Friday, June 30, 2017
The Panama City News Herald reports on a recent sanction imposed by the Florida Supreme Court
The Florida Bar announced disciplinary action Thursday against a local attorney who had a sexual relationship with a client.
Wes Pittman was one of 20 attorneys across the state who will receive disciplinary action for Florida Bar violations. The Florida Supreme Court handed down the court order May 4 in Pittman’s case, concluding the investigation into a sexual relationship that developed between him and a female client when Pittman represented her and her husband in a civil case. The Supreme Court found the appropriate discipline would be a public reprimand by publication and directed Pittman to attend ethics school, the Florida Bar stated.
Meanwhile, a civil lawsuit filed on the part of the client’s husband, who is identified only as “John Doe” in court documents, is pending in Bay County’s circuit court.
Attempts to reach Pittman for comment were unsuccessful Thursday.
The Supreme Court found the six-month relationship between Pittman and the female client not only violated ethics rules against such relationships, but also constituted a conflict of interest because he represented both parts of the couple in the lawsuit. Most of the other attorneys received more severe disciplines from the Supreme Court — ranging from disbarment to license suspensions — and explanations for the differences were not detailed. The attorneys who were disbarred or had their licenses revoked, however, were found to have committed criminal acts, while Pittman was found to have violated ethical rules.
The disciplinary actions stem from a 2015 civil case in which Pittman was representing a couple, who still are pursuing a lawsuit against a local car dealership, because they were arrested and detained in Mississippi when their rental car mistakenly was reported stolen, according to court documents.
A sexual relationship developed between Pittman and the female client at the outset of the litigation. During the course of the affair, Pittman also appeared on Fox News to decry the debauchery of Spring Break. When the affair ended almost six months later, Pittman self-reported the matter to the Bar. He then filed for substitution of counsel and ceased representation of both clients.
The Florida Bar First Judicial Circuit Grievance Committee found probable cause in October 2016 that Pittman violated ethical standards and submitted those findings to the Supreme Court.
In their filing, the Bar found Pittman’s “actions created a conflict of interest between (himself) and his client ... (and) exploited the trust relationship between him and his client,” the complaint states. “By reason of the foregoing, (Pittman) has violated” rules regulating conflict of interest and engaging in a sexual relationship with a client.
About two weeks later, the attorneys for John Doe filed their lawsuit against Pittman, claiming he inflicted emotional distress when he had an affair with the client’s spouse while representing the couple in the civil case.
Lawyers for the couple have said Pittman’s affair with Doe’s wife was an “exploitation of (her) fragile emotional state.” According to the lawsuit, the affair left the couple’s relationship in disarray and eventually led to a divorce.
Doe has requested a jury trial and claims the damages caused by Pittman exceed $15,000, the minimum jurisdictional limits for the circuit court, the lawsuit states.
No significant dates in the litigation have been made public, but the most recent development in the case came in December, when Pittman responded by filing a motion to dismiss the case on grounds that an affair is not a basis for a lawsuit, court records state.
“In reality, an intimate sexual relationship between consenting adults does not give rise to civil liability to the third party spouse regardless of the nature of the relationship between the spouse and defendant,” the motion states. “Absent some independent basis of liability, the sexual relationship simply does not support a cause of action by the uninvolved spouse as a matter of law.”
The Georgia Supreme Court accepted an attorney's second petition for voluntary discipline for his misdemeanor convictions for stalking and harassing communications
Spain offers in mitigation that he has no prior disciplinary record and at the time of his misconduct he was suffering from personal and emotional problems related to his marriage, compounded by the divorce which, contrary to his expectations based on a prenuptial agreement, entailed substantial litigation for which his bankruptcy practice provided no helpful experience. Spain states that he has since retained an attorney to represent him in the divorce action and that he has sought professional help for these problems. In addition, he states that he acted in good faith to rectify the consequences of his conduct by entering nolo contendere pleas, and he has cooperated fully with the State Bar in bringing this matter to a voluntary resolution. Finally, he states that his misconduct did not involve his own practice or his own clients, he is deeply remorseful and recognizes that his conduct was contrary to his professional obligations and longstanding personal values, and he wishes that he could reverse his actions.
Spain recounts the facts that led to the incident underlying his criminal convictions, but his presentation of facts consists mostly of an explanation of the reasons for his email tirade against the victim, rather than an assessment of his conduct. For instance, Spain asserts in his petition that the victim of his email tirade—opposing counsel in his divorce—was “in violation of certain ethical rules relating to the practice of law,” that the victim could have and should have provided a variety of testimony in support of his motion to enforce the couple’s prenuptial agreement, and that he “hopes never to file a grievance against [the victim] because Petitioner does not believe even a successful grievance would ameliorate his own station in life.” (emphasis added). The first section of his supporting brief is given over to a similar, although even more detailed, recitation of the underlying facts. The brief then proceeds to a discussion of some authority, much of it from other states or from federal immigration proceedings, that bears on the question of whether his crimes of conviction constituted offenses involving moral turpitude...
Having reviewed the record, we find that a one-year suspension with reinstatement conditioned upon proof of termination of probation is an appropriate level of discipline in this matter.
Two justices expressed uncertainty that a on-year suspension is necessary. (Mike Frisch)
The New Hampshire Supreme Court reversed and remanded a matter
The relevant facts follow. In June 2015, the Office of the Attorney General (OAG) retained the law firm of Cohen Milstein Sellers & Toll PLLC (Cohen Milstein) on a contingency fee basis “to represent [the OAG] in an investigation and litigation of potential claims regarding fraudulent marketing of opioid drugs.” (Emphasis added.) In September, the OAG and Cohen Milstein entered into a second retainer agreement that “supersedes the initial retainer agreement, executed June 15, 2015, and is effective as of that date.” The September retainer agreement states that Cohen Milstein is retained “to assist [the OAG] in an investigation and litigation of potential claims regarding fraudulent marketing of opioid drugs.” (Emphasis added.)
The trial court refused to enforce an administrative subpoena issued and granted a protective order
We conclude that the defendants have failed to demonstrate standing with respect to their claims that the contingency fee agreement between the OAG and Cohen Milstein is ultra vires under RSA 7:12, I, and :6-f. Thus, we hold that the trial court’s contrary determination is erroneous.,,
The defendants also argue that “the contingency-fee agreement violates longstanding New Hampshire common law and ethics . . . rules.” (Capitalization and bolding omitted.) They assert that “[w]hen a private lawyer represents the State in a matter in which the lawyer has a personal interest, that interest compromises the ‘impartiality’ required of all government lawyers and creates at least the appearance of impropriety.” The trial court found that “Cohen Milstein is not a public attorney under common law or the Rules of Professional Conduct” and rejected the defendants’ claims to the contrary because they are “based on the premise that Cohen Milstein is vested with a governmental function and in a position of public trust where its financial stake will create a conflict of interest that will negatively impact the public trust and the fair administration of the law.”
The court noted that the OAG retains control of the case. (Mike Frisch)
The Louisiana Supreme Court disbarred an attorney for multiple acts of misconduct
...respondent accepted fees from multiple clients and failed to perform any work on behalf of these clients. The hearing committee made a factual finding that these victims were vulnerable. It further found respondent’s actions caused significant actual harm to her clients and this harm remained ongoing due to respondent’s failure to make any effort at restitution. All of these findings are amply supported by the record. Accordingly, we find respondent’s multiple instances of conversion, combined with the substantial harm created, satisfies the requirements of Guideline 1.
Moreover, the record establishes that respondent engaged in the unauthorized practice of law by representing a client in court after being placed on interim suspension. Such conduct clearly falls under Guideline 8 of the permanent disbarment guidelines (following notice, engaging in the unauthorized practice of law subsequent to resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred).
Among other things, she sought to have clients leave her employer in favor of her
respondent attempted to persuade the clients to terminate Mr. Chouest’s representation and hire her to represent them. To entice them, respondent offered the clients gift cards and basketball tickets. Respondent’s husband also attempted to contact the clients to entice them to hire respondent and left several angry voicemail messages for the clients.
Justice Hughes would disbar but not permanently. (Mike Frisch)
Thursday, June 29, 2017
The Illinois Administrator has filed a complaint
On May 24, 2015, a McHenry County Grand Jury indicted Respondent on one count of the offense of child pornography, a Class 1 felony, in the matter of The People of the State of Illinois v. James T. Zeas, docket number 15CF000297, in the Circuit Court of the Twenty Second Judicial Circuit, McHenry County. Count One of the indictment charged that Respondent committed the offense of child pornography, in that Respondent knowingly filmed A. S., a child whom defendant knew or reasonably should have known to be under the age of 18 years, depicted or portrayed in any pose, posture or setting involving the lewd exhibition of the unclothed fully or partially developed breasts of A. S. and where within one year of the victim attaining the age of 18, the statute of limitations was extended pursuant to Chapter 720, Section 5/3-5(a) of the Illinois Compiled Statutes to allow for a prosecution of this offense to be committed at any time, in violation of Chapter 720, Section 5/11-20.1(a)(1)(viii) of the 2009 Illinois Compiled Statutes. A certified copy of the indictment is attached as Exhibit One.
On February 3, 2017, following a bench trial before the Hon. Michael Feetterer, Respondent was found guilty on Count One of the indictment.
On June 14, 2017, the Hon. Sharon Prather sentenced Respondent to four years imprisonment in the Illinois Department of Corrections.
Details from the McHenry County Times
Patrick D. Kenneally, McHenry County State’s Attorney, announces that James Zeas, 48, was found guilty of Child Pornography after a bench trial heard by the Honorable Michael Feeterer.
The evidence introduced at trial showed that in June of 2009, Zeas took three children to Lifetime Fitness in Algonquin, Illinois to go swimming. Zeas then secretly placed a video camera in the family bathroom and recorded a young teenage girl changing out of her swimsuit.
Zeas kept the video on his computer where it was discovered a few years later.
The Wisconsin Supreme Court held that only the judiciary has the power to discipline judges
In creating an executive branch entity with authority to pass judgment and impose discipline on a judge's exercise of core judicial powers, the Wisconsin legislature violates the Wisconsin Constitution's structural separation of powers and invades a domain recognized for over two hundred years as the exclusive province of the judiciary. Neither the executive branch nor the legislature may reprimand or otherwise discipline a Wisconsin judge. The Wisconsin Constitution reserves such disciplinary powers for the supreme court alone. Nor may the legislature empower the executive branch to threaten any judicial officer with repercussions for exercising constitutional power vested exclusively in the judiciary.
...the legislature transgressed the constitutional boundaries of its powers by authorizing the Crime Victims Rights Board (the "Board") to investigate and adjudicate complaints against judges, issue reprimands against judges, and seek equitable relief and forfeitures through civil actions against judges. We therefore affirm the decision of the circuit court and hold that Wis. Stat. §§ 950.09(2)(a), (2)(c)-(d) and (3) and 950.11 (2015-16)1 are unconstitutional with respect to judges; accordingly, the Board's actions against Judge William M. Gabler are void.
The court describes at length the principles of an independent judiciary.
Justice Abrahamson concurred and dissented.
The majority opinion contravenes basic principles of statutory and constitutional interpretation. Applying the canon of constitutional avoidance, I conclude that the challenged statutory provisions are easily amenable to a constitutional interpretation. The majority opinion's lengthy foray into the separation of powers analysis is unnecessary and inappropriate.
When a court addresses the scope of the judicial branch's power and the powers of the other branches of government, it must avoid an overzealous defense of the judiciary's power and must avoid appropriation of unchecked power in the judiciary.
The Crime Victims Amendment and the statutes demonstrate the legislature's attempt at a thoughtful, evenhanded approach to crime victims, accuseds, and judicial and executive branch functions. Is the drafting perfect? No. But perfect drafting is rarely the hallmark of any state or federal statute (or opinion of a court).
The District of Columbia Court of Appeals agreed with the Board of Professional Responsibility that an informal admonition was the appropriate sanction for a criminal conviction.
In 2007 the United States charged E-GOLD, Respondent, and other individuals with violations of federal and District of Columbia criminal laws, including conspiracy to commit money laundering and operation of an unlicensed money transmitting business. The government alleged, among other things, that the businesses and the individuals had conspired to conduct financial transactions that involved the proceeds of unlawful activity such as child exploitation and fraud. Respondent pled guilty in the United States District Court for the District of Columbia to a felony violation of D.C. Code § 26-1002, a strict liability offense which prohibits operation of a money transmitting business without a license. The indictment asserted that Respondent committed this crime between 2002 and 2003, and Respondent agreed to a Statement of Offense that gave examples of transactions during those years...
At sentencing, Respondent told Judge Rosemary Collyer that he “did not intend” to violate the law regarding licensing, but he admitted that he “was wrong[.]” Respondent noted that he did not have expertise in the relevant area and claimed that he had “looked to experts just like when others have looked to me on employee benefits issue[s].”
Judge Collyer stated that she “believe[d] [Respondent] when he says that he didn‟t intend to violate the law.” She recognized that Respondent and E-GOLD had been “in a slow prodding comfortable way trying to figure . . . out” their legal obligations, including by “meeting with the government . . . and trying to get advice[.]” Finally, she noted that Respondent “is clearly a good lawyer and a good husband and a good father and a good member of his church in his community and has no criminal history.” Judge Collyer sentenced Respondent to 180 days‟ incarceration, suspended in favor of 36 months‟ probation, and imposed a $2,500 fine.
Disciplinary Counsel sought disbarment or, in the alternative, a three-year suspension. Much of the litigation involved an attack on Judge Collier's conclusion that he had relied on the advice of counsel.
The court quoted the board
This case presents the rare, if not unique, situation wherein a respondent pleaded guilty to a single nonscienter felony unrelated to the practice of law, the crime was committed in a climate of legal and regulatory uncertainty, Bar Counsel has failed to prove moral turpitude or dishonesty by clear and convincing evidence, there are no other disciplinary charges, and Respondent's disciplinary record and character are unblemished.
Another notable aspect is that this case took nine years to resolve. (Mike Frisch)
Wednesday, June 28, 2017
The Missouri Supreme Court has disbarred an attorney for trust account violations and other misconduct, including
At the same time McMillin was misusing client trust accounts, he also failed to fulfill other substantial duties owed to several of his clients. Natalie Toney hired McMillin in February 2012 for representation in a domestic relations matter and paid him $3,000 in advanced fees. She was then unable to consistently communicate with him as he repeatedly either canceled scheduled meetings or refused to come out of his office to meet with her. Much of McMillin's limited interaction with Toney consisted of text messages he sent late at night containing inappropriate comments referring to Toney as "hot stuff" and "baby." McMillin admitted the majority of Toney's complaint "was probably true as far as me putting her off and not doing whatever, setting meetings and canceling." Toney eventually terminated McMillin and had to hire another attorney for an additional $3,000 to complete the matter. This Court concludes McMillin violated: (1) Rule 4-1.3 by failing to act with reasonable diligence and promptness in representing Toney; (2) Rule 4-1.4(a) by failing to keep Toney reasonably informed about the status of her matter and failing to promptly comply with reasonable requests for information; and (3) Rule 4-1.5(a) by charging a fee unreasonable in relation to the work he did for Toney.
The presumptive discipline for McMillin's gross misconduct is disbarment. "[I]n a rare but appropriate case a sanction other than disbarment may be appropriate for intentional misrepresentation where mental illness is shown to have played a role in the misconduct and other substantial mitigating factors are also present." Id. at 567 (internal quotations omitted). This is no such case. Even accepting as true McMillin's mitigation claim of a mental disorder, there are no other substantial mitigating factors and this Court cannot ignore the number of aggravating factors that effectively offset, if not overwhelm, any mitigation. The aggravating factors confirm "there is no reason to depart from the presumptive discipline of disbarment in this case." Id. at 566. Therefore, this Court orders McMillin disbarred.
The Indiana Supreme Court reversed the Court of Appeals and re instated a conviction
Defendant appealed his bestiality conviction arguing that the State failed to establish the corpus delicti of the offense, rendering evidence of his confessions inadmissible. Finding that the State presented independent evidence that provided an inference that Defendant committed bestiality, we hold that defendant’s confessions were admissible. Accordingly, we affirm the trial court.
In August 2015, Paul Moore and Andy Shinnock were roommates in Muncie, Indiana. Moore’s two dogs, a female pit bull named Baby Girl and a male Labrador Retriever mix named Cosmo, lived with them. One morning, Moore returned home from work, and neither of his dogs were waiting to greet him at the door like they usually did. Moore called for them. Cosmo eventually came to him, but Baby Girl did not. Moore noticed the apartment was messy. That is, there was dog feces all over the floor and dog food scattered about. This was also unusual. Moore opened the door to Shinnock’s room. Baby Girl came out and ran underneath the couch.
Moore observed Shinnock in his room, wearing his boxer shorts and with an erection. When Moore asked Shinnock why his dog was locked inside of Shinnock’s bedroom, Shinnock admitted to Moore that he tried to have sexual contact with the dog. Moore called police. When police arrived and asked for Shinnock’s version of events, Shinnock admitted he had sex with Moore’s dog.
the Court of Appeals reversed Shinnock’s conviction holding that the State was required to prove penetration of the dog’s sex organ by a male sex organ before it could admit Shinnock’s statement into evidence.
Due to the nature and circumstances of this matter, there is no direct evidence of what happened to Baby Girl. However, there is ample circumstantial evidence that provides an inference that Shinnock committed bestiality. That is, Baby Girl was not there to greet Moore when he arrived home like she usually did. Instead, she was found trapped in Shinnock’s bedroom with him. He was in his underwear and had an erection. The floor was covered in dog feces, which was unusual. When Moore opened the door to Shinnock’s room, Baby Girl ran to hide under the couch. All the facts taken together suffice to demonstrate both that the dog was a victim and that Shinnock committed the crime. Accordingly, the trial court properly found that the corpus delicti rule was satisfied and admitted the confessions into evidence.
The Ohio Supreme Court has accepted an attorney's resignation in the wake of a conviction.
The United States Attorney's Office for the Northern District of Ohio reported on the criminal conviction
Three Toledo residents were convicted for forging a will to fraudulently gain control of an estate worth approximately $2.2 million, said U.S. Attorney Carole S. Rendon and Kathy A. Enstrom, Special Agent in Charge, IRS Criminal Investigation, Cincinnati Field Office.
Susan M. Pioch, 60, Margaret L. McKnight, 42, and Kurt L. Mallory, 53 are convicted on all counts following a weeklong jury trial.
All three were convicted one count of conspiracy to commit bank fraud and mail fraud, 21 counts of bank fraud, seven counts of mail fraud and one count of aggravated identity theft. Pioch, McKnight and Mallory were convicted on additional counts of money laundering. McKnight was convicted on an additional count of structuring cash withdrawals, three tax counts and seven counts of causing a financial institution to fail to file a required report.
“This trio forged a will and stole a lifetime of savings and hard work,” Rendon said. “They will finally be held accountable for their actions. It’s particularly egregious that an attorney, who has sworn an oath to uphold our laws, was involved in these crimes.”
“The defendants engaged in a scheme to steal millions from a deceased man’s family, proving that money is the root of all evil,” Enstrom said. “It was imperative to make sure no corners were cut and no stone was left unturned. The IRS National Forensic Laboratory played a critical role in this investigation by examining the handwriting on numerous documents that ultimately proved that the will in question in this case was forged. Today’s convictions are a direct result of the excellent partnership of the IRS, U.S. Attorney’s Office and the Toledo Police Department.”
Martin E. Fewlas executed a will in 1993 devising his entire estate to his brother. If his brother did not survive Fewlas, the estate was to go to his nephew and then his great-nephew, identified in the indictment as JRM.
Fewlas owned the duplex located at 2557 Broadway Street in Toledo. He lived in the lower half and for approximately 10 years, McKnight and Mallory lived together in the upper half, according to court documents.
Fewlas died on Aug. 28, 2010, leaving an estate worth approximately $2.2 million. On Sept. 2, 2010, McKnight, Mallory and Pioch – an attorney who had previously done legal work for McKnight and Mallory forged a will in Fewlas’ name. The forged will was drafted by Pioch and named McKnight as the executor and sole devisee of Fewlas’ assets. Pioch filed the forged will with the Lucas County Probate Court on or around Sept. 2, 2010. McKnight identified herself as executor of the estate and Pioch identified herself as attorney for the executor in probate court documents, according to court documents.
By filing the forged will and concealing its fraudulent nature, Pioch, McKnight and Mallory succeeded in obtaining Probate Court authority to take possession of Fewlas’ assets. After obtaining those assets, they disbursed the assets to themselves for their own enrichment, according to court documents.
Pioch, McKnight and Mallory used those assets to purchase, among other things, a used car dealership, a 2000 Discovery motorhome for $55,036, a classic 1972 Chevrolet El Camino for $17,000, a 2010 Kia Soul SUV for $21,338, as well as property. They also withdrew more than $500,000 in cash for Fewlas’ estate proceeds, according to court documents.
JRM, Fewlas’ great nephew and the sole remaining devisee from the 1993 will, received nothing, according to court documents.
The case is being prosecuted by Assistant U.S. Attorneys Gene Crawford and Noah Hood following an investigation by the Internal Revenue Service – Criminal Investigations and the Toledo Police Department.
An attorney's resignation from the Bar was accepted by the Oklahoma Supreme Court
The respondent acknowledges she is aware there are proceedings involving allegations that there exist grounds for discipline, specifically as follows. In Count I, the Bar Association alleges that the respondent improperly by live telephone, and in person solicited Tyler Williams for employment in his personal injury case, while he was hospitalized for his injuries. She represented to him that she had obtained his name and information from a "Christian" organization, which conveyed to her that he needed to have legal questions answered. She had him sign a contingency fee contract on June 17, 2014, and he remained hospitalized until his discharge on June 20, 2014. The organization called "Victim's Hope" was created, established, organized and controlled by the respondent as a means to solicit business for her. She paid the employee of Victim's Hope to recommend her services and to forward information regarding prospective clients. Count II alleges that from approximately 2008 through 2012 the respondent improperly obtained Department of Public Safety media emails by establishing and controlling fictitious media outlets solely for the purpose of obtaining and forwarding accident report information to employee(s) of her law firm in order to solicit professional employment. Count III alleges that she obtained confidential accident report information for the purpose of making a commercial solicitation in violation of 47 O.S.2011, § 40-102. The allegations would constitute violations of Rules 1.16(a), 7.2(b), 7.3(a), 8.4(b), and 8.4(c) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A and Rule 1.3, RGDP.
The Oklahoma Supreme Court imposed reciprocal discipline based on sanctions imposed in bankruptcy court.
Respondent submits that there is no basis for reciprocal discipline here. According to Respondent the type of discipline that forms the basis for reciprocal discipline is that which is imposed by the Bankruptcy Court and subsequently confirmed by the District's Disciplinary Committee. She asserts: (1) because the judgment and order in question were the result of a settlement among the parties which was encouraged by the judge, it does not equate to discipline that is imposed upon her pursuant to Rule 7.7(a); and (2) because the judgment and order were settled, they were never adjudicated and referred to the disciplinary arm for the jurisdiction in accordance with the 7.7(b) terms. Respondent further claims the documents in this instance-the judgment and order-do not contain any charge because they represent settlements between the parties and thus cannot be prima facie evidence of any act pursuant to Rule 7.7(b)...
Notwithstanding Respondent's contentions, her conduct in representing her client before the Bankruptcy Court demonstrates she has violated multiple provisions of Oklahoma's Rules of Professional Conduct (ORPC), Okla. Stat. tit. 5, ch. 1, app. 3-A (2011). This includes her: failure to provide competent representation for her client, Rule 1.1; failure to file meritorious claims and contentions, Rule 3.1; failure to conduct her representation of her client in fairness to the opposing party and counsel, Rule 3.4(d); engaging in conduct prejudicial to the administration of justice, Rule 8.4(d).
An additional mitigating factor we perceive to be worthy of consideration in today's cause is that of Respondent's status as a new practitioner of the law. In noting this, we emphasize that we do not hold new legal practitioners to different standards from more seasoned lawyers. We remark on this difference solely as a distinguishing factor from those cases we examined for guidance where the legal practitioners had far greater experience and as a caution to new attorneys.
As a new lawyer, Respondent undoubtably [sic] exceeded the bounds of zealous advocacy. Her actions severely impacted others and their resources-clients, lawyers and the judiciary. She displayed a lack of competency and insolence in the practice of bankruptcy law. Respondent, however, was practicing on her own with little prior training or supervision and refused to ask for help. Suspension from bankruptcy court practice in two districts for a five-year period is severe. Its imposition is curative of further offenses in the affected jurisdictions and meets the multiple objectives of protecting the public, the courts, other attorneys, and restoring confidence in the legal system. It, standing alone, does not disqualify her from the practice of law in the Courts of Oklahoma nor from further discipline by this Court. But, Respondent's failure to maintain her license does.
Respondent's acts are akin to those in Tweedy and, as in Tweedy, we believe the foreign jurisdiction's discipline to be a significant mitigating factor in today's cause. Respondent was barred from bankruptcy practice for five years in the Northern and Eastern Districts of Oklahoma. She was new to the practice of law and without supervision or training. Discipline should be imposed, although we do not believe five years is the proper measure of discipline here. For these reasons, Respondent is suspended for six months and ordered to participate in Lawyers Helping Lawyers.
A dissent would impose a two-year suspension. (Mike Frisch)
Monday, June 26, 2017
A Tennessee attorney convicted of tampering with evidence has been disbarred by consent.
The crime was covered by the Jackson Sun
A jury found Edythe Christie guilty of tampering with evidence Thursday for deleting photos and videos from her son’s cell phone following her daughter-in-law’s death.
Christie will be held in the Madison County Jail without bond until her sentencing on Oct.1. Her family reacted to the verdict with shock and tears.
“She is not guilty,” her father, Lonnie Paschall, said.
Edythe Christie testified in her defense Thursday morning after her son, John Christie, testified as a prosecution witness on Wednesday.
In court, Edythe Christie’s attorney Hal Dorsey said Christie did not deny deleting photos and videos from her son’s phone. She checked the phone out from his personal items in the Madison County Criminal Justice Complex in December 2013 while he was in jail on a probation violation. The defense contended that the phone wasn’t considered evidence.
John Christie’s estranged wife Brittany Christie was found dead in an Old Hickory Inn hotel room on Dec. 6, 2013. Police said she died of an overdose of heroin and clonazepam. Authorities charged John Christie with her murder several months later, in April 2014.
“When I saw the photographs of Brittany on the phone, I just had a gut reaction,” Edythe Christie testified Thursday. “I believed the photographs could be recovered.”
Christie said she deleted the photos of her daughter-in-law to protect her son from seeing them after he was released from jail.
“It was to protect John and his children,” Edythe Christie said in court. “I had no intention of making it unavailable to police.”
Voice recordings of the mother and son discussing the cell phone on Dec. 19 and Dec. 20, 2013, when John Christie was in custody, were played in court on Wednesday.
In the recorded calls, John Christie asked his mother to pick up the phone from his personal items. Edythe Christie told him she would pick the phone up the next morning, on Dec. 20.
“I had no intention of destroying or deleting anything,” she testified. “I thought if I deleted texts and phone calls, then that’s a crime.”
“I didn’t believe it to be relevant evidence,” she said in court. “I just wanted to shut him up.”
Christie said she never intended to hide the phone from investigators.
“If they would’ve asked me, I would’ve told them where it was and what was deleted,” she said. “I thought, ‘If the police want the phone, then they can come find the phone.’”
Members of Brittany Christie’s family were in court during both John and Edythe Christie’s testimony. To stepsister Kristin Mayo, the verdict is another step toward closure for the family.
“I’m happy with the verdict, happy with the outcome,” Mayo said. “I’m hoping to get the same verdict and get peace and closure in Brittany’s death.”
John Christie is scheduled for trial next month on charges of second-degree murder and tampering with evidence. Mayo said seeing Christie testify in his mother’s trial was difficult for Brittany’s family.
“It’s hard to see him period,” Mayo said. “They’re good people and I know they’re going through a lot.”
John Christie had asked his mother to destroy the SD card in his phone, according to testimony. Jackson police investigators testified she did not destroy the card, but did delete five photos and a video showing John and Brittany Christie together before Brittany Christie’s death. The photos and video were recovered and were shown in court on Wednesday.
Edythe Christie was an attorney of 19 years, most recently practicing in Gibson County.
After the jury read the guilty verdict, Christie’s attorney said he did not believe she would practice anymore.
“I’m sure that will cease starting today,” Dorsey said.
After the verdict was read, Judge Don Allen said Edythe Christie knew the deleted photos were evidence investigators would have needed to show John and Brittany Christie were together before Brittany was found dead.
“The 24 hours leading up to her death is critical to an investigator,” Allen said. “It was a critical piece of evidence she deleted.”
Edythe Christie is scheduled for sentencing on Oct. 1 at 8:30 a.m.
John Christie is scheduled for trial Sept. 29.
An opinion of the Indiana Supreme Court in a case where the defendant has the rather dichotomous name of Summer Snow
Every crime has a story. But when that story is told at trial, each part must be admissible under Indiana’s Rules of Evidence—simply being part of the story is not enough. We thus reiterate today our holding from over twenty years ago: res gestae—the common-law doctrine that made evidence admissible when it was part of a crime’s story—is no more.
Here, Summer Snow carried a handgun as she battered Officer Terry Peck and resisted law enforcement. Though she was not charged with a firearm-related offense, the State introduced her gun into evidence at trial. Without res gestae as grounds for admission, our question becomes whether the gun is admissible under Indiana’s Rules of Evidence. We hold that it is. The trial court acted within its discretion in finding the gun relevant to Snow’s aggressive state of mind and in determining that the danger of unfair prejudice did not substantially outweigh that relevance. We affirm the trial court.
Because res gestae is no more, we consider evidentiary admissibility under our Rules of Evidence. Under those rules, the trial court was within its discretion in deciding that Snow’s handgun was relevant to her aggressiveness, and that the danger of unfair prejudice did not substantially outweigh its probative value. We affirm the trial court.
A Staff Report from the web page of the Ohio Supreme Court
The Board of Professional Conduct today issued an advisory opinion permitting virtual law offices. The Board also took action to withdraw a superseded advisory opinion.
In Advisory Opinion 2017-5 the Board concludes that the operation of virtual law office is permissible under the Ohio Rules of Professional Conduct. A virtual law office allows a lawyer to work remotely, relying almost entirely on technology to communicate with clients, store client files, and conduct legal research, in place of a traditional “bricks and mortar” office.
The Board determines, in accord with opinions issued by other state conduct boards, that a lawyer may use a home or office address, the address of shared space, or a post office box as the required “office address” in communications with clients, courts, and other lawyers.
The opinion addresses the ethical issues inherent in a virtual law office and reinforces that the conduct rules require a lawyer to stay abreast of changes in technology and take steps to ensure that a client’s information, especially electronic data stored in the “cloud,” is protected from inadvertent disclosure. The opinion also reminds lawyers that the use of third parties to provide technological services, such as offsite data storage, require lawyers to ensure the vendor acts in a manner consistent with their ethical obligations.
Because of the nature of a virtual law office, the Board concludes that a lawyer must be mindful of the requirement to keep a client reasonably informed in order to enable the client to make decisions about the lawyer’s representation. The Board recommends that a lawyer operating a virtual law office notify the client about the use of technology in a written fee agreement.
The Board also concludes it is appropriate for a lawyer operating a virtual law office to share nonexclusive office space with other professionals to receive mail, meet clients in person, or conduct depositions. However, the lawyer must take precautions to ensure the confidentiality of client communications and information in an environment where all tenants share resources like Wi-Fi and a common receptionist or other staff.
The Board also withdrew Adv. Op. 1988-08. The opinion dealt with the question of when a part-time city prosecutor may represent criminal defendants. The Board concluded that Adv. Ops. 2007-4, 2008-5, 2008-6, and 2014-2 superseded all portions of Adv. Op. 1988-08.
Advisory Opinions of the Board of Professional Conduct are nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office
The Maryland Court of Appeals has disbarred an attorney for misconduct in his own bankruptcy
Respondent, Mark Kotlarsky, was admitted to the Bar of Maryland on December 15, 1992. On August 22, 2016, the Attorney Grievance Commission of Maryland (“the
Commission”), through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent as a result of having received a notice
from Citibank that Respondent had over-drafted his operating account ending in -3487. Upon investigation, the Commission discovered that Respondent had failed to disclose assets that were associated with his law firm’s pension plan in his bankruptcy petition, and that Respondent had outstanding federal and state tax liens totaling $35,092.72. In its Petition, the Commission alleged that Respondent violated Maryland Attorneys’ Rules of Professional Conduct...
The Commission requests that this Court disbar Respondent from the practice of law. According to the Commission, Respondent’s repeated failure to respond to Bar Counsel’s inquiries regarding outstanding tax liens, his attorney trust account, and his failure to disclose assets associated with his law firm’s pension plan in his Petition for Chapter 7 Bankruptcy, warrant such a sanction. We agree.
Saturday, June 24, 2017
The Maine Supreme Judicial Court has suspended a former judge for two years.
Count 1 alleged that then Judge-elect Nadeau’s directive to the Register of Probate of York County not to include seven attorneys on the court appointed attorney list was motivated by his previous contentious relationship with those attorneys, in violation of Judicial Canons 2(B) and 3(C)(4);
Count 2 alleged that Judge Nadeau’s removal of an attorney from cases to which she had previously been appointed was motivated by her association with an attorney with whom Nadeau had a contentious relationship, in violation of Canon 2(A) and (B);
Count 3 alleged that—in a case in which he had recused himself— Judge Nadeau ordered an attorney to destroy a lawfully obtained public document, in violation of Canon 2(A);
Count 4 alleged that Judge Nadeau’s abrupt overhaul of the Probate Court schedule was motivated by his anger with the York County Commissioners when his request for a pay increase was rejected, in violation of Canons 1, 2(A) and (B), and 3(B)(8); and
Count 5 alleged that Judge Nadeau was, through oral and written orders, encouraging litigants before him to contact their county officials to lobby for increased court funding, which would also increase his salary, in violation of Canon 2(B).
This is now the fourth time that Judge Nadeau has appeared before us for ethical violations, and the third time for conduct that occurred while serving in a judicial capacity. See In re Nadeau, 2016 ME 116, 144 A.3d 1161; In re Nadeau, 2007 ME 21, 914 A.2d 71415; Bd. of Overseers of the Bar v. Nadeau, Bar-05-03, 2006 Me. LEXIS 167 (Mar. 2, 2006). Here, his actions were often carried out in an intemperate and vindictive fashion against former colleagues of his law practice and their associates. Attorneys’ reputations were harmed, and litigants before him were pressured to support his efforts to increase court resources and his compensation. Judge Nadeau has not fully acknowledged the intemperate nature of his decisions.
...This time, therefore, more severe sanctions are warranted. It is hereby ordered that Robert M.A. Nadeau forfeit $5,000 and be suspended from the practice of law for two years...
Friday, June 23, 2017
The Maryland Court of Appeals decided a disciplinary case against two attorneys that I have closely followed.
In sharp contrast to my usual position, I entirely side with the accused attorneys and believe that they (and their pro bono clients, who vigorously supported them) should never have been subjected to prosecution.
One thing that I learned in over 17 years as a bar prosecutor is that you have the power to make someones life a multi-year nightmare. Thus you are under an obligation to ensure that you prosecute your cases in a fair-minded and proportionate manner.
Here Bar Counsel did not gracefully accept the views of the hearing judge concerning the motives of the complainant and of the case itself
the Commission excepts to the hearing judge’s “non-material findings” in which the hearing judge allegedly “demonstrated animus toward the [Commission] and its counsel at trial.” The Commission asserts that it excepts to such statements because the hearing judge’s statements concerning Bar Counsel “leave[s] the impression that the disciplinary case itself was unfair to Respondents and that specific actions of counsel were ‘unfounded,’ ‘biased,’ ‘unreasonable,’ ‘frivolous,’ ‘unwarranted,’ and ‘lacking in objectivity.’” The Commission also excepts to the “attacks on Mr. Erskine,” who, as the complainant, “acted in the best traditions of the Bar” and “chose to honor his commitment as an attorney to report misconduct.”
We overrule the Commission’s exception. The “findings” to which the Commission directs this Court’s attention appear in the introductory discussion section to the hearing judge’s conclusions of law and in the hearing judge’s conclusions of law. These statements are a part of the hearing judge’s analysis in connection with the conclusions of law, and are not set forth as findings of fact and, as such, have not been summarized above by this Court. Nor have the alleged findings been relied upon by this Court in sustaining or overruling any of the Commission’s exceptions...
The procedural history of the underlying cases was dense and complex, and the litigation itself was highly contentious. The hearing judge made detailed findings of fact based on the evidence presented to him over the course of sixteen days. The record in this attorney discipline case is voluminous, and the hearing judge more than adequately parsed through it in making the findings of fact. That the hearing judge may not have made certain findings of fact urged by the Commission does not render the findings of fact that were made clearly erroneous.
In both of the cases, Bar Counsel had sought disbarment. One attorney was reprimanded for his inadequate response to the complaint; all charges against the other attorney were dismissed.
The matters are a case study in how the disciplinary process can be abused. This time-consuming and misbegotten case should never have been brought.
The court explained
The road to Maryland’s political graveyard is paved with multitudes of failed referendum petitions and good intentions of petition circulators and referendum strategists. The controlling statutes in the Maryland Code, Election Law Article for conducting a referendum petition drive present a veritable minefield of technicalities that can quickly scuttle and send awry the best-laid plans of citizen-activists seeking a voter referendum.,,
It is in the context of this complex and contentious underlying litigation involving a local zoning referendum and petition drive that this attorney discipline proceeding originated. Under these circumstances, Respondents perceived that the system was rigged against their clients, and they must have felt like David versus Goliath. But instead of bringing a slingshot to the legal battle, they employed a strategy of ping-pong by bouncing the case to Maryland’s appellate courts in response to negative rulings (whether real or perceived) by the circuit court. And when Mr. Erskine filed his complaints against Respondents in the middle of this contentious litigation, Mr. Dyer failed to respond substantively to Bar Counsel’s lawful request for information concerning his position on the allegations in the complaint against him. Instead, he simply challenged Bar Counsel’s authority to conduct a “confidential” investigation and refused “to participate in secret attorney grievance proceedings” on First Amendment grounds.
On August 26, 2015, on behalf of the Attorney Grievance Commission, Assistant Bar Counsel Lydia Lawless filed in this Court a “Petition for Disciplinary or Remedial Action” against Respondents, charging them with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.3 (Diligence), 1.4(a)(1), 1.4(a)(2), n1.4(b) (Communication), 1.16(a)(1) (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.3(a)(1) (Candor Toward the Tribunal), 3.4(a), 3.4(c), 3.4(d) (Fairness to Opposing Party and Counsel), 3.7(a) (Lawyer as Witness), 4.1(a)(1) (Truthfulness in Statements to Others), 4.4(a), 4.4(b) (Respect for Rights of Third Person), 8.1(b) (Disciplinary Matters), 8.2(a) (Judicial and Legal Officials), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).
The hearing judge conducted hearings over sixteen days and issued a comprehensive 115-page opinion exonerating both attorneys, questioning the motives of the complainant in filing a bar complaint in the midst of litigation and noting the dearth of proof to sustain the "throw the book at em and hope something sticks" approach of assistant bar counsel.
The heart of the case was a frivolous litigation allegation
In contentious cases involving complex and time-sensitive matters, such as election laws, lawyers may be more likely to file appeals quickly. However, not every lawyer who files an appeal or a petition for a writ of certiorari that is dismissed is charged with violating the MLRPC. Indeed, a lawyer who files appellate papers that are dismissed simply because the lawyer is wrong about the law or the lawyer has, as the hearing judge found, a good faith basis to believe a certain fact that turns out to be incorrect, is generally not subject to discipline under the MLRPC. This is not a case where a lawyer filed an appeal or petition for a writ of certiorari that was blatantly unsupported by the law or facts of the particular case. Therefore, we conclude that the hearing judge was not clearly erroneous when he declined to adopt Bar Counsel’s suggested finding—that the first and second rounds of appellate findings were unsupported by fact or law...
Here, the hearing judge was correct in concluding that there was not clear and convincing evidence that Respondents violated MLRPC 3.1. With respect to the appellate filings, as discussed in detail above, we overrule the Commission’s exceptions to the hearing judge declining to find that various rounds of appellate filings were not supported by fact or law. And, as explained, that an appellate filing may ultimately be unsuccessful, and indeed even dismissed, does not mean that a lawyer violates MLRPC 3.1 for making such a filing. Additionally, we note that there is no indication in the record that this Court or the Court of Special Appeals ever awarded sanctions against Respondents in connection with any of the appellate filings, even though Normandy had asked the Court of Special Appeals to do so.
A significant holding on the nature of the obligation to respond to a bar complaint
Mr. Erskine’s complaint letters to Bar Counsel, to which Bar Counsel requested that Respondents respond, included very broad accusations of misconduct to which it may have been difficult to respond. In the face of these broad accusations, although Ms. Gray informed Bar Counsel that she adopted Mr. Dyer’s response, Ms. Gray also responded by providing her view of the underlying litigation, explaining to Bar Counsel the contentious nature of the case and that, in her opinion, Mr. Erskine’s complaint was an attempt to intimidate her that had begun during the litigation in the circuit court. Although Ms. Gray may not have responded to each of the allegations of misconduct set forth in Mr. Erskine’s complaint and although Bar Counsel apparently takes issue with the substance of Ms. Gray’s response, we are satisfied that the hearing judge’s determination that Ms. Gray did not violate MLRPC 8.1(b) is correct. Given the broad nature of the complaint and that Ms. Gray’s response addressed the substance of the complaint and provided her opinion as to events concerning the underlying litigation, there is not clear and convincing evidence that Ms. Gray knowingly failed to respond to a lawful demand for information from Bar Counsel. Rather, Ms. Gray promptly responded to the substance of the allegations by providing her view of the underlying litigation and why she believed Mr. Erskine had filed such a complaint against her in the first instance. As such, we determine that the hearing judge properly concluded that Ms. Gray did not violate MLRPC 8.1(b).
Another charge goes down in flames
The Commission excepts to the hearing judge’s conclusion that Respondents did not violate MLRPC 8.4(d). The Commission contends that Respondents violated MLRPC 8.4(d) by “burden[ing] the judicial process” and argues that “[v]irtually every step they took caused the courts, their clients and the other parties to expend needless time, resources and energy.” We overrule the exception.
... the hearing judge was correct in concluding that clear and convincing evidence did not establish that Respondents violated MLRPC 8.4(d). As the hearing judge stated, Respondents “provided adequate, but not necessarily perfect, pro bono legal representation that probably would not have otherwise been available to their clients,” and they “sought to ensure that the First Amendment rights of their clients and nonparty circulators were protected from what they perceived to be unnecessary, improper and overbroad discovery requests.” Under the circumstances of this case, we fail to discern that Respondents’ conduct in the underlying litigation violated MLRPC 8.4(d).
Believe it or not, Bar Counsel had sought disbarment after the square rejection of every charge by the hearing judge.
The video of the oral argument is linked here.
Notably, the courtroom is filled with clients demonstrating support for their accused attorneys.
Have not ever seen that before.
The court politely evaluated the quality of the case by assessing full costs against the Grievance Commission
Although we reprimand Mr. Dyer, as indicated in the mandate, we do not assess the costs against him; rather, we assess the costs against the Commission. We note that Bar Counsel brought numerous charges against Mr. Dyer, and, upon our independent review, we conclude that Dyer has engaged in misconduct involving only one violation of the MLRPC, MLRPC 8.1(b), for which he is hereby reprimanded. Only a fraction of costs of the attorney discipline proceeding can be attributed to the charged violation of MLRPC 8.1(b). We conclude that, under these circumstances, ordering costs against Mr. Dyer is inequitable. Even having Mr. Dyer and the Commission split the costs would not be equitable given that a large portion of the costs are due to alleged violations of the MLRPC that were not sustained and that the Commission failed to prove are supported by clear and convincing evidence. And, as determined above, none of the charged violations against Ms. Gray were proven with clear and convincing evidence. Accordingly, we shall assess the costs against the Commission.
Thursday, June 22, 2017
The Ohio Supreme Court revoked admission based on conduct that the applicant failed to disclose.
Michael Alexander Callam, of Macedonia, Ohio, Attorney Registration No. 0092109, was admitted to the practice of law in Ohio on November 17, 2014, after passing the Ohio bar examination administered in July of that year.
On April 17, 2015, the Office of Bar Admissions received a letter from the Geauga County Prosecuting Attorney relating that beginning in September 2013, Callam had been investigated by the Ohio Department of Insurance, had been untruthful during that investigation in interviews conducted in January and September 2014, and had surrendered his Ohio insurance license for cause in October 2014. The Office of Bar Admissions received another letter about Callam after he was indicted on two counts of complicity relating to charges filed against his father for securing writings by deception and selling insurance without a license. Based on those communications, the Board of Commissioners on Character and Fitness exercised its sua sponte authority to commence an investigation pursuant to Gov.Bar R. I(10)(B)(6) (directing the board to investigate allegations about false statements in applications brought to its attention after an applicant has been admitted to the bar).
We have disapproved bar-exam applications in which the applicants failed to disclose materially adverse information regarding past conduct in their registration and bar-exam applications...And in the rare instance in which applicants’ false statements and omissions came to light after they had passed the bar exam and been admitted to the Ohio bar, we revoked their licenses to practice law but permitted them to reapply for admission at a later time.
A dissent would not permit reapplication. (Mike Frisch)
The Maryland Court of Appeals has disbarred an attorney.
The case involved a number of complaints
Rule 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. We agree with the trial judge’s findings that Respondent repeatedly violated this rule. In the Curtis matter Respondent dishonestly and deceitfully took possession of, and retained, the money judgment owed to her client and misrepresented to the defendant in that action (Mr. White) that Respondent had filed a notice of satisfaction in the case. In the Dixon matter, Respondent represented to her client that she had drafted an affidavit when she had not done so. In the Bradley-Topping matter, Respondent told her client that she would file an amended divorce complaint to include grounds of desertion, but she did not do so. She also falsely told Ms. Bradley-Topping that she had prepared a draft settlement. In regards to the Alsobrooks complaint, during her hearing on charges of driving under the influence, Respondent misrepresented to the court that she had no prior convictions.
The last listed violation involved a 2004 DUI conviction
On March 31, 2013, Maryland State Police found Respondent in her vehicle, crashed into a roadside ditch. Respondent failed a field sobriety test and was charged with
DUI, reckless driving, and driving on a suspended license. On March 20, 2014, Respondent appeared in the Circuit Court for Prince George’s County on those charges, and, when asked by the court whether she had any prior criminal convictions, she lied, replying “no” despite her previous DUI conviction. She pleaded guilty and was sentenced to unsupervised probation before judgment.
The State’s Attorney’s Office for Prince George’s County, upon discovering the falsehood, filed a motion to strike the judgment; the motion was granted. The State’s
Attorney also notified Bar Counsel of this matter, who docketed a complaint against Respondent and sent a letter to her home and office notifying her and seeking information. Respondent requested a ten-day extension of time to respond, which was granted. Respondent failed to respond before the extended deadline.
The court found a failure to cooperate with the disciplinary process
The hearing judge concluded, and we agree, that Respondent violated Rule 8.1(b) as to all seven complaints constituting this case. Respondent failed to provide any substantive response to Bar Counsel’s reasonable requests for information in all seven matters. In addition, Respondent directly refused to provide her banking institution’s name to Bar Counsel’s investigator when she stated “[y]ou’re the investigator, you figure it out.”
Respondent violated numerous rules repeatedly and seemingly without remorse. She failed utterly to cooperate with Bar Counsel in the disciplinary process. And, she exhibited a disturbing pattern of dishonesty, individual instances of which could warrant disbarment on their own. See, e.g., Attorney Grievance Comm’n v. Peters-Hamlin, 447 Md. 520, 547-49 (2016) (restating the proposition that disbarment ordinarily is the sanction for an intentional violation of MLRPC 8.4(c) (dishonesty)). Accompanied, however, by so many violations of the MLRPC, the sanction here is abundantly clear—disbarment is the only appropriate outcome.