February 10, 2012
Misrepresentation To Blogger Draws Reprimand
An Illinois Hearing Board has imposed a reprimand of a former attorney in the Cook County State's Attorney office.
The attorney's background is set forth in the report:
Respondent testified she has been an attorney with the Cook County State’s Attorney’s office since 1987 and has worked in various divisions of that organization. In 1998, she became the senior sex crimes trial specialist and in 2001, began working with the gang crimes unit. In June 2005, she became the deputy supervisor of preliminary hearings but continued to do some trial work through the summer of 2009. Throughout Respondent’s tenure at the State’s Attorney’s office, she has participated in and conducted training seminars, including seminars on ethics, capital litigation, and DNA. When training young attorneys in her office, she teaches from the perspective of age and experience. Respondent has also authored training materials and taught trial advocacy at local law schools.
Respondent testified that, as an Assistant State’s Attorney, she has handled 160 jury trials. Of that number, she lost five or six cases. As to the cases she won, she estimated that at least 148 were appealed but only a handful were reversed. Respondent noted that the issue of prosecutorial misconduct in closing arguments is raised as an issue in almost every appeal. None of her cases have been reversed for other types of prosecutorial misconduct, such as failure to disclose evidence, suborning perjury, or giving rewards to a witness. Respondent believes she is regarded as one of the most reasonable attorneys in her building.
With respect to closing arguments, Respondent stated that although prosecutors have extremely wide latitude, certain lines cannot be crossed and she has never been accused of crossing those lines. Other than the bright lines, the individual appellate opinions differ on guidance offered, and the guidance is constantly changing. In more recent years the appellate and reviewing courts have become stricter in terms of the parameters of closing argument. Conduct that was permissible in 1998 or 1999 may not have been proper a few years later, especially with respect to tone and the use of sarcasm. According to Respondent, the overriding rule is that the trial court is in the best position to ascertain whether or not there was a problem in closing argument.
The board sustained charges of misconduct in one of four charged instances:
...while campaigning for judicial office you made misleading statements to an internet blogger regarding the disposition of a prior ARDC matter. Specifically, you erroneously stated you had a full and complete hearing before the ARDC; you were completely cleared by the ARDC; anyone could research the matter and learn the outcome of the ARDC proceedings; and the ARDC recognized you had never flouted any court ruling or admonishment. At your suggestion, your statements were published on the internet.
The other charged instances, which the board found were not supported by clear and convincing evidence, involved allegations of improper closing arguments. (Mike Frisch)
Mortgage Foreclosure Attorney Reprimanded
The New Jersey Supreme Court imposed a reprimand of an attorney who used pre-signed forms in bankruptcy and state court proceedings. The court followed the recommendation of its Disciplinary Review Board ("DRB").
The attorney was a partner in a New Jersey firm that was part of a national network of attorneys primarily engaged in the business of processing mortgage loan defaults. The business is owned and controlled by two Illinois lawyers.The use of the pre-signed documents also drew a sanction from bankruptcy courts.
The DRB noted that an associate attorney that respondent had failed to properly supervise was admonished for the misconduct. The attorney had no other discipline and the practice had ceased many years ago. (Mike Frisch)
Short Supension For Violating Domestic Abuse Court Orders And Other Misconduct
The Wisconsin Supreme Court imposed a 90 day suspension with conditions in a case where the attorney was subject to a domestic abuse order. tTe conditions include proof that he is established his sobriety.
He violated the conditions of a civil disposition that required him to stay away from his victim and not drink alcohol:
On February 24, 2007, Attorney G. had an altercation in his home with his then-wife, R.G. On May 4, 2007, the state filed a criminal complaint...charging Attorney G. with disorderly conduct with a domestic abuse modifier in connection with the altercation. On March 7, 2008, Attorney G. and the prosecutor entered into a post-plea diversion agreement, subject to acceptance by the court. Attorney G. then entered a plea of no contest to the charges. The court permitted Attorney G. to post bond. The conditions of his bond included that Attorney G. maintain absolute sobriety and have no violent contact with R.G. As will be discussed, Attorney G. failed to comply with both conditions.
...Attorney G. forced open a door to break into R.G.'s residence. Attorney G. then took R.G.'s laptop computer and left a note in R.G.'s home stating, "It's nice to see all the things that you and your little friend can afford while you pay no bills. That['s] all over for you. All you had to do was be my wife but you couldn't and you will now have  to pay."
Fond du Lac County sheriff's deputies contacted Attorney G. by telephone, and Attorney G. admitted he had been in R.G.'s home, left the note, and took the laptop computer.
To make matters worse, he also drove (and drank) on a suspended license and was convicted of misdemeanor bail jumping. To make matters even worse, he had the following record of prior discipline: three private reprimands, one public reprimand and two disciplinary suspensions that are presently in effect.
90 days? (Mike Frisch)
Lengthy Suspension For Domestic Violence
The New York Appellate Division for the First Judicial Department has ordered a suspension of three years for the following misconduct:
Respondent's criminal conviction stems from an argument that he had with the complainant, his former girlfriend, in her apartment on October 4, 2007. During the encounter, respondent repeatedly threw the complainant to the floor and slapped her about the face, causing physical injuries that required medical attention. During the assault, respondent called the complainant such derogatory names as "slut" and "whore". Respondent also destroyed or damaged various items of the complainant's personal property, including a Cartier watch that he smashed with a hammer, a purse that he filled with water, a painting that he punctured, and a couch that he damaged with water and oil.
The court described the proceedings below:
A hearing was...conducted before a Referee. Respondent testified on his own behalf, taking full responsibility for his actions and admitting that he "always had a temper," but that he began therapy counseling shortly after his arrest and has continued to undergo therapy ever since. The Referee also heard testimony from respondent's treating psychotherapist who explained the violence as a result of an "intermittent explosive disorder," for which respondent is now being treated. By report and recommendation, the Referee sustained charges one and two. The Referee dismissed charge three finding that the destruction of the complainant's property "occurred at the same time as the assault and was part of the same course of conduct." With respect to the Committee's recommendation for a sanction of no less than a one-year suspension, the Referee acknowledged that respondent committed a serious act of domestic violence but, referring to the six months respondent spent in jail and his full restitution of the property damage, reasoned that "he has already paid a heavy price." The Referee concluded that respondent's misconduct warranted a 60-day suspension.
A Hearing Panel confirmed the Referee's findings that sustained charges one and two. The Hearing Panel disaffirmed the dismissal of charge three, finding that respondent's violent act in smashing the complainant's watch with a hammer, gouging a painting, and pouring water in her pocketbook was not the same act as the assault, as the Referee had concluded, but rather "an escalation" of it.
In considering the appropriate sanction, the Hearing Panel, with one panel member dissenting, confirmed the Referee's recommendation of a 60-day suspension. The Hearing Panel majority acknowledged that in determining the appropriate sanction to impose for respondent's misconduct, the Referee relied on Matter of Caits (77 AD3d 165 ), in which this Court upheld a public censure of an attorney convicted of attempted assault in the third degree and harassment. However, the Panel recognized that "there is a qualitative difference between the level of violence of [r]espondent's assault on his former girlfriend in her own home [for] at least 45 minutes, provoked if at all by the knowledge that she was seeing someone else, and the particular circumstances of [the respondent in] Caits, a member of the bar for many years with a previously unblemished record, who got into a fight in a restaurant with a stranger who apparently had refused to lower the volume on her portable DVD player after Caits had complained to the management." The Panel also took issue with the Referee's finding that there was no other history of domestic violence, given that respondent admitted in his direct testimony at the Referee's hearing that there had been a prior episode in August 2006, when he "pushed" the complainant to the ground during an argument. Nevertheless, the Hearing Panel deferred to the Referee's judgment.
The court here clearly found the proposed sanction woefully inadequate given the conduct. (Mike Frisch)
February 9, 2012
"My Faith In Practice"
The Florida Supreme Court has concluded that "[n]o amount of rehabilitation would ever be sufficient to warrant readmitting" an attorney admitted to practice in 1981.
The attorney had engaged in a criminal defense practice. He had been convicted of several federal felonies included bribery and disbarred in 1998. The misconduct related to court appointments. The petitioner had given kickbacks to the apointing judge.
The court noted that the petitioner had devoted over 13,000 hours of community service. He also did a CLE program called "My Faith In Practice." The court nonetheless found that the crimes were sufficently grave so as to virtually preclude future reinstatement. (Mike Frisch)
February 8, 2012
Lost In A Flood
A public reprimand has been imposed by the Vermont Professional Conduct Board on the Assistant Clerk of the state House of Representatives. The clerk position does not involve the practice of law.
He is permitted an outside law practice, which he operates out of his home. He accepted a referral in a probate matter and neglected it over a four-year period. During that period, he suffered the loss of his father and grandfather. The file was lost in a flood in his basement.
The board found that the lack of diligence and failure to communicate with the interested parties was serious. Neither the deaths or the flood were treated as mitigation factors. (Mike Frisch)
Partnership Perils Lead To Suspension
The Pennsylvania Supreme Court has approved the imposition of a one-year suspension in a case where the sanctioned attorney was in a small law firm partnership with an attorney who misappropriated trust account funds.
His partner had responsibility for the distribution of funds out of the trust account. He executed those functions badly. He stole trust funds and offered the sanctioned attorney excuses for the ensuing distrubution delays.
After a period of time, the sanctioned attorney was aware that his partner was a thief. He did not freeze the escrow account, because he thought it "would cause a problem." He made misrepresentations to his clients about the distribution delays in their cases.
The feds came calling. The sanctioned attorney cooperated in the criminal case against his former partner. (Mike Frisch)
February 7, 2012
New book 'Hot Topics in the Legal Profession - 2012' and old classic 'The Bramble Bush'
As promised last weekend, I announce a book truly on-topic for LPB. This is a collection of essays, on ethics and broader issues of the U.S. profession, from students in my Advanced Professional Responsibility Seminar last year. I added an intro but really the substance is in their 14 chapters. Their topics include:
...false guilty pleas and candor to the court, ethical considerations in keeping the client's files as a digital record, legal outsourcing and competition, the dilemma of student debt in a slowed legal economy, the practice of law by legal websites like LegalZoom, the capital defense of Jared Lee Loughner, Justice Scalia's constitutional seminar for conservative congressmembers, sensitivity to "cultural competence" in legal education and practice, prosecutorial relationships with key witnesses, bar discipline for behavior outside the practice of law, negotiation ethics, hybridized MDL settlements, and the advocate-witness rule.
It is available now in paperback at Amazon or the QP page; plus such eBooks as Kindle and Nook, and at Apple iBooks and iTunes bookstores. Proceeds benefit Tulane's Public Interest Law Foundation, so even if it is not a book you'd buy or download for yourself, please consider asking the law library to acquire a paperback.
Also out is the eBook of an old but amazingly relevant book of advice for prelaw and 1L law students, Karl Llewellyn's The Bramble Bush (e.g., in Kindle). I was pretty amazed he discussed active learning, visualizing case facts, better note-taking, and a script for case-briefing and the uses of precedent. Still is a perennial recommended read for the summer before law school, on lots of lists. This classic had not been released in eBooks before today. Sort of odd how little 1L classes and reading have changed.
The Wrong Candidate
The New Jersey Appellate Court has held that the litigation in last year's Republican primary permitted the incumbent to run in the general election for Morris County Freeholder was inproperly decided. An initial count had put the challenger ahead by 10 votes. A recount had him ahead by six votes.
A court action led to the incumbent being declared the primary winner.
The web page for Howes & Howes has this report on the decision of the Law Division:
During the course of the trial, there was evidence that Mr. Lyon failed to file certain campaign finance reports. Specifically, it was alleged that he failed to file the 48 hour report of expenditures that would have been required for him to disclose approximately sixteen thousand dollars worth of spending on a mail piece. It was further alleged that he filed the required report, that Ms. Nordstrom would have known about the mailer, and would have responded to the mailer. It was further alleged that the mailer was misleading and that the mailer had a direct impact on the outcome of the election.
The court held that since Mr. Lyon did not file the required disclosure, and that there was no defense for the failure to file, that the election was void.
The challenger, "Lyon for Conservative Freeholder," should have been certified as the primary winner. The court here thus removed the incumbent (who had won in the general election) and declared a vacancy in the position. (Mike Frisch)
Double Secret Probation
The Vermont Professional Conduct Board has admonished an attorney and placed her on probation for neglect of an estate matter and failure to respond to the disciplinary inquiry into the matter.
In Vermont, the identity of an admonished attorney is not disclosed in the order imposing discipline. Thus, the attorney is on probation but the public does not know who the probationer is. (Mike Frisch)
February 6, 2012
Pistol Packing Prosecutor Gets Proposed Supension
An Illinos Hearing Board has recommended a 60-day suspension of a former elected State's Attorney who was convicted of the aggravated assault of a licensed private detective. He had pulled a gun on the victim in the court parking lot when an attempt was made to serve him with process. The process involved a suit filed against him by his former secretary.
Dees identified himself, displayed a badge, stated that 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. Dees identified himself again, and the Respondent continued to point the gun at Dees. Dees then threw the summons and complaint at Respondent’s feet and left.
The hearing board on sanction:
After considering the cases discussed above, the nature of the Respondent’s misconduct, the mitigation, the significant aggravation- particularly the Respondent’s lack of candor and lack of remorse, along with the purpose of the attorney disciplinary system, we conclude that a suspension is appropriate in this matter. We believe that a suspension of 60 days is adequate for the public to have confidence that criminal conduct by a State’s Attorney is unacceptable and will not be tolerated, and to serve as a deterrent. We further believe that any lesser sanction would "denigrate the seriousness of [the Respondent’s] conduct and would erode public trust in the accountability of its elected officials." Sims, 144 Ill. 2d at 325.
The State's Attorney claimed he acted out of fear for his safety. The Hearing Board rejected the claim.
He has since lost his elective office. (Mike Frisch)