Saturday, May 5, 2012
The Pennsylvania Supreme Court has approved a consent disposition and imposed a suspension of a year and a day of an attorney for misconduct relating to his unauthorized practice of law.
The attorney had accepted an associate position with a law firm that had a New Jersey office. He was required to be a member of the New Jersey Bar. However, his license in that jurisidiction had been revoked.
He tried to get reinstated and, when he could not, took and passed the New Jersey bar examination. He was held up in the character and fitness process. He nonetheless prcticed in New Jersey matters and falsely represented that he was authorized to do so.
There was mitigating evidence of psychological problems. (Mike Frisch)
Friday, May 4, 2012
The Nebraska Supreme Court has affirmed a felony tampering with evidence conviction.
The defendant was the supervisor of the Crime Scene Investigation Division (CSI") of the Douglas County sheriff's office. The tampering involved falsified DNA evidence in a murder case.
The court found that prior acts evidence was properly admitted.
The court also rejected the argument that the trial was was biased and improperly denied a motion to recuse.
The JournalStar.com had this report on the sentencing. (Mike Frisch)
The New Jersey Supreme Court agreed with the Disciplinary Review Board ("DRB") that a three-month suspension was the appropriate discipline for misconduct in two matters. The court reviewed two reports of the DRB that had proposed the suspension.
In one matter, the DRB found that the attorney's handling of a client's matter involved more than neglect. Rather, it reflected the attorney's "way of doing business."
The other matter, which involved a default and failure to cooperate by the attorney, led to some interesting comments by the DRB. The charges against the attorney appeared to be a "copy and paste" job from another complaint. The charges were inconsistent with respect to the gender of the grievant and the nature of the underlying case. The DRB rejected all charges in the matter save for the failure to cooperate.
Nothing wrong with using a prior charging document as a template. Just make sure you fix it up to accurately recite the allegations. (Mike Frisch)
Thursday, May 3, 2012
The Illinois Administrator has filed a complaint alleging misconduct by an attorney in the course of her duties as an assistant public defender for Cook County.
The complaint alleges, among other things, that the public defender failed to communicate plea offers and disclosed confidential information.
Among the other things is this:
On May 18, 2011, Judge Calabrese appointed Respondent to represent defendant Monica Boyd ("Boyd") in The People of the State of Illinois v. Monica Boyd, 11-MC1-194192, in the Circuit Court of Cook County, Illinois, First Municipal District, Branch 29, for the offense of theft, a Class A misdemeanor.
On May 18, 2011, Boyd appeared with Respondent before Judge Calabrese and the matter was set for trial for later that day. At the time when the clerk in Judge Calabrese’s courtroom recalled the case set for trial, Boyd was not present and Respondent stated that Boyd had left the court to pick up her child.
Because Boyd was not present for her trial, Judge Calabrese issued a warrant for Boyd’s arrest.
At that time, the following exchange occurred:
MS. CESAR: Oh shit.
THE COURT: What did you say, Ms. Cesar?
MS. CESAR: Oh shoot, I said. Oh shoot. I’m sorry I didn’t talk to her, Judge. I’m just - - it’s my fault. I’m running around, talking to people.
THE COURT: I don’t think that’s what you said.
MS. CESAR: Whatever. I know the word you think I said. My mother never let me say that, and I’ll tell you why. But I said shoot, darn it.
Respondent’s conduct was disruptive to the court and had no other purpose other than to disrupt the court.
The complaint contends that the attorney engaged in conduct that (i) was intended to disrupt a tribunal; (ii) was prejudicial to the administration of justice; and (iii) "tends to defeat the administration of justice or brings the courts or the legal profession into disrepute."
Two other incidents before the same judge ("Oh, lovely") and a raised voice are also alleged to violate the above rules.
Is this a bit overcharged? (Mike Frisch)
We reported on a Louisiana bar discipline case in January 2010:
The Louisiana Attorney Disciplinary Board has recommended a fully-deferred suspension of three months and one year probation of an attorney convicted of trespassing on public school grounds and resisting arrest. The incident had taken place prior to her admission to practice and involved her child's school, where she was considered to be "disruptive or interfering with [school staff]..." The attorney had violated the condition of her criminal probation after bar admission and served a brief period of incarceration.
The court imposed a suspension of a year and a day, stayed in favor of probation.
An update: the Board has now recommended that the probation imposed by the Supreme Court be revoked. The attorney was found to have shoplifted from Target and failed to appear for two civil court matters in which she was a defendant.
The explanation for the failures to appear? A flat tire and "it happens."
The board recommends that the attorney serve the year and a day suspension. (Mike Frisch)
The South Dakota Supreme Court has reversed and remanded in a matter where the trial court granted summary judgment to the defendant in an alienation of affection suit.
The plaintiff's spouse had become friendly with the defendant. They talked often on the phone and ran together in marathons. He got divorced in 2005.
The spouse told the defendant that she had filed for divorce at some point over the 2009 Labor Day weekend. They had sex that weekend. In fact, the divorce proceedings were not started until October 2009.
The defendant's summary judgment motion "asserted that [the spouse] had no affections for [the husband] that [the defendant] could have alienated."
The court here found sufficient evidence of affection to defeat the motion.
While the spouse testified at deposition that she had stopped loving her husband in the late 1990s, she had sent him a 10th anniversary card that said "These have been the best 10 years of my life. I'm so blessed to have you for my husband. I love you. Love your wife."
She also told a marriage counselor in 2006 that the marriage had "improved greatly," told another therapist in 2008 that she still loved her husband, and underwent breast augmentation surgery because she thought it would make her more attractive to him: "These facts are inconsistent with the loveless relationship [she] depicted in her deposition." (Mike Frisch)
The New Jersey Supreme Court has imposed a three-year suspension of an attorney who had been the subject of two prior sanctions.
The Disciplinary Review Board described the prior cases:
In [the first case], respondent lied to her own brother about the reason she needed to borrow $10,000 from him because, if her brother knew the truth, he would not have loaned the money to her....Moreover, we were "troubled by [her] penchant for deceit and dishonesty."
In the second case. "other less-than-flattering aspects of respondent's character were revealed."
Here, the DRB stated:
And the beat goes on... examples of the lengths that respondent will go to get what she believes is owed to her and to avoid what she clearly owes are chilling. When considered with her refusal to cooperate with the disciplinary system so that the public may be protected from her misdeeds, it is clear that respondent will go to almost any length to take advantage of clients and the legal systerm with impunity...She has shown self-serving, dishonest, and underhanded behavior, as well as stunning disrespect for the Judiciary and the disciplinary system.
But still a sanction short of disbarment. (Mike Frisch)
The New York Appellate Division for the Third Judicial Department has disbarred an attorney convicted of tax and conspiracy to defraud the United States offenses:
At the time of Respondent's crimes, he was an attorney and principal at a major international accounting firm with offices in many cities, including New York City. The crimes involved millions of dollars. Under all of the circumstances presented, we conclude that respondent should be disbarred.
The New York Times reported that he had been a partner at BDO Seidman. (Mike Frisch)
New edition of Llewellyn's The Bramble Bush to read before law school; mystery novel by Lawrence Friedman
As Jeff will be pleased to know (since he is aware I have worked on this for two years), I worked with Stewart Macaulay (Wisc., Law) to produce a new edition of Karl Llewellyn's classic The Bramble Bush, with Macaulay's intro and notes. It is a great read the summer before law school, if one wants summer reading then. Here is the paperback and Kindle link; it is also on Apple and Nook. Llewellyn had very idealistic views of the legal profession--the last chapter is a rejoinder to a Carl Sandburg poem that wonders why the hearse-horse snickers when carrying a lawyer's bones? But most of the book is a how-to for 1Ls that is, surprisingly (or sadly) still on-the-nose for course prep and exams. I hope people are happy we brought it back--and especially that we fixed the errors in other reprints of it. There are no "cannons of jurisprudence," Oxford.
More on summer reading before law school in my previous post collecting lists on that.
Less relevant to the blog topic, Lawrence Friedman and I released his second mystery novel, about the adventures of trusts and estates lawyer Frank May. Amazon is here.
And new Harvard Law Review issue 6 is in Kindle here. [Alan Childress]
An Assistant State's Attorney for Christian County has been charged by the Illinois Administrator with usurping the role of judge:
In his position as an Assistant State's Attorney in Christian County, Respondent's duties included intermittent weekend assignment as the "on call prosecutor".
One of the responsibilities of the Christian County "on call prosecutor" was to respond to calls from Christian County Correctional Officers in regard to the Officers' requests to determine bail for new detainees and to address issues related to current Christian County jail inmates.
Pursuant to the weekend bail-setting policy of the Christian County State's Attorney's Office, the "on call prosecutor" would receive a call or page from the Christian County Correctional Officers; the Officers would advise the "on call prosecutor" of an individual arrestee's name, criminal charge and facts of the offense; the "on call prosecutor" would contact the "on call Judge", advise him of the arrestee's name, criminal charge and facts of the offense; the "on call Judge" would set bail and condition and any conditions of bail; the "on call prosecutor" would notify the correctional officer of the bail and any conditions of bail as ordered by the "on call Judge".
On March 18, 2011, Respondent was on duty as the Christian County "on call prosecutor" and was contacted, via telephone, by Christian County Correctional Officer Hogan. Officer Hogan advised Respondent that periodic imprisonment inmate R.F. appeared to have overdosed on medication. Respondent directed Officer Hogan to release R.F. from his sentence of periodic imprisonment, without consulting with a Judge to modify the existing sentencing order.
On May 6, 2011, Respondent was on duty as the Christian County "on call prosecutor" and was contacted, via telephone, by Christian County Correctional Officer Tucker. Officer Tucker advised Respondent that periodic imprisonment inmate D.O. had recent oral surgery. Respondent ordered Officer Tucker to release D.O. from his sentence of periodic imprisonment, without consulting with a Judge to modify the existing sentencing order.
On May 8, 2011, Respondent was on duty as the Christian County "on call prosecutor" and was contacted, via telephone, by Christian County Correctional Officer Tucker and advised that bail needed to be set on two individuals arrested and charged with domestic battery, J.T. and R.C., who had been arrested on Friday, May 6, 2011.
Without contacting a Judge or other judicial officer, Respondent told the Officer that bail had been set at $1000.00 with 10% down, and a special condition of no contact, for both arrestees J.T. and R.C.
On December 23, 2011, Respondent was on duty as the Christian County "on call prosecutor" and was contacted, via telephone, by Christian County Correctional Officer Bedinger. Officer Bedinger advised Respondent that periodic imprisonment inmate K.H. appeared ill. Respondent ordered Officer Bedinger to release K.H. from his sentence of periodic imprisonment, without consulting with a Judge to modify the existing sentencing order.
On January 8, 2012, Respondent was on duty as the Christian County "on call prosecutor" and was contacted, via telephone, by Christian County Correctional Officer McAvoy. Officer McAvoy advised Respondent that periodic imprisonment inmate D.C. had suffered a seizure and been taken to a hospital. The Officer further advised Respondent that bail needed to be set on two individuals arrested and charged with domestic battery, D.B. and D.T., on Friday, January 7, 2012.
Without contacting a Judge, Respondent ordered Officer McAvoy to release inmate D.C. from her sentence of periodic imprisonment, subsequent to her hospital visit, without consulting with a Judge to modify the existing sentencing order.
Without contacting a Judge or other judicial officer, Respondent told the Officer that bail had been set at $3000.00 with 10% down for arrestee D.T.
Without contacting a Judge or other judicial officer, Respondent told the Officer that bail had been set at $3000.00 with 10% down, with special conditions of bond, for arrestee D.B.
At all times alleged in the complaint, Respondent did not have the authority to direct that inmates be released.
At all times alleged in the complaint, Respondent's statements about bail were unauthorized and false.
Wednesday, May 2, 2012
The New Jersey Supreme Court has reprimanded an attorney in a matter where the Disciplinary Review Board ("DRB") found he displayed a lack of diligence but dismissed other charges.
Before the district ethics committee ("DEC") hearing, the panel chair disclosed that the respondent had been in law partnership with the chair's father. The chair set a deadline for objections to his participation beyond which the issue would be deemed waived. The respondent did not respond in time but pressed an objection at the hearing, noting that he had filed a federal suit against the chair's father. The suit was resolved many years ago.
Most troubling, respondent intentionally withheld $1,000 from [his client] funds he knew were due and owing to his client, because he was "pissed off" by the letters and telephone messages that he had received from [him] and his new counsel. Even the threat of an ethics grievance did not convince him to refund [the client's] money. Such conduct is at odds with the standards governing attorneys. Similarly, he displayed a lack of regard for the disciplinary system by waiting until the ethics hearing to move to disqualify the panel chair from the case, despite having received a letter, two months earlier, notifying him that his failure to file a motion by a date certain would be deemed a waiver.
The DEC has recommended a six-month suspension. (Mike Frisch)
The Michigan Grievance Administrator has filed a petition for review of the order imposing a 90-day suspension on an attorney for the City of Detroit in connection with the last of the bar discipline cases generated by litigation involving former Mayor Kwame Kilpatrick.
The Administrator contends that the sanction is unduly light. (Mike Frisch)
The Ohio Supreme Court has suspended an attorney for one year with six months stated on conditions.
The attorney joined a Toledo law firm as a full-time hourly employee in 2000. He became a nonequity partner in 2007 until his termination in 2009.
The attorney was a debtor in a Wisconsin judgment. He filed an answer to a garnishment notice delivered to the law firm as a firm partner. On behalf of the firm, he denied that the firm held property subject to garnishment. He reiterated the false denial in response to a second notice. He also lied in a bankruptcy proceeding. (Mike Frisch)
Justice Patience Drake Roggensack has recused herself in the judicial disciplinary case against Justice David Prosser, granting a motion that had asserted that she is a "material witness."
From the decision:
I have thoroughly researched what the law requires of me upon receipt of Justice Prosser's motion, and I conclude that I am disqualified by law from participating in the above-captioned proceeding. In particular, I conclude that I have no choice but to disqualify myself due to the legislative mandate of Wis. Stat. § 757.19(2)(b), which requires self-disqualification when a justice is a material witness in a matter pending before the supreme court.
Further, even though I am the first justice to respond to a motion to disqualify in this proceeding, I have investigated the common law doctrine known as the Rule of Necessity. The Rule of Necessity provides that there are certain circumstances wherein a justice, who is otherwise disqualified because of a personal interest in the outcome of the proceeding, may participate. However, when the disqualifying event is the status of the justice as a material witness in the pending proceeding, I conclude that the Rule of Necessity cannot trump the mandatory directive of the legislature. In that circumstance, the justice is disqualified by law pursuant to Wis. Stat. § 757.19(2)(b). Accordingly, I grant Justice Prosser's motion, and hereby disqualify myself from judicial participation in the above-captioned proceeding.
The Pennsylvania Supreme Court has accepted the consent disbarment of an attorney who pleaded guilty but mentally ill to a charge of arson (endangered persons).
The Daily Item reported that the attorney had set fire to Irvin's Country Tinware, a business owned by his parents. The august 7, 2007 fire caused $1.8 million in damage.
The sentence in the criminal case prohibit him from coming with 100 yards of the residences of his parents and siblings. He also is prohibited from coming within 100 yards of any place where his siblings are employed and the schools of their children. (Mike Frisch)
Tuesday, May 1, 2012
The Massachusetts Supreme Judicial Court has imposed a public reprimand of an attorney in connection with his representation of another attorney in her divorce.
The attorney "filed a financial statement in which he deliberately left blank the space that asked for the client's gross income for the previous year."
The client was suspended for three months for three acts of misconduct in the divorce. Her attorney employer was suspended for one month for issuing a misleading letter in connection with the divorce and other unrelated misconduct. (Mike Frisch)
A story from the main page of the May 2012 California Bar Journal:
A dentist whose license was revoked for having sex with his patients has now lost his law license as well. CRAIG DOUGLAS FOSTER [#179488], 61, of Haleiwa, Hawaii, was disbarred Feb. 4, 2012, and was ordered to comply with rule 9.20 of the California Rules of Court.
Foster was a practicing dentist from 1975-2000, specializing in treatment for temporomandibular joint disorder (TMJ). He routinely prescribed narcotic medications for pain relief, sleep and muscle relaxation and injected narcotic medications for pain relief during therapy appointments. State Bar Court Judge Lucy Armendariz said in her ruling that the nature of Foster’s practice cultivated intimacy and dependency. Foster’s dental license was revoked in 2000 as a result of sexual liaisons with his drug-dependent patients. He repealed [sic: appealed?] the revocation, which was upheld by the Sacramento County Superior Court.
The State Bar proceedings focused on four female patients treated between 1993-1998. Armendariz found that Foster induced two patients to enter in a sexual relationship with him while they “were vulnerable due to being heavily medicated and suffering from depression and chronic pain.” He falsely documented procedures performed on those patients. His conduct amounted to moral turpitude, the court found.
In addition, he violated the law by making misleading statements and advertisements, having sex with patients, using the term “doctor” without indication of a certificate and engaging in unprofessional conduct.
About 80 percent of Foster’s patients were women and his practice focused on stress reduction. Appointments typically lasted one to two hours and during therapy, Foster often massaged and manipulated the muscles of the patients’ jaw, shoulders, upper back and upper chest. He did not have a physical therapist on staff. Patients were generally alone with Foster during treatment, and he often discussed their marriages, relationships, business and family stresses during appointments.
One of Foster’s patients became addicted to Vicodin and Dalmane while under his care. Some of his actions violated the standard of care. Although the patient had taken nothing stronger than Ibuprofin prior to being treated by Foster, he prescribed medication including Dalmane, Vicodin and Flexoril and he injected her with Demerol and bee venom.
According to the bar court’s findings, the woman was comforted by Foster’s interest in her and confided that her husband was abusive. She believed his assurances that he could eliminate the stress in her life. Although she rejected his invitations to accompany him to Costa Rica and Mexico, she eventually flew with him in his plane to his home in Dunsmuir. The couple began a sexual relationship.
Foster also claimed that he performed an arthroscopic procedure on the woman, when he had not. He misrepresented the nature of the medical treatment to those paying the patient’s bills or otherwise involved in her care.
Another patient, who suffered from jaw problems because of two automobile accidents, had been evaluated by nine or 10 other health providers before seeing Foster. He immediately began asking her to lunch, but the woman had a boyfriend and wasn’t attracted to Foster.
Foster told her she needed to reduce the stress in her life and he was her “counselor.” She eventually came to view him as her “salvation” and confided in him. She began dating Foster, went with him to Costa Rica and also spent time with him in Dunsmuir and at his Sacramento apartment/legal office above his dental office.
Armendariz said the woman was “particularly vulnerable to (Foster’s) pressure and influence” and that he cultivated those feelings through his “intensive therapeutic approach and intrusive personal involvement” with his patients. In her case, he also falsely documented one procedure as being arthroscopic surgery.
Armendariz said she found that much of his testimony during a five-day trial lacked credibility; some was inconsistent with documentary evidence or conflicted with prior statements. At times, the judge said, his “testimony appeared contrived and less than forthright.” For example, he initially testified he had sex with six to 10 patients, later changed the numbers to eight to 10, and before the Dental Board, claimed sex with 10 to 20 patients. Armendariz said she did not believe Foster’s assertion that sex with two patients was consensual. He “knew or should have known that he was abusing his position as a health care practitioner and preying on the vulnerabilities of his clients for his own personal benefit,” she wrote.
Foster was disciplined by the bar in 2007 for improperly withdrawing from a case and commingling personal funds in his client trust account.
A disciplinary matter is summarized in the May 2012 edition of the California Bar Journal:
[An attorney] was suspended for two years, stayed, placed on two years of probation with a one-year actual suspension and he was ordered to take the MPRE within one year and comply with rule 9.20 of the California Rules of Court. The order took effect Oct. 14, 2011.
While working as a special agent for the FBI, [the attorney] accessed FBI computers to obtain information for a friend about an individual who owed the friend money. The amount was in dispute. Although he did not intend and never did initiate a legitimate FBI investigation into the individual, he threatened to do so− both in phone calls and a personal visit to the individual’s home− if the debt wasn’t paid.
[He] was convicted of misdemeanor computer fraud.
In mitigation, he had no prior discipline record, provided extensive testimony about his good character and in his capacity as an FBI agent, and he assisted in the State Bar investigation of attorneys engaged in real estate loan modifications.
The Huffington Post had this report on allegations that the attorney provided improper assistance to golfer Greg Norman in connection with his divorce. (Mike Frisch)
The dangers of mishandling entrusted funds is once again on display in a decision of the Maryland Court of Appeals.
The court disbarred an attorney who held funds under an assignment and failed to pay medical bills from settlement proceeds. The attorney did not keep a trust account, deposited the settlement proceeds in his operating account (which involves commingling) and failed to maintain required financial records. (Mike Frisch)
The Maryland Court of Appeals sustained convictions against a defendant for both common law indecent exposure as well as a statutory offense contained in the Corrections Services Article.
The defendant was incarcerated at the Montgomery County Correctional Facility. He "masturbated in sight of a female corrections officer, while smiling and making eye contact with her, in spite of her orders to stop."
The court majority found that the statute did not preempt the common law offense. Two judges dissented. (Mike Frisch)