Friday, May 3, 2013
The Delaware Supreme Court has affirmed a conviction for Murder by Abuse or Neglect in the First Degree of a defendant in connection with the death of his infant daughter.
The issue on appeal was the admission of a YouTube video posted by the defendant prior to the crime as he "participated in a radio contest by filming himself performing a stunt."
The defendant titled the video "when idiots try to win a contest."
The court here found that the trial court properly admitted the video to counter evidence that the defendant was suicidal. The probative value outweighed the prejudice. (Mike Frisch)
On review of a hearing panel order of a 45-day suspension, the Michigan Attorney Discipline Board found that the sanction was "insufficient" and imposed disbarment.
The attorney had converted $9,200.00 in fees paid by clients ans owed to his firm. Then, "[w]hen confronted about the first instance discovered by his employer, he lied and said it was an isolated incident. He reiterated this false statement a few days later amd ultimately admitted the truth only when the firm discovered additional instances of his conversion."
The board concluded that
The conduct here may be described as intentional misappropriation, knowing conversion, or simply as theft. However it is described, there is a great deal of consistency in the decisions of this Board with respect to the appropriate sanctions for this fumdamentally dishonest conduct. Whether the funds are client funds or third party funds, the presumptive sanction is disbarment.
The Iowa Supreme Court has imposed a suspension of three months of an attorney who, among other trust account problems, "paid himself numerous legal fees before they were earned and often transferred funds from the trust account into the operating account without notice to the client and without an accompanying accounting of the fee."
The attorney's trust account issues were reported by his bookkeeper. He was suspended on an interim basis for approximately seven months.
The court majority rejected reprimand as a sanction in light of the attorney's "utter disregard" for trust account obligations but found
[The attorney] recently implemented corrective measures and now operates his trust account in conformance with the required rules. He maintains confidence in his current staff and has not had problems with his trust account since his reinstatement. No client suffered harm from his actions, and no clients filed a complaint against him for his conduct. [He] is nearing retirement and has performed a significant amount of pro bono legal services...
Justice Wiggins concluded that the attorney converted client funds and should have his license revoked. (Mike Frisch)
The New York Court of Appeals has reversed a conviction for second degree murder as a result of the incompetence of defense counsel throughout the proceedings:
Defense counsel's actions throughout this case showed an unfamiliarity with or disregard for basic criminal procedure and evidentiary law. At the very least, a defendant is entitled to representation by counsel that has such basic knowledge, particularly so, when that defendant is facing a major felony with significant liberty implications. Considering the seriousness of the errors in their totality, we conclude that defendant was deprived of a fair trial by less than meaningful representation.
The court's opinion identifies several lapses and notes that the prosecutor "to his great credit" raised the issue of counsel's effectivess pretrial. (Mike Frisch)
The Wisconsin Supreme Court has suspended an attorney who had failed to comply with orders in a prior disciplinary case regarding his treatment for alcoholism.
Among other things, the attorney had refused to execute releases to provide access to medical records.
Attorney LeSieur has been convicted on three occasions of operating a motor vehicle while intoxicated and was arrested on suspicion of that offense on two other occasions that did not result in valid convictions. Attorney LeSieur's record indicates a potential problem with alcohol and other addictive or mood-altering medications. He claimed during the initial disciplinary proceeding that he has not consumed alcohol since 2006. If that is accurate, he is to be commended. His refraining from alcohol indicates some recognition that he has problems in this area that require affirmative steps. On the other hand, his actions since the release of LeSieur I indicate repeated attempts to thwart the monitoring of his condition by the OLR and its designee. One who is truly eager to overcome any problems with alcohol or mood-altering medications would welcome assistance, but Attorney LeSieur has frustrated the efforts of this court, the referee, and WisLAP to ensure that he remains on a productive path. This is a troubling pattern.
We simply cannot tolerate such disobedience of our orders. Accordingly, we will suspend Attorney LeSieur's license until he complies with the orders of this court. To leave no room for doubt or argument, we will clarify the nature of the release Attorney LeSieur must now sign and we will expressly require him to undergo an independent medical examination by Dr. Thomas Rowell or another addiction psychiatrist or other treatment provider \designated by the OLR. Given Attorney LeSieur's failure to comply thus far, the conditions that we imposed in LeSieur I and those we add in this opinion shall be extended to remain in effect for a period of two years from the date on which Attorney LeSieur's license is reinstated.
The attorney had contended that the release violated his HIPAA rights. (Mike Frisch)
The Maryland Court of Special Appeals has reversed a judgment in a case involving plaintiffs who had sued their own insurance carrier (State Farm) under an uninsured motorist ("UIM") policy.
In voir dire, the attorney for State Farm was only identified as "another lawyer in this case."
The attorney participated actively in the trial and the identity of the client was never revealed.
The court here found that the failure to identify counsel's role was error that warranted reversal:
Here, the jury was led to speculate as to the true identity of State Farm's counsel. The jury was also unaware of the relationship between the defense's medical expert - who was State Farm's witness - and State Farm, which might have gone to the expert's credibility. The circuit court erred in granting [the individual defendant's] motion as it violated the clearly established principle that the jury should be made aware of the precise identity of a UIM carrier if it is a party at trial.
Thursday, May 2, 2013
The Pennsylvania Supreme Court has disbarred a former magisterial judge convicted of endangering a child's welfare and corruption of a minor.
The victim was the judge's 12 year old stepdaughter.
When her mother was away, she went into the judge's bedroom because she was "scared." He "rubbed her 'butt' and vaginal area on bare skin for about ten minutes."
The evidence at trial "included three secretly recorded telephone conversation between the Respondent and [the stepdaughter] wherein [he] apologized to [her] for inappropriate touching."
The judge had been on temporary suspension since March 2012.
Philly.com had this report on the trial. (Mike Frisch)
We reported on a March 28 decision of the District of Columbia Court of Appeals that held prospectively that, when an attorney promptly learns of a dispute over funds disbursed as legal fees, the attorney must return the funds to escrow pending resolution of the dispute.
Well, such a result is far too protective of client interests for the Board on Lawyer Absolution (oops, I meant the Board on Professional Responsibility) to tolerate.
The BPR now seeks rehearing a rehearing or rehearing en banc.
...the division's decision potentially holds legal fees legitimately disbursed from trust pursuant to a written retainer or other writing hostage to the after-the-fact frivolous objections of a disgruntled client, and gives the client unprecedented leverage to negotiate a discount - particularly if the lawyer believes he may be facing a charge of misappropriation for having spent the fee. Apart from the obvious unfairness in such a result, the ruling poses practical problems for the administration of a law office, and particularly for solo and small practicioners, who may need the funds to meet office or living expenses.
Read the court's opinion and you will see how little the board's "parade of horribles" relates to the actual facts and the division's holding:
We hold that substantial evidence supported the Hearing Committee's finding that [the attorney] was aware of a dispute prior to disbursing [the client's] settlement award...
We are unconvinced by the Board's reasoning that, once disbursed, funds can "no longer [be] client or protected funds." If disbursing funds from a client trust account automatically removed the funds from the protection of Rule 1.15, an attorney could easily circumvent the protections afforded by this rule by disbursing putatively earned fees without ever providing clients an opportunity to dispute the fee...We cannot accept an interpretation of the rule that would so easily allow an attorney to circumvent its protections.
It's hard to believe that the board has the audacity to attack this reasoning and result.
Also, please excuse my skepticism that the board really cares about solo and small firm lawyers.
Will these people ever think about protecting people when lawyers are entrusted with their funds?
I won't hold my breath. (Mike Frisch)
In the sixth disciplinary proceeding involving an attorney, the Wisconsin Supreme Court imposed a suspension of two years.
One case involved frivolous litigation over the euthanization of a dog. Dogs in Wisconsin are personal property and the canine at issue had been given to the ex-wife on divorce from the plaintiff:
T.H. had formerly been married to S.H., and they had owned a Labrador retriever during their marriage. After T.H. moved out of the family residence and while the divorce proceeding was pending, the dog resided with S.H. and the couple's son, but not with T.H. S.H. and T.H. entered into a marital settlement agreement (MSA), which was ultimately incorporated into the judgment of divorce. In the MSA, T.H. expressly agreed that S.H. would be awarded, inter alia, all "personal belongings and other personal property currently in her possession at the time of the final hearing," and that T.H. was divested of any right or legal interest in any of the property awarded to S.H. This MSA was never modified. The dog was therefore awarded to S.H. in the divorce judgment.
S.H. had the dog euthanized at a veterinary hospital in August 2000. T.H. learned of this fact a short time later. He then retained Attorney Eisenberg regarding a potential claim.
Despite his knowledge of the legal characterization of pet animals as personal property and of the terms of the MSA and the divorce judgment, which awarded all personal property in her possession to S.H., Attorney Eisenberg filed a large-claim civil action on T.H.'s behalf on the theory that T.H. was the lawful owner of the dog. Although the referee found that the initial belief in Attorney Eisenberg's office was that S.H. had been responsible, with or without her mother's assistance, for the euthanization of the dog, Attorney Eisenberg did not name S.H. as a defendant. Apparently for strategic reasons Attorney Eisenberg named B.S., who was S.H.'s mother and T.H.'s former mother-in-law, as the sole defendant.
The court noted the referee's finding:
The referee described his view of the way in which the lawsuit was structured as follows: "[Attorney] Eisenberg constructed a compelling narrative for the case: vicious, vindictive ex-mother-in-law has the perfectly healthy dog belonging to her ex-son-in-law euthanized. The only problem with the narrative was that it was untrue."
The other count involved fee-splitting allegations that the attorney had falsely denied. (Mike Frisch)
It's a busy couple of days for the Ohio Supreme Court in dealing with sex-with-clients matters.
From the web page today:
The Supreme Court of Ohio has suspended the law license of Akron attorney William J. Detweiler for one year for repeatedly soliciting a client for sexual favors, and continuing to represent that client in an ongoing case despite the substantial risk that his own personal interests conflicted with those of the client.
In a 5-2 per curiam (not authored by a single justice) opinion announced today, the Supreme Court of Ohio adopted findings by the Board of Commissioners on Grievances & Discipline that Detweiler engaged in professional misconduct by sending a woman he was representing in a divorce action a series of increasingly sexual text messages over a period of several months, ultimately including a nude photo of his lower body and a request that she engage in oral sex with him.
The client, who never engaged in sex with Detweiler or even met with him socially, stated in a grievance filed with the Office of Disciplinary Counsel that she felt “completely trapped” and unable to terminate her client-attorney relationship with Detweiler because she had already paid him more than $10,000 in legal fees and could not afford to hire a new attorney.
In response to the client’s grievance, Detweiler stipulated that he had engaged in conduct that adversely reflects on his fitness to practice law, continued to represent a client despite the risk that his personal interests would limit his ability to act appropriately on her behalf, and solicited sexual activity with a client when there had been no consensual sexual relationship with that person prior to the attorney-client relationship.
While acknowledging the disciplinary board’s recommendation that Detweiler’s license be suspended for one year with six months stayed on conditions, the court noted that he was previously reprimanded in 2010 for engaging in an improper sexual relationship with a client, and concluded that Detweiler’s increasingly aggressive conduct in the present case called for the more severe sanction of a one-year actual suspension from practice, with reinstatement conditioned on no further misconduct, evaluation by the Ohio Lawyers Assistance Program, and compliance with any treatment recommendations.
The majority opinion was joined by Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French. Justices Paul E. Pfeifer and William M. O’Neill dissented, stating that they would impose a one year suspension with six months stayed.
The court stated: "Not only did [he] make repeated unsolicited and unwelcome sexual advances on a vulnerable client, but when she ignored those advances, he upped the ante by sending her a nude photograph of himself in a state of arousal. Based on this disturbing escalation of the improper and offensive conduct [he] directed toward his client, we are not convinced that a fully stayed suspension will adequately protect the public from future harm."
The opinion is here.
In an unrelated matter, the court reprimanded an attorney who had sex with a client in a driving while intoxicated case.
The court found that the relationship did not impair the quality of the legal services. (Mike Frisch)
The web page of the Ohio Supreme Court reported yesterday:
The Supreme Court of Ohio today indefinitely suspended the law license of Dayton attorney Marc N. Greenberg for engaging in sexually explicit online conversations with undercover police agents whom he believed to be 12 and 13-year-old girls, and using his computer webcam to transmit obscene video and still photos to those persons.
Greenberg’s license has been under an interim suspension since November 2010, when the court received notice of his convictions on federal felony counts of possessing child pornography and transferring obscene material to minors.
In today’s 5-2 per curiam (not authored by a single justice) opinion, the court adopted findings by the Board of Commissioners on Grievances & Discipline that Greenberg’s conduct violated the state disciplinary rules that prohibit an attorney from engaging in illegal conduct that reflects adversely on his honesty or trustworthiness, and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.
In setting the appropriate sanction for his misconduct as an indefinite suspension from practice with no credit for the time served under interim suspension, the court noted the aggravating factors that Greenberg acted with a selfish motive, committed multiple offenses over a period of several months and intended to prey on vulnerable children. It also noted mitigating factors, including Greenberg’s cooperation with the disciplinary process and acknowledgement of the wrongfulness of his actions, his entry into ongoing therapy for the diagnosed mental disorder of paraphilia, the absence of a prior disciplinary record, and the severe sanctions and penalties imposed for his criminal violations, which have included financial ruin, public humiliation, and service of a 19-month federal prison term.
The court’s majority opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French.
Justices Terrence O’Donnell and William M. O’Neill dissented. Justice O’Donnell indicated that he would disbar Greenberg. Justice O’Neill indicated that he would grant credit against today’s indefinite suspension for the time Greenberg’s license has been under an interim suspension.
Over a period of several months, the attorney made contact with three undercover police officers posing as underage girls. He "used his computer's webcam to stream to the agents video and pictures of his exposed penis and of himself masturbating."
The Dayton Daily News reports that the attorney had been a girl's basketball coach.
The court's opinion is linked here. (MIke Frisch)
Wednesday, May 1, 2013
From the web page of the Tennessee Supreme Court:
The Tennessee Supreme Court has sent a dispute between a Memphis law firm and a former partner and paralegal back to the trial court to determine whether arbitration is appropriate.
The law firm of Glassman, Edwards, Wyatt, Tuttle & Cox, P.C. filed a lawsuit against B.J. Wade, a former partner, and Shannon Crowe, a former paralegal, alleging fraud and breach of their duties to the firm. Mr. Wade and Ms. Crowe both asked the trial court to send their cases to arbitration, as required by agreements they maintain govern resolution of each case. The firm, however, asserts that none of the agreements require arbitration.
The trial court consolidated the cases and initially ordered the parties to proceed with limited discovery to determine whether the cases were subject to arbitration. When disagreement arose, however, the trial court expanded the scope of discovery to include “all necessary documents to conduct a meaningful attempt at resolution of this matter.” The trial court also ordered the parties to mediation in an attempt to resolve all of their disputes. The Tennessee Supreme Court granted the request of Mr. Wade and Ms. Crowe for an immediate appeal.
In a unanimous opinion issued today, the Supreme Court concluded that the trial court erred in ordering discovery without limiting the scope of discovery to the issue of the enforceability of the arbitration provisions and erred in ordering the parties to mediation in an effort to resolve all aspects of their disputes.
The Supreme Court ordered that the case be returned to the trial court to determine whether arbitration was required of any dispute between the parties under any of the agreements at issue. The Court also held that discovery must be limited to the issue of whether the arbitration clauses contained in the agreements are enforceable.
The court's opinion is linked here.
As we had hoped, the anxiously-awaited answer to the question whether a judge may also referee college football is "Yes."
The Florida Judicial Ethics Advisory Committee opines:
Code of Judicial Conduct Canon 3A provides that the judicial duties of a judge shall take precedence over all of the judge’s other activities. Florida Rule of Judicial Administration 2.215(b)(4) requires all judges to inform the chief judge of any contemplated absences that would affect the progress of the court’s business. Therefore, the judge is advised to discuss this activity with the chief judge and schedule this activity in such a manner that would not conflict with judicial activities.
Canon 5B addresses avocational activities of a judge and encourages a judge to “participate in extrajudicial activities concerning non-legal subjects, subject to the requirements of the Code.” (emphasis added).Canon 5A sets forth the requirements of the Code as they pertain to extrajudicial activities:
- Extrajudicial Activities in General. A judge shall conduct all of the judge’s extrajudicial activities so that they do not:
- cast reasonable doubt on the judge’s capacity to act impartially as a judge;
- undermine the judge’s independence, integrity, or impartiality;
- demean the judicial office;
- interfere with the proper performance of judicial duties;
- lead to frequent disqualification of the judge; or
- appear to a reasonable person to be coercive.
Likewise, Canon 2 generally prohibits any activity involving impropriety or the appearance of impropriety, and Canon 2B specifically prohibits an activity that involves the misuse of the prestige of judicial office. Serving as a part-time college football referee does not appear to reflect adversely on impartiality, demean judicial office, or interfere with the proper performance of judicial activities.
Finally, Canon 6A states that a judge may receive compensation and reimbursement of expenses for an extrajudicial activity if the source of the payments does not give the appearance of influencing the judge in the performance of judicial duties or otherwise give the appearance of impropriety. This compensation must be reasonable, cannot exceed what a person who is not a judge would receive for the same activity, and the expenses must cover the actual costs of expenses reasonably incurred, or otherwise should be reported as compensation. The inquiring judge is further advised to make a proper financial disclosure of this income pursuant to the reporting requirements of Canon 6B
Time to kick off. (Mike Frisch)
A North Carolina attorney who was suspended for four years in February 2012 for having sex with clients has sought a stay that would permit him to resume practice pursuant to the order that allows him to seek a stay after one year.
In his petition, he states that he has been evaluated by two psychologists and "does not suffer from any condition creating a predisposition for inappropriate sexual behavior and...does not suffer from any mental, psychological, or emotional condition that significantly impairs his professional judgment, performance or competence in the representation of female clients."
The State Bar opposes the stay, pointing to aspects of the reports filed by the attorney that "belie" the conclusion that his representation of future female clients is not impaired. The State Bar also alleges that he did not properly wind down his practice after the suspension order.
Our earlier report on the charges is linked here. (Mike Frisch)
The Indiana Supreme Court has permanently banned a senior judge from judicial service and suspended for one year with all but thirty days conditionally stayed.
The judge stipulated that she "engaged in an improper romantic relationship with a client" while serving as the client's public defender. Because the judge was certified to serve as a senior judge, the conduct also violated the Indiana Code of Judicial Conduct.
NewsOne reported that the conduct took place during a prison visit. (Mike Frisch)
A Louisiana Hearing Committee has recommended dismissal of ethics charges brought against an attorney for representation of a client in a post-conviction proceeding.
The attorney made three court appearences on the client's behalf but was replaced as counsel prior to the denial of post-conviction relief.
The attorney's records were destroyed in Hurricane Katrina, so the committee relied upon testimony of her usual practices in finding that the charges of lack of diligence, failure to communicate and to return unearned fees were not proven by clear and convincing evidence.
Has any disaster ever been cited in as many disciplinary matters as Hurricane Katrina? (Mike Frisch)
Tuesday, April 30, 2013
The New York Appellate for the First Judicial Department has imposed a nine-month suspension for the following misconduct:
On September 1, 2009, respondent's client asked him to commence a civil action. At that time, respondent did not file the action. To persuade his client that everything was proceeding well, respondent created a fraudulent stipulation of settlement with a fictional index number, caption and settlement amount. Respondent also randomly chose an opposing counsel's name from an attorney directory and forged his signature at the bottom of the document. Respondent gave the false document to his client, misrepresenting that he had settled the matter. He did not file the document with the court. On November 21, 2009, before his client discovered the deception, respondent filed a valid complaint in Small Claims court.
The other attorney eventually learned that respondent had forged his name on the fraudulent stipulation. Once his dishonesty was discovered, respondent wrote letters to his client and the attorney. In the letter to his client, respondent claimed that he suffered from an "addiction [to] lying" that he analogized to an addiction to drugs or alcohol. In the letter to the attorney, he apologized for his actions, offering the explanation that he "did not know how to properly file an action on behalf of [his] client, and felt this would buy [him] time to properly file same." He also stated he had come to the conclusion that he had trouble telling the truth, "be it either personal or business." Further, as he later testified, although he has no other disciplinary history, respondent had previously received two letters of caution from the Second Department and had received sanctions for neglecting to file orders in three Family Court matters. The Presiding Justice of the Second Department had also decertified him from Nassau County's 18-b Panel.
As to sanction:
Here, where respondent not only neglected a legal matter and then created a fictitious document with a forged signature of an innocent attorney in order to conceal the neglect from his client, but also failed to mitigate his troubling history of sanctions, warnings and decertification, we find that a nine-month suspension is appropriate and strikes a balance with the case law...
The answer to the question posed in the title, mercifully, is "no." The attorney must pass the ethics portion of the bar exam and address his "pathological" behavior to get reinstated. (Mike Frisch)
A deputy county attorney for Maricopa County, Arizona has agreed with Independent Bar Counsel John Gleason on a sanction of two-year of probation with conditions.
The misconduct related to the attorney's involvement in a RICO case filed in federal district court on behalf of Sheriff Joe Arpaio and others.
Three other members of his office are the subject of related charges.
The attorney did not become "meaningfully involved" in the RICO case until after it was filed. He recognized that the case was devoid of merit and urged his subordinate to investigate the matter further.
He admitted charges of pursuing meritless litigation and failure to supervise. (Mike Frisch)
The sharp-eyed reader may be aware that I have had occasion in the past to criticize the District of Columbia bar disciplinary system for its interminable delay in bringing charges of misconduct to resolution.
As one far wiser than I (former Bar Counsel Len Becker) observed, no participant in the system is free from blame.
But one of the worst cases of inexplicable delay is now wending its way through the system. The lion's share of blame can only be attributed to a hearing committee and the Board on Professional Responsibility's office for its abject failure to motivate the committee to action.
The case is In re Wayne Rohde, Bar Docket No. 2005- D347.
The attorney was convicted of felony leaving the scene of an accident in Virginia. The incident that took place on August 10, 2005.
On December 5, 2005, the D.C. Court of Appeals entered an order declining to suspend the attorney for the conviction, noting his claim that the incident was the result of an alcoholic blackout. The court referred the matter for investigation and prosecution.
Bar Counsel filed charges of moral turpitude and other misconduct. Three days hearings were held ending on January 15, 2008. Post-hearing briefing was completed on August 28, 2008.
The matter has now been pending before a hearing committee for over five years since the hearing was completed. Nothwithstanding a felony conviction, the attorney has not been subject to either sanction or vindication of the charges.
And if the hearing committee ever actually deigns to do its job, the report still has to be reviewed by the Board and the Court.
Wonder if anyone responsible for the operation of the D.C. bar disciplinary system cares. (Mike Frisch)
The New York Court of Appeals has held that an attorney who participates in an assigned counsel program ("ACP") for indigent persons "lacks standing to challenge how the ACP Plan deals with the provision of counsel to unemancipated minors in adult criminal court..."
The attorney was never a minor charged with a crime or the parent of a charged minor.
The court noted that the attorney contended that sections of the Plan "caused him to be assigned fewer cases. But personal disagreement and speculative financial loss are insufficient to confer standing." (Mike Frisch)