December 28, 2012
An Inappropriate Colloquy Gets A Judge Admonished
A Buffalo City Court judge has been admonished by the New York Commission on Judicial Conduct.
The misconduct took place during a custodial arraignment of a 17 year old who was facing several charges.
At one point, the judge asked the defendant if he knew what "thuggery" meant and called him "Mr. Tough guy." The defendant responded with a series of truly ugly profanities and told the judge to "suck my dick."
The judge's response: "Why don't you pull it out for me" and then "[p]robably need a magnifying glass."
The governing principle as articulated by the commission: "Even in the face of provocative, disrespectful comments by a litigant, a judge is required to be an exemplar of decorum and dignity in the courtroom and not allow the proceedings to devolve into an undignified exchange of taunts, insults and obscenities." (Mike Frisch)
Probation Revocation Ineffective Assistance Claim Remanded
The Kansas Supreme Court has held that a defendant in a probation revocation proceeding is entitled to the effective assistance of counsel.
The case involved allegations of a conflict in interest. The attorney who represented the defendant also served as the victim's guardian ad litem. He briefly noted the conflict in a proffer to the probation revocation court. No objections were lodged and the court did not conduct any inquiry.
The court here remanded for either a fresh revocation hearing with conflict-free counsel or a hearing into whether the conflict created an adverse effect on the representation. (MIke Frisch)
December 27, 2012
God's Will No Defense
The Wisconsin Supreme Court has issued a public reprimand of an attorney for false statements concerning a judge in connection with a guardianship proceeding, in which the attorney sought to keep the ward in a residential apartment owned by him and his wife.
The court rejected the attorney's defense:
Attorney Riordan's statements fall short of his ethical obligation to maintain the respect due to courts and judicial officers. The record evidence supports the referee's conclusion that Attorney Riordan's comments concerning Judge Dwyer violated the Attorney's Oath...
Attorney Riordan asserts that his sincere religious conviction and belief that he is following God's will immunizes his conduct from prosecution for professional misconduct. He believes that he and his wife "are experiencing an ongoing spiritual and religious prophetic experience" and that God "expects him to help those who can fall under guardianship."
The referee recognized, and we will not question, Attorney Riordan's sincere religious faith, but the First Amendment does not protect all statements made by attorneys. Our task is to evaluate whether the statements upon which the charges are based were either false, or made in reckless disregard of the truth.
Here, the referee considered the record evidence and properly determined that Attorney Riordan's statements about Judge Dwyer are not constitutionally protected. False statements made knowingly, or with reckless disregard for the truth, are not constitutionally protected.
The court had declined to name the attorney as guardian due to the financial conflict of interest presented by the living arrangement. (Mike Frisch)
December 26, 2012
Admission On Motion Denied
The Utah Supreme Court denied admission on motion to an Idaho attorney who did not meet the requirement of actively practicing law for three of the five preceding years.
The applicant was admitted to the Idaho Bar in 1983. He voluntarily ceased to practice in 1995 but resumed in 1997. He again stopped practicing in 2001 and moved to Utah.
The applicant had stopped the active practice of law due to depression and anxiety.
Here, the court held that the denial of admission on motion did not violate the Americans with Disabilities Act. Rather, the rule that requires active practice for three of the preceding five years is designed to assure the applicant's present competence to practice law. (Mike Frisch)
December 24, 2012
No Higher Power
The Louisiana Disciplinary Board has recommended a suspension of a year and a day of an attorney convicted on no contest and guilty pleas to two alcohol-related driving offenses.
The offenses took place while the attorney was involved in his own divorce and custody matter. He also was having difficulty with his law partners, who were cutting him out of the practice.
In such cases (and here), the attorney is often given the option of participation in the bar's lawyer assistance program. Here, the attorney was directed to get involved with Alcoholics Anonymous.
He went to AA as directed, although he did not think he had an alcohol problem. However, he dropped out because he is an atheist and does not believe in a "higher power."
The board indicated that a lesser sanction would have been proposed if the attorney had complied with treatment conditions. (Mike Frisch)
Worst To First
Readers of this blog may recall that I recently severely criticized a District of Columbia hearing committee for absolving four attorneys on charges of elder abuse by failing to deal with the evidence and attacking the complainant and Bar Counsel rather than resolving the case.
With typical understatement, I called the report the worst in D.C. bar history.
Bar Counsel has appealed the case to the Board on Professional Responsibility. Hopefully, justice will eventually prevail.
Well, I have just read another hearing committee report that is the exact opposite -- a thoroughly professional, 201 page analysis of the charges in two matters with a well-reasoned and appropriate recommendation of disbarment.
The main charges involve the attorney's representation of a plaintiff in a sex harassment case.
When the client became concerned about the attorney's behavior (in particular, his disrespect for a Superior Court judge), she discharged him.
He retaliated with a campaign to destroy her with court process that must be read to be believed. He instituted frivolous litigation, breached confidentiality, made false statements and created false evidence. As the client testified, the attorney 's conduct turned her life upside down.
The hearing committee's report may be found at this link by inserting the attorney's name --Ellis S. Frison.
Comment from Stephen Williams:
The Court of Appeals is exclusively charged with regulating the practice of law in the District of Columbia. Short of Congress removing this authority from the Court, the Court is the only entity that is able to fix this problem. And yet, you repeatedly refuse to lay these shortcomings at the feet of the Court which is where it really belongs.
UPDATE: I respectfully disagree with the above comment. My article No Stone Left Unturned is premised on the proposition that the D.C. Court of appeals made a fundamental error in creating and deferring to a board dominated by volunteer lawyers.
When the court issues an opinion that I disagree with, I say so --here's an example. (Mike Frisch)