January 26, 2013
Attorney Charged With Blogging False Allegations Against Probate Case, System
The Illinois administrator has recently filed a complaint alleging misconduct by an attorney after she was disqualified in a guardianship matter.
The charges involve blogging about the case:
Between December 2009 and November 2011, the court made various findings of law in relation to the Sykes case, some of which involved [her former client] Gloria’s ownership in certain property. In or about November 2011, Respondent began writing and publishing two Internet web logs (“blogs”) devoted to discussing matters related to Mary Sykes’ probate matter. The two blogs were entitled, “marygsykes – An attorney blog concerning corruption and greed in the Probate Court of Cook County,” and “marygsykes,” respectively. Respondent posted her own writings as well as the writings of others on both blogs. Those writings included allegations that there was corruption in the probate court of Cook County, particularly in relation to Mary Sykes’ probate case, that Sykes was the victim of elder abuse, and that the GALs and the court had acted inappropriately with respect to Sykes’ estate, that they had violated the law, and that they had physically or mentally harmed Sykes.
Respondent’s blogs were open to the public and were not password-protected. Respondent knew or should have known that the contents of her blogs were continuously available to anyone with access to the Internet. Respondent a purported disclaimer on her blogs, which included the following language:
Sorry, but portions of this blog have to be entertaining so we can get the word out. There is most certainly a great deal of (stinging) truth in it, esp. for the GAL’s (sic), the probate court and a society that ignores (thereby condoning) the sleazy world of probate, and in particular the 18th floor of the Daley Center in Chicago, but everyone needs to understand, these are not pleadings, there is no Motion, Response and Reply set by any court, together with extended legal argument recorded by a court reporter and subject to a Motion to Reconsider if errors or new evidence is found.
The complaint then sets out the various posts and alleges
Respondent’s blog posts...that there was impropriety going on in relation to the Sykes case; that the GALs and the judges were corrupt; that the GALs and the court had engaged in financial exploitation or had financially profited in some way in relation to Sykes’ guardianship case; that the judge had inappropriately taken away Sykes’ rights; and that Stern, Farenga, and the judge had committed crimes, were false.
Respondent either knew that her statements...were false or she made the statements with reckless disregard as to their truth or falsity.
We previously reported on a complaint brought against an Illinois attorney who allegedly violation her duty of client confidentiality by blogging about clients and cases. There does not appear to be such a charge here.
Given that, I think that there may be a substantial First Amendment defense to this complaint. (Mike Frisch)
January 25, 2013
The Boss From Hell
The New Jersey Supreme Court has reprimanded two attorneys based on the consolidated recommendation of the Disciplinary Review Board.
The circumstances are worthy of study in light of the state of the market in law jobs.
The attorneys were both inexperienced immigrants from Korea who had been admitted to practice in New Jersey (and one also in New York). Both had difficulty obtaining meaningful legal employment and were in the United States without permanent status.
They found legal work for a man named Jacob Kim, who operated several businesses and served as their employment sponsor for visa purposes.
According to the DRB:
By all accounts, Jacob Kim was a tyrant, who intimidated his staff and held respondents' immigration status over their heads, in order to have them engage in improper conduct.
Eventually, one of the attorneys broke away from Kim. This led to a disciplinary investigation and charges. The DRB noted that language difficulty impeded the attempt to unravel the situation. The attorneys offered differing versions of what had taken place and received mixed credibility reviews.
The DRB rejected charges of misconduct for "ghostwriting" pleadings but found that the attorneys had violated the rule that requires written fee disclosure to clients.
The case illuminates the ethical dangers that come into play when a desperate attorney takes a bad job. (Mike Frisch)
January 24, 2013
D.C. Bar: To Hell With Democracy
The District of Columbia Bar has amended its rules to ensure that only a "bar insider" can become its leader.
The announcement from the Bar web page:
The Bar’s Board of Governors has approved changes in the Bar’s By–laws to remove the office of president–elect from the list of positions for which individuals may be nominated by petition and to set the threshold requirement for petition candidacies for the remaining elected leadership positions at a percentage of the active membership instead of an absolute number.
In its memorandum originally proposing the changes to the Board, the Bar’s Leadership Development Committee described them as “consistent with the Bar’s core value of visionary leadership and the strategic plan’s objective to develop an organizational culture that produces outstanding leaders who are committed to making the D.C. Bar the national leader in the legal profession for professional excellence, preeminent programs, and exemplary public service.”
The Bar’s By–laws provide that the Bar’s Committee on Nominations puts forth the names of at least two and no more than three active members for the offices of president–elect, secretary, treasurer, and vacancies on the Board of Governors as well as vacant positions for delegates to the American Bar Association House of Delegates. With the changes, individuals who are not named by the Committee on Nominations for any position other than president–elect may be nominated by obtaining the signatures of at least one–half of one percent of the active membership of the Bar based on a census of the Bar as of the first business day in the calendar year in which the elections are held. As of January 2, 2013, the Bar’s active membership was 72,042, making this year’s petition threshold 361 signatures. Previously, petition candidates were required to obtain the signatures of 100 active members.
The By–law changes also clarified that petitions must be submitted in accordance with procedures established by the Board and must contain handwritten, legible signatures accompanied by the D.C. Bar member identification number of signers.
In the end, this is no big deal, as it does not really matter who serves as the D.C. Bar's President and an outsider has a snowball's chance in hell of actually getting elected. Bar leadership positions serve as a resume builder but have little impact on the direction of the Bar.
What makes this petty rule change passing strange is that, to my knowledge, no one has ever won the president-elect position by petition. How does foreclosing the possibility serve the interests of the members of this mandatory organization?
It strikes me that an undemocratic (small "d") rule change to shut out persons who dare to seek a leadership position without the blessing of the "Bar" sets a very poor example for a profession dedicated to fairness, equal access to justice and the rule of law.
Maybe I'm missing something. Maybe the "core value of visionary leadership" should embrace all members and not just the favored few. (Mike Frisch)
"Valued Judge" Is Censured For Delays
"One of the most valued judges in New Castle County [Delaware]" has been publicly censured by the Delaware Supreme Court.
The judge's misconduct involved "unneccessary delay" in several family court matters. The "persistent conduct" caused needless anxiety to litigants and harmed public confidence in the judiciary.
The judge did not dispute the delays but blamed her assistant.
The Board of Examining Officer appointed by the court called the sanction determination "troublesome" and found no helpful Delaware precedent.
The court followed the board's recommendation on sanction. (Mike Frisch)
The Frequent Guest
An attorney convicted of immigration crimes in federal court has consented to disbarment in Pennsylvania.
Philly.com described the August 2011 verdict in the criminal case:
As chairman of the Pennsylvania Governor's Advisory Commission on Asian-American Affairs, Korean-born Michael Choi of Huntingdon Valley was a well-connected lawyer. His Cheltenham practice grabbed headlines for class-action lawsuits about Agent Orange, the "No Gun Ri" massacre of the Korean War, and slave labor in Japan. He was a frequent guest on TV newsmagazines.
But to federal prosecutors in Philadelphia, Choi, 58, was the disgraced mastermind of a conspiracy that fraudulently obtained green cards for immigrant clients.
After three hours of deliberation Friday, the jury found Choi guilty of all charges except one count of tax evasion. He remains in custody, and sentencing is scheduled for Nov. 22.
He was sentenced to 30 months with conditions on release. (Mike Frisch)
A criminal defendant produced a handgun in court after the jury rerturned a guilty verdict. He was subdued by the assistant attorney general and a sheriff. As a result, he was charged with attempted murder of the two public officials.
The North Dakota Supreme Court affirmed the conviction, concluding that the prosecutor's characterization of the defendant's story as a "lie" was improper but not unduly prejudicial:
Here, [defendant] Chacano's story was a candidate for fair and reasonable criticism, but prosecutors should not "inject their personal beliefs into closing argument." Clark, 2004 ND 85, ¶ 11, 678 N.W.2d 765. Though "[a] prosecutor's closing argument may properly draw reasonable conclusions . . . from the evidence," the danger is the prosecutor's improper argument "may induce the jury to trust the government's view rather than its own judgment . . . when deliberating." State v. Rivet, 2008 ND 145, ¶¶ 4-5, 752N.W.2d 611 (citation omitted).
In Schmidkunz, we noted our concern for inappropriate prosecutorial comments on evidence by noting, "when a prosecutor comments personally on evidence . . . he or she is acting as an unsworn witness for the prosecution who is not subject to cross-examination and who may be perceived as an expert witness." 2006 ND 192, ¶ 10, 721 N.W.2d 387. Prosecutors can argue inferences and what the evidence shows, but opining "[t]he Defendant's testimony is a lie," is improper because it goes beyond an inference. As we have said before, we do not "countenance an attorney calling a witness a liar." State v. Flohr, 310 N.W.2d 735, 737 (N.D. 1981); see also Fox v. Bellon, 136 N.W.2d 134, 139-40 (N.D. 1965) (holding it was improper and misconduct for a plaintiff's attorney in a civil trial to call the defendant a "liar," "pathological liar," and a "crook" in rebuttal argument to jury).
Even though the prosecutor's comment was improper, Chacano must still show it affected his substantial rights. On this record, he cannot make that showing. This was a single, isolated statement in the context of a jury trial...
DA Walks On Conflicts Charges
The Louisiana Attorney Disciplinary Board has agreed with a hearing committee that a district attorney engaged in no ethical violation in representing a civil client.
The client was injured when she fell out of an inner tube connected to a boat. The boat driver was issued a citation charging misdemeanor criminal violations.
The district attorney recused his office from prosecuting the citations, continued to represent his client in the civil litigation and received a legal fee of $20,000.
The Office of Disciplinary Counsel charged that the district attorney engaged in a concurrent conflict of interest and conduct prejudicial to the administration of justice.
The board here found it significant that the district attorney (who was allowed a civil practice) had accepted the representation before he was aware of the citations (and resulting conflict).
Any ethics scholars out there disagree with the board's conflicts analysis? (Mike Frisch)
January 23, 2013
Off The Wagon With A Thud
An attorney who last year was censured and had a lengthy suspension deferred "under conditions intended to assist [him] in maintaining his sobriety" was disbarred by the Oklahoma Supreme Court as a result of two alcohol-related instances of misconduct.
According to the court, the lenient treatment in the earlier case was imposed because witnesses felt that the attorney "had conquered his demons" but that he "fell off the wagon with a thud."
The first incident occured while the censure case was pending:
Belinda and James Roe live with their children in a home located in Logan County. At approximately 6:00 p.m. on May 19, 2012, they began hearing machine gun fire coming from an adjacent residence. When the shooting had been going on for one to two hours, the Roes called the property owner. They were advised that it was the renter and his attorney who were doing the shooting. At 10:00 p.m., the Roes decided to go next door and ask that the shooting cease as the couple and their children were getting ready to retire for the night.
One of the two intoxicated shooters was the attorney. He identified himself as an "agent" and the sheriff's office responded. He cursed and threatened to sue the responding deputy sheriff.
The second incident took place after the court's decision:
James J. Pasquali (Pasquali) is an attorney practicing primarily in Oklahoma County. On October 7, 2012, he decided to stop by a bar and off-track betting establishment, Thunder Roadhouse (Roadhouse). When he entered the Roadhouse, Pasquali recognized several people, one of which was [the attorney] Moon, who appeared to have been drinking. After greeting Moon, Pasquali offered to buy him a drink at which point Moon asked for a vodka and Red Bull. Pasquali then walked away from Moon and Moon's companion, James Randall Dodd (Dodd).
Some time later, Dodd and Moon joined Pasquali. Dodd confronted Pasquali telling him that he had a "problem" with him and demanding the return of a fee of one-thousand dollars ($1,000.00) paid to Pasquali for the representation of Dodd's son. At this point, Moon entered the conversation in an extremely aggressive and threatening manner. He threatened to kill Pasquali and have his daughters raped and killed. Moon told Pasquali that if he went to the police, he would kill him. He grabbed Pasquali's collar and threatened to run a pen through his neck and his remains through a shredder.The matter only began to diffuse when the bartender approached the group and asked if everything was all right. Pasquali was able then to leave the Roadhouse.
Pasquali, in shock at Moon's treatment and scared for himself and his family, called his law partner who advised him to contact the police. He did so along with the Oklahoma County District Attorney. When the police arrived, Moon and Dodd had left the premises. On October 29, 2012, Moon was charged in Oklahoma County with attempted extortion, threatening to perform an act of violence, and assault and battery.The court rejected claims of procedural and due process violations. (Mike Frisch)
No Way Of Knowing
The Wisconsin Supreme Court has imposed a five-month suspension of an attorney for misconduct that took place in 2007-2009.
The court noted that the attorney had already served a 60 day suspension for misconduct in the same time period:
Turning to the appropriate sanction, the referee is correct that we generally adhere to a pattern of progressive discipline. Attorney Harris's disciplinary history consists of a private reprimand, a public reprimand, and a 60-day suspension. After careful consideration, we conclude that the appropriate level of discipline is a five-month suspension of Attorney Harris's license to practice law.
We note that all of the client matters at issue here had their genesis in the 2007-2009 timeframe, which is the same time period at issue in the matters that led to Attorney Harris's suspension in 2010. Attorney Harris has stated that since that time, he has made substantial progress in handling the way he practices law. He now shares office space with a well-respected local attorney and consults with him on various cases. That attorney serves as Attorney Harris's mentor. Attorney Harris has downsized his practice, prioritizes his existing clients over attempting to obtain new ones, and no longer puts anything in his lower left-hand desk drawer. Attorney Harris's psychologist has confirmed these positive changes.
There is no way of knowing what sanction would have been imposed in the event all of the counts at issue in this matter had been brought in conjunction with the counts contained in the complaint that led to Attorney Harris's 60-day suspension in 2010. The counts of misconduct at issue in this case are serious failings. Nevertheless, we deem it appropriate to impose a five-month suspension, whereby Attorney Harris will be able to be reinstated by affidavit, see SCR 22.28(2), rather than a six-month suspension which would necessitate a full reinstatement proceeding, see SCRs 22.29-22.33, and would increase the actual time Attorney Harris was without a license to practice law.
This decision illuminates a real issue in bar discipline, i.e., having all disciplinary matters before a court at the same time. It is impossible to do so because client complaints trickle in, sometimes long after the unethical conduct. (Mike Frisch)
January 22, 2013
Suspension For Ex Parte Communications
The web page of the Illinois Attorney Registration & Disciplinary Commission reports that the Illinois Supreme Court has issued orders of discipline in a number of cases.
One of the matters involves one of a series of cases brought against a workers compensation arbitrator and several colleagues who engaged in ex parte e-mail exchanges in pending cases.
The court approved a 90 day suspension of one of the attorneys in In re Nadenbush.
Our prior coverage is linked here. (Mike Frisch)
Broken Pledge Draws Suspension
The West Virginia Supreme Court of Appeals has rejected the Lawyer Disciplinary Board's proposed reprimand of a public defender who had failed to communicate with a client and to respond to the ensuing bar complaint.
The court noted that the attorney had been admonished five times for similar misconduct.
On the fifth time, he "pledged to the [Office of Disciplinary Counsel], and to the Board, that he would be more diligent in representing his clients" but
...the record shows that at the same time he was making this pledge, the Respondent was ignoring repeated requests from [this client and his family to take the action necessary to correct a facially inaccurate sentencing order...there is no evidence that a sixth admonishment, even in the heightened form of a public reprimand, would appropriately sanction the respondent attorney, or that it would serve as an effective deterrant to other members of the Bar or maintain public confidence in the ethical standards of the legal profession. We do not believe that supervised probation alone will be sufficient to protect the public's interest.
The court imposed a 30 day suspension with supervision for two years on reinstatement. (Mike Frisch)
Justice Prevails In New Jersey
The New Jersey Supreme Court has reversed the conviction of a middle school librarian on aggravated sexual assault and endangering the welfare of a child charges because of exculpatory evidence that was not known by either prosecutor or defense counsel at the time of the criminal trial.
The court held that newly discovered evidence "severely undercut" the credibility of one of the child accusers.
The child was followed by an adult at all times and was considered a "pathological liar." An informal gag order by the (now deceased) school principal had impaired the ability of the defense to discover these critical facts.
The court noted that the case did not involve either prosecutorial misconduct or ineffective assistance of counsel but concluded that
...even though a defendant is generally barred from presented a claim on [post-conviction review] that has been previously litigated or that could have been raised at trial or on direct appeal, the rules do not require the Court to acquiesce to a miscarriage of justice.