November 4, 2011
More Than Just A Reprimand For Mississippi Judge
A judge who intervened in a criminal matter because of a personal interest has been suspended without pay for 30 days by the Mississippi Supreme Court. The court rejected the sanction of reprimand proposed by the Commission on Judicial Performance, although the court did impose reprimand in addition to the suspension.
WLOX13 (via the Associated Press) has this report:
The Mississippi Supreme Court has suspended Stone County Justice Court Judge Teresa Brown Dearman for 30 days without pay and ordered a public reprimand.
The Mississippi Commission on Judicial Performance in September recommended a reprimand for Dearman. The Supreme Court has the final say on judicial misconduct cases.
The commission cited Dearman for presiding over a criminal case involving her nephew, ordering defendants to attend church as a condition of their bond and discussing cases with parties outside the courtroom.
The Supreme Court in Thursday's 8-1 decision said this is the second time it had to deal with a complaint against Dearman so a harsher penalty was justified.
The dissent would hold that the court lacks the authority to impose sanctions not recommended by the commission. (Mike Frisch)
Fog Not Sole Cause
The New York Appellate Division for the Second Judicial Department has imposed a three year suspension of an attorney for neglect and failure to respond to bar complaints. The court did not accept his mitigation explanation:
...the respondent testified in mitigation that, due to foot pain and medications prescribed to alleviate the pain, he became addicted to opiates. He attributes his neglect and failure to cooperate solely to the medication, which made him feel "like his head was in a fog." He claimed that he has since undergone rehabilitation and is currently not taking opiates of any kind. The respondent expressed remorse and has indicated that, if reinstated to practice, he is willing to submit to strict supervision and make restitution to his clients.
We do not find credible the respondent's contention that his addiction to opiate medication was the sole cause of his professional misconduct. Notwithstanding the respondent's remorse, he engaged in a pattern and practice of neglecting cases, even after he was admonished for neglecting nine client matters, and utterly failed to cooperate with the Grievance Committee's investigation.
November 3, 2011
Theft The Old Fashioned Way
A Virginia attorney has consented to license revocation in the wake of convictions for assault on a police officer and robbing a client.
According to this report from PilotOnline.com (Hampton Roads), the offense was not a trust account theft.
According to court records, the charges stemmed from a meeting [attorney] Harris set up with [client] Concepcion, who owed him legal fees, at an Olde Towne restaurant in November 2008. Concepcion told police someone with Harris took $100 from his pocket and that Harris jumped into his car when he tried to leave and ordered him to write a check.
Harris had faced charges of robbery, abduction and conspiracy; he was tried in October. The judge deferred findings on his verdicts until Monday.
The judge found him not guilty of robbery but guilty of the lesser larceny charge, a felony. Morrison dismissed the abduction and conspiracy charges.
The attorney is a Regent University graduate and former public defender. (Mike Frisch)
Cut And Run Leads to Disbarment
An attorney was disbarred by the Pennsylvania Supreme Court for a number of ethics violations.
Among the violations was a criminal case against the attorney arising out of his jailhouse visit to a client. The attorney brought with him a glass vial that contained crack cocaine. A routine search revealed the vial and the attorney acknowledged that it contained a prohibited substance. He was arrested and "banned from the grounds of the Philadelphia Prison System."
Things went from bad to worse after he failed to appear. He was arrested on a bench warrant and released on electronic monitoring house arrest. After his motion to discharge from electronic monitoring was denied, he "cut the electronic monitoring bracelet and fled to Washington, D.C."
He was arrested in Arlington, Virginia and brought back to Philadelphia, where he pled guilty to a contraband offense and flight to avoid apprehension.
There is also this in the board's report:
Respondent sent vexatious and unsupported correspondence to the Central Intelligence Agency and White House accusing the CIA of wrongdoing. Respondent's correspondence...included correspondence concerning a rogue CIA agent who was controlling his thoughts, making him do illegal acts, causing him pain, preventing him from sleeping, and interfering with his legal work.
I suppose that ban from the prison grounds no longer applies. (Mike Frisch)
Rather Resign Than Comply With Probation
The Pennsylvania Supreme Court has accepted the resignation of an attorney and ordered him disbarred on consent. The attorney was facing a proposed suspension by the Disciplinary Board as a result of a series of criminal charges and convictions.
The attorney acknowledged that the material facts of the criminal charges are true and that '[he] no longer wishes to be subject to or comply with the conditions of his disciplinary probation." (Mike Frisch)
More Than Negligent
The West Virginia Supreme Court of Appeals agreed with "all but one" recommendation of a Hearing Panel subcommittee in a bar discipline case. The single disagreement was a significant one - the court rejected a proposed public reprimand in favor of a one year suspension.
The court found that the conduct justified a stiffer sanction:
If [the attorney's] actions were truly negligent and not intentional or knowing, the same misconduct would not have been repeated on numerous occasions. Instead, [he] continued to charge clients money for work which he never performed; he lied to the clients about the status of their cases; and, when his actions were discovered, he failed to immediately refund their money or to respond to information requests from the [Office of Disciplinary Counsel]...we do not agree that [his] actions were merely negligent.
"Bar Result Notification" Service Available
A reader, Ari Schulman, sent me the following note. I pass it along with no guarantees, endorsements, warranties, and use it at your own risk, but maybe it's helpful (there's a $3 charge for this service, which didn't sound outrageous to me):
I run a website called ClassPoint that provides a course planner, reviews, and other related services to college students. A couple of years ago, my sister was anxiously awaiting the results of her Texas bar exam, constantly checking the website -- starting a few days beforehand, since results are often posted early -- as were thousands of other people who had taken the test. I decided to write a program to monitor the bar results website so that I could be alerted as soon as the pass list was posted. My sister so enjoyed hearing the news right away that she had passed that she suggested I open up the service to the public -- which is just what I've done.
My hope is that this will allow people who are awaiting their bar results to relax on the day of and leading up to the announcement, instead of anxiously checking their computers and smartphones all day. The service will send an alert by email, text message, or both, within 60 seconds of the pass list going up. If users choose, the service can even tell them whether their name appears on the pass list. The service, found at bar.theclasspoint.com, is available for the upcoming July 2011 bar exam results in the states of Texas and New York, scheduled to be posted this week, as well as California, scheduled for November 20. (It's also available for Pennsylvania, Virginia, Georgia, and Ohio, which have already posted their results.) Other states that notify test-takers by posting a public pass list will be included in the future.
November 2, 2011
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a petition brought against the Commission on Judicial Conduct and the New York County District Attorney:
In 2008, petitioner, a former lawyer, was convicted of murder in the second degree and solicitation in the second degree for having used his "mob connections" to hire a hit man to kill the estranged husband of a client he was representing in an acrimonious divorce proceeding. The respondent Assistant District Attorney prosecuted the case, and a Supreme Court Justice presided over the trial. While serving his sentence, petitioner filed a complaint against the trial judge with the Commission, alleging improper conduct during the trial. The Commission dismissed the complaint. Meanwhile, the Department of Corrections (DOCS) placed the names of the 49 witnesses who had testified against petitioner at the trial on petitioner's "Negative Correspondence List," pursuant to the ADA's request, after one of the witnesses called and informed the ADA that petitioner had sent letters to her at her place of business. Petitioner commenced this CPLR article 78 proceeding seeking to compel the Commission to thoroughly investigate his complaint against the trial judge, to prohibit the ADA from compelling the DOCS to impose the Negative Correspondence List, and to compel the ADA to withdraw his request and cancel the list.
The court [below] properly concluded that the petition, as asserted against the Commission, is time-barred (see CPLR 217). Petitioner filed his complaint on May 6, 2008, and the Commission informed him of its dismissal by letter dated January 20, 2009. As petitioner acknowledged receipt of the dismissal of the complaint in his January 26, 2009 letter, he had until May 26, 2009, at the latest, to file the petition. He did not do so until October 6, 2009. Even if the merits were considered, dismissal of the petition is warranted. The Commission has the authority to "dismiss the complaint if it determines that the complaint on its face lacks merit" (Judiciary Law § 44), and its "determination whether or not a complaint on its face lacks merit involves an exercise of discretion that is not amenable to mandamus" (Mantell v New York State Commn. on Jud. Conduct, 277 AD2d 96, 96 , lv denied 96 NY2d 706 ).
The court also properly dismissed the petition as asserted against the ADA. Aside from petitioner's failure to exhaust his administrative remedy, a writ of prohibition did not lie here, as the ADA was not acting in a judicial or quasi-judicial capacity. Accordingly, the ADA did not exceed any legal authority, when he wrote the letter to DOCS requesting that DOCS take all legal and proper steps to prevent petitioner from harassing any of the People's witnesses. The ADA was not "representing the State in its efforts to bring individuals accused of crimes to justice" (Matter of McGinley v Hynes, 51 NY2d 116, 123 , cert denied 450 US 918 ; see also Matter of Schumer v Holtzman, 60 NY2d 46, 51-52 ). Nor was mandamus relief available to compel the ADA to direct DOCS to disregard his request to impose the Negative Correspondence List and to cancel the list, as the ADA had no duty and was not mandated by law to direct DOCS to act (see Matter of Blase v Axelrod, 67 NY2d 642 ).We have considered petitioner's remaining arguments and find them unavailing.
A False Report
More from the California Bar Journal:
[An attorney] was suspended for one year, stayed, placed on one year of probation and was ordered to take the MPRE within one year. The order took effect April 29, 2011.
[The attorney] stipulated that he made a false emergency report to 911, violating California law.
While representing the husband in a family law matter, [he] saw the wife’s lawyer drive away in his car after a hearing where both lawyers had appeared. [He] called 911 and falsely reported a drunk driver, whom he identified as the opposing lawyer. He also gave a description and license plate of the car as well as the route the other lawyer was driving. The other lawyer was not under the influence, but was pulled over by the California Highway Patrol.
In mitigation, [the attorney] had no prior discipline record, submitted proof of his good character and cooperated with the bar’s investigation. His misconduct caused significant harm to the administration of justice.
Must have been an acrimonious day in court. (Mike Frisch)
Left In Court
More from the November 2011 California Bar Journal:
[An attorney] was disbarred July 6, 2011, and was ordered to comply with rule 9.20 of the California Rules of Court.
[The attorney] pleaded guilty in 2009 to knowing possession of child pornography, a felony. A second count was dismissed as part of a plea bargain. He was placed on interim suspension that year and submitted his resignation to the State Bar. The Supreme Court rejected the resignation.
[He] admitted he downloaded numerous images of children under 18 engaged in sexual activity. He regularly appeared in Lake County Superior Court on juvenile dependency matters. A bailiff found a thumb drive [the attorney] had left in court and discovered child pornography had been downloaded on the drive.
"The Fantastic Fig" Gets Disbarred
The most recent online edition of the California Bar Journal features a report on the disbarment of an attorney who gained fame as a magician:
A Los Angeles lawyer described on his website as “a California icon” and an “L.A. legend” was disbarred in the fourth discipline matter filed against him since 2005. PAUL F. FEGEN [#31680] earlier left his law practice to pursue an emerging career as a professional magician known as The Fantastic Fig, who, he claims, is “guaranteed to amaze.”
The attorney was admitted in 1961 and practiced for 44 years without bar problems until a 2005 matter.
The report states:
According to the stipulation reached with the State Bar, Fegen drew a measure of fame for originating a subleasing concept called Fegen Suites that permitted solo practitioners and small firms to lease shared office space at a nominal cost while enjoying the amenities of a large law firm. At its height, Fegen had 250 leased floors, occupying 7.5 million square feet, in 26 states. The “suites” had 10,000 tenants and 600 employees. By providing concessions to newly admitted lawyers, Fegen helped them establish themselves for as little as $50 per month.
The business came to an end with a 1982 real estate market crash that left Fegen with empty office space primarily in Houston and Las Vegas. He eventually sold the business.
According to his website, Fegen worked his way through school as a dance instructor, a clown and a juggler before getting his law degree from the University of Southern California. Admitted to the bar in 1961, he specialized in entertainment law and personal injury work and enjoyed financial success. The site claims he has settled 5,000-plus cases for more than $30 million. He also became a television celebrity and was honored for his contributions to the legal profession with a Los Angeles City Council resolution signed by Mayor Tom Bradley.
Fegen’s disbarment resulted from cases that originated in 2005, ’06 and ’07 and resulted in admissions of disobeying court orders and failures to perform legal services competently and keep a client informed of developments in her case.
He did not appear at a case management conference and his client’s case was dismissed. Fegen won a motion to vacate the dismissal after telling the court his non-appearance was the result of personal problems regarding foreclosure of his home, a misplaced file and calendaring errors. Nonetheless, he stipulated that he didn’t perform legal services competently.
He and his client were sanctioned in another matter when he didn’t respond to discovery requests and other motions. He paid $500 of the sanction but still owed $670 and he never told his client she too was sanctioned. In another case, he disobeyed court orders by failing to appear at two hearings.
Video of an appearence with Kathy Griffin is linked here. (Mike Frisch)
November 1, 2011
Vermont: Not Unethical To Lie To Break Dinner Date
The Vermont Professional Conduct Board has admonished an attorney (not named in the order) who was asked to create documents to memorialize past transactions but was "negligent in deciding not to indicate that the documents were created and signed years after the agreements were actually reached." The conduct was not intended to deceive or otherwise misrepresent the agreements.
The board noted that the Vermont Supreme Court had "recently clarified the scope of what level of conduct will result in a violation of [the Rule prohibting dishonesty, fraud, deceit or misrepresentation]."
The court said:
[We] are not prepared to believe that any dishonesty, such as giving a false reason for breaking a dinner engagement, would be actionable under the rules. Rather [the rule] prohibts conduct... that reflect's on an attorney's fitness to practice law, whether that conduct occurs in an attorney's personal or professional life.
A Fit Of Pique, A Reprimand
The Maryland Court of Appeals has imposed a reprimand of an attorney who cut-and-pasted a signature of an opposing attorney "with whom [he] had some history" on a stipulation filed with a court. The stipulation to which the signature was affixed had been altered.
The court majority (authored by Chief Judge Bell) concluded that the attorney had not engaged in willful misconduct as "while his alteration of the stipulation was intentional, he honestly believed that he was legally authorized to do so." There was no harm or prejudice as a result. The attorney did not benefit; rather, he lost his job.
Judge Adkins, joined by Judges Battaglia and Barbera, dissented:
...the majority has trivialized Respondent's serious misconduct of intentionally filing a forged document with the court. Whether Respondent intended to deceive the other attorney or not, he deceived the court when he presented a document that falsely purported to be signed by opposing counsel. This deserves more than a slap on the wrist.
The dissenters would impose a 90 day suspension.
One interesting aspect of the case is a history of animosity between the complaining attorney and the Respondent.
He had clerked for a firm while in law school where she was an associate attorney. She thought he was "arrogant and overbearing." He agreed that there was "bad blood" between them. He appears to have been motivated by anger and frustration with her.
The majority notes his expressions of remorse and efforts at rehabilitation: "These remedial actions dramatically reduce the likelihood that the conduct will be repeated." The dissent's take: "I submit that filing a forged document with the court, whether in a fit of pique at the other attorney or sheer aggressive behavior, is not to be so easily forgiven." (MIke Frisch)
October 31, 2011
Honking Horn As Protected Speech
The Washington State Supreme Court sustained a constitutional challenge to a county noise ordinance that prohibited honking for any reason other than public safety. A defendant was convicted for honking a car horn at 6 am in front of a neighbor's house.
The court majority:
A moment's reflection brings to mind numerous occasions in which a person honking a vehicle horn will be engaging in speech intended to communicate a message that will be understood in context. Examples might include: a driver of a carpool vehicle who toots a horn to let a coworker know it is time to go, a driver who enthusiastically responds to a sign that says "honk if you support our troops,"wedding guests who celebrate nuptials by sounding their horns, and a motorist who honks a horn in support of an individual picketing on a street corner. Thus, we reject the Court of Appeals' conclusion that horn honking is a type of conduct that does not involve speech. Immelt, 150 Wn. App. at 687. Horn honking does constitute protected speech in many instances, regardless of whether it would constitute protected speech in Immelt's particular case...
The horn ordinance here does not survive scrutiny. It is substantially overbroad, "not only in an absolute sense, but also relative to the statute's plainly legitimate sweep." Williams, 553 U.S. at 292. It prohibits a wide swath of expressive conduct in order to protect against a narrow category of public disturbances.
In its examples, the court fails to note the expressive value of honking at someone who cuts you off in traffic. (Mike Frisch)
Supporting Our Troops
The Oklahoma Supreme Court has entered an order providing that Bar Association members serving on active duty in the military in a combat zone may request waiver of annual bar dues:
Active OBA Members who are in an active duty and deployed status serving outside of the United States or one of its territories with the Armed Forces of the United States in a combat zone or receiving "Imminent Danger Pay" (Combat Pay) or "hardship duty pay" in any given year may request that dues be waived for that year. A request for a waiver of dues, along with sufficient supporting documentation of service, shall be submitted to the Executive Director of the Oklahoma Bar Association as soon as reasonably practical. Members requesting such dues waiver shall have the right to appeal any administrative decisions made by the Executive Director to the Board of Governors of the Oklahoma Bar Association and ultimately to the Oklahoma Supreme Court. In the event the member is not able to submit the request personally, such request can be made by a family member, law partner or other such person having authority to act on behalf of the member.
The yearly dues are $275.00 (Mike Frisch)
Me And Bobby McGee
The Tennessee Supreme Court has disbarred attorney Bobby McGee as a consequence of a criminal conviction. He was convicted of two counts of using interstate commerce to induce a minor to engage in sexual activity and possession of 185 images of child pornography.
NewsChannel5.com reported on the charges:
As NewsChannel 5 reporter Jeff Tang discovered, some of the evidence against McGee is pretty disturbing.
Investigators allege that Bobby McGee was looking for someone to engage in a master-slave bondage relationship with him. An affidavit obtained by NewsChannel 5 describes conversations between McGee and someone he thought was a mother of two young children.
For more than 20 years McGee's Linden, Tennessee law office opened its doors to abuse victims.
An advocate for women and children's rights, McGee is now involved in cases involving the cases of abused children, custody of children.
Now McGee is accused of being the very kind of criminal he once fought to keep children away from.
According to the report, McGee had previously been suspended for sex with clients. (Mike Frisch)
An attorney who was indefinitely suspended in 2005 continued to engage in practice notwithstanding his status.
The Maryland Court of Appeals found that the continuing practice warranted the ultimate sanction:
When a member of the legal profession consistently violates the Rules of Professional Conduct and continues to disregard repeated admonitions in derogation of the trust and confidence of the public, disbarment is the only remedy.
The attorney's name is Peter Maignan. (Mike Frisch)
I Fought The Law
An attorney admitted to the Massachusetts Bar in 2006 failed to disclose a serious traffic incident in a series of applications for bar admission.
He did not report a 1999 incident where he was charged with leaving the scene of a property damage accident, driving while uninsured and on a suspended license. The charges were dismissed after he made restitution.
The attorney "mistakenly and unreasonably" believed that he was not obligated to report the incident because the charges were eventually dismissed.
He has now been suspended for 15 months retroactive to a previously-imposed interim suspension.
According to the Board of Bar Overseers summary of the matter, his problems with the law continued after his admission:
The respondent was admitted to the bar on June 21, 2006. On July 11, 2008, he admitted
to sufficient facts in Taunton District Court to possession of a Class B drug in violation of G.L.
c. 94C, § 34. The case was continued without a finding to July 10, 2009. On July 31, 2008, the
respondent admitted to sufficient facts in Taunton District Court to violating an abuse prevention
order in violation of G.L. c. 209A, § 7. The person who had the restraining order had initiated
the contact with the respondent. The case was continued without a finding for three months, but
the respondent was found in violation of probation on April 12, 2010, and the respondent’s
probation was extended for another four months. On September 17, 2008, the respondent
admitted to sufficient facts in Taunton District Court to concealing, selling, or pledging leased
personalty, a laptop, in violation of G.L. c. 266, § 87. That case was continued without a finding
for six months, and the respondent was ordered to pay restitution of $1,574.55 to Rent-A-Center.
The respondent was found in violation of probation in this matter, and his probation was
extended for four months. On March 2, 2010, the respondent was convicted of unlicensed
operation of a motor vehicle and was fined $100. Except for the March 2010 conviction, the
respondent violated S. J. C. Rule 4:01, § 12(8), by not reporting these convictions as defined by
S. J. C. Rule 4:01, § 12(1), to bar counsel.
Violation of an abuse prevention order and concealing, selling, or pledging leased
personalty are “serious crimes"...