December 22, 2012
The Trouble With Tribble
The Vermont Supreme Court reversed the conviction of defendant Dennis Tribble, who had admittedly shot his neighbor to death.
The court concluded that the defendant's right to confrontation was violated by allowing a videotape of the testimony of a key prosecution witness to be played for the jury. The witness was out of the country but willing to return. The error was not harmless.
Counsel did not object to the videotape, but the client did.
The court also addressed a disagreement between client and counsel over trial strategy and concluded that the client's wishes must prevail:
...we conclude that defendant here—having been found competent to assist in his own defense—retained final authority over the decision to present a diminished capacity case. Plainly, as other courts have recognized, the fundamental right to maintain a plea of complete innocence would be impaired, if not eviscerated, if counsel were allowed, over defendant’s objection, to assert a defense seeking a less serious conviction. Indeed, as the parties here clearly understood, evidence of defendant’s delusional disorder directly undermined the self-defense theory that defendant preferred by discrediting the claim that his perception of the threat was a reasonable one. The basic right to contend for outright acquittal that bars defense counsel from overriding a defendant’s objection to instructing the jury as to lesser-included offenses applies with equal force to preclude the assertion of a theory, such as diminished capacity, that supports conviction on a lesser-included charge contrary to a defendant’s express wishes. Moreover, like insanity, a defense of diminished capacity based on mental impairment is a highly personal and potentially stigmatizing one, and should remain the prerogative of an otherwise competent defendant in the final analysis. Accordingly, we conclude that the trial court here erred in authorizing defense counsel to assert the defense contrary to defendant’s wishes.
December 21, 2012
Jealousy Not Sex Discrimination
The question of the day comes from the Iowa Supreme Court:
Can a male employer terminate a female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?
...we ultimately conclude the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act.
The employee was hired in 1999 as a dental assistent in the employer's dental office. She worked there capably for over 10 1/2 years. However, the employer had complained that she dressed in a "too tight" and revealing manner.
During the last six months of her tenure, they "started texting each other on both work and personal matters outside the workplace." The employee denied that she flirted with the employer although there was some sexual banter between them.
When the employer was with his children for a Colorado Christmas, Mrs. Employer found the text messages.
There ensued a confrontation between them and pastoral counseling. As a result of the perceived ongoing threat to the marriage, the employee was terminated.
The court concluded:
...the issue is not whether [employer] treated [employee] badly. We are asked to decide only if a genuine fact issue exists as to whether [employer] engaged in unlawful gender discrimination when he fired [employee] at the request of his wife....we believe that this conduct did not amount to unlawful discrimination...
What We DON'T Have Here Is A Failure To Communicate (Over A Dissent)
The Maryland Court of Appeals has found no misconduct and dismissed a case involving allegations of misconduct against an attorney who had represented several correctional officers in a pay dispute.
The hearing judge (whose findings are recited in full and great detail) had rejected all charges except for a failure to communicate with one officer. The court majority found no violation:
[The attorney's] exception implicates the application of Rule 1.4 to the process of counseling a client.
To out knowledge, this is our first foray into the role of lawyer as counselor...the hearing judge erred in not viewing counseling [the client] as a process, which occured over a period of time...our analysis must take into account the entire interaction between [the attorney] and [the client] and the information that was communicated durationally.
Under the circumstasnces, the court concluded that the attorney was not obligated to reiterate information that had previously been provided to the client.
The court rejected a number of contentions raised on appeal by Bar Counsel. In particular, the court rejected allegations of excessive fees.
Bar Counsel contented that the attorney engaged in misconduct by collecting legal fees while his professional corporation was in default of licensing obligations. The court found that the fee collections were "inextricably linked" to winding up the corporation.
A dissent would find the failure to communicate and impose a 30 day suspension.
The hearing judge's view of one expert witness on the reasonableness of fees is a primer on how not to persuade:
In addition to [the expert's]... lack of experience in the county employment area, his persuasiveness and credibility was undermined (if not obliterated) by his demeanor on the witness stand. The vigor and even anger with which [he] testified was stunning. He came across to the court as an advocate rather than an objective expert rationally analyzing the facts. Under fair and reasonable cross examination, [he] became angry, accused Respondent of fraud and opinied unreasonably that the outcome of [the client's] case was "disastrous."
Sanctions For Practice Restriction Agreement
The New Jersey Supreme Court has reprimanded two attorneys and admonished a third for violations of New Jersey Rule 5.6 (agreement restricting right to practice).
Two of the attorneys (a senior and junior) had moved to disqualify the third attorney in litigation. An agreement that violated Rule 5.6 was reached and the motion to disqualify was withdrawn. The attorney who agreed to the restraint on her practice did so because she was unaware of the rule and planned to move to Portugal anyhow. However, the Portugal move fell through.
The junior lawyer got the admonition; the senior attorney that proposed the agreement and the attorney who agreed to it were reprimanded. (Mike Frisch)
December 20, 2012
The Illinois Administrator has recently filed a complaint alleging a number of ethics violations including misleading advertising and office signs and violation of a civil protection order
He is also charged with this:
On February 7, 2011, Respondent entered a federal building at 101 W. Congress in Chicago to handle an immigration matter. At that time, he submitted to a routine security search to enter the facility and had in his possession two grams of marijuana. Federal Protective Service officers discovered that Respondent had the marijuana and detained him. The officers then cited Respondent with violation of 41 CFR 102-74.400 and released him. The matter of Respondent's violation of 41 CFR 102-74.400 was docketed by the Clerk of Court for the U.S. District Court for the Northern District of Illinois as case number H5036487.
On May 9, 2011, Respondent pled guilty to violation of 41 CFR 102-74.400 in case number H5036487, and Magistrate Sidney Schenkier sentenced him to a fine of $175, plus payment of $25 in court costs.
Finally, he is charged with falsely claiming to disciplinary authorities that the above incident involved a pocketknife rather than marijuana. (Mike Frisch)
Boating Recusal Issue Explored
Also from the Florida Judicial Ethics Advisory Committee:
1. Must a judge recuse from all cases involving a bank whose loan collection official is the judge’s close personal friend, whether or not the bank official appears in the case as a witness or bank representative, where the official is a member of a local social club to which the judge belonged until three years ago and the official frequently socializes with the judge and the judge’s spouse in each other’s homes, around town and while boating?
ANSWER: No, but the judge must recuse from any cases in which the judge’s friend appears as a party, witness or representative of the bank, or any case in which the judge’s impartiality might reasonably be questioned.
2. If the judge is not required to recuse from the bank’s cases, must the judge disclose the relationship to the parties in cases involving the bank?
3. Must a judge recuse from cases involving the attorney and law firm which represented the judge, the judge’s mother, and the judge’s brother in a personal injury case which settled without going to trial?
ANSWER: Yes, for a reasonable period of time.
4. Must the judge, upon no longer being required to recuse from cases involving the attorney and law firm, disclose that relationship to the parties in a case in which that attorney or law firm appears?
ANSWER: Yes, for a reasonable period of time.FACTS
The inquiring trial judge is a friend of the sole or primary loan collection officer at a local bank. The judge and the friend were both members of a local social group until the judge resigned from the group approximately three years ago. The judge and the friend frequently socialize in each other’s homes with their spouses and around town and while boating in excess of a dozen times each year. The bank appears in court on a variety of matters, including collections, foreclosures, and repossessions. The judge’s friend has never appeared before the judge as a witness or bank representative.
Historically, the judge has been recusing from the bank’s cases without requiring a hearing.1 Recently, the judge granted a motion to disqualify from a case in which the bank was a party, wherein the motion asserted essentially that the judge “had a past and ongoing social relationship” with the bank’s primary or sole collection officer. The judge asks if recusal is required or whether the judge may simply disclose the relationship in all future cases in which the Bank is a party and then rule on any motions to disqualify which may be filed.
In an unrelated inquiry, the judge states that, until recently, a local insurance defense attorney and the attorney’s law firm represented the inquiring judge, the judge’s mother, and the judge’s brother in a personal injury case against them. The case settled without going to trial. The judge has been recusing from all cases involving that firm without a hearing and plans to do so for two years after the firm concluded its representation of the judge and the judge’s family members. The judge asks whether recusal is required in such circumstances without a motion to disqualify or hearing. The judge further asks how long it is necessary to disclose the representation by the attorney and the firm in cases where the attorney or the firm appears.
The opinion is linked here. (Mike Frisch)
No Host, No Show
A recent opinion from the Florida Judicial Ethics Advisory Committee:
Whether the inquiring judge may attend a religious organization’s fundraising dinner, after the organization mailed invitations listing the inquiring judge as one of several “hosts” without notifying the judge before the mailing?
The inquiring judge and the judge’s spouse have attended a religious organization’s gala dinner over the years. The gala dinner serves a fundraising purpose for restoring, preserving and supporting the religious organization’s continued success. The inquiring judge’s spouse purchased an eight-person table for a considerable amount of money before the invitations went out. The invitations which were mailed by the gala planning committee, of which the inquiring judge is not a member, clearly were soliciting funds. Included with the invitation was a list of ten donors labeled as “hosts.” The inquiring judge was listed as one of the “hosts” with an abbreviated designation of title for Honorable (“Hon.”), along with the inquiring judge’s spouse’s name. Neither the inquiring judge nor the judge’s spouse authorized the committee to send the invitations including the inquiring judge’s name.
The inquiring judge quickly notified the committee of the mistake. The inquiring judge directed the committee to discontinue using the judge’s name in any further mailings for solicitation of funds.
The inquiring judge asks if the Code of Judicial Conduct would prohibit the judge’s attendance at the gala dinner given the invitation’s listing of the judge as one of the “hosts.
The New York Appellate Division for the Second Judicial Department accepted the resignation and struck from its rolls an attorney convicted of securities fraud:
The factual basis for Mr. Krome's plea was his knowing and willful participation in the creation of materially false and misleading documents, including an opinion letter, in order to facilitate the issuance of, and remove trading restrictions on, shares of stock in a corporation named CO2 Tech, Ltd., and have "free trading" shares of CO2 Tech, Ltd., stock issued for sale to the public.
The attorney admitted that he could not defend against the resulting disciplinary charges. (Mike Frisch)
December 19, 2012
Buying Into License Revocation
In a case involving misconduct of "epic proportions," a unanimous Wisconsin Supreme Court imposed the sanction of license revocation.
The case involved an attorney who purchased a law practice in 1999. He had previously been a shareholder in the practice and was aware that the seller attorney had a (to put it charitably) non-compliant trust situation:
Attorney Weigel stated that before he bought out Alvin Eisenberg, he understood the trust account was running a deficit but he claimed he did not know the full extent of the deficit. In his testimony at the hearing, Attorney Weigel said that when he and his partners bought Alvin Eisenberg out, "I would have believed the problem to be closer in the $200,000, $250,000 range. After we bought him out and some other things started to come to light, it was obvious that we were closer to the million dollar range than the $250,000 range." When asked how long after the March 1999 buyout Attorney Weigel came to the conclusion that the trust account was running closer to a million dollar deficit, he estimated "somewhere over the course of six months or so," which would have meant late 1999 or early 2000. When asked whether he gave any thought to reporting Alvin Eisenberg to the relevant authorities and walking away, Attorney Weigel responded, "I thought of it but just made a moral decision not to do that."
Rather than bring the practice into compliance, the attorney engaged in a thirteen year practice of "robbing Peter to pay Paul" by paying trust funds owed to clients and providers on a "squeakiest wheel" basis.
As to sanction:
A six- or seven-figure deficit in an account that holds client funds is an ethical failure of epic proportions. We agree with the OLR that it would be difficult to imagine a more aggravated pattern of misconduct than the one presented here. We agree with the OLR that any sanction less than revocation would undermine the public's confidence in the honesty and integrity of the bar.
9,450 Clients To Notify
The North Dakota Supreme Court imposed the stipulated discipline of a six-month suspension for an attorney's conduct in failing to comply with the notification obligations of an earlier suspension:
After his October 1, 2008, suspension, he filed an affidavit with this Court attesting that he had served 106 notices to clients, as required by N.D.R. Lawyer Discipl. 6.3. However, he testified at the hearing resulting in the 2008 suspension, that as of the day before the hearing, his law firm "had like 9,450 [clients] or something along those lines." By letter dated April 30, 2009, Disciplinary Counsel asked [him] to explain the apparent discrepancy in the number of clients. In a response dated May 20, 2009, [he] revealed that on May 15, 2008, he "sold Bradley Ross Law and its clients to Facemyer and Associates in Utah." He also revealed that "on or before September 17, 2008, all remaining Bradley Ross Law clients and there [sic] files had been transferred to Facemyer and Associates."
This information led to a request for information demonstrating compliance with the suspension order, and
[The attorney]admitted that his failure to provide the requested information until September 10, 2012, violated N.D.R. Prof. Conduct 8.1(b), which provides that a lawyer shall not knowingly fail to respond to a lawful demand for information from a disciplinary authority. He also admitted that his failure to provide clients with notice, by certified mail, of the sale of his law firm violated the notice provisions of N.D.R. Prof. Conduct 1.17(c), but that the actual or potential injury resulting from the violation was substantially alleviated by [his]efforts to provide notice by other means.
To attorneys that prosecute and defend bar discipline cases, this opinion deals with a recurring issue. Often, a suspended attporney's failure to substantially comply with notice obligations turn a short suspension into a lengthy one.
In D.C., many suspensions/disbarment never start to run for reinstatement purposes because of the attorney's failure to certify compliance with such onligations. (Mike Frisch)
December 18, 2012
Over Dissents, Judge Gets Off With Censure
Over a series of vigorous dissents as to the adequacy of sanction, the New York Commission on Judicial Conduct has censured Bronx County Surrogate Court Judge Lee Holtzman.
This press release summarizes the case, which involved his failure to act when learning that one of his appointees had "improperly taken excessive fees, and fees in advance of doing work on...estates, resulting in negative balances of $300,000 to $400,000."
By allowing his appointee to stay in the position of trust, the judge abdicated his ethical responsibilities.
The money came from the estates of persons who died without a will.
Dissents call for the judge's removal from office.
From member Richard Emery:
What I do know is that this is one of the most egregious cases that has ever been litigated before this Commission during the nine years I have served. To allow respondent to escape removal on these undisputed facts out of deference or undue leniency towars a retiring judge degrades our function to a degree that I have not yet witnessed. Respondent's favoritism towards Lippman [the appontied attorney] should not be compounded by our favoritism towards him.
The censure will allow the judge to retire. (Mike Frisch)
To Live And Work In D.C.
The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a claim brought against the Administrative Office of the United States Court ("the central administrative support organization for the federal judiciary" ) by a rejected applicant for an attorney position.
The plaintiff is an attorney who resides in Kentucky. She applied online for a position as an Attorney-Advisor. Her application did not meet a job requirement that she live and work in the D.C. area. She received an automated rejection letter because of her Kentucky home.
She then sued AO, arguing that the geographic limitation was unconstitutional.
The district court granted dismissal for both lack of subject matter jurisdiction and failure to state a claim due to sovereign immunity.
The remand directs the district court to explain its conclusion that the plaintiff had failed to state a claim. (Mike Frisch)
With God As My Witness
The New Jersey Supreme Court has imposed a public reprimand of an attorney who threatened to institute a civil RICO action and criminal charges against his wife and her counsel in an emotionally-charged divorce matter.
The attorney sent an e-mail that ended:
...this fight will happen on my schedule. If the complaint isn't filed today or tomorrow, don't think its going away. With God as my witness, I swear that this will not end until you are in jail for perjury and Jennifer and Sal are disbarred for suborning it.
The attorney also violated Rule 4.2 by sending a copy of the e-mail to his wife, a represented party. (Mike Frisch)
Jeremy Telman on Legal Education
I have been remiss in not linking to a series of six blog posts by Jeremy Telman (Valparaiso) on the subject of legal education over at Contracts Prof Blog.
By all rights, given procrastigrading, I should have linked this several days ago. I have no excuse.
Lawyer Without Clients Has License Revoked
An attorney convicted of felony theft has had his license revoked by the Wisconsin Supreme Court.
The court summarized the criminal charges:
The criminal complaint alleged that Attorney Bielinski stole $542,261.61 held in trust by the Milwaukee County Clerk of Circuit Court and Milwaukee County Treasurer by falsely claiming to represent people entitled to such money. The criminal complaint further alleged that Attorney Bielinski unsuccessfully tried to steal an additional $84,784.64.
The criminal complaint alleged that between 2007 and 2011, Attorney Bielinski fraudulently purported to represent persons involved in mortgage foreclosure cases in which surplus funds remained after sheriff's sales and he claimed the funds on their behalf. The criminal complaint alleged that Attorney Bielinski filed 47 fraudulent claims with the Milwaukee County circuit court, 43 of which were approved and paid and 4 of which were denied. Attorney Bielinski's financial records showed he had no legitimate law practice at the time and his fraud scheme was his primary source of income. In order to commit these thefts, Attorney Bielinski engaged in a series of identity thefts, false notarizations, forgeries, and thefts of court records. He filed forged documents with the Milwaukee County circuit court and thereby tricked judges into signing orders to pay him surplus funds. After receiving payment, Attorney Bielinski often sanitized the records by removing his fraudulent pleadings and forgeries from the official court record.
December 17, 2012
An attorney who practiced before the United States Patent & Trademark Office ("PTO") while administratively suspended from her only Bar was suspended for six months with reinstatement on conditions by a justice of the Massachusetts Supreme Judicial Court.
The PTO requires that an attorney be an active member of a state bar.
According to this summary, the attorney engaged in other misconduct by failing to represent her client with diligence, failing to communicate, misrepresentations and failure to return the file. (Mike Frisch)
The Michigan Attorney Discipline Board has affirmed an order of a hearing panel dismissing bar charges against an attorney.
The attorney's client had won a million dollars in the Michigan state lottery in 1984. She divorced her husband in 1997. The divorce decree "provided for a even split of the lottery payments" after taxes and other designated setoffs.
The client retained the attorney in connection with the distribution of the final payment. He was paid a retainer which he placed in his escrow account, but there was no evidence that the payments came from the lottery proceeds. He tried to negotiate a resolution with the husband. Eventually, the money was returned to the client.
The panel found (and the board agreed) that the attorney did not have an obligation to hold the escrowed funds for the benefit of the husband. Rather, the husband had a "generalized third party interest" in the funds that did not create an obligation under Rule 1.15. (Mike Frisch)
Noise-Sensitive Judge Gets Five Days Without Pay
The Maryland Court of Appeals has imposed the consent discipline of a five-day suspension without pay, to be served within 30 days, of a district court judge.
The Baltimore Sun reports:
A Baltimore County judge has agreed to a five-day unpaid suspension, admitting that he was wrong to summarily find 28 people in contempt for courtroom disruptions — including two dozen fined and threatened with jail time after their cellphones sounded in his courtroom.
District Judge Norman Stone III also will be on administrative probation for two years.
Maryland's top court signed off late Friday on the agreement between Stone, 54, and the Commission on Judicial Disabilities. His attorney acknowledged that Stone had exceeded his authority by sentencing people for contempt without allowing them to fully defend themselves in court. At least two people were jailed for slamming doors.