April 13, 2012
Accused Purse Snatcher Is Disbarred Lawyer
The Associated Press has a news story about an alleged purse snatching at an outdoor table of an Annapolis, Maryland restaurant last Monday. The victim ran after a man who she saw running with her Louis Vuitton purse. She caught up with him. He then sought to return her cash and asked that she refrain from contacting the police.
The man was Egan O'Brien, who was charged with two counts of theft.
MyFoxDC has a video report.
As Paul Harvey would say, the rest of the story is that the accused is a former member of the legal profession, disbarred by consent in Maryland and reciprocally disbarred in the District of Columbia. (Mike Frisch)
Lactating Mothers Protected In Medical Licensing Exam
The Massachusetts Supreme Judicial Court has vacated a dismissal of a complaint brought by a medical student and nursing mother against the National Board of Medical Examiners, which administer the United State medical licensing examination:
We conclude that, in refusing to provide additional break time to Currier during the exam, the NBME did not violate the civil rights act because its conduct did not amount to coercion under that act. The judge, therefore, properly granted summary judgment to the NBME on this claim. We further conclude that Currier proffered sufficient evidence to raise a genuine issue of material fact as to whether the NBME violated her rights under the equal rights act. Thus, summary judgment on that count is inappropriate. Concerning Currier's claim under the public accommodation statute, we reject the legal arguments advanced by the NBME regarding the application of that statute to these circumstances, and conclude that Currier is entitled to summary judgment on that claim. Because Currier is entitled to statutory relief under the public accommodation statute (and possibly also under the equal rights act), we do not decide her constitutional claim...Our decision in the context of the equal rights act and public accommodation statute counts, that lactation is a sex-linked classification, recognizes that there remain barriers that prevent new mothers from being able to breastfeed or express breast milk. We take this opportunity to extend protection to lactating mothers in the context of lengthy testing required for medical licensure.
The case is Currier v. National Board of Medical Examiners, decided April 13, 2012. (Mike Frisch)
Lying Lawyer Forgiven By Spouse And The Bar
An attorney who lied under oath in his own divorce proceeding has been publicly censured by the Tennessee Board of Professional Responsibility.
According to the public censure:
During Respondent's own divorce, he responded to an interrogatory untruthfully and swore to the truthfulness of the answer. Respondent was deposed in the divorce action and testified that his answers to the interrogatories were truthful. He further untruthfully testified in response to detailed questions about the subject. When confronted with demonstrative evidence later in the deposition, Respondent admitted that he had been untruthful in his prior testimony. Respondent and his wife eventually reconciled, and the divorce action was dismissed.
Respondent lied under oath on at least three occasions about events that were material to the divorce action. Respondent's conduct was prejudicial to the administration of justice, dishonest, and repetitive. Respondent self-reported his conduct.
April 12, 2012
Conviction Reversed: Inadequate Inquiry Into Right To Self-Representation
A first degree robbery conviction was reversed by the New Jersey Supreme Court.
The defendant had expressed a desire to proceed without counsel. The court here held that the ensuing inquiry by the trial court was insufficent to establish that the defendant was not competent to represent himself.
The judge asked the defendant if he knew was a statute was and whether he was aware of the statutory penalty for robbery. He did not. The defendant declined to describe how he would defend himself. When he pressed his desire to represent himself, the judge denied the request and concluded that the defendant did not understand the consequences of his decision. (Mike Frisch)
Record Removal Conviction Draws Censure After Interim Suspension
The New York Appellate Division for the Second Judicial Department has imposed a censure of an attorney convicted of a criminal offense in Michigan:
On February 2, 2010, the respondent pleaded guilty in Michigan Circuit Court for the County of Washentaw (Shelton, J.) to removal of public records, as a result of his unauthorized removal of records from the Washentaw County courthouse. On March 16, 2010, the respondent was ordered to pay a fine of $100, court costs of $400, and a crime victim's assessment fee of $50. The respondent's sentence of 30 days in the county jail, based upon his inability to pay the fine, costs, and assessment fee on the day of sentencing was stayed and, ultimately, suspended based upon his timely payment of the fine, costs, and assessment fee. The respondent also was barred from accessing any court files without prior written permission.
The attorney had been suspended as a result of the conviction since May 2011. (Mike Frisch)
Second Time No Charm
An attorney convicted of a second alcohol-related driving offense has received a stayed 90-day suspension from the Indiana Supreme Court. The attorney is subject to a probationary period of 24 months.
The first offense took place after the attorney had passed the 1998 bar exam but prior to admission. He reported the offense to the admitting authorities. The second offense (which led to this sanction) occurred in January 2011.
The attorney is now in the bar treatment program. This was an agreed disposition of the charges. (Mike Frisch)
Attorney Charged With False Accusations
The Illinois Administrator has filed a complaint that alleges misconduct against an attorney. The complaint alleges that the attorney made false statements about judges and a former client as well as an improper statement about a third party.
In one count, the attorney is accused of this falsity:
...Respondent prepared and sent a letter to the [opposing] attorney, Eric Terlizzi, which stated, in part:
I have never lost any appeal, and I was not going to allow three appellate court justices (who apparently knew absolutely nothing about the law of constructive trusts) to ruin my perfect record, particularly since I knew more law than anyone involved in this case (especially Judge Sauer). Marion County is much better off without him on the bench, given the possibility that he might have been involved with "nose candy" habits, a rumor with some support about which I became aware soon after my entrance into the case. (emphasis in original)
Respondent intended for "nose candy habits" to mean cocaine use. Respondent had no reasonable basis for alleging that Judge Sauer used cocaine. Respondent made the statements with reckless disregard for their truth or falsity.
In a child support case:
...Respondent prepared and sent a letter to [opposing paty] Diaz’s attorney, Aaron Hopkins (hereinafter "Hopkins"). The letter stated, in part: "[Diaz] cannot seem to abide by the Court’s order of July [sic] 13, 2011. It’s a damn shame that the judge cannot sentence [Diaz] to hang by the neck until dead, dead, dead."
...Respondent prepared and sent a letter to Hopkins. The letter stated, in part: "[Diaz] is a lousy father, as well as a drunk, and, as you know, has recently been charged with yet another battery upon a woman (making him also a coward)."
The attorney also is charged with a DUI conviction in Texas and failing to advise the Illinois Bar of the conviction. (Mike Frisch)
April 11, 2012
The Unsafe Safe
The Oklahoma Supreme Court has disbarred an assistant district attorney convicted on his nolo contendre plea to the charge of embezzlement by a officer.
The Newkirk Herald Jounrnal had this report on the plea:
Former First Assistant District Attorney for District 8 in Kay County, William Louis Clark, Jr., entered a plea of no contest on Thursday in Lincoln County District Court to one count of Embezzlement by Officer.
On Lums Pond
The Delaware Supreme Court has disbarred an attorney suspended in May 2009. Among the ethical violations found were misleading the police in connection with a traffic accident and failing to accurately report the circumstances in his reinstatement application questionnaire.
The suspension had involved false notarizations and other misconduct.
The attorney was found to have engaged in unauthorized practice after his suspension. He also had conducted a real estate settlement while under the influence of alcohol.
In another alcohol-related incident, he was with his son at a place called Lums Pond. The son did not want to change out of his bathing suit in a public bathroom. They changed clothes in the parking lot. A couple and their child "observed [him] naked from the waist down." He was charged with indecent exposure and an alcohol violation. He pled guilty to the charges.
The traffic accident involved only his car. He went home and, when the police arrived, he greeting them with a glass of wine in hand. He was found to have frustrated the police investigation by drinking after the accident.
The court offers an interesting history of the "use no falsehood" oath of an attorney. (Mike Frisch)
Cynthia Epstein on women in the legal profession
Cynthia Fuchs Epstein (CUNY, Sociology) has republished her classic and foundational study Women in Law as part of the Quid Pro book project. It adds a new Foreword by Stanford's Deborah Rhode. Excerpt on the demise of 'Ladies' Day' in law schools, and other info, found at MsJD blog. And the book itself is at Amazon in paperback or Kindle, plus B&N for Nook and Apple iBooks. Although the book certainly covers women as law students and in law teaching, most chapters are about professional practice as such, in firms, solo practice, public interest work, government, and the judiciary.
Also out in paperback is a book I edited, written by Tulane students: Hot Topics in the Legal Profession 2012. Those two are the newest ones on topic with the U.S. legal profession. Upcoming is a reissue in paperback of Llewellyn's The Bramble Bush, though already in Kindle and other ebook formats. [Alan Childress]
Call for scholarly submissions for annual Fred Zacharias Prize
Honoring the memory of a professional responsibility leader and a nice person, this prize is for current scholarship. Last year's recipient noted here. Thanks to Sam Levine for the new notice:
Submissions and nominations of articles are now being accepted for the third
annual Fred C. Zacharias Memorial Prize for Scholarship in Professional
Responsibility. To honor Fred's memory, the committee will select from among
articles in the field of Professional Responsibility with a publication date
of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New
Orleans. Please send submissions and nominations to Professor Samuel Levine
at Touro Law Center: email@example.com. The
deadline for submissions and nominations is September 1, 2012.
April 10, 2012
An attorney who has failed to pay child support has been suspended by the New York Appellate Division for the First Judicial Department:
...the Superior Court of Puerto Rico issued an order finding that respondent had failed to make child support payments for over 36 months and was $90,897.84 in arrears. Based on New York Domestic Relations Law § 244-c, which provides for the suspension of a professional license if the bearer of such license has arrears in child support obligations amounting to four months or more, the Superior Court referred the matter to the Third Judicial Department, where respondent was admitted. The Third Department forwarded the order to this Court, based on the fact that respondent maintains an office in this Department. This Court, in turn, referred the matter to the Committee, which commenced a proceeding pursuant to Judiciary Law § 90(2-a).
In accordance with Judiciary Law § 90(2-a), the Committee, in September 2011, served respondent with a notice of hearing, informing respondent that a Hearing Panel would convene on October 5, 2011 solely to consider whether proof existed that respondent had made full payment of all arrears owed. Respondent was further advised that he could appear in person or by counsel to present such proof, which must be in the form of a certified check showing full payment of the established arrears, or a notice issued by the support collection unit designed by the appropriate social services agency stating that full payment of all support arrears had been made.
A few days prior to the hearing, respondent submitted a purported "Motion to Dismiss and Terminate Proceedings", arguing, among other things, various due process violations, that there was no proper referral under Domestic Relations Law § 244-c because the order at issue was submitted by a private party, and attacked the authenticity of the Superior Court's order. Respondent also claimed that he was not domiciled in Puerto Rico but was admitted as a resident of New York City's Department of Homeless Services, and was receiving public assistance as of July/August 2011. The motion to dismiss did not include any proof of any payment of child support arrearages.
The suspension will remain in effect until the court is satisfied that the arrearages have been paid in full and until further court order. (Mike Frisch)
Till Death Do I Inherit
The California State Bar Court Review Department has recommended that an attorney be disbarred for taking advantage of a client who had retained her to help him plan his estate. It turned out that she had a plan for his estate -- to inherit it a piece of it herself.
The attorney became romantically involved with a client who was 85 years old and suffering from emphysema and terminal cancer. She was 31 years his junior. She "married him shortly before he died, after filing a false confidential marriage license." She misappropriated nearly $340,000 of his assets upon his death.
The review department summarized its basis for the recommendation:
In simple terms, [the attorney] took financial advantage of a sick, elderly client - conduct the hearing judge rightly called "heartless and egregious." Given [her] lack of insight, we agree with the hearing judge that "disbarment is the only adequate means of protecting the public from further wrongdoing."
The client had family in Norway and assets of over a million dollars. He transferred the nearly $340,000 to a joint account that he opened with the attorney. The transfer was to her "as his attorney, to use for his care." As his health deteriorated, the attorney promised to take care of him. Although the Norwegian relatives were aware of the transfer of funnds, they understood that the money would be used for the client's care and that the unused portion would be returned.
When the attorney told the client that she wanted to marry him, he agreed. The confidential marriage application was intended to conceal the marriage from her minor daughter and the client's Norwegian relatives. The application falsely stated that they were living together.
After the marriage, the client told his relatives that he was "fed up" with the spouse-attorney because she was not taking care of him as promised. He moved into a senior care facility. She brought him home for the weekend but he did not appear well. She took him to the hospital but did not stay with him. He died the next day.
The hearing officer found that the attorney had the client cremated against his wishes. His will had donated his body to medical science.
The attorney moved the joint funds into her own bank account and filed a petition to remove the Norwegian nieces as co-trustees of the trust created for the client. The court denied the petition and imposed sanctions on the attorney. The nieces filed a bar complaint.
The attorney then filed a first amended spousal property petition. The court granted summary judgment against the attorney because the false application rendered the marriage void. The attorney appealed. The First District Court of Appeal affirmed and referred its opinion to the State Bar.
The attorney had no prior discipline in thirty years of practice. (Mike Frisch)
The Foreclosed Judge
The Florida Judicial Ethics Advisory Committee has a recent opinion on the ethical issues that face a judicial officer who is a co-defendant in a foreclosure action:
Whether a judge, who, with the judge's spouse, are tenant/ defendants in a residential condominium foreclosure proceeding, must recuse himself/herself from all residential foreclosure proceedings.
If recusal is not required, whether a judge who, with the judge's spouse, are tenant/ defendants in a residential condominium foreclosure proceeding, must disclose that status to all residential foreclosure litigants.
If recusal is not required, and if disclosure to all residential foreclosure litigants is not required, whether a judge who, with the judge's spouse, are tenant/ defendants in a residential condominium foreclosure proceeding, must disclose that status to litigants who present motions for writs of possession or objections for the judge's consideration or to litigants in residential foreclosure cases involving tenant occupied residential properties.
April 9, 2012
Not Now, Not Ever
The Louisiana Supreme Court has not only denied a bar applicant's fourth attempt to secure admission. The court also decided to "permanently prohibit her from reapplying in the future."
As a 3L, the applicant served as the president of her law school's Student Bar Association. She graduated and passed the 1997 Louisiana Bar examination.
The day before she was to be sworn in, her law school rescinded her Dean's Certificate in light of allegations of embezzlement of SBA funds. As a result, admission was denied (the certificate is required) and a commissioner was appointed to take character and fitness evidence.
The record established that she destroyed SBA records that she had in her possession, failed to cooperate and "forged the signature of her attorney on a letter directing her bank not to comply with a subpoena issued by her law school."
An investigation by the Office of Disciplinary Counsel established that she had engaged in the unauthorized practice of law and improper fee sharing with an attorney.
Given the egregious nature of [her] wrongdoing, as well as her pattern of misconduct occurring over many years, we can conceive of no circumstance under which we would ever grant her admission to the practice of law in this state.
New Internet Scam - Fake Amazon Shipping Notice
I provide this as a public service.
I just got an e-mail that looked just like the usual notice from Amazon that an item has shipped. The shipping address was not to my house, however.
My first thought was that somebody had hacked my Amazon account. When I clicked on "track my orders," it redirected me to some bogus site and then quickly to my Amazon log in page. I then looked back at the return email address and it was from somebody at a yahoo.com email address. No doubt this is designed to get your Amazon user name and password.
I've since changed my Amazon password and confirmed that indeed there are no open orders.
Reprimand For Stalking Conviction
The Idaho State Bar web page reports on a public reprimand of an attorney:
The Professional Conduct Board of the Idaho State Bar has issued a Public Reprimand to Idaho Falls lawyer, Blake G. Hall, based on professional misconduct.
The Professional Conduct Board Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding, in which Mr. Hall admitted that he violated Idaho Rule of Professional Conduct 8.4(b) [Commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects].
The Complaint related to Mr. Hall’s conviction for misdemeanor stalking in 2009. The circumstances of that conviction were that for a period following the breakup of a relationship with a former girlfriend, Respondent engaged in a course of conduct which led to him being charged with stalking. Mr. Hall entered an Alford plea to the charge and was sentenced to 180 days in jail, of which 165 were suspended. Mr. Hall was also ordered to pay a fine and court costs, was placed on supervised probation for one year, and was ordered to have no contact with the victim. Mr. Hall complied with all terms of his sentence and thereafter the Court granted his motion for a withheld judgment and the case was dismissed.
The public reprimand does not limit Mr. Hall’s eligibility to practice law.
AlterNet had this November 2009 story about the attorney's criminal case:
Blake Hall, a leading figure in Idaho and national politics for 25 years, was fired Monday as a deputy prosecuting attorney in eastern Idaho and has resigned from the Republican National Committee. [...]
Idaho Falls police reported that witnesses said Hall disposed of used condoms on the lawn of the woman's house. Nineteen condoms were turned over to police, collected on 10 different dates, according to a police report. Both Hall and his lawyer acknowledged the condoms belonged to him, according to a police report. [...]
"I was so tired of being victimized," the woman said. "It is unimaginable that a 56-year-old would be so deviant."
In Confidence Redux
An Illinois Hearing Board has found that an attorney engaged in misconduct in the representation of two criminal defendants. The board recommends a six-month suspension.
In one matter, the board rejected charges that the attorney provided incompetent representation in a murder case but found that the attorney revealed confidential information to the prosecutor.
The information involved the client's disclosure of new information about the charged offense five days before trial:
In this case, [the client] Mays testified that the Respondent asked him if he could inform the state's attorney about what Mays said, and that Mays told him "no." The Respondent, on the other hand, testified that he did not specifically asked Mays if he could tell anyone about what Mays told him, and that Respondent "did not get written [or] verbal permission" from Mays to disclose Mays' statements. However, the Respondent claimed that it "was implied" that he could disclose the statements.
As stated above, there is a sharp conflict as to what was said by the Respondent and Mays regarding the disclosure of Mays' statements. We conclude that it was not clearly established that the Respondent violated an express directive from Mays not to disclose the statements.
However, based upon the Respondent's own testimony he improperly disclosed Mays' statements.
We reject the position that consent to the disclosure a client's confidential statement may be implied. There is simply no reason for an attorney to rely on an implied consent when it is easy enough to specifically ask the client if he or she consents to disclosure. Also, to allow consent to be inferred would, we believe, lessen the strict requirements of the Rule. There is no doubt that Mays did not give consent to the Respondent to disclose Mays' statements to a prosecutor or to anyone else.
There is also no doubt that the Respondent failed to make any significant "disclosure" to Mays. In the Terminology section of the Rules of Professional Conduct, "disclosure" is defined as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." There was no evidence that the Respondent ever explained to Mays the possible ramifications of the strategy to disclose the confidential information to the state's attorney. Clearly, the Respondent did not advise Mays that his statements could establish his guilt of felony murder, because the Respondent did not realize, at the time, that Mays' statements could do so.
Consequently, the Respondent revealed the confidential statements of Mays without Mays' consent to do so, and without having informed Mays of the ramifications of the planned strategy resulting from revealing the statements.
The second case involved the conversion of and failure to return an unearned fee. (Mike Frisch)
A Massachusetts attorney has been admonished for improper disclosure of confidential information.
According to the summary on the web page of the Board of Bar Overseers:
In 1998, the respondent prepared estate planning documents for a husband and wife, including reciprocal wills. The wife died in 2009, but her will was not probated. In 2011, the respondent was approached by the couple's daughter-in-law who, unbeknownst to the respondent, was in divorce proceedings with the couple's son. Upon request of the daughter-in-law, the respondent revealed the existence and content of the wills of the husband and wife. The wills contained no specific information about family assets.
The New York Appellate Division for the Second Judicial Department has imposed a three-year suspension with conditions as reciprocal discipline based on a like sanction imposed by the Washington State Supreme Court.
One unusual aspect of the original case:
Since the respondent is a documented victim of domestic violence, it was further stipulated and agreed that the respondent would undergo an independent mental health evaluation by a licensed clinical psychologist or psychiatrist approved in advance by the Board; that the respondent would pay all costs associated with this examination and report, including the costs of obtaining medical records; and that, following reinstatement to the active practice of law, the respondent would be on probation pursuant to ELC rule 13.8 for a period of two years. During the probationary period, the respondent agreed to comply with any and all conditions recommended by the independent mental health examiner's report, such as demonstrated compliance with any recommended treatment plan. In the event there were any such conditions, the respondent agreed to promptly execute any necessary releases so that any treatment provider could report her compliance with the evaluator's or the treatment provider's recommendation no less than quarterly. Further, during the probationary period, the respondent was required to have her IOLTA account records reviewed by the Washington State Bar's auditors at six-month intervals. Finally, the respondent agreed to pay the costs of the auditor's time, at the auditor's hourly rate, as well as any other costs associated with the terms of her probation. The respondent resigned from the Washington State Bar in or about 2007, prior to her completion of the foregoing.
As to the New York discipline:
Since in or about 2007, the respondent avers that she has sought counseling from an organization known as "My Sister's Place," as well as private therapy. In the interim, she has sought regular, nonlegal employment while living with, and caring for, her mother. Currently, the respondent volunteers with the Hospice of Westchester as an administrative assistant in the Human Resources Department. The respondent also visits with patients.
Although the respondent has not practiced law since returning to New York, she avers that she has maintained her registration, and has taken the requisite Continuing Legal Education credits to maintain her skills.
The respondent does not contest the imposition of reciprocal discipline. Thus, there is no impediment to the imposition of same at this juncture.
While it appears that the respondent agreed to the discipline in Washington State, it strikes me as inappropriate (to put it mildly) to treat being as victim of domestic violence as an aggravating factor in a bar discipline case. (Mike Frisch)