July 12, 2012
The Florida Supreme Court has publicly reprimanded a county court judge for an October 2011 traffic incident.
The judge was "observed driving a vehicle erratically, weaving back and forth between lanes, striking a guardrail several times, and ultimately crashing on a bridge." The judge advised police officers at the scene of her judicial office.
The police saw indications of alcohol and noted that the judge "was unable to tell the officer where she was coming from or where she was going, but she later recalled that she may have been at a restaurant...."
The judge refused to exit the vehicle and refused to either take a field sobriety or breathalizer test. She later pled guilty to driving under the influence.
The Judicial Qualifications Commission concluded that the isolated incident did not indicate unfitness for judicial office. (Mike Frisch)
Discovery Violations, Disparaging Remarks, Draw Suspension
The Washington State Supreme Court has suspended an attorney for 18 months based on findings in connection with representing his wife (a chiropractor) in litigation against a departed employee:
[The attorney] seeks review of a recommendation by the Washington State Bar Association Disciplinary Board (Board) that he be suspended from the practice of law for 18 months. The hearing officer found that [he] intentionally and repeatedly obstructed and delayed litigation by failing to respond to discovery requests and by falsely certifying that he had made a
reasonable inquiry into the accuracy of the responses he eventually gave. Further,
while the trial judge was considering imposing sanctions for these discovery
violations, [the attorney] sent two ex parte communications to the judge disparaging the
opposing party based upon her national origin. We conclude that the hearing
officer's findings of fact are supported by substantial evidence. Reviewing the
conclusions of law de novo, we also accept the officer's conclusions of law. With
appropriate deference, we accept the recommendation of the Board and suspend
McGrath from the practice of law for 18 months.
The court described the disparaging remarks:
As Judge Rogers was considering Ellison's motion for default based on [the attorney's]
discovery violations, he received two letters from [him]. The first was a typed letter regarding the motion for default. A handwritten message was scrawled on the bottom of the last page: "Your decision is going to effect [sic] American's [sic] -- How [sic] are you going to trust & believe -- a [sic] alien or a U.S. citizen. Thomas McGrath #1313." Ex. A-26. The second was a single page entirely handwritten:
Dear Judge Rogers;
How many jobs do we give to aliens like Dr. Ellison: She was
schooled here in the U.S. and refuses to become a U.S. citizen. She
needs to go back to Canada.
In that regard, I am asking the Court to freeze all of her assets
pending the outcome of this case.
Thomas F. McGrath, Jr.
Attorney for CWC
King County Sup. Ct.
Former County Executive Disbarred
The District of Columbia Court of Appeals has disbarred former Prince Georges County Executive Jack Johnson.
The court concluded that he was convicted of several crimes involving moral turpitude. The crimes involved extortion of property under claim of official right as well as evidence and witness tampering.
The court noted that the crimes were "well publicized" and that there is no need to "delve into the distastful facts" in light of the convictions. (Mike Frisch)
Bankruptcy Non-Disclosure Bars Malpractice Claim
The New York Appellate Division for the Second Judicial Department has affirmed the dismissal of a legal malpractice counterclaim under the following circumstances:
... it is undisputed that the defendant did not disclose, in a bankruptcy petition
that he filed in September 2007, the existence of the causes of action he now
asserts as counterclaims. The plaintiff showed, prima facie, that at the time of
the filing of that petition the defendant knew or should have known of the
existence of those causes of action, and the defendant failed to raise a triable
issue of fact in opposition to that prima facie showing. Further, under the
circumstances of this case, the fact that the defendant's bankruptcy petition
was later dismissed does not change this result. Moreover, although the defendant stated in his opposition to the plaintiff's motion that, in 2010, he filed a second bankruptcy
petition in which he did disclose his malpractice cause of action, in support of
that claim he submitted only a single page of the Schedule of Assets from that
petition. He also submitted no evidence as to the ultimate disposition of the
second bankruptcy petition. He therefore failed to raise a triable issue of fact
as to whether he regained his capacity to assert his legal malpractice claims
against the plaintiff by filing the second bankruptcy petition. (citations omitted)
July 11, 2012
A False Dilemma
The Minnesota Supreme Court has imposed a 60 day suspension of an attorney for practicing while serving a 60 day suspension.
The attorney was suspended for 60 days in April 2009 and has not been reinstated. He had an appellate brief due when the suspension went into effect. He tried but failed to get another attorney to file the brief.
He then completed the brief and signed the client's name as a pro se litigant. The opposing Assistant County Attorney believed he had written the brief and reported his concerns. Disciplinary charges were filed over two years later.
The court rejected the attorney's claim that his conduct was justified and did not run afoul of ethics rules:
We need not, and do not, address [the attorney's] novel interpretation of the Rules of Professional Conduct because we conclude that, even if Rule 1.16(d) could offer a defense in some circumstances, it does not excuse [his] conduct here. Simply put, [he] had alternatives, other than writing and filing a brief while suspended from the practice of law, which would have satisfied the requirement under [the Rule] to protect [the client's] interests...[He] is essentially asserting a false dilemma and we reject his justifications for his actions.
Dissenting justices would require the attorney to petition for reinstatement. (Mike Frisch)
Recusal Solves Ethical Problem
A Louisiana Hearing Committee has recommended that ethics charges against a part-time District Attorney be dismissed.
The ethics charges involved the DA's representation of a woman who fell out of an inner tube that was connected to a boat. The boat driver was ticketed and faced criminal charges.
The hearing board found that the DA ran a conflicts check prior to accepting the woman's contingent fee matter for her injuries. When he ran a later conflicts check, he learned of the criminal charges against the boat driver. He then recused himself and his office from the cases against the boat driver.
His fee in the contingency case was $20,000.
The hearing board found no ethical violation in the above scenerio. (Mike Frisch)
July 10, 2012
"A Balloon Entertainer And Lawyer" Consents To Disbarment
A Maryland attorney has consented to disbarment as a result of a conviction described on the web page of the United States Attorney's Office for the Middle District of Florida:
U.S. Attorney Robert E. O'Neill announces today that U.S. District Judge Anne C. Conway sentenced Howard Scott Kalin (48, Essex, Maryland) to 10 years in federal prison for attempting to entice a minor to engage in sexual activity. As part of his sentence, the court also ordered Kalin to serve a 20-year term of supervised release after he completes his prison sentence. Kalin pled guilty on September 14, 2011.
According to court documents, on January 12, 2011, a detective with the Lake County Sheriff’s Office posted an ad in the Orlando Craigslist portal personals. The headline of the post read “bored nephew.” Kalin responded to the ad, at which time the undercover detective told Kalin that his nephew was 14 years old. Kalin responded, requesting a picture of the minor. The undercover detective sent a picture of a boy appearing to be between the ages of 12 to13, which was actually an age-regressed image of a male adult police officer. After commenting that the child was “cute,” Kalin sent the undercover detective a picture of himself wearing a tank top. Kalin wrote that he was at a hotel at Disney and asked the undercover detective if he wanted to meet with him. Kalin continued to exchange e-mails with the undercover detective, trying to induce him to bring the 14-year-old to Disney, to engage in sexual activity with him. The undercover detective replied that the child was not available to meet at that time. Kalin, a balloon entertainer and lawyer who lived in Essex, Maryland, was in Orlando, attending the Florida SuperJam balloon fest.
After returning to Maryland, Kalin continued to communicate with the undercover detective through May 23, 2011. During his communications over the internet and by cell phone, Kalin repeatedly affirmed his intent to return to Florida to engage in sexual activity with the 14-year-old boy. Eventually, Kalin arranged to meet with the boy in Orlando on May 23, 2011. He also stated that he wanted to buy the boy a present and suggested a basketball. Kalin flew from Baltimore to Orlando. On May 23, 2011, he called the undercover detective and said that he would meet him and the minor at a restaurant in Clermont, Florida. Kalin then went to WalMart and bought a basketball and some lubricant.
Later that day, Kalin arrived at the restaurant and got out of his car, carrying the WalMart bag with the basketball. The undercover detective met Kalin outside of the restaurant and placed him under arrest. Agents located Kalin’s luggage, a box of condoms, lubricant, a camera, and two thumb drives in Kalin’s rental car. Kalin admitted to law enforcement officers that he traveled to Florida from Maryland to engage in sexual activity with the boy.
Learning From Mistakes That Are Crimes
An Illinois Hearing Board has recommended that an attorney convicted and sanctioned for wire fraud be reinstated to practice.
The attorney had been involved in politics from a young age and well before he attended the University of Chicago law school. His crimes involved working on political campaigns while on the public payroll. He cooperated with the government against his mentor and rationalizer-in-chief, who became his co-defendant.
The hearing board described the conduct that led to conviction:
In April 2002 Petitioner entered into a plea agreement by which he pled guilty to a single count of mail fraud and admitted other misconduct relating to the misuse of political resources. In pleading guilty to the crime of mail fraud, Petitioner admitted that between 1997 and 1998 he, along with his co-defendants and under the direction of Scott Fawell, received a salary from the State of Illinois while exclusively performing campaign-related work for the gubernatorial campaign of George Ryan; fraudulently assisted in the diversion of the services of selected Secretary of State employees to the Ryan campaign while those workers received wages, salary and other compensation, including health benefits, from the Secretary of State's office; fraudulently participated in the diversion of Secretary of State resources and property to the benefit of the Ryan campaign (including an industrial shredder, reams of copy paper, office supplies, parking spaces, parking stickers, cell phones and other office equipment); and participated in the falsification of Secretary of State records in order to conceal the diversion of the employee services and property to the Ryan campaign. Petitioner further admitted that after the 1998 gubernatorial election, he assisted in compiling a list of Secretary of State office employees who had performed well for the Ryan campaign, and Petitioner was aware that those individuals were later provided raises and job benefits as a result of this process.
The petitioner left Illinois for the lure of Washington, D.C. and working as White House liason to the Department of Transportation.
He has shared his story in law school ethics classes:
Petitioner testified that after he was sentenced, he contacted the U.S. Attorney's office and expressed his willingness to speak publicly about his experiences with the federal investigation. He was introduced to Professor Hank Shea of the University of St. Thomas Law School in Minneapolis, who specializes in ethics and had been giving presentations with felons who spoke about their ethical lapses. Petitioner and Shea began making presentations together in February 2007 and continue to do so. Most of the programs are presented to law students and are followed by a question and answer session. During the presentations Petitioner talks about his relationship with Fawell, explains how their misconduct progressed and shares the following three rules with his audience: 1) if conduct is being rationalized on the basis that "everyone is doing it" or "no one will find out," seek out another perspective; 2) live life as if it will be scrutinized; and 3) if moral dilemmas are repeatedly arising in the work place, be prepared to withdraw and seek employment elsewhere. Petitioner also emphasizes the importance of telling the truth and discusses the repercussions of his misconduct.
In addition to law schools, Petitioner and Shea have appeared before business groups and high school students. Petitioner has also conducted public corruption training seminars. He testified he has been involved in twenty-seven presentations, primarily with Professor Shea, and submitted documentation of those programs. Other than receiving honorariums of $1,000 from two organizations and having his travel expenses covered, Petitioner has not asked for or received any compensation for the presentations.
He was disbarred in the District of Columbia. (Mike Frisch)
Gas And Go
The Wisconsin Supreme Court has imposed a public reprimand of an attorney in connection with his representation of a juvenile client.
The attorney missed an afternoon hearing after being seen in the courthouse that morning. He claimed he was on a family vacation:
We agree with the referee and the OLR that a public reprimand is appropriate in this case. Not only did Attorney Martin disobey the command of a lawful subpoena, he made false statements to the OLR and redacted relevant portions of the credit card statement that he later provided to the OLR in order to create the appearance that he was out of town during the entirety of February 21, 2008. There can be no other reason for redacting a gasoline purchase entry for that same date from the credit card statement, especially when Attorney Martin had already claimed to the OLR that anyone who said he/she had seen Attorney Martin in the Milwaukee County Courthouse during the morning of February 21, 2008, must have been mistaken. The purchase of gasoline is not a confidential or embarrassing matter that would lead a person to redact the transaction information, unless the purchase entry shows that the person's prior statement was not accurate.
Chief Justice Abrahamson would impose a more stringent sanction. (Mike Frisch)
Ohio Proposes Rule For Military Attorneys
The web page of the Ohio Supreme Court has this announcement:
The Ohio Supreme Court will accept public comment until August 7 on a proposed rule that would permit military attorneys stationed in Ohio to represent lower-ranking service members in Ohio tribunals.
To be considered for the Expanded Legal Assistance Program (ELAP) for Military Attorneys, attorneys would need to meet these criteria:
- be admitted to practice in at least one other U.S. jurisdiction
- be employed by, serving in, or assigned to the armed services at an Ohio military installation
- and be authorized to provide legal assistance pursuant to 10 U.S.C. 1044.
Military attorneys seeking this status would need to file an application, submit certificates of good standing and admission, and provide an affidavit from their commanding officer with the Office of Attorney Services. They also would need to meet all the requirements governing the practice of law in Ohio, including continuing legal education requirements. ELAP attorneys would not be required to pay biennial registration fees under Gov. Bar R. VI and would be prohibited from seeking or receiving compensation for their services.
Access the text of the proposed changes to the Rules for the Government of the Bar of Ohio.
Comments should be submitted in writing to:
Susan Christoff, director, Attorney Services Division
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
An attorney who was disbarred in 1977 and reinstated to practice in 1999 has once again been disbarred by the Maryland Court of Appeals.
The attorney's main argument was that he was hampered by his lack of records. The court rejected this contention, concluding that competence as an attorney requires record maintanance:
If we were to hold that a lawyer's inability to produce records could prevent findings and conclusions based on clear and convincing evidence, we would allow bad lawyers to insulate themselves from prosecution by hiding, destroying or simply not keeping records.
The court found a number of ethical violations in a single client mtter, including misrepresentations concerning the attorney's efforts on his behalf. (Mike Frisch)
July 9, 2012
Ex Parte E-Mails Draw Proposed Suspension
An Illinois Hearing Board has recommended a 90 day suspension of an attorney who engaged in ex parte communications with an ostensibly neutral arbitrator (who was a law school classmate and friend) in a series of matters.
The hearing board further found that the attorney made a false statement to the Illinois Administrator.
As to sanction:
The Respondent's misconduct is serious. As proved in Count I, she knowingly and improperly exchanged with Arbitrator Teague ex parte e-mails that pertained to cases pending before Teague and in which the Respondent represented one of the parties. In their ex parte e-mails, they criticized and otherwise made other disparaging comments about the Respondent's opposing counsels, and discussed the merits of pending cases. By doing so, the Respondent acted to prejudice the administration of justice in four separate workers compensation cases. Also, as proved in Count II, the Respondent knowingly made a false statement in a letter she sent to the
This is one of series of matters involving the same arbitrator. (Mike Frisch)
$125 Per Hour To Take Client To Wal-Mart Is Excessive Fee
The Louisiana Attorney Disciplinary Board has recommended a two-year suspension of an attorney for misconduct in two client matters.
One of the matters involved a client who suffered from Huntington's disease. The attorney charged the client $125 per hour for non-legal service such as packing his household goods, taking him to a wireless telephone company office and to Wal-Mart to buy a television set and other household goods.
The board found that the attorney charged excessive fees but rejected a charge that she had taken advantage of a client with diminshed capacity. The Office of Disciplinary Counsel had done on line research about the client's condition but not presented evidence to support the Rule 1.14 charge.
The board rejected the attorney's claim that "job stess" was a mitigating factor. (Mike Frisch)
Obesity An Impairment
The Montana Supreme Court has answered a certified question whether obesity is not a physiological condition but rather a physical or mental impairment, with a "qualified yes."
The claimant in the case had filed an administrative complaint with the Montana Department of Labor and Industry against Burlington Northern Sante Fe Railway ("BNSF") alleging discrimination in failing to hire him. The claimant had prevailed before a hearing officer. BNSF appealed to the Montana Human Rights Commission and lost.
The question was certified by the United States District Court on BNSF's petition for review on the issue whether the company's failure to hire the claimant violated the state Human Rights Act.
There are dissents. (Mike Frisch)
E-Discovery And Ethics
A recent opinion of the D.C. Bar Legal Ethics Committee:
Discovery service vendors, such as e–discovery vendors, cannot both practice law
within the District of Columbia and be partially or entirely owned by passive
non–lawyer investors consistent with D.C. Rule 5.4(b). This Committee's
jurisdiction does not include the definition of the practice of law, but the
Committee on Unauthorized Practice of Law has recently issued a detailed opinion
explaining what activities by these vendors constitute the practice of law.
The Rules of Professional Conduct do not reach non–lawyer owners of discovery
service organizations; they are not subject to bar discipline. The Rules do
reach lawyers who co–own or manage such vendors with or on behalf of non–lawyer
passive investors. The Rules also could reach lawyer employees of such vendors
who know of facts that constitute a violation of Rule 5.4(b) or lawyers who,
with similar knowledge, retain such vendors.
In addition, lawyers who own, manage, work for or retain a discovery service
vendor that engages in the practice of law in the District of Columbia and has
passive non–lawyer investment may violate the prohibition in Rule 5.5(b) against
assisting others in the unauthorized practice of law.
Fly Like An Eagle
A district court judge has been censured by the New York State Commission on Judicial Conduct for his participation in "numerous for-profit poker games called 'Texas Hold Em' held in a facility owned and operated by the Fraternal Order of Eagles ("FOE") in Northport, New York."
The judge was aware that the police had investigated complaints of illegal gaming at the FOE.
The judge went to the FOE to celebrate his re-election on the day before. There was an ice cream cake celebration in his honor. The celebration was dampened a bit when four police officers (some of whom knew he was a judge) arrived with a search warrant for the premises.
When the host of the establishment was arrested, the judge made gratuitous references to his judicial office. (Mike Frisch)