November 24, 2011
Concealing First Marriage From Second "Wife" Violates Ethics Rules
The web page of the Massachusetts Board of Bar Overseers reports that an attorney was suspended for a year and a day for misconduct relating to his bigamous second marriage.
The attorney married Jacqueline in 1974. They separated in 1979. He was admitted to practice in Massachusetts in 1988.
He then met Sheila and married her in 1995. He had not gotten divorced from Jacqueline and falsely certified that the marriage was his first.
His child with Sheila was born in 2000.
Sheila was unaware of the marriage to Jacqueline until out-of-state divorce papers were served on her in 2001. She secured an annulment and was awarded sole custody of the child.
The summary reports that the attorney engaged in dishonest conduct not only in his false certification on the marriage documents. He also violated his duty of honesty toward his purported wife Sheila by concealing the truth from her.
The attorney also failed to participate in the bar proceedings.(Mike Frisch)
November 23, 2011
Kentucky Disciplinary Counsel "No Longer Employed By The Bar Association"
The Louisville Courier-Journal reports that Kentucky's Chief Disciplinary Counsel has been terminated from her position:
The Kentucky Bar Association’s chief disciplinary counsel, Linda Gosnell, who investigated the state’s fen-phen scandal and won the disbarment of several lawyers, has been ousted from her position.
Kentucky Bar Association President Margaret Keane said Monday night that “Gosnell is no longer employed by the bar association.”
Keane declined to elaborate.
Asked why she was forced out, Gosnell said in a phone interview Monday night: “You’ll have to ask the KBA. I’m not going to talk to you.”
Retired Judge Stan Billingsley reported Monday on his blog LawReader that Gosnell was fired.
He speculated that that she may have been ousted because of information revealed in the fen-phen case after a federal judge ordered an accounting of money collected from disbarred lawyers William Gallion, Shirley Cunningham Jr. and Melbourne Mills Jr.
Thanks to Rick Underwood for advising us of this situation. (Mike Frisch)
Florida Judge Removed From Office
The Florida Supreme Court has ordered the removal from office of a Circuit Judge.
The misconduct involved a number of matters. One was an illegal $30,000 loan from his mother for his campaign for judicial office.The court found that he had gained office through illegal means.
After he was elected, he engaged in the unauthorized practice of law by representing his mother in a foreclosure action.
Another violation related to his interactions with a female subordinate employee. The judge was a cancer survivor. The employee had a child with cancer. He "injected himself" into the employee and her son's life in an unwanted and somewhat obsessive manner. His interest was not sexual but apparently a product of his loneliness.
A panel rejected additional charges of misconduct involving inappropriate remarks and unwanted physical contact with female subordinate employees.
The court declined to address the judge's Constitutional challenges to other charges relating to the conduct of his campaign. (Mike Frisch)
No Longer Just Visiting
An attorney who attempted to smuggle drugs into a correctional facility has been suspended for two years by the Pennsylvania Supreme Court. The screening procedures at the facility found heroin and Xanax.
The facility uses an ion scan for visitors. As the scan was about to be done for a third time, a bag containing drugs was found at the attorney's feet. He denied that it came from him.
The attorney was attempting to deliver the drugs to a person he falsely identified as his client. A search of his car revealed additional drugs.
He was arrested and pled guilty to possession with intent to deliver a controlled substance. He was sentenced to 18-36 months and currently resides at Correctional Institute Laurel Highlands.
Presumably any visitors will show better judgment than the attorney displayed.
The suspension was imposed effective as of the date of an earlier interim suspension. The attorney consented to the sanction. One mitigating factor was that the attorney's own addiction was a cause of the misconduct. (Mike Frisch)
November 22, 2011
TV OK, Pay Not, For Judge
A recent opinion of the Florida Judicial Ethics Advisory Committee holds:
May a judge permit criminal arraignments to be broadcast nationally on television by a regular network?
May a judge be paid pursuant to a contract with a television network for a teaching segment which would involve explaining the law, sentencing choices, and interviewing different “players” in the court system?
The committee's conclusion:
...the proposed activity is proscribed by Canon 3(B)(9) which provides in part as follows:
(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing.
This Canon prohibits public comment, not only on the inquiring judge’s pending or impending cases, but on pending or impending cases in any court, if the comment might reasonably be expected to affect its outcome or impair its fairness. Teaching segments, such as suggested by the judge, may reasonably be expected to impair the fairness of the tribunal. Therefore, this Committee recommends that no judge should make public comments on pending or impending cases.
Investigative Report Of Outside Counsel Not Discoverable
The Delaware Supreme Court has affirmed a Court of Chancery decision to deny a litigant access to a report prepared by outside counsel (Covington & Burling) for Hewlett-Packard Company in connection with an internal investigation into allegations of sexual harassment by former Chief Executive Officer Mark Hurd.
The allegations at issue came from attorney Gloria Allred on behalf of a client named Jodie Fisher, a former HP contractor. Hurd reached a confidential settlement and departed HP.
The company was then the subject of shareholder derivitave actions. The plaintiff here had filed an action seeking access to HP's books and records.
The court concluded that the plaintiff had failed to show that the report "is essential to his stated purpose, which is to investigate possible corporate wrongdoing." (Mike Frisch)
The CSI Effect
The Maryland Court of Appeals has reversed a conviction for sexual assault and assault because the court gave a so-called "anti-CSI effect" jury instruction.
The court was unpersuaded that the TV show has created a phenonenon that permits the use of such an instruction absent some need to cure "pre-existing overreaching by the defense...." The instruction "is fraught with potential for reversible error" and may diminish the requirement of proof beyond a reasonable doubt.
The instruction advises a jury that "there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case."
The court may revisit the issue if scholarly research establishes that there is a CSI effect. (Mike Frisch)
Reinstatement Petition Leads To Disbarment
An attorney who had petitioned for reinstatement in South Carolina got disbarred for the effort.
The attorney had failed to advise South Carolina authorities of his disbarment in North Carolina:
Since we disbar petitioner/respondent from the practice of law pursuant to the reciprocal disciplinary provisions of Rule 29, RLDE, we deny his Petition for Reinstatement. Further, the Court is extremely troubled by petitioner/respondent's failure to inform the Committee that he had been disbarred by the North Carolina State Bar on September 9, 2010, one month before the hearing on his Petition for Reinstatement. While we recognize Rule 33, RLDE, did not specifically require petitioner/respondent to inform the Committee of the North Carolina Order of Discipline, petitioner/respondent affirmatively stated to the Committee "I haven't had any prior disciplinary orders except for this one [the Court's order suspending him from the practice of law in South Carolina]." This was patently untrue. Further, although he responded to numerous questions posed by the Committee about the bank fraud underlying his misprision of felony conviction, petitioner/respondent never advised the Committee that he had been disbarred in North Carolina as a result of his complicity in the bank fraud. Petitioner/respondent's statement and omission indicate a lack of honesty, candor, and integrity which, alone, constitute a basis for denying his Petition for Reinstatement...
Honor Thy Father And Mother But Seek To Hold Father In Contempt
The South Carolina Supreme Court has imposed a two year suspension retroactive to a previously imposed interim suspension.
The court apparently did not find a violation in the following alleged conflict of interest:
Respondent's parents divorced in 1981. Sometime after the divorce, a dispute arose as to whether Respondent's father had complied with the division of certain real property. Respondent initiated an action in which he represented his mother against his father. On January 6, 1997, the family court issued an order that required the father to transfer certain property to Respondent's mother. When the father did not comply, Respondent filed a Petition for a Rule to Show Cause in April 2001 to determine whether his father should be held in contempt for failing to deed the property as required by the order.
During the time that Respondent represented his mother adverse to his father, Respondent also represented his father in a legal malpractice action. Respondent's representation of his father began in 1999 and continued through the conclusion of the appeal in June of 2003. Additionally, an opinion by the Court of Appeals lists Respondent as the attorney for his mother and father in an appeal during this same time period.
Respondent testified both parents were aware of his dual representation and he had advised his father that the mother's case had priority. There is no evidence in the record to refute Respondent's testimony.
The court found that the attorney had created false evidence in a civil case and rejected his arguments concerning a number of alleged procedural irregularities in the bar process. (Mike Frisch)
November 21, 2011
Complainant Cannot Compel Bar Counsel Action
In a case styled In the Matter of a Request for an Investigation of Attorneys, the Massachusetts Supreme Judicial Court held as follows:
The petitioner appeals from a judgment of a single justice of this court dismissing her petition for relief in the nature of mandamus. She sought an order compelling the Board of Bar Overseers to cause the Office of the Bar Counsel to reopen disciplinary proceedings against several attorneys as to whom she had filed one or more grievances. Her petition was correctly dismissed for the reason stated by the single justice: "A complainant ... cannot commence a judicial action challenging bar counsel's decision and seek a judicial order compelling bar counsel to act in a certain way. There simply is no such private right of action." Matter of a Request for an Investigation of an Attorney, 449 Mass. 1013, 1014 (2007).
The Spirit Of Christmas
An attorney suspended for two years in 2009 was suspended for an additional year and until further court order by the New Jerset Supreme Court.
The misconduct involved the complaint of a client who the attorney represented prior to the first suspension.
According to the Disiplinary Review Board, the "most troubling" violations involved a Christmas Eve visit to the client at his workplace by the attorney's brother. The brother acted at the attorney's direction. The visit "evidenc[ed] a shake down of [the attorney's] own client." The threats and intimidation of the client continued past the attorney's January 2, 2009 suspension.
The attorney defaulted on the charges. (Mike Frisch)
Freeze Play Doesn't Work
The New Jersey Supreme Court has reprimanded an attorney who released escrow funds to his client without the necessary authority of the opposing party. The attorney, who had no prior discipline in 38 years of practice, was representing a client in a bitter divorce case.
The Disciplinary Review Board found that the attorney's conduct involved improper "self-help" but not knowing misappropriation. However, the attorney attempted by agreement to prevent the filing of an ethical complaint, which was additional misconduct:
That respondent knew that [the agreement] eliminating [the opposing party's]] right to file a grievance against him, was unenforceable is without moment. The point was that he wanted [her] to believe it was enforceable. In repondent's own words, he sought to "freeze" her from filing a grievance against him, so that he could continue to represent [his client].