Legal Profession Blog

Benson And Head Butt

A  disciplinary case summary from the web page of the Idaho State Bar:

On November 13, 2012, the Idaho Supreme Court issued a Disciplinary Order suspending Nampa attorney Benson Barrera from the practice of law for a period of one year with the entire year withheld and placing him on a two year disciplinary probation.

The Idaho Supreme Court found that Mr. Barrera violated Idaho Bar Commission Rule 505(b) [Conviction of a serious crime].  The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.

In February 2011, Mr. Barrera was charged with felony aggravated assault.  The charge stemmed from an incident in which Mr. Barrera head-butted another man in a public venue.  Mr. Barrera described it as a bar fight with a former girlfriend’s ex-husband.  In October 2011, the jury found Mr. Barrera guilty of felony aggravated assault.  In December 2011, Mr. Barrera was sentenced to 60 days in jail with the possibility of early release and a five-year probation including terms that he complete a substance abuse evaluation and 200 hours of community service.  Mr. Barrera was released from custody early after serving 37 days.  In January 2012, Mr. Barrera appealed his conviction.

The Disciplinary Order provides that Mr. Barrera’s one-year suspension is withheld subject to the terms and conditions of a two-year probation, which include:  avoidance of any alcohol or drug-related criminal acts, or alcohol or drug-related traffic violations; a program of random urinalysis; that he comply with the terms of his criminal probation; and if Mr. Barrera admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during the period of probation, regardless whether the admission or determination occurs after the expiration of the probationary period, the entire withheld suspension shall be imposed.

The withheld suspension does not limit Mr. Barrera’s eligibility to practice law.

(Mike Frisch)

Sanction Proposed For Pistol Packing Prosecutor

The Illinois Review Board has recommended a suspension of four months in a case involving an encounter between the Union County State's Attorney (the respondent) and a process server:

Christopher Dees, a licensed private detective had been attempting to serve the Respondent with a summons in a federal lawsuit in which Respondent as the State's Attorney of Union County, Illinois was named as a defendant. Dees had tried to serve Respondent both at his office and his home, but had been unsuccessful. The record shows the Respondent was intentionally frustrating the service of the summons.

On the morning of March 19, 2008 between 7:30 and 8:00 a.m. Dees approached the Respondent in the parking lot of the Union County Courthouse in an attempt to serve a summons and a copy of the complaint. According to the Hearing Board, Dees identified himself, displayed a badge, stated he was a process server, and called the Respondent by name. The Respondent pulled a loaded .380 semi-automatic handgun from his pocket and pointed it at Dees. The Hearing Board reports that Dees identified himself again and the Respondent continued to point the gun at him. Fortunately, nothing more happened. Dees dropped the summons at the Respondent's feet and left. He then reported the incident to the Union County Sheriff's Department.

Respondent was found guilty of aggravated assault. (Mike Frisch)

From Disbarment To Permanent Disbarment

The Louisiana Supreme Court has permanently disbarred an already-disbarred attorney.

Prior to his 2002 disbarment, the former attorney accepted a non-attorney position with WorldCom. He then was moved into an in-house general counsel position in 2001. He did not advise his employer of the disbarment and continued to practice law.

When WorldCom was acquired by Verizon, the unauthorized practice copntinued for approximately eight more years. (Mike Frisch)

What It Wasn't Was Football

The Louisiana Attorney Disciplinary Board has recommended a one-year suspension, with six months stayed and two years of unsupervised probation, of an attorney conviocted of domestic battery.

The board rejected charges of ethical violations in the attorney's purported efforts to persuade a witness to change her testimony, finding insufficient evidence.

The board's recitation of the procedural history is interesting.

The attorney was granted a hearing continuance in order to celebrate his 50th birthday in Texas. However, he was denied a second sought postponement because the hearing was set the day after an LSU national championship football game. (Mike Frisch)

Possibly Unethical But Not Contemptuous

From the web page of the Tennessee Supreme Court:

In a unanimous opinion, the Tennessee Supreme Court ruled today that a judge may not properly charge an attorney with contempt of court when the behavior neither disrupts the proceeding nor disparages the court, even if the judge believes that the attorney behaved unethically.

In 2009, Mr. James Beeler represented Mrs. Christina Thomas in a criminal trial at which her husband, Mr. James Thomas, was represented by another attorney.  While the other attorney was questioning a witness, Mr. Beeler leaned over and spoke softly with Mr. Thomas.  The trial judge immediately interrupted the trial and asked the other attorney whether he had given Mr. Beeler permission to speak with his client.  Because the other attorney said that he had not, the judge charged Mr. Beeler with criminal contempt of court.  At a hearing, both attorneys testified that they had cooperated in defending their clients and that Mr. Thomas had spoken openly with Mr. Beeler on the morning of the trial without objection from his attorney.  Despite this testimony, the judge convicted Mr. Beeler of criminal contempt and recited the ethical rule that forbids an attorney from speaking with a person represented by another attorney about the subject matter of that representation without permission.

The Supreme Court held that a judge may not charge an attorney for contempt of court based upon "willful misbehavior" when the behavior neither disrupts the proceeding nor disparages the court, even if the judge believes that the attorney behaved unethically.  In this case, the Court found that Mr. Beeler had the implicit consent of the other attorney to speak with Mr. Thomas.  His ethical conduct was not "misbehavior" for which he could be charged with criminal contempt.  Accordingly, the Court reversed the Court of Criminal Appeals and vacated Mr. Beeler's conviction.

The opinion is linked here. (Mike Frisch)

No Mitigation For Alcoholism

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio has permanently revoked the law license of  Cleveland attorney Kevin T. Toohig for multiple violations of state  attorney discipline rules, including conduct that resulted in his conviction in  federal court on a felony count of tax evasion.   Toohig’s license has been under an interim suspension since the court  was notified of his felony conviction in January 2011.

In a 7-0 per  curiam opinion, the court adopted findings by the Board of Commissioners on  Grievances and Discipline that in addition to the criminal conduct that resulted  in his conviction for evading more than $184,000 in federal taxes, Toohig also  engaged in a pattern of misconduct in which he misappropriated and failed to  make timely payment to clients of funds that were on deposit in his law office  trust account,  failed to maintain  required records accounting for deposits to and disbursements from that  account, and improperly transferred funds from the trust account to an account  in the name of a corporation that he owned for the purpose of sheltering funds  from creditors and to pay personal and law office expenses.

In a separate  incident, the court found that Toohig allowed a client who was a fugitive  evading arrest for a multi-million dollar theft from the State of Colorado to  wire more than $710,000 to Toohig’s client trust account, from which Toohig  immediately transferred $50,000 to his own business account despite state rules  that allow an attorney to withdraw legal fees from a client trust account only  after they have been earned.

In imposing  disbarment as the appropriate sanction for these and other rule violations, the  court rejected Toohig’s claim that alcoholism was a significant contributing  factor in his misconduct.  The court  pointed out that the conduct leading to Toohig’s tax evasion conviction took  place eight years before his diagnosis of chemical dependency in 2009, and also  noted that much of the mishandling of client funds and improper use of  his trust account for which Toohig was cited  took place in late 2009 and during 2010, after he had achieved sobriety.

The court concluded that Toohig’s pattern of  misconduct involving multiple offenses and clients  over an extended time period, including a  felony conviction and multiple incidents of conduct involving fraud, deceit,  dishonesty or misrepresentation, and conduct that adversely reflects on his  fitness to practice law, supported the disciplinary board’s recommendation that  he be permanently disbarred.

The opinion is linked here. (Mike Frisch)

No Malpractice Cause Of Action Against Opposing Counsel

An order dismissing a legal malpractice case was affirmed by the New York Appellate Division for the Second Judicial Department:

Here, even viewing the factual allegations of the complaint as true, they failed to adequately state a legally cognizable cause of action. Indeed, in this action against the attorneys who represented her adversaries in unrelated litigation, the plaintiff cannot allege the existence of the requisite contractual, fiduciary, or attorney-client relationship between herself and the defendants to support her various claims sounding in breach of contract, breach of fiduciary duty, and legal malpractice (see generally Breen v Law Off. of Bruce A. Barket, P.C., 52 AD3d 635, 636-637).  Likewise, the plaintiff cannot properly plead reasonable reliance on the representations of another party's counsel so as to support her claim of fraud (see Mann v Rusk, 14 AD3d 909, 909-910).

(Mike Frisch)

 

The Dogs Of Beverly Hills

The California State Bar Court Review Department has recommended a stayed one year suspension and probation for three years of an attorney who solicited and received loans from a client.

The attorney had practiced for 37 years without prior discipline. She served in a number of positions including as Mayor of Beverly Hills. She had a deep interest in animal rescue issues. She was convicted of a misdemeanor in connection with the operation of a kennel.

The client was a kennel operator who was charged with animal cruelty. The attorney assured the client that she was an "expert in dog issues" as a result of the prior charges against her.

The loans (totaling $9,000) were solicited shortly thereafter. There was no documentation, interest charges or date of repayment.

The review department rejected the contentions that there was no attorney-client relationship and that the loans were out of friendship and their mutual interest in canines. (Mike Frisch)

Ten Years On

In a single opinion, the Oklahoma Supreme Court imposed discipline on two attorneys. One was suspended for two years and a day; the other for six months.

Justice Kauger concurred and dissented, raising important issues concerning delay:

The initial complaint against the respondent, Casey, was filed on October 24, 2002, alleging misconduct that began as early as 1996, and continued through 2000. A trial panel was assigned and the initial hearing was set for December 23, 2002. On December 10, 2002, the Bar Association requested a continuance, offering no reason, other than the parties needed more time. A continuance was granted. For unknown reasons, the matter lingered until November of 2007, when the parties jointly requested that the matter be held in abeyance. This motion was granted on December 5, 2007. By December of 2010, the Chief Justice's office asked for an explanation as to why the matter had not proceeded. The response was that the parties were attempting to preserve judicial economy!

Even after the matter was finally set for hearing on March 28, 2011, it was reset six times on the request of the respondent. The trial panel members changed twice thoughout this portion of thedelay. Apparently, through the efforts of the respondent, with the help of the Bar Association, the matter was continued by the trial panel and the lawyer was allowed to practice for ten years.

Justice Kauger questions the process that allowed the attorney to practice and delayed sanction for such an extended period of time:

The responsibility of this Court in disciplinary proceedings is not to punish, but rather to inquire into and to gauge a lawyer's continued fitness to practice law, with a purpose of safeguarding the interest of the public, of the courts, and of the legal profession. The nondelegable, constitutional responsibility to regulate the practice and the ethics, licensure, and discipline of legal practitioners is solely vested with this Court. What protection or interest of the public has been guarded in that time? None. What protection or interest of the public will be secured sixteen years after the initial violation? Probably none.

(Mike Frisch)

Judical Misconduct Charges May Proceed

From the web page of the New York Commission on Judicial Conduct:

Salina Town Court Justice Andrew N. Piraino (Onondaga County)  brought a petition in State Supreme Court to stop the Commission from  proceeding against him on formal disciplinary charges. 

The judge and his lawyer filed the petition in the name of “John  Doe.”

The matter was assigned to Supreme Court Justice John C. Cherundolo in Syracuse.

On February 7, 2011, Justice Cherundolo signed a temporary  restraining order enjoining the Commission from any further proceedings and  ordering that the matter be sealed pending a final determination.

After written submissions from the parties, Justice Cherundolo  dismissed the petition in its entirety in a decision dated April 26, 2011, and  an Order dated May 12, 2011.  His Order  directed that the matter be unsealed and that the caption be changed to reflect  the real name of the petitioner: Andrew  N. Piraino v. New York State Commission on Judicial Conduct.

Subsequently, Justice Cherundolo granted Judge Piraino's motion to reconsider and issued a second order that inter alia reversed his first ruling, reinstated the petition, restyled the caption as John Doe v New York State Commission on Judicial Conduct, reinstated the Temporary Restraining Order against the Commission, and ordered  the Commission to produce volumes of information and material ostensibly going to the merits of the underlying disciplinary charges against Judge Piraino.

The Commission appealed to the Appellate Division, Fourth Department, which issued a Memorandum and Order dated November 9, 2012, in the Commission's favor, unanimously reversing Justice Cherundolo's second Order, reinstating his original order and dismissing Judge Piraino's Article 78 petition.

The order of the Appellate Division is linked here. (Mike Frisch)

Tenured Professor Dismissal Upheld

The Indiana Supreme Court has affirmed the grant of summary judgment to the defendant in a suit brought by a tenured faculty member of the University of Evansville, who sought review of a determination to dismiss him from the faculty.

The action involved an incident between the tenured faculty member and his department head. While the department head was interviewing a prospective student and her parents, the professor walked into the lounge with a female student, said "Hi, Sweetie" to the department head and "walked up to her - standing with his belt buckle at her eye-level, about a foot from her face - and stroked his fingers under her chin and along her neck."

The incident resulted in a formal complaint, a disciplinary process, the professor's dismissal, and two lawsuits. (Mike Frisch)

What We Have Here Is A Failure To Communicate

An attorney who intentionally and repeatedly violated his ethical obligations in two client matters was suspended for three years by the West Virginia Supreme Court of Appeals.

The court noted that the attorney's failure to act in one matter caused the client "considerable stress" and that both clients had to seek help in the matters. One had to hire a CPA; the other had to retain new counsel.

The court also found it "particularly troubling that [the attorney] has refused to acknowledge the wrongful nature of his conduct."

He blamed his mail carrier, telephone system, voice mail, computer and email for his problems. The court noted that he got one client's $6,540 check through the mail without any delay or problem.

The court rejected a proposed one-year suspension. (Mike Frisch)

No Sanction For Reciprocal Rule 4.2 Violation

The Michigan Attorney Discipline Board has found misconduct but imposed no discipline in a reciprocal discipline matter where the attorney had been sanctioned for a Rule 4.2 (unauthorized communication with represented person) violation by a North Carolina federal district court.

The attorney had contacted a person represented by counsel in a criminal investigation. That person was a named defendant in civil litigation, but did not have counsel in the civil case. The attorney had contacted the criminal attorney, who "made it clear" that he was not counsel in the civil matter.

The board here found that the misconduct was conclusively established for reciprocal discipline purposes, but that this was one of the "exceedingly rare instances" where no discipline should be imposed. 

If you read between the lines, I think the board did not really believe that any violation was established. (Mike Frisch)

Act Of Negligence Subjects West Virginia Attorneys To "Whims" Of Disciplinary Counsel

An attorney who failed to communicate with the bankruptcy trustee appointed when his client filed for bankruptcy has been admonished by the West Virginia Supreme Court of Appeals. The court rejected the suggestions that the lapses were too minor to constitute sanctionable ethics violations.

The court noted that, although the conduct was negligent, there was significant danger to the estate.

A dissent by Chief Justice Ketchum would find that "nothing [the] lawyer...did came close to being an ethical violation." The attorney was retained to file a medical malpractice case which became part of the estate. He told his de facto client of his withdrawal but not his de jure client, the trustee.  His co-counsel continued the representation of the trustee.

Chief Justice would find a single act of negligence that did not violate ethical standards:

I dissent because the majority opinion makes no distinction between a mistake and ethical misconduct. As a result, lawyers had better be careful. Deed lawyers, for instance, had better be extra careful. If they now inadvertently leave a word out of a metes and bounds descrition, they are subject to the whims of the Office of Disciplinary Counsel.

Justice Workman joined the dissent. (Mike Frisch)

No Discipline For Physician's Failure To Supervise

The Vermont Supreme Court has held that a physician is not answerable in professional discipline for failure to supervise his physician's assistant.

The assistant was reported to the physician as a possible source of illegally prescribed opiates. The physician reported the concerns and the assistant admitted the misconduct.

Charges of failure to supervise were then brought against the physician. The court here found no basis to impose professional sanctions. (Mike Frisch)

Two Names, Two Licenses

The Louisiana Disciplinary Board has recommended that the reinstatement petition of a disbarred attorney be denied.

The petitioner was disbarred in 1977 in the wake of his federal conviction for conspiracy to obstruct justice. What happened next is perhaps a more significant impediment to his reinstatement.

After the Louisiana disbarment, the petitioner applied for admission to the Georgia Bar under a different name. He failed to disclose his felony conviction and his prior admission to and disbarment from Louisiana.

Georgia admitted him under the different name but found out about his prior record. He then voluntarily surrendered his Georgia license.

He also was convicted of mail fraud.

All of these incidents took place in the 1970s. He was abusing alcohol at the time and now has established a sober lifestyle. The board nonetheless found he had not established that reinstatement is appropriate. (Mike Frisch)

Multiple Choice

The web page of the Idaho State Bar has summaries of recent disciplinary actions.

One of the described matters involves a public censure of an attorney for criticism of a judicial officer.

In a motion to withdraw in a criminal matter, the attorney described the magistrate judge's formulation of a legal test as "stunningly nonsensical" and stated:

The Court’s errors in this case were so inexplicable and so great in number that Counsel has formed the belief that this Court is:

            (a)        lazy;
            (b)        incompetent;
            (c)        biased;
            (d)       prejudiced; or
            [(e)]     all or some of the above.

With all due respect, Counsel simply cannot escape this belief.  There is no explanation for this Court’s ‘finding’ of a ‘fact’ that did not exist.  It would be understandable if this Court overlooked a fact, but this Court made up a fact.  It just so happens that this Court made up facts to the advantage of his former employer, the Boise City Prosecutor’s Office.  Therefore, this Court is either biased toward them, prejudiced against Counsel, too lazy to actually listen to the recording of the relevant interview, or too incompetent to reach the correct conclusion from the facts.  Therefore, Counsel lacks faith in this Court’s ability to objectively and competently serve as a fact-finder in this case...

The contempt citation is on appeal. (Mike Frisch)

Lubet on John Brown's Spy

Steve Lubet (Northwestern) has released a new book,  John Brown’s Spy: The Adventurous Life and Tragic Confession of John E. Cook.  It is the story of one of Brown’s chief lieutenants, who spent a year in Harper’s Ferry preparing for the raid, but who later betrayed the conspiracy by providing a “full confession” to the Virginia authorities.  Steve advises, for the benefit of lawyers, law professors, and legal historians, that over half the book is devoted to the trials following the raid, including the previously unknown role of Daniel Voorhees, an Indiana lawyer who later became one of Lincoln’s chief adversaries in Congress.

Here's the description from the Yale University Press website:

John Brown's Spy tells the nearly unknown story of John E. Cook, the person John Brown trusted most with the details of his plans to capture the Harper's Ferry armory in 1859. Cook was a poet, a marksman, a boaster, a dandy, a fighter, and a womanizer—as well as a spy. In a life of only thirty years, he studied law in Connecticut, fought border ruffians in Kansas, served as an abolitionist mole in Virginia, took white hostages during the Harper's Ferry raid, and almost escaped to freedom. For ten days after the infamous raid, he was the most hunted man in America with a staggering $1,000 bounty on his head.

Tracking down the unexplored circumstances of John Cook's life and disastrous end, Steven Lubet is the first to uncover the full extent of Cook's contributions to Brown's scheme. Without Cook's participation, the author contends, Brown might never have been able to launch the insurrection that sparked the Civil War. Had Cook remained true to the cause, history would have remembered him as a hero. Instead, when Cook was captured and brought to trial, he betrayed John Brown and named  fellow abolitionists in a full confession that earned him a place in history's tragic pantheon of disgraced turncoats.

[Jeff Lipshaw]