Friday, August 28, 2015

Actual Innocence And Suing Defense Lawyers

A convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence, according to a decision issued today by the Kansas Supreme Court.

This case presents the question of whether a criminal defendant, whose conviction has been reversed in a K.S.A. 60-1507 proceeding and who has entered a plea to different charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27  L. Ed. 2d 162 (1970), may pursue a legal malpractice claim against trial and appellate counsel without first demonstrating actual innocence. We also are asked to decide whether the Board of Indigents' Defense Services (BIDS) is subject to suit in the malpractice action and whether suit was timely filed under the applicable statute of limitations.

 We affirm the district court judge's decision that BIDS cannot be a party defendant but otherwise reverse. Proof of actual innocence is not required to pursue a legal malpractice claim of this type, and this action was timely filed.

The court held that the agency could not be sued but that, in these circumstances trial and appellate counsel could be

After careful consideration of the competing authorities from other states, we hold that a Kansas criminal defendant is "exonerated" for purposes of accrual of his or her civil legal malpractice claim against counsel on the date that a court grants relief from the conviction on the basis of ineffective assistance of counsel. That relief may come as the result of a K.S.A. 60-1507 motion or some other procedural mechanism in the district court or in one of the appellate courts.

Further

...actual guilt—which if present in these cases will always have occurred prior in time to the alleged legal malpractice—is akin to other legal doctrines of causation and liability such as comparative fault and assumption of risk. All of these doctrines ask

 

"how plaintiffs might be responsible for their own injuries. Guilt-in-fact has the same focus. In other words, if plaintiffs actually engaged in criminal conduct, then they are partially responsible (and more culpable) for their own resulting injuries (such as incarceration). Under these circumstances, the plaintiff's own conduct precludes his or her recovery, just as with other conventional defenses." Shaw v. State, Dept. of Admin., 861 P.2d 566, 572 n.9 (Alaska 1993).

 

 Whether Kansas will permit actual guilt to be pled and proved as a true affirmative defense or will simply require the traditional proximate causation element in the criminal defendant's subsequent malpractice case—thereby permitting a legal malpractice defendant to argue to the jury that the criminal defendant's actual guilt is an intervening and superseding cause of his injury—remains to be seen. See, e.g., Shaw, 861 P.2d at 572 ("Rather than require the plaintiff to prove his actual innocence . . . the defendant may raise the issue of the plaintiff's actual guilt as an affirmative defense. The attorney . . . as the party raising the affirmative defense, will thus have the burden of proof by a preponderance of the evidence as to the actual guilt of the plaintiff."); Desetti v. Chester, 772 S.E.2d 907, 910 (Va. 2015) ("a legal malpractice plaintiff who alleges that malpractice occurred during the course of a criminal matter must plead facts establishing this element of the cause of action: that the damages to be recovered were proximately caused by the attorney's negligence but were not proximately caused by the legal malpractice plaintiff's own criminal actions").

Resolving these questions must wait for another case on another day.

 (Mike Frisch)

August 28, 2015 | Permalink | Comments (0)

Reprimand For Suit Against Client Who Filed Bar Complaint

An attorney who (through counsel) filed a defamation action against a former client who had complained to disciplinary authorities has been publicly reprimanded for authorizing the filing of a frivolous suit by the Louisiana Attorney Disciplinary Board

The Respondent’s conduct was knowing. Mr. Cashio’s intentional pursuit of this cause of action, which arose in part from the complaint Mr. Searles filed against him with ODC, caused injury to Mr. Searles in that he was forced to defend the action before the court. Moreover, the potential harm of a “chilling effect” could result if respondents, or their attorneys, were allowed to initiate legal action against complainants as a result of their communications with the Board, hearing committees or disciplinary counsel relating to lawyer misconduct. The aggravating factors present include: a refusal to acknowledge the wrongful nature of the conduct and substantial experience in the practice of law. The mitigating factor of no prior disciplinary record is also present...

Like respondents Mr. Raspanti and Mr. Mordock, Mr. Cashio, through his counsel of record, Mr. Hilburn, urged a cause of action strictly prohibited by the Louisiana Supreme Court Rule prohibiting a lawsuit against a complainant predicated on a complaint filed with the Office of Disciplinary Counsel. As such, Mr. Cashio has similarly violated the spirit of Rule XIX, §12(A). Such conduct constitutes a violation of Rules 3.1, 8.4(a) and (d). Like Mr. Raspanti, Mr. Cashio’s conduct was knowing. However, the Court in Raspanti concluded that a public reprimand was appropriate due to the existence of several mitigating factors, several of which apply to Mr. Cashio: both respondents held a strong belief that they were not engaging in inappropriate behavior, and both were experienced attorneys with no disciplinary history. Considering the similar circumstances between the matter at hand and the  Raspanti and Mordock cases, the Board finds that Mr. Cashio should be publically reprimanded, rather than placed on a fully deferred one year suspension, subject to a six month period of unsupervised probation.

The board, over a dissent, also found that the conduct was prejudicial to the administration of justice. (Mike Frisch)

 

August 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

The Alderman

Summary of an Illinois Hearing Board report and recommendation in a matter involving an attorney named Cahnman

The Respondent was charged in a three-count Complaint with having a conflict of interest and engaging in dishonesty. The charges of conflict of interest were based upon the fact that Respondent, while serving as an alderman for the City of Springfield, represented clients in traffic and criminal cases prosecuted in the circuit court, and Springfield Police were the arresting officers in those cases. (Counts I-III). The dishonesty charged in Counts I and III was based upon Respondent's failure to disclose the foregoing representations to the Springfield City Council. The Hearing Board found that charges of conflict of interest were not proved and, thus, that Respondent's failure to disclose the representations was not dishonest conduct.

In regard to Count II, the Hearing Board found that the charge of dishonesty was proved. While Respondent was representing a client named Christian in a traffic case, Christian, though another attorney, filed a lawsuit under the Illinois Freedom of Information Act (FOIA) against the City of Springfield. Respondent, as alderman and without disclosing his attorney-client relationship with Christian, participated in Springfield City Council sessions, closed to the public, at which attorneys for the City discussed legal strategies, settlement prospects and other issues related to Christian's FOIA lawsuit against the City. The Hearing Board found that Respondent engaged in dishonesty by participating in the foregoing confidential discussions without disclosing his attorney-client relationship with Christian.

The Hearing Board recommended that Respondent be suspended for a period of 90 days.

The hearing board noted that he had previous discipline for dishonesty and

 After considering the nature and seriousness of the Respondent's misconduct, the aggravation and mitigation shown by the evidence, the cases discussed above, and the purpose of the attorney disciplinary system, we conclude that a suspension is appropriate in this matter. We believe a suspension of ninety days is sufficient to preserve public confidence in the courts and the legal profession, impress upon Respondent the need for him to comply with ethical requirements, and sufficiently impress upon others the seriousness of the misconduct in this case.

(Mike Frisch)

August 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 27, 2015

Rule 1.18 Applies; No Misconduct Found

An attorney's single meeting with a prospective client did not create a disqualifying conflict to later adverse representation for bar disciplinary purposes, according to an opinion of the North Dakota Supreme Court.

Shaun Bergquist filed a disciplinary complaint against [attorney] Kuntz, alleging she had a conflict of interest when she agreed in July 2012 to represent him in a proceeding to modify his parenting schedule against his child's mother, Sara Wyrick, after Kuntz had consulted with his child's maternal grandfather, Paul Berger, in May 2011 about appealing the initial primary residential responsibility determination and received a $100 retainer to take the appeal.

Kuntz's response to Bergquist's complaint stated she met with him for an initial consultation on June 18, 2012, to review his file for assessment of the merits and the procedure to modify his parenting schedule with Wyrick, also known as Hickey and formerly known as Berger. Kuntz asserted her normal practice for all initial consultations was to run a conflict check and advise the individual that she was meeting in a limited capacity to provide basic information for an informed decision on whether to proceed with retaining a lawyer. According to Kuntz, she clearly advised individuals during initial consultations that she was not their lawyer as a result of the consultation and she did not then agree to be their lawyer. Kuntz stated she was subsequently retained by Bergquist in July 2012 to represent him in his motion to modify his parenting schedule against Wyrick, and she prepared the case for a hearing.

 Shortly before a scheduled April 2013 hearing on Bergquist's motion, the district court, on motion by Wyrick, disqualified Kuntz from representing him in that proceeding because she had met with Berger in May 2011 about representation after the initial primary residential responsibility determination. The court explained: (1) "the purpose of the consultation [with Berger] was to determine whether Ms. Kuntz would represent the Defendant in an effort to change the custodial decision reached in the course of the first trial;" (2) "Berger paid a $100 consultation fee;" (3) "discussions included a retainer fee that Ms. Kuntz would require;" (4) there were no subsequent contacts and "Defendant apparently decided she could not afford the fee or for other reasons did not respond;" and (5) Kuntz did not recall the consultation with Berger, but agreed that she routinely met with potential clients for consultations and charged an initial fee of $100.

The court dismissed the ethics charges against the attorney. The meeting was governed by Rule 1.18 (duties to prospective clients) rather than Rule 1.9 (duties to former clients)

Here, Kuntz explained she advised potential clients during every initial consultation that she was meeting with them in a limited capacity and that she was not their attorney as a result of the consultation. She said she did not agree to become a potential client's attorney until review of the information and deadlines, if any, discussed in an initial consultation, review and signature of a fee contract, and payment of a retainer in an amount determined during the consultation. She stated that during her initial consultation with Berger, she did not obtain or utilize any information that was adverse to the interests of Berger or Wyrick. She asserted she did not form an attorney-client relationship with Berger, and she did not have an express agreement for representation, a reasonable expectation of representation, or representation implied from the circumstances of that consultation. Kuntz's consultation notes and the handwritten notes from a telephone conference leading up to Kuntz's initial consultation with Berger reflect the disclosure of general information about the earlier custody proceeding, but do not disclose the exchange of any legal advice or confidential information. The evidence in this record does not establish Kuntz provided legal advice to Berger during the initial consultation or the full extent of the information that may have been exchanged during that consultation. The evidence in this record does not clearly and convincingly establish that the nature and the circumstances of the information exchanged during Kuntz's initial consultation with Berger created a lawyer-client relationship.

(Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Staff Attorney At Bismarck Firm Engaged In Unauthorized Practice

The North Dakota Supreme Court has admonished an attorney for the unauthorized practice of law.

From about September 2010 until late October or early November 2011, Gerber worked as a "staff attorney" in the Bismarck office of Fredrikson & Byron, P.A., a law firm based in Minneapolis, Minnesota. While in Bismarck, Gerber worked as a registered lobbyist, conducted title research, and assisted in drafting title opinions. Although Gerber was admitted to practice law in Minnesota in October 2010, Gerber has never been licensed to practice law in North Dakota.

The issue came to light when he applied for North Dakota bar admission. He later found a job in Minneapolis and withdrew the application.

The court

Here, we conclude clear and convincing evidence establishes that Gerber and his law firm held him out as someone authorized to practice law in North Dakota. The Fredrikson firm's news release plainly states Gerber was hired as an attorney in the firm's Bismarck office, identifying him as a "government relations specialist" and a "staff attorney." The release also states Gerber's "energy practice focuses on title examination and oil and gas law." The news release contained no disclaimers alerting the public to the fact that Gerber was not admitted to practice in North Dakota...

...in addition to the law firm's news release, evidence establishes that Gerber identified himself as a "staff attorney" while working in Bismarck. Gerber self-identified as a "staff attorney" on his application for admission to the North Dakota Bar. He also identified himself as a "staff attorney" and a "government relations attorney" in an affidavit clarifying his duties to the State Board of Law Examiners. Gerber admittedly worked as a "staff attorney" or "government relations attorney" in Fredrikson's Bismarck office for over a year, logging 2,476.40 billable hours, of which 1,686.34 hours were billed to clients. Based on this record, we conclude clear and convincing evidence establishes that Gerber violated N.D.R. Prof. Conduct 5.5(d).

The court rejected the claim that the attorney's due process rights were violated. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Attorney "Sounded Like An Animal Being Killed"

The Washington State Supreme Court has imposed a suspension of a year and fitness for misconduct that involved disruptive courtroom behavior and a false police report.

The conduct in a highly contentious custody matter

Throughout the trial, [attorney] Abele was repeatedly admonished for interrupting the court and other counsel. She slammed objects on the table and made loud comments when Judge Farris ruled against her. Though Abele's comments and actions were distracting to opposing counsel, she did not stop when the court instructed her to do so. Instead, Abele would falsely respond, "I did not say anything" and continue to engage in disruptive behavior.

In a later proceeding

Abele repeatedly interrupted Judge Farris, even yelling to express her disagreement. When Judge Farris directed staff to summon security, Abele announced, "I'm going to jail. I'm going to jail," placing her hands over her head, crossed at the wrists as if being handcuffed. Abele walked out of the courtroom while court was still in session, causing the proceedings to come to a halt. Abele reentered the courtroom and announced, "I'm leaving. I'm out of here .... I'm abstaining completely .... Good-bye."

...On Abele's return, Judge Farris continued to make a record of Abele's behavior. Judge Farris stated that in the previous hearing Abele had made "loud noises that to me sounded like an animal being killed" and that "I have been in these courts for 30 years, 18 as a judge. I have never heard anything - have never heard any lawyer make any kind of noise or do anything like that before." Abele again yelled at the judge, attributing her previous scream to a hip injury and claiming that her yelling was the result of a hearing disability. Judge Farris held Abele in contempt "based on your screaming, yelling, jumping up and down in my courtroom, stomping and then stomping out and refusing to represent your client .... " Abele responded, "Your Honor, I appreciate your lecture. Could you just tell me how much I have to pay in a fine so I can get rid of it and take care of it and resolve this issue with you?"

She was held in contempt which she promptly purged.

The second matter involved a false report that a deputy marshall had tripped her

The hearing officer properly resolved this issue by making a permissible credibility determination. Abele argues that she did not knowingly file a false report because she believed that she was tripped. The WSBA argues that Abele knew that she wasn't tripped and that she invented the complaint because she wanted to get the marshals in trouble. It was up to the hearing officer to determine which version was more credible, and after considering all the evidence, he found that Abele's version of events was not credible and that the WSBA explanation was the only reasonable explanation.

The court concluded that suspension was required

Abele's briefing also shifted blame for her misconduct to Judge Farris. The hearing officer specifically found that Abele's assertion that her outbursts were caused by a hearing disability was not credible, and he explicitly rejected her assertions that Judge Farris's behavior provoked her outburst. These factual findings are unchallenged. The hearing officer also found, and Abele does not challenge, that Abele's remaining excuses and explanations were not credible. We therefore reject Abele's contention that the aggravating factor "refusal to acknowledge wrongful nature of conduct" does not apply...

The presumptive sanction for a knowing violation of these rules is suspension. We therefore adopt the Board's recommendation in full and order that Abele be suspended from the practice of law for one year, that she complete an evaluation to determine her fitness to practice prior to being reinstated to the practice of law, and that she pay all costs and expenses, including attorney fees awardable under the ELC 13.9.

The court rejected the "stress of litigation" as a mitigating factor. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (2)

Bar Alleges Misconduct For Domestic Battery

The Illinois Administrator has filed a complaint alleging the following

On the evening of September 20, 2014, Respondent and his spouse...were at a neighbor's home for a party.

In the early morning hours of September 21, 2014, Respondent and [his spouse] drove home where an argument ensued in the bedroom.

 Respondent kicked [her] in the head and chest repeatedly as Smart lay on the bedroom floor.

Respondent left the room and returned a short time later and again kicked [her] in the head and chest repeatedly while [she] lay on the bedroom floor.

By the actions described...Respondent knowingly, without legal justification caused bodily harm to...a family member.

At all times alleged in this Complaint there was a criminal statute in Illinois, 720 ILCS 5112-3.2(a)(1), which outlawed causing bodily harm to a family member.

At all times alleged in this Complaint there was a criminal statute in Illinois, 720 ILCS 5/12-3.2(a)(2), which outlawed making physical contact of an insulting or provoking nature with a family member.

The complaint states that the attorney was convicted of misdemeanor domestic battery. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Harsher Discipline By New York For New Jersey Reprimand

An attorney who was publicly reprimanded in New Jersey had the reciprocal sanction upped to a 90-day suspension by the New York Appellate Division for the Third Judicial Department.

we note the presence of aggravating circumstances herein, including, among other things, Morin's failure to respond to the subject motion and his failure to file a copy of the order of the Supreme Court of New Jersey with this Court, as required by Rules of the Appellate Division, Third Department (22 NYCRR) § 806.19 (b). Accordingly, under all the facts and circumstances presented, and especially noting Morin's underlying misconduct – depriving his client of legal recourse in certain land use litigation after he misrepresented to his client, for a period of approximately two years, that an appeal in the matter remained pending, despite his knowledge that said appeal had been previously dismissed for lack of prosecution – and his evident disregard for his fate as an attorney in this state, we conclude that he should be suspended from the practice of law for a period of 90 days.

(Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

No Bono

A fully-stayed suspension of six months has been imposed by the Ohio Supreme Court for an attorney's attempt to initiate a romantic relationship  with a client that he represented on a pro bono basis in a custody matter.

In the consent-to-discipline agreement, Hubbell stipulates to the facts alleged in relator’s complaint and agrees that his conduct violated Prof.Cond.R. 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed between them prior to the initiation of the client-lawyer relationship). The parties agree to the dismissal of the alleged violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).

The allegations in the bar action are linked here. He allegedly sought a relationship over a period of months, plying her with beer on one occasion.

She rebuffed him once by telling him she was sick. Then

After [the client] rebuffed respondent, he sent a highly inappropriate and sexually suggestive email soliciting nude photographs and seeking to initiate a physical relationship with [her]. After receiving the email, [she] brought a family member with her when she met with Respondent.

At the end of April 2013, respondent contacted [her] and informed that he had left his wife and invited her over to his new residence. She declined.

The court's sole condition is that he not engage in further misconduct, which is every lawyer's obligation. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 26, 2015

Sex Without Adverse Impact Draws Public Censure

Sex with a divorce client merits a public reprimand, according to an opinion of the South Carolina Supreme Court.

Respondent admits he engaged in a sexual relationship with Client while representing her in a divorce proceeding. Respondent maintains, however, he gave Client competent and diligent representation and the relationship did not impact the representation. Respondent counseled Client as to her options and the possible consequences and risks associated with the options. Client was adamant in her demands that her husband only have restricted visitation with their child and that she wanted to be divorced from her husband.

The divorce action was filed on Client's behalf alleging husband's habitual drunkenness as grounds for the divorce. The divorce was granted to Client on those grounds. Husband was granted very restricted visitation with the child based on his continued alcohol abuse. Alimony was not sought by Client as she earned considerably more than her husband. Alimony was barred as to the husband as he could not deny his contribution to the breakup of the marriage.

Respondent and Client ended the physical aspects of their relationship not long after the final decree was issued in July 2011. Respondent and Client communicated after the physical relationship ended as respondent answered Client's questions regarding the wording or application of the final divorce decree.

Sometime later, Client, represented by new counsel, brought another action against her now ex-husband to terminate his parental rights based on his continued abuse of alcohol and the threat he posed to the child. Although he did not represent Client, respondent admittedly became involved in the case when Client was presented with a crisis1 and Client's new counsel was out of town and unavailable. Respondent's only involvement in this action consisted of counseling Client during the crisis.

ODC asserts respondent fully cooperated in its investigation of this matter, that he showed genuine remorse and fully admitted responsibility for his actions, and that his representation of Client was not adversely affected by his misconduct.

The attorney admitted that the conduct violated ethics rules. (Mike Frisch)

August 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Proposed Break For Escrow Violations

A relatively lenient sanction for misuse of client funds has been recommended by an Illinois Hearing Board.

Respondent represented eight clients in obtaining  reductions in their property tax assessments and property tax refunds. After  receiving property tax refunds on behalf of these clients and before paying  them, Respondent used all or a portion of the funds received for his own  purposes. In total, he used approximately $125,000 in client funds. While still  serious, we found Respondent's actions to be the result of poor accounting  practices and not dishonest motives. There were numerous facts that mitigated  his conduct. We recommend Respondent be suspended from the practice of law for  one year, with the last seven months stayed by an eighteen-month period of  probation with conditions.

The story

Respondent's clients never complained about him to the ARDC and never contacted him regarding the whereabouts of their money.  Respondent still represents some of clients listed in the Complaint.

The ARDC investigation into these matters first  began in September 2011 when Respondent's client trust account was overdrawn and  the bank notified both Respondent and the ARDC regarding the overdraft. His  client trust account was again overdrawn in October and December 2011 and for  the last time in December 2012, and his bank again notified both him and the ARDC regarding these overdrafts. The ARDC  contacted Respondent directly regarding each bank notification. Despite being  first notified about the ARDC investigation in 2011, Respondent did not perform  an audit of his client trust account in 2011 or 2012.

This was a good if somewhat late-blooming idea

In early 2013, Respondent read the Illinois Rules  of Professional Conduct relating to trust account procedures. In April 2015, he  completed a client trust account webinar. He accepts full responsibility for not  maintaining properly his client trust account and expressed remorse and regret  for his conduct.

The board found considerable compelling mitigation. (Mike Frisch)

August 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand For Improper Access To Dating Partner Information

A public reprimand has been imposed by the Ohio Supreme Court for the following misconduct

On October 6, 2014, relator, disciplinary counsel, charged Rosen with professional misconduct for conduct that occurred between August 2007 and August 2008 while Rosen, then an Assistant Attorney General in the Ohio Attorney General’s Office, was serving as general counsel for the Ohio Law Enforcement Gateway (“OHLEG”). OHLEG allows criminal justice agencies and their personnel access to several data systems, some of which contain confidential information reserved for law-enforcement personnel only. Relator alleged that Rosen improperly accessed the OHLEG system to seek information about four individuals that either she or her friends were dating.

The discipline was imposed on the consent of the parties.

More on the story from Cincinnati.com. (Mike Frisch)

August 26, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Tuesday, August 25, 2015

Father's Day

The Maryland Court of Special Appeals has held that a man is the father of and must support a child born via donated sperm

Appellant Stephen Sieglein (“Father”) and Appellee Laura Schmidt (“Mother”) were married in a religious ceremony in Havre de Grace, Maryland on April 12, 2008. Two years later, both parties enrolled in an “in vitro” fertilization plan and signed the contracts and documents necessary to participate. A child conceived via donated egg and donated sperm was born to the parties.

The parties separated shortly after the birth of the child, and Father contested legal parentage, seeking to eschew any rights or obligations regarding the minor child. On October 11, 2012, the Circuit Court for Harford County issued a Memorandum Opinion and Order establishing legal paternity and Father’s joint and several responsibility for support of the minor child...

Father now entreats this Court to declare, inter alia, that because the child is “not the natural child of the parties, nor is he the adopted child of the parties[ but] . . . was conceived in[]vitro. . . through the employment of [anonymously] donated eggs and donated sperm,” he is not a parent and bears no legal responsibility for the child under Maryland law.

Yes, he is and he does

Because Mother and Father, during their marriage, willingly and voluntarily agreed to conceive a child through assisted reproductive services using anonymously donated genetic material and that volitional action resulted in the birth of a child, we hold that Maryland Code (1974, 2011 Repl. Vol.), Estates and Trusts Article (“ET”) § 1-206(b) applies to establish that both spouses are the legal parents of the minor child. Therefore, both spouses are “jointly and severally responsible for the child's support, care, nurture, welfare, and education.” Maryland Code (1984, 2012 Repl. Vol.), Family Law Article (“FL”) § 5-203. Additionally, we conclude that the circuit court did not abuse its discretion in issuing an injunction against Father, or in finding Father to be voluntarily impoverished.

The parties had offspring from prior relationships. He had expressed his desire not to further procreate with surgery

the parties met through an online dating site. As Father emphasizes, his online dating profile stated: “[w]ant kids: No.” Notwithstanding, the parties began a relationship and were married in April of 2008.

Following their marriage, Mother expressed a desire to have another child. She was unable to conceive, however, and Father, after some discussion and evaluation, declined to have his vasectomy reversed. Mother and Father sought assisted reproductive services from Shady Grove Fertility Reproductive Science Center including: in vitro fertilization, intracytoplasmic sperm injection, assisted hatching, and embryo freezing.

On the parentage issue

In Maryland, the presumption of legal parentage established under ET § 1-206 may only be rebutted after a showing that proceedings to disestablish parentage are in the best interests of the child. See Evans, 382 Md. at 629. No argument has been made in this case that setting aside paternity is in the best interests of the child. Certainly, it defies sound public policy to create, through the strained application of a statute, a subset of children who—based on the specific physical method of their conception—“ha[ve] no natural parents because we d[o]n’t know who the anonymous donors are.” As legal parent of the minor child, born during his marriage, Father is “jointly and severally responsible for the child's support, care, nurture, welfare, and education” under FL § 5-203

(Mike Frisch)

August 25, 2015 | Permalink | Comments (0)

Attorney Suspended For Public Shaming Of Clients

The Colorado Presiding Disciplinary Judge imposed a suspension of 18 months consecutive to a prior suspension of an attorney who had reacted badly to web criticism

A married couple retained Underhill to help with the husband’s ongoing post-decree dispute with his former spouse. The clients signed a fee agreement outlining the charges for certain tasks. The clients could not pay all the fees up front. Underhill verbally agreed to monthly payments, with an initial $1,000.00 down payment, but he did not explain that he reserved the right to demand full payment at his sole discretion. He collected an additional $200.00 for a “filing fee,” though he took no action that required such a fee. Underhill failed to adequately communicate with the clients and did not inform them of opposing counsel’s objections to their discovery responses. Underhill later threatened to withdraw in two business days unless the clients made full payment of all fees. When the couple terminated the representation, Underhill declined to refund the $200.00 “filing fee.” Through this conduct, Underhill violated Colo. RPC 1.4(a) (a lawyer shall reasonably communicate with the client); Colo. RPC 1.4(b) (a lawyer shall explain a matter so as to permit the client to make informed decisions regarding the representation); Colo. RPC 1.5(a) (a lawyer shall not charge an unreasonable fee); Colo. RPC 1.5(b) (a lawyer shall communicate, in writing, the rate or basis of the fee and expenses within a reasonable time after commencing representation); and Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including by refunding unearned fees). The couple then posted complaints about Underhill on two websites. He responded with internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions, in contravention of Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client) and Colo. RPC 1.9(c)(2) (a lawyer shall not reveal information relating to the representation of a former client).

Underhill then sued the couple for defamation. Although he knew that the couple had retained counsel, Underhill communicated with them ex parte on several occasions, even though their counsel repeatedly implored him not to do so. Through this conduct, Underhill violated Colo. RPC 4.2 (a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by counsel in the matter, unless the lawyer has the consent of the opposing counsel). When the lawsuit was dismissed, Underhill brought a second defamation action in a different court, alleging without adequate factual basis that the couple had made other defamatory internet postings. Underhill thereby violated Colo. RPC 3.1 (a lawyer shall not bring a proceeding unless there is a basis in fact for doing so that is not frivolous) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct that prejudices the administration of justice).

In a second client matter, Underhill represented another couple in the renegotiation of a lease for their business. The couple eventually terminated Underhill’s services. Dissatisfied, they posted a complaint about Underhill on the Better Business Bureau website. Underhill publicly replied by publishing an attorney-client communication on the internet and making uncomplimentary observations about and accusations against the couple based on confidential information related to the representation. In so doing, Underhill violated Colo. RPC 1.6(a) or 1.9(c)(2).

The earlier suspension was for three months and a day, imposed after he had violated probation. (Mike Frisch)

August 25, 2015 in Bar Discipline & Process | Permalink | Comments (1)

From Fantasy To Disbarment

A former magistrate has been disbarred  in Colorado for sex crimes.

The Denver Post had reported on the criminal case

 A 59-year-old man who is a former Arapahoe County magistrate was sentenced Monday to 90 days of in-home confinement after pleading guilty earlier this year to sexual exploitation and attempted unlawful sexual contact.

Jeffrey Allan Lane, of Littleton, will serve the sentence as a condition of eight years of sex offender intensive supervised probation and five years of concurrent probation, prosecutors say. He pleaded guilty to the charges in February.

Lane was arrested last year after prosecutors say investigators found a Craigslist posting where Lane was soliciting sex from a 14-year-old boy who could meet him "after school."

Lane exchanged information with the boy, who was really a sheriff's office investigator, according to a news release from the 18th Judicial District Attorney's Office.

"(Lane) confessed that he was indeed the person who was soliciting sex from a minor on Craigslist," the release said. "(He) acknowledged exchanging sexual messages and a picture with the undercover detective he thought was 14, but stated the conversations were just 'fantasy.'"

(Mike Frisch)

August 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Prom Dresses And Bar Admission

The North Carolina Supreme Court has affirmed a recommendation of the Wake County Superior Court to deny a petition to sit for the bar examination

In May 2010, petitioner received her Juris Doctor degree from North Carolina Central University School of Law. After law school, petitioner initially applied for, and later received, a license to practice law in Washington, D.C. In October 2010, while her District of Columbia Bar application still was pending, petitioner applied to take the North Carolina Bar Examination. In her North Carolina Bar application, petitioner disclosed forty incidents between 1983 and 2004 in which she had been accused of criminal offenses including forgery, larceny, shoplifting, writing worthless checks, using a stolen credit card, possessing stolen property, and obtaining property by false pretenses. Petitioner acknowledged that many of these incidents had resulted in criminal convictions.

A hearing was held on the North Carolina application 

Petitioner testified at the hearing in support of her application and explained that, beginning in the 1980s, she committed a number of criminal offenses, which she characterized as being motivated by financial necessity. Yet she also stated that her life started to change after a particular incident of shoplifting that occurred in 2002. Petitioner testified that on this occasion, which occurred the day of her twin daughters’ prom, she had attempted to take prom dresses from a department store by concealing them in a bag. Petitioner stated that after she was caught and her daughters learned what she had done, the extent of her criminal conduct was “put in front of [her] face.” She testified that subsequently, she began going to counseling and started working for her father. She testified that she had not stolen anything since the incident in 2002. Petitioner stated that she had been truthful about her criminal history when applying to law school, the District of Columbia Bar, and the North Carolina Bar. Although petitioner acknowledged that she had “neglected” to include some of her criminal history in her law school application and her two bar applications, she testified that the omissions occurred because she “just forgot.” Petitioner stated that she had amended each application to correct the omissions.

There were discrepancies in the various explanations

the Board [of Law Examiners] entered an order denying petitioner’s application. In its order the Board noted that petitioner had committed a substantial number of criminal offenses throughout the 1980s and 1990s. The Board found that petitioner had failed to disclose six criminal convictions on her law school application and that she had received a letter of caution from the school “remind[ing]” her of her “obligation to provide full disclosure.” In addition, the Board stated that petitioner had omitted seven criminal charges on her District of Columbia Bar application and six charges of failure to appear on her North Carolina Bar application. The Board discussed how petitioner’s accounts of the 2002 shoplifting incident differed. The Board explained that in petitioner’s initial written account, she asserted that “she had taken the prom dresses (previously purchased) to a tailor to be hemmed,” and after unsuccessfully attempting to steal undergarments to go with the dresses, she eventually produced receipts for the dresses and had them returned to her. The Board noted that this written account differed from petitioner’s testimony describing the event and concluded that the differences “showed a lack of candor.”

...the Board concluded that petitioner had failed to carry her burden of demonstrating that she possesses the requisite character for admission, partly because of her past criminal conduct and partly because of numerous misstatements and omissions that were revealed by the evidence. The evidence establishes that petitioner submitted inaccurate accounts of the 2002 shoplifting incident to both the Board and the District of Columbia Bar Committee. Her initial narrative contained specific but inaccurate details, such as taking the prom dresses to be hemmed, being falsely accused of shoplifting the dresses, and having the dresses later returned to her. Subsequently, petitioner submitted to the District of Columbia Bar Committee a revised statement asserting that the incident occurred on the night before the prom and that she stole prom dresses and shoes, while in her North Carolina Bar application, petitioner stated that the incident happened a week before the prom. Petitioner acknowledged that she “should have re-amended” her North Carolina Bar application to reflect this revised statement. Finally, during her testimony before the Board, petitioner stated that the incident occurred both on the day of the prom and the night before. When she was asked “exactly” what she attempted to take, she responded, “It was the dresses,” and when asked whether she attempted to take “[a]nything else,” she said, “No.” These three accounts each differ significantly with respect to factual details such as when the incident occurred and what was taken. The Board did not err by considering petitioner’s testimony and other statements and concluding that she demonstrated “a lack of candor.”

The petitioner was profiled on the web page of her law school with a link to a story from the News & Observer.

One notable aspect of the opinion is that it points out how different bar admission can be from jurisdiction to jurisdiction. (Mike Frisch)

August 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, August 24, 2015

Patient Judge Not Recused

The Tennessee Court of Appeals  agreed with a trial judge that a comment made in a medical malpractice matter did not demonstrate bias requiring her recusal.

The comment

I can tell [a deponent]  how awfully I was treated in the emergency room recently, but that’s a whole other subject.

The court here

Appellants argue that the trial judge‘s negative characterization of the treatment she received at Methodist University creates an appearance of bias towards Methodist Healthcare and its employees. The judge made the comment at issue on the record during a discussion pertaining to the deposition of Methodist Healthcare CEO Gary Shorb in an unrelated case. In arguing against the deposition, one of the attorneys indicated that Mr. Shorb was not in his office being deposed each day, to which the trial judge responded as follows: "Well, I‘m sorry he‘s not. I can tell him how awfully I was treated in the emergency room recently, but that‘s a whole other subject." As she subsequently explained in a discussion off the record, the judge‘s statement was made in reference to her experience in the emergency department at Methodist University. If required to consider the trial judge‘s statement standing alone, a reasonable person might infer bias against Methodist Healthcare and its employees; however, "[a]ny comments made by the trial court must be construed in the context of all the facts and circumstances to determine whether a reasonable person would construe those remarks as indicating partiality on the merits of the case." Alley, 882 S.W.2d at 822 (citations omitted). Construed in its appropriate context, the judge‘s comment is not sufficient to require recusal...

...we cannot conclude that a reasonable person, knowing all of the facts known to the judge, would have any reasonable basis for questioning the judge‘s ability to act impartially as thirteenth juror in either of the cases before us. It appears the trial judge‘s comment was little more than a lighthearted reference to the unpleasantness that often accompanies emergency room visits. Though perhaps ill-advised, if only because of the time and expense it has taken to resolve the motions for recusal, the comment does not indicate partiality on the merits of the case when construed in the context of all the facts and circumstances.

(Mike Frisch)

August 24, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, August 23, 2015

She's A Rebel

There are not many places where an attorney can fail to cooperate in a bar investigation into escrow account overdrafts, default on bar charges and avoid suspension as final discipline.

One place where that scenario can play out is New Jersey.

The state Supreme Court  reprimanded an attorney based on a Disciplinary Review Board recommendation

 Although an admonition would ordinarily suffice for respondent's recordkeeping irregularities and failure to cooperate with the DEC investigator, we consider, as an aggravating factor, respondent’s default. In a default matter, the appropriate discipline is enhanced to reflect the attorney’s failure to cooperate with disciplinary authorities. "A respondent’s default or failure to cooperate with the investigative authorities operates as an aggravating factor, which is sufficient to permit a penalty that would otherwise be appropriate to be further enhanced." In re Kivler, 193 N.J. 332, 342 (2008). Because respondent allowed the matter to proceed to us by way of a default, we determine that the otherwise appropriate level of discipline for her conduct (admonition) should be enhanced to a reprimand.

Notably, however, she has been on interim suspension for the misconduct since May 2014.

It appears that the attorney may be the same person who gained fame as counsel to Phil Spector in his murder trial. (Mike Frisch) 

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Pain Pill Payment Proposal Gets Lawyer Suspended

An order of temporary suspension was imposed by the Kentucky Supreme Court.

The court acted on the request of its Inquiry Commission

The Commission attached the affidavit of Allen C. Trimble, Commonwealth Attorney for the 34th Judicial Circuit, to its petition. According to attorney Trimble, Angie Ballou, a probation and parole officer, reported to him that one of her supervisees, Hope Grundy, had retained Price to assist in a child custody matter. According to Ms. Grundy, Price had done nothing on her case, but he frequently sent text messages requesting more money. In one of those messages, Price stated that he needed that additional money to bribe prosecutors and judges in furtherance of Grundy's case.

After hearing this, Trimble contacted the office of Bar Counsel to report Price's alleged misconduct. Trimble also contacted the Williamsburg Chief of Police, Wayne Bird. Chief Bird then interviewed Ms. Grundy. During the course of the interview, Ms. Grundy received a text message from Price requesting more money. In a subsequent exchange of text messages, Price agreed to accept "15 pain pills" in lieu of a payment of $500.00 in attorney fees. Police officers monitored the subsequent transaction, arrested Price, and charged him with first degree trafficking in a controlled substance.

The court found a sufficient basis to suspend pending further proceedings

After reviewing the petition and attorney Trimble's affidavit, we believe the Commission has supplied us with a reasonable basis to believe that Price poses a substantial threat of harm to his clients or to the public. SCR 3.165(1)(b). Consequently, the Commission's petition for temporary suspension is granted.

(Mike Frisch)

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Failure To Pay Child Support Is Unethical

The Kentucky Supreme Court imposed a suspension of 90 days for an attorney's failure to pay court-ordered child support

The facts are not in dispute. Morgan had a court-ordered child support obligation in the amount of $3,475 per month. In December 2012, he was found in contempt of court for failing to comply with the order. He was given a thirty-day sentence, which was suspended on the condition that he make all his child-support payments. The matter was set for review in the following month. Morgan had not made a payment by that review, and on January 10, 2013, the trial court imposed the thirty-day contempt sentence. Morgan was on work release while in jail and was thus able to continue practicing law. Nevertheless, he had still not paid his child support when released from custody February 9, 2013. As of September 30, 2013, Morgan's child support arrearage was more than $23,000.

He denied that such conduct violated ethics rules

Morgan responded to the initial charge through counsel (his brother), admitting all the factual allegations but denying that they constituted violations of our ethical rules.

The brother withdrew from the case and the attorney "essentially disappeared." 

The court concluded 

We...agree with the trial commissioner that Morgan's failure to provide support for his two minor children "reflects adversely on [his] honesty, trustworthiness or fitness as a lawyer in other respects..." 

For these violations, the trial commissioner recommended Morgan be suspended from the practice of law for ninety days, pointing out that Morgan violated not only duties to his family, but to the legal system and profession as a whole. The Trial Commissioner also noted that all three violations stem from a singular course of conduct—Morgan's repeated failure to pay his child support obligations—rather than from myriad circumstances. The trial commissioner suggested that its recommended ninety-day suspension would not interfere with Morgan's long-term ability to provide for his family. We agree, particularly since neither party has asked this Court for further review.

While Morgan's violations are serious, Morgan does not have a long disciplinary history with the KBA. In fact, his only prior disciplinary matter concerned advertising and resulted in a private reprimand. He also appears to have been suspended recently for failure to pay his bar dues. We understand that all of the current violations are related to Morgan's child support obligations. We do not take this matter lightly, but agree with the trial commissioner that we should not (yet) deprive Morgan of his ability to earn funds with which to support his family through the practice of law for a lengthy time. However, we also point out to him that should he maintain his pattern of habitual nonpayment, the discipline will be much more severe in the event that another complaint on these grounds comes before this Court. 

(Mike Frisch)

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)