May 26, 2012
Window Of Opportunity
The Indiana Supreme Court has publicly reprimanded an attorney for threatening a bar complaint against another lawyer.
The attorney ("SAB") had represented a couple who purported to be husband and wife. SAB settled a trade defamation claim for $10,000 and applied the proceeds to a debt owed to him by the husband. SAB later represented the husband in a divorce against the wife. The reprimanded attorney represented the wife.
The reprimanded attorney sent a letter to SAB raising the possibility of ethical violations and offering him a "window of opportunity" to make a settlement offer before filing a bar complaint and an action in state court. (Mike Frisch)
May 25, 2012
Joke No Basis For Untimely Recusal Claim
The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to recuse a trial judge:
Plaintiff filed the instant recusal motion after the court dismissed the complaint. Thus, the trial court lacked the authority to grant the motion absent proof of actual prejudice or biased actions, rather than the mere appearance of impropriety, and there is no basis for mandatory disqualification or recusal. The trial court's generalized comments comparing judicial salaries to first year attorney salaries as recently reported in the news, coupled with an attendant joke that he might have to seek employment with defendants' counsel's law firm, stand in stark contrast to the facts in Caperton v A.T. Massey Coal Co., Inc. (556 US 868 ), relied upon by plaintiff, in which the president and chief executive officer of a corporation appearing as a defendant before the judge against whom recusal was sought had contributed some $3 million to his election campaign and at issue was a $50 million judgment against the defendant corporation. Here, there is no basis to conclude that actual bias or prejudice existed. No evidence was offered to show that the trial judge had any relationship with defendants' counsel outside of the courtroom, that the trial judge was seeking, or intended to seek employment with the law firm, or that the court was in anyway biased in favor of defendants.
Moreover, where, as here, a party inexplicably withholds an allegation of bias until after the court adversely rules against it, denial of the recusal motion is generally warranted and the courts' discretion in so ruling will not be disturbed. Plaintiff's claims of bias are undermined by his continued participation in the court proceedings for nearly a year after the disputed comments were made, without complaint. Furthermore, the dismissal of plaintiff's "amended" action was soundly based upon a prior federal district Court decision which this Court previously found disposed of plaintiff's fundamental arguments. (citations omitted)
False Claim That Judge Was Masturbating Draws Suspension
The Kansas Supreme Court ordered a suspension of an attorney of two years, nunc pro tunc to a March 2010 interim suspension, for a false statement made about a judge who was mediating the attorney's own divorce.
The attorney was engaged in a bitter contested divorce. She also was suffering from significant health and emotional issues, having been hospitalized six times for heart trouble and having a pacemaker installed.
She claimed that the judge/ mediator used profanity by stating that she was 'wasting his fucking time," made comments about her panties and asked who she was "boinking." The judge admitted that he had used profanity, although in the context of repeating the claims of the parties.
The false statement was that the judge appeared to be masturbating under the bench during the proceedings.
The attorney had filed a judicial complaint and a civil lawsuit that made this allegation.
The court noted that the instances of false allegations were not isolated ones and had been reported in the media.
Pitch News had this report on the judge's response to the attorney's complaint (Mike Frisch)
No Suspension Necessary
The Iowa Supreme Court rejected a proposed suspension of at least six months and imposed a public reprimand on an attorney who had a substantial rcord of prior discipline.
The attorney represented a client in a forclosure action. He arranged to purchase the property from the client, agreeing to pay off the mortgage and sell the property back to the client after she obtained financing for the purchase.
The court found that the attorney did not violate the "business transactions with client" rule because he terminated the attorney-client relationship prior to the deal. He did, however, violate the rule prohibiting adversity with a former client in a substantially related matter. He also had failed to timely cooperate with the bar investigation.
The court rejected the sanction proposed by the Attorney Disciplinary Board because the misconduct took place in the time period prior to its 2007 order of a 30 day suspension. (Mike Frisch)
An attorney who neglected a client matter, failed to cooperate with the ensuing bar investigation and back-dated correspondence to the Office of Lawyer Regulation to make it appear that she had timely cooperated has been suspended for 60 days by the Wisconsin Supreme Court:
After careful consideration of the report and recommendation, the record in this matter, and the written statements of the parties, we accept the referee's recommendation regarding suspension, restitution, and costs. The misconduct at issue here was serious, and Attorney...offers no legitimate excuse for her failure to diligently represent her clients and her failure to provide them with information about their cases, fees, and expenses in spite of their numerous requests that she do so. Nor does she offer a legitimate excuse for her failure to fully and honestly cooperate with the OLR's investigation into her conduct. Given the length of time over which the misconduct occurred and the number of instances of misconduct involved, Attorney...'s excuses for her behavior ring hollow. The fact that, as the referee noted, Attorney...expresses little remorse for her misconduct suggests that Attorney...may not appreciate the seriousness of her misconduct. A period of suspension is necessary in this case to impress upon Attorney...the seriousness of her professional misconduct and to protect the public from similar misconduct in the future.
It being Wisconsin, there is a dissent (here, from Chief Justice Abrahamson):
As a result of the per curiam opinion, Attorney...will be able to resume the practice of law in Wisconsin with the passage of 60 days. She will not have to make any showing that she has taken steps to avoid similar misconduct in the future.
Any discipline imposed on Attorney...should, in my opinion, require her to demonstrate to this court, before she resumes practice, that she has made efforts to remedy the causes of her repeated failures to serve her clients. Attorney...must demonstrate that she is competent to practice law.
For the reasons set forth, I dissent. I conclude that a 60-day period of discipline, with automatic re-admission to the practice of law, is not adequate to protect the public in the present case.
The Iowa State Public Defender refused to pay a court-appointed guardian ad litem for 6.3 hours of travel time to attend court proceedings. The travel was necessary after a change of venue that had resulted from the death of the ward's parent.
The Iowa Court of Appeals rejected the Public Defender's contention that it was not obligated to pay the guardian and ordered the $378 payment. (Mike Frisch)
May 24, 2012
Wife Barred From Associating With Husband As Condition Of Parole
The West Virginia Supreme Court has held that a condition of parole that prohibits the parolee from being in the presence of or associating with felons, including her own husband, was within the power of the court to order.
The parolee had contended that the provision infringed on her rights of marriage.
The court here noted that the parolee had engaged in her criminal activity (manufacture of methamphetamine) along with her husband and that her use of the drug had been fueled by insecurities resulting from her perception of her husband's views about her weight. (Mike Frisch)
Law Firm Can't Keep $14.2 Million Dollar Fee
WorldCom settled a claim brought by the State of Mississippi with respect to delinquent tax liability for 100 million dollars. The company also paid 4.2 million to a private charity and 42.2 million to the private law firm that had represented the State. On request from the State Auditor, the private charity turned the money over to the State; the law firm refused to do so.
The Mississippi Supreme Court reversed the grant of summary judgment to the firm firm, holding that, when the Attorney General pays special assistants, they must be paid from the AG's contingency fund or from other funds approved by the AG's office. Further, public funds (such as the court holds these payments were) must be paid into the state reasury.
Neither requirement was met in the case. (Mike Frisch)
The Reasonable Examiner
The Minnesota Supreme Court has reversed a criminal conviction because the presiding trial judge had been retained by the prosecuting attorney as a expert witness in an unrelated civil case.
The judge's retention was disclosed to the defendant during the course of the trial. The defendant sought recusal but the judge denied his motion.
The court held that the evidence of guilt was sufficient. However, a "reasonable examiner" would question the judge's impartiality under the circumstances. (Mike Frisch)
Regettable But Not Unethical
The Maine Supreme Judicial Court found no ethical violations in five complaints filed against an attorney.
Two of the complaints came from opposing pro se parties; three from former clients. The court found that the attorney's judgment was "clouded" by his sexual relationship with one of the clients and that his actions were "regrettable" but not ethical violations.
The attorney had been disciplined in 2007. Most of the issues addressed here happened prior to the 2007 bar matter. The court here ordered that any future matters be treated as original matters and not as a follow-on to the 2007 discipline. (Mike Frisch)
More Kwame Kilpatrick-Related Bar Discipline
An attorney has been publicly censured by the New York Appellate Division for the Second Judicial Department as a result of discipline imposed in the District of Columbia:
The instant application is predicated upon an order issued by the District of Columbia Court of Appeals following receipt of the report and recommendation of an Ad Hoc Hearing Committee of the District of Columbia Board on Professional Responsibility, issued on or about September 13, 2011, which recommended approval of a petition for negotiated attorney discipline. According to the petition for negotiated discipline, the United States District Court, Eastern District of Michigan, Southern Division (hereinafter the Michigan Court), appointed the respondent, on or about July 18, 2003, as a monitor to evaluate compliance with two consent judgments involving the City of Detroit. Although the respondent's position required her to remain neutral and independent from the parties, from in or about late 2003 through 2004, the respondent had "undisclosed and personal communications with then Detroit Mayor Kwame Kilpatrick" and, in early 2004, "intimate contact with the then Mayor." After the Michigan Court confronted the respondent with these facts, she voluntarily resigned as monitor on July 22, 2009.
The District of Columbia Court of Appeals noted that the Michigan Court did not seek the respondent's resignation and that, to the contrary, believed she could continue in her position as monitor. Moreover, the respondent mitigated her conduct by taking full responsibility for her actions and fully cooperating with District of Columbia Bar Counsel. Furthermore, the respondent did not have any prior disciplinary history, her conduct did not result in personal gain and neither negatively nor financially impacted the monitored cases, and no client was harmed. As a result of the respondent's conduct, the recommendation of the Ad Hoc Hearing Committee to publicly censure the respondent was adopted.
The ethics cases tied to the former Detoit Mayor may be winding down, but the end has not quite been reached. (Mike Frisch)
More Than 60 Days
The Maryland Court of Appeals has ordered the indefinite suspension of an attorney who had previously been suspended for 60 days.
The attorney (on mistaken advice of counsel) believed that his reinstatement was automatic after the 60 day period of suspension had run. It was not. He was required to pay costs and petition for reinstatement.
Once he learned of the mistake, he notified clients of the suspension and sought reinstatement nunc pro tunc. The court denied the request to backdate the reiinstatement.
Here, the court found that he had engaged in unauthorized practice as well as other misconduct in two matters. (Mike Frisch)
May 23, 2012
Failure To Deny Paragraph Two
The Wisconsin Supreme Court has revoked the license of an attorney admitted in 1980.
The court described the charges and response:
On July 20, 2011, the OLR filed a complaint against Attorney Kelly and an order to answer. The complaint alleged 51 separate counts of misconduct. Attorney Kelly was personally served with the complaint and order to answer on August 6, 2011.
On August 22, 2011, Attorney Kelly filed a very brief answer to the OLR's complaint. The answer consisted of a single sentence stating that Attorney Kelly denied "each and every material allegation of paragraphs 3 through 231." One of the two paragraphs Attorney Kelly's answer did not deny has some procedural significance for this proceeding. Paragraph 2 of the complaint alleged that Attorney Kelly resided at an address on Sidney Street in Madison. Thus, by not denying paragraph 2, Attorney Kelly's answer admitted that he did reside at the stated address.
As a result of the address admission, the ensuing default and striking of the attorney's substantive response to the charges was sustained.
As to sanction:
The facts detailed in the complaint demonstrate a clear pattern of neglect by Attorney Kelly of his clients' needs and objectives and of disregard for his obligations as an attorney in this state. Moreover, even though on most representations Attorney Kelly did little or no work, he repeatedly refused to refund any portion of the thousands of dollars he had obtained from the clients or their relatives. In a number of the matters, Attorney Kelly also refused to return the file to the client or to forward it to the client's new attorney. Attorney Kelly repeatedly refused to respond to the grievances filed by his clients or to the OLR's requests for information. Finally, Attorney Kelly's misconduct was not an isolated or temporary occurrence. It occurred in 12 separate representations and in some situations lasted for several years. We therefore conclude that the severe sanction of the revocation of his license to practice law in Wisconsin must be imposed to protect the public from a repetition of this misconduct and to deter other attorneys from engaging in similar misconduct.
Home Is Where The Campaign Is
A recent opinion from the Florida Judicial Ethics Advisory Committee:
May a committee of responsible persons, established by a judicial candidate to support the candidate’s campaign, hold an event at the candidate’s parents’ home, at which funds will be solicited for the candidate’s campaign?
May the committee solicit contributions in the flyer promoting the event and at the event itself?
ANSWER: Yes. However, neither the candidate nor her parents may be present when the solicitation of funds is made.
Only The Bar Can Discipline Lawyers
An opinion issued today by the Massachusetts Supreme Judicial Court:
The petitioner, Valentina P. Gorbatova, as the guardian for her husband, Gennadiy Gorbatov, filed a petition in the county court entitled "Petition for Disciplinary Action against Joel M. Semuels, an Attorney at Law of the Commonwealth of Massachusetts," and numerous related motions. Semuels, acting in his capacity as a hearing officer for the Executive Office of Elder Affairs, had conducted an administrative hearing and issued a final decision reducing home care services to the petitioner's husband. The petitioner sought disciplinary action against Semuels for his conduct during the administrative hearing, claiming that in the course of acting as the hearing officer he had violated numerous provisions of the Rules of Professional Conduct, S.J.C. Rule 3:07, as appearing in 426 Mass. 1303 (1998). Treating the petition as one filed pursuant to G.L. c. 211, § 3, the single justice determined that the petitioner did not establish that she was entitled to extraordinary relief under the statute and dismissed her petition. The single justice ruled, among other things, that the petitioner did not have a private right of action. On appeal, the petitioner does not challenge the single justice's decision in this regard.
Because the decision that there is no private right to commence a court action to seek disciplinary action against an attorney was correct as a matter of law, we affirm. This case is controlled by Slotnick v. Pike, 374 Mass. 822, 822 (1977), where the court affirmed a single justice's order dismissing a similar petition, and stated:
"In seeking disciplinary action against the defendant, the plaintiff is not properly before the court. Under S.J.C. Rule 4:01, [as amended] (promulgated pursuant to the court's power to supervise attorneys, Binns v. Board of Bar Overseers, 369 Mass. 975 ; [Matter of] Keenan, 313 Mass. 186, 204  ), it is the Board of Bar Overseers and not private individuals, which is ordinarily responsible for prosecuting complaints against attorneys. 'A citizen filing a complaint ... is not a party to any action taken against the attorney, nor are the citizen's rights jeopardized. As in the case of a criminal prosecution, the complainant may be a witness, but he may not appeal or participate as a party to the litigation.' Binns v. Board of Bar Overseers, supra. Cf. [Matter of] Keenan, [supra at 198]; Boston Bar Ass'n v. Casey, 211 Mass. 187, 191-192 (1912)."
Because the petitioner did not have a private right of action, the single justice did not err in dismissing the petition. It is irrelevant whether the single justice treated it as a G.L. c. 211, § 3, petition, or otherwise. "No matter how the petition was framed or how it was treated by the single justice, the critical point is that the petitioner, as a private individual, sought to invoke this court's power of general superintendence of the bar by commencing a court action [seeking attorney discipline].... 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 petitioner's recourse in these circumstances is to file a complaint with the Board of Bar Overseers.
The case is Gorbatova v. Semuels. (Mike Frisch)
May 22, 2012
False Hostage Report Draws Reprimand
The Delaware Supreme Court has imposed a public reprimand of an attorney as a result of his dispute with another attorney who had offices in the same building. The other attorney (Mr. Gray) paid rent for the space but the exact nature of the professional relationship between the two was a matter of some dispute.
The incident began at around 7:00 pm on February 12, 2010. Mr. Gray asked the Respondent if he wanted to go for a beer, which offer Respondent declined. Three hours later, Respondent e-mailed Gray to advise him that he was barred from the building. This "abrupt termination of the relationship with Gray began the chain of events that led to the Hearing."
Gray came to the building with his daughter and others on February 15 to retrieve his files and computers. There was a confrontation. Respondent called the police and reported a "hostage situation." There was no such situation and Respondent said he said there was in order to "speed up the police response."
Seven to ten police officers arrived with lights flashing and sirens blaring. They were armed with rifles, semi-automatic weapons and a tactical shotgun. Respondent told the police that "he was just robbed/ burglarized/assaulted."
Gray was confronted by a police officer wearing full body armor, who pointed an assault rifle at him and told him to freeze. He was "pushed to the ground, handcuffed and placed in a squad car."
Both attorneys were taken to the police station. Eventually Gray was permitted to remove his items from the building.
The Board on Professional Responsibility found that Respondent had violated several ethical rules by falsely reporting that there was a hostage situation.(Mike Frisch)
Fired Public Defender Failed To Exhaust Administrative Remedies
The Maryland Court of Appeals has held that the former State Public Defender had failed to exhaust administrative remedies and dismissed her wrongful discharge action.
The firing was in the wake of a dispute between the Public Defender and its Board of Trustees over management and personnel issues in the public defender office. The Public Defender had "refused to acquiesce in the Board's demands, conyending that the Board lacked the authority to issue such edicts, their implementation would harm indigent clients, cost more money than would be saved, and violate the provisions of the Public Defender Act."
The court here held that the Public Defender had "failed to exhaust the available and primary administrative remedy provided to at-will, executive State employees..."
Judge Adkins, joined by Judge Battaglia, would dismiss on the merits:
...even the most generous inferences do not suggest that [the Public Defender]'s termination violated a clear mandate of public policy. There is simply nothing to suggest that the Board fired her for refusing to break the law or for exercising her duties as Public Defender. Rather, her termination was simply the culmination of a long-running disagreement with the Board about how to best deal with the financial crisis plauging the Office.
May 21, 2012
Ethics charges have been filed against a former Philadelphia traffic court judge, according to the web page of the Pennsylvania Court of Judicial Discipline.
Philly.com had this March 1 report:
Traffic Court Judge Willie Singletary, suspended for allegedly showing a phone-camera photo of his genitals to an employee, has submitted a resignation.
Common Pleas Court Judge Gary S. Glazer, the acting administrative judge of Traffic Court, said Singletary submitted his resignation by iPhone.
Glazer said, however, that under state law, a judge must resign directly to the governor, so Singletary would have to resubmit his resignation to Gov. Corbett.
Glazer declined to provide the contents of Singletary's resignation e-mail, received this week.
Kevin Harley, a spokesman for Gov. Corbett, said no resignation letter had been received as of Wednesday afternoon.
Reprimand For Misconduct In Representing Son
A recent disciplinary matter is summarized on the web page of the Idaho State Bar:
The Professional Conduct Board of the Idaho State Bar has issued a Public Reprimand to Nampa lawyer [S.], based on professional misconduct.
The Professional Conduct Board Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding, in which Mr. S. admitted that he violated Idaho Rules of Professional Conduct 1.3 [Failure to act with reasonable diligence in representing a client]; 1.7(a)(2) [Representation of a client where there is a significant risk that the representation will be materially limited by the lawyer’s personal interests, including family and domestic relationships]; and 3.3 [Knowingly making a false statement of fact or law to a tribunal or failing to correct a false statement of material fact or law previously made to the tribunal by the lawyer].
The Complaint related to Mr. S.’s representation of his son, G.S., in 2005. In June 2005, G.S. was charged in Ada County with attempted strangulation, misdemeanor domestic assault and destruction of a telecommunication line. The charges stemmed from an incident in which G.S. allegedly assaulted his then-wife, A.S, in front of their children. A public defender was appointed to represent G.S. in the criminal case. In July 2005, the attempted strangulation charge was dismissed and jury trial was scheduled for November 2005.
In September 2005, Mr. S. filed a divorce Complaint on G.S’s behalf in Canyon County requesting that G.S. be awarded sole custody of the children. Mr. S. did not disclose the pending domestic violence case and instead stated that G.S. knew of no proceeding that could affect the divorce proceeding, including proceedings related to domestic violence. Mr. S. also filed a Motion for Order to Show Cause, which the Court granted. A.S. did not appear or file any responsive pleadings. In mid-October 2005, Mr. S. filed an Application for Default but again did not advise the Court about G.S.’s pending domestic violence case in Ada County. The Court entered a Default Decree of Divorce granting G.S. sole custody of the children.
In late October 2005, a pretrial conference was held in the domestic violence case, one charge was amended and trial was continued to January 2006. G.S. subsequently relocated to Missouri to live with A.S. and the criminal charges against him were dismissed.
A.S.’s father filed a grievance against Mr. S. in October 2009. In the resulting disciplinary proceeding, Mr. S. acknowledged that he knew G.S. had been criminally charged at the time he filed the divorce Complaint but stated he believed those charges had been, or would be, dismissed based on statements by G.S. and the public defender. He acknowledged that he did not diligently review the divorce documents filed with the Court, investigate the status of G.S.’s criminal charges or correct statements made to the Court regarding the domestic violence proceeding.
The public reprimand does not limit Mr. S.’s eligibility to practice law.
Exceeding Retainer Scope Draws Reprimand
A justice of the Maine Supreme Court has imposed a public reprimand of attorney who exceeded the scope of services for which he had been retained.
The attorney and client had executed a retainer agreement that specified that the scope of the services was to seek a divorce. The client was ultimately responsibile for the fees, although the attorney agreed to seek payment from the opposing party husband. When the fees got out of hand, the client instructed the attorney to dismiss the divorce petition.
The client filed a bar complaint. The attorney sued her in small claims court, where the two had "dispatate views of the quality and cost of the representation he provided her." A bar arbitration action reduced the attorney's fee by a significant amount.
The misconduct involved fee charges for actions beyond the divorce case. The attorney exceeded the scope of the representation by charging the client in connection with an abuse proceeding and counseling her in the criminal assault case brought against her husband. (Mike Frisch)