Friday, February 28, 2014
Those of us who follow the opinions issued by the Maryland Court of Special Appeals always keep an eye open for the decisions written by Judge Charles E. Moylan, Jr.
Simply put, Judge Moylan knows how to write in a clear yet entertaining style that makes his opinions a pleasure to read.
That skill is on display in a decision issued yesterday.
Judge Moylan introduces the issue
There is a venerable body of law, of which Wernsing v. General Motors Corp., 298 Md. 406, 470 A.2d 802 (1984), is the avatar, seeking to preserve the advantages of finality and repose in jury verdicts once rendered. There is a counter body of law, of which Jenkins v. State, 375 Md. 284, 825 A.2d 1008 (2003), is the more recent avatar, dedicated to rooting out jury verdicts that are tainted. There is unquestioned merit in both philosophies. At times, however, they meet in tectonic collision.
There is an understandable tendency in those moving for new trials on the basis of tainted verdicts to wrap themselves in the mantle of Jenkins (and several criminal cases in its slip stream) and to pay faint heed to the long procession of opinions in the Wernsing v. General Motors tradition. There is a counter tendency, as the State opposes the retrial motions, to exalt the pedigree of Wernsing and to give scant, if not disdainful, notice to Jenkins. Opposing advocates sometimes challenge an appellate court to flip a coin between conflicting and seemingly irreconcilable approaches. There has to be a better way.
At issue was a case of bedbug infestation in a rental unit. The plaintiff had sued her landlord and lost. Her attorney encountered a juror in the parking lot after the verdict and filed a motion based on the juror's statements.
Here, the court affirmed the trial court's decision not to grant a new trial. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department affirmed a trial court order declining to dismiss a legal malpractice claim.
The plaintiff's sister worked for the defendant law firm, in which the individual defendants are partners. During his sister's employment, the plaintiff came to learn of an investment opportunity being organized by the defendants, which involved providing high interest, short-term loans for the development of real estate. The plaintiff and his wife decided to participate. Two bank checks, one of which was purchased by the plaintiff's wife and bore only her name, were forwarded to the defendants for the purpose of making two loans. When these two loans were not repaid in full, the plaintiff commenced this action seeking to recover from the defendants the money that he was owed, claiming that the defendants effectively borrowed the money from him (first and second causes of action). In the alternative, the plaintiff sought damages for legal malpractice (third cause of action). The plaintiff made a pre-discovery motion for summary judgment on the complaint, and the defendants cross-moved, inter alia, to dismiss the second cause of action pursuant to CPLR 3211(a)(3), for lack of standing, and to dismiss the complaint pursuant to CPLR 3211(a)(1), based upon documentary evidence. The Supreme Court denied the motion and the cross motion.
The court here comncluded that the law firm's documentary evidence failed to "utterly refute" the plaintiff's claims. (Mike Frisch)
Thursday, February 27, 2014
The Arizona Presiding Disciplinary Judge has approved a consent disposition in a case involving the attorney's home mortgage:
For purposes of this agreement the parties agree that Respondent knowingly indicated to a bank in writing that his home had been paid off with "funds derived from real estate investments," when he knew the home was paid off as a result of a mortgage company disbursement error. Respondent knew that the information that he provided would be relied on by the bank.
An aggravating factor was dishonest motive. (Mike Frisch)
Prominent divorce attorney Glenn C. Lewis has been disbarred by the Maryland Court of Appeals.
The court imposed discipline based on findings of misconduct in a Maryland matter.
Lewis had his license revoked in Virginia. The District of Columbia imposed disbarment as reciprocal discipline for the Virginia misconduct.
The Blog of the Legal Times reported on the D.C. sanction
Glenn Lewis, a one-time prominent member of the Washington-area divorce bar, was disbarred yesterday. The order comes several months after the Virginia State Bar stripped him of his law license.
The Virginia disciplinary board found Lewis took fees from clients without doing work he was hired for, mishandled client funds and failed to keep required financial records, among other charges. The Virginia State Bar revoked his license in May.
On October 17, the District of Columbia Court of Appeals disbarred Lewis, citing the Virginia decision. According to yesterday's order, Lewis did not respond to a previous court order asking him why it shouldn't disbar him...
...Before the disciplinary proceedings, Lewis was a well-known member of the bar when it came to family law matters. The Washington Post reported he once said in an interview that he was the most expensive lawyer in the region, charging $850 per hour for his services. In 2004, the Virginia State Bar’s family law section gave him a lifetime achievement award.
Losing the license to practice law in the entire D.C. Metropolitan area qualifies as a very different lifetime achievement award. (Mike Frisch)
The Indiana Supreme Court has ordered an interim suspension of a former deputy prosecutor who pleaded guilty to a federal bribery charge.
RTV6ABC has a report on the circumstances
David Wyser, 53, will plead guilty to federal bribery charges involving a 1991 murder case in which a woman was originally sentenced to 110 years in prison, but had her sentence dramatically reduced after her father donated thousands to Brizzi's and Wyser's campaigns.
Paula Willoughby was convicted in a murder-for-hire plot to kill her husband, Darrell Willoughby, after prosecutors said she and her lover, Douglas Steuber, paid a man $700 to kill Darrell Willoughby.
Paula Willoughby was sentenced to 110 years in prison, and, on appeal, the Indiana Supreme Court reduced her sentence to 70 years.
In June 2009, the sentence was modified to 40 years, a move agreed to by Brizzi's office, and Paula Willoughby was released in July 2009 for time served.
But from 2006 to 2008, prior to the sentence modification, Willoughby's father, Harrison Epperly, donated $29,000 to the Brizzi campaign and gave $2,500 to Wyser's failed campaign for Hamilton County prosecutor, records show.
Jenny Lukemeyer, who was Paula Willoughby's attorney at the time, also held a fundraiser for Wyser at her home that raised $2,500.
Indiana Lawyer had this report. (Mike Frisch)
A Louisiana Hearing Board has recommended that ethics charges against the spokesperson of the Orleans Parish District Attorney's Office be dismissed.
At issue were comments in the wake of a not guilty verdict issued by a judge in a high-profile public corruption case.
The spokesperson commented shortly thereafter to a Times-Picayune reporter:
District Attorney Cannizzaro has fought to eliminate corruption, and unfortunately [Judge] Arthur Hunter thwarted our efforts today.
The bar complainant: Judge Arthur Hunter.
Both parties presented credible witnesses who appeared sincere in their beliefs that the statement either was, or was not, intended as a personal criticism of Judge Hunter. The significance of the statement made by the Respondent is something about which reasonable persons could disagree, however, it is the burden of the [Office of Disciplinary Counsel] to prove a violation by clear and convincing evidence. In this case, it is the opinion of the committee that ODC has not met its burden.
The committee found that the hasty comment "is not condoned" but that it was not knowingly or recklessly false. (Mike Frisch)
The Maryland Court of Special Appeals has issued an opinion in a divorce case involving two graduates of Yale Law School.
Both took positions with "prestigious law firms" upon their 1988 graduation. The wife stopped working after pregnancy complications and the birth of twin boys. She was making $120,000 when she stopped working.
The husband by 2010 was earning over $800.,000 per year, which helped fund a lifestyle most of us can only dream about.
It came at a price
The price of Husband’s salary was as much as 2,700 hours of billable work per year, and it apparently put a strain on the parties’ relationship that slowly drove them to minor violence against each other and, in time, completely apart. By 2009, the parties were sleeping in separate parts of the house, and after attempts at counseling failed, the parties abruptly separated on July 29, 2010.
The court noted that the billables trasnslate into seven billed hours every day of the year.
The court affirmed the trial court, rejecting the appeal arguments of both spouses. (Mike Frisch)
Wednesday, February 26, 2014
Disciplinary Counsel prosecuting the Tennessee judge accused of ethics violations arising from her changing a child's name from Messiah has filed a prehearing memorandum arguing that the name change and a subsequent interview violated judicial canons.
The memo acknowledges that there is no Tennessee case precisely on point and gathers precedents from other jurisdictions that have dealt with judges who inject personal religious beliefs into court proceedings.
The best of the bunch involves a Pennsylvania judge named named Fink:
Among the various charges lodged against the judge in Fink, was the inclusion of a bizarre incident where the judge interrupted a delinquency hearing and called for an in-chambers conference...At this meeting, [he] suggested that the boy might be possessed by demons and that a local priest should examine him to determine whether an exorcism was required. [He] then called a separate meeting with the boy's parents and told them the same thing.
He also had been found to regularly engage in religious commentary during Court hearings of various natures, and admittedly favored criminal defendants who professed belief a belief in Christianity.
We will post any response filed on behalf of the accused judge.
Update: There is now in place an order governing media coverage. The media is, among other things, directed to wear appropriate attire (unspecified) and comport themselves in a manner befitting the dignity of the proceedings. (Mike Frisch)
An attorney who had practiced since 1988 years without a bar complaint made his first disciplinary offense a huge one.
He was disbarred by the Maryland Court of Appeals for misappropriation, false statements and dishonesty.
The court affirmed findings that the attorney had engaged in a seven-year pattern of misappropriation of estate funds facilitated by a series of false statements to a probate court.
Given the dishonesty, and notwithstanding his clean record and significant community activities, the court rejected his plea for an indefinite suspension and imposed the ultimate sanction.
Practice pointer: The trouble all started with an overdraft notice to Bar Counsel resulting from a bounced escrow check. (Mike Frisch)
A recent case involving disciplinary charges against a North Carolina attorney raises an interesting issue regarding alleged unauthorized practice of law.
The State Bar's complaint states that the attorney was suspended from practice in North Carolina as a result of an earlier bar disciplinary complaint. It alleges that, while suspended, she represented a client in connection with the settlement of an insurance claim in Alabama.
The State Bar alleges that this constituted unauthorized practice.
The attorney's answer to the allegations denies any misconduct. Rather, the answer contends that the attorney assisted her nephew in an attempt to resolve an insurance claim without any expectation of compensation.
The answer contends that such assistance does not violate Alabama rules that govern the unauthorized practice of law. (Mike Frisch)
The North Carolina State Bar has filed charges against a former elected district attorney convicted of misconduct while in office.
JDNews.com reported on the offense
The former top prosecutor for part of southeastern North Carolina is pleading guilty to a misdemeanor charge that he neglected his duties by allowing an assistant to claim millage for her daily commute.
Former District Attorney Rex Gore pleaded guilty Monday in a plea deal that includes giving up his law license for six months. He was charged with a felony.
The former DA for Brunswick, Columbus and Bladen counties said he agreed to pay former assistant district attorney Elaine Kelley to commute hundreds of miles between her home and work.
Kelley was accused of claiming false business travel expenses. She pleaded guilty and repaid the state more than $14,000 she received for mileage.
Gore was district attorney for nearly 20 years until he lost the 2010 Democratic primary.
Tuesday, February 25, 2014
A disciplinary order is summarized on the web page of the North Carolina State Bar:
David J. Turlington III of Boone was censured by the Grievance Committee. Turlington employed other attorneys' names and names of law firms in a keyword advertising campaign through Google's AdWords program. He continued this practice after publication of 2010 FEO 14, which states that an attorney's purchase or use of another attorney's name in an Internet search engine's keyword advertising program is dishonest. The committee also found Turlington knowingly made a false statement of material fact by claiming the inclusion of inappropriate keywords was inadvertent.
An attorney who had two alcohol-related driving incidents prior to his 2009 bar admission picked up another charge after his admission.
The ensuing conviction involved what the court characterized as a "wet reckless" offense.
The California State Bar Court Review Department rejected his contention that the post-admission incident formed no basis for professional discipline and ordered a public reproval:
Importantly, Bravo was on notice that alcohol-related driving convictions are of serious concern to the State Bar because his second conviction impeded his admission to the Bar. Even so, he continued to drink and drive illegally, evidencing a lack of respect for the legal system and an alcohol abuse problem. The criminal court imposed punishment for Bravo’s crime; professional discipline is also warranted. We affirm the hearing judge’s order for a public reproval with conditions as the proper discipline under Kelley to protect the public, the courts, and the legal profession.
The State Bar sought a 30-day suspension. A dissent would impose that sanction. (Mike Frisch)
From the web page of the Tennessee Supreme Court
In a unanimous Opinion released today, the Tennessee Supreme Court affirmed the disbarment of a Memphis attorney from the practice of law for violating multiple Tennessee Rules of Professional Conduct in his representation of clients.
George E. Skouteris, Jr. represented clients in connection with personal injury lawsuits. In six cases between 2007 and 2011, Mr. Skouteris failed to safeguard his clients’ funds in his attorney trust account after settling their cases. Acting on complaints from Mr. Skouteris’s former clients, the Board of Professional Responsibility conducted an investigation into Mr. Skouteris’s alleged misconduct. The Board ultimately filed petitions for discipline alleging violations of 13 of the Rules of Professional Conduct.
After conducting a hearing and considering evidence that Mr. Skouteris had failed to safeguard his clients’ settlement funds in multiple instances, a board panel disbarred Mr. Skouteris from the practice of law and conditioned any future reinstatement of his law license on his making restitution to two clients who still had not received their settlement funds. Mr. Skouteris appealed to the Shelby County Chancery Court, which affirmed the board panel’s sanction. Mr. Skouteris then appealed to the Tennessee Supreme Court, alleging multiple procedural irregularities in the proceedings.
In the Opinion authored by Justice Sharon G. Lee, the Supreme Court found that the board panel’s decision to disbar Mr. Skouteris from the practice of law was not arbitrary, was supported by the evidence, and that any procedural errors were of no consequence due to the extent and severity of Mr. Skouteris’s misconduct. The Court determined that disbarment was appropriate in light of Mr. Skouteris’s prior disciplinary history, which includes a public censure and two private admonitions, and because misuse of client funds for any period of time is a serious ethical violation.
Read the Court’s Opinion in George Ernest Skouteris, Jr. v. Board of Professional Responsibility, authored by Justice Lee.
The New York Court of Appeals has affirmed the conviction of the defendant in a second-degree manslaughter case that involved the death of a child.
The court majority rejected a number of contentions. One issue was whether trial defense counsel was ineffective for failure to object to a Powerpoint presentation made by the prosecutor in closing argument.
A dissent would reverse on that (power) point:
At the end of summation, the prosecutor presented a six-minute Powerpoint, which consisted of one photo of the dead child. converted into a series of slides altered by imposing a caption on each slide, referencing the passage of 30-second intervals. Each slide projected the image of the child fading slightly more with each 30-second interval, until eventually the child's image disappeared and only a white screen remained....
...any doubts as to the emotional responses engendered by the presentation are easily dispelled by viewing the slide show, wherein the picture of a 21 month old child, in her pink pajamas, with white froth on her lips, her body prone and lifeless, is projected over and over, fading slightly with each slide, until all that remains is a white background and the memory of her tiny body. One simply cannot be but moved by this depiction.
The dissent viewed the Powerpoint as "an inaccurate presentation of the moments leading up to the child's death because the slide is a picture of her corpse, and as such is of no assistance to the jury's understanding of the issues..." (Mike Frisch)
Monday, February 24, 2014
A Hot Springs, Arkansas attorney has been suspended on an interim basis by the Arkansas Supreme Court based on a "great public harm" petition.
The Columbus, Indiana Republic noted the suspension
The Arkansas Supreme Court has suspended the law license of Hot Springs attorney Andrea Davis, with whom Attorney General Dustin McDaniel admitted having an extramarital relationship.
A lawyer for Davis said Friday she won't contest the suspension for the time being and that her first priority is getting "her life in order."
Arkansas Business reports (https://is.gd/DdwDui ) the interim suspension order didn't list a reason why she was disciplined.
Court records show Davis is charged in Garland County with two counts of felony theft by receiving and five misdemeanor counts of contempt of court.
The suspension could run from 90 days to indefinitely.
In 2012, McDaniel admitted having an inappropriate relationship with Davis, prompting him to drop out of the governor race.
The court order is linked here. (Mike Frisch)
The Virginia State Bar seeks comment on a proposed revision to the Imputed Conflicts Rule:
Pursuant to Part Six: Section IV, Paragraph 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on a proposed amendment to Rule 1.10 of the Rules of Professional Conduct.
This proposed Rule amendment is intended to avoid a situation in which a lawyer avoids the imputation of a conflict of interest by avoiding the knowledge that another lawyer in the firm has a conflict as to the representation. Under the current standard of “knowing” that another lawyer in the firm is prohibited from undertaking the representation, a lawyer can avoid the application of Rule 1.10(a), which would impute a conflict to him, by willfully failing to learn the information that establishes the existence of the conflict. The proposed Rule amendment imputes a conflict if the lawyer “knows or reasonably should know” that another lawyer in the firm is prohibited from representing the client. The proposed amendment adds a new Comment [2a] to explain that the failure to maintain or use a system for identifying conflicts may be deemed a violation of Rule 1.10(a), if proper use of the system would have identified the conflict.
My comment --a good idea. (Mike Frisch)
The Kentucky Supreme Court has denied reinstatement of a disbarred attorney, rejecting the support of Bar Counsel and the Character and Fitness committee as a basis to allow the attorney to resume practice
Though the Character and Fitness Committee was persuaded that Doan had made the requisite showings, this Court must instead agree with the Board of Governors in this instance. Apparently the Committee (and now the Office of Bar Counsel) believe that future safeguards—the conditions to be placed on Doan's reinstatement—would be sufficient to make up for any deficiencies in his proof. But that is not enough. Once reinstated, Doan would be a full member of the bar, with all the rights and privileges enjoyed by other members. Like all other members, he is required to show fitness for those rights and privileges before they can be bestowed. Conditional admissions, while sometime used, are no substitute for the ex ante reinstatement process.
The misconduct that led to disbarment was quite serious and included forging a judge's name on a purported court order. (mike Frisch)
A suspension of not less than two years without automatic reinstatement was imposed by the Indiana Supreme Court for ethics violations in several matters.
Here's one that may catch your eye
When moving his office location in 2009, Respondent threw several client files containing confidential client information into a trash bin, where they remained for several days. A newspaper reporter found information in the files relating to paternity and divorce cases, as well as Social Security numbers and financial records.
He mishandled bankruptcy matters and had local judges who testified as to his practice deficiencies
Judges before whom Respondent practices gave detailed testimony regarding Respondent's deficiencies in 16 different cases. They testified that Respondent has consistently practiced far below the average level of performance for attorneys in Elkhart County, that he has failed to respond to attempts by the judges to help him improve his deficiencies, that he failed to follow through with an agreement to contact the Indiana Judges and Lawyers Assistance Program ("JLAP") for an assessment, that Respondent's deficiencies have created a tremendous amount of trouble for court staff, and that his conduct hurts his clients and the court system. One judge testified that Respondent shows "a complete lack of respect for diligence and represent clients, professionalism and . . . an utter disregard of court orders.
The Goshen News reported his reaction to the court's order.
The article notes that the attorney's issues started with trash talk
Lehman’s conduct first came into the public eye in April 2009, when the then-owner of Constant Spring, 219 S. Main St., which is next to Lehman’s office, found legal papers in the bar’s Dumpster. The owner, Jason Oswald, told The News that he complained to Lehman about him using his Dumpster and asked for $40 from Lehman for the cost of emptying the trash container. Lehman agreed to pay the fee. In that article Lehman said he was sorry for the incident and had disposed of the files, thinking they would be taken to a landfill. He was clearing old files while moving his office from Main Street to Clinton Street.
The Illinois Review Board has held that an attorney's conversion of entrusted funds was dishonest.
The facts in this matter are not in dispute and are set out in greater detail in the Hearing Board's Report. In summary, in 2010 Respondent represented the seller in a residential real estate transaction. In October 2010, Respondent received a $1,000 check from the potential buyer to be held in escrow as earnest money. Respondent took the check with the understanding that he was to keep the $1,000 in escrow for the benefit of the buyer and seller. Instead, he gave the check to his father and his father deposited the check into his father's personal bank account. Respondent did not maintain a checking account or a client fund account. His father spent the $1,000, by depositing the check and using the proceeds. Respondent testified that over time, his father gave Respondent the proceeds and Respondent used the money for his own business and personal purposes.
Given the undisputed facts, Respondent engaged in the conversion of the escrow funds. The conversion was knowing, not inadvertent. Respondent took no steps to segregate the escrow money; he gave the money to his father. Accordingly, this conversion can be distinguished from those cases cited by the Hearing Board where the attorneys converted client funds by depositing the money for safekeeping and later inadvertently, or through sloppy bookkeeping, used the funds. Cf., In re Timpone, 157 Ill.2d 178, 195, 623 N.E.2d 300 (1993); In re Mulroe, 2011 IL 111378 pars. 22-23. Here, Respondent knew he was not safekeeping the funds when he gave the check to his father. We find that, as a matter of law, Respondent's conversion was dishonest, and he violated Rule 8.4(c).
The board recommended as discipline a four-month suspension followed by probation for a year. If the probation is vuiolated, the board would recommend suspension until further court order. (Mike Frisch)