Friday, February 24, 2012

Bar Arbitration Does Not Cover Wrongful Discharge Claim Of Former In-House Counsel

The Alaska Supreme Court has held that an employer may not invoke the arbitration process of the State Bar in litigation filed by former in-house corporate counsel for wrongful termination.

The court concluded that the bar's arbitration process applied to only a small part of the disputed claims. The civil litigation instituted by the discharged attorney involved employment claims rather than issues relating to disputed legal fees. Thus, the matters are not subject to arbitration rather than litigation. (Mike Frisch)

February 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Aggravating Factors

An attorney who engaged in misconduct in connection with a real estate transaction and compounded the problem by testifying falsely in the ensuing bar proceedings has been suspended for eighteen months by the New York Appellate Division for the First Judicial Department.

As to sanction:

With regard to the severity of the sanction to be imposed, given the aggravating factors in this case, and their weight as balanced against the mitigating factors, we find that a suspension for a period of eighteen months is warranted. While this matter involves a single transaction, respondent made repeated, intentional misrepresentations in several legal documents. He then compounded this misconduct by giving false testimony at his sworn deposition before the Committee. His attempt to portray himself as an inexperienced real estate practitioner, along with his failure to acknowledge his misconduct and his lack of remorse, are aggravating factors which support the Hearing Panel's recommendation of an increased suspension of eighteen months. (citations omitted)

There are places where false testimony in a disciplinary matter will get the attorney disbarred. (Mike Frisch)

February 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disbarment For Child Pornography Possession Conviction

The Michigan Attorney Discipline Board agreed with a panel order of disbarment in a case involving an attorney convicted of possession of child pornography. The board found that there was jurisdiction to impose bar discipline even though the attorney was suspended when the criminal conduct took place.

Further, disbarment was the appropriate sanction for the offense as "[a]t least one image [possessed by the repondent] depicted penetration of a pre-pubescent child, which involved sadistic or masochistic or other depictions of violence." The attorney also distributed images to others on line.  (Mike Frisch)

February 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ignorance Of Suspension Not Bliss

An attorney who engaged in misconduct in several matters was suspended without possibility of reinstatement for one year by the Iowa Supreme Court.

One of the matters involved his court appearence in a case six days after he had signed for mail that informed him that he had been suspended from practice. The court declined to conclude that, having signed for the certified mail, he could remain "blissfully ignorant" of his suspended status.

According to the court, an "ostrich-like, head-in-the-sand approach should not insulate attorneys from an inference of actual knowledge" of suspension from practice. Further, the attorney falsely disclaimed such knowledge to the judge that he appeared before. (Mike Frisch)

February 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Document System Provides Evidence Of Misconduct

The Nebraska Supreme Court has disbarred an attorney whose neglect of a personal injury matter led to dismissal of the case. The attorney therafter "strung along [the client] for nearly 2 years" into believing that the case was still active.

The referee found that the attorney had falsely claimed to have advised the client both orally and in writing of his intention not to proceed with the matter. The attorney used a "Worlddex" document system that provides sequential numbers to documents that he creates. The document system resulted in evidence that cast substantial doubt on the claim of wrtitten notice to the client. (Mike Frisch)

February 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reliance On Brother Leads To Suspension

The New York Appellate Division for the Second Judicial Department has imposed a suspension of two years of an attorney who failed to properly handle supervise the operation of his law firm's escrow account.

The court found that the sanction determination was influenced by the following:

In determining an appropriate measure of discipline to impose, the Court notes the respondent's testimony as to the negative impact the conduct of his bookkeeper and brother, Anthony Galasso, has had on his personal and professional life; the changes he has made with respect to his business practices; his cooperation in connection with the criminal prosecution of his bookkeeper and brother, Anthony Galasso; and his pursuit of lawsuits against, among others, Signature Bank, in an effort to reclaim the misappropriated Baron funds, as well as the funds misappropriated from the Estate and from Adele Fabrizio. In addition, the Court considered the 37 letters of good character submitted on the respondent's behalf. However, we find that the respondent failed to maintain appropriate vigilance over his firm's bank accounts, resulting in actual and substantial harm to clients.

(Mike Frisch)

February 24, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Love And Contracts In Ohio

From yesterday's Ohio Supreme Court web page:

The Supreme Court of Ohio ruled today that moving into a home with another person to re-engage in a romantic relationship does not satisfy the legal requirement of “consideration” that is necessary to form a contract. The Court’s 6-1 decision, authored by Justice Judith Ann Lanzinger, reversed a ruling in which the 9th District Court of Appeals held that a Medina woman’s agreement to move back into a home with the homeowner and resume a romantic relationship with him could be sufficient consideration to support a contract granting the woman an ownership interest in the home.

In May 2004 Frederick Ormsby moved into a house owned and occupied by Amber Williams, with whom he had begun a nonmarital relationship.  Amber had obtained title to the house, which was encumbered by a mortgage with a remaining balance of approximately $310,000, through a divorce settlement with her former husband.   

In August 2004, Frederick began making the mortgage payments on the house and also paid the 2004 property taxes. In December 2004, he paid off the full balance of the mortgage, and Amber signed a quit-claim deed transferring title to the property to him. 

Although the couple had planned to marry, they cancelled their plans in January 2005 when Frederick’s anticipated divorce did not occur. The couple continued to live together in the house until March 2005, when after a disagreement Amber moved out and  Frederick obtained a restraining order against her.  On March 24, 2005, the two signed a document providing that the house would be sold immediately with the first $324,000 of the sale proceeds going to Frederick and any remaining proceeds going to Amber. 

Two months later, the couple tried to reconcile and attended couples’ counseling. Amber refused to move back into the house unless Frederick granted her an undivided one-half interest in the property. On June 2, 2005, they signed a second document, purportedly making themselves “equal partners” in the Medina house and, among other things, providing for property disposition in the event that their relationship ended. Amber then returned to the house, and the couple resumed their relationship. But by April 2007, they were living in separate areas of the house, and although they tried counseling again, Amber ended the relationship in September 2007.  The two continued living in separate areas of the house until Frederick left in April 2008.

One month later, Amber and Frederick filed suit against each other. Amber’s complaint sought a court order forcing Frederick to comply with the June 2005 document that she said vested her with a half-interest in the house, or in the alternative awarding damages against him for breach of that contract. Frederick’s complaint sought a declaratory judgment that neither the March 2005 nor the June 2005 document was an enforceable contract, because they provided no consideration from Amber in return for a putative ownership interest in the property.

The trial court granted summary judgment dismissing Amber’ half-ownership claim. In its decision, the court held that the March 2005 document was a valid contract because it included sufficient consideration, but that the June 2005 document was not valid or binding on the parties because it conveyed an ownership interest in the house to Amber in exchange for her return to the romantic relationship, which Ohio law does not recognize as legal consideration sufficient to support a binding contract between unmarried persons. 

Amber appealed. On review the 9th District Court of Appeals reversed the award of summary judgment and remanded Amber’s claims to the trial court for further proceedings.  The court of appeals held that, under the facts of this case, a judge or jury could find that Amber’s agreement to return to the house and resume her relationship with Frederick was sufficient consideration to qualify the June 2005 document as an enforceable contract. Frederick appealed the court of appeals decision, and the Supreme Court agreed to review the case.

In today’s decision reversing the 9th District, Justice Lanzinger began by emphasizing that today’s ruling does not address all agreements involving cohabiting couples, but applies only to cases in which no evidence is presented of shared financial resources and obligations between the parties, and in which the only “consideration” received by one party is the other  party’s agreement to move in together and begin or resume a romantic relationship.

Justice Lanzinger reviewed three prior court decisions, a 1949 Ohio Supreme Court case, Snyder v. Warde, and decisions from Oregon and New Jersey courts, that were cited by the 9th District in support of its ruling that Amber’s agreement to resume a relationship with Frederick could constitute legal consideration for a contract.  In each case, however, Justice Lanzinger found factual and legal distinctions with the dispute between Amber and Frederick, and rejected all three as valid precedents.
Justice Lanzinger wrote: “Having rejected the cases that the court of appeals relied upon, we conclude that our decision in Flanders v. Blandy  (1887) is instructive on whether moving into a home with another while  engaging in a romantic relationship are consideration for the formation of a contract.  In Flanders, a father had intended to give his daughter certain bonds worth $2,000 in addition to interest.  But the daughter did not receive the bonds as a gift because they were never delivered to her.  Her father then delivered to her a written promise to pay her $2,000 with interest in lieu of the bonds.  Upon her father’s death, the daughter sought to enforce the written promise, but we held that her father’s promise to give her the value of the bonds was not enforceable as a contract because that promise lacked consideration.” 

“ ... (W)e continued to explain why the father’s written promise would not be enforced:  ‘[a]n agreement to give for the consideration of love and affection, whether the gift is to be of goods and chattels or of a chose in action, neither transfers the property to the donee, nor secures him a right by suit to compel a completion of the contract.’ ....  Thus, for more than a century, love and affection alone have not been recognized as consideration for a contract.”

While the 9th District’s decision held that in agreeing to resume her relationship with Frederick Amber had “agreed to undertake a way of life which entailed among other things ‘providing companionship, and fulfilling each other’s needs, financial, emotional, physical, and social, as best as [she was] able,’” Justice Lanzinger observed that no such language appears in the June 2005 document on which Amber based her claim.

Justice Lanzinger wrote that “(a)lthough the June document states that the agreement was made ‘for valuable consideration,’ it does not specify what the consideration is. The document does not refer to ‘fulfilling each other’s needs, financial, emotional, physical, and social.’ The court of appeals supplied those terms on its own.”

“... Rather, the evidence demonstrates that the only consideration offered by Amber for the June 2005 agreement was her resumption of a romantic relationship with Frederick.  There is no detriment to Amber in the June 2005 document, only benefit.  Essentially, this agreement amounts to a gratuitous promise by Frederick to give Amber an interest in property based solely on the consideration of her love and affection. Therefore, the June 2005 document is not an enforceable contract because it fails for want of consideration.”

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Robert R. Cupp and Yvette McGee Brown. Justice Terrence O’Donnell concurred in judgment only.

Justice Paul E. Pfeifer entered a separate  opinion in which he concurred with the majority syllabus holding that love and affection is insufficient consideration to support a binding contract, but dissented from the majority’s conclusion that “love and affection” was the consideration conveyed by Amber to Frederick in the June 2005 document. Justice Pfeifer wrote that in his view the June document was a straightforward renegotiation of the March 2005 agreement, upheld as valid and binding by the trial court, under which Amber and Frederick each had a significant ownership interest in the proceeds from the planned sale of the property.

Justice Pfeifer wrote: “Among the consideration that Williams and Ormsby offered for the second agreement was the voiding of the first agreement, which denied to each of them rights that the first agreement granted.  ... The first clause of the June 2005 contract resolves the issue before us.  It states: ‘FOR VALUABLE CONSIDERATION that is mutually agreed upon, the AGREEMENT deems all other agreements concerning the items stated below to be null and void ...’ . Could it be more clear? The March 2005 contract required that the house be sold and entitled Williams to, among other things, sales proceeds in excess of $324,000 and to live in the house until its sale. In consideration for giving up those rights, Williams entered into the June 2005 contract, which entitled her to different rights.”

“... I am convinced that Williams and Ormsby offered consideration for the second contract. The case is so fact specific and so riven with bizarre, if irrelevant, details, however, that it provides no meaningful guidance to the bench and bar. Accordingly, I believe that this case should be dismissed as having been improvidently accepted.”

The opinion is linked here. (MIke Frisch)

February 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 23, 2012

Censure For Advertising Violations

The Wyoming Supreme Court has approved a public censure of an attorney admitted in Utah and, as of 2010, in Wyoming.

The misconduct involved three ads that the attorney purchased in the Sweetwater County telephone directory. The ads did not include his office address as required by the court's rules. One failed to have a required disclaimer; the ads that had that disclaimer was "in type size smaller than the smallest type size appearing in the ad," which also violated the rules. Finally, the ads contained prohibited claims of certification.

The attorney conceded that he was negligent in relying on the advertising agency to comply with the rules. He fired the agency, is "extremely embarrassed," and agreed to a press release that described the misconduct and court action.

The ad stated that he had been "recently seen in Forbes magazine as THE leading personal in the Central United States." (Mike Frisch) 

February 23, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Immigration Attorney Sanctioned For Practice While Out Of Lawful Status

The New York Appellate Division for the Third Judicial Department has imposed a stayed one-year reciprocal suspension of an attorney disciplined by the Office of the Chief Immigration Judge of the United States Department of Justice, Executive Office for Immigration Review.

The attorney practiced before the immigration courts after losing his lawful immigration status in August 2007. He was suspended indefinitely by consent as a result. He expressed remorse and now has a valid employment authorization card.

He must maintain lawful status and not be the subject of further disciplinary action by the immigration courts. (Mike Frisch)

February 23, 2012 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Hand Gestures

A conviction for federal witness tampering involves moral turpitude per se and thus requires disbarment, according to an opinion issued today by the District of Columbia Court of Appeals.

A provision of the District of Columbia Code (11-2503(a)) has been interpreted to make disbarment mandatory for a moral turpitude conviction.

Justice.gov had this post on the criminal case:

...the evidence at trial showed that [the attorney] tampered with a potential witness. According to testimony, on November 12, 2003, a Special Agent of the Federal Bureau of Investigation contacted the relative to conduct an interview regarding her knowledge of matters relating to the drug conspiracy, including the whereabouts of the girlfriend’s minor son. Blair advised the relative not to tell the FBI about the drug dealer’s cash from the safe, and that if the FBI asked about the money, to provide false information. A witness testified that Blair even had her rehearse hand gestures to make when questioned by the FBI.

The attorney's obstruction of justice conviction was reversed on appeal by the United States Court of Appeals for the Fourth Circuit.

The court affirmed a conviction under 18 U.S.C. section 1957. The court majority found that the "safe harbor" provision of the statute for payment of legal fees did not ptotect the attorney's conduct:

Congress did not, for example, intend for § 1957(f) to empower a drug lord to sprinkle money around to hire counsel for his underlings.   This would undermine the attorney-client relationship.   Where would the lawyer's allegiance lie in such a situation?   Would it run to the person the lawyer represents or to the kingpin footing the bill?   The possibilities for serious conflicts of interest are significant, and the unity at the core of the attorney-client relationship would be fractured.   No longer could we be sure that the attorney was truly the client's champion, acting in the client's best interest.   Indeed, the personal probity that allows defense counsel to effectively represent the accused would be compromised, if not lost.   Congress drafted § 1957(f) to avoid this damaging state of affairs and stay true to the personal nature of Sixth Amendment rights...

However one may view the matter, [the attorney's] conduct falls far outside the safe harbor provision.   [He] used someone else's criminally derived proceeds to bankroll counsel for others.   Specifically, he drew on Rankine's drug money to fund the legal defense of the man charged with murdering Rankine and others.   See supra p. 763 n.2. (Bernard eventually pled guilty to murder during a conspiracy to distribute drugs.)   Id.

To apply § 1957(f)(1) on these facts would invite the worst kind of abuses.   It would subject the ethical standards of the bar to the most formidable pressures and temptations.   It would enable the Al Capones of our day and time to underwrite counsel for their underlings, thus maximizing the power and leverage of the top figures in criminal syndicates.   And it would compromise the attorney-client relationship for their subordinates by creating an appearance at least that the lawyer may be more attuned to and protective of the interests of the czar funding the defense than to the actual accused.   It takes little effort to envision the numerous circumstances in plea negotiations and at trial where the interests of someone heading a criminal enterprise may be sharply at odds with those of one or more of its members, but Blair's position would place attorneys in a situation so riddled with conflict that courts would be hard-pressed to uphold it.

Allowing those in [the attorney's] position to freely fund counsel for their associates carries other risks as well.   Among the great assets the accused enjoys in our system is the unquestioned integrity of the criminal defense bar.   In one sense, the attorney-client relationship is an indissoluble bond.   But in another, there is a degree of separation in that an attorney whose own integrity is complete and unquestioned is able to champion those accused of the worst sort of crimes.   This duality has served the interests of justice, and we should be loathe to let it go.   Yet if criminal figures are permitted and encouraged to take criminally derived proceeds from others in order to bankroll attorneys for still others, what would we have then?   If the public or the jury should come to associate attorneys more closely with underlying criminality, the chief loser will be that person whose rights the system is solemnly sworn to defend.   We do not have that now, and we pray we never will.

 Chief Judge Traxler dissented on this point:

I cannot subscribe to the view that the “safe harbor” provision Congress created to shield criminal defense attorneys from prosecution under § 1957 is no longer effective.   I do not believe this view is consistent with the statute.   Moreover, I am troubled by the potential fallout from the elimination of the protection Congress afforded legitimate criminal defense attorneys when they accept bona fide legal fees from clients charged with or suspected of drug trafficking and other criminal conduct.

[The attorney's] conduct was unquestionably reprehensible, and it was particularly offensive to members of the legal profession.   The actual text of the statute, however, constrains me to conclude that the two transactions in question—which secured competent, legitimate criminal defense attorneys for Saunders and Bernard—are exempt from prosecution under § 1957(f)(1).

(Mike Frisch)

February 23, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Accusations Lead To Suspension

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio has suspended  the law license of  Newark attorney Philip L. Proctor for six months for making unsupported accusations of bias, ex parte communications and other improper conduct by opposing counsel and a judge in documents he filed in two Licking County courts.

In a 6-1 per curiam decision announced today, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that Proctor had violated state disciplinary rules that prohibit an attorney from engaging in undignified or discourteous conduct that is degrading to a tribunal, failing to maintain a respectful attitude toward the courts, and making statements concerning the qualifications or integrity of a judicial officer either while knowing them to be false or with reckless disregard of their truth or falsity.

The statements at issue arose from a 2002 civil lawsuit filed by Proctor on behalf of client Julie Peterman. Proctor withdrew as Peterman’s attorney in 2003, and she subsequently dismissed the suit. The defendants in the dismissed action moved the Delaware County Court of Common Pleas to order reimbursement of the attorney fees they had incurred in defending against Peterman’s complaint, and the court entered a judgment ordering Proctor and Peterman to jointly and severally pay the defendant $31,995. 

Proctor filed a motion to vacate that judgment, and requested that the judge make formal findings of fact and law supporting the attorney fee award. The judge who issued the judgment recused himself, and a substitute judge considered and rejected both of Proctor’s motions. In a supplemental request submitted to the replacement judge, Proctor alleged that the original judge had a bias against him, had engaged in improper ex parte communications with opposing counsel, and had “gone to great effort to cover up” those facts. When the substitute judge rejected his supplemental request, Proctor appealed the trial court’s ruling to the 5th District Court of Appeals, and reiterated his accusations against the original judge and opposing counsel in his appellate brief. Proctor’s appeal was denied, and he paid approximately $26,000 of the judgment.

During disciplinary proceedings, Proctor admitted that at the time he made the accusations he did not have a reasonable belief that they were true, and stipulated that they had been made recklessly. In setting the appropriate sanction for his misconduct, the Court noted that despite these admissions, when the disciplinary board recommended that he receive an actual suspension from practice, Proctor effectively recanted his earlier admissions by filing objections with the Supreme Court in which he claimed that he had a duty to make his accusations against the judge under bar governance rules that require the reporting of known or suspected misconduct by another attorney or judge.

The Court’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.

Justice Evelyn Lundberg Stratton dissented, stating that she would impose a 12-month license suspension with all 12 months stayed as the appropriate sanction for Proctor’s misconduct.

The opinion is linked here. (Mike Frisch)

February 23, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 22, 2012

New book 'Hot Topics in the Legal Profession - 2012' out in paperback

Now out in paperback, at Amazon, B&N, etc., is the Hot Topics 2012 book (in addition to the Kindle and ebook versions I wrote on a few weeks ago). Fourteen detailed chapters from my students in Advanced Professional Responsibility cover such topics as false guilty pleas, negotiation ethics, bar discipline for BVI cover for K N Aacts in the lawyer's personal life, the student debt crisis, client records in a digital world, outsourcing and the practice of law, and MDL hybridized settlements. I contributed a foreword but the stars are my students. Profits benefit Tulane PILF.

Unrelated, out today in the Classic Dissertation Series in Kindle and Nook is Michael O'Neal's study of the BVI in history and anthropology Slavery, Smallholding and Tourism; a paperback next week at those sites too.

[Alan Childress]

February 22, 2012 in Books, Childress | Permalink | Comments (0) | TrackBack (0)

Not In The Public Interest

The Minnesota Supreme Court imposed an indefinite suspension of no less than two years of an attorney who had engaged in a pattern of misrepresentations, failed to maintain a trust account and failed to pay an arbitration award.

The attorney was admitted in 2002 and practiced almost exclusively as a public interest lawyer. She has had two private clients. One of those two client was the complainant in the bar discipline mtter.

The attorney was to receive an initial retainer payment of $1,000. She mistakenly was paid the full $5,000. She did not escrow the advanced fee and did not return it when she was confronted with the error and discharged.

The matter was arbitrated in favor of the client. The attorney submitted an altered retainer agreement and failed to honor the arbitration award. Further, the attorney failed to cooperate with the investigation of the client's bar complaint.

The court here held that the bar disciplinary process is not obligated to await the civil enforcement of the arbitration award. (Mike Frisch)

February 22, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Unauthorized Practice Draws Reprimand

An attorney who is admitted in New York but not in Maryland was found to have engaged in the practice of law out of a Maryland office. The Maryland Court of Appeals concluded that aspects of the attorney's practice constituted the unauthorized practice of law and related ethical violations. The court imposed a reprimand.

The court noted that he was a newly minted attorney who did not actively solicit Maryland clients. His conduct did not result in any client harm.

He was admitted in New York after passing the bar exam there. Because he has an LLM but not a JD, he is not eligible to gain admission to practice in Maryland. His practice dealt primarily with federal immigration matters, which he may permissibly handle. The problems came when he got involved in matters governed by state law.

A concurring'dissenting opinion would impose a 30 day suspension. (Mike Frisch)

February 22, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One From The Heart

The Maryland Court of Appeals has disbarred an attorney whose most serious violation involved the submission of false documents in defense of the disciplinary charges.

According to the court, the "heart of [the attorney's] derelictions" was her "deliberate submission of false, adulterated documents intended to cover up the other violations."

The court rejected the attorney's attack on the findings below, which accepted the testimony of former clients and found the accused attorney's explanations incredible. (Mike Frisch)

February 22, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Mean-Spirited Justice Removed

The New York Commision on Judicial Conduct removed a village court justice for misconduct on the bench.

In one instance, the justice sentenced a defendant to 30 days for a noise violation notwithstanding the fact that the unrepresented defendant was under the influence of alcohol, was learning disabled and "incapable of understanding and asserting his rights."

He also imposed jail sentences on four defendants without following the required procedures. The Commission noted one "especially mean-spirited overreaction" in which he sent someone to jail for 15 days for talking quitly in the back of the courtroom.

The opinion is linked here. (Mike Frisch)

February 22, 2012 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Keep The Noise Down In Ohio

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio held today that a provision in the state’s disorderly conduct statute, R.C. 2917.11(A)(2), that prohibits “recklessly causing inconvenience, annoyance or alarm to another by ... making excessive noise” provides sufficient notice for a person of ordinary intelligence to understand what the law requires, and therefore is not unconstitutionally vague.

The Court’s 7-0 decision, authored by Justice Robert R. Cupp, affirmed a decision of the 9th District Court of Appeals.

The case involved a citation issued to Jason Carrick of Wayne County by sheriff’s deputies for a minor misdemeanor count of disorderly conduct. The citation was issued after an incident in which neighbors complained about loud music and particularly “booming” bass coming from a building owned by Carrick at which he was hosting a Halloween party. Carrick initially complied with the deputies’ request  that he reduce the volume of the music, but later increased the volume again after the officers departed.  After obtaining signed complaints from the neighbors, the deputies returned to Carrick’s property, cited him for violating the state disorderly conduct statute, and warned him that if they had to return again he would be arrested.

After receiving a third complaint at approximately 1:30 a.m., deputies returned to the property and placed Carrick under arrest. He was charged with and convicted of violating R.C. 2917.11(A)(2), the subsection of the disorderly conduct statute that addresses noise-related violations.

Carrick appealed, asserting that  his conviction should be vacated because R.C. 2917.11(A)(2) fails to describe the conduct it prohibits with enough specificity that a person of ordinary intelligence can know what the law requires, and the provision is therefore unconstitutionally vague and unenforceable.  The 9th District Court of Appeals affirmed the judgment of the trial court, but certified that its ruling was in conflict with a 1985 decision of the 4th District in which that court held that the challenged statutory language was not sufficiently specific, and was therefore void for vagueness.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the Court, Justice Cupp cited Columbus v. Kim, a 2008 decision in which the Supreme Court upheld as constitutional a Columbus city ordinance that banned keeping or harboring “any animal which howls, barks or emits audible sounds that are unreasonably loud or disturbing and which are of such character intensity and duration as to disturb the peace and quiet of the neighborhood ...”

In Kim, Justice Cupp wrote, “(W)e concluded that ‘Columbus City Code 2327.14 is not unconstitutionally vague, because it sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the ordinance prohibits. The ordinance incorporates an objective standard by prohibiting only those noises that are “unreasonably loud or disturbing.” The ordinance provides specific factors to be considered to gauge the level of the disturbance, namely, the “character, intensity and duration” of the disturbance. Further, we recognize that there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.’”

“We find the analysis in Kim to be applicable here. Contrary to the appellate court’s analysis in the conflict case ... and Carrick’s assertions in this case, the statute at issue here does provide adequate qualifying language to prevent the statute from being unconstitutionally vague.  R.C. 2917.11(A)(2) sets forth sufficient standards to place a person of ordinary intelligence on notice of what conduct the statute prohibits. It incorporates an objective standard by prohibiting only noise that is ‘unreasonable.’ This objective standard undermines Carrick’s assertion that R.C. 2917.11(A)(2) permits hypersensitive persons to impose criminal liability on others.  Further, it enumerates specific factors – ‘inconvenience, annoyance, or alarm to another’ − with which to judge the level of the disturbance.”       
“Additionally, the statute requires a culpable mental state of recklessness. Therefore, in order to violate R.C. 2917.11(A)(2), a person must act ‘with heedless indifference to the consequences,’ in ‘perversely disregard[ing] a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.’” 

“The record contains sufficient evidence for the trier of fact to conclude that the loud bass music emanating from Carrick’s Halloween party was loud enough to constitute ‘unreasonable noise’ that ‘inconvenience[d], annoy[ed], or alarm[ed] ... another.’ ... More specifically, (the complaining neighbors) were inconvenienced and annoyed by the loud bass music. A person of ordinary intelligence would understand that R.C. 2917.11(A)(2) proscribes playing music at a late hour at such a volume that it keeps the neighbors from sleeping, causes windows to vibrate on a house a quarter mile away, and prompts numerous calls of complaint to authorities.  Moreover, prior to citing Carrick, law enforcement officers visited the property to advise Carrick that the music was so loud that it was generating complaints from his neighbors and they warned him to lower the volume. Carrick has failed to establish ‘beyond a reasonable doubt, that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged.’”

“Accordingly, we conclude that R.C. 2971.11(A)(2) is neither unconstitutionally vague on its face nor as applied to Carrick. We answer the certified question in the negative and affirm the judgment of the court of appeals.”

Justice Cupp’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Yvette McGee Brown. Justice Paul E. Pfeifer concurred in judgment only.

The court's opinion is linked here. (MIke Frisch)

February 22, 2012 in Law & Society | Permalink | Comments (0) | TrackBack (0)

No Meeting Of Minds

A doctor whose bill for dog bite treatments was not paid filed a pro se lawsuit against the attorney who handled the underlying litigation. The doctor appealed the trial court's judgment in favor of the attorney.

The Connecticut Supreme Court affirmed, finding a basis in the record to conclude that, although the doctor provided medical records to the attorney, there was no "meeting of the minds" between the two on the subject of the attorney's obligation to pay the doctor's bills. (Mike Frisch)

February 22, 2012 in Billable Hours, Law & Business | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 21, 2012

Pumped, Dumped, Disbarred

The New York Appellate Division for the First Judicial Department has disbarred an attorney convicted of offenses described in the court's order:

Respondent and a codefendant were indicted for various felonies relating to their participation between 2004 and 2008 in a massive securities fraud "pump-and-dump" scheme whereby they artificially inflated stock prices of Industrial Enterprises of America, Inc. before selling off essentially worthless shares of stock to a series of investors, which destroyed the value of the company and drove it into bankruptcy.

On July 19, 2011, in Supreme Court, New York County, respondent was convicted, after a jury trial, of 30 felonies, to wit, grand larceny in the first degree in violation of Penal Law § 155.42 (2 counts), a class B felony; scheme to defraud in the first degree in violation of Penal Law § 190.65(1)(b), a class E felony; conspiracy in the fourth degree in violation of Penal Law § 105.10(1), a class E felony; falsifying business records in the first degree in violation of Penal Law § 175.10 (24 counts), a class E felony; and violation of General Business Law § 352-c(5) and (6) (Martin Act), class E felonies (see Ex. B).

On September 9, 2011, respondent was sentenced to 1 1/3 to 4 years on the class E felonies to run concurrently to 7 to 21 years on the class B felonies, and was ordered to make restitution in the sum of $7 million.

(Mike Frisch)

February 21, 2012 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Discovery Service Companies And Unauthorized Practice

From the web page of the District of Columbia Bar:

The District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law has issued Opinion 21–12, which addresses the applicability of Rule 49 in relation to discovery services companies.

Rule 49 provides that “No person shall engage in the practice of law in the District of Columbia … unless enrolled as an active member of the District of Columbia Bar,” or unless they fall under a specific exception. In response to inquiries about how Rule 49 encompasses discovery services companies, the CUPL makes clear that such a company must provide a disclaimer accompanying any advertisements that explicitly warns that the company is not authorized to practice law in the District of Columbia.

Discovery services companies are prohibited from providing misleading or broad statements claiming they can provide comprehensive discovery services, which include the administrative hiring and supervising of document review lawyers. Additionally, these services companies are not permitted to provide legal advice to their clients or promote any lawyers on their staff as authorized to practice law in the District of Columbia.

The CUPL offers the following principles, which dovetail previous opinions:

  • Rule 49’s prohibition against unauthorized practice does not apply to discovery services companies located outside the District of Columbia and which conduct documents reviews outside the District. However, the rule’s prohibition against holding out applies to companies that use a Washington, D.C., address or advertise that they are available to assist with discovery projects in the District.
  • When a company provides lawyers for document review in the District, the final selection of attorneys to staff the review must be made by a D.C. Bar member who has an attorney–client relationship with the client. The D.C. Bar member must supervise the legal work, and the company must not try to control an attorney’s professional judgment.
  • The company may handle the administrative aspects of hiring and supervising document review lawyers, such as interviewing individuals to create a roster of available lawyers, obtaining working space and equipment for them, ensuring that they work a regular day and at an acceptable pace, providing salary and benefits, and doing “similar supervisory activities that do not require the application of professional legal judgment.”
  • Companies do not violate Rule 49 when hiring a person to perform work that does not involve the application of legal knowledge, training, or judgment, provided that the individual is not held out or billed as a lawyer.
  • Discovery services companies may not provide legal advice to their clients, nor may they hold out themselves or any lawyers on their staff as authorized to practice law in the District.

For more information, review Opinion 21-12: Applicability of Rule 49 to Discovery Services Companies.

(Mike Frisch)

February 21, 2012 | Permalink | Comments (0) | TrackBack (0)