Friday, April 12, 2013
An encounter in a Pompano Beach Walmart parking lot led to a year and a day suspension of an attorney by the Louisiana Supreme Court.
The attorney exited his vehicle in response to a car horn. He began screaming profanities at abnother driver and then threw several punches. When the police were called, the attorney fled the scene but was apprehended and charged with simple battery.
The attorney pleaded no contest and was sentenced to six months supervised probation with conditions.
In the bar matter, the attorney claimed that the other driver was the aggressor but failed to provide probation and treatment records to the Office of Disciplinary Counsel. (Mike Frisch)
A circuit court judge has been censured and reprimanded by the Tennessee Board of Judicial Conduct.
The censure involved "intemperate, argumentative, disruptive" conduct at a deposition. The judge's conduct thus failed to abide by a previous resolution of comlaints against the judge.
The reprimand involved an improper ex parte hearing and relief granted in a petition to modify a permanent parenting plan. (Mike Frisch)
A recent amended complaint filed by the Illinois Administrator charges an attorney with making frivolous arguments on behalf of clients in several matters.
One case involved an appeal from a federal tax conviction.
The complaint alleges:
Respondent argued 19 issues on appeal, including that:
[client] Patridge could only be penalized if he knew which section of the Internal Revenue Code made his tax evasion unlawful; and
The federal Paperwork Reduction Act, 44 U.S.C. §§ 3501 et seq. foreclosed Patridge's conviction because IRS Form 1040 lacked avalid control number from the Office of Budget and Management and the forms were thus "outlaw and bootleg."
Respondent's arguments, above, were frivolous. A defendant does not need to the section of the Tax Code he is violating before he can be prosecuted, he only need know the Code requires him to pay. A defendant's tax evasion conviction cannot be overturned on the basis that basis relevant IRS regulations and instruction books did not display Office of Management and Budget (OMB) control numbers as allegedly required by the Paperwork Reduction Act, as a defendant is convicted of violating a statute, not a regulation or instruction book.
On November 14, 2007, the Seventh Circuit Court of Appeals issued an opinion holding that all 19
issues raised by Respondent on appeal were frivolous, affirming Patridge's conviction, and ordering $10,000 for his frivolous arguments and his noncompliance with the rules of appellate procedure.
In another tax matter, the attorney sought a stay and argued:
"Appellees cannot justifiably dispute the ‘IRS' no longer legally exists."
"The Secretary [of the Treasury] is prohibited by Title 4, Sec. 72 from exercising his office outside the District of Columbia." and
"It should be clear by now there is no lawfully established Internal Revenue Service with jurisdiction outside the District of Columbia or among the several States."
The amended complaint also alleges that the attorney made false statements in the bar investigation. (Mike Frisch)
Thursday, April 11, 2013
The Indiana Supreme Court imposed a public reprimand of an attorney who signed the name of a client who was an estate co-representative to a document.
The attorney admitted to the clients that he had signed the document and withdrew from the case.
Chief Justice Dickson dissented:
Much of our legal system is predicated on the authenticity and reliability of signatures. For a lawyer to affix a false signature is a deception that gravely undermines public trust, respect, and confidence in the legal profession. Such inexcusable misconduct is not justified or excused by considerations of client convenience, expediency, or lack of personal gain. Affixing a false signature is manifestly dishonest and an absolute ethical transgression. For this offense, I favor a substantial period of suspension.
Justice Rush concurred in the dissent. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has imposed a public censure of an attorney who made a false statement in an e-mail:
The facts are undisputed. In approximately 2009, respondent became employed by UtiliSave LLC, initially to collect its accounts receivables and then as general counsel. In February 2010, UtiliSave hired Christopher O'Dea as a salesman but by July 2010, he resigned and respondent was assigned to all matters related to O'Dea's departure. According to respondent, O'Dea was contacting people at UtiliSave telling them he was owed money, and both the vice president and CEO of the company were afraid that O'Dea would cause them physical harm. When respondent spoke with someone at the Brooklyn District Attorney's Office about O'Dea, that person told him to call 911 if he believed there was a threat, but respondent decided against it because he didn't want O'Dea to be arrested.
Instead, on or about August 21, 2010, respondent sent an email to O'Dea that included this language:
"You are on notice that I have filed an injunction with the District Attorney's office against you. Any further communications from you including a response to this or any previous email, letter, or other correspondence will be deemed to be in contempt of this injunction and you will subject yourself to contempt of court citations or worse."O'Dea reported respondent to the Committee.
Respondent testified that his only purpose for sending the email was to discourage O'Dea from contacting UtiliSave or any of its employees, and not to cause O'Dea any harm. Respondent described his conduct as "stupidity" committed due to a "lack of knowledge," admitting that the false email should never have been written, that it was a terrible mistake and that he had no defense for his actions...
The attorney had previously been censured for assaulkting a taxi driver. (Mike Frisch)
In a case involving an appeal from a first degree murder conviction, the Florida Supreme Court has held that defense counsel, not the defendant, has the final authority in the decision whether to call witnesses for the defense.
The issue had led to a split in authority between Florida circuit courts.
The murder victim was known for his work on the Curious George books. (Mike Frisch)
In a matter involving lawyers who "briefly shared" office space, the Delaware Court of Chancery issued a letter opinion declining to exercise equity jurisdiction to retain the case.
The case arises from a bar discipline we reported previously.
The defendant had attempted to bar the plaintiff from the office and falsely reported a "hostage situation" to the police, leading to the arrest of the plaintiff.
This litigation initially sought tort damages and equitable relief. It lay fallow for extended period. The Chancellor noted that the present complaint involves counts "sounding in tort or contract, for which full relief is available at law." (Mike Frisch)
The District of Columbia Court of Appeals has affirmed the dismissal of a legal malpractice claim brought against WilmerHale.
The plaintiff is a licensed attorney. The law firm had represented him and others pro bono in challenging the "Don't Ask, Don't Tell" treatment of gays in the military.
The "overarching allegation" of the litigation was that the law firm threw the case to curry favor with the Obama administration.
The plaintiff raised thirty three points of error on appeal, which the court said "ranged from the arguable to patently frivolous."
The court agreed with WilmerHale that the plaintiff's "conduct in this case was a shocking abuse of the judicial system" but nonetheless reached the merits of the plaintiff's claims and found no basis to overturn the dismissal.
There was a warning:
Discerning no reversible error, we affirm. But that there be no misunderstanding, we make clear that this court will protect the process of an orderly trial and respect for the trial court's orders. Where a party engages in contumacious behavior, utterly inconsistent with the orderly administration of justice, such as [the plaintiff] did here, dismissal is an appropriate sanction within the exercise of the trial court's discretion.
The New York Appellate Division for the Second Judicial Department has ordered a six-month suspension of an attorney convicted of lying to the FBI:
As revealed in the plea minutes, on or about January 6, 2010, FBI agents visited the respondent at his home, and asked him whether he had discussed holding a fundraiser with a certain individual, and the respondent lied, saying he did not, when, in fact, he did discuss holding a fundraiser with this individual.
As to sanction:
The respondent has a prior disciplinary history, consisting of Letter of Caution in 2008 and an Admonition in 2012.
In mitigation, the respondent asks that the Court consider the following factors: his relative youth; the aberrational and unplanned nature of his misconduct; his acknowledgment of guilt; his full cooperation with the Grievance Committee; his sincere remorse; the absence of any risk that he will engage in repeat misconduct; his personal background; his contributions to Jewish and immigrant-related charities; and his reputation as an ethical and honest attorney.
The New York Post reported that the crime related to an investigation of state Senator Carl Kruger. The article also noted that the attorney owned a restaurant called Rasputin in Gravesend. (Mike Frisch)
Wednesday, April 10, 2013
A divided Utah Supreme Court upheld a district court determination that ClearOne Communications was obligated to indemnify the costs charged by Dorsey & Whitney for defending former CFO Susie Strohm.
Strohm was acquitted on seven of eight federal criminal charges.
A dissent would also permit the firm to recoup the costs of collection.
The Minneapolis-St. Paul Business Journal had this report.
The South Carolina Supreme Court accepted an attorney's consent to disbarment for his numerous admitted ethical violations.
Among the violations was the misuse of entrusted funds fo personal expenses including
sunglasses, flowers, dry cleaning, gas, online shopping, cell phone services, iTunes, ebooks and video game downloads, movie rentals, tanning and a ski vacation.
The sanction was imposed effective as of the attorney's interim suspension. (Mike Frisch)
An attorney who also has a real estate broker's license was the subject of a bar complaint that he had made misrepresentations to secure a split of a $13,000 real estate commission.
Bar Counsel filed charges that led to a public reprimand. The attorney then sued the complainant.
The Massachusetts Supreme Judicial Court broadly interpreted the complainant immunity provisions in ordering the case dismissed:
The pertinent underlying facts are essentially undisputed. Damon is a
licensed real estate broker who works on Cape Cod. In the fall of 2008,
he filed identical complaints with bar counsel and the division of
professional licensure, claiming that Farber, an attorney admitted to
the Massachusetts bar and a real estate broker, made misrepresentations
to induce Damon to split a $13,000 real estate commission with him. The
gist of Damon's complaint was that Farber fraudulently misrepresented
certain facts to Damon in connection with a real estate purchase in
which Farber was involved on behalf of the actual purchasers, leading
Damon to give Farber one-half of the real estate commission he received
from the sellers in connection with the sale. On November 25, 2009, bar
counsel filed a petition for discipline against Farber; one of the
counts was based on Damon's complaint and concerned Farber's conduct in
connection with Damon. A hearing committee of the board heard the
matter in May, 2010, and Damon testified as a witness called by bar
counsel. The hearing committee made findings consistent with the
allegations in the petition for discipline, including those relating to
Damon, and recommended that Farber be suspended from the practice of law
for one year and one day. The board adopted the hearing committee's
factual findings but recommended that Farber receive a public reprimand,
concluding that while Farber had made misrepresentations and
thereby violated Mass. R. Prof. C. 8.4(c), 426 Mass.
1429 (1998), he had done so while acting as a real estate broker, not
as an attorney. In August, 2011, a single justice of this court agreed
with the board and issued a decision and order of public reprimand. It
appears that as a matter of routine policy, the board released the
decision to local newspapers, which subsequently printed stories about
Approximately six weeks later, on October 11, 2011, Farber filed the civil action against Damon. All three claims that Farber included in his Superior Court complaint were based on statements made by Damon in (1) Damon's complaint filed with bar counsel, (2) a follow-up communication Damon later sent to bar counsel, and (3) Damon's testimony before the hearing committee. Farber later notified bar counsel that he was intending to add her as a party in this suit.
Based on § 9, bar counsel requested that Farber dismiss his civil action against Damon on the grounds that Damon was immune from the civil liability sought by Farber. Farber refused to do so, stating that § 9 did not apply to the case. Bar counsel commenced a disciplinary proceeding against Farber on or about November 21, 2011, and then filed the present action for declaratory judgment and injunctive relief in the county court to resolve the controversy between the parties relating to the proper interpretation or construction of § 9...
This history of the 1993 amendments strongly supports the conclusion
that the public disclosure provisos in § 9 were intended to clarify that
the absolute immunity provided by § 9 applies only to complaints,
testimony, and other communications provided in the course of a bar
disciplinary proceeding, and not generally to the substantive contents
of any such communications in whatever separate forum they might be
published or disclosed. Nothing in the history supports the view
advanced by Farber that the public disclosure provisos were intended to
condition the availability of immunity on whether the complaint,
testimony, or other communication provided in a disciplinary proceeding
is kept confidential.
The interpretation of the public disclosure provisos advanced by Farber would undermine the basic purpose of providing immunity to complainants and witnesses. The board modeled the absolute immunity provision in § 9 on Rule 12 of the American Bar Association's Model Rules for Lawyer Disciplinary Enforcement (2007 ed.) (Model Rules) and the commentary. See note 5, supra. The commentary to rule 12 makes clear that absolute immunity for complainants and witnesses is intended to encourage those who believe a lawyer has acted improperly or inappropriately to engage in the bar disciplinary system by filing a complaint. See Model Rules, supra at 32 ("A policy of conferring absolute immunity on the complainant encourages those who have some doubt about a lawyer's conduct to submit the matter to the proper agency, where it may be examined and determined. Without immunity, some valid complaints will not be filed"). [FN6] If, as Farber suggests, a complainant's immunity from civil liability is lost when he is called on to testify at a public hearing before a hearing committee, [FN7] the complainant may well decide that the personal risks associated with filing a complaint are too great to do so. We will not adopt an interpretation of § 9 that would discourage, rather than encourage, clients and others with knowledge of possible attorney misconduct from engaging and cooperating in the bar discipline process. See Champigny v. Commonwealth, 422 Mass. 249, 251 (1996) (court construes statute in accord with Legislature's intent, taking into account "main object to be accomplished ... and to avoid imputing a '[b]arrenness of accomplishment' "). It is more consistent with the plain language of § 9 and the history of the public disclosure provisos (see note 5, supra ), to interpret the rule as providing a complainant with immunity in relation to his actual communications or testimony provided in a bar discipline proceeding, but rendering immunity unavailable with respect to the information contained in those communications or testimony if the complainant publicly discloses such information in a forum outside the bar discipline system.
The case is Bar Counsel v. Peter Farber, decided April 9, 2013. (Mike Frisch)
Tuesday, April 9, 2013
An Illinois Hearing Board has issued a recommendation summarized below:
Respondent was charged in a one-count complaint with misconduct based upon his guilty plea and federal criminal conviction on one count of conspiracy to commit theft of programs receiving federal funds. The criminal charges against Respondent stemmed from his conduct while serving as chief of staff to former Illinois Governor Rod Blagojevich. As part of his guilty plea, Respondent admitted participating in a conspiracy with the former governor to solicit and demand things of value for Blagojevich in connection with the appointment of a United States Senator to fill the seat vacated by Barack Obama upon his election as President in 2008. In addition to pleading guilty, Respondent cooperated extensively with the government in the criminal matter and testified against the former governor at both of his criminal trials. Respondent received a reduced sentence of ten days in prison, two years of supervised release, and a $1,000 fine.
Based upon his criminal conviction, Respondent was suspended on an interim basis by the Illinois Supreme Court on April 6, 2010.
Respondent was charged in this proceeding with committing a criminal act that reflects adversely on his honesty and fitness as a lawyer, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, assisting another lawyer in committing ethical violations, and engaging in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The Hearing Board found that all of these charges were proven by clear and convincing evidence.
Based upon the serious nature of Respondent's misconduct, the Administrator sought his disbarment. After taking into account Respondent's extensive cooperation in the criminal matter as well as additional evidence in mitigation, the Hearing Board recommended that Respondent be suspended for three years. The Hearing Board rejected the Respondent's request that the suspension be imposed retroactive to the date of his interim suspension.
The New York Commission on Judicial Conduct discontinued ongoing proceedings against an Elmira judge in light of his resignation from office after 31 years of service.
The judge faced charges that sounds like a fact pattern for a good judicial ethics exam question.
The judge had denied the charges and resigned after a hearing was held.
The complaint alleged that the judge directed an attorney to provide free legal services to a number of traffic defendants including the judge's daughter. The same attorney provided free assistance regarding an insurance issue on behalf of the judge's daughter.
Further, the judge allowed to same daughter (who resided with him) to serve as a trial juror in a criminal case.
Finally, there was the judge's telling of a "sexually graphic joke" at a police event. He described another judge (who he was not on speaking terms with) as a "small claims judge because his genitalia are small."
In his resignation letter, the judge stated that he "tried to maintain a good quality of life in Elmira. I have helped some people and wished I could have helped more." (Mike Frisch)
Monday, April 8, 2013
From L.A. Now:
A California bar court has recommended that Del Norte County Dist. Atty. Jon Michael Alexander be stripped of his law license for prosecutorial misconduct.
In an opinion released Friday, the State Bar Court of California found Alexander guilty of withholding exculpatory evidence, perjury and speaking to a defendant without the permission of her attorney.
“His abuse of his prosecutorial power has negatively impacted the reputation of the district attorney’s office and the public’s trust in the judicial system,” the court wrote.
The 26-page ruling said Alexander also had three prior cases of discipline for misconduct and disclosed that he did official business with friends with whom he had financial ties. Alexander, 64, was elected district attorney in 2010.
In one case, he lent a probation officer $14,000. The officer, who was a close friend, was assigned to Alexander's cases both as a public defender and later when he was elected district attorney. A probation officer makes recommendations to judges about sentencing.
As district attorney, Alexander also oversaw a criminal case handled by a lawyer who had lent him money and who was representing him in bar disciplinary matters.
Although the relationships did not amount to moral turpitude, they can cast doubt on his impartial judgment, the court said.
Alexander had argued that he was not required to disclose such relationships because they are well-known to others in small counties like Del Norte. The court rejected the argument. “Small counties are not exempt from disclosure requirements,” he court said.
Alexander was disbarred for meeting with a defendant in a drug case without the knowledge of her attorney, later lying under penaly of perjury that he had immediately informed the defendant’s lawyer and failing to disclose to another lawyer that the woman had provided exculpatory evidence about his client.
The California Supreme Court must approve the disbarment, but Alexander will be barred from practicing law in the meantime, the bar said.
The Recorder has detailed information concerning the ethics charges. (Mike Frisch)
A recent Formal Opinion from North Carolina is summarized based on the below inquiry:
Lawyer would like to put her firm name on a non-state issued license plate to be placed on the front of her automobile. The graphics on the license plate would consist only of the firm name. No other content would appear on the plate. Is Lawyer required to include an office address on the license
No. Rule 7.2(c) provides that any advertisement for legal services must include the “name and office address of at least one lawyer or law firm responsible for [the advertisement’s] content.” The purpose of the rule is to facilitate the identification and location of a responsible lawyer or firm in order to hold that lawyer or firm accountable for the content of the advertisement. However, we conclude that where a gift/promotional item displays only the name or logo of the lawyer or law firm, and the items are used/disseminated by the lawyer or law firm in a manner otherwise permissible under the Rules of Professional Conduct, the gift/promotion item does not have to display an office address.
Examples of such items would include pens, pencils, hats, or coffee mugs bearing the name or logo of a law firm or lawyer. A non-state issued license plate displaying a law firm’s name is also exempt from the address requirement.
When I was a disciplinary counsel, I toyed with the idea of DISBAR vanity plates. I passed because I was concerned about the potential retaliatory damage. (Mike Frisch)
The Vermont Supreme Court has reinstated an attorney who was disbarred for misappropration and commingling of trust funds.
The petitioner was randomly chosen for a trust audit.
He initially provided false information in the ensuing bar inquiry. He eventually admitted that he had a "poor concept of money."
After his disbarment, the petitioner was kept on as guardian of five probate court acccounts that were brought to conclusion without incident. He has served as a volunteer with several organizations and "sings in [his] church choir and has taken a leadership role with the choir."
Indeed, "[the choir director] was impressed with [petitioner's] handling of a situation in the choir when the group decided to purchase leather bound hymnals which [he] knew to be a financial burden to some members of the choir. [He] worked to make sure that all could have the books." (Mike Frisch)
The Louisiana Supreme Court has denied admission to an applicant who was granted permission to sit for the bar examination and passed.
The fitness concerns related to "his record of criminal and traffic offenses." The applicant agreed to be evaluated by the Lawyers Assistance Program ("LAP") but failed to comply with their proposed conditions.
His counsel suggested that the non-compliance was a result of financial issues.
The applicant may re-apply when he complies with "any and all" recommendations of the LAP. (Mike Frisch)