appeal. Respondent, however, never requested funds for copying and binding the appellant's brief and appendix. Instead, he told J.M.'s mother that technically they could probably request the trial court to pay these costs, but the court would not pay because of extreme criticism of the judge and the prosecutor in the appellate brief.
When Respondent filed an appellant's brief for J.M., he sent J.M.'s mother a copy that was not file-stamped and expressed his hope that family or friends would pay the costs to the printer. He later informed J.M.'s mother that the brief would be refiled to correct grammatical errors, told her that the copying expenses needed to be paid, and asked her for payment of at least $1,500. J.M.'s mother was unaware that that original brief had already been filed and feared that failure to pay the costs of printing and binding would result in the brief not being filed. She therefore sold some personal items and sent Respondent a check for $1,500.
The court found that the attorney had exploited three vulnerable prople. (Mike Frisch)
Wednesday, October 26, 2011
An attorney who "never really practiced law" was suspended for 18 months by the Pennsylvania Supreme Court for two serious crimes, both assaults on his girlfriend. Her last name is Lachance.
The first assault took place as she was leaving her work at a tavern. He prevented her from leaving and they fell over a bar stool. He jacked her up against a wall and struck her in the face. The responding police officer's last name was Suprano.
The second asault took place after he had entered a plea of guilty.
The Disciplinary Board concluded that the attorney was unfit to practice law. He offered no explanation and expressed no remorse for his criminal behavior. (Mike Frisch)
An attorney who had continued to practice after being suspended for six months was disbarred by the New York Appellate Division for the First Judicial Department.
The court described the circumstances of the initial sanction, imposed for neglect of a matter for an extended period of time:
In setting the sanction, we took into consideration respondent's 52 years of practice, his representation of needy clients, his military service and his prior disciplinary record which consisted of one prior Admonition. However, we also found that "it is evident that [respondent] neglected the matter entrusted to him over a very lengthy period of time, and was less than candid and cooperative when the investigation was ongoing. A mere censure or admonition would serve to ignore the significance of respondent's acts - - which was the neglect of a matter entrusted to him by a client who had placed her faith in him" (citation omitted)
The Committee has submitted clear evidence that respondent, in just over three months after the effective date of his suspension, appeared on behalf of three clients on at least two separate occasions before a criminal court judge and a JHO. Moreover, it is uncontroverted that he failed to file an affidavit of compliance following his suspension and has held himself out as an attorney in good standing.
"Engaging in the practice of law while under an order of suspension is [a misdemeanor](Judiciary Law § 486) and warrants immediate disbarment' without further proceedings." In view of his default in filing an affidavit of compliance, and his failure to contest clear evidence of his violation of the order of suspension, respondent is subject to disbarment without further proceedings (citations omitted)
The Maryland Court of Appeals held that an attorney who was indefinitely suspended engaged in unauthorized practice by providing clients with "immigration consulting" services. While such unauthorized practice would ordinarily result in disbarment, the court continued the attorney on indefinte suspension "in light of [her] failing health and intent to return to her homeland..."
The court found that repetition of the misconduct was unliekly under the circumstances. (Mike Frisch)
The New York State Commission on Judicial Conduct has removed from office a justice of the Macomb Town Court. The justice had presided over a number of matters involving his girlfriend's relatives without disclosing the relationship, engaged in ex parte contacts and improper political activity by serving as a local party caucus chair.
The justice lived with the girlfriend and "grew up with members of her family, socialized with her relatives and attended some family gatherings."
In one matter, the complaining witness was his girlfriend's daughter. In another, the complainant was her mother.
The justice handled a criminal case in which the defendant was her nephew. He discussed that case with several relatives at a family picnic. The relatives complained that he had been too easy on the nephew. Later, two relatives contacted him "and asked [him] to send [the nephew] to jail." He did. The judge dismissed a case against a different nephew.
The commission found removal appropriate:
By presiding over numerous cases involving his girlfriend's relatives, respondent showed an insensitivity to his ethical obligations, even after the conduct was brought to his attention. The fact that the misconduct continued even after the respondent was on notice of the potential impropriety is a significant exacerbating factor. Compounding the misconduct, respondent took action in four cases after entertaining ex parte communications from his girlfriend and/or her relatives, ignoring statutorily mandated procedures and rendered dispositions in several instances that conveyed the appearence of favoritism. Such misconduct undermines public confidence in the integrity and impartiality of the judiciary.
A concurring opinion would find the political activity protected by the First Amendment. (Mike Frisch)
Monday, October 24, 2011
The South Carolina Supreme Court has imposed a public reprimand with conditions for the following misconduct:
In July 2007, respondent was arrested following an altercation with police officers at a bar. In July 2011, respondent pled guilty to resisting arrest and was sentenced to pay a fine and complete community service. Respondent paid the fine and is in the process of completing his community service.
Respondent acknowledges the incident in July 2007 was a result of his use and abuse of alcohol. With the assistance of Lawyers Helping Lawyers, respondent has been in treatment for substance abuse since the time of his arrest in July 2007. The treatment has included in-patient and out-patient rehabilitation, active participation in Alcoholics Anonymous, peer monitoring, and random testing for alcohol use.
Among the conditions is a requirement to continue to work with the Bar's recovery program. (Mike Frisch)
The Florida Supreme Court has reinstated an attorney who took a disability suspension in 2005 while on disciplinary probation.
Justice Canady, joined by two colleagues, dissented:
The Florida Bar has correctly sought to prevent the reinstatement of this lawyer, who has demonstrated contempt for the law. It does damage to the credibility of The Florida Bar to reinstate a lawyer who so recently has flouted the federal income tax law and has otherwise shown a disregard for the requirements of the law.
The petitioner had not filed his 2007 and 2008 taxes until 2010. (Mike Frisch)
The Connecticut Appellate Court has held that a trial court improperly declined to consider the merits of a sovereign immunity defense by the executive director of the New York Lawyers' Fund for Client Protection.
The pro se plaintiff sued in Connecticut Superior Court, claiming that the fund "mishandled its monetary award to [him] arising from the malfeasance of one or more of [defendant's] former attorney's and that the award was not sufficient given the amount of damages sustained by the plaintiff."
The court held that a factual inquiry into the jurisdictional question was necessary. (Mike Frisch)