Saturday, August 3, 2013
The Mississippi Supreme Court has imposed a 30-day suspension without pay and fined a Hinds County Youth Court judge who took action in a case after he had recused himself and abused his contempt power.
The basis for recusal was that the matter involved the relative of a court employee.
The court rejected the more lenient sanction jointly proposed by the judge and the Commission on Judicial Performance, stating that the commission "should examine the extent to which the conduct was willful and exploited the judge's position to satisfy his or her personal desires."
A concurring/dissenting opinion finds the sanction imposed to be unduly light:
I do not believe today's relatively mild punishment for illegally incarcerating two citizens and depriving them of contact with their children for months, will serve as much of a warning.
The concurring/dissenting opinion also notes that the judge acted because of an improper ex parte contact and caused the mother to be arrested in front of her four children. (Mike Frisch)
Friday, August 2, 2013
The Illinois Administrator has filed a complaint alleging that an attorney engaged in a conflict of interest by drafting a series of documents by which his family trust inherited from the client.
The charging document describes the trust:
...Respondent's father, Arthur G. Jaros Sr., established a charitable trust entitled Arthur G. Jaros Sr. and Dawn L. Jaros Charitable Trust ("Jaros Charitable Trust"). Respondent and his two younger siblings, Wesley A. Jaros ("Wesley") and Randall S. Jaros ("Randall"), were named trustees of the Jaros Charitable Trust. The Jaros Charitable Trust stated that its purpose was to "devote and apply … for the use of charitable, religious, and educational purposes and organizations … with special emphasis on the dissemination of the Word of God…. purposes be interpreted broadly to include such things as Christian based camps, youth facilities, family services and other organizations of a Christian based charitable nature."
After Respondent's father's death, the Jaros Charitable Trust was funded with approximately 34 acres of land located in Woodboro, Wisconsin, and $5,000,000 in cash. It was Respondent's idea, and the desire of his father and siblings, that the 34 acres of land be used for developing a Bible camp. In addition to the 34 acres of land, Respondent, as trustee of the Jaros Family Trusts, owned an additional 25 acres of land adjacent to the 34 acres, which would be available to the Bible camp's use.
On or about December 17, 2004, Respondent drafted and executed a form entitled "Articles of Incorporation - Nonstock Corporation" to organize a corporation in the State of Wisconsin. On the form, the name of the corporation was listed as Squash Lake Christian Camp, Inc. ("SLCC") and the three directors of SLCC were listed as Respondent and his two siblings, Wesley and Randall. The listed purpose of SLCC was to "operate for religious purposes a Christian Bible Camp in Oneida County, Wisconsin…." Respondent incorporated SLCC as a not-for-profit organization exempt from federal income taxes under the Internal Revenue Code 26 U.S.C. 501(c)(3). Later, Respondent amended the name of Squash Lake Christian Camp, Inc. ("SLCC") to Eagle Cove Camp and Conference Center, Inc. ("Eagle Cove Center").
At all times alleged in this complaint, Respondent was the President and Director of Eagle Cove Center. Respondent's two brothers were also directors and officers of Eagle Cove Center. In 2006, the estimated retail cost to develop Eagle Cove Center was $14,650,000.
The land in Woodboro, Wisconsin where Respondent was seeking to develop Eagle Cove Center, as described in paragraph two, above, was zoned as a Single Family Residential and Residential and Farming zones. Due to these zoning restrictions, Respondent was denied permits from the town of Woodboro and Oneida County to develop Eagle Cove Center. Respondent spent more than four years unsuccessfully requesting and applying for rezoning and conditional use permits to allow Respondent and Eagle Cove Center to develop the Christian Bible camp.
The complaint alleges that trust instruments drafted by the attorney gave $425,000 to Eagle Cove Center. (MIke Frisch)
Thursday, August 1, 2013
A recent opinion from Florida's Judicial Ethics Advisory Committee:
1. May a judge running for re-election create a Twitter account with a privacy setting open so anyone — including lawyers — would be able to follow the account?
ANSWER: Yes, under specified circumstances.
2. May the judge’s campaign manager create and maintain the Twitter account instead of the judge?
In anticipation of the inquiring judge’s re-election campaign, the judge is considering using a Twitter account as one of the judge’s campaign tools. The inquiring judge explains that “Twitter does not require the account holder to select who follows the account holder’s ‘tweets.’ People just sign on and as the account holder ‘tweets,’ the account holder’s followers receive it . . . Another aspect of Twitter is the ability to create hashtags. All Twitter users then can search for tweets containing a specific hashtag . . . I could create a specific hashtag for my campaign account.”DISCUSSION
Prior JEAC opinions on the subject of social media have cited Canon 2B of the Code of Judicial Conduct as the applicable authority for restricting judicial use of social media. Canon 2B states in relevant part: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” The relevant part of Canon 2B is underscored here for emphasis. The analysis of the social media issue — specifically Facebook — focused upon selecting “Facebook friends.” The Committee opined that this function of Facebook lent itself to the appearance of impropriety, to wit: in choosing or declining to make someone — specifically a lawyer who appears before the judge — a Facebook friend, a judge “could convey or permit others to convey the impression that they [the Facebook friends] are in a special position to influence the judge.” Fla. JEAC Op. 2009-20.
Fla. JEAC Op. 2009-20 involved a judge inquiring in relation to the judge’s campaign plans. The inquiring judge’s inquiry was submitted in four parts:
- Could the inquiring judge post comments and other material on the judge’s social network site?
- Could the inquiring judge add lawyers as “friends” on the site, and permit such lawyers to add the judge as their “friend”?
- Could the inquiring judge’s election committee post material on the committee’s page if the material did not otherwise violate the Code of Judicial Conduct?
- Could the inquiring judge’s election committee establish a social networking site where lawyers — including those who might appear before the judge — could list themselves as “fans” or supporters of the judge’s candidacy so long as no one controls who is permitted to be listed as a supporter?
The Committee opined that Canon 2B allows judicial participation in a “subject matter” forum, and that:
[In] order to fall within the prohibition of Canon 2B . . . three elements must be present.
- First, the judge must establish the social networking page.
- Second, the site must afford the judge the right to accept or reject contacts or “friends” on the judge’s page, or denominate the judge as a “friend” on another member’s page.
- Third, the identity of the “friends” or contacts selected by the judge, and the judge’s having denominated himself or herself as a “friend” on another’s page, then must be communicated to others.
It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.
Based upon the inquiring judge’s explanation of Twitter, Canon 2B would not preclude a judge running for re-election from maintaining a Twitter account. The inquiring judge seeks to use a Twitter account for campaign “tweets” such as judicial philosophy, campaign slogans, and blurbs about the candidate’s background.
Twitter has several dimensions, however, in addition to those described in the judge’s inquiry. The site’s primary objective is to enable an account holder to share information to a population limited only by the number of Twitter account holders. Upon setting up a Twitter account, users have the option to control who sees their updates. True, as the inquiring judge states, users do not select followers. A user can, however, block specific followers, preventing those blocked from seeing tweets and other traffic on the user’s account. In addition, Twitter enables users to mark tweets as “favorites,” to create lists of Twitter users and subscribe to lists created by other users.
If a user posts a tweet that is complimentary or flattering to the inquiring judge, the judge could re-tweet it or mark it as a “favorite.” No matter how innocuous the tweet, this could convey or permit the tweeter to convey the impression that the tweeter is in a special position to influence the judge.
A judicial Twitter account user could create a list of followers. Those listed could be perceived to be in a special position to influence the judicial candidate. The inquiring judge could avoid this appearance by not creating any lists of followers. Still, if the inquiring judge were to appear on another Twitter user’s list of followers, that follower could create the impression of being in a special position to influence the judge. Twitter has a “direct message” feature that enables users to send messages directly to and receive messages directly from their “followers.”
Canon 5A, particularly subsections 5A(1), (2) and (5), beg consideration:
Extrajudicial Activities in General. A judge shall conduct all of the judge’s extrajudicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) undermine the judge’s independence, integrity, or impartiality;
. . . .
(5) lead to frequent disqualification of the judge.
A judge’s Twitter account creates an avenue of opportunity for ex parte communication. Assume a Twitter user is a party who has a case assigned to a judge with a Twitter account. The party could send the judge a tweet about the case. The judge unwittingly would receive the tweet. The only way to avoid receiving the tweet would be if the judge knew the party’s Twitter account name, and exercised Twitter’s blocking option when the judge set up the judge’s Twitter account. Thus, although Twitter does not fall squarely on all fours of Fla. JEAC Op. 2009-20, it has features which could prove problematic as a campaign tool for a judge running for re-election.
The inquiring judge’s second inquiry suggests as an alternative that the campaign manager or another person connected with the judge’s re-election campaign set up the Twitter account. This is a more prudent option in that it would eliminate the potential for ex parte communication. Favorite tweets would not be selected by the judge, but by the campaign manager or committee. Caution should be applied, however, if any follower lists are created in the account.
In sum, the inquiring judge will not be in violation of Canon 2B if a Twitter account is created in that judge’s name. The most sensible way to use Twitter as a campaign tool would be for the judge’s campaign committee or manager to create and maintain the account.
It's the time of year when the District of Columbia Board on Professional Responsibility issues reports in anticipation of its August recess.
Yesterday, the board recommended that the Court of Appeals impose a suspension of 18 months and fitness of a former government attorney found to have instituted frivolous litigation and related misconduct in two matters.
The attorney had opened an art gallery after he retired from government service. He purchased a painting that he believed to be the work of Emil Jakob Schindler, a 19th century Austrian artist. He sought to sell through Christie's and ended up suing the auction house. Christie's had declined to sell the work without an opinion as to its authenticity.
This case was found to have violated several ethics rules governing the conduct of litigation.
There were like findings in a second suit brought against a recreational pool and tennis club in Montgomery County, Maryland.
The board analysed the application of the doctrine of offensive collateral estoppel, concluding that findings of the court in the Christie's litigation established some, but not all, of the charges.
The case is In re Robert Fastov, link available here. (Mike Frisch)
The District of Columbia Board on Professional Responsibility has recommended a suspension of 30 days of an Assistant United States Attorney who had failed to provide a witness statement to the defense in a case involving a drive-by shooting.
The board rejected a hearing committee's proposed sanction of public censure, which was the sanction sought by Bar Counsel.
The board sustained the hearing committee's finding that the non-disclosed information was material but further opined that materiality is not an element of a Rule 3.8(e) violation:
The plain meaning of Rule 3.8(e) is thus consistent with the drafting history of the rule and the case law. The Board thus rejects the interpretation of Respondent and Amicus [the United States Attorneys Office], that the obligations of Rule 3.8(e) are co-extensive with Brady and instead finds that Respondent had an obligation to disclose the Boyd Hospital Statement, even if it was non-material, because he reasonably should have known that it "tend[ed] to negate the guilt of [the defendant]."
The board noted that the Court of Appeals has observed that matters where the sanction exceeds that sought by Bar Counsel "should be the exception, not the norm" but found this to be such a case:
Respondent's violation of Rule 3.8(e) was blatant. He failed to disclose exculpatory information that was obviously material. That failure likely impacted the result of the first Shelton trial and may have influenced the subsequent guilty verdict at the second trial. A suspension will serve as a more effective deterrent than the public censure recommended by Bar Counsel and the Hearing Committee and is an appropriate measue of the seriousness of Respondent's misconduct.
Last year, the Court of Appeals disbarred a former AUSA for Brady and other violations. Prior to that, public discipline had never been imposed in the District of Columbia for Brady-type misconduct.
There are thus likely legions of cases that involve comparable conduct (i.e. reversals for Brady violations) over the past three decades that resulted in no bar discipline.
Here, the trial conducted by this AUSA resulted in a mistrial. The statement was disclosed by another AUSA at a second trial and the conviction at that trial was eventually affirmed.The case is thus unlike prior Brady-violation cases that have led to reversal.
I doubt that the "get-tough on prosecutors" policy articulated here will be adopted by the court without a fight. Having taken the position that a suspension is not appropriate, I wonder what position Bar Counsel will take before the court.
The case is in In re Andrew J. Kline, No. 11-BD- 007, and is available at this link. (Mike Frisch)
Wednesday, July 31, 2013
An attorney who had been suspended by the Minnesota Supreme Court was ordered to refrain from practice before the United States Patent & Trademark Office.
However, the attorney failed to heed the order of suspension.
As a result, he is now disbarred in Minnesota:
[The attorney] committed contempt of court by practicing law after a suspension order, and he engaged in false and dishonest conduct by identifying himself as an attorney authorized to practice law despite being under suspension. He also disregarded his obligation to provide the required proof that he notified his clients of his suspension to to cooperate with the...disciplinary investigation. His conduct was serious and by its very nature harmed the legal profession.
The court found no mitigating factors. (Mike Frisch)
Tuesday, July 30, 2013
The New Jersey Supreme Court has held that a state prosecutor's office violated its post-indictment discovery obligations when its investigator destroyed his notes of a two-hour pre-interview of a defendant.
Further, the trial court "abused its discretion in denying [the] defendant's request for a charge that would have allowed the jury to draw an adverse inference from the destruction of the interview notes more than a year after the return of the indictment."
The court here affirmed the Appellate Division's reversal of the conviction of the defendant for the murder of his wife:
The danger of [the] investigator destroying his contemporaneous notes should be self-evident. The words in the interview report were filtered through an investigator who, understandably, has developed a distinct view of the case. The potential for unconscious, innocent self-editing in transferring wors, sentence fragments, or full sentences into a final report is a real possibility. So is the potential for human error in the transposition of words from notes into a report. By destroying his notes, [the investigator] made himself the sole judge of what was actually contained in the notes. If there were differences between the notes and the final report, [the defendant] had a right to present them to the jury.
Lawyers are obligated to comply with annual obligations such as bar dues and fulfilling CLE requirements in order to maintain an active law license.
The West Virginia Supreme Court ordered the suspension of 42 attorneys who had failed to provide proof of CLE compliance.
After 111 attorneys were directed to provide such proof, 69 attorneys responded and avoided the suspension. (Mike Frisch)
The Nevada Supreme Court has held that an attorney lacks authority to file a substantive motion on behalf of a deceased client when no personal representative has been substituted as a party to an appeal.
The client was convicted of conspiracy to commit kidnapping and murder, first-degree kidnapping and first-degree murder. He was killed in prison before his appeal was decided.
The attorney then filed a suggestion of death and motion to abate the conviction and remand with instructions to dismiss.
The court noted the procedures which require appointment of a personal representative to substitute for a deceased party. Further, the court allowed 90 days for substitution through a personal representative. If that does not occur, the appeal will be dismissed.
Brass v. State can be found at this link. (Mike Frisch)
Monday, July 29, 2013
Posted by Jeff Lipshaw
There is now a sequel to Memo to Lawyers: How Not to "Retire and Teach." That was a short essay I wrote in 2006 and 2007 about the odd experience of being somebody who practiced for twenty-six years and only then set out to join a law school faculty as a tenure track professor.
This summer I've been working on the look back - Version 1.0 predates the "Great Retrenchment. I've reflected on that change as well as examples of my earlier naivete or "I didn't know what I didn't know" in "Retire and Teach" Six Years On, a draft of which is now up on SSRN. Here's the abstract:
This is a follow up to a 2007 essay I wrote about what it might take for a well-seasoned practitioner to join a law school faculty as a tenure track professor. Having now wended my way up (or down) that track for six years plus, my intended audience this time includes the original one, those seasoned veterans of the law practice trenches who may think but should never utter out loud the words “I would like to retire and teach,” but now also my colleagues in academia who are facing what looks to be the greatest reshuffling of the system in our generation. Much of what I said in the earlier essay still holds. This essay, however, includes (a) a more nuanced look at the strange hybrid creature that is the scholarly output of academic lawyers; (b) a more respectful appreciation of what it takes to become a good teacher, with some notes about what worked for me, and (c) an attempt to reconcile the interests in scholarship and the interest in teaching after the “Great Retrenchment” of the legal profession and legal education, with some brief thoughts about the opportunities that may bring for the aging but not ossifying academic aspirant.
I suppose I ought to dedicate it to the Chief Justice because it gave me a chance to talk about the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria.
Photo credit (John Roberts): newyorker.com